Kumar Dey & Anr Vs. Union of India & Ors  INSC 1520
(28 November 1996)
Verma, Suhas C. Sen Sen, J.
Writ Petition (C) No. 831 of 1993 and Writ Petition (C) Nos. 293, 752 & 601
Kumar Dey, the appellant herein, joined Indian Navy as Artificer Apprentice on 12th August, 1971. On 17th August, 1971 the statutory oath of allegiance was administered to him.
He claims that his service in the Indian Navy must be calculated from that
date, that is, 17th
August, 1971. ON 11th August, 1975 the appellant's training as
Artificer Apprentice was over. Immediately thereafter, he was advanced to
Electrical Artificer Vth Class on 12th August, 1975. Various promotions were given to
the appellant thereafter from time to time. On 31st January, 1988 the appellant was released from the Nay. The dispute in
this case is about the entitlement of the appellant to get pensionary benefits
for his service under the Navy.
to the appellant, he has served the Navy for more than fifteen years which must
be counted from 17th
August, 1971 when he
was administrated oath of allegiance. According to the respondents, the four
years spent by the appellant as' Artificer Apprentice was training period only
and, therefore, the service of the appellant commenced only on 12th August,
1975 when he was appointed Electrical Artificer Vth Class, after completion of
his training as Artificer Apprentice on 11th August, 1975. The question is
whether this period of four years, 17.8.71 to 11.8.75 during which the
appellant was undergoing training as Artificer Apprentice under the Navy,
should be counted in the period of service rendered by the appellant.
going into the merits of the case, it will be necessary to refer to the
relevant provisions of the Navy Act, 1957 and also to some of the Regulations
framed under the said Act:-
NAVY ACT, 1957
- I PRELIMINARY
this Act, unless the context otherwise requires:- (16) `officer' means a
commissioned officer and includes a subordinate officer but does not include a
officer' means a sailor rated as such and includes a chief petty officer and a
master chief petty officer (20) `sailor' means a person in the naval service
other than an officer;
- IV COMMISSIONS, APPOINTMENTS AND ENROLLMENTS
No person who is not a citizen of India shall be eligible for appointment or
enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the
consent of the Central Government:
(1) Officers other than subordinate officers shall be appointed by commission
granted by the President.
Subordinate officers shall be appointed in such manner and shall hold such rank
as may be prescribed.
(1) Save as otherwise provided in this Act, the terms and conditions of service
of sailors, the person authorised to enrol for service as sailors and the
manner and procedure of such enrolment shall be such as may be prescribed.
person shall be enroled as a sailor in the India Navy for a period exceeding
twenty years in the first instance;
Where a person after his enrolment has for a period of three months from the
date of such enrolment been in receipt of pay as a sailor, he 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 in his engagement or
any other ground whatsoever; and if within the said three months such person
claims his discharge, no such irregularity or illegality or other ground shall,
until such person is discharged in pursuance of his claim effect his position
as a sailor in the naval service or invalidate any proceedings, act or thing
taken or done prior to his discharge.
Every officer and every sailor shall, as soon as may be, after appointment or
enrolment make and subscribe before the commanding officer of the ship to which
he belongs, or the prescribed officer on oath or affirmation in the following
form that is to say:- I........... do swear in the name of God/solemnly affirm
that I will bear true faith and allegiance to the Constitution of India as by
law established and that I will, as in duty bound, honestly and faithfully
serve in the naval service and go wherever ordered by sea, land or air, and
that I will observed and obey all commands of the President and the commands of
any superior officer set over me, even to the paril of my life".
Liability for service of officers and sailors-(1) Subject to the provision 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, dismissed with disgrace, retired, permitted to
resign, or released.
Tenure of service of officers and sailors.-(1) Every officer and sailor shall
hold office during the pleasure of the President.
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-
(1) A sailor entitled to he discharged under section 16 shall be discharged
with all convenient speed and in any case within one month of his becoming so
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 mother tongue of such sailor and also
in the English language sating forth- (a) the authority terminating his
cause for such termination; and
full period of his service in the Indian Navy and the Indian Naval Reserve
from the aforesaid provisions of the Navy Act, by Section 184 the Central
Government has been empowered to make regulations in respect of, inter alia,
"the terms and conditions of service, the pay, the pensions, allowances
and other benefits of persons in the naval service, including special provision
in this behalf during active service". In exercise of this power, the
Central Government has framed the regulations called "the Navy (Pension)
Regulations, 1964", `Service in the Indian Navy." Chapter III of the
Regulations deals with Sailors. In this Chapter, Regulation 69(2) deals with
Service Pension and Gratuity of the Sailors. Regulation 78 lays down,
"Unless otherwise provided, the minimum service which qualifies for
service pension is fifteen years." Regulation 79 is important for the
purpose of this case and lays down. "All service from the date of
enrolment or advancement to the rank of ordinary sea-man or equivalent to the
date of discharge shall qualify for pension or gratuity". Regulation 261
deals with recruitment and provides:-
RECRUITMENT - (1) The Chief of Naval Staff may recruit sailors required for the
of sailors shall be made through boy entry, artificer apprentice entry and
direct entry as necessary. The recruitment shall be carried out by the
Recruitment Organisation established for the purpose and by any other authority
as may be decided upon by the Chief of the Naval Staff from time to time.
Persons authorised to enrol sailors, the manner, procedure and terms and
conditions of enrolment shall be as laid down in the appropriate
Regulations." Regulations 290 and 291 are also important for the purpose
of this case and are as under:-
AWARD OF GOOD CONDUCT BADGE - GOOD CONDUCT BADGE shall not be awarded or
restored as a matter of course merely because a man has avoided serious
punishments. If the Captain is satisfied that a man is fully qualified in
accordance with regulations 291 to 293 and sub- regulation (1) of regulation
294 and is deserving of the award a badge shall be conferred, when due, under
provisions of this regulation. The maximum number of bedges that a sailor may earn
during his service shall be three.
SERVICE QUALIFICATION –
Before a sailor can be considered for the award of a Good Conduct Badge, he
must have completed the following periods:
1st Good Conduct Badge ... 4 years.
2nd Good Conduct Badge ... 8 years.
3rd Good Conduct Badge ... 12 years."
first question in this case is whether the appellant can be regarded as a
"Sailor". The argument on behalf of the respondents has been that the
appellant was undergoing training as an Artificer Apprentice. He could not be
treated as a Sailor during this period of training. It was only when he was
advanced to Electrical Artificer Vth Class after completion of his training
that he became a Sailor.
provisions of this Act and the regulations set out hereinabove, do not support
this contention. The definition of `sailor', as given in Section 3(20), is of
wide amplitude and means "person in the naval service other than an
officer". The provisions of Sections 9, 10 and 11 of the Act go to show
that an officer, who is not a subordinate officer, is `appointed' by commission
granted by the President. Subordinate officers may be `appointed' in the
prescribed manner, but the sailors are `enrolled' in the Navy. The Chapter
Heading is Commissions. Appointments and Enrollments. Section 13 lays down that
every officer and every sailor shall, as soon as may be possible after
appointment or enrolment, make and subscribe an oath on affirmation in the
statutory provisions go to show that a person can join Indian Navy as an
officer or a sailor. An officer and a petty officer have been defined in
subsections (16) and (17) of Section 3 and any person who is other than an
officer and is in naval service has been defined as a sailor. The appellant was
not an officer. He had joined Indian Navy and immediately after his enrolment
he was made to take oath which every officer and every sailor under Section 13
is bound to take. Moreover, Regulation 261 clearly lays down that recruitment
of sailors shall be made through boy entry, artificer apprentice entry and
direct entry as officer.
the fact that the appellant was enrolled as an Artificer Apprentice, does not
in any way go to show that he was not a sailor and was not serving the Navy as
12 lays down that where a person after his enrolment has for a period of three
months from the date of such enrolment been in receipt of pay as Sailor, he
shall be deemed to have been duly enrolled. Now, there is no dispute that the
appellant had received pay regularly after his enrolment. It has been contended
on behalf of the respondents that the appellant was allowed an allowance during
the term of the training. The case of the appellant is that he used to get a
fixed pay during the period of the training. The fact that he used to get a
fixed pay does not go to show that he did not receive pay regularly after his
position becomes even clearer if a reference is made to Section 13 which
provides that every officer and every Sailor shall as soon as may be after the
appointment or enrolment make and subscribe an oath or affirmation in the
prescribed form. This is something which only an officer or a Sailor is
required to do. There is no dispute that the appellant was administered oath.
This could only be done under the Act if he was either an officer or a Sailor.
If the contention of the respondents that the appellant was not even a
"Sailor" during the period of training, then it has not been
explained why he was administered oath.
next objection was that even if the appellant could be treated as a sailor, he
could not be said to have been in the service of the Navy during the period of
training. This argument is also unacceptable in the facts of the case and in
view of the provisions of the Act and the Regulations.
prescribed form of oath that was administered to the appellant, he had to swear
".......I will, as in duty bound, honestly and faithfully serve in the
naval service ..........". It is clear that the appellant was enrolled as
a Sailor, took oath as a Sailor and drew salary as a Sailor and was in the
service of the Navy as a Sailor during the period of undergoing training as
qualifying period for earning pension is service of 15 years under the Navy. having
regard to the facts of the case and the documents annexed to the appeal, there
is little doubt that the training period as Artificer Apprentice will have to
be included in the computation of the qualifying period of service. Regulation
79 lays down that all service from the date of enrolment or advancement to the
rank of ordinary sea-man or equivalent to the date of discharge shall qualify
for pension or gratuity. Therefore, the date of advancement is not the only
starting point for computation of the qualifying period of service. In the case
of the appellant the date of enrolment should be the material date. He was
administered oath as a Sailor even before the date of his advancement to the
rank of Electrical Artificer Vth Class. In fact, the Discharge Certificate
issued by the Navy to the appellant is to the following effect ad puts the
matter beyond any doubt:- "This is to certify that ANUJ KUMAR DEY, CHIEF
ELECTRICAL ARTIFICER (AIR), NO. 052264-H has served in the Indian Navy from 12 AUGUST 1971 to 31ST JANUARY, 1988 as per details overleaf." This is a statutory
certificate which has to be given under sub-section (4) of Section 17 of the
Navy Act. The discharge Certificate must state the full period of service in
the Indian Navy. According to the calculation made by the Navy itself, this
period of service is more than the qualifying period of 15 years.
only that. In the details that had been given along with the Discharge
Certificate, it has been mentioned that "Joined on 12th August, 1971. released on 31st January, 1988." The Date of Attestation in
the Indian Navy is given as "17th August, 1971 (Oath of allegiance taken)".
This is a certificate given by the Indian Navy in accordance with requirement
of Section 17.
is another document described as "Certificate of the Service" where
Period of Engagement has been shown as twelve years (from 16.8.75 to 15.8.1985
and from 16.8.85 to 31.1.1988). On behalf of the respondents, strong reliance
has been placed on this document. However, this document does not say that the
appellant was in service for twelve years only. This is an entry in a column
headed "Period of engagement". In fact, in the very next page of that
document, details of the service of the appellant and Substantive Rank held by
him have given. There, it has been shown that the appellant was serving in the
ship "VALSURA' in the Substantive Rank Art. (App) from 12th August, 1971 to 27th November, 1973. It has also been recorded in that document that the
oath of allegiance was taken on 18th August, 1971. In the column headed "Good Conduct Badges", it
has been shown that the appellant was awarded Good Conduct Badges in August,
1975, August, 1979 and August, 1983. That document was given to show
"Character and Efficiency on 31st December yearly, on final discharge and
other occasions prescribed by regulation". It appears that in the yearly
column on and from 31st
December, 1971 to 31st December, 1988 (the date of discharge), every year
the appellant's character has been certified as V.G. (Very Good). Under
Regulation 291, these badges can be awarded only after completion of four years
(first badge). 8 years (second badge) and 12 years (third badge) of service. It
has been laid down under Regulation 290 that "the maximum number of badges
that a sailor may earn during his service shall be three".
these facts and the various provisions of the Act and the Regulations leave no
room for doubt that the appellant even during the period he was working as
Artificer Apprentice was in the service of the Navy, was given Good Conduct
Badges for this service and four years' service was counted from the year 1971.
The Discharge Certificate which is a statutory document clearly records that he
has served in the Indian Navy from 12th August, 1971 to 31st January, 1988. The respondents after granting all these certificates and badges,
cannot be heard to say that the appellant had not put in the qualifying period
of service of fifteen years and, therefore, was not entitled to get pension.
attention was drawn to a judgment of Andhra Pradesh High Court in the case of
H.S. Sarkar v. Union of India & Ors. 1994 (2) An W.R. 221, where it was
held that "it does not stand to reason that when the training period of
four years is reckoned for the purpose of computation of 15 years for retiring
a person., the same is not reckoned for the purpose of pension........ Payment
of only a consolidated pay during the training period and not regular scale of
pay is immaterial in so far as the computation of the period is
of the view that the Division Bench of the High Court was in error in holding
that the period of four years when the appellant was employed Artificer
Apprentice could not be counted for computation of the qualifying period of
the reasons stated hereinabove, the appeal is allowed. The judgment of the High
Court dated 17th July,
1991 is set aside.
There will be no order as to costs.
PETITION NOS. 831/93, 293, 752 AND 601/94 In view of our above judgment in
Civil Appeal No. 1110 of 1992, these writ petitions are also allowed with no
order as to costs.