FORM NO. 21 (SEE RULE 102(1)) ARMED FORCES TRIBUNAL, KOLKATA BENCH APPLICATION NO : O. A NO. 11 OF 2012 ON THIS 11TH DAY OF APRIL, 2014

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1 FORM NO. 21 (SEE RULE 102(1)) ARMED FORCES TRIBUNAL, KOLKATA BENCH APPLICATION NO : O. A NO. 11 OF 2012 ON THIS 11TH DAY OF APRIL, 2014 CORAM : HON BLE JUSTICE RAGHUNATH RAY, MEMBER (JUDICIAL) HON BLE LT GEN KPD SAMANTA, MEMBER (ADMINISTRATIVE) Mohammad Mostafa, Kamal Pasha, Son of Morhoom Md. Mafizul Haque, Permanently residing at Vill : Saraitikar (Dakshin Para), PO Rajbati, PS Burdwan (Sadar),\ Dist. Burdwan (713104), West Bengal Presently residing at Flat No. 102, Vishnavi Enclave Yendada, Sandipani Nagar, Yendada, PO Vishkhapatnam, Andra Pradesh, PIN : VS- 1. Union of India service through The Integrated Head Quarters-in-Charge, M/o Defence (Navy), Govt. of India New Delhi The Chief of Naval Staff for (DOP), Naval Headquarters, New Delhi The Commodore {SSSO (Admn)}, Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai The Administrative Officer-II Staff Officer (Admin) for Commodore, Cheetah Camp, Mankhurd Mumbai

2 2 5. The Flag Officer Commanding-in-Chief Eastern Naval Command, Naval Base, Visakhapatnam (530014) Andhra Pradesh 6. The commander, Base Commander for Commanding Officer, INS Virbahu, Naval Base, Visakhapatnam (530014) Andhra Pradesh.. Respondents. For the Applicant : Mr. Bhuvaneswar Singh Roy, Counsel For the respondents : Mr. D.K.Mukherjee, Counsel O R D E R Per Lt. Gen. K.P.D.Samanta, Member (Administrative) Being aggrieved by denial of re-engagement in service for two years, the applicant, who retired from Naval service in the rank of MCPO-II w.e.f has filed this original application u/s 14 of the AFT Act, 2007 challenging such denial by the authorities as arbitrary, illegal and void. 2. Short facts of the case are that the applicant was enrolled in the Indian Navy on 6 th July 1982 as Matric Entry Recruit (MER) on 6 th July His date of birth is He was allotted the Submarine Branch of Indian Navy. By dint of his sincere and satisfactory service, he got promotions to higher ranks and at the relevant time he was working as MCPO-II (Master Chief Petty Officer). His existing term of engagement was due to expire on 31 st July As per Navy Order No. (Str) 02/07, re-engagement of sailors was admissible subject to certain conditions as stipulated therein. The applicant made a payer for reengagement by two years with necessary documents and his prayer was also duly

3 3 recommended by his superior authority vide letter dt (annexure-a1). However, his request for re-engagement was not approved by the competent authority vide order dt (annexure-a2). Subsequently, his commanding officer made a further request/recommendation for review/reconsideration of non-approval vide his recommendation letter dt (annexure-a3). When no final decision was forthcoming and in the meantime, the applicant was also being considered for grant of Hony Commission to next higher rank, as he was due to retire in July 2011, the applicant, finding no other alternative, gave unwillingness for re-engagement on despite the fact that recommendation was already sent to review/reconsider the earlier decision of non-approval of his case for re-engagement (annexure-a4). According to the applicant, grant of hony. Commission is subject to submission of unwillingness certificate for reengagement. He was in a dilemma since he was not in a position to know if his case would be reconsidered favourably for re-engagement for which recommendation was pending and at the same time, if he did not give unwillingness certificate, he would also not be granted hony. Commission on the next year s Republic Day. Thus he would suffer both ways firstly, he may not get extension and secondly, if he did not opt for unwillingness for such re-engagement, he would also not be granted hony. Commission before retirement. In that situation, he had to give such unwillingness which was forwarded to the competent authority. However, the applicant made a representation on (annexure-a5) to the higher authority explaining the circumstances under which he had to give his unwillingness and requesting for reconsideration of his case for re-engagement. His case was again forwarded with strong recommendation for reengagement on (annexure-a8). However, no decision was communicated to the

4 4 applicant and he ultimately retired from service on completion of his existing term on after being awarded hony. commission rank on 26 Jan In the backdrop of above facts, the applicant has filed this application challenging the action of the respondents in not granting him re-engagement which he was rightfully entitled to as per rules. He has prayed for a direction upon the respondent authorities to re-examine his case after review of earlier decision of non-approval and to pass appropriate orders. In effect, the applicant has prayed for re-engagement after review of earlier decision of non-approval dt. 29 th June Be it noted here that the application was filed with a delay of about four months for which a separate MA being MA 82/2011 was filed seeking condonation of delay which was allowed vide our order dt The respondents have contested the application by filing a written counter affidavit in which they have stated that the applicant was enrolled in the Navy on 6 th July 1982 as MER. He qualified for submarine cadre on and for Submarine Coxswain on 30 th October He was released from service on 31 st July 2011 on completion of 29 years and 26 days of service. 7. The respondents have explained that initially the applicant was engaged for 15 years from 6 th Jul 82 to 5 th Jul Subsequently, he was granted extension of service on four occasions and the last extension was granted for five years from 1 st Aug 2006 to 31 Jul He made a prayer for further re-engagement beyond 31 st July 2011 by his application dt. 23 Mar 2010 (annexure-r1). His case was forwarded to the Bureau of Sailors and his case was further forwarded to IHQ of MoD (N) as Submarine Cadre Review Board 2009 did not recommend the applicant s case due to restricted

5 5 employability in SM cadre. Further, the applicant had lost all the three chances for selection for the rank of MCPO-I. IHQ of MoD vide letter dt. 16 th June 2010 (annexure- R3) communicated non- approval of the case of applicant for re-engagement and the same was intimated to his unit vide letter dt. 29 th June 2010 (annexure-r4). Subsequently, HQENC vide letter dt. 30 th Jul 2010 (annexure-r5) forwarded the applicant s case for further reengagement for two yeas as a review and reconsideration case. The same was also forwarded to IHQ of MoD vide letter dt. 19 th Oct 2010 (annexure-r6). In the meantime, the applicant gave unwillingness dt. 30 Sep 2010 and accordingly request was made to IHQ to return his case unactioned as he had rendered his unwillingness. Accordingly, his case was returned by IHQ of MoD on 25 th Nov 2010 (annexure-a9). However, subsequently his case was again recommended for review vide letter dt. 7 th Jan 2011 explaining the circumstances under which the applicant had given unwillingness. The said recommendation was not acceded to as the applicant, in the meantime, was granted hony. Commission on 26 th January 2011 and accordingly, his case was returned on 14 th Feb 2011 (annexure-r12). As per rules, honourary commission is granted only in the last yea of service. Once a MCPO is conferred with Hony. Commission, he could not remain eligible for extension of service. 8. In view of the above narration of facts, the respondents have submitted that the case of re-engagement was not acceded to by the competent authority and in the meantime, the applicant has also retied from service from 31 st July 2011 as a Hony. S/LT. This application having been filed subsequent to his retirement, has become infructuous and should be dismissed accordingly.

6 6 9. The applicant has filed a rejoinder to the counter affidavit in which apart from reiterating the facts stated in the OA, he has questioned the rejection order by contending that it was issued without application of mind and without considering the unwillingness certificate given by the applicant in its proper perspective as explained earlier. He has also relied on a decision of the Hon ble Supreme Court in the case of UOI & Ors vs- R.P.Yadav etc. reported in 2000(4) SLR 691 (SC) to contend that once willingness is given for re-engagement, subsequently it cannot be revoked. 10. We have heard the submissions of Mr. B.Sinha Roy, ld. adv. for the applicant and Mr. D.K.Mukherjee, ld. adv. appearing on behalf of the respondents extensively. We have also gone through the relevant Navy Order relied on by the applicant as also other documents relevant to this case. 11. The short question involved in this case is whether the applicant had a right to such re-engagement by two years on completion of his existing term, which was wrongly denied to him. 12. The facts of the case are undisputed. As it appears, the applicant was enrolled in the Navy on 6 th July 1982 as MER. He was qualified for Submarine Cadre on 31 st Oct 1985 and for Submarine Coxswain on 30 th October He was promoted to the rank of MPCO-II (Master Chief Petty Officer). It is submitted by the respondents that he could not qualify for the post of MPCO-I in spite of getting three chances. It is also submitted that the term of re-engagement for five years w.e.f. 1 st Aug 2006 was going to expire on 31 st July 2011 when the applicant would complete more than 29 years of service.

7 7 13. Both parties have relied on Navy Order (Str) 02/07 which regulates the terms and conditions of re-engagement of sailors. A copy of the said Navy Order is at annxure-a13 to the OA. Relevant portions of this NO are extracted below :- Re-engagement - 4. Principles of Re-engagement : Grant of re-engagement is subject to service requirement, and is not to be construed as a matter of right. Depending upon the requirement of service, a sailor can be reengaged only if he fulfills the following conditions :- (a) (b) (c) (d) Out of three annual assessments immediately preceding reengagement, he must have at least two assessments of character and efficiency not below VG and SAT respectively. Must have been recommended by the Commanding Officer as suitable in all respects. Must have been declared medically fit for satisfactorily carrying out the duties required of him. The manpower requirement of the service/cadre must warrant his re-engagement. 5. Criteria for Re-engagement : (a) Sailors fulfilling the conditions laid down in para 4 above, are considered for re-engagement. However, a final decision regarding grant or otherwise of re-engagement in a particular case is taken based on the overall performance of the sailor during his entire service as reflected by the following factors :- (i) Efficiency gradings. (ii) Performance in professional course including CPO(M)/PO(L) courses.\ (iii) Report on Performance Evaluation Sheet/ACRs and recommendations for accelerated promotion. (iv) Awards and commendations. (v) Warrant punishments. (vi) Adverse comments in ACRs/Performance Evaluation Sheet

8 8 (vii) Request for deletion of name from professional/higher courses etc. (viii) Supesession/low merit in Master Chief Selection Boards. (ix) Repeated requests for transfer on resettlement or compassionate grounds. (b) The sailor will not be re-engaged if they have :- (i) (ii) (iii) (iv) (v) Unsatisfactory record of service. Expressed unwillingness for further re-engagement. Submitted willingness for re-engagement only for a lesser period. Undergone resettlement courses/availed of resettlement transfer. Been granted Honouary Commission. *** *** *** 8. Authority to Grant Re-engagement : (a) The Commodore Bureau of Sailors. The powers to grant reengagement upto 28 and 30 Years of service to sailors of the Artificer/MER and NMER branches respectively have been delegated to the Commodore Bureau of Sailors, Mumbai. (b) Integrated Headquarters, MoD(Navy). The re-engagement cases mentioned below are required to be referred to the Integrated Headquarters Ministry of Defence (Navy) through Bureau of Sailors for approval :- (i) Cases of re=-engagement of sailors beyond 28 and 30 years of service in case of Artificer/MER and NMER sailors respectively. (ii) Case of sailors whose request for re-engagements are received subsequent to publication of their names in the Release Serial. (iii) All review cases/appeals. (iv) Any other case which the Commodore, Bureau of Sailors may like to refer to Integrated Headquarters, Ministry of Defence (Navy). 9. Period of Re-engagement (a) (b) The sailors shall be re-engaged in spells of not exceeding five years and not less than two years provided it is not a course/deputation requirement. However, no sailor shall be reengaged beyond the age of superannuation as specified in para 10 below. On completion of pensionable service the sailors will normally be re-engaged for the following periods (i) In steps of not exceeding 5 years at a time upto 25 years of service after expiry of initial engagement.

9 9 (ii) In steps of not exceeding 2 years at a time beyond 25 years of service. (c ) Notwithstanding 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 granted further re-engagement in the submarine Cadre subject to availability of vacancies in the cadre. Otherwise, if reengaged, they will be reverted to general service. Therefore, at the time of requesting for re-engagement, they are to give an undertaking as peer Appendix B to this order that in case of Submarine Cadre becoming overborne they are liable to be reverted to general service. (d) The maximum period of service permissible in a rank will be as follows :- S. Ranks Artificer/MER NMER No. (i) LS (ii) PO (iii) CPO (iv) MCPO II (v) MCPO I (e) Sailors whose re-engagement is approved for lesser period than volunteered for, due to their having unsatisfactory record of service, should be warned that their further re-engagement in service, would depend on their showing marked improvement in performance and conduct during the extended period. 10. Ages of Superannuation (a) The ages of superannuation of sailors at different ranks will be as under :- (i) CPOs and below - 52 years (ii) MCPOs - 57 years *** *** 13. Unwillingness for Re-engagement (a) On publication of Expiry of Engagement Serial if a sailor does not wish to re-engage for further service a certificate of unwillingness as per Appendix D to this Order is obtain from him. A copy of

10 10 (b) (c) this certificate is to be retained with sailor s Service Documents and another forwarded to the Bureau of Sailors, Mumbai. Requests for signing for further service from sailors who have once expressed unwillingness, are not to be entertained under any circumstances, e.g. changed domestic circumstances, loss of prospective employment opportunity etc. as this upsets manpower planning, recruitment and progress of pension papers. However, sailors who have once expressed their unwillingness to sign for further service and subsequently wish to re-engage on promotion, will be considered for re-engagement only if they ar willing to sign for a minimum period of two years. In such cases, the request is to be put up at least mine months prior to the date of release. *** *** *** 17. Reconsideration For Re-engagement. Cases of sailors who have been denied re-engagement may be forwarded if required, by their Commanding Officers/ O i/cs of the ships/establishments through the Commodore, Bureau of Sailors Mumbai with recommendations of their Administrative Authorities for review /reconsideration. The Commodore, Bureau of Sailors will re-examine all such cases and forward them alongwith his recommendations to the IHQ of MoD(N) for decision. 18. Cancellation of Re-engagement. Once re-engagement has been granted to a sailor consequent to his willingness, the engagement will generally not be cancelled due to any altered circumstances affecting the sailor. The sailor will be required to serve upto the period reengaged for. 14. Ld. advocate for the applicant has contended that in terms para 10 of the ibid Navy Order, the age of superannuation of sailors in the rank of MCPO is 57 years whereas the applicant in July 2011 was aged only 46 plus, his date of birth being 5 th Dec Therefore, he should not be denied re-engagement. However, we find from para 9(d) of the ibid Navy Order that the maximum period of service permissible in the rank of MCPO II, which the applicant was holding, was 32 years for MER (the applicant was also a MER i.e Matric Entry Recruit). Therefore, he was entitled to serve for 32 years. It is the admitted position that as on 31 st July 2011, he had completed more than 29 years of

11 11 service. Therefore, he could have been engaged for about 3 years. In terms of para 9(b) on completion of pensionable service the sailors are normally re-engaged in steps of not exceeding 5 years at a time beyond 25 years of service or in steps of not exceeding 2 years at a time beyond 25 years of service. Therefore, in the case of the applicant, he was eligible for re-engagement for 2 years only to complete the maximum span of 32 years of service, since no re-engagement is permissible for less than a year. It is not in dispute that the applicant had already completed his pensionable service of 15 years long back on 5 th July 1997 and subsequently got re-engagement of different durations. 15. Now, in terms of rule 4 of ibid Navy Order, it is clearly provided that grant of reengagement is subject o service requirement and is not to be construed as a matter of right and that depending upon the requirement of service, a sailor can be re-engaged only if he fulfills the conditions stipulated therein. Condition No. (d) is as follows : The manpower requirement of service/cadre must warrant his re-engagement. The applicant was in the Submarine Cadre and the respondents have categorically stated in that reply affidavit vide para 4(i) that the Submarine Cadre Review Board 2009 did not recommend applicant s case due to restricted employability in Submarine cadre. 16. In para 5 of the Navy Order indicating the criteria for re-engagement, it is stated that final decision regarding grant or otherwise of re-engagement in particular case is taken based on the over all performance of the sailor during his entire service as reflected by the factors indicated therein. One such criterion is that the sailor should not be in supersession/low merit in Master Chef Selection Board. It is the case of the respondents that the applicant failed in all three chances for selection for MPCO-I. Therefore, it is obvious that the reasons for his non-approval for re-engagement is

12 12 employability restriction in Sub Marine cadre to which the applicant belonged and also his failure in the selection in the next higher rank inspite of getting three chances available. As already indicated above, re-engagement is not a right. Therefore, nonapproval of the applicant for re-engagement cannot be claimed as a matter of right and in his case the criteria mentioned for such re-engagement is also not met. 17. Ld. adv. for the applicant has contended that no reason was assigned for his nonapproval and he was not given any pre-decisional hearing before rejecting his case for reengagement, thus the principle of natural justice was denied to him. We, are, however, not impressed by this argument. Nowhere it is stated in the ibid Navy Order that before non-approval a personal hearing is to be granted or a speaking order is to be passed for such non-approval. We have already analyzed the rule position above and we find nothing wrong in not approving the case of the applicant at the first instance. We have also seen that after completion of his initial 15 years pensionable service, the applicant was granted re-engagement for different durations on four earlier occasions. Therefore, no mala fide can also be attributed for such rejection, especially when the rule clearly provides that re-engagement is dependant upon the requirement of service. 18. Ld. adv. for the applicant next contended that after rejection of his case initially, the commanding officer strongly recommended his case for reconsideration and review in terms of para 17 of the ibid Navy Order. However, in the meantime, in the circumstances explained earlier, he had to give his unwillingness and based on this unwillingness certificate, the recommendation for review was returned unactioned at the request of the local authority. According to the ld. counsel, the authorities failed to take notice of the circumstances under which he gave such unwillingness. In terms of para 5(b)(ii), it is

13 13 clearly provided that re-engagement is not permissible where the sailor has submitted unwillingness and further as per 5(b)(v) where the sailor has been granted honourary commission. The respondents in a supplementary affidavit submitted that the applicant was granted honorary commission on 26 th January 2011 as Hon. SLT (MCPO II UW 1). From a communication dt. 23 Dec 2010 (annexure-r11) to the reply affidavit, it appears that on behalf of the commanding officer of the applicant a request was made to the HQ office to give priority in the matter of re-engagement over the claim for honourary commission. 19. As discussed earlier, the authorities already rejected his case for re-engagement on the grounds stated above, and therefore, they thought it fit and proper to grant him honourary commission six months prior to his retirement on expiry of his existing term of engagement i.e. on 26 th January We do not find any illegality or arbitrariness in such decision. The applicant himself gave his unwillingness on his own volition and prayed for grant of honourary commission. He had not withdrawn that unwillingness. It is also not his case that his unwillingness was conditional to be effective only if he was not granted hony. commission. In that view of the matter, we are unable to hold that the respondents have acted illegally in granting him honourary commission which was to his benefit as he was sanctioned pensionary benefit in the rank of Hon SLT (Sub Lieutenant) as is evident from the supplementary affidavit filed by the respondents. 20. Lastly, relying on a decision of the Hon ble Supreme Court in the case of R.P.Yadav vs- UOI & Ors, reported in (2000) 5 SCC 325, the ld. counsel for the applicant has submitted that after applying for re-engagement and after the same being proceeded with, no one is allowed to sign unwillingness for his re-engagement.

14 We have gone through this decision of the Hon ble Supreme Court which is a three-judge Bench decision. In that case the question arose whether an Artificer Apprentice in Indian Navy, who had been given re-engagement for a certain period after obtaining his consent for it, was entitled to withdraw the consent and demand his release from the force as of right. There, the respondent employees were granted re-engagement on their option before completion of initial term of pensionable service of 15 years. However, subsequently they opted for release on the ground that they came to know about a decision of the Hon ble Supreme Court in the case of Anuj Kumar Dey vs- UOI, 1997(1) SLR 220 where it was held that training period would also be counted towards pensionable service. The employee respondents in that case, initially gave willingness for re-engagement so that they could attain pensionable service but subsequently, they found that if the training period was counted, they had already completed pensionable service and in that situation, such release was claimed. In the case of R.P.Yadav, he got relief by the order of the Hon ble Delhi High Court but in the case of other employee respondent i.e. Raj Kumar, the decision of the Hon ble Apex Court was rendered. By explaining various Navy Rules and Regulations including Navy Order (Str) 17 of 1994 (Here we are dealing with the same Navy Order but revised by (Str) 2 of 2007), it was held in para 21 as under :- 21. The provisions of Naval Str. 17, leave no manner of doubt that reengagement of sailors can neither be claimed by a sailor as a matter of right nor can cancellation of re-engagement and release from the force be claimed by a sailor as a matter of right. It is to be decided by the competent authority keeping in view the relevant factors, the most important one being the service requirements. 22. The facts in the present case are different because the prayer for re-engagement for two years as made by the applicant herein was never accepted by the competent

15 15 authority and was not approved, therefore, the question of release during such reengagement, which was the main controversy in the cited decision, is not an issue in the case in hand. Rather, the Hon ble Apex Court has clearly held that neither re-engagement nor release is a matter of right and it is to be decided by the competent authority keeping in view the relevant factors, the most important one being the service requirement. We have already stated earlier that the respondents have clearly indicated that cadre review authority for Sub Marine cadre did not consider the case of re-engagement of the applicant because of employability restriction in that cadre. Therefore, the applicant cannot challenge such decision of the authority. The majority decision of the Hon ble Apex Court in the above cited case goes against his claim. 23. For the reasons stated above, we find no merit in this OA, which is accordingly, dismissed on contest but without cost. 24. Let plain copy of the order duly countersigned by the Tribunal Officer be furnished to both sides on observance of due procedure. (LT. GEN. K.P.D.SAMANTA) MEMBER(ADMINISTRATIVE) (JUSTICE RAGHUNATH RAY) MEMBER (JUDICIAL)