Page 1

                                                              Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

VED PRAKASH   ... Appellant (s)

Versus

UNION OF INDIA & ORS  ….Respondent(s)

J U D G M E N T   

L. NAGESWARA RAO, J.

Delay of 13 days in filing the Civil Appeal is condoned.  

Leave to file Appeal granted.   

2. The Appellant joined the Indian Navy as a Direct Entry

Diploma Holder (D.E.D.H.) with an initial engagement of 10

years  as  acting  Electrical  Artificer  4th Class  (EAR-4)  on

01.08.2002.  In the year 2005, the Appellant suffered an

injury while playing Volley Ball due to which he was placed

under “Low Medical Category” S2 A2 (PMT).  He received

intimation on 06.10.2010 that his initial engagement of 10

years would expire on 31.07.2012.  As he was in a Low

1

Page 2

Medical  Category  S2  A2  (PMT),  the  application  for

re-engagement for a further period of 5 years was required

to  be  routed  through  Headquarters  Western  Naval

Command, Mumbai.  

3. The  Commanding  Officer,  INS  Vindhyagiri,  the  fifth

respondent  herein,  recommended  the  Appellant  for

re-engagement for  a period of  5 years to the Flag Officer

Commanding-in-Chief,  Headquarters  Western  Naval

Command, the third respondent herein on 06.10.2010.  In

the  said  letter  dated  06.10.2010,  the  fifth  respondent

appreciated the services of the Appellant as follows:

“Despite  joining  the  ship  recently,  he  has

proved to be instrumental in executing critical defect

rectifications  onboard.   The  sailor  has  gained

confidence  of  his  superiors  to  single  handedly

resolve technical defects.  The Sailor, has also been

observed  to  possess  a  positive  attitude  towards

service,  a  good  military  bearing  and  excellent

leadership  qualities.   The  sailor’s  Training

Particulars in his Service document also reflects his

professional competence in that he topped the EAR

4 ‘Q’ Board scoring 90% marks.  He also attained a

Distinction  grading  during  the  PO  (Leadership)

Course.  

2

Page 3

The  sailor  is  worthy  of  re-engagement  in

service, and has been observed to posses the will to

aspire and grow in service”.  

    4. The  third  respondent  examined  the  request  of  the

Appellant  for  re-engagement  and  recommended  him  for

consideration  to  the  Commodore,  Bureau  of  Sailors,

Mumbai,  the  fourth  respondent  herein.  The  fourth

respondent by a FAX message dated 29.11.2010 intimated

the fifth respondent that the Appellant could be considered

for re-engagement for a period of 2 years only.  It was also

stated that the Appellant would be considered for further

re-engagement subject to suitability.  The reasons given by

the fourth respondent for  re-engagement for only 2 years

and  not  5  years  as   requested  by  the  Appellant  are  as

under:

“(A) THE SAILOR WAS IN MEDICAL CATEGORY S3

A2 FROM 2006-2009. HE HAS BEEN UPGRADED

TO S2 A2 (P) (PMT) CATEGORY IN DEC 2009 ONLY.  

(B) HAS  SERVED  IN  AFLOAT  BILLETS  FOR  A

VERY LIMITED PERIOD AND ON UPGRADATION TO

S2  A2  (P)  (PMT)  MEDICAL  CATEGORY,  HE  HAS

BEEN POSITIONED ONBOARD IN AUG 2010 ONLY.

3

Page 4

(C) THE PREVIOUS RECORD OF THE SAILOR IS

ALSO  INDICATIVE  OF  LACK  OF  DESIRED

DISCIPLINE/CONDUCT ATTRIBUTES.

(D) CHEAR  ‘Q’  COURSE  OF  THE  SAILOR  HAS

BEEN  CANCELLED  ON  NUMEROUS  OCCASION

DUE TO LMC/DOMESTIC REQUIREMENTS.”     

5. The  Appellant  requested  the  fifth  respondent  for

clarifications  on  re-engagement  by  a  letter  dated

21.02.2011.  It was forwarded to the fourth respondent on

06.04.2011.   The  Appellant  also  submitted  a  request  for

redressal of grievance of re-engagement for further service

for a period of 5 years to the Chief of Naval Staff, the Second

Respondent herein.   The said redressal of grievance was

forwarded  to  the  Directorate  of  Personnel  and  Integrated

Headquarters, Ministry of Defence (Navy).  The redressal of

grievance was disposed of on 15.02.2012 by stating that the

Appellant  had no right  of  re-engagement.   It  was further

stated in the said letter dated 15.02.2012 that the Appellant

ought  to  have  exercised  his  option  for  2  years

re-engagement and sought for further extension later on.  

6. The Appellant approached the Armed Forces Tribunal,

Mumbai by filing Original Application (O.A.) No. 11 of 2012

4

Page 5

assailing  the  proceedings  dated 15.02.2012 by  which his

redressal  of  grievance  was  rejected.    He  also  sought  a

direction to the Respondents to approve his re-engagement

for  5 years.    By an order  dated 04.02.2013,  the  Armed

Forces Tribunal dismissed O.A. No. 11 of 2012.   It was held

by the Armed Forces Tribunal that re-engagement cannot

be  claimed  as  a  matter  of  right  and  the  period  of

re-engagement was at the discretion of the authorities.   The

Tribunal  also  held  that  there  was  no  error  in  the

re-engagement of the Appellant for 2 years with an option

for  further  re-engagement.   The  Appellant  filed  an

application under Section 31 of the Armed Forces Tribunal

Act,  2007 seeking  leave to  Appeal  to  the  Supreme Court

which was rejected on 04.02.2013.  Aggrieved by the said

order dated 04.02.2013, the Appellant has filed the above

Appeal.  

7. We have heard Mr. Sukhjinder Singh, Advocate for the

Appellant and Mr. Neeraj Kishan Kaul, learned Additional

Solicitor General (ASG) for the Respondents.  The learned

counsel  for  the  Appellant  submitted  that  the  grant  of

re-engagement  of  Direct  Entry  Diploma Holder  Sailors  is

governed by a Policy dated 21.11.2006.  He contended that

5

Page 6

the  re-engagement  has  to  be  granted  for  5  years  till

completion of 15 years of service in accordance with Navy

Order  (STR)  17  of  1994.  He  drew our  attention  to  Navy

Order (STR) 02/07 which according to him replaced Navy

Order (STR) 17/94.  The learned counsel referred to para 4,

5, 9 and 11 of the said Navy Order which will be dealt with

in detail later.  He also referred to the annual assessment of

the Appellant for the years 2002-2009 which showed that

his character was very good and his efficiency was superior

throughout.   The learned counsel for the Appellant relied

upon the strong recommendation made in his favour by the

fifth respondent for re-engagement for 5 years which was

approved by the third respondent.  He also urged that the

decision of the fourth respondent to grant re-engagement

for 2 years only is contrary to the Policy dated 21.11.2006

and Navy Order 02/07.

8. Mr. Neeraj Kishan Kaul, learned ASG, submitted that

the  Appellant  has  no  right  to  claim  that  he  should  be

re-engaged for a period of 5 years.  He submitted that the

Appellant  should  have  accepted  the  re-engagement  for  2

years, especially when he was given an option for further

extension  after  the  expiry  of  2  years.   The  learned  ASG

6

Page 7

contended  that  the  Appellant  worked  on  sea  for  a  short

period  of  one  year  only.  He  further  submitted  that  the

Appellant did not satisfy the conditions for re-engagement

as laid down in Navy Order 02/07.   The learned ASG also

stated that the Appellant repeatedly refused to undergo the

CHEAR (Q) Course.  

9. The policy dated 21.11.2006 provided as under:

“1.  The DEDH Sailors  have been recruited

with an initial period of engagement of 10 years.

DEDH Sailors will be eligible for re-engagement in

accordance  with  NO  (STR)  17/94  as  amended

from time to time.  

2. The re-engagement is to be granted for 5

years till  15 years’  of  service and thereafter  in

accordance with NO (STR) ibdi.”

Navy Order 02/07 governs the re-engagement of Sailors.

The initial  period of  enrolment of  a Direct Entry Diploma

Holder is 10 years and he can be re-engaged if he fulfils the

conditions as per para 4 of the Navy Order which are as

under:

“(a) Out of three annual assessments immediately

preceding.  Re-engagement he must have at least

two  assessments  of  character  and  efficiency  not

below “VG” and “SAT” respectively.

7

Page 8

(b) Must  have  been  recommended  by  the

Commanding Officer as suitable in all respects.  

(c) Must  have  been  declared  medically  fit  for

satisfactorily  carrying  out  the  duties  required  of

him.

(d) The  manpower  requirements  of  the

service/cadre must warrant his re-engagement.”

10. Para  5  provides  that  a  final  decision  regarding  the

re-engagement  will  be  taken  on  the  basis  of  the  overall

performance  of  the  Sailor  during  his  entire  service  as

reflected  by  the  factors  mentioned  therein.    The

Commodore,  Bureau  of  Sailors  is  the  authority  to  grant

re-engagement.   According  to  para  9  (a)  and  (b),  the

re-engagement  shall  not  be  less  than  2  years  and  not

exceed 5 years.   Para 9 (c) of the Navy Order is as under:

“Not-withstanding  the  above  the  sailors  of

Artificer  Cadre  and  Submarine  Branch  will  be

governed  by  separate  re-engagement  norms  in

force  from  time  to  time.   Sailors  of  Submarine

Branch, on expiry of initial  engagement, will  be

further  re-engagement  in  the  Submarine  Cadre

subject to availability of vacancies in the cadre.

Otherwise, if re-engaged, they will be revered to

general  service.  Therefore,  at  the  time  of

8

Page 9

requesting for re-engagement, they are to give an

undertaking as per Appendix ‘B’ to this order that

in case of Submarine Cadre becoming overborne

they are liable to be reverted to general service.”  

The procedure to be followed for re-engagement under Low

Medical Category is dealt with in para 11 which provides

that Sailors in permanent Low Medical Category below S2

A2 will not normally be given re-engagement.  

11. It is clear from para 9 (c)  of the Navy Order 02/07 that

the  Sailors  of  Artificer  Cadre,  to  which  the  Appellant

belongs, will be governed by separate re-engagement norms

in force from time to time.  On being asked to show the

norms  applicable  to  Sailors  of  Artificer  Cadre,  counsel

appearing for both sides submitted that there are no such

norms.  The non obstante clause in para 9 (c) suggests that

the  conditions  prescribed  for  re-engagement  will  not  be

applicable  to  Sailors  of  Artificer  Cadre.   As no norms as

contemplated  in  para  9  (c)  have  been  framed,  the

re-engagement of Sailors of Artificer Cadre will have to be

necessarily governed by the Policy dated 21.11.2006.  The

Appellant  would  be  entitled  to  be  considered  for

re-engagement  for  5  years  till  he  completes  15  years  of

9

Page 10

service  as  per  the  Policy.   The  decision  of  the  fourth

respondent dated 29.11.2010 re-engaging the Appellant for

2 years is liable to be set aside on this ground alone.  

12. The learned counsel for the Appellant and the learned

ASG have made their submissions on the basis that Navy

Order  02/07  is  applicable  to  the  re-engagement  of  the

Appellant.   We  proceed  further  to  examine  whether  the

decision of the fourth respondent is justifiable applying the

norms  as  per  the  Navy  Order  02/07.  The  conditions

mentioned in para 4 of Navy Order 02/07 are that 2 out of 3

annual  assessments should not  be below very good,  that

the  Commanding  Officer  should  have  recommended  the

Sailor as suitable in all respects, the Sailor must have been

declared medically fit and that the manpower requirements

of  this  service  should  warrant  his  re-engagement.    The

annual  assessments  of  the  Appellant  show  the  grade  of

‘Very  Good’  character  from  2002-2009  and  ‘Superior

Efficiency’ from 2004-2009.  The Commanding Officer made

a  strong  recommendation  for  re-engagement  of  the

Appellant for a period of 5 years.  The Appellant was also

found  medically  fit  by  being  upgraded  to  S2  A2  (PMT)

Category in December, 2009.  His overall performance was

10

Page 11

found to be very good as per the recommendation of  the

Commanding Officer dated 06.10.2010.   

13. One of the reasons given by the fourth respondent in

the decision dated 29.11.2010 is that the Appellant was in

medical category S3 A2 from 2006-2009 and was upgraded

to S2 A2 (PMT) only in December, 2009.  As per para 11 of

Navy Order 02/07, re-engagement of Sailors in permanent

low category below S2 A2 will not be made normally.  The

Appellant is in medical category S2 A2 (PMT) and as such

does not suffer any disqualification.  The fourth respondent

also held that  the Appellant served in Afloat  Billets for a

very limited period and that he has been positioned onboard

only in August, 2010.  The learned counsel for the Appellant

submitted that due to his being in low medical category he

was not  sent  for  duty at  sea for  a long period.   He also

stated that the Appellant served for three and half years out

of 10 years at sea which cannot be said to be a short period.

The learned ASG submitted that the Appellant served only

for one year at sea which is a very short period for a Sailor.

No  norms  showing  the  minimum period  of  service  to  be

spent by a Sailor at sea were placed before us.  The Navy

Order  02/07  also  does  not  provide  for  any  such

11

Page 12

prescription.  It is relevant to refer to the recommendation

dated 06.10.2010 of  the  Commanding  Officer  who stated

that the Appellant proved to be instrumental in executing

critical defect rectifications onboard though he joined the

ship recently.  The Appellant appears to be an efficient hand

and he ought to have been given re-engagement for 5 years.

The Commanding Officer further stated that the Appellant

possesses  excellent  professional  knowledge  and  he  has

gained the confidence of his superiors for single handedly

resolving technical  defects.    The Appellant’s  professional

competence was found to be outstanding apart from the fact

that he topped the EAR 4 ‘Q’ Board by scoring 90 % marks.

14. Another reason given by the Fourth Respondent is that

the Appellant did not complete the CHEAR ‘Q’ Course due

to  low  medical  category/  domestic  requirements.  We

perused the record to verify the reasons for the Appellant

not taking CHEAR ‘Q’ Course.  On one occasion he did not

opt to take the course due to the serious illness of his wife.

He was not sent for the course on four occasions due to his

placement  in  the  low  medical  category.   The  Appellant

cannot be accused of intentionally avoiding the course.  In

view of the above, the Appellant satisfies the conditions for

12

Page 13

re-engagement in para 4 of Navy Order 02/07.  The fourth

respondent  ought  to have re-engaged the  Appellant  for  5

years by giving importance to the recommendations of the

fifth  and  third  respondents.   As  mentioned  above,  the

Appellant’s performance was found to be outstanding.   

15.  The  Appellant  completed  the  period  of  10  years  of

initial  appointment  on  31.07.2012.   He  has  not  been

working thereafter.  In the facts and circumstances, we are

of the opinion that the Appellant is entitled for addition of 5

years of notional service to the period of 10 years which he

has  already  served  for  the  purpose  of  being  eligible  for

pensionary benefits.  He will not be entitled for salary and

allowances for the said period of 5 years.  The Appellant

shall be entitled to claim all service benefits to which he is

entitled by being treated as having completed 15 years of

service.

16. Before parting with this case, it is necessary to refer to

the casual manner in which the Navy Order pertaining to

re-engagement of Sailors is made.  The norms referred to in

para  9  (c)  of  the  Navy  Order  02/07  which  govern  the

re-engagement of Sailors of Artificer Cadre do not exist.  The

first respondent should ensure that the lacuna is removed

13

Page 14

at  the  earliest  by  either  making  separate  norms  as

mentioned  in  para  9  (c)  of  Navy  Order  02/07  or  by

amending the Navy Order suitably.

17. The Appeal is disposed of with the above directions.       

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

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

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

New Delhi, December 8, 2016

14