Anuj Kumar Dey vs Union Of India - 1996 Supreme(SC) 2037

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(SC) 2037

1996(8) Supreme 605
SUPREME COURT OF INDIA
J.S. Verma and Suhas C. Sen, JJ.
Anuj Kumar Dey & Anr. -Appellants
versus
Union of India & Ors. -Respondents
Civil Appeal No. 1110 of 1992
With
(Writ Petition (C) No. 831 of 1993 & Writ Petition (C) Nos. 293, 752 & 601 of 1994)
All Decided on 28-11-1996
Counsel for the Parties :
For the Appellants in C.A. No. 1110/92 : G.D. Gupta, and Ashok K. Mahajan, Advocates.
For the Petitioners in W.P. Nos. 81/93, 293, 752 and 601/94 : K.G. Bhagat, M.S. Bakshi, G.G. Singh, K.K. Baid, S.S. Dahiya, A.R. Khan, Ranbir Yadav, Debasis Mishra, Advocates.
For the Respondents : Ms. Niranjana Singh, Advocate for Ms. Anil Katiyar, Advocate, (Ms. Sushma Suri), Advocate (NP).

Headnote:Navy Act, 1957-Sections 3, 9, 10, 12, 14, 16, 17-Navy (Pension) Regulations, 1964-Appellant joined Indian Navy as Artificer Apprentice in August, 1971-On 17th August, 1971, statutory oath of allegiance was administered to him-In 1975 his training as Artificer Apprentice was over-In Jan., 1988, appellant was released from Navy-Entitlement of appellant to get pensionary benefits for his service under Navy-Claim made that his service in Indian Navy must be calculated from August, 1971-Whether appellant can be regarded as Sailor ?-(Yes)
       Held, statutory provisions go to show that a person can join Indian Navy as an officer or a sailor. An officer and a petty officer have been defined in sub-sections (16) and (17) of Section 3 and any person who is other than an officer and is in naval service has been defined as a sailor. The appellant was not an officer. He had joined Indian Navy and immediately after his enrolment he was made to take oath which every officer and every sailor under Section 13 is bound to take. Moreover, Regulation 261 clearly lays down that recruitment of sailors shall be made through boy entry, artificer apprentice entry and direct entry as officer. Therefore, the fact that the appellant was enrolled as an Artificer Apprentice, does not in any way go to show that he was not a sailor and was not serving the Navy as a sailor. (Para 6)
       The qualifying period for earning pension is service of 15 years under the Navy. Having regard to the facts of the case and the documents annexed to the appeal, there is little doubt that the training period as Artificer Apprentice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that 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. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Artificer Vth Class. (Para 11)
       In the details that had been given along with the Discharge Certificate, it has been mentioned that "joined on 12th August, 1971. Released on 31st January, 1988." The Date of Attestation in the Indian Navy is given as "17th August, 1971 (Oath of allegiance taken)". This is a certificate given by the Indian Navy in accordance with requirement of Section 17. (Para 12)

JUDGMENT

Sen, J.-Anuj Kumar Dey, the appellant herein, joined Indian Navy as Artificer Apprentice on 12th August, 1971. On 17th August, 1971 the statutory oath of allegiance was administered to him. He claims that his service in the Indian Navy must be calculated from that date, that is, 17th August, 1971. On 11th August, 1975 the appellant s training as Artificer Apprentice was over. Immediately thereafter, he was advanced to Electrical Artificer Vth Class on 12th August, 1975. Various promotions were given to the appellant thereafter from time to time. On 31st January, 1988 the appellant was released from the Navy. The dispute in this case is about the entitlement of the appellant to get pensionary benefits for his service under the Navy. According to the appellant, he has served the Navy for more than fifteen years which must be counted from 17th August, 1971 when he was administered oath of allegiance. According to the respondents, the four years spent by the appellant as Artificer Apprentice was training period only and, therefore, the service of the appellant commenced only on 12th August, 1975 when he was appointed Electrical Artificer Vth Class, after completion of his training as Artificer Apprentice on 11th August, 1975. The question is whether this period of four years, 17.8.71 to 11.8.75 during which the appellant was undergoing training as Artificer Apprentice under the Navy, should be counted in the period of service rendered by the appellant.

2. Before going into the merits of the case, it will be necessary to refer to the relevant provisions of the Navy Act, 1957 and also to some of the Regulations framed under the said Act :-

THE NAVY ACT, 1957

CHAPTER - I

Preliminary

3. In this Act, unless the context otherwise requires :-

... ... ... ...

(16) officer means a commissioned officer and includes a subordinate officer but does not include a petty officer;

(17) petty officer means a sailor rated as such and includes a chief petty officer and a master chief petty officer

(20) sailor means a person in the naval service other than an officer;

CHAPTER - IV

Commissions, Appointments and Enrolments

9. (1) No person who is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government :

... ... ... ....

10. (1) Officers other than subordinate officers shall be appointed by commission granted by the President.

... ... ... ...

(3) Subordinate officers shall be appointed in such manner and shall hold such rank as may be prescribed.

11. (1) Save as otherwise provided in this Act, the terms and conditions of service of sailors, the person authorised to enrol for service as sailors and the manner and procedure of such enrolment shall be such as may be prescribed.

(2) No person shall be enrolled as a sailor in the Indian Navy for a period exceeding twenty years in the first instance;

... ... ... ...

12. Where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as a sailor, he shall be deemed to have been duly enrolled and shall not thereafter be entitled to claim his discharge on the ground of any irregularity or illegality in his engagement or any other ground whatsoever; and if within the said three months such person claims his discharge, no such irregularity or illegality or other ground shall, until, such person is discharged in pursuance of his claim affect his position as a sailor in the naval service or invalidate any proceedings act or thing taken or done prior to his discharge.

13. Every officer and every sailor shall, as soon as may be, after appointment or enrolment make and subscribe before the commanding officer of the ship to which he belongs, or the prescribed officer on oath or affirmation in the following form that is to say :-

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