Facts of Indian Navy not in favour of their own ex-sailors

Ex-Servicemen in their meeting to fight in the Supreme Court of India for their fundamental rights

   1. The short issue involved in the present case is that whether the Sailors who joined Indian Navy during enrolment prior to 3.7.1976 with service condition that they are bound to serve for term of 10 years and thereafter for a further period of 10 years in the FLEET Service, if required and who were not drafted to Fleet service by Indian Navy vide policy decision dated 3.7.1976 (page 62-66) are entitled for Reservist Pension or not.
2. The ld. AFT, Chennai rightly held in O.A No. 83/2012 that  Sailors are entitled for grant of  either reservists pension or special pension payable for a period of three years prior to filing of the application , the service gratuity and DRCG already paid to the applicants are liable to be adjusted. Since,a person can avail only one pension,the petitioners were granted reservists pension.
3. In similar matter of  Ex. CPL  Baldev Singh vs. Union of India &Ors arising out of  O.A. 1557/2011from AFT, Chandigarh in  Civil Appeal no. 4787/2011,the honorable SC,vide order dated 06.1.2015 upheld the petitioners plea of reservists pension and allowed pension with three years back date.
4. The applicants respectfully submits that the petitioners in this IA were appointed as per The Navy(Enrolment) Regulations, 1965 for an intial period of 10 years and further period of 10 years in the FLEET Service , if required . The details are page( ) of the application. The applicants have completed 10 to 13 years of service with Navy. The average age of the applicants is more than 60 years.
5.   The drafting to fleet service was as per the requirement and wish of the Navy and non drafting to fleet service can not be attributed to the Sailors.  Page( ) of the application.
6. The ld. AFT  gave its finding from  para 12 @ page 16 and after considering the relevant law in details in para 15 @ Page 23 of paperbook rightly held that the Govt is equitably and promissory stopped from doing so in violation of service conditions.
7. It is submitted that only a few sailors have been deprived the benefits being claimed and discriminated without any fault on the part of such persons.
8. Section 184-A of  Navy Act,1957 clearly stipulates that no  Regulation shall be given effect which prejudicially affect the interests of any person to whom such regulations is Applicable.  Therefore,  letter dated 3.7.1976 even if applicable  prejudicial to the interests of Sailors is not effective qua the Sailors appointed prior to 3.7.1976 and has no retrospective effect on change of service conditions. Sec 184-A is quoted  as under:-
“[184A. Power to make regulations with retrospective effect.—The power to make regulations conferred by this Act shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the regulations or any of them, but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.]”
9. Section 269 ( 1) of Naval Ceremonial regulations Navy 1964  deals with the common terms of enrollment in the Indian Navy, prior to 03 July, 1976.
10. The practice of keeping sailors in reserve on completion of regular service of meeting war and other contingencies were in practices in Indian Navy since long and still continue. It is pertinent to mention here that if the persons are actually called for reservist’s service on completion of regular service, they are paid Reservists pension and if not called for reservist’s service, by invoking “not required” provision they are entitled to Special Pension as per section 95 of the Navy Pension regulations 1964 .
11. That the applicants had joined the Navy, knowing the prospect of a Pension, forgoing many of their fundamental rights and opportunities of service in the interests of the Country. It was the legitimate expectation of the applicants that, they would be allowed pension by combining the regular services and reservist’s service. Most of them had actively participated in the 1971 war too. It was also the legitimate expectation of  the applicants that, if they are not allowed to complete the terms of engagement, i.e. 10 years regular service plus 10 years reserve service entitling them reservists pension, they would be paid the special pension for the service rendered by them.
12. That the applicants were not granted any pension so far, in spite of many representations to higher authorities. The applicants were either entitled to a reserve pension under section 92 or special pension under Section 95 of Navy Pension Regulation 1964.
13. However, ONLY when raised demand for pension, Govt/Navy rejected their claim stating that vide Govt. of India order dated 03 July, 1976, transferring sailors to reserve service has been discontinued and as such they are not eligible for reservist’s pension. By this, Navy is trying to go back on a promise, which was an important aspect of enrollment bond, invoking section 115 of Evidence act and causing serious prejudice to the persons who devoted their youth for the Country and left other opportunities at that time.
14. That the GOI letter dated 03 July, 1976 was not informed to the applicants, neither at the time of issue or later whilst in service. It is pertinent to mention here that as a matter of fact no endorsement was made in the service record of the applicants with regard to letter dated 3.7.1976. It is pertinent to note that, this important information changing the basic service conditions and benefits, which were part of their service bond was not communicated. There were no other modern means of communication like internet or Social media, even to know such information from any other sources available at that time. Since the applicants were kept in dark regarding releasing them from the service bond of reserve service liability, it has even affected their further carrier planning after completion of regular service. Only when the applicants requested for the reservists pension, it was informed that, drafting of sailors to fleet reserve were stopped form 03 July, 1976.
15. The non drafting of the applicants to fleet service by the appellants is not due to the fault of the applicants and it was unilateral administrative decision of the respondents changing the service conditions without hearing or giving an opportunity of hearing to the applicants and for that the applicants can not be made to suffer or put to loss.
16. Since all the applicants joined prior to 03 July 1976, as per the prevailing service condition then, any unilateral, arbitrary modification through a GOI letter issued later on 03 jul 1976 adversely affecting their civil rights is not legally binding on them, that too without giving opportunity of hearing to them.
17.That no option or compensation in lieu of reservist’s pension was offered to the applicants by the respondents in any manner at any time adversely and unilaterally changing the service conditions.
18.The GOI letter segregates sailors, who left Navy after 10 years service before 03 July 1976 and afterwards on completion of 10 years of service. While sailors, who left navy prior to this cutoff date were eligible for reservists benefits, without being actually transferred to reservists or without undergoing any reservists training, similarly placed applicants, who left navy after 03 July 1976 on completion of 10 years regular service had been denied these benefits. This is against the spirit of Fundamentals rights of the applicants under Article 14 and Article 21 of Constitution of India.
19.This unilateral breach of contract, is adversely affecting the lives and morale of  these war veterans.
20.That the requirement of keeping sailors was existing in Indian Navy at the time of discharge of the applicants and the system of keeping sailors in reserve still continues, as the country cannot afford stopping it in the interest of the security of its people. Actually, contrary to Navy’s statement, the practice of keeping sailors in reserve was not stopped from 03 July, 1976, but only, transferring to reserve and giving any separate training were stopped.
21.The system of keeping sailors in reserve to be called for active service, in case exigencies like war, is to save the country from additional large scale financial burden of keeping a large military always in its pay roll.
22.The relevant paras of GOI letter dated 03 July, 1976( @page 63) are reproduced here below:-
Para (f) transfer to current fleet reserve: Transfer of sailors into fleet Reserve to be discontinued. The Existing fleet reservists will not be required to undergo Refresher training but will be paid the retaining fee till they are wasted out.
Para (g)  Recall to Active Service:
All new entrants with 15 years initial engagement and such of the existing sailors, who re-engage to complete time minimum pension, sign a declaration that they will be liable to recall to active service, after release up to two years in case of Non Artificers and three years in case of Artificers. During this period they will not be required to undergo refresher trainings or entitled to any retaining fee, but when recalled they will be entitled to normal pay allowances. If recalled, they would be liable to service so long as their services are required.
Sailors released prematurely from service at their request will also be liable to liable to recall to active service up to the period stated above.
23.That when the applicants requested for either reservists pension or special pension, the respondents denied their claim quoting GOI letter dated 03.07.1976 as well as mentioning that the applicants had given unwillingness for further service of 5 years so as to make them eligible for minimum pension. Actually giving unwillingness of further regular service of 5 years is not relevant, as this total regular service of 15 years is for Normal Pension, for which the applicants has not raised any claims.
24.Further, none of the  applicants had given any unwillingness for Reserve service and also as per service bond executed at the time of enrollment,as  there was no provision of refusing reserve service by  the applicants.
25.Even, as per the GOI letter dated 03 July, 1976, nothing is mentioned regarding stoppage of reservists pension or denying the same to person joined prior to 03 July, 1976, Nowhere in the Government order, it is mentioned that reservist pension is stopped on or after 04 July, 1976.
26.That the authorities while issuing this GOI letter dated 03 jul 76, were aware that they cannot deny special pension under section 95 of naval pension rules 1964, as the issue of the GOI letter was a policy decision to dispense with the service of “all” who was discharged from Navy on or after 04 Jul 1976, thereby invoking section 95.
27.As per pension regulations 1964 There are mainly 3 types of pension in Indian Navy
a) Section 78 of the Navy (Pension) 1964: sailors with 15 years or more service entitled to regular pension.
b) Section 92 of the Navy (Pension) 1964: by which a sailor with 10 years regular service and 10 years fleet reserve service is entitled to reservist pension.
c) Section 95 of the Navy (Pension) Regulations, 1964: as per section 95 of the Navy (Pension) Regulations, 1964, Special pensions and gratuity to sailors when admissible, a special pension or gratuity may be granted at the discretion of Central Government to sailors who are not transferred to reserve and are discharged in large numbers in pursuance of Government’s Policy.
I. Of reducing the strength of establishment of the Indian Navy; or
II. Of re-organization, which results in laying off any ships or establishment?”
28.That in DS Nakra and other vs. UOI, AIR (1983) SCC 305, this Hon’ble  Court held that Pension is not an ex gratia payment and it is a payment for the past services rendered or can be said as a deferred wages for the service rendered. Denying this deferred wages or pension for the service rendered by the applicants is unfair and contrary to the law; lay down by the this Hon’ble Court in the above case.
29. That if the central government or the competent officer has the right to retain a sailor for as long as he wants even beyond the terms of engagement and has the power to even recall a sailor after discharge, it s the reciprocal right of the sailor to serve up to the terms of engagement so that he earns his pension, provided there is nothing adverse in his service records disentitling the benefit of such pension. In case of the applicants, all had unblemished records of service till discharge.
30.  Section 279 (1) of the Naval ceremonial, conditions of service and miscellaneous regulations 1964  is relatable to regulation 95 of the Navy pension regulations. Section 279 (1) of the Naval ceremonial, conditions of service miscellaneous regulations, 1964, lays down three conditions of discharging a person if his services are longer required. The said regulation is reproduced below:
 “Discharge “S.N.L.R.”= (1) Discharge SNLR (Service No Longer Required) shall be considered as a punishment but only as the appropriate method of dispensing with the services of a man:-
I. Who is surplus to requirements?
II. Whose retention would be detriment of the service but who has not recently committed a specific offence for which dismissal would be an appropriate punishment in addition to any sentence awarded.
III. On whom an adverse report has been forwarded in the post enrollment verification report.
31.That a conjoint reading of the Section 95 of pension regulation 1964 and section 279 (1) of Naval Ceremonial conditions of service and miscellaneous regulation 1964 would show that a person can be discharged from service prematurely, i.e. before completing his terms of engagement, as in the instance case of the applicants that of 10 years of active service and 10 years of reserve service or only if he is surplus to requirements or on some adverse report in his post enrollment verification report.
32.It may be noted that, not even a “ Single Person” recruited prior to 03 July, 1976, was kept in reserve after  4 July, 1976 resulting in discharge in large numbers, envisaged in Section 95 of pension regulations. i.e. the applicants were not kept because of any fault or bad service record attributable to them. They were not kept because of unilateral letter dated 3.7.1976 of not to keeping reserve, that too, not informed to the applicants any time during in service or afterwards. The applicants are/were entitled to special pension under section 95 of Pension Regulations, since there was no adverse record during in service or in post enrollment verifications, The applicants were in fact be considered as discharged because found surplus to the requirement.
33.That Section 269 of the Naval Ceremonial conditions of service and miscellaneous Regulation 1964 :
 “269 continuous service” (1) old entrant Boys, Artificers Apprentices and Direct Entry sailors may be enrolled for a period calculated to permit a period of 10 years service to be completed from the date of attaining 17 years of age or from the date of being ranked in the men’s rank on completion of initial training, whichever is later, provided their services are so long required. Continuous service of all sailors of all Branches shall be liable, if required, for a further 10 years, service in the Indian Fleet Reserves subject to the provisions of the Regulations for the Indian Fleet Reserve”.
34.It is submitted that as per this regulation 269 (1), it is the condition of service of a sailor that he is to serve for 10 years in active service and 10 years in reserve, if his services are so required. The said requirement is not in hands of the sailor but he is bound by the same, but at the same time, the respondent can not be unilaterally allowed to exploit sailors, who have bound themselves, adversely affecting their civil rights  on the contrary it is expected from them to be model employer and act in the best interest of such employees.
35.That non drafting of a sailor to reserve, could be only done under section 279, (as per three situations envisaged in section 279) of naval ceremonial regulations, 1964, when there is adverse remarks during post enrollment verification or in service, or he is surplus to requirement. A sailor become surplus to the organization only if it is decided to reduce the strength of that organization or it is reorganized under such condition, the sailor is entitled to special pension as provided under 95 of the pension regulation 1964 of Navy.
36.That for normal pension the minimum service requirement is 15 years as per section 78 of pension regulations 1964.  The applicants had claimed only reservists or special pension under section 92 and 95 of the pension regulations 1964, wherein there is no condition of minimum 15 years service. For granting pension under regulation 95, there are no “minimum” service requirements. No claim was raised regarding regular pension and as such, not agreeing for further regular service is not relevant and applicable. The applicants have not given any unwillingness for “reserve service” anytime. As such applicants can not be put to loss and their civil rights can not be prejudiced, curtailed without even hearing them and the GOI letter is unilateral and that too without informing sailors.
 In view of the above, it is respectfully submitted that this  impleadment petition may kindly be allowed  as all the petitioners herein are similarly placed ,as in CA 8566/2014 and direction be given to Appellants to give either  reservists pension as per section 92 or special pension under section 95 of Naval Pension Regulations 1964.
THE ABOVE WAS FILED BY EX-SERVICEMEN IN SUPREME COURT OF INDIA

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