JUDGMENT
Vikramajit Sen, J.
1. In these Petitions under Article 226 of the Constitution it has been prayed that a writ of Mandamus be issued directing the Respondents to release the Petitioner immediately, with full terminal benefits including pension, gratuity, provident fund etc. The Petitioner has been working at the post of CHEAA as a ‘Sailor’ in the Indian Navy in the cadre of ‘Artificers’ with effect from 13.1.1984. The Engagement was effective for a period of fifteen years. Initially, their training period of four years as an ‘Artificer Apprentice’ was not included within this period of fifteen years. However, in the Anuj Kumar Dey v. Union of India, , the Hon’ble Supreme Court had held that the training period of four years which had necessarily to be undergone by the sailor should be included within this period of fifteen years. Before the passing of this judgment the position would have been that since the Petitioner had joined the Indian Navy on 13.1.1984, he would have remained as an Apprentice up to 12.1.1988 and would mandatorily have had to serve the Indian Navy for a further period of fifteen years ending on 12.1.2000. The impact of the judgment is that the apprentice period is now to be included in the fifteen years period and, therefore, the Petitioner would be entitled to demand a release from the Indian Navy on 13.1.1999.
2. It has been explained by Learned Counsel for the Petitioner that though the Petitioner had himself applied for Re-engagement, this action was predicated on the Respondents’ mis-representation that he would be entitled to pension etc. only after 12.1.2003. At that time, the Petitioner has alleged that he was not aware of the ruling in Anuj Kumar Dey’s case (supra) otherwise he would not have applied for Re-engagement. Reliance is also placed on the case of Azad Singh Ruhil v. Union of India and Anr., C.W.P. 3635/1998, in which a similar prayer was granted by Orders dated January 28, 1999. It is argued that in the said Petition, the Petitioner had similarly applied for Re-engagement so as to earn pension. However, Shri Ruhil had refused to sing the AGREEMENT FORM FOR PENSION SERVICE – IN 441(A) and instead signed the CERTIFICATE OF UNWILLINGNESS FOR FURTHER SERVICE ON 20.11.1007. This Release Order was specifically noticed by the Hon’ble Supreme Court in Union of India v. R.P. Yadav, . The Respondents had adopted the argument that since IN 441(a) had not been singed the case was distinguishable from the case of R.P. Yadav (supra) as well as that of Raj Kumar v. Union of India and Ors., . The Hon’ble Supreme Court and observed that no appeal had been preferred and Ruhil had been released. The Appellant Navy had submitted a Note in R.P. Yadav’s case, (supra) after the arguments had been completed and judgment reserved, to the effect that since Ruhil had not signed the contract of Re-engagement, as Raj Kumar had, they had decided not to prefer an appeal. Justice Ruma Pal in the minority judgment had observed that the argument was specious in view of the fact that in the Counter Affidavit in Ruhil’s case, the Indian Navy had maintained that once the offer made for Re-engagement by the Sailor was accepted by the Appellants, the contract was complete and could not be rescinded. It is this argument that has been resurrected and reiterated on behalf of the Indian Navy by their Learned Counsel Ms. Jyoti Singh. Interestingly, both Counsel for the parties have relied on the judgment in R.P. Yadav’s case (supra).
3. It may briefly be recounted that under Section 16 of the Navy Act 1957 a Sailor is entitled to be discharged on the expiration of the term of service for which he is engaged, which in the present case would be fifteen years inclusive of the four years of apprenticeship, that is, 12.1.1999. The minimum qualifying service for pension under Regulation 78 of the Service Pension and Gratuity Pension Regulations (Navy), 1964, is fifteen years. Ms. Jyoti Singh has proffered the argument that having invested a large sum of money on the training of the Petitioner, it would be detrimental to the interest of the Indian Navy to permit an early release of a sailor such as the Petitioner. However, the language of the Act and the Orders passed thereupon indicate to the contrary, since a sailor is not expected to seek a discharge after the period of fifteen years but as per Rule 6 of Naval Orders 17 of 1994 issued by the Chief on Naval Staff, he has to exercise his option for Re-engagement for further service, on receipt of Expiry of Engagement Serial from CABS. As I see it, the assumption is that after the period of Engagement (fifteen years), the sailor would ordinarily be released from service. Thereafter, Rule 7 casts an obligation on the commanding Officer etc. to ensure that orders of Re-engagement are obtained in time. Rule 7-C states that recommendations for Re-engagement in all cases are to be forwarded to the Commodore Bureau of Sailors, Bombay, in duplicate on the Proforma at Appendix ‘A’. As the expiry of Engagement Serial is published by CABS 24 months in advance the recommendations for Re-engagement of sailors are to reach CABS well in time, but not later than 16 months prior to the date of release. In the present case, the Petitioner had duly applied for Re-engagement in Appendix ‘A’ and was medically examined and found fit on 1.7.1997 and the period of Re-engagement was recommended by the Commanding Officer for four years on 16th July, 1997.
4. The contention of Mr. Bhagat, Learned Counsel for the Petitioner is that the Agreement of Re-Engagement remained inchoate till such time as IN 441(a) had been duly signed by the Petitioner. On the contrary, Ms. Jyoti Singh’s contention is that as soon as the recommendation of the Commanding Officer is accepted, under Rule 18, the engagement will not be cancelled and the sailor will be required to serve up to the period that he is reengaged for. Thereafter, reliance is placed by her on Rule 19 which reads as follows:
“Completion and return of IN 411(a). After the re-engagement of a sailor has been approved by the competent authority, Commodore, Bureau of Sailors is to ensure that the IN 441(a), Agreement Form for Re-engagement for Continuous Service is forwarded to the Ship/Establishment concerned for completion and return. On receipt of competed IN 441(a) from the unit, all details are to be verified by the Commodore Bureau of Sailors and IN 441(a) kept in the sailors record.”
5. It is contended on behalf of the Respondents that this Rule had been explained by the Commodore, Deputy Director of Personnel (5) for Chief of the Naval Staff in the letter dated 13th February, 1998 to the Commodore, Bureau of Sailors, Mumbai, in which it had been emphasised that the cases of Sailors whose Re-engagement Form had been accepted by BACS/NHQ may be communicated by signal so that the communication by the Navy is compete without delay and that this should be done immediately after acceptance and that the formality of IN 441(a) may be competed subsequently. In the present case re-engagement was approved by CABS on 19th August, 1997. There is substance in the argument that the completion of the contract for Re-engagement is not dependent on the IN 441(a), which in essence is only a formality.
6. In the majority judgment in R.P. Yadav’s case (supra), it was observed as follows:-
“An incidental question that arises is whether the claim made by the respondents to be released from the force as of right is in keeping with the requirements of strict discipline of the Naval Service. In our considered view the answer to the question has to be in the negative. To vest a right in a member of the Naval Force to walk out from the service at any point of time according to his sweet will is a concept abhorrent to the high standard of discipline expected of members of defense services. The consequence in accepting such contention raised on behalf of the respondents will lead to disastrous results touching upon security of the Nation. It has to be borne in mind that members of the defense services including the Navy have the proud privilege of being entrusted with the task of security of the Nation. It is a privilege which comes the way of only selected persons who have succeeded in entering the service and have maintained high standards of efficiency. It is also clear from the provisions in Regulations like Regulation 217 and 218 that persons who in the opinion of the prescribed authority, are not found permanently fit for any form of naval service may be terminated and discharged from the service. The position is clear that a sailor is entitled to seek discharge from service at the end of the period for which he has been engaged and even this right is subject to the exceptions provided in the Regulations. Such provisions, in our considered view, rule out the concept of any right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement as the case may be. Such a measure is required in the larger interest of the country. A sailor during the 15 or 20 years of initial engagement which includes the period of training attains a high degree expertise and skill for which substantial amounts are spent from the exchequer.
Therefore, it is in the fitness of things that the strength of the Naval Force to be maintained is to be determined after careful planning and study. In a situation of emergency the country may ill afford losing trained sailors from the force in such a situation if the sailors who have competed the period of initial engagement and have been granted re-engagement demand release from the force and the authorities have no discretion in the matter, then the efficiency and combat preparedness of the Naval Force may be adversely affected. Such a situation has to be avoided. The approach of the High Court that a sailor who has competed 15 years of service and thereby earned the right of pension can claim release as a matter of right and the authority concerned is bound to accept his request does not commend us. In our considered view, the High Court has erred in its approach to the case and the error has vitiated the judgment.”
7. As has been mentioned above, Mr. Bhagat, Learned Counsel appearing for the Petitioner has argued that this decision is in his favor for the reason that the re-engagement process had been competed by the execution of Form IN 441(a) by the Sailors, unlike in the present case and in the case of Azad Singh Ruhil, who has already been released. It is submitted that since the Petitioner’s case is on all fours with that of Ruhil, it would be unfair not to grant the Petitioner his release. Subsequent to the decision of the Hon’ble Supreme Court in R.K. Yadav’s case (supra), the only question which may fall for further consideration is whether it would be open to the Petitioner to argue that non-completion of IN 441(a) is mandatory for Re-engagement to come into effect.
8. Reliance is placed on Section 19 of the Contract Act. It is the Petitioner’s contention that he had applied for Re-engagement because of a statement in the Expiry of Engagement Serial dated 28th January, 1997 to the effect that on 13.1.1999, the Petitioner had only eleven years of service, meaning thereby that another four years would have to be put in for earning terminal benefits. Mr. Bhagat vehemently argues that this statements was wholly incorrect in view of the clarification that had already been made by Hon’ble Supreme Court in Anuj Kumar Dey’s case (supra). Had the Respondents indicated in this documents that the Petitioner had already competed fifteen years of service, in consonance with the judgment of the Supreme Court in Anuj Kumar Dey’s case (supra), the Petitioner would not have applied for the Re-engagement. This argument is undoubtedly attractive. However, the first exception of Section 19 itself adumbrates that if such consent was caused by fraudulent mis-representation, the contract nevertheless is not voidable, if the parties whose consent was so caused had the means of discovering the truth with ordinary diligence. Ms. Jyoti Singh argues that the Judgment in Anuj Kumar Dey’s case (supra) was well-known to all Sailors and, therefore, it would be too harsh to treat the Respondents’ action as a mis-representation, and even if so viewed, as obliterating the possibility of the Petitioner having knowledge of the said judgment of the Supreme Court.
9. Having considered the entire case in all its ramifications and complexions, I am unable to grant the prayer contained in the Petition. It is too sanguine to expect that the Petitioner had been induced by the Respondents to apply for Re-engagement, unmindful of the decision of the Hon’ble Supreme Court. It is significant that although his request for being released from the service of the Indian Navy was rejected on 6.4.1998 he has approached this Court after one year had elapsed. This indicates that the Petition was an after-thought and was based, in considerable measure, on the outcome in Azad Singh Ruhil’s case (supra). I am also of the opinion that once a Sailor’s application for Re-engagement in Appendix ‘A’ has been accepted by the Navy, the Agreement stands competed and that, the execution of IN 441(a) is a mere formality. Very recently, a similarly view had been taken by the Hon’ble Division Bench in LPA 408/2001 in terms of the Orders dated September 10, 2001. It observed as follows:-
“The appellant joined the Indian Navy as a MER (Metric Entry Recruitment) in the mechanical branch. The period of initial engagement of the appellant expired on July 9, 1999. Before the expiry of that period the appellant exercised the option for re-engagement for a further period of five years. He singed the requisite agreement and by virtue of that agreement his term of re-engagement will come to an end on July 31, 2004. Before the expiry of the period of re-engagement the appellant made a request for withdrawal of his option of re-engagement and cancellation of the order. The request was rejected. The appellant being aggrieved by the order of rejection filed the writ petition from which the present appeal arises.
Learned counsel appearing for the appellant submits that the scheme under which the appellant agreed for re-engagement has not been approved by the All India Central Training Establishment so far. It may be so, but the fact that the appellant had agreed for re-engagement for a period of five years binds the appellant. A Sailors who has been re-engagement cannot claim as a matter of right cancellation of his re-engagement and release from the force. We are supported in this view by a decision of the Supreme Court in Union of India and Anr. v. R.P. Yadav, Civil Appeal No. 3345 of 2000, decided on May 10, 2000, and decision of the Division Bench of this Court in Raj Kumar v. Union of India, C.W.P. No. 5629/99. decided on January 16, 2001.
We do not find any infirmity in the orders of the learned Single Judge. Accordingly, the appeal fails and is hereby dismissed.
10. The Petition is without merit and is dismissed.