ORDER
Vijender Jain, J.
1. Rule.
2. This writ petition can be disposed of at this stage. The petitioner has contended that he was initially employed with the respondents as artificer apprentice in the year 1981. He completed 15 years of service in 1996. However, as per the practice of the respondents the petitioner gave his willingness to further serve with the respondents for a period of four years. The willingness was submitted by the petitioner on 4.4.1995. On the basis of the willingness, the petitioner was allowed to continue for a period of four years till 31st January, 2,000. In the meanwhile, the Supreme Court in Anuj Kumar Dey Vs. Union of India (Civil Appeal No. 1110/92) dated on 28.11.1996, held that the period spent as an apprentice by the employees working with the respondent shall be counted for pensionary benefits. Taking advantage of the Supreme Court decision, the petitioner on 17.7.1997 gave unwillingness certificate to the respondent contending that the prescribed period of re-engagement as per the rules was three years and he would like to be relieved from the service after the stipulated period of three years which expired on 31st January, 1999.
3. Ms. Jyoti Singh, learned counsel for the respondent has contended that the period of re-engagement on which the petitioner has relied is not applicable to the petitioner and in any event of the matter, the petitioner cannot wriggle out of his contractual obligation once he has agreed to be re-engaged for a period of four years.
4. It will be necessary to go through the relevant rules in this regard to sort out the controversy between the parties. Navy Regulation (STR) 17/94 paragraph 9 which deals with re-engagement is as follows :
“9 Period of Re-engagement:
(a) The sailors shall be re-engaged in spells of not exceeding three years and not less than one year provided it is not a course/deputation requirement. However, no sailor shall be re- engaged beyond the age of super annotation as specified in para 10 below.
(b) On completion of pensionable service, the sailors will normally be re-engaged for the following periods:-
(i) In steps of not exceeding 3 years at a time up to 25 years of service after expiry of initial engagement.
(ii) In steps of not exceeding 2 years at a time beyond 25 years of service.
(iii) All sailors of PO or equivalent and above ranks can be re-engaged up to the age of superannuation subject of their eligibility/suitability and service requirements.
(iv) Leadings and below can be re-engaged up to 25 years of service only.
(c) Notwithstanding the above, the sailors of Artificer Cadre and Submarine Branch will be governed by separate re-engagement norms in force time to time. Sailors of Submarine Branch on expiry of initial engagement will be granted further re-engagement in the Submarine Cadre subject to availability of vacancies in the cadre. Otherwise, if re-engaged, they will be reverted to general service. Therefore, at the time of requesting for re-engagement, they are to give an undertaking as per Appendix ‘B’ to this order that in case of submarine Cadre becoming over bone they are liable to be reverted to general service.”
5. On the basis of the aforesaid paragraph 9, Ms. Singh has contended that the petitioner who is an artificer apprentice, paragraph 9 will not be applicable to his case. She has further pointed out that in view of sub-para (c) of paragraph 9, the sailors of artificer apprentice cadre and submarine branch will be governed by separate re-engagement norms in force and in that connection she has relied upon Regulation 268, Navy Regulations Part-III, Chapter XII, which is as follows:
“268. Engagements. – (1) Boys, Artificer Apprentices and Direct Entry sailors shall be enrolled for Continuous Service as provided in sub-regulation (1) of Regulation 269.
(2) Re-enrollment of Continuous Service sailors shall be as provided in sub-regulation (3).
(3) (a) Except as provided in Regulation 270, Continuous Service men who, after completing the period of their initial Continuous Service enrollment, volunteer and are permitted to continue to serve, shall, subject to the provisions of Regulation 269(2), be enrolled by the Captain Naval Barracks, for a period not exceeding that required to complete the service necessary to qualify for the minimum pension. In exceptional cases, however, where the exigencies of the service so warrant, the prior sanction of the Chief of the Naval Staff may be obtained instead for the re-enrollment of the sailor for a period not exceeding 8 years.”
6. From the harmonious reading of the aforesaid regulations, it is manifestly clear that even in the case of artificer apprentice to which category the petitioner belongs, the services of such persons cannot be re-engaged for a period not exceeding that required to complete the service necessary to qualify for the minimum pension. This regulation was inserted in order to provide pensionary benefits which were hitherto not available to the service personnel working with the respondents. In the past, practice was that four years service as an apprentice out of the total engagement of 15 years was not counted towards pensionary benefits. But in view of the change brought on account of authoritative pronouncement by the Supreme Court in Anuj Kumar Dey (Supra) said four years period has now admittedly been started to be counted for grant of pensionary benefits by the respondents. When the purpose of the regulation was to enable the sailors of artificer apprentices branch to be re-engaged without any specific number of years so as to protect their pensionary benefits and in the absence of any other rules or regulations available which determines the maximum or minimum period of re-engagement, for Artificer Apprentice it cannot be said that on account of contractual obligation between the petitioner and the respondent, the rules governing the re-engagement of sailors shall not be applicable to the case of the petitioner. I am also fortified in may reasoning as the same has been so understood by the respondents themselves. On the representation of the petitioner in July, 1997, the Assistant Director Naval Design has written a letter addressed to Commodore, Bureau of Sailors which is at page 20 of the paper-book in the following terms:
“Telephone: 6106120 Ext. 241
Directorate of Naval Design (SDG)
Naval Headquarters,
West Block, 5, R.K. Puram,
New Delhi. 10066
SD 118 Jan 98
The Commodore,
Bureau of Sailors,
Cheetah Camp,
Mankhurd,
Mumbai-400088
RELEASE FROM SERVICE
RP YADAV, SWA-II NO. 191137-B
1. The above mentioned sailor has joined Indian Navy in Jan. 1981 as an artificer apprentice. He as initially engaged for a period of 15 years (till Jan. 96). The sailor further signed for a period of 4 years as per CABS directive to qualify for minimum pensionable service since 4 years of training period wa not counted towards pensionary benefits.
2. However, vide NHQ letter RP/4108/Misc/97 dated 26 Nov. 97 it is understood that the sailor has already completed the requisite period towards pensionable service. It is therefore, requested that the sailor be released from service at the earliest.
Sd/-
(P. Aggarwal)
Lieutenat
Assistant Director Naval Design (SDG)
for Chief of the Naval Staff”
7. From the above letter it is clear that on account of petitioner having got the benefit of service of four years was recommended for release by the respondents themselves.
8. Ms. Singh tried to contend that the discharge sought earlier by the petitioner was mala fide as the same was an afterthought when the petitioner was transferred out of Delhi.
9. I do not find any force in the arguments of the respondent on this count also. The letter written by the petitioner withholding his earlier consent to serve for four years was dated 17.7.1997, whereas the order of transfer of the petitioner at the first instance was made by the respondent in November, 1997. The petitioner, as a matter of fact, having agreed to serve for a period of four years in order to protect his pensionary benefits initially changed his mind on account of the decision of the Supreme Court in Anuj Kumar Dey’s case, which he was entitled to do as period of
four years has been spent by him as apprentice in the total service of 15 years was counted towards pensionary benefits.
10. In view of the discussions above, I allow the writ petition and quash the order dated 20.1.1998 to the extent that the re-engagement once granted cannot be cancelled, in view of the rules as discussed above. The petitioner is presently posted at Kochi. He shall retire from Kochi on 31st January, 1999.
11. With these observations, petition stands disposed of. Rule is made absolute.