APPLICANTS: 4. SRI.K.V.VISWAMBHARAN (180156)(CH-ERA), S/O.M.A.VASU, AGED 61 YEARS, RESIDING AT 4-B CASSABLANCA, VAZHAKKALA, ERNAKULAM, PIN

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1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 8 OF 2013 WEDNESDAY, THE 22ND DAY OF JANUARY 2014/ 2ND MAGHA, 1935 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) 1. EX NAVY DIRECT ENTRY ARTIFICERS ASSOCIATION (EXNDEAA) HAVING ITS REGISTERED OFFICE AT SUSANDHYA, OLD THEVARA ROAD, RAVIPURAM, KOCHI-16 REPRESENTED BY ITS PRESIDENT. 2. SHRI. NARAYANAN MOOSAD (52587)(MCEAP-II), MASTER CHIEF ELECTRICAL ARTIFICER POWER, S/O.PARAMESWARAN MOOSAD, AGED 66 YEARS, RESIDING AT SREENILAYAM, DOWN HILL P.O., MALAPPURAM , EX NAVY DIRECT ENTRY ARTIFICERS ASSOCIATION REPRESENTED BY ITS PESIDENT. 3. SRI.K.V.YOHANNAN (NO )(CH-EAP), S/O.K.O.VARGHESE, AGED 63 YEARS, RESIDING AT PALLIPURATHU HOUSE, OLIYAPURAM.P.O., KOOTHATTUKULAM, ERNAKULAM DISTRICT, PIN SRI.K.V.VISWAMBHARAN (180156)(CH-ERA), S/O.M.A.VASU, AGED 61 YEARS, RESIDING AT 4-B CASSABLANCA, VAZHAKKALA, ERNAKULAM, PIN SRI.THOMAS KURUVILLA (52751)(CH-EAP), S/O.KURUVILA THOMAS, AGED 65 YEARS, RESIDING AT PALLATHUSSERI HOUSE, LANE 12, JANATHA ROAD, VYTTILA, KOCHI, PIN BY ADVS.M/S.DR.B.K.SUBBA RAO, K.SHIBILI NAHA & SURAJ.S. VERSUS APPLICANTS:

2 O.A.No.8 of 2013 : 2 : RESPONDENTS: 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI THE CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI DIRECTOR (PENSION), INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE (NAVY), DTE OF PAY AND ALLOWANCES, D II WING, SENA BHAWAN, NEW DELHI THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) OFFICE OF THE PCDA(P), DRAUPADIGHAT, ALLAHABAD, U.P BY ADV.SRI.P.J.PHILIP, CENTRAL GOVT. COUNSEL O R D E R VAdm M.P.Muralidharan, Member (A): 1. The first applicant is a registered Association of Ex Navy Direct Entry Artificers and the other four are all Ex Direct Entry Artificers of the Navy (hereinafter referred to as the applicants). The applicants two to five, were discharged from the Navy after their initial engagement period of 10

3 O.A.No.8 of 2013 : 3 : years. As per applicants, they were placed 10 years in Fleet Reserve. The applicants were not given pension on their release from service, but have now sought pension based on the fact that they were placed in Fleet Reserve for 10 years and 50% of the period of reserve would accrue towards pension. While a request for pension was made by the applicants (Annexure A5) to Respondent No.2, vide Annexure A6 they were informed by Respondent No.3 that they were not eligible for pension. The applicants have therefore prayed for setting aside the IHQ, MOD (Navy) letter No.PN/8126/12 dated 25 June 2012 (Annexure A6) denying them pension. They have also prayed to declare them entitled for service pension and to declare denial of service pension to them as unreasonable, discriminatory and hence in violation of Articles 14 and 16 of the Constitution of India. They have also sought that the respondents be directed to sanction pension benefits to them based on judgments of the Hon'ble Apex Court in Anuj

4 O.A.No.8 of 2013 : 4 : Kumar Dey & anr. vs. Union of India ((1997)1 SCC 366, D.S.Nakara & Ors. vs. Union of India (1983 SCR (2) 165) and this Tribunal's order in T.A.No.41 of Heard Dr.Subba Rao for the applicants and Mr.P.J.Philip for the respondents. 3. The learned counsel for the applicants brought out that the applicants were enrolled into the Navy under Regulation 268(1) of the Navy Regulations, Part III. They were enrolled for continuous service as provided in subregulation (1) of Regulation 269. At the time of enrollment, applicants were given to understand that they would be rendering 10 years of active service followed by 10 years in Fleet Reserve. They therefore understood that as 50% of the 10 years of Fleet Reserve would be counted towards pension, they would get a pension. Hence the Government is bound by the principle of promissory estoppel.

5 O.A.No.8 of 2013 : 5 : 4. The learned counsel for applicants contended that Regulation 269 provides for an initial engagement of 10 years followed by liability to remain 10 years in Fleet Reserve. He further submitted that under Section 14 of the Navy Act, Sailors shall be liable to serve 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. They are also liable to be recalled to Naval Service in an emergency. As per the counsel, the applicants fulfilled their contractual obligation by rendering continuous service of 10 years and by remaining 10 years in Fleet Reserve with readiness to report for active service, if recalled and hence the respondents needed to fulfill their part of the contractual obligation, in that 50% of the period in Fleet reserve is to be counted as reckonable service for pension, therefore giving the applicants a service of 15 years which would make them eligible for pension. The Certificates of Service of the

6 O.A.No.8 of 2013 : 6 : applicants at serial Nos.2 to 5 were produced as evidence that each applicant was placed in 10 years Fleet Reserve. 5. The learned counsel also brought out that the respondents have erroneously relied on the Government order No. AD/5374/2/76/2214/S/D(N.II) dated 03 July 1976 as per which drafting into the Fleet Reserve was discontinued from 1976 onwards. He further quoted the Apex Court order in Anuj Kumar Dey & anr. vs. Union of India ((1997)1 SCC 366, wherein the Apprentice Entry Artificers who have an initial engagement of 10 years were given pension counting the training period. 6. Dr.Subba Rao also brought out that the applicants were enrolled into the Navy prior to July 1976 and hence retrospective effect cannot be given to their terms and conditions. This was also the mandate of Section 184 of the Navy Act, as per his submission. He further brought out

7 O.A.No.8 of 2013 : 7 : that vide Sections 19A and 19B of the Navy Act, 1957 provisions still exist for Indian Naval Reserve Force and hence practice of keeping Sailors in Fleet Reserve on completion of their engagement is very much in force. In his view, therefore, the denial of Fleet Reserve benefits to the applicants by amending Regulation 269 of Navy Regulations, Part III carried out in 1978 with retrospective effect was causing prejudice and loss to the applicants in violation of the Navy Act. Learned counsel also brought out that based on the Apex Court decision in D.S.Nakara & Ors. vs. Union of India (1983 SCR (2) 165), Apprentice Entry Artificers and Direct Entry Artificers, by virtue of the initial engagement of 10 years active service, were similarly placed and should be treated alike for privileges and liabilities and hence pension should also be applicable to Direct Entry Sailors. 7. Mr.P.J.Philip, the learned counsel for the respondents brought out that none of the applicants 2 to 5

8 O.A.No.8 of 2013 : 8 : and the members of the first applicant Association were placed in Fleet Reserve. They all were discharged from service after He amplified that the applicants were enrolled in accordance with Regulation 269 of Navy Regulations, Part III for a period of 10 years service to be completed from the date of attaining 17 years of age or from the date of being ranked in the Man's rank on successful completion of initial training whichever is later, provided their services are so long required. He further clarified that in accordance with the Regulation, continuous Service Sailors shall be liable, if required, for a further 10 years service in Fleet Reserve subject to Regulations of Fleet Reserve. He clarified that right at the initial recruitment stage it was made clear that they would be drafted into Fleet Reserve only if required. He also brought out that Regulations for Indian Fleet Reserve lays down that no man can claim to join the Fleet Reserve as a right. As regards the entry in the certificate of service, he clarified that it

9 O.A.No.8 of 2013 : 9 : only indicated liability at the time of enrollment. After the Government of India letter No. AD/5374/2/76/2214/S/D (N.II) dated 03 July 1976 (Annexure R1), transfer of Sailors into Fleet Reserve was discontinued. The Regulations for Navy was also amended vide SRO.No. 106 of 1978 dated 28 th March He clarified that in view of the above, making specific entries in Service Certificates post 1976; on drafting into Fleet Reserve or otherwise, had been dispensed with. 8. The learned counsel further brought out that there cannot be any estoppel against specific service conditions of engagement and continuance in Indian Navy. There is no estoppel against Statute. No estoppel against law. The relationship of the applicants with the respondents is not contractual but one of status. Their rights are determined by statute, statutory rules, which may be framed and altered by the Government unilaterally without the consent

10 O.A.No.8 of 2013 : 10 : of the employees. The applicants have no vested contractual right with respect to the terms of their service. The learned counsel cited a number of judgments in this regard and amplified that in Union of India & Anr vs. Dr.S.Baliar Sighat 1998 (2) SCC 208 the Apex Court held that the Government servant will be governed by rules in force at the time when he retires. He acquires no vested right by reason of the rules which were in force at the time he joined Government service. He also relied on the decisions in Union Public Service Commission vs. Girish Jayantilal Vaghela, 2006 (2) SCC 482 and Gadigappa Bhimmappa Meti vs. Balangowda Bhimangowda, AIR 1931 Bombay 561, wherein it is held that no person can, by the application of the law of estoppel or by any rule of procedure, acquire or have assigned to him a status or legal capacity which the substantive law denies to him.

11 O.A.No.8 of 2013 : 11 : 9. Learned counsel for respondents contended that promissory estoppel against Government cannot operate to force it to function against statutory provisions. As per counsel, by the time the applicants had completed ten years of active service, the scheme of placing Sailors in reserve liability was put to an end by the 1976 Notification by the Government of India read with Regulation 269(1)(B)(a) of the Navy Regulations, Part II. Hence none of them were placed in reserve and are not entitled to reserve pension. There cannot be promissory estoppel contrary to Regulation 269(1)(B)(a) of Navy Regulations, Part III. The learned counsel further added that as the applicants did not have service of 15 years they were not eligible for service pension. 10. On the subject of homogeneity/discrimination between Direct Entry Artificers and Apprentice Entry

12 O.A.No.8 of 2013 : 12 : Artificers, the counsel for the respondents clarified that while there was some homogeneity in the jobs being undertaken, the Apprentice Entry Artificers had their length of service in the Navy counted from the date of taking of Oath of Allegiance in accordance with the directions of the Hon'ble Supreme Court (Anuj Kumar Dey & anr. vs. Union of India ((1997)1 SCC 366). Hence their service came to 15 years and became eligible for pension. As regards applicants, who were Direct Entry Artificers, since they had only 10 years of service they were not eligible for pension. Since they were not getting pension, D.S.Nakara's ruling (1983 (1) SCC 305) was not applicable to them. 11. Mr.Philip also brought out that the orders of this Hon'ble Bench in T.A.No.82 of 2010 (K.A.Vincent vs. Union of India & Ors) dated 16 th May 2011 and O.A.No. 84 of 2010 (K.K.Ramachandran vs. Union of India & Ors) read with the

13 O.A.No.8 of 2013 : 13 : order in T.A.No.492 of 2009 and T.A.No.511 of 2009 dated 10 th February 2012 by the Principal Bench have held that those who are discharged after 1976 are not entitled to reservist pension. Any order to the contrary in this OA will be directly contrary to the principles settled by these three decisions. The decision of Chennai Bench now relied upon by the applicants was rendered without seeing Annexure R1 herein, i.e., the 1976 order and Regulation 269(1)(B)(a) of the Navy Regulations, Part III putting an end to Fleet Reserve. It is per incuriam and directly conflicts with the above referred three decisions, especially of this Bench. Learned counsel also contended that it was wrongly held that the Union of India is prevented by principles of promissory estoppel from not placing the applicant therein in reserve. It was therefore also not correct to make an assumption that the applicant has been placed in the reserve and as such reservist pension should be paid to him. Bombay Bench of the Armed Forces Tribunal in O.A.No.42 of 2010 has

14 O.A.No.8 of 2013 : 14 : correctly held that the Chennai Bench decision is wrong and followed the decision by the Principal Bench in this regard. 12. We have considered rival contentions, submissions and perused records. 13. At this juncture, we would like to clarify that Applicant No.1 is an Association formed by Ex Navy Direct Entry Artificers who joined the service between 1966 and 1971 and rendered not less than 10 years of service. Pension is granted to an individual based on his service rendered in accordance with relevant Pension Regulations. Therefore, the application of the Association, based on generalities is not being looked into. Cases of individual Applicants 2 to 5, details at Annexures A2 to A5 are being examined. 14. As per records submitted, Applicant No.2

15 O.A.No.8 of 2013 : 15 : Narayanan Moosad, No.52587, Ex Master Chief Electrical Artificer Power (MC EAP II), was enrolled into the Navy for a period of 10 years from 17 th April, 1967 and was discharged on 30 th April, 1977 on expiry of engagement. Applicant No.3 K.V.Yohannan, No , Ex Chief Electrical Artificer Power (Ag CHEAP) was enrolled on 20 th April, 1971 and discharged on 30 th April, 1981 on expiry of engagement. Applicant No.4 K.V. Viswambharan, No , Ex Chief Engine Room Artificer (CH ERA) was enrolled into the Navy on 18 th October 1971 and discharged on 31 st October 1981 on expiry of engagement. Applicant No.5 Thomas Kuruvilla No , Ex Chief, EAP Power (CH EAP) was enrolled on 19 th October 1968 and was discharged on 31 st October 1978 on expiry of engagement. There is no notation on record of their being drafted into Fleet Reserve on expiry of their active service. 15. Before going into the merits of the case filed by

16 O.A.No.8 of 2013 : 16 : the applicants, it will be necessary to refer to the relevant provisions of Navy Act and other Regulations framed under it. 16. Sections of Navy Act 1957 applicable in the case are as follows: 11. Enrolment:--(1) Save as otherwise provided in this Act, the terms and conditions of service of sailors, the person authorized to enrol for service as sailors and the manner and procedure of such enrolment shall be such as may be prescribed. 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. 17. Provisions as to discharge:-- (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 mother tongue of such sailor and also in the English language setting forth-- (a) the authority terminating his service;

17 O.A.No.8 of 2013 : 17 : (b) the cause for such termination; and (c)the full period of his service in the Indian Navy and the Indian Naval Reserve Forces. 19A. Reinstatement of persons belonging to the Indian Naval Reserve Forces on termination of period of training or actual service with the Indian Navy:-- 19B. Preservation of service rights belonging to the Indian Naval Reserve Forces when called up for training or actual service with the Indian Navy: Power to Make regulations:-- (1) The Central Government may, by notification in the official Gazette, make regulations for the governance, command, discipline, recruitment, conditions of service and regulation of the naval forces and generally for the purpose of carrying into effect the provisions of this Act A. Power to make regulations with retrospective effect:-- The power to make regulations conferred by this Act shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the regulations or any of them, but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.

18 O.A.No.8 of 2013 : 18 : 17. The relevant regulations from the Pension Regulations for the Navy, 1964 are re-produced below: 78. Minimum qualifying service for pension Unless otherwise provided, the minimum service which qualifies for service pension is fifteen years. 79. Service qualifying for pension and gratuity (1) All service from the date of enrolment or advancement to the rank of ordinary seaman or equivalent to the date of discharge shall qualify for pension or gratuity with the exception of Sailors transferred to the reserve A sailor transferred to the reserve after earning a service pension shall be granted such pension from the date of his transfer Reservist pension and gratuity--(1) A reservist who is not in receipt of a service pension may be granted, on completion of the prescribed naval and reserve qualifying service of ten years each, a reservist pension of rupees eleven per mensem or a gratuity of rupees nine hundred in lieu of pension. (2) A reservist who is not in receipt of a service pension

19 O.A.No.8 of 2013 : 19 : and whose qualifying service is less than the period of engagement but not less than fifteen years may, on completion of the period of engagement or on earlier discharge from the reserve otherwise than at his own request, be granted a reservist pension at rupees ten per mensem or a gratuity of rupees seven hundred and fifty in lieu of pension. 18. Regulations for the Indian Fleet Reserve, 1940 applicable with regard to eligibility for pension are as follows: 3. Personnel on draft to the Fleet Reserve will be divided into two separate categories, as follows: Class A. Continuous service ratings in receipt of pensions other than disability pensions Class B.-- Continuous service ratings who have completed a term or terms of enrolment, but have not qualified for pension and special service ratings Transfer from classes B to Class A -- (a) Service of continuous service ratings in Class B of the Indian Fleet Reserve will count as half active service time towards the pension or gratuity applicable to the rating held (i.e. two years reserve service will count as equivalent to one years active service)

20 O.A.No.8 of 2013 : 20 : 19. It therefore emerges from the above regulations that 15 years is the minimum qualifying service for pension. While the full continuous service in the Navy will count towards reckonable service for pension, those enrolled into Fleet Reserve without earning a pension from the regular service, will be entitled to count 50% of their service in Fleet Reserve as reckonable service towards pension. 20. The regulations that lay down conditions of service of Sailors in the Navy are given in Navy Regulations, Part III. Relevant regulations are re-produced below: 261. Recruitment (1) The Chief of the Naval Staff may recruit sailors required for the Service. (2) Recruitment of sailors shall be made through boy entry, artificer apprentice entry, and direct entry, as necessary

21 O.A.No.8 of 2013 : 21 : 264. Instructions to Recruiting Authorities:-- Recruiting Officers shall be responsible for explaining clearly to the recruits the conditions of service in general, the duties of the Branch in which the person is being reenrolled...they shall ensure that the recruits fully understand and accept the conditions of their liabilities to the service, before they (the recruits) affix their signatures on the declarations in the Form of Enrollment contracting to serve the Navy for the period specified therein Engagements (1)Boys, Artificer Apprentices and Direct Entry sailors shall be enrolled for continuous service as provided in sub-regulation (1) of Regulation Continuous Service (1) Old Entrants Boys, Artificer Apprentices and Direct Entry sailors may be enrolled for a period calculated to permit a period of 10 years' service to be completed from the date of attaining 17 years of age or from the date of being ranked in the Man's rank on successful completion of initial training, whichever is later, provided their services are so long required. Continuous Service sailors of all Branches shall be liable, if required, for a further 10 years' service in the Indian Fleet Reserve, subject to the provisions of the Regulations for the Indian Fleet Reserve. (1-A) New Entrants:- (a) Boys, Artificer-Apprentices and Direct Entry sailors may be enrolled for a period calculated to permit a period of 15 years service to be completed from the date of attaining the age of 17 years, whichever is later, provided their services

22 O.A.No.8 of 2013 : 22 : are so long required.... (1-B)(a) In case of the existing sailors, their period of engagement shall be governed by sub regulation (1), except that they shall not be transferred to Fleet Reserve.... (1-C) Persons joining service on or after the 3 rd July 1976 shall be deemed to be New Entrants. 21. The learned counsel for applicants had brought out that Regulations for the Navy that existed prior to the amendments in 1978 was applicable to them. Older version of Regulation 269 is re-produced below: 269. Continuous Service: -- (1) Boys, Artificer Apprentices and Direct Entry sailors may be enrolled for a period calculated to permit a period of 10 years' service to be completed from the date of attaining 17 years of age or from the date of being rated in the Mans rate on successful completion of initial training, whichever is later, provided their services are so long required. Continuous Service sailors of all Branches shall be liable, if required, for a further 10 year's service in the

23 O.A.No.8 of 2013 : 23 : Indian Fleet Reserve, subject to the provisions of the Regulations for the Indian Fleet Reserve. 22. In 1976, Government of India modified the conditions of service procedures vide letter No.AD/5374/2/76/2214/S/D(N.II) dated 3 rd July, 1976, (Annexure R1). The relevant sections of the letter are given below: SUB: CONDITIONS OF SERVICE OF SAILORS. I am directed to state that the President is pleased to approve the following modifications in the conditions of service of sailors: (f) Transfer to Current Fleet Reserve:-- Transfer of sailors into the Fleet Reserve to be discontinued Appropriate Government Regulations/Orders will be amended in due course. 23. Subsequently, Regulations for the Navy was amended by the Government of India vide SRO.No.106 of

24 O.A.No.8 of 2013 : 24 : 1978 dated 28 th March Relevant portions of the SRO are given below: S.R.O.106:-- In exercise of the powers conferred by section 184 of the Navy Act, 1957 (62 of 1957), the Central Government hereby makes the following regulations further to amend the Navy Ceremonial, Conditions of Service and Miscellaneous Regulations, 1964, namely:-- 2. In the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, (i) in regulation 269, in sub-regulation (1), for the brackets and figure (1), the brackets, figure and words (1) Old Entrants shall be substituted, and after subregulation (1) as so amended, the following sub-regulation shall be inserted, namely:-- (1A) New Entrants:--(a) Boys, Artificer, Apprentices and Direct Entry sailors may be enrolled for a period calculated to permit a period of 15 years' service to be completed from the date of enrolment or from the date of attaining the age of 17 years, whichever is later, provided their services are so long required.... (1B)(a) In case of the existing sailors, their period of engagement shall be governed by sub-regulation (1), except that they shall not be transferred to Fleet Reserve.

25 O.A.No.8 of 2013 : 25 : (b) (1C) Persons joining service on or after the 3 rd July, 1976 shall be deemed to be New Entrants. 24. Regulations for the Indian Fleet Reserve, which are relevant in the matter, are re-produced as follows: 4. Regulation 4, lays down Qualification criteria in respect of Character, Efficiency, Medical Status and Age for joining the fleet reserve. 6. Claim to join Fleet Reserve:--No man can claim to join the Fleet Reserve as a right Enrolment:-- The Registrar of Reserves is authorised to enrol or re-enrol ratings in the Royal Indian Fleet Reserve, acting under the authority of the Officer Commanding the Royal Indian Navy. (a) When an Active Service rating is within six months of completing his term of enrolment the Commanding Officer of the ship in which he is serving is to inform the Registrar whether or not he is recommended for Fleet Reserve Service and is to endorse his Service Certificate accordingly. 13. Fleet Reservist Certificate:--Every man on enrollment or re-enrollment in Royal Indian Fleet Reserve is

26 O.A.No.8 of 2013 : 26 : to be issued with a Fleet Reservist Certificate (Form RINF.3). This certificate identifies the man as a member of the Royal Indian Fleet Reserve and contains a detachable Emergency Movement Order for use on General Mobilization. 19. Regulation 19 lays down mandatory training period for reservists. 21. Notations on Service Certificates:--On the conclusion of each period of training the Registrar will cause the following information to be entered in the Service Certificates of the ratings concerned:-- (a) Character. (b) Ability in substantive rating held. (c) Fitness to hold non-substantive rating [vide Article 7(c)] The Registrar is to sign the Service Certificate on page 4 as being satisfied that the prescribed training has been carried out and that the man is in possession of his Fleet Reservist Certificate and know where to report on mobilization. 25. Salient points that emerge from the above Regulations, which are of relevance in this case are:-- (a) Sailors having 10 years continuous service shall be liable, if required, for further service in Indian Fleet Reserve, subject to provisions of Regulations for Indian Fleet

27 O.A.No.8 of 2013 : 27 : Reserve (Regulation 269). (b) When an active service rating is within six months of completion of his term of enrollment, the Commanding Officer has to inform the Registrar of Reserves whether or not he is recommended for Fleet Reserve Service and his service certificate is to be endorsed accordingly (Regulation 11 of Fleet Reserve). (c)qualifications have been specified for enrolment into Fleet Reserves. Joining Reserves is not a Right (Regulations 4 and 6 of Fleet Reserves). (d) Recruiting officers are mandated to explain and make the recruits fully understand terms and conditions of service and liabilities before they are enrolled into the Navy (Regulation 264 of Regulations for the Navy). (e) A Fleet Reservist Certificate will be issued to each person on enrolment in Fleet Reserves. 26. It is evident from the Regulations that a Sailor after his active service has to be drafted into Fleet Reserve

28 O.A.No.8 of 2013 : 28 : and it is not an automatic re-enrollment. There is no specific claim or right to join the Fleet Reserve as there are terms and conditions which have to be fulfilled by a person before he can be drafted into Fleet Reserve. It is also evident that, at the time of initial enrollment no recruit can be given any guarantee/promise of his being enrolled into Fleet Reserve as his performance in the active service and recommendations he receives would decide his eligibility for enrollment into Fleet Reserve. Therefore even prior to the promulgation of policy for discontinuance of drafting into Fleet Reserve from 1976, Respondents 1 and 2 were clearly at liberty to decide if a Sailor is to be enrolled into Fleet Reserve or not. In view of the above, we cannot agree with the submission of the learned counsel for applicants that they were made to understand anything else. 27. We will now consider if the principle of promissory

29 O.A.No.8 of 2013 : 29 : estoppel can be applied in this given case against the Government. While explaining the doctrine of promissory estoppel in Motilal Padampat Sugar Mills v. State of Uttar Pradesh (AIR 1979 SC 621), the Apex Court held as follows:...where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relation ship to rise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to do back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any preexisting relationship between the parties or not. 28. In the matter of Bakul Cashew Co. vs. S.T.O. (1986) SCC 365, the Apex Court reiterated the same principle and held as follows: Three principles are evolved in order to protect the applicability of doctrine of promissory estoppel against the government. They are (i) that there was a definite

30 O.A.No.8 of 2013 : 30 : representation by the Government, (ii) that the person to whom the representation or promise was made, in fact altered their position by action upon such representation and (iii) that he has suffered some prejudices sufficient to constitute an estoppel. 29. In the matter of State of Haryana vs. Mahavir Vegetable Oils (P) Ltd., SLP (c) No of 2009, the Apex Court while reiterating the principles laid down in Motilal Padampat Sugar Mills (supra) held that the doctrine of promissory estoppel is an equitable remedy and has to be moulded depending on the facts of each case and not straitjacketed into pigeon holes. The Apex Court further explained that there cannot be any hard and fast rule for applying the doctrine of promissory estoppel but the doctrine has to evolve and expand itself so as to do justice between the parties and ensure equity between the promisor and the promisee. 30. We have to see as to what promise had been made to the applicants and if any promise had been made,

31 O.A.No.8 of 2013 : 31 : whether the same was sufficient to attract the doctrine of promissory estoppel. What is stated by the applicants is that they were enrolled for 10 years of active service and were made to understand that on completion, they had to serve another 10 years in Fleet Reserve. Therefore, according to the applicants, by this fact itself, the respondents were bound by the doctrine of promissory estoppel and had no justification to withdraw therefrom. In our view, the enrolments of the applicants in the aforesaid manner were nothing except that their terms and conditions of service were such as to make them liable to serve in the Indian Fleet Reserve on completion of active service and to make them eligible under Regulation 269 for being transferred to Indian Fleet Reserve. Mere recruitment/enrollment for active as well as reserve service without making any order of transfer to Indian Fleet Reserve under Regulation 269 of the Navy and relevant Regulations of Indian Fleet Reserve cannot be treated to be a complete promise to place the applicants in

32 O.A.No.8 of 2013 : 32 : Fleet Reserve. The question of transfer to Indian Fleet Reserve arises only on completion of active service and not prior to that. As brought out earlier, Regulations lay down conditions to be met during active service to become eligible for enrollment into Fleet Reserve and hence no promise/guarantee can be given at the time of initial enrolment into the Navy of being inducted into Fleet Reserves. Therefore, whatever promise was made at the time of enrolment of the applicants was merely a promise to put the applicants on reserve liability to serve, if required, in Reserves, so as to make them eligible for being transferred to Indian Fleet Reserve under relevant regulations and nothing more. We therefore do not agree with the submissions that mere enrollment for both active and reserve service amounts to a complete promise to transfer the applicants to Indian Fleet Reserve. In view of the above, the principle of promissory estoppel is not applicable in this case.

33 O.A.No.8 of 2013 : 33 : 31. At this juncture it will not be out of context to bring out that a Constitution Bench of the Hon'ble Apex Court in Roshan Lal Tandonkunj Behari vs. Union of India, AIR 1967 SC 1889, had considered the aspects of terms of service of a Government servant and whether it can be unilaterally altered by the Government. The Hon'ble Apex Court held that the terms of service can be altered by the Government and there is no vested contractual right of the Government servant. It was amplified that the legal position of a Government servant is more one of status than of contract and the hallmark of status being a legal relationship of rights and duties imposed by public law and not by mere agreement between the parties. The relevant portion of the judgment is as follows: It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of

34 O.A.No.8 of 2013 : 34 : both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest.

35 O.A.No.8 of 2013 : 35 : In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. 32. The applicants have tried to contend that at the time of discharge, in the Certificate of Service issued to each of them, a period of engagement in Fleet Reserve of 10 years is indicated. Therefore, the applicants were required to be treated as in Fleet Reserve on completion of their normal tenure in active service. In our view, the aforesaid submission has no substance. 33. Page 1 of the Certificate of Service produced by the applicants indicates amongst other details, the period for which they were engaged at the time of enrollment for active service and for Fleet Reserves. The actual details of their service are given at subsequent pages of the Certificate. In all cases a specific date of discharge has been shown, which

36 O.A.No.8 of 2013 : 36 : indicates that their engagement with Navy has expired on that date. Copy of the same documents produced by the respondents indicates additional details such as payment of gratuity and verification of the certificates which were not legible in the copies submitted by the applicants. There is no specific endorsement in any of the Service Certificates submitted by the applicants on their being enrolled into Fleet Reserve, of having undergone reservist training or any recommendations by their Commanding Officers for their enrollment into Fleet Reserve. All such entries were mandated according to regulations in case they were drafted into Fleet Reserve. This is in accordance with Section 17(4) (c) of the Navy Act which states that the full period of service in the Navy and the Indian Naval Reserve Force is to be indicated. It is also pertinent to bring out that as the Certificates were given to them on their discharge from regular service, nobody could in advance have indicated their period of time spent in Reserve Forces. Such an entry

37 O.A.No.8 of 2013 : 37 : could have been made only after they complete their time in Fleet Reserve. Therefore this endorsement on page 1 of the certificate merely indicated their liability at the time of enrolment to be inducted into Fleet Reserve, provided all other terms and conditions in the regulations were met. None of the applicants have also produced any Fleet Reservist Certificate which would have been issued to them had they been enrolled into Fleet Reserve. In our view, therefore, a mere endorsement on page 1 of the Certificate does not prove the claim of the applicants that they served in Fleet Reserve for 10 years on completion of their active service. 34. All these facts and the various provisions of the Act and the Regulations make it amply clear that the applicants were not enrolled into Fleet Reserves. As all the applicants were discharged from service after 1976 when the Government ordered stoppage of drafting into Fleet Reserve,

38 O.A.No.8 of 2013 : 38 : we take the word of the counsel for the respondents that the practice of specific notation in the Certificate of Service of not being drafted into Fleet Reserves was done away with. 35. Section 184 of the Navy Act empowers the Central Government to make regulations on various aspects of Naval Service including conditions of service. Regulation 184A confers powers to give retrospective effect to the Regulations, not earlier than the date of commencement of the Act. The learned counsel for applicants had contended that by amending the Regulations for the Navy retrospectively, the applicants were prejudiced as they were not transferred into Fleet Reserves. In the instant case, the amendments carried out to Regulations for the Navy by SRO.No.106 of 1978 was not with retrospective effect. We have already brought out that applicants were not given any guarantee of being enrolled into Fleet Reserves at the time of their enrolment. What was stated to the applicants at the

39 O.A.No.8 of 2013 : 39 : time of enrolment was merely a promise to put them on reserve liability to serve, if required, in the Reserves so as to make them eligible for being transferred into Indian Fleet Reserves under relevant Regulations. The amendments carried out to the Regulations for the Navy were hence not prejudicial to the applicants. 36. The learned counsel for the applicants had brought out that Sections 19A and 19B of the Navy Act still exists, therefore, the practice of keeping Sailors in Fleet Reserve on completion of their engagement is in force. While we agree that Sections 19A and 19B are still maintained in the Navy Act, they correspond to reinstatement of personnel called for training or actual service in the Navy by their current employers and service rights of any person when called upon for training or actual service. The Government by its order of 1976 and subsequent amendment to Regulations for Navy, have only stopped the practice of

40 O.A.No.8 of 2013 : 40 : keeping Sailors in Fleet Reserve. This in no way contradicts Sections 19A and B of the Navy Act. The said sections have no relevance for claiming pension or otherwise. 37. We do not agree with contentions of the learned counsel for the applicants on the applicability of D.S.Nakara's case (supra). In Nakara's case, the Apex Court had ruled against differentiating pensioners based on their date of retirement and ruled that the liberalized pension scheme should be applicable to all pensioners. However, the Apex Court in Indian Ex-services League vs. Union of India ((1991) 2 SCC 104 clarified that Nakara's case has to be considered as one of limited application and its ambit cannot be held to cover all claims made by retirees for payment of an identical amount of pension to every retiree from the same rank. The Apex Court has held that 'one rank one pension' claim was untenable. In the instant case, the applicants were not eligible or granted pension in

41 O.A.No.8 of 2013 : 41 : the first place and hence cannot claim benefits of ruling in Nakara's case. 38. In our view, the comparison between Apprentice Entry Artificers and Direct Entry Artificers on the basis of Apex Court's decision on Anuj Kumar Dey & anr. vs. Union of India (supra) is also bereft of merit. In Anuj Kumar Deys' matter (supra), the question whether the training period spent as Apprentice Artificer was liable to be taken into account for pension purposes, was involved. The Apex Court rejected the contention of the Government that the training period was to be excluded and accordingly allowed the claim and directed that the training period be also included towards the service, so after such inclusion they became entitled to the service pension equal to 15 years of service. But in the matter of Direct Entry Artificers, no such training period was available as they were directly recruited to the Navy as Direct Entry Artificer from the open

42 O.A.No.8 of 2013 : 42 : market and as such they had no prior service to their credit. It is also significant to state that the Apex Court while extending the aforesaid benefit to Apprentice Entry Artificer, held that the Apprentice Entry Artificers were administered the Oath of Allegiance the day they joined the training and that is why the training period was taken into account for pension purposes. To put it otherwise, in the case of Apprentice Entry Artificers, their period reckonable for pension commences from the date they were given the oath of allegiance as they were already in service, based on the directions of the Hon'ble Apex Court. In this connection Dr.Subba Rao tried to contend that the period spent by applicant Nos.2 to 5 for obtaining Diploma in Engineering was also liable to be taken into account. In our view, the period spent for obtaining educational qualifications, in no circumstances, could be taken into account for computing a service tenure. In our view, in the case of Direct Entry Artificers, their reckonable service commences from the date

43 O.A.No.8 of 2013 : 43 : of entry into the Navy and all the applicants were discharged on completion of 10 years of service. Apprentice Entry Artificers and Direct Therefore, while Entry Artificers do similar jobs from a certain point in time based on the rank held, there is a clear difference in their period of service in the Navy. Thus while Apprentice Entry Artificers become eligible for pension based on 15 years of service, the applicants have only 10 years of service and are therefore not eligible for pension. Neither were any of the applicants enrolled into Indian Fleet Reserves. Therefore, they are also not eligible for any reservist pension or counting of the period in Reserves towards pension. Hence, in our view, there has been no violation of Articles 14 and 16 of the Constitution. 39. T.A.No.41 of 2010 of this Bench is a direction to the Government of India and the three service Headquarters to have the issues raised by Ex-service men considered by

44 O.A.No.8 of 2013 : 44 : an expert Committee for a reasonable and satisfactory solution. It has no direct bearing on this application. 40. For the reasons set out by us herein above, none of the applicants are eligible for pension. As a result, the Original Application fails and is accordingly dismissed without any order as to costs. 41. Issue free copy of the order to both sides. Sd/- Sd/- VICE ADMIRAL M.P.MURALIDHARAN JUSTICE SHRIKANT TRIPATHI MEMBER (A) MEMBER (J) an (true copy) Prl.Pvt.Secretary