VED PRAKASH Vs U.O.I. .
Bench: T.S. THAKUR,D.Y. CHANDRACHUD,L. NAGESWARA RAO
Case number: C.A. No.-011933-011933 / 2016
Diary number: 13616 / 2013
Advocates: ALOK GUPTA Vs
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
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