Supreme Court of India
T.S. DAS AND ORS.versusUNION OF INDIA AND ANR.
- Citation
- 2016 INSC 994
- Decided
- 27 October 2016
- Disposal
- Disposed off
- Bench
- T S THAKUR
Holding
The petitioners are not entitled to Reservist Pension because they were never drafted to the Fleet Reserve, but may be considered for Special Pension under Regulation 95 at the Government's discretion.
Summary
The petitioners, former Sailors appointed before 1973, claimed that after completing ten years of active service they were entitled to either a Reservist Pension under Regulation 92 or a Special Pension under Regulation 95 of the Navy (Pension) Regulations, 1964. They argued that the Government's 3 July 1976 policy discontinuing the Fleet Reserve Service should not deprive them of a vested right to be drafted to the Reserve, invoking equitable promissory estoppel and the prohibition on retrospective application of regulations under Section 184‑A of the Navy Act, 1957. The Supreme Court examined the Navy Act, the relevant service regulations and the 1976 policy, finding that placement in the Fleet Reserve is not automatic but depends on an express order, which was never issued to the petitioners. Consequently, the petitioners could not satisfy the ten‑year reserve service requirement for Reservist Pension, and the principle of promissory estoppel was held inapplicable. However, the Court recognised that the petitioners may be eligible for a Special Pension under Regulation 95, subject to the discretion of the Central Government. The appeals were dismissed, leaving the petitioners to seek Special Pension from the competent authority.
Issues considered
- The entitlement of former Sailors to Reservist Pension under Regulation 92 when they were not drafted to the Fleet Reserve Service.
- The entitlement to Special Pension under Regulation 95 in view of the 1976 policy discontinuing the Fleet Reserve.
- Whether the principle of equitable promissory estoppel or legitimate expectation can be invoked against the Government policy.
- Whether the 1976 policy can be applied retrospectively without violating Section 184‑A of the Navy Act, 1957.
- Whether Sailors have a vested or accrued right to be placed in the Fleet Reserve Service after completion of active service.
Legislation cited
- Indian Naval Reserve Force (Discipline) Act, 1939
- Navy Acts. 16, s. 184-A
- Navy (Pension) Regulations, 1964s. 269, s. 279, s. 6, s. 92, s. 95
Subjects
Navy ActReservist PensionSpecial PensionFleet Reserve ServiceEquitable promissory estoppelGovernment policySection 184-AArmed Forces TribunalRegulation 92Regulation 95Discharge
Judgment
[2016] 6 S.C.R. 541
T.S. DAS AND ORS. A
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 2147 of201 l)
OCTOBER 27, 2016 B
(T.S. THAKUR, CJI, A.M. KHANWILKAR AND DR. D.Y.
CHANDRACHUD, JJ.J
Armed Forces:
Navy Act, 1957 - Navy (Pension) Regulations, 1964 - Regns. c
92, 95 - Reservist Pension and Special Pension - Grant of -
Applicants appointed as Sailors in Indian Navy prior to 03.07.1976
- Appointment letter to the effect that applicant engaged as Sailor
for JO years active service and JO years on fleet service thereafter,
if required - Applicants continued for a brief period beyond the
D
initial term of I 0 years in active service - Meanwhile,
discontinuation of Fleet Reserve Service because of the Government
policy dated 03.07.1976 - Applicants discharged without drafting
them to fleet reserve services and paid gratuity - Claim of applicallfs
for the grant of special pension and reservist pension before the
tribunal - Rejected by the tribunal - In another application, tribunal E
accepted to the claim of appellants for gram of reservist pension -
On appeal, held: There is no provision either i11 the Act of 1957 or
the Regulatio11s framed thereu11der, to suggest that drafti11g of such
Sailors on Fleet Reserve Service was ''automatic" after expiration
of their active service/enrolment period - Effect of the Government
F
Policy is to disband the establishment of the Reserve Fleet Service
with effect from 03.07.1976 - Drafting of Sailors to the Reserve
Fleet Service was dependellf 011 an express order to be passed by
the competent Authority - Sailors did 11ot have a vested or accrued
right for being placed in the Reserve Fleet Service - Hence, 110
right of the Sailors in active service was affected or taken away G
because of the Policy - Consequence of not placing the concerned
Sailor to the Fleet Reserve Service may result in deprivation of
Reservist Pe11Sion ~ However, applica11ts e111itled W..Special Pension
u11der Regn. 95, bei11g a separate dispe11Sation for such Sailors,
u11less discharged by way of punishme111 under Regn. 279 - None
H
541
542 SUPREME COURT REPORTS [2016] 6 S.C.R.
A of the applicants entitled for Reservist Pension in terms of Regn. 92
- All Sailors appointed prior to 03.07.1976 and whose tenure of
initial active service/empanelment period expired on or after
03.07.1976 eligible for Special Pension under Regn. 95, subject to
fulfilling other requirements - Navy Ceremonial Conditions of
Services and Miscellaneous Regulations, 1964 - Regn. 269.
B
Disposing of the appeals, the Court
HELD: 1.1 The condition in the appointment letter cannot
be read in isolation. From the provisions in the Navy Act, 1957,
there is nothing to indicate that the Sailor after appointment or
c enrolment is "automatically" entitled to continue in Fleet Reserve
Service after completion of initial active service period of 10
years. The provisions, however, indicate that on completion of
initial active service of 10 years or enhanced period as per the
amended provisions is entitled to take discharge in terms of
Section 16 of the Act. The applicants assert that none of the
D applicants opted for discharge. That, however, does not mean
that they would or in fact have continued to be on the Fleet
Reserve Service after expiration of the term of active service as
a Sailor. There ought to have been an express order issued by
the competent Authority to draft the concerned applicant in the
E Fleet Reserve Service. In absence of such an order, on completion
of the term of service of engagement, the concerned sailor would
stand discharged. Concededly, retention on the Fleet Reserve
Service is the prerogative of the employer, to be exercised on
case to case basis. In the instant case, however, on account of a
policy decision, the Fleet Reserve Service was discontinued in
F terms of notification dated 03.07.1976. [Para 15] (564-B-F]
1.2 As per the policy dt. 03.07.1976, the initial period of
engagement was enhanced to 15 years. At the same time the
transfer of Sailors to Fleet Reserve was discontinued. None of
the relevant provisions even remotely suggest that the Sailor is
G "automatically" transferred to the Fleet Reserve Service.
Whereas, it is expressly provided that on expiration of the term
of service of engagement the Sailor would be placed on Fleet
Reserve Service only if an express order in that behalf is passed
by the Competent Authority to draft him on the Fleet Reserve
H and not otherwise. Section 16 of the Act, merely gives an option
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 543
to the Sailor to take a discharge after expiration of term of service A
of engagement. It is not a deeming provision that if such option
is not exercised by the concerned Sailor, he would be treated as
having been drafted on the Fleet Reserve Service for another 10
years "automatically". [Paras 16, 17] 1566-D-G]
1.3 Regulation 269 reinforces the position that the services B
of a Sailor would be continued "so long required" or "if required".
The second part of Clause (1) of that Regulation uses the
expression "if required", for further 10 years service in tb.e Indian
Fleets Reserve, subject to the provisions therein. [Para 18] [566-
H; 567-A]
c
1.4 The quintessence for grant of Reservist Pension, as per
Regulation 92 of the Navy (Pension) Regulations, 1964, is.
completion of the prescribed Naval and Reserve qualifying service
of IQ years "each". Merely upon completion of 10 years of active
service as a Sailor or for that matter continued beyond that period,
but falling_ short of 15 years or qualifying Reserve Service, the D
concerned Sailor cannot claim benefit under Regulation 92 for
grant of Reservist Pension. For, to qualify for the Reservist
Pension, he must be drafted to the Fleet Reserve Service for a
period of 10 years. In terms of Regulation 6 of the Indian Fleet
Reserve Regulations, there can be no claim to join the Fleet E
Reserve as a matter of right. None of the applicants were drafted
to the Fleet Reserve Service after completion of their active
service. The tribunal in O.A. No. 83 of 2013, however, granted
that relief of Reservist Pension by invoking principle of equitable
promissory estoppel and legitimate expectation in favour of the
applicants. The Tribunal committed manifest error in overlooking F
the statutory provisions in the Act of 1957 and the relevant
Regulations framed thereunder, governing the conditions of
service of Sailors. The fact that on completion of 10 years of active
service, the Sailor could be taken on the Fleet Reserve Service
for a further period of 10 years cannot be interpreted tO mean G
that the concerned Sailor had acquired a legal right to join the
Fleet Reserve Service or had de jure continued on Fleet Reserve
Service for a further 10 years after expiration of the initial term
of active service/engagement. There is no provision either in
the Act or the Regulations framed thereunder, to suggest that
H
544 SUPREME COURT REPORTS [2016] 6 S.C.R.
A drafting of such Sailors on Fleet Reserve Service was "automatic"
after expiration of their active service/enrolment period. [Para
20) [567-C-H]
1.5 The submission that if the Government Policy dated
03.07.1976 is applied to the serving Sailors, inevitably, would
B result in retrospective application thereof to their detriment
cannot be accepted. That is forbidden by Section 184A. In that,
the effect of the Government Policy is to disband the establishment
of the Reserve Fleet Service with effect from 03.07.1976. Drafting
of Sailors to the Reserve Fleet Service was not automatic; but
dependent on an express order to be passed by the competent
c Authority in that behalf on case-to-case basis. The Sailors did
not have a vested or accrued right for being placed in the Reserve
Fleet Service. Hence, no right of the Sailors in active service
was affected or taken away because of the Policy dated 03.07.1976.
In any case, on a conjoint reading of the Regulations governing
D the Service Conditions of the Sailors and having noticed that it is
the prerogative of the Government to place the Sailors to the
Fleet Reserve Service; and at the same time option was given to
the Sailors to opt for discharge in terms of Section 16, it cannot
be understood as to how such dispensation can be termed as·
unequal bargaining power. The consequence of not placing the
E concerned Sailor to the Fleet Reserve Service may result in
deprivation of Reservist Pension. However, original applicants
may be entitled to get a Special Pension under Regulation 95 of
the Naval (Pension) Regulations, 1964, being a separate
dispensation for such Sailors, unless discharged by way of
F punishment under Regulation 279. In view thereof, none of the
applicants before the Tribunal are entitled for Reservist Pension
in terms of Regulation 92. [Paras 21, 22] (568-B-C, E-H]
1.6 Regulation 95 is a special provision and carves out a
category of Sailors, to whom it must apply. Discretion is vested
G in the Central Government to grant Special Pension to such
Sailors, who fall within the excepted category, firstly, Sailors who
have been discharged from their duties in pursuance of the
Government policy of reducing the strength of establishment of
the Indian Navy; or secondly, of reorganization, which results in
paying off of any ships or establishment. In the instant case, Clause
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 545
(i) of Regulation 95 must come into play, in the backdrop of the A
policy decision taken by the Government, dated 03.07.1976. On
and from that date, concededly, the Fleet Reserve Service has
been discontinued. That, inevitably results in reducing the
strength of the establishment of the Fleet Reserve of the Indian
Navy to that extent, after coming into force of the said policy.
B
None of the Sailors have been or could be drafted to the Fleet
Reserve after coming into force of the said Policy-as that
establishment did not exist anymore and the strength of
establishment of the Indian Navy stood reduced to that extent.
Indisputably, the Sailors appointed prior to 03.07.1976, had the
option of continuing on the Fleet Reserve Service after expiration c
of their active service/empanelment period. In respect of each
applicants the appointment letter mentions the period of
appointment as 10 years of initial active service and 10 years
thereafter as Fleet Reserve Service, if required. The option to
continue on the Fleet Reserve Service could not be offered to
D
these applicants and similarly placed Sailors, by the Department,
after expiration of their empanelment period of 10 years or less
than 15 years as the case may be. Such Sailors were simply
discharged on expiration o.f their active service/empanelment
period. Thus, on account of discontinuation of the Fleet Reserve
establishment of the Indian Navy, in terms of policy dated E
03.07.1976 it has entailed in reducing the strength of
establishment of the Indian Navy to that extent. [Para 23] [569-
B-C]
1.7 The appellant no. 36 (in CA No. 2147 of 2011) asserted
that he was discharged from the Fleet Reserve unilaterally by F
the Department and by that time, he had completed combined 17
years 1 month and 26 days of service, for which reason was
entitled to Reservist Pension under Regulatfon 92(2) of the
Pension Regulations, relying on communication dated 08.05.2014.
Since this appellant was not in active service when the
Government Policy dated 03.07.1976 came into being and claims G
to have been discharged from the Fleet Service on 30.03.1967,
would be free to make representation to the competent Authority.
It is for the competent Authority to examine the issue. [Para 24]
(569-G-H; 570-A-B]
H
546 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 1.8 All Sailors appointed prior to 03.07.1976 and whose
tenure of initial active service/empanelment period expired on
or after 03.07.1976 may be eligible for a Special Pension under
Regulation 95, subject, however, to fulfilling other requirements.
In that, they had not exercised the option to take discharge on
expiry of engagement and yet were not and could not be drafted
B
by the competent Authority to the Fleet Reserve because of the
policy of discontinuing the Fleet Reserve Service w.e.f.
03.07.1976. The cases of such Sailors (not limited to the original
applicants before the tribunal) must be considered by the
Competent Authority within three months for grant of a "Special
c Pension" from three years prior to the date of application made
by the respective Sailor and release the payment. [Para 25] [570-
D-F]
D.S. Nakara & Ors. v. Union of India AIR 1983 SC
130:1983 (2) SCR 165; BCPP Mazdoor Sangh & Am:
D v. NTPC & Ors. AIR 2008 SC 336:2007 (10) SCR 1084;
Union of India & Ors. v. Asian Food Industries (2006)
13 SCC 542:2006 (8) Suppl. SCR 485; Central Inland
Wafer Transport Corporation v. Brojonath Ganguly
(1986) 3 SCC 156:1986 (2) SCR 278; Union of India
v. Asian Food Industries (2006) 13 SCC 542:2006 (8)
E Suppl. SCR 485; Dakshin Haryana Bijli Vitran Nigam
v. Bachan Singh (2009) 14 SCC 793:2009 (11) SCR
710; Sonia v. Oriental lns1,1rance Co. (2007) 10 SCC
627:2007 (8) SCR 883; Union of India and Another v.
Dr. S. Baliar Singh (1998) 2 SCC 208:1997 (5) Suppl.
F SCR 433; Union Public Service Commission v. Girish
Jayanti Lal Vaghe/a and Others (2006) 2 SCC 482:
2006 (1) SCR 1006; Roshan Lal Tandon v. Union of
India AIR 1967 SC 1889:1968 SCR 185 - referred
to.
Case Law Reference
G
1983 (2) SCR 165 referred to Para7
2007 (10) SCR 1084 referred to Para7
2006 (8) Suppl. SCR 485 referred to Para7
H 1986 (2) SCR 278 referred to Para7
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 547
2006 (8) Suppl. SCR 485 referred to Para 7 A
2009 (11) SCR 710 referred to Para7
2007 (8) SCR 883 referred to Para7
1997 (5) Suppl. SCR 433 referred to Para8
2006 (1) SCR 1006 referred to Para8 B
1968 SCR 185 referred to Para8
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2147 of
2011.
From the Judgment and Order dated 04.02.2010 of the Armed c
Forces Tribunal Principal Bench, New Delhi in Original Application No.
182of2009
WITH
C. A. No. 8566 of2014.
V. Giri, Ms. Kiran Suri, Sr. Advs., T. Sushakar, Omanakuttan K.K.,
C. M. Angadi, S. M. Dalal, R. P. Goyal, Shreekant N. Terdal, Nishe D
Rajen Shonkar, Gajendra Kichi, R. Balasubramanian, Ms. Ananya Mishra,
M. K. Maroria, Ms. Aarti, N. K. Karhail, Ms. Sunita Gautam, Mrs. Anil
Katiyar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
A.M.KHANWILKAR, J. I. These appeals emanate from the · E
divergent relief claimed by the original applicants before the Armed F-Orces
Tribunal (Appellants in Civil Appeal No. 2147of2011 and Respondents
in Civil Appeal No. 8566 of2014), which, however, involve overlapping
points for consideration. Hence, we deem it apposite to dispose of both
these appeals analogously, by this common judgment.
F
2. Civil Appeal No. 2147 of201 l arises from an order passed by
the Armed Forces Tribunal, Principal Bench, New Delhi, in Original
Application No. 182 of2009 dated 4th February, 2010. The Tribunal has
rejected the claim of the applicants therein for grant of a "Special
Pension". In Civil Appeal No. 8566of2014 the decisioo.ofthe Armed
Forces Tribunal, Regional Bench, Chennai, i!l O.A. No.83 of2013 dated G
22"d April, 2013, is challenged by the Union oflndia. In that case, the
Tribunal acceded to the claim of the applicants therein for grant of a
"Reservist Pension".
3. Admittedly, the applicants before the Tribunal in both cases were
appointed as Sailors in the Indian Navy before 1973. The appointment H
548 SUPREME COURT REPORTS [2016] 6 S.C.R.
A letter noted that the concerned applicant was engaged as a Sailor for 10
years active service and 10 years on Fleet Reserve Services thereafter,
if required. The applicants were continued for a brief period beyond the
initial term of 10 years in active service/engagement and discharged
without drafting them to Fleet Reserve Services. Tryus, each applicant
was discharged by the Indian Navy after July, 1976, on completion of
B
their active service and was paid gratuity. As the Tribunal granted relief
to similarly placed persons by directing the Authorities to grant Reservist
Pension/Special Pension, even these applicants moved the Tribunal for
a similar relief.
4. The 38 applicants in O.A.No.182/2009 (appellants in
c C.A.No.2147/2011) had initially approached the High Court of Delhi by
way of a Civil Writ Petition No.4805/2008, to issue< direction to the
competent Authority to grant special pension to them under Regulation
95 of the Navy (Pension) Regulations, 1964 (hereinaftei:_ referred to as
"Pension" Regulations). The High Court vide order dated July 8, 2008
D directed the competent Authority to examine the claim of the said
applicants for grant of a special pension. The competent Authority after
examining the matter rejected the claim of the said applicants vide a
speaking order dated 301h September 2008. The competent Authority
held that the said applicants were discharged from service after completion
of their initial engagement and were not drafted to the Fleet Reserve, as
E they were not required. That fact was mentioned in the discharge slips
issued to them. The competent Authority also held that Regulation 95 of
the Pension Regulations was inapplicable to the said applicants as they
were not discharged as a measure of reducing the strength of the
establishment of the Indian Navy or of any re-organization. Instead,
F they were discharged after completion of engagement period in terms
of Section 16 of the Navy Act, 1957. The applicants then approached
the Armed Forces Tribunal, Principal Bench, New Delhi by way ofO.A.
No. 182/2009 which, however, was dismissed on 4'h February 2010.
The Tribunal held that the applicants were discharged from service after
completion of 10 years period of engagement. They had no right to be
G drafted on the Fleet Reserve. Reliance placed by the applicants on
Regulation 269 of the Navy Ceremonial, Conditions of Service and
Miscellaneous Regulations, 1963 (hereinafter referred to as the
"Conditions of Service Regulations"), was negatived by the Tribunal on
the finding that the said provision is only an enabling provision and vests
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 549
[A.M. KHANWILKAR, J.]
discretion in the Authority to draft the concerned Sailor on Fleet Reserve. A
The Tribunal held that Regulation 95 was not applicable to the case of
the applicants who were discharged from service after completion of I 0
years of engagement. Accordingly, the original application filed by the
said applicants was dismissed being devoid of merit. Against that decision,
the appellants in C.A. No. 2147/2()11 have approached this Court.
B
5. In the companion appeal filed by the Union of India being
C.A.No. 8556/2014, the Armed Forces Tribunal, Regional Bench,
Chennai, however, has allowed the original application filed by the three
applicants. The Tribunal directed the competent Authority to grant
Reservist Pension to the said applicants payable from three years prior
to the filing of the original application i.e. from 29m October 2009 and to c
adjust the service gratuity and. the Death-cum-Retirement-Gratuity
(DCRG) already paid to those applicants from the arrears. The Tribunal
while dealing with the. claim of Reservist Pension held that on expiry of
the engagement of acti.ve service, the applicants ought to have been
drafted on the Fleet Reserve Service as per the original engagement of D
service. Reliance placed by the Union oflndia on the other decision of
the Tribunal of Regional Bench ofKochi dealing with similar issue, has
been brushed aside by the Tribunal by invoking the principle of equitable
promissory estoppel. The Tribunal concluded that the three applicants
were entitled for grant of Reservist Pension as per Regulation 92 of the
Pension Regulations. The Tribunal also accepted the alternative prayer E
of the said applicants for grant of Special Pension as specified in
Regulation 95 of the Pension Regulations on the ground that because of
the Government Policy dated J'd July 1976 of reducing the strength of
establishment or re-organising any ships or establishments resulting in
paying off, the applicants were not drafted on the Fleet Reserve Service. F
The Tribunal, further, noted that the applicants could be given only one
of the above pension and finally concluded that they were entitled for
Reservist Pension .
. 6. The applicants who had claimed Special Pension as per
Regulation 95 of the Navy (Pension) Regulations, 1964, contended that G
because of the change of Policy vi de notification dated 3n1 July, 1976, it
entailed in discontinuation of the Fleet Reserve Service. Thus, in terms
of Clause (i) of Regulation 95, they were entitled for a Special Pension.
7. According to the original applicants, they had signed a contract
H
550 SUPREME COURT REPORTS [201:"6) 6 S.C.R.
A to serve with the Navy for 10 years in active service and 10 years in
Fleet Service. They were under bonafide beliefthat they would be allowed
to complete their pensionable service i.e. 10 years in active service and
10 years in Fleet Reserve. Even the official document in the shape of
service certificate would reinforce this position. They submit that if they
were allowed to complete the term of service, as mentioned in the
B
certificate of service, they would have become entitled for Reservist
Pension in terms of Regulation 92 of the Pension Regulations. In any
case, on account of re-organisation of the Naval Establishment by
abolishing the establishment of Fleet Reserve, it inevitably resulted in
reduction of the total strength of the Indian Navy w.e.f. J'd July 1976.
c That was the sole reason for not drafting the applicants to the Fleet
Reserve Service. As a result, the applicants in any case were entitled to
a Special Pension under Regulation 95 of the Pension Regulations. In
that, all the Sailors in active service during 3n1 July 1976, were discharged
because of the Government Policy, who, otherwise, were entitled to be
transferred to Fleet Reserve Service, as per their initial term of
D
engagement. Abolition of Fleet Reserve Service in terms of Government
Policy amounts to reduction of strength of establishment of the Indian
Navy or reorganization of establishment to that extent. Reliance is placed
on the exposition in the case of D.S. Nakara & Ors. vs. Union of
India' to contend that pension payable to a Government employee is
E earned by rendering long and efficient service and, therefore, can be
said to be a deferred portion of the compensation for~rvice rendered.
That cannot be denied to the original applicants on the basis of Government
Policy dated J'd July 1976. Taking any other view would meari that the
said policy is made applicable retrospectively even to the case of the
applicants who were already in service with assurance that they would
F
remain in active service for 10 years and 10 years after in Fleet Reserve.
The Government Policy dated 3n1 July 1976, ifmade applicable to the
applicants and similarly placed persons would result in changing their
service conditions to their detriment. That is impermissible, as expounded
in the case of BCPP Mazdoor Sangh & Anr. vs. NTPC & Ors.~ and
G Union of India & Ors. vs. Asian Food lndiistries3 • Section 184-A
of the Navy Act, 1957 forbids giving retrospective effect to a Regulation
which prejudicially affects the interests of any person. It is contended
I AIR 1983 SC 130
2
AIR 2008 SC 336
'(2006) 13 sec 542
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 551
[A.M. KHANWILKAR, J.]
that Regulation 269 of the Conditions of Service Regulations read with A
the provisions of the Pension Regulations make it amply clear that every
Sailor who had served in the Indian Navy before or after the amendment
of Conditions of Service Regulations or coming into force of the
Government Policy w.e.f. 3n1 July 1976, was entitled for a pension. The
fact that Government decided to discontinue the Fleet Reserve Service
B
ought not to impinge upon the salutary rights of the Sailors in active
service to get pension. The applicants have supported the reason given
by the Tribunal, that the principles of equitable promissory estoppel would
apply to the fact situation of the present case. According to the applicants,
the Government has adopted a pedantic approach in giving narrow
interpretation to the expression "if required" occurring in Regulation c
269(1). If that interpretation is to be accepted, the Regulation would be
hit by Article 14 of the Constitution oflndia. In that, the Government
would reserve its right to keep the Sailors on Reserve Fleet Service, but
would leave no option to the Sailors who would be bound by the contractual
obligation as per the original service conditions to remain on Fleet Service
D
for 10 years after completion of 10 years of active service. The discretion
provided to the Government, as per the interpretation given to the
expression "if required" would be hit by the principle of contra
proferentum, as observed in the case of Central Inland Water
Transport Corporation vs. Brojonath Ganguly1 in view of unequal
bargaining power. The Department being a Welfare State cannot be E
heard to adopt such argument as canvassed with reference to the
expression "if required". The Government cannot be heard to deny
pensionary benefits to the Sailors who.were in active service at the
relevant time when the Government Policy came into force for disbanding
the Fleet Reserve Service. It is one thing to say that the Government
F
has discretion to discontinue or re-organise its establishment, but that
cannot be done at the cost of the rights of the Sailors, in particular
pensionary benefits. It was argued that on conjoint reading of the
provisions of Service Conditions Regulations and the Regulations for
India Fleet Reserve, it would be amply clear that when the Sailor does
not express his unwillingness to continue after active service of 1-0 years G
it would follow that he has been taken on the Fleet Reserve Service. In
substance, the argument is that the applicants had an accrued and vested
right to get Reservist Pension and that cannot be taken away much less
by an amendment to the Regulations or a Government Policy to
'(1986) 3 sec 156 H
552 SUPREME COURT REPORTS [2016] 6 S.C.R.
A discontinue the.Fleet Reserve Service. Reliance is placed on the decisions
in Union of India vs. Asian Food Industries 5, Dakshin Haryana
Bijli Vitran Nigam vs. Bachan Singh 6 and in Sonia vs. Oriental
Insurance Co. 7 • Appellant No. 36 (In C.A.No.2147/2011) has
additionally submitted that he was recruited as a direct entry Sailor on
7m February, 1950 and on completion of I0 years of active service was
B
drafted to the Fleet Reserve for second leg of compulsory I0 years
Fleet Reserve. He was discharged from the Fleet Reserve on 30'h March
1967 unilaterally by the respondents. By that time, he had completed
combined 17 years 0 I month and 26 days of service. Relying on Clause
(2) of Regulation 92 of the Pension Regulations, it is contended that he
c was discharged from the Reserve Fleet otherwise than at his own request;
and, therefore, was entitled to Reservist Pension. The fact that he had
not made any request for early discharge has been admitted by the
Department in its letter dated gm May 2014 and yet he has been denied
the benefit of Reservist Pension, unlike extended to Sailors similarly
situated.
D
8. Per contra, it is submitted on behalf of the Union of India that
the period of engagement for continuous service ofNaval Person in the
Indian Navy including their terms and conditions for continuous service
in the Indian Reserve Fleet and also entitlement for grant of Reservist
Pension is governed by Regulation 268 and 269 of the Conditions of
E Service Regulations and also Regulation 92 and 95 of the Pension
Regulations and Regulation 6 of the Indian Fleet Reserve Regulations.
Since the original applicants were enrolled as Sailors prior to 3rd July·
1976, on completion of I0 years of continuous service, their service
could be drafted on Fleet Reserve Service only ifrequired, for a further
F period of 10 years in the Indian Fleet Reserve, as per Regulation 269(~1 ).
But, due to discontinuation of Fleet Reserve Service w.e.f. 3rd July 1976
the original applicants were not and could not have been drafted to Indian
Fleet Reserve. The enrollment in the Indian Fleet Reserve is governed
by the Fleet Reserve Act of 1940. It is neither a matter of right nor
automatic. As per Regulation 6 oflndian Fleet Reserve Regulations the
G entries in the service certificate relied on by the original applicants were
made at the time of enrollment only to indicate that a Sailor will serve 10
years active service followed by I0 years Fleet Reserve, if required.
'(2006) 13 sec 542
6(2009) 14 sec 793
H 1
(2007) 10 sec 627
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 553
[A.M. KHANWILKAR, J.]
Such entry cannot create any right in favour of the Sailor to be drafted A
on the Indian Fleet Reserve. Regulations adverted to by the original
applicants was an enabling provision and not the condition of contract or
any promise made to the Sailor that he will be compulsorily drafted to
the Fleet Reserve. There is no deeming provision in that behalf in any of
the Regulations governing the service conditions of the Sailors. Majority
B
of the Sailors opted to take discharge after completion of 10 years of
active service. Those who volunteered to be drafted to the Fleet Reserve
were considered by the Department on case-to- case basis subject to
fulfilling the requisite requirements therefor. Only such Sailors who had
completed the 10 years of active service and 10 years of Fleet Reserve
Service, as per the Regulation, were entitled for minimum pension. The c
original applicants were not drafted to the Fleet Reserve due to
discontinuation of Fleet Reserve w.e.f 3rd July 1976. Resultantly, none
of the original applicants were eligible for Reservist Pension. It is
contended thflt this view has been taken by the Armed Forced Tribunal
in Case No. T.A.492/2009 (Niranjan Chakraborty, Ex-L/TEL No.92171)
D
decided on 10.02.2010, in O.A.No.84/2010 (Ramachandran Pillai, Ex-
SEA I, No.88568) decided on 16.05.2011, in O.A.No.42/2012 (Mangala
Prasad Choubey, Ex-LS,No.94834) decided on 19.06.2013, in
O.A.No.08/2013 (Ex Navy Direct Entry Artificer Association & Ors.)
decided on 22.01.2014, in 0.A.No.02/2014 (SS Bansure, Ex-SEA
I,No.8400 I) decided on 18.06.2014. The decision in the case ofNiranjan E
Chakraborty has been affirmed by this Court in SLP (C) No.19790/2001
decided on 13'h January 2014. Hence, the issue stood concluded against
the original applicants. The decision of the Armed Forces Tribunal,
Regional Bench at Chennai, which is impugned in the present appeal,
therefore, deserves to be overturned following the dismissal of the appeal
F
by this Court against the decision of the Armed Forces Tribunal, New
Delhi in T.A. No. 492/2009 dated 1O•h February 2010 ..The principle of
equitable promissory estoppel invoked by the Tribunal in the impugned
judgment is inapplicable to the present case, keeping in mind the express
provisions in the extant Regulations regarding the service conditions of
the original applicants. The original applicants cannot be heard to claim G
any right to be transferred to the Reserve Fleet or for that matter being
automatically transferred thereat. For, unless the Sailor is drafted to the
Reserve Fleet by an express order of the Competent Authority the
question of entitlement to Reservist Pension in terms of Regulation 92
would not arise. The plea of equitable promissory estoppel cannot be
H
554 SUPREME COURT REPORTS [2016] 6 S.C.R.
A pursued as there cannot be estoppel against law ( Union of India and
Another vs. Dr. S. Baliar Singh8 ; Union Public Service Commission
vs. Girish Jayanti Lal Vaghela and Others 9 .) Reliance is also placed
on the decision of the Constitution Bench in Roshan Lal Tandon vs.
Union oflndia 10 which has taken the view that the terms and conditions
of service of Government Servants can be unilaterally altered by the
B
Government and there is no vested or cqntractual right of the Government
servant. Further, the legal position ofa Government servant is more ofa
status, than of contract; and the hallmark of status being a relationship
of rights and duties imposed by the public law and not by agreement of
parties. It is further submitted that the original applicants (respondents in
c C.A. No. 8556/2014) were given an option to continue in Naval Service
for extended term following the discontinuance of Reserve Service, but
all of them gave unwillingness and hence they were discharged on
completion of period of engagement. Having opted to take discharge,
those applicants in any case cannot claim relief of grant of pension as
per the relevant Rules. With regard to the scope of Regulation 95 of the
D
Pension Regulation, it is submitted that the effect of Government Policy
manifested in the Notification dated 3rd July 1976, was not to reduce the
strength of the establishment of the Indian Navy or for that matter re-
organisation of the establishment as such. It was also not a case of
paying off. In that, the applicants were discharged on completion of
E their active service. For being l\ case of paying off, the Sailors whilst in
service were required to be removed/ discharged because of
discontinuance or closure of the Indian Fleet Reserve. Merely because
of discontinuation of Fleet Reserve, persons affected may not become
entitled to a Special Pension. Only if such re-organization results in paying
off of any ships or any establishments, Clause (ii) of Regulation 95 would
F
come into play. Accordingly, it is submitted that even the relief of grant
of a Special Pension, is devoid of merit.
9. We have heard the learned counsel appearing for the concerned
parties at length. It is not in dispute that the applicants before the Tribunal
were engaged as Sailors before 1973. The provisions concerning
G commissions, appointment and enrolments is found in Chapter IV of the
Navy Act, 1957 (hereinafter referred to as "Act, of I957"). Section 9 of
the Act of 1957 provides for the eligibilities for appointment or enrolment
• (1998) 2 sec 208
• (2006) 2 sec 482
H '"AIR 1967 SC 1889
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 555
[A.M. KHANWILKAR, J.]
in the Indian Navy or lndian Naval Reserve Forces. The terms and A
conditions of service of Sailors, as mentioned in Section 11 of the Act of
1957 are such as may be prescribed. Sub-Section (2) thereof provides
for the term ofa Sailor in the Indian Navy for a period of 10 years in the
first instance. That was subsequently increased to 15 years. By a further
amendment iil 1987, the said term has been increased to 20 years w.e.f.
B
09.09.1987. Section 12 ofAct of 1957 is about the validity of enrolment
as a Sailor. It postulates that the incumbent shall be deemed to have
been duly enrolled and shall not thereafter be entitled to claim his discharge
on the ground of any irregularity or illegality or any other ground
whatsoever. Chapter V of the Act 1957 deals with conditions of service
of Officers and Sailors. Section 14 stipulates that Officers and Sailors c
shall be liable to serve in the Indian Navy or the Indian Naval Reserve
Forces, as the case may be, until they are discharged, dismissed with
disgrace, retired, permitted to resign, or released. Section 14 to 17 which
may have some bearing on the matter in hand, read thus:
"14. Liability for service of officers and sailors.-(1) Subject D
to the provisions of sub-section( 4 ), officers and sailors shall be
liable to serve in the Indian Navy or the Indian Naval Reserve
Forces, as the case may be, until they are duly discharged,
dismissed with disgrace, retired, permitted to resign, or released.
(2) No officer shall be at liberty to resign his office except with E
the permission of the Central Government and no sailor shall be
at liberty to resign his post except with the permission of the
prescribed officer.
(3) The acceptance ofany resignation shall be a matter within the
discretion of the Central Government or the officer concerned, as F
tqe case may be.
(4) Officers retired or permitted to resign shall be liable to recall
to naval service in an emergency in accordance with regulations
made under this Act, and on such recall shall be liable to serve
until they have been duly discharged, dismissed, dismissed with
G
disgrace, retired, permitted to resign, or released.
15. Tenure of service of officers and sailors.-(1) Every officer
and sailor shall hold office during the pleasure of the President.
(2) Subject to the provisions of this Act and the regulations made
H
556 SUPREME COURT REPORTS [2016] 6 S.C.R.
A thereunder-
(a) the Central Government may dismiss or discharge or retire
from the naval service any officer or sailor;
(b) the Chief of the Naval Staff or any prescribed officer may
dismiss or discharge from the naval service any sailor.
B
16. Discharge on expiry of engagement.-Subject to the
provisions of section 18, a sailor shall be entitled to be discharged
at the expiration of the term of service for which he is engaged
unless-
c (a) such expiration occurs during active service in which case
he shall be liable to continue to serve for such further period as
may be required by the Chief of the Naval Staff; or
(b) he is re-enrolled in accordance with the regulations made
under this Act.
D 17. Provisions as to discharge.-( I) A sailor entitled to be
discharged under section 16 shall be discharged with all convenient
speed and in any case within one month of his becoming so entitled:
Provided that where a sailor is serving overseas at the time
he becomes entitled to be discharged, he shall be returned to India
E for the purpose of being discharged with all convenient speed,
and in any case within three months of his becoming so entitled.
Provided further that where such enrolled person serving
overseas does not desire to return to India, he may be discharged
at the place where he is at the time.
F (2) Every sailor discharged shall be entitled to be conveyed free
of cost from any place he may be at the time to any place in India
to which he may be at the time to any place in India to which he
•!lay desire to go.
(3) Notwithstanding anything contained in the preceding sub-
G section, an enrolled person shall remain liable to serve until he is
duly gischarged.
(4) Every sailor who is dismissed, discharged, retired, permitted
to resign or released from service shall be furnished by the
prescribed officer with a certificate in the language which is the
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 557
[A.M. KHANWILKAR, J.]
mother tongue of such sailor and also in the English language A
setting forth-
(a) The authority terminating his service;
">
(b) the cause for such termination; and
( c) the f1,11l period of his service in the Indian Navy and the B
Indian Nayal Reserve Forces."
Section 15 provides for the tenure of Officers and Sailors which is
subject to the provisions of the Act and the Regulations made thereunder.
The Regulations regarding conditions of service as framed under the
Act of 1957, are the Naval Ceremonial Conditions of Services and c
Miscellaneous Regulations, 1964. Regulations 268 deals with
engagements including all Direct Entry Sailors. Regulation 269 deals
with continuous service. Regulation 269 as applicable at the relevant
time when tlie applicants were appointed before 1973, as extracted in
the judgment of the Tribunal in T.A. No.492 of2010, read thus:
D
"Regulation l69:
. "; ' .. 5 ·,
Continuous service. (I) Old [Entrants] Boys, Artificer
Apprentices and Direct Entry sailors may be enrolled for a period
calculated to permit a period of I 0 years' service to be completed
from the date of attaining 17 years of age or from the date of
E
being [ranked] in the Man's [rank] on successful completion of
initial training, whichever is later, provided their services are so
long required.
Continuous Service sailors of all Branched shall be liable, if
required, for a further I 0 years' service in .the Indian Fleet
Reserve, subject to the provisions of the Regulations for the Indian F
Fleet Reserve."
(emphasis supplied)
Regulation 269 as amended reads thus:
"269. Continuous Service.-[(!) Old [Entrants] Boys, G
Artificer Apprentices and Direct Entry sailors may be enrolled
for a period calculated to permit a period of I 0 years' service to
be completed from the date of attaining 17 years of age or from
the date of being [ranked] in the Man's [rank] on successful
completion of initial training, whichever is later, provided their
H
558 SUPREME COURT REPORTS [2016] 6 S.C.R.
A services are so long required.
Continuous Service sailors of all Branches shall be liable, if
required, for a further I 0 years' service in the Indian Fleet
Reserve, subject to the provisions of the Regulations for the Indian
Fleet Reserve.
B [(IA) New Entrants.-(a) Boys,[***] and Direct Entry sailors
may be enrolled for a period calculated to permit a period of 15
years' service to be completed from the date of enrolment or
from the date of attaining the age of 17 years, whichever is later,
provided their services are so long required.]
c [(aa) Artificer Apprentices and Direct Entry (Diploma holders)
Artificers may be enrolled for a period of26 years to be completed
from the date of enrolment or from the date of attaining the age
of 17 years whichever is later, provided their services are so long
required."]
D (b) All new entrants with 15 years' or20 years' initial engagement,
as the case may be, are to sign a declaration that they shall be
liable to resign a declaration that they shall be liable to recall to
active service after release upto two years in case of Non-
Artificers and three years in case of Artificers"] :
E Provided that during the said period they shat I not be required
to undergo refresher training or be entitled to any retaining fee,
but when recalled they shall be entitled to normal pay and
allowances:
Provided further that if recalled they shall be liable to serve
F for so long as their services are required:
Provided also that sai tors released prematurely from service
at their own request shall also be Iiable to active service upto the
period stated above.
(I B)(a) In case of the existing sailors, their period of
G engagement shall be governed by sub-regulation ( 1), except
that they shall not be transferred to Fleet Reserve.
(b) The existing Fleet Reservists shall not be required to undergo
refresher training but shall be entitled to the retraining ree till
they are wasted out.
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 559
[A.M. KHANWILKAR, J.)
(IC) Persons joining service on or after 3'd July, 1976 shall be A
deemed the New Entrants.]
(2) No sailor shall be re-enrolled unless he fulfills the following
conditions:-
(a) Out of the three annual assessments immediately preceding
re-enrolment, he must have had at least two assessments of B
character and efficiency not below 'VG' and 'Sat', respectively.
(b) Must be recommended by his Captain as in all respects
suitable to continue in Service.
(c) Must have been declared medically fit for satisfactorily c
carrying out the duties required of him."
(emphasis supplied)
Other relevant Regulation dealing with conditions of service of
Sailors, is Regulation 279. It provides for discharge. The same reads
~us: D
"279. Discharge "S.N.L.R."-(1) Discharge S.N.L.R. (Service
no longer required) shall not be considered as a punishment but
only as the appropriate method of dispensing with the services of
aman:
(a.) who is surplus to requirements, E
(b.) whose retention would be to the detriment of the Service
but who has not recently committed a specific offence for
which dismissal would be an appropriate punishment in addition
to any other sentence awarded.
F
(c.) On whom an adverse report has been forwarded in the
post-enrolment verification report.
(2) Subject to the provisions of sub-regulation (I), if the retention
of any sailor is considered undesirable on grounds of conduct or
character, a report, accompanied by his Service Documents, shall G
be forwarded to the Administrative Authority, with a
recommendation that the man be discharged 'Service No Longer
Required'.
(3) In all cases of recommendations for discharge of sailors as
·service No Longer Required' except those who are to be
H
560 SUPREME COURT REPORTS [2016] 6 S.C.R.
A discharged as being surplus to requirements, Captains shall establish
clearly the fact that the sailor. recommended for discharge has
been given suitable warning and opportunity to improve. Evidence
to this effect shall accompany the recommendation. In exceptional
cases, when in the opinion of the Captain, the retention of a sailor
is clearly undesirable, a recommendation may be forwarded and
B
discharge may be approved although the sailor has not previously
been warned.
(4) The Administrative Authority, ifsatisfied that discharge 'Service
No Longer Required' is appropriate, shall forward the application
to the Chief of the Naval Staff through Captain Naval Barracks
c with his recommendation. It is essential. The man's Service
Documents completed up-to-date shall accompany the application
for discharge.
(5) Abroad, sailors recommended for discharge 'Service No
Longer Required' shall not be sent home until the approval of the
D Chief of the Naval Staff for discharge has been received. If in
. the interim, the man is transferred to another ship, the Service
document sent with the man shall be annotated to the effect that
an application for his discharge has been made and a copy of the
application shall accompany his papers."
- E Indeed, Regulation 279 providing for discharge can be invoked
before the expiration of tenure of service.
I 0. Besides these Regulations, we shall now advert to the Pension
Regulations framed in exercise of powers conferred by the Act of 195 7,
known as the Navy (Pension) Regulations, 1964. Regulation 92 deals
F with Reservist Pension and Gratuity which reads thus:
"92. Reservist pension and gratuity.·( I) A reservist who
is not in receipt of a service pension may be granted, on completion
of the prescribed naval and reserve qualifying service often years
each, a reservist pension of r.upees eleven per mensem or a gratuity
G ofrupees nine hundred in lieu of pension.
(2) A reservist who is not in receipt of a service pension and
whose qualifying service is Jess than the period of engagement
but not less than fifteen years may, on completion of the period of
engagement or on earlier discharge from the reserve otherwise
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 561
[A.M. KHANWILKAR, J.]
than at his own request, be granted a reservist pension at rupees A
ten per mensem or a gratuity of rupees seven hundred and fifty in
lieu of pension.
(3) Where a reservist elects to receive a gratuity in lieu of pension
under this regulation, the amount of gratuity shall, in no case, be
less than the service gratuity that would have accrued to him B
under regulation 89 based on the qualifying service in the Indian
Navy, had he been discharged from the active list.
Explanation.- The option The option to draw a gratuity in lieu of
pension shall be exercised on discharge from the reserve, and the
option once exercised shall be final; no pension or gratuity shall c
be paid until the option has been exercised."
Regulation 95 deals with Special Pension and Gratuity to Sailors
which reads thus:
"95. Special pensions and gratuity to sailors-When
admissible.-A special pension or gratuity may be granted at the D
discretion of the Central Government, to sailors who are not
transferred to the reserve and are discharged in large numbers in
pursuance of Government's policy-
i. ofreducing the strength of establishment of the Indian Navy; or
E
ii.of re-organisation, which results in paying off of any ships or
establishments."
Regulation 6 of Regulations of the Indian Fleet Reserve, framed
under the Indian Naval Reserve Force (Discipline)Act, 1939 reads thus:
"6. Claim to join fleet Reserve - No man can claim to join F
the fleet reserve as a right."
Re: Reservist Pension
11. We shall first deal with the question regarding entitlement to
claim Reservist Pension. Sub-Clause (I) of Regulation 92, throws some
light on this aspect. It provides that a "Reservist" who is not in a receipt G
of Service Pension, be granted Reservist Pension on completion of the
prescribed Naval and Reserve Service of I 0 years each. None of the
applicants claim that they are entitled for Service Pension, nor have they
been so granted. The eligibility of grant for Reservist Pension is upon
H
562 SUPREME COURT REPORTS [2016] 6 S.C.R.
A completion of the prescribed Naval and Reserve qualifying service of
10 years each. It is not in dispute that each of the applicants completed
the prescribed Naval Service of 10 years in the first instance, also known
as active service or engagement. It is also not in dispute that there is no
fonnal order issued by the Competent Authority to draft the services of
the concerned applicant on the Fleet Reserve Service after completion
B
of 10 years of active service in the first instance.
12. As a matter of fact, the issue under consideration was the
subject matter before the Armed Forces Tribunal, Principal Bench, New
Delhi in T.A. No.492/2009. The Tribunal after analyzing the relevant
provisions observed as follows:
c
"9. It is an admitted position that the petitioner was not inducted
for a Fleet Reserve Service. He has filed a Discharge Certificate
and profile of his service on record and Service Certificate which
does not show that the petitioner was engaged for a Fleet Reserve
D Service at al I or not. However, learned counsel for the petitioner
submitted that when he entered into the service at that time as
per rule I 0 years of regular service and I 0 years of fleet reserve
service and out of that five years service should be counted for
the purpose of qualifying service for pension. It is true at relevant
time when petitioner was inducted into service there was
E requirement of keeping the incumbent in fleet reserve, therefore,
respondents are bound by the service conditions prevailing at that
time and they must give 5 years benefit of fleet reserve service.
It is true that we would have certainly acceded to the request but
a difficulty arose that Regulation 269 clearly contemplates that
incumbent can be kept for reserve fleet, if required. This
F
Government policy to keep in fleet reserve was discontinued in
the year 1976. The Regulation 269 clearly contemplates that
incumbent can be kept in fleet reserve, if required that means
this is enabling provision giving liberty to respondents to keep the
incumbent in fleet reserve, it does not confer any right on the
G petitioner that he must be necessarily kept in fleet reserve. This is
the discretion of the respondents that if they required, they keep
the man in fleet reserve and if they find that they do not require
the incumbent for fleet reserve, the incumbent cannot as a matter
of right seek writ of mandamus, he has no statutory right to be
H
T.S. DAS AND ORS. v. UNION OF JNDIA AND ANR. 563
[A.M. KHANWILKAR, J.J
kept in fleet reserve. The expression "if required" makes A
abundantly clear that discretion is with the respondents to keep
the incumbent in fleet reserve or not. Since this policy has been
discontinued in 1976, henceforth there is no provision to keep the
incumbent in fleet reserve. Petitioner was discharged in the year
1978. He knew the provision at that time also that he is not kept in
B
fleet reserve. Therefore, petitioner cannot get the benefit of 5
years of service out of I 0 years of fleet reserve service so as to
complete 15 years of qualifying service for pension."
13. This view taken by the Tribunal was challenged before this
Court by way of SLP(Civil) No. I 9790/20 I 0 which, however, was
dismissed on J3<h January 2014. The said order reads thus:
c
"Heard.
We see no reason to interfere with the impugned order. The
special leave petition is dismissed.
We however make it clear that this order shall not prevent the D
petitioner from making an appropriate representation to the
competent authority for grant of special pension in terms of the
Regulation 95 of the Navy (Pension) Regulation, f 964.
Mr. Mohan Jain, learned ASG submits that in case such a
representation is made, the same shall be examined by the E
competent authority and appropriate orders passed in accordance
with law. That statement is recorded.
We make it clear that we have expressed no opinion about
the merits of the claim that the petitioner proposes to make for
payment of special pension. The matter is left entirely to the
F
competent authority to decide the same in accordance with law.
In case the competent authority takes an adverse view of the
matter, the petitioner shall have the liberty to seek redress against
the same in appropriate proceedings before the appropriate forum.
No costs."
G
14. It is justly contended by the Department that after the aforesaid
decision of the Tribunal having been affirmed by this Court, the opinion
of the Tribunal in the impugned judgment to the contrary may be treated
as impliedly overruled. Nevertheless, we may examine the correctness
of the approach ofthe Tribunal in the impugned judgment.
H
564 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 15. In absence of an express order of the Competent Authority to
take the applicants on the Fleet Reserve Service, the moot question is:
whether the applicants can be treated as deemed to be in the Fleet
Reserve Service on account of the stipulation in the appointment letter-
that on completion of 10 years of Naval Service as a Sailor, they may
have to remain on Fleet Reserve Service for another 10 years. That
B
condition in the appointment letter cannot be read in isolation. The
governing working conditions of Sailors must be traced to the provisions
in the Act of 1957 or the Regulations framed thereunder concerning
service conditions. From the provisions in the Act of 1957, there is nothing
to indicate thatthe Sailor after appointment or enrolment is "automatically"
c entitled to continue in Fleet Reserve Service after completion of initial- ,
active service period of 10 years. The provisions, however, indicate that
on completion of initial active service of 10 years or enhanced period as
per the amended provisions is entitled to take discharge in terms of Section
16 of the Act. The applicants assert that none of the applicants opted for
discharge. That, however, does not mean that they would or in fact have
D
continued to be on the Fleet Reserve Service after expiration of the
term of active service as a Sailor. There ought to have been an express
order issued by the competent Authority to draft the concerned applicant
in the Fleet Reserve Service. In absence of such an order, on completion
of the term of service of engagement, the concerned sailor would stand
E discharged. Concededly, retention on the Fleet Reserve Service is tlte
prerogative of the employer, to be exercised on case to case basis. In.
the_ present case, however, on account of a policy decision, the Fleet
Reserve Service was discontinlltld in terms of notification dated 3rd July, .
1976. The said notification reads thus:
F "No.AD/5374/2/76/2214/S/D (N.11),
Government of India,
Ministry of Defence;
New Delhi, the 3rd July, 1976.
To,
G The chief of the Naval Staff (with 100 spare copies)
Sub.:- CONDITIONS OF SERVICE OF SAILORS.
Sir,
I am directed to state that the President is pleased to approve
the following modifications in the conditions of Service of sailors:-
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 565
[A.M. KHANWILKAR, J.]
a) Initial Period of Engagement:- Be entrolled for 15 years. A
b) Educational Qualification at Enti:y:- Be raised to Matriculation
or equivalent in the case of Direct Entry sailors of Seaman and
Marine Engineering branches and Bo Entry sailors of all branches.
c) Ages of Enti:y:- The age of entry for Boys be revised to 16-18
years and that for Direct Entry sailors to 18-20 years. B
d) Compulsory Age of Retirement:- Subject to the prescribed rules,
the age of compulsory retirement for sailors of all ranks upto and
including CPO rank will be 50 years. The compulsory retirement
age ofMCPO I/II will remain 55 years.
c
e) Time Scale Promotion to Leading Rank:- Seaman First Class
and equivalents will be promoted to the Leading rank on completing
of 5 years service in man's rank subject to passing the prescribed
examination. The date of implementation of this provision will be
promulgated by Naval Headquarters.
D
t) Transfer to Current Fleet Reserve:- Transfer of sailors into the
Fleet Reserve to be discontinued. The Existing Fleet Reservists
will not be required to undergo refresher training but will be paid
the retaining free till they are wasted out.
g) Recall to Active Service:- (i) All new entrants with 15 years
E
initial engagement and such of the existing sailors, who re-engage
to complete time for minimum pension, to sign a declaration that
they will be liable to recall to active service, after release upto
two years in case of Non-Artificers and three years in case of
Artificers. During this period they will not be required to undergo
refresher trainings or be entitled to any retraining fee, but when F
recalled they will be entitled to normal pay and allowances. If
recalled they would be liable to serve for so long as their services
are required.
(ii) Sailors released prematurely from Service at their own request
will also be liable to recall to active service upto the period stated G
above.
h) Regrouping and Remustering of sailors:- Future entrants (Both
Boy and Direct Entry) in Seamen and ME Branches will be on
Group 'B' Scale of Pay. Serving sailors in these branches including
H
566 SUPREME COURT REPORTS [2016] 6 S.C.R.
A Regulating Branch, who are matriculate or equivalents will also
be remustered to Group "B" scale pay with effect from l" April,
1976. Those, who attain this qualification later, will also be
remustered to Group 'B' scale of pay, as and when they so qualify.
Remustering will invariably be effective from the first of the month
in which it occurs.
B
2. Administrative instructions, if any, will be issued by the Naval
Headquarters.
3. Appropriate Government Regulations/Orders will be amended
in due course.
c 4. This issues with the concurrence of Ministry of Finance (Def)
vide their u.o. No.452/NA/S of 1976.
Yours faithfully,
Sd/-
D (P.S. Ahluwalia)
Under Secretary to the Gov. of India
16. As per this policy, the initial period of engagement was enhanced
to 15 years. At the same time the transfer of Sailors to Fleet Reserve
was discontinued. This is made amply clear in Clause (t) of the policy.
The second part of the same clause pertains to "Existing Fleet Reservist",
E
who were to be paid the retaining fee till they are wasted out.
17. As noted hitherto, none of the relevant provisions even remotely
suggest that the Sailor is "automatically" transferred to the Fleet Reserve
Service. Whereas, it is expressly provided that on expiration of the term
of service of engagement the Sailor would be placed on Fleet Reserve
F
Service only if an express order in that behalf is passed by the Competent
Authority to draft him on the Fleet Reserve and not otherwise. Section
16 of the Act, merely gives an option to the Sailor to take a discharge
after expiration of term of service of engagement. It is not a deeming
provision that if such option is not exercised by the concerned Sailor, he
G would be treated as having been drafted on the Fleet Reserve Service
for another I 0 years "automatically".
18. Regulation 269, spells outthe conditions of service. It reinforces
the position that the services of a Sailor would be continued "so long
required" or "if required". The second part of Clause (I) of that
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 567
[A.M. KHANWILKAR, J.]
Regulation uses the expression "ifrequired", for further I 0 years service A
in the Indian Fleets Reserve, subject to the provisions of the Regulations
for the Indian Fleet Reserve. This view taken by the Tribunal (Principal
Bench, New Delhi) in T.A. No.492 of2009 commends to us.
19. As aforesaid, on introducing the new policy on 3rct July, 1976,
the Fleet Reserve was discontinued and instead the Sailors in service at B
the relevant time were given an option to continue in active service for a
further term of 5 years. Some of the Sailors opted to continue till
completion of 15 years, who, then became eligible for "Service Pension"
having qualifying service.
20. The quintessence for grant of Reservist Pension, as per c
Regulation 92, is completion of the prescribed Naval and Reserve
qualifying service of JO years "each". Merely upon completion of JO
years of active service as a Sailor or for that matter continued beyond
that period, but falling short of 15 years or qualifying Reserve Service,
the concerned Sailor cannot claim benefit under Regulation 92 for grant
of Reservist Pension. For, to qualify for the Reservist Pension, he must
D
be drafted to the Fleet Reserve Service for a period of I 0 years. In
terms of Regulation 6 of the Indian Fleet Reserve Regulations, there
can be no claim to join the Fleet Reserve as a matter of right. None of
the applicants were drafted to the Fleet Reserve Service after completion
of their active service. Hence, the applicants before the Tribunal, could E
not have claimed the relief of Reservist Pension. The Tribunal (Regional
Bench, Chennai) in O.A. No. 83of2013, however, granted that relief by
invoking principle of equitable promissory estoppel and legitimate
expectation in favour of the applicants. The Tribunal, in our opinion,
committed manifest error in overlooking the statutory provisions in the
Act of 1957 and the relevant Regulations framed thereunder, governing
F
the conditions of service of Sailors. The fact that on completion of I 0
years of active service, the Sailor could be taken on the Fleet Reserve
Service for a further period of 10 years cannot be interpreted to mean
that the concerned Sailor had acquired a legal right to join the Fleet
Reserve Service or had de Jure continued on Fleet Reserve Service for G
a further 10 years after expiration of the initial term of active service/
engagement. There is no provision either in the Act of 1957 or the
Regulations framed thereunder as pressed into service by the applicants,
to suggest that drafting of such Sailors on Fleet Reserve Service was
"automatic" after expiration of their active service/enrolment period.
H
568 SUPREME COURT REPORTS [2016) 6 S.C.R.
A Considering the above, it is not necessary to burden this judgment with
the decisions considered by the Tribunal on the principle of equitable
promissory estoppel and legitimate expectation, which have no application
to the fact situation of the present case.
21. The original applicants contend that ifthe Government Policy
B dated 3rd July, 1976 is applied to the serving Sailors, inevitably, will result
in retrospective application thereof to their deteriment. That is forbidden
by Section 184-A of the Act. This argument does not commend to us. In
that, the effect of the Government Policy is to disband the establishment
of the Reserve Fleet Service with effect from 3rd July, 1976. As found
c earlier, drafting of Sailors to the Reserve Fleet Service was not automatic;
but dependent on an express order to be passed by the competent Authority
in that behalf on case-to-case basis. The Sailors did not have a vested or
accrued right for being placed in the Reserve Fleet Service. Hence, no
right of the Sai Iors in active service was affected or taken away because
of the Policy dated 3rd July, 1976. Even the argument of the original
D applicants that the interpretation of expression "if required" occurring in
Regulation 269(1) bestows unequal bargaining power on the Government
is devoid of merits. The validity of Regulation 269( 1) was not questioned
before the Tribunal nor any relief was claimed in that behalf. Therefore,
this argument is unavailable to the original applicants. In any case, on a
E conjoint reading of the Regulations governing the Service Conditions of
the Sailors and more particularly having noticed that it is the prerogative
of the Government to place the Sailors to the Fleet Reserve Service;
and at the same time option was given to the Sailors to opt for discharge
in terms of Section 16 of the Act, we fail to understand as to how such
dispensation can be termed as unequal bargaining power. The
F consequence of not placing the concerned Sailor to the Fleet Reserve
Service may result in deprivation ofReservist Pension. However, original
applicants may be entitled to get a Special Pension under Regulation 95
of the Pension Regulations, being a separate dispensation for such Sailors,
unless discharged by way of punishment under Regulation 279.
G 22. Accordingly, we hold that none of the applicants before the
Tribunal are entitled for Reservist Pension in terms of Regulation 92 of
the Naval (Pension) Regulations, 1964. The Tribunal has relied on other
decisions of other Benches of the same Tribunal, which for the same
reason cannot be countenanced.
H
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR. 569
[A.M. KHANWILKAR, J.]
Re: Special Pension A
23. The next question is whether the Sailors appointed before 1973
were entitled for a Special Pension, in terms of Regulation 95 of the
Pension Regulations. Indeed, this is a special provision and carves out a
category of Sailors, to whom it must apply. Discretion is vested in the
Central Government to grant Special Pension to such Sailors, who fall B
within the excepted category. Two broad excepted categories have been
noted in Regulation 95. Firstly, Sailors who have been discharged from
their duties in pursuance of the Government policy of reducing the strength
of establishment of the Indian Navy; or Secondly, of reorganization, which
results in paying off of any ships or establishment. In the present case,
Clause (i) of Regulation 95 mu1>t come into play, in the backdrop of the
c
policy decision taken by the Government as enunciated in the notification
dated 3rd July, 1976. On and from that date, concededly, the Fleet Reserve
Service has been discontinued. That, inevitably results in reducing the
strength of the establishment of the Fleet Reserve of the Indian Navy to
that extent, after coming into force of the said policy. None of the Sailors D
have been or could be drafted to the Fleet Reserve after coming into
force of the said Policy- as that establishment did not exist anymore and
the strength of establishment of the Indian Navy stood reduced to that
extent. Indisputably, the Sailors appointed prior to 3rd July, 1976, had the
option of continuing on the Fleet Reserve Service after expiration of
their active service/empanelment period. As noted earlier, in respect of E
each applicants the appointment letter mentions the period of appointment
as I 0 years of initial active service and I 0 years thereafter as Fleet
Reserve Service, if required. The option to continue on the Fleet Reserve
Service could not be offered to these applicants and similarly placed
Sailors, by the Department, after expiration of their empanelment period F
of I 0 years or less than IS years as the case may be. It is for that
reason, such Sailors were simply discharged on expiration of their active
service/empanelment period. In other words, on account of
discontinuation of the Fleet Reserve establishment of the Indian Navy,
in terms of policy dated 3rd July, 1976 .it has entailed in reducing the
strength of establishment of the Indian Navy to that extent. G
24. That takes us to the case of AppellantNo.36 (in C.A. No.2147
of 2011 ). The said appellant asserts that he was discharged from the
Fleet Reserve unilaterally by the Department. By that time, he had
completed combined 17 years I month and 26 days of service, for which
H
570 SUPREME COURT REPORTS [2016) 6 S.C.R.
A reason was entitled to Reservist Pension under Regulation 92(2) of the
Pension Regulations. The said appellant is relying on communication
dated 81h May, 2014 in support of this contention. Since this appellant
was not in active service when the Government Policy dated 3rd July,
1976 came into being and claims to have been discharged from the Fleet
Service on 301h March, 1967, would be free to make representation to
B
the competent Authority. It is for the competent Authority to examine
the factum as to whether the discharge was unilateral and not at the
request of the said appellant and including whether he would be entitled
for Reservist Pension in terms of Regulation 92(2) of the Pension
Regulations. We may not be understood to have expressed any opinion
c with regard to the questions that may require consideration by the
competent Authority in that regard.
25. Thus understood, all Sailors appointed prior to 3rd July, 1976
and whose tenure of initial active service/empanelment period expired
on or after 3rd July, 1976 may be eligible for a Special Pension under
D Regulation 95, subject, however, to fulfilling other requirements. In that,
they had not exercised the option to take discharge on expiry of
engagement (as per Section 16 of the Act of 1957) and yet were not and
could not be drafted by the competent Authority to the Fleet Reserve
because of the policy of discontinuing the Fleet Reserve Service w.e.f.
3rd July, 1976. The cases of such Sailors (not limited to the original
E applicants before the Tribunal) must be considered by the Competent
Authority within three months for grant of a "Special Pension" from
three years prior to the date of application made by the respective Sailor
and release payment after giving adjustment of Gratuity and Death-
cum-Retirement-Gratuity (DCRG) already paid to them from arrears.
F They shall be entitled for interest@ 9% P.A. on the arrears, till the date
of payment.
26. The appeals are disposed in the above terms with no order as
to costs. Application for impleadment is also disposed of.
Nidhi Jain Appeals disposed of.
G
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