Ex. Chera Balwan Singh vs Union Of India & Ors.
2000 Latest Caselaw 362 Del

ORDER

A.K. Sikri, J.

1. Petitioner was recruited as Artificer Apprentice (Under-trainee) on 2nd August, 1979 in the Indian Navy and promoted to ERA-5, the first rank in the Artificer cadre on 6th August, 1983 after completion of 4 years of Artificer Apprentice training period. He was promoted to the rank of CHERA (Chief Engine Room Artificer) w.e.f. 26.5.1992. He claims that during period he acquired certain technical qualifications and inspite of acquisition of these higher qualifications, he was not promoted in Navy. To make his career better in the civil services suitable to his qualification he asked for premature retirement. His request was acceded to by the respondents and petitioner was prematurely released at his own request on 28.2.94 for taking up a civil employment. As on the date of his release he had completed 10 years 6 months 26days service excluding Apprentice training period of 4 years and 14 years 6 months and 26 days service if the Apprentice training period is included. He was not given any pension. In the circumstances he sent demand notice dated 24.7.96. When it was not replied to, petitioner filed this present petition in which he claims that he may be paid and granted all pensionary benefits w.e.f., 1.3.1994 and also arrears along with interest thereon.

2. There is no dispute that the Apprentice Training period is now countable towards qualifying service for pension. This is the established position in law as settled by the Apex Court in the case of Anuj Kumar Dey and another Vs. Union of India and another . This is even admitted by the respondents in their counter-affidavit. Thus 4 years period spent by the petitioner as Artificer Apprentice is counted and the total service rendered by him comes to 14 years 6 months and 26 days. Both the parties agree that this is the service rendered by the petitioner. The question which is to be decided is as to whether on rendering this service petitioner is entitled to pension.

3. The respondents in their counter-affidavit have stated that since the minimum service required to earn pension is 15 years and as service rendered by the petitioner is less than 15 years, the petitioner is not entitled to pension. This is specified in Regulation 78 of Navy (Pension) Regulations, 1964. Petitioner also does not dispute that the qualifying service for pension is 15 years. However, he submits that as the service rendered by the petitioner is 14 years 6 months and 26 days and since fraction of the year is more than six months, it should be treated as complete one year and in this way total service rendered by him be treated as 15 years. In this manner, petitioner becomes entitled to pension. For this purpose, petitioner relies upon the judgment of Bombay High Court decided on 4th and 6th March, 1998 in the case entitled Nirvair Singh Vs. Union of India and Others. By this common judgment, a batch of writ petitions was decided. In this judgment, Division Bench of Bombay High Court has taken note of the controversy prevailing in the year 1990, namely, whether the period spent by such Naval Officers as Artificer Apprentice would be taken as training period only or whether it would be included for the purpose of pensionary benefits. The respondents at that time were taking the view that these officials were not entitled to get benefit of training period for computing the qualifying period of service for getting pension and the Supreme Court in the case of Anuj Kumar Dey (Supra) conclusively held that the view of the respondents was wrong and this period was to be counted for computing the qualifying period of service for getting pension. It is further observed in this judgment that even after the counting of the period of Artificer Apprentice certain employees had still not completed 15 years of service. Such persons who were petitioners in the aforesaid writ petitions had requested the respondents that they be permitted to complete their service as per Circular dated 3.7.1976 issued by the respondents so that they can qualify for pensionary benefits but their request was not accepted by the respondents by stating that they should opt for re-engagement for a further period of 5 years but this was not accepted by the petitioners. The judgment thereafter proceeds in the following manner:

10. "In order to show that the petitioners were ready and willing to complete their service of 15 years. the learned counsel for the petitioners pointed out the submissions made in the petition as well as the prayer Clauses and specifically pointed out that at the time of admission of the petitions, the Petitioner have requested the respondents not to discharge them at the end of January,1990 but to permit them to continue in service till they fulfilll the qualifying period of service for pension. It is admitted that at the time of admission of the matters, as the appeal was pending before the Supreme Court, the Court had not granted interim relief. As interim relief was not granted, the discharge certificate issued by the respondents was implemented. The discharge certificate which is granted to the petitioner in Petition No. 166 of 1990 is as under :

"This is to certify that Nirvair Singh, Chief Electrical Artificer, 202349-K has served in the Indian Navy from 08 Jan, 1975 to 31 Jan, 1990 as per details overleaf."

Similar discharge certificates are granted to all the petitioners. As per the discharge certificate, the reason for discharge is "On expiry of engagement". From this discharge certificate, it is apparent that all the petitioners were discharged on the ground that all the petitioner were discharged on the ground that their term of engagement has expired.

11. In our view, this apparently, is an erroneous order. In the petitions, it has been pointed out that the Government of India modified the conditions of service of sailors by is Circular dated 3rd July, 1976 (Exhibit "B" to the petition) and Order No. Ad/5374/2/76 dated 9th August, 1976 issued by the Chief of the Naval Staff (Exhibit 'C' to the Petition). As per Exhibit B, it has been pointed out that the initial period of engagement of a sailor would be for a period of 15 years, that is to say, a sailor is to be enrolled for a period of 15 years. Clause (g) (i) of the Circular dated 3rd July, 1976 also provides that all new entrants with 15 years initial engagement and such of the existing sailors who re-engage to complete time for minimum pension should sign a declaration that they will be liable to be recalled to active service, after release upto two years in case of non-artificers and three years in case of artificers. On the basis of the aforesaid modification in the conditions of service of sailors, the Chief of the Naval Staff had issued a Circular on 9th August, 1976 which, inter alia provides as under:-

"3. Direct entry sailors, Boys and Artificer Apprentices already on less than 15 years engagement who re-engage to complete time for minimum pension will be required to sign a fresh declaration as per enclosure IV to this letter."

4. After discussing this aspect, in subsequent paragraphs the High Court observed as under :

"15. In this view of the matter, in our view, it is apparent that the stand taken by the Department that the petitioners were not entitled to complete the remaining period of service so as to qualify for grant of pension is apparently illegal and in violation of the instructions issued by the Chief of the Naval Staff on 9th August, 1976. It appears that the Department was under a misconception that the period of service when the petitioners were working as boy or artificer apprentice would not be taken into consideration so as to qualify it for pension and gratuity. As the reengagement for limited period was refused to the petitioners, the petitioners approached this Court with a specific prayer that the respondents be directed to reengage the petitioners to continue in service for one year or for the necessary period to complete the minimum qualifying service period of 15 years for the purpose of Pensionary and death-cum-gratuity benefits in terms of Regulations 78 and 79 of the Pension Regulations. As stated above, at the time of admission, this prayer was not granted as the matter was pending before the Apex Court.

16. After the Apex Court's judgment, it is clear that the period during which the petitioners were employed as artificer apprentice is required to be computed for pension and gratuity. Further, as per circular dated 9th August, 1976 the petitioners were required to be given chance of getting re-engagement for a limited period so that they can complete the qualifying service for pension. However, petitioners were not permitted to complete 15 years of service and they were illegally discharged. The petitioners also sought interim relief, but that was also opposed at that time on the ground that the main question was pending before the Apex Court. Hence, for no fault of the petitioners and for the fault of the respondents, the petitioners were not permitted to complete 15 years of qualifying service. In such a situation, the only way which is open is to direct the respondents to consider that the petitioners have completed the qualifying service of 15 years for the purpose of getting pensionary benefits, as the petitioners were not permitted to get reengagement for a limited period because of the wrongful insistence by the respondents that they must accept reengagement for a period of five years. Further, the Regulation itself empowers the competent authority to condone the deficiency in service for eligibility to service pension upto a period of six months. We would further note that in Writ Petition Nos. 166, 171, 221, 223 and 365, all of 1990, 268 and 312 of 1991 the seven petitioners would have completed 15 years of service if their service prior to attaining the age of 17 years is taken into consideration. With regard to the remaining ten petitioners in Writ Petition Nos. 164, 165, 168, 169, 170, 172, 222, 224, 225 and 369, all of 1990 if their service prior to the age of 17 years is taken into consideration, they would have completed more than 14 years of service. If the said period is not taken into consideration, they have completed more than 13 years and 6 months of service or 14 years and few days in some cases. For the aforesaid reasons, it is directed that the petitioners be considered to be in service for a period of 15 years for the purpose of getting pensionary benefits as at this stage, after lapse of 8 years, it would not be proper to direct the petitioners to serve the Navy for the remaining period by opting reengagement for one year or few months more".

5. Thus the aforesaid judgment would make it clear that the main question to be decided by the Court was as to whether the petitioners were entitled to serve for the remaining period, to enable them to complete the shortfall in the minimum qualifying period for the purpose of pensionary and death-cum-gratuity benefits in terms of Regulations 78 and 79 of the Pension Regulation, 1964. The petitioners in the said petitions had in fact requested the respondents to allow them to complete the period but respondents were insisting for re-engagement for a period not less than 5 years. Even in the petitions request was made by way of interim relief for allowing the petitioners to serve for the remaining period in order to complete the minimum qualifying service period of 15 years. The Court noticed that it was the fault of the respondents in not allowing them to do so and in this context the court directed that the petitioners be considered to be in service for a period of 15 years for the purpose of getting pensionary benefits as no useful purpose could be served in directing the petitioners to serve for remaining period by opting re-engagement for one year or few months more than after a lapse of 8 years. Therefore, this judgment does not deal with the question which arises for consideration in this case inasmuch as it does not lay down any proposition to the effect that once the period of service is 14 years and 6 months or above it should be treated as 15 years service. More over situation in the present case is diametrically opposite to the one which prevailed in the cases before Bombay High Court. In those cases the petitioners wanted to complete the period of 15 years for service by serving for remaining period in order to earn the pensionary benefits. In the present case petitioner on the contrary requested for pre-mature release for better prospects in civil services. He never made any request to the respondents to allow him to complete the remaining period for service in order to qualify the period for 15 years. Nor such a request was made in the present petition. On the contrary the whole petition is based on the averments that 4 years service rendered by him as Artificer Apprentice be counted for pension and in para-9 of the petition it is stated that according to Navy Instruction 10 years of Service is pensionable. Thus the petition is based on the premise that the petitioner had completed 14 years and 7 months service which entitled him to earn pension as pension should be earned after 10 years of Navy service. In the rejoinder to the counter-affidavit filed by the respondents the petitioner has referred to the aforesaid judgment of Bombay High Court and has annexed the same in support of his submissions that even on the basis of 14 years of service pension was granted by the Bombay High Court. It has been observed that this course was adopted due to peculiar circumstances in those cases and finding fault with the conduct of the respondents in not allowing the petitioners to complete 15 years of service to earn pension which is not the case here. Therefore, on the basis of 14 years 6 months and 26 days of service rendered by the petitioner he cannot be granted pension.

6. However, in the application filed by the petitioner for placing the additional documents on record, the petitioner has also relied upon the news bulletin for the Navy Personnel known as "The Hamla Bulletin" (Vol. 3 Issue No.1 January-March,1999) wherein it is mentioned that deficiency in qualifying service upto 6 months can be condoned. The relevant portion of the said bulletin, which is annexed with the said application reads as under:

"Condo nation for Deficiency in Qualifying Service for Pension

To become eligible for minimum service pension, officers and sailors should have 20 years and 15 years of qualifying service respectively. However, Naval Headquarters and Commodore Bureau of Sailors respectively may condone deficiency in qualifying service upto six months for service pension".

7. It is, however, not stated as to which are the Rules and Regulations which empower Naval Headquarters and Commodore Bureau of Sailor to condone deficiency in qualifying service. However, since this is published in News Bulletin of respondents themselves, it appears that there would be some provision on the basis of which such a news item has appeared. If the petitioner is granted deficiency in qualifying service upto six months, he would become entitled to the pension. However, since discretion in this respect is vested with the competent authority which is to be exercised on the facts and circumstances of a particular case and on the basis of guidelines, if any contained in relevant Rules/Regulations/Provisions which are the basis of aforesaid news item, this court cannot give any direction to the respondents to condone the period. The only direction which can be given to the respondents is to consider the case of the petitioner for condoning deficiency in qualifying service upto six months for service pension in the light of relevant provision which is the basis of aforesaid news item.

8. This writ petition is, accordingly, disposed of with the direction to the petitioner to make an appropriate representation in this behalf seeking condo nation in deficiency of qualifying service and if such a representation is made within one month of the date of this judgment, the competent authority shall consider and decide the same on its merit and in the light of the relevant provision.

9. No orders as to costs.