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Saturday, December 17, 2016

The Appellant completed the period of 10 years of initial appointment on 31.07.2012. He has not been working thereafter. In the facts and circumstances, we are of the opinion that the Appellant is entitled for addition of 5 years of notional service to the period of 10 years which he has already served for the purpose of being eligible for pensionary benefits. He will not be entitled for salary and allowances for the said period of 5 years. The Appellant shall be entitled to claim all service benefits to which he is entitled by being treated as having completed 15 years of service.

                                                                        Non-
                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        Civil Appeal No.11933 of 2016
                          (Diary No. 13616 of 2013)


VED PRAKASH
                                                           ... Appellant (s)

                                   Versus

UNION OF INDIA & ORS
                                                             ….Respondent(s)


                               J U D G M E N T


L. NAGESWARA RAO, J.

      Delay of 13 days in filing the Civil Appeal  is  condoned.       Leave
to file Appeal granted.
The Appellant joined the Indian  Navy  as  a  Direct  Entry  Diploma  Holder
(D.E.D.H.) with an initial engagement  of  10  years  as  acting  Electrical
Artificer 4th Class (EAR-4) on 01.08.2002.  In the year 2005, the  Appellant
suffered an injury while playing Volley Ball due  to  which  he  was  placed
under “Low Medical  Category”  S2  A2  (PMT).   He  received  intimation  on
06.10.2010  that  his  initial  engagement  of  10  years  would  expire  on
31.07.2012.  As  he  was  in  a  Low  Medical  Category  S2  A2  (PMT),  the
application for re-engagement for a further period of 5 years  was  required
to be routed through Headquarters Western Naval Command, Mumbai.

The Commanding  Officer,  INS  Vindhyagiri,  the  fifth  respondent  herein,
recommended the Appellant for re-engagement for a period of 5 years  to  the
Flag Officer Commanding-in-Chief, Headquarters Western  Naval  Command,  the
third  respondent  herein  on  06.10.2010.   In  the   said   letter   dated
06.10.2010, the fifth respondent appreciated the services of  the  Appellant
as follows:

      “Despite joining the ship recently, he has proved to  be  instrumental
in executing critical defect rectifications onboard.  The sailor has  gained
confidence of his superiors to single handedly  resolve  technical  defects.
The Sailor, has also been observed to possess a  positive  attitude  towards
service, a good military bearing and excellent  leadership  qualities.   The
sailor’s Training Particulars in his  Service  document  also  reflects  his
professional competence in that he topped the EAR 4 ‘Q’  Board  scoring  90%
marks.  He also attained a Distinction grading during  the  PO  (Leadership)
Course.
      The sailor is  worthy  of  re-engagement  in  service,  and  has  been
observed to posses the will to aspire and grow in service”.


The  third  respondent  examined  the  request  of  the  Appellant  for  re-
engagement and recommended him for consideration to  the  Commodore,  Bureau
of Sailors, Mumbai, the fourth respondent herein. The fourth  respondent  by
a FAX message dated 29.11.2010  intimated  the  fifth  respondent  that  the
Appellant could be considered for re-engagement for  a  period  of  2  years
only.  It was also  stated  that  the  Appellant  would  be  considered  for
further re-engagement subject to suitability.   The  reasons  given  by  the
fourth respondent for re-engagement for only 2 years  and  not  5  years  as
requested by the Appellant are as under:

“(A)  THE SAILOR WAS IN MEDICAL CATEGORY S3 A2 FROM 2006-2009. HE  HAS  BEEN
UPGRADED TO S2 A2 (P) (PMT) CATEGORY IN DEC 2009 ONLY.


(B)   HAS SERVED IN  AFLOAT  BILLETS  FOR  A  VERY  LIMITED  PERIOD  AND  ON
UPGRADATION TO S2 A2 (P) (PMT) MEDICAL  CATEGORY,  HE  HAS  BEEN  POSITIONED
ONBOARD IN AUG 2010 ONLY.
(C)   THE PREVIOUS RECORD OF THE  SAILOR  IS  ALSO  INDICATIVE  OF  LACK  OF
DESIRED DISCIPLINE/CONDUCT ATTRIBUTES.


(D)   CHEAR ‘Q’  COURSE  OF  THE  SAILOR  HAS  BEEN  CANCELLED  ON  NUMEROUS
OCCASION DUE TO LMC/DOMESTIC REQUIREMENTS.”


The Appellant requested the  fifth  respondent  for  clarifications  on  re-
engagement by a letter dated 21.02.2011.  It was  forwarded  to  the  fourth
respondent on 06.04.2011.   The  Appellant  also  submitted  a  request  for
redressal of grievance of re-engagement for further service for a period  of
5 years to the Chief of Naval Staff, the  Second  Respondent  herein.    The
said redressal of grievance was forwarded to the  Directorate  of  Personnel
and Integrated Headquarters, Ministry of Defence (Navy).  The  redressal  of
grievance was disposed of on 15.02.2012 by stating that  the  Appellant  had
no right of re-engagement.  It was further stated in the said  letter  dated
15.02.2012 that the Appellant ought to  have  exercised  his  option  for  2
years re-engagement and sought for further extension later on.

The Appellant  approached  the  Armed  Forces  Tribunal,  Mumbai  by  filing
Original Application (O.A.) No. 11 of 2012 assailing the  proceedings  dated
15.02.2012 by which his redressal  of  grievance  was  rejected.    He  also
sought a direction to the Respondents to approve  his  re-engagement  for  5
years.   By an order dated 04.02.2013, the Armed Forces  Tribunal  dismissed
O.A. No. 11 of 2012.   It was held by the Armed  Forces  Tribunal  that  re-
engagement cannot be claimed as a matter of right  and  the  period  of  re-
engagement was at the discretion of the  authorities.    The  Tribunal  also
held that there was no error in the re-engagement of  the  Appellant  for  2
years with an option for further  re-engagement.   The  Appellant  filed  an
application under Section 31 of the Armed Forces Tribunal Act, 2007  seeking
leave to Appeal to the Supreme  Court  which  was  rejected  on  04.02.2013.
Aggrieved by the said order dated 04.02.2013, the Appellant  has  filed  the
above Appeal.

We have heard Mr. Sukhjinder Singh,  Advocate  for  the  Appellant  and  Mr.
Neeraj Kishan Kaul, learned  Additional  Solicitor  General  (ASG)  for  the
Respondents.  The learned counsel  for  the  Appellant  submitted  that  the
grant of re-engagement of Direct Entry Diploma Holder  Sailors  is  governed
by a Policy dated 21.11.2006.  He contended that the  re-engagement  has  to
be granted for 5 years till completion of 15 years of service in  accordance
with Navy Order (STR) 17 of 1994. He drew our attention to Navy Order  (STR)
02/07 which according to him replaced Navy Order (STR) 17/94.   The  learned
counsel referred to para 4, 5, 9 and 11 of the said Navy  Order  which  will
be dealt with in detail later.  He also referred to  the  annual  assessment
of the Appellant for the years 2002-2009 which  showed  that  his  character
was very good and his  efficiency  was  superior  throughout.   The  learned
counsel for the Appellant relied upon the strong recommendation made in  his
favour by the fifth respondent for  re-engagement  for  5  years  which  was
approved by the third respondent.  He also urged that the  decision  of  the
fourth respondent to grant re-engagement for 2 years  only  is  contrary  to
the Policy dated 21.11.2006 and Navy Order 02/07.

Mr. Neeraj Kishan Kaul, learned ASG, submitted that  the  Appellant  has  no
right to claim that he should be re-engaged for a period  of  5  years.   He
submitted that the Appellant should have accepted the  re-engagement  for  2
years, especially when he was given an option for  further  extension  after
the expiry of 2 years.  The learned ASG contended that the Appellant  worked
on sea for a short period of one year only. He further  submitted  that  the
Appellant did not satisfy the conditions for re-engagement as laid  down  in
Navy  Order  02/07.    The  learned  ASG  also  stated  that  the  Appellant
repeatedly refused to undergo the CHEAR (Q) Course.

The policy dated 21.11.2006 provided as under:

      “1. The DEDH Sailors have been recruited with  an  initial  period  of
engagement of 10 years.  DEDH Sailors will be eligible for re-engagement  in
accordance with NO (STR) 17/94 as amended from time to time.

      2. The re-engagement is to be granted for 5 years till  15  years’  of
service and thereafter in accordance with NO (STR) ibdi.”


 Navy Order 02/07 governs the re-engagement of Sailors.  The initial  period
of enrolment of a Direct Entry Diploma Holder is 10 years and he can be  re-
engaged if he fulfils the conditions as per para 4 of the Navy  Order  which
are as under:

      “(a)  Out of three  annual  assessments  immediately  preceding.   Re-
engagement  he  must  have  at  least  two  assessments  of  character   and
efficiency not below “VG” and “SAT” respectively.
      (b)    Must  have  been  recommended  by  the  Commanding  Officer  as
suitable in all respects.

      (c)    Must  have  been  declared  medically  fit  for  satisfactorily
carrying out the duties required of him.

      (d)   The manpower requirements of the service/cadre must warrant  his
re-engagement.”


Para 5 provides that a final decision regarding the  re-engagement  will  be
taken on the basis of the overall  performance  of  the  Sailor  during  his
entire  service  as  reflected  by  the  factors  mentioned  therein.    The
Commodore, Bureau of  Sailors  is  the  authority  to  grant  re-engagement.
According to para 9 (a) and (b), the re-engagement shall not be less than  2
years and not exceed 5 years.   Para 9 (c) of the Navy Order is as under:


      “Not-withstanding  the  above  the  sailors  of  Artificer  Cadre  and
Submarine Branch will be governed by separate re-engagement norms  in  force
from time to time.  Sailors  of  Submarine  Branch,  on  expiry  of  initial
engagement, will be further re-engagement in the Submarine Cadre subject  to
availability of vacancies in the  cadre.   Otherwise,  if  re-engaged,  they
will be revered to general service. Therefore, at  the  time  of  requesting
for re-engagement, they are to give an undertaking as per  Appendix  ‘B’  to
this order that in case of  Submarine  Cadre  becoming  overborne  they  are
liable to be reverted to general service.”

The procedure to be followed for re-engagement under  Low  Medical  Category
is dealt with in para 11  which  provides  that  Sailors  in  permanent  Low
Medical Category below S2 A2 will not normally be given re-engagement.


It is clear from para 9 (c)  of the Navy Order 02/07  that  the  Sailors  of
Artificer Cadre, to  which  the  Appellant  belongs,  will  be  governed  by
separate re-engagement norms in force from time to time.  On being asked  to
show the norms applicable to Sailors of Artificer Cadre,  counsel  appearing
for both sides submitted that there are no such  norms.   The  non  obstante
clause in para 9  (c)  suggests  that  the  conditions  prescribed  for  re-
engagement will not be applicable to Sailors  of  Artificer  Cadre.   As  no
norms as contemplated in para 9 (c) have been framed, the  re-engagement  of
Sailors of Artificer Cadre will have  to  be  necessarily  governed  by  the
Policy dated 21.11.2006.  The Appellant would be entitled to  be  considered
for re-engagement for 5 years till he completes 15 years of service  as  per
the Policy.  The decision of the  fourth  respondent  dated  29.11.2010  re-
engaging the Appellant for 2 years is liable to be set aside on this  ground
alone.

The learned counsel for the Appellant and the learned ASG  have  made  their
submissions on the basis that Navy Order 02/07  is  applicable  to  the  re-
engagement of the Appellant.  We proceed  further  to  examine  whether  the
decision of the fourth respondent is justifiable applying the norms  as  per
the Navy Order 02/07. The conditions mentioned  in  para  4  of  Navy  Order
02/07 are that 2 out of 3 annual assessments should not be below very  good,
that the Commanding Officer should have recommended the Sailor  as  suitable
in all respects, the Sailor must have been declared medically fit  and  that
the manpower requirements of this service should warrant his  re-engagement.
  The annual assessments of the Appellant show  the  grade  of  ‘Very  Good’
character from 2002-2009 and  ‘Superior  Efficiency’  from  2004-2009.   The
Commanding Officer made a strong recommendation  for  re-engagement  of  the
Appellant for a period of 5 years.  The Appellant was also  found  medically
fit by being upgraded to S2  A2  (PMT)  Category  in  December,  2009.   His
overall performance was found to be very good as per the  recommendation  of
the Commanding Officer dated 06.10.2010.

One of the reasons given by the fourth  respondent  in  the  decision  dated
29.11.2010 is that the Appellant was in medical category S3  A2  from  2006-
2009 and was upgraded to S2 A2 (PMT) only in December, 2009.   As  per  para
11 of Navy Order 02/07, re-engagement of Sailors in permanent  low  category
below S2 A2 will  not  be  made  normally.   The  Appellant  is  in  medical
category S2 A2 (PMT) and as such does not suffer any disqualification.   The
fourth respondent also held that the Appellant served in Afloat Billets  for
a very limited period and that  he  has  been  positioned  onboard  only  in
August, 2010.  The learned counsel for the Appellant submitted that  due  to
his being in low medical category he was not sent for  duty  at  sea  for  a
long period.  He also stated that the Appellant served for  three  and  half
years out of 10 years at sea which cannot be said to be a short period.  The
learned ASG submitted that the Appellant served only for  one  year  at  sea
which is a very short period for a Sailor.  No  norms  showing  the  minimum
period of service to be spent by a Sailor at  sea  were  placed  before  us.
The Navy Order 02/07 also does not provide for any  such  prescription.   It
is  relevant  to  refer  to  the  recommendation  dated  06.10.2010  of  the
Commanding Officer who stated that the Appellant proved to  be  instrumental
in executing critical defect rectifications onboard  though  he  joined  the
ship recently.  The Appellant appears to be an efficient hand and  he  ought
to have been given  re-engagement  for  5  years.   The  Commanding  Officer
further  stated  that  the  Appellant   possesses   excellent   professional
knowledge and he has gained the  confidence  of  his  superiors  for  single
handedly  resolving  technical  defects.    The   Appellant’s   professional
competence was found to be outstanding apart from the fact  that  he  topped
the EAR 4 ‘Q’ Board by scoring 90 % marks.

Another reason given by the Fourth Respondent is that the Appellant did  not
complete the  CHEAR  ‘Q’  Course  due  to  low  medical  category/  domestic
requirements. We perused the record to verify the reasons for the  Appellant
not taking CHEAR ‘Q’ Course.  On one occasion he did not  opt  to  take  the
course due to the serious illness of his wife.  He  was  not  sent  for  the
course on four occasions due to his placement in the low  medical  category.
The Appellant cannot be accused of intentionally avoiding  the  course.   In
view of the above, the Appellant satisfies the conditions for  re-engagement
in para 4 of Navy Order 02/07.  The fourth  respondent  ought  to  have  re-
engaged  the  Appellant  for  5  years   by   giving   importance   to   the
recommendations of the fifth and third  respondents.   As  mentioned  above,
the Appellant’s performance was found to be outstanding.

 The Appellant completed the period of 10 years of  initial  appointment  on
31.07.2012.   He  has  not  been  working  thereafter.   In  the  facts  and
circumstances, we are of the opinion that  the  Appellant  is  entitled  for
addition of 5 years of notional service to the period of 10 years  which  he
has already  served  for  the  purpose  of  being  eligible  for  pensionary
benefits.  He will not be entitled for salary and allowances  for  the  said
period of 5 years.  The Appellant shall be entitled  to  claim  all  service
benefits to which he is entitled by being treated  as  having  completed  15
years of service.

Before parting with this case, it  is  necessary  to  refer  to  the  casual
manner in which the Navy Order pertaining to  re-engagement  of  Sailors  is
made.  The norms referred to in para 9 (c) of the  Navy  Order  02/07  which
govern the re-engagement of Sailors of Artificer Cadre do  not  exist.   The
first respondent should ensure that the lacuna is removed  at  the  earliest
by either making separate norms as mentioned in para 9  (c)  of  Navy  Order
02/07 or by amending the Navy Order suitably.

The Appeal is disposed of with the above directions.


                      ...…...........................CJI
                 [T. S. THAKUR]


........................................J
                           [Dr. D. Y. CHANDRACHUD]



                     ……................................J
                                                 [L. NAGESWARA RAO]

New Delhi,
December 8, 2016

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