R.L Yadav vs Union Of India And Others

Aggrieved by the order of the respondents granting pension to them in the rank of Seaman and not in the ranks of Master Chief Petty Officer-I and

Master Chief Electrical Artificer-I respectively, the applicants, Ex Lt R,L. Yadav and Ex Lt R.P. Yadav, who were enrolled in the Indian Navy as

Sailors and subsequently selected for commissioning as Officers, who have combined service as Sailors and Officers of more than 15 years, but less

than 20 years at the time of their discharge from service in the rank of Lieutenant, have filed the instant 0.A with a prayer that they be granted

pension in the rank of Master Chief Petty Officer -I and Master Chief Electrical Artificer-I respectively in terms of Regulation 156(a) and (b) of the

Regulations for the Navy (Part III Statutory) (the Regulations, in short) read with Section 3(5)(16) of the Navy Act, 1957 (the Act, for brevity) and

the relevant decisions of the Hon'ble Supreme Court and the Delhi High Court, and also that they be granted honorary rank of Lieutenant.

Heard the learned counsel for both the sides and perused the pleadings and the documents on record.

Learned counsel for the applicants submits that the first applicant (Ex Lt R.L. Yadav), who was enrolled in the Navy on 19.10.1963 as a Sailor

(Sea I), was commissioned directly as a Sub Lieutenant on 09.03.1970 as a Short Service Commissioned (SSC) Officer and discharged in the rank of

Lieutenant on 15.10.1978 (total 15 years, 01 month and 26 days of service). The second applicant (Ex Lt R.!). Yadav), who was enrolled in the Navy

as an Artificer Apprentice on 14.01.1985 and was promoted to the rank of Electrical Artificer (Radio) - was commissioned as a Sub Lieutenant on

01.04.1997 and discharged from service in the rank of Lieutenant on 04.06.2003 (total 18 years, 04 months and 18 days of service).

Referring to Regulation 156(a) and (b) of the Regulations, learned counsel for the applicants contends that the applicants, who had more than 15

years (but less than 20 years) of clubbed service as Sailors and Officers, should have been paid pension in the highest rank as a Sailor (referred to as

Chief Petty Officer in the Regulations), which was the highest rank when the Regulations were promulgated viz. MCPO -I and equivalent when they

were discharged from service. The said Regulation is reproduced as under:

Promotion of Officers Ex-Lower Deck,

(a) (i) Confirmation in the rank of Sub-Lieutenant.-- Subject to satisfactory completion of professional courses and recommendation,

officers shall be confirmed in the rank of Sub-Lieutenant on completion of one year's service in the rank of Acting SubLieutenant with the

seniority of date of promotion to that rank.

(ii) An acting Sub Lieutenant who on completion of one year's service as such is not recommended for confirmation in his rank for reasons

of nation or for misconduct, shall be given the option of discharge from the service under the provisions of the existing rules in respect of

subordinate officers of the Indian Navy withdrawn from training or of reversion to the lower deck. In the event of reversion, he shall revert

to the Chief Petty Officer's rating unless his reversion is due to misconduct not meriting discharge from service in which case he is to revert

to his former rank.

(iii) The time served as Acting Sub-Lieutenant, shall, if the officer is not confirmed, count as Chief Petty Officer's time unless failure to

obtain confirmation is due to misconduct not meriting served in the acting capacity shall count as time in the rating held prior to

appointment as Acting Sub-Lieutenant.

(b) from Sub-Lieutenant to Lieutenant.â€" On attaining 3 years' seniority in the rank of Sub-Lieutenant (including period spent as Acting

Sub-Lieutenant).

Further, referring to Regulations 78 and 79 of the Pension Regulations for the Navy 1964, the learned counsel contends that the applicants are

entitled to full pensionary benefits in the highest rank i.e sailor category in the Navy in the ranks of MCPO-I and Master Chief Electrical Artificer-I

respectively as they would have risen to these ranks had they stayed on as Sailors and/or pro rata pension as officers, whichever is more.

Learned counsel for the applicants also drew our attention to the order dated 03.04.2008 of the Hon'ble Delhi High Court, which allowed the

petition filed by the first applicant (W.P (C) No. 1441 of 2007) and partly allowed the petition of the second applicant (W.P (C) No. 19677 of 2004).

The operative portions of the said order are reproduced as under:

WP (C) No. 1441 of 2007:

In view of this discussion it emerges that there is no legal impediment in clubbing/tagging the employment as artificer apprentice in

Navy, its training period, or working as boy and period he worked as Sailor or an officer. It is thus clear that Lt Cdr. Anup Kumar

Mehrotra has con7pleted the service more than 20 years and Lt Cdr. Azad Singh and Ex Lt R. L. Yadav have completed the service more

than 15 years. Their cases are covered within Regulations 19 and 78 of Navy (Pension Regulations) 1964.

WP (C) No. 19677 of 2014:

17 A bare perusal of letter dated .7d September 2004 passed by Shri KM Bhagat Commodore Principal Director Pay and Allowance reveals

that the claim of the petitioner was rejected on extraneous grounds and ignoring the Apex Court's judgment in Anuj Kumar Dey and

Another Vs. Union of India (supra). The provisions of Section 15(2)(a) of Navy Act, 1957 and Regulation 216(6) of Navy Part II (Statutory)

were never discussed. In the result, we direct the respondents to reconsider his application/prayer, give the petitioner a personal hearing

and decide his application within a period of three months in the tight of Section 15(2)(a) of the Navy Act, 1957 and Regulation 216(6) of

the Navy Part II (Statutory) quoted above.

The liberty is given to the petitioner to challenge the order of the respondents and get the instant writ petition revived.

The Hon'ble Delhi High Court had allowed W.P (C) No. 1441 of 2007 and directed the respondents to pay the petitioners therein the arrears of

pension as directed above within a period of three months and continue to pay them future pension as per law. W.P (C) No. 19677 of 2004 was partly

allowed as per the directions given above.

Learned counsel for the applicants also made a reference to the order of the Hon'ble Delhi High Court dated 27.02.2009, whereby the respondents

were ordered to calculate the pension of the applicants (and other similarly placed petitioners) after clubbing their service rendered while working as

an Artificer Apprentice or Sailor with that as an Officer (emphasis added). The appeal filed by the respondents was dismissed by the Hon'ble

Supreme Court vide order dated 29.10.2009. 8. Learned counsel also makes reference to the order dated 11.02.2011 by a single Judge of the Hon'ble

Delhi High Court in the contempt petitions filed against the respondents, operative part of which is reproduced as under:

In both the cases (CONT. 015 (C) 896/2009 & CONT. CAS (C) 440/2008) more than six years service has been rendered by the

petitioners as officer (the second promotion) and petitioners also attained promotion as officer. While the respondents are fully justified In

not computing pension at the rank of officer for the petitioners, prima facie I am of the view that there is no justification in not granting

pension to the petitioners of the highest rank as sailor, as they cleared the departmental examination held by the department and were

promoted as officers. The respondents themselves found the petitioners fit and capable of holding the rank of officer, would show that at

the time of discharging the petitioners, they had certainly crossed the rank of Sea-I held by them and clearing the departmental examination

cannot be considered as a disadvantage for the petitioners. The order of the Division Bench is to be read harmoniously keeping in view the

grounds taken by the petitioners in the writ petition.

Reference is also made to the order dated 04.04.2014 of the Hon'ble Delhi High Court, in LPA Nos.468 of 2011 and 630 of 2011, operative part of

which is reproduced as under:

We allow the appeals and quash the order dated February 11, 2011 and dismiss Cont. Cas No.440/2008 filed by R. L. Yadav as also

Cont. Cas. No. 896/2009 filed by R.P. Yaday. The two are advised to file substantive petitions for redressal of their disputes. Needless to

state if the two file substantive petitions the same shall be decided uninfluenced by any observations made by the learned Single Judge in

the impugned order dated February 11, 2011 and as regards the present order we would simply clarify that we have noted the facts and the

competing claims to bring out that a substantive dispute on merits arises after pension has been sanctioned to R. L. Yadav and R.P. Yadav

and the dispute has given birth to a fresh cause of action. Nothing stated by us would be construed as reflective of the merits of the

controversy.

It is in pursuance of this judgment that the instant 0.As have been filed by the applicants.

Supporting the case of the applicants, learned counsel for the applicants also relied upon the following judgments of the Hon'ble Supreme Court:

Naib Subedar Naresh Chand v. Union of India and others (C.A No. 11017 of 2013 decided on 13.12.2013);

(ii) Ved Prakash v. Union of India and others (C.A No. 11933 of 2016 decided on 08.12.2016); and

(iii) Indian Bank and another v. N. Venkatramani (2007) 10 SCC 609.

In Venkatramanrs case (supra), the Horible Apex Court had observed as under:

It may be true that various provisions of the Regulations as for example Regulations 16, 17 _19, 23, etc. provided for qualifying service.

Regulation 18 is not controlled by any of the said provisions. It does not brook any restrictive interpretation. It only provides for a rule of

measurement. An employee, as noticed hereinbefore, was entitled to pension provided he has completed the specified period of service. How

such a period of service would be computed is a matter which is governed by the statute. It is one thing to say that a statute provides for

completion of fifteen years of minimum service, but if a provision provides for measurement of the period, the same cannot be lost sight of

Provision of the Regulations which are beneficial in nature, in our opinion, should be construed liberally.

Learned counsel for the respondents, on the other hand, controverts the arguments made on behalf of the applicants. According to him, the

applicants never attained the rank of Master Chief Petty Officer, the highest rank of Sailor and the honorary rank of Lieutenant. In this regard,

learned counsel for the respondents referred to the rank structure of Sailors in the Indian Navy, which is as under:

(a) Seaman-II

(b) Saman-I

(c) Leading

(d) Petty Officer

(e) Chief Petty Officer

(f) Master Chief Petty Officer-II

(g) Master Chief Petty Officer-I

It is also brought out that promotions in the rank of Sailors at every level are subject to various eligibility criterion viz, length of service, passing of

courses/tests, merit, ACRs criterion, disciplinary criterion, etc. as well as vacancy position. The applicants had not earned promotions in various levels

of Sailor as they opted to appear in examination from open market for direct recruitment and were appointed as officers. Therefore, it is hypothetical

on the part of the applicants to state that had they continued as Sailors, they would have attained the highest rank of Sailor in 15 years i.e. Master

Chief Petty Officer with the honorary rank of Lieutenant.

As regards the statement made in Para 4.10 of the 0.A, quoting Paragraph 18 of the order of the single Judge dated 11.02.2011, learned counsel

for the respondents points out that the said judgment was set aside by the Division Bench and any reference thereto would give no advantage to the

applicants.

Summing up, learned counsel for the respondents states that Regulation 156 is not applicable to the case of the applicants and there can be no right

of legitimate expectation in respect of personnel joining the service that he or she would rise to any particular rank. Therefore, the instant

0.A deserves to be dismissed with costs.

Consideration:

We have given careful consideration to the arguments made by learned counsel appearing for both the sides and find that the primary issue before

us is, whether the applicants, who were enrolled as Sailors and subsequently promoted to Officer rank after passing departmental exams, who did not

complete 20 years of minimum qualifying pensionable service as officers, but had completed over 15 years of service, the minimum qualifying

pensionable service as Sailors, after clubbing their service as Sailors and Officers, should be granted pension in the highest rank they could have

attained in the Sailor category viz. MCPO-I or equivalent, as claimed by the applicants, or whether they should be paid pension in the rank of Seaman-

I and Electrical Artificer (Radio)-III, the ranks as Sailors they had held at the time of direct promotion to officer rank, as has been implemented by the

respondents.

It is undisputed by both the sides that the applicants had passed the departmental exams of the Navy for qualifying for selection as officers, and

they had held ranks as Acting Sub Lieutenant (Lt), Sub Lt and Lt during their service as officers in the Indian Navy viz, eight years in the case of ex

Lt R.L. Yadav (first applicant) and six years in the case of ex Lt R.P. Yadav (second applicant).

Further, in keeping with various judgments rendered in case of the applicants (as well as other petitioners) and in other cases of similarly placed

petitioners, more specifically, the order dated 28. 10.1980 of the Hon'ble Delhi High Court in R.C. Jain v. Union of India and others(W .P (C) No. 118

of 1978) and the judgment on appeal dated 08.12.1983 of the Hon'ble Apex Court in the matter of Anuj Kumar Dey and another v. Union of India and

others (1996(10) SCC 679), as referred to/reiterated in the judgment dated 03.04.2008 of the Hon'ble Delhi High Court in W.P (C) Nos. 1441 of 2007

(Ex Lt R.L. Yadav) and 10677 of 2004 (Ex Lt R.P. Yadav) as also in the judgment dated 27.02.2009 in related Review Petitions (R.P No. 306 of

2008 and C.N1 No. 11650 of 2008 and C.M No. 14653 of 2008), it has been clearly articulated that the qualifying pensionable service as Sailors and

the qualifying pensionable service as officers will be clubbed together to determine entitlement of pension in cases where an individual served both as

a sailor and as an officer. Further, if the individual has completed less than 20 years but more than 15 years of qualifying pensionable service, including

training period as an artificer apprentice and service in various ranks as sailor and officer, the officer on discharge, in cases other than dismissal from

service, should be granted pension as applicable as a sailor. However, it is in this context that it has been brought up for adjudication before this

Tribunal in the instant case whether the individual, in such cases, should be entitled to pension in viz, the rank he held in the sailor category at the time

of his direct promotion to officer category Artificer Sailor (Sea-I equivalent) in respect of Ex Lt R.L Yadav and Electrical Artificer Radio-III (CPO

equivalent) in respect of Ex Lt R.P. Yadav, or whether he should be entitled to pension in the highest rank in the sailor category i.e. MCPO-I or

equivalent, as claimed by the applicants.

In our opinion, the applicants had gone beyond the sailor category when they successfully qualified, as a consequence of 10 departmental exams,

to become officers. Further, they had been promoted to the rank of Lt after rendering a number of years of service as officers (over six years).

Therefore, it would be unfair to bring them back to lower ranks in the sailor category, which they had held prior to their selection for officer category

viz. Sea-I or CPO, when pegging them for entitlement for pension in the sailor category. Clearly, the fact that they did not pass departmental

promotion exams in various ranks as sailors cannot come in their way of consideration of entitlement of pension in the senior most rank in the sailor

category in a situation where the applicants are being denied pension as officers only because they did not complete the minimum combined service of

20 years for qualifying for pension.

It being an undisputed fact that the respondents themselves found the applicants fit and capable of holding the rank of an officer, and the

applicants having held such rank for over six years in each case, and the only reason they are being denied pension as officers is that they did not

complete 20 years of combined (clubbed) service, it would be only fair and just that they are paid pension in the highest rank in the sailor category viz.

MCPO-I or equivalent. However, we do not find merit in their claim for pension in the rank of Honorary Lt as honorary ranks are not earned

automatically on reaching the senior ranks in the sailor category, but are awarded to a few based on individual achievements during service rendered

by each in the sailor category. Ordered accordingly.

Resultantly, the 0.A is partly allowed. The applicants are granted pension in the rank of MCPO-I from the date of discharge from service. Arrears

to be paid to the applicants within a period of four months from the date of receipt of a copy of this order, otherwise it will attract interest @ 8% per

annum.

No order as to costs.

Pronounced in open Court on 5th day of September 2019.