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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

 CIVIL     APPEAL     NO.     3617       OF     2012   (Arising out of S.L.P.(C) No.3352 of 2011)

VINOD KULSHRESHTHA ..... APPELLANT

VERSUS

UNION OF INDIA & ORS. ... RESPONDENTS

O     R     D     E     R   

Leave granted.

This appeal is directed against the judgment and  

order passed by the High Court of Delhi in Writ  

Petition (Civil) No.7657 of 1999 dated 20.08.2010. By  

the impugned judgment and order, the High Court has  

dismissed the Writ Petition filed by the appellant  

against the orders passed by the Central  

Administrative Tribunal (for short 'the Tribunal').

The issue that falls for our consideration and  

decision in this appeal is with regard to the  

fixation of pay and other terminal benefits of the  

appellant, pursuant to the Office Memorandums (for  

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short 'O.M.s') dated 31.07.1986 and 20.01.1991.

The facts in nutshell are:

The appellant had joined the Indian Navy as  

Artificer apprentice on 24.1.1971. Subsequently, he  

worked as a sailor. After completing nearly 14 years  

of service, the appellant was discharged from service  

on 31.01.1985. Nearly after four years, the appellant  

was re-employed as Auditor under the Director General  

of Audit, Defence Services.  While in service, the  

Central Government had come out with a beneficial  

O.M. dated 20.01.1991 which prescribed the manner of  

re-fixation of pay of the re-employed ex-servicemen.  

Pursuant to the said O.M., the appellant had  

exercised his option for computing the service in the  

Indian Navy for the purpose of pensionary and other  

monetary benefits. The appellant was further directed  

to deposit gratuity and DCRG received from Naval  

Service. On depositing such amount, the respondents,  

vide order dated 23.9.1991, allowed him to count his  

Naval Service as qualifying service towards his Civil  

Service as Auditor. However, the appellant’s request  

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for re-fixation of his pay was rejected by the  

respondent authorities by their communication dated  

26.6.1996 and 14.05.1997. Being aggrieved by the  

orders so passed by the respondents, the appellant  

had approached the Tribunal by filing an application.  

The Tribunal, by its order dated 17.08.1998 rejected  

the application of the appellant. The appellant,  

aggrieved by the same, preferred a Review Application  

before the Tribunal and the same was also dismissed  

by the Tribunal on 20.09.1999. Disturbed by the said  

orders, the appellant had approached the High Court  

by filing a Writ Petition under Article(s) 226/227 of  

the Constitution of India.  The High Court has  

dismissed the said writ petition and, thereby, has  

confirmed the orders passed by the Tribunal. It is  

the correctness or otherwise of the said orders, is  

the subject matter of this appeal.

We have heard Shri R. Venkataramani, learned  

senior counsel for the appellant and Shri D.K.Thakur,  

learned counsel for the respondents.   

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Shri Venkataramani, learned senior counsel for  

the appellant, would submit that the appellant's  

employment in the Indian Navy from the year 1971 was  

a regular employment, initially as Artificer  

apprentice and, thereafter, as a sailor. He further  

submits that the appellant had worked as a sailor for  

nearly 14 years in the Indian Navy, and he was  

discharged sometime in the year 1985. In aid of the  

aforesaid submission, the learned senior counsel has  

taken us through the discharge certificate issued by  

the competent authority.  The said certificate reads  

as under :

“INDIAN NAVY CERTIFIED RECORD OF SERVICE AND DISCHARGE CERTIFICATE

This is to certify that VINOD KULSHRESHTHA  No.052194-Z, RAK:- CHIEF ELECTRICAL ARTIFICER (POWER)  has served in the Indian Navy from 24.01.1971 to  31.01.1985 as per details overleaf.”   

******

There is yet another certificate issued dated  31.08.1988 and the same reads as under:

“Commodore Vs Bhatnagar, NM 240,C Wing Sena  Bhavan Director of Ex-Servicemen Affairs Naval  Headquarters, Tele: 3015744 New Delhi – 110  

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011 E-mail: desa@nausena.mil.in

31 Aug. '98

Vinod Kulshreshtha, Ex-Chief EAP No.052194-Z  served in Indian Navy from 21.1.1971 to 31.01.85 in  active regular Naval Service.

Sd/- (V.S.Bhatnagar) Commodore”

At this stage, we intend to notice that the  

certificates issued by the respondent authorities  

would demonstrate that the appellant was employed as  

a sailor “in active regular naval service”.  

Therefore, the learned senior counsel is justified  

when he contends that the respondents were not  

justified in rejecting the reasonable claim of the  

appellant for grant of benefits of the O.M.s dated  

31.07.1986 and 20.01.1991.

Per contra, learned counsel appearing for the  

Union of India would submit that since the appellant  

was employed on contractual basis in the Indian Navy,  

he is not entitled to any benefits of the aforesaid  

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O.M.s dated 31.07.1986 and 20.01.1991. In aid of his  

submission, the learned counsel points out the orders  

passed by the respondents dated 26.6.1996 and  

14.05.1997.  When we inquired with the learned  

counsel to give us the letter of appointment of the  

appellant, he is unable to produce the same before  

us.   

Primarily, the respondents have rejected the  

claim of the appellant for grant of benefit of  O.M.s  

dated 31.07.1986 and 20.01.1991 purely on the basis  

that the appellant was not regularly employed in the  

Indian Navy, but he had worked in the Indian Navy  

only on a contractual basis and, therefore, those  

O.M.s cannot be made applicable to him.

A perusal of the certificates issued by the  

responsible and competent respondent authorities  

would clearly demonstrate that the appellant was  

regularly employed in the Indian Navy and he had  

completed 14 years of service “in active regular  

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naval service”. If that be so, it cannot be said that  

the appellant was employed purely on a contractual  

basis and, therefore, he is not entitled to take the  

benefits of the O.M.s issued by the Central  

Government.

The Tribunal as well as the High Court have  

merely proceeded on an assumption that the employment  

of the appellant was on contractual basis and after  

the discharge from the naval service, it cannot be  

said that he was a retrenched employee. This was  

purely an assumption and presumption of the Tribunal  

in arriving at the aforesaid conclusion. In our view,  

in the light of the certificates that were produced  

by the appellant before the Tribunal and since the  

respondent had not produced the letter of appointment  

of the year 1971, in our opinion, one and the only  

conclusion that can be reached is that the appellant  

was employed on regular basis in the Indian Navy. If  

that be so, he would be entitled to all the benefits  

of the aforesaid O.M.s dated 31.07.1986 and  

20.01.1991.

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In that view of the matter, while allowing the  

appeal filed by the appellant, we set aside the  

orders passed by the Tribunal in O.A.No.1584 of 1997  

dated 17.08.1998 and the order passed by the High  

Court in Writ Petition (C) No.7657 of 1999 dated  

20.08.2010. Now we direct the respondents herein to  

extend the benefit of the O.M.s dated 31.07.1986 and  

20.01.1991 to the appellant and pass appropriate  

orders as expeditiously as possible, at any rate,  

within four months from the date of receipt of a copy  

of the order.

In the facts and circumstances, we do not propose  

to impose any costs on the respondents.

Ordered accordingly.

...................J. (H.L. DATTU)

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...................J. (ANIL R. DAVE)

NEW DELHI; APRIL 18, 2012

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