# T.S. DAS AND ORS v. UNION OF INDIA AND ANR

- **Citation:** [2016] 6 S.C.R. 541
- **Court:** Supreme Court of India
- **Decided:** 2016-10-27
- **Case number:** Civil Appeal No. 2147 of 2011
- **Bench:** T.S. Thakur, A.M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-s-das-and-ors-v-union-of-india-and-anr-31544
- **Pages:** 30

## Headnote

Armed Forces:
Navy Act, 1957 - Navy (Pension) Regulations, 1964 - Regns.
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
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
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
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
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
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SUPREME COURT REPORTS
[2016] 6 S.C.R.
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.
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
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
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
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
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
"automatically" transferred to the Fleet Reserve Servi

## Text

_Characters 0–39,692 of 70,309. This is a partial read: ask again with offset=39692 for what follows._

[2016] 6 S.C.R. 541
T.S. DAS AND ORS.
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 2147 of201 l)
OCTOBER 27, 2016
(T.S. THAKUR, CJI, A.M. KHANWILKAR AND DR. D.Y.
CHANDRACHUD, JJ.J
Armed Forces:
Navy Act, 1957 - Navy (Pension) Regulations, 1964 - Regns.
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
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
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
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
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
541
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[2016] 6 S.C.R.
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.
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
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
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
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
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
"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
and not otherwise. Section 16 of the Act, merely gives an option
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
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 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
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] [566H; 567-A]
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
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
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
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
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
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[2016] 6 S.C.R.
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
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
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
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
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
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
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
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
(i) of Regulation 95 must come into play, in the backdrop of the
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.
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
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
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
03.07.1976 it has entailed in reducing the strength of
establishment of the Indian Navy to that extent. [Para 23] [569B-C]
1.7 The appellant no. 36 (in CA No. 2147 of 2011) asserted
that he was discharged from the Fleet Reserve unilaterally by
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
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]
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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
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
Pension" from three years prior to the date of application made
by the respective Sailor and release the payment. [Para 25] [570D-F]
D.S. Nakara & Ors. v. Union of India AIR 1983 SC
130:1983 (2) SCR 165; BCPP Mazdoor Sangh & Am:
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)
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.
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
1983 (2) SCR 165
2007 (10) SCR 1084
referred to
referred to
2006 (8) Suppl. SCR 485 referred to
1986 (2) SCR 278
referred to
Para7
Para7
Para7
Para7
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
547
2006 (8) Suppl. SCR 485
referred to
Para 7
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
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
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.,
A
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C. M. Angadi, S. M. Dalal, R. P. Goyal, Shreekant N. Terdal, Nishe
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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.
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
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".
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3. Admittedly, the applicants before the Tribunal in both cases were
appointed as Sailors in the Indian Navy before 1973. The appointment
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SUPREME COURT REPORTS
[2016] 6 S.C.R.
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
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.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
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
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,
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
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
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
[A.M. KHANWILKAR, J.]
discretion in the Authority to draft the concerned Sailor on Fleet Reserve.
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.
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
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
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
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.
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
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
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to serve with the Navy for 10 years in active service and 10 years in
Fleet Service. They were under bonafide belief that 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
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.
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
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
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
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
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
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
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
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
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
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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
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
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
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discontinue the.Fleet Reserve Service. Reliance is placed on the decisions
in Union of India vs. Asian Food Industries5, Dakshin Haryana
Bijli Vitran Nigam vs. Bachan Singh6 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 I 0 years of active service was
drafted to the Fleet Reserve for second leg of compulsory I 0 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
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.
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
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 I 0 years of continuous service, their service
could be drafted on Fleet Reserve Service only ifrequired, for a further
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
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 I 0 years Fleet Reserve, if required.
'(2006) 13 sec 542
6(2009) 14 sec 793
1 (2007) 10 sec 627
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
[A.M. KHANWILKAR, J.]
Such entry cannot create any right in favour of the Sailor to be drafted
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
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
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)
decided on 10.02.2010, in O.A.No.84/2010 (Ramachandran Pillai, ExSEA 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
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
by this Court against the decision of the Armed Forces Tribunal, New
Delhi in T.A. No. 492/2009 dated 1 O•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
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
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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 Others9.) 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
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.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
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 reorganisation of the establishment as such. It was also not a case of
paying off. In that, the applicants were discharged on completion of
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
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
commissions, appointment and enrolments is found in Chapter IV of the
Navy Act, 1957 (hereinafter referred to as "Act, of I 957"). Section 9 of
the Act of 1957 provides for the eligibilities for appointment or enrolment
• (1998) 2 sec 208
• (2006) 2 sec 482
'"AIR 1967 SC 1889
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
[A.M. KHANWILKAR, J.]
in the Indian Navy or lndian Naval Reserve Forces. The terms and
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.
09.09.1987. Section 12 of Act 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
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
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
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
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
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
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( 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.
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-
(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.
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
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.
(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 subsection, 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
T.S. DAS AND ORS. v. UNION OF INDIA AND ANR.
[A.M. KHANWILKAR, J.]
mother tongue of such sailor and also in the English language
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
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
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:
"Regulation l69:
. "; ' .. 5
·,
Continuous service.