B. Subhashan Reddy, J.:— This writ petition is filed by a Navy employee seeking a declaration that non-computation of four years of training period towards the pensionable service is illegal and arbitrary and issue a consequential direction to count the said period of four years for the purpose of pensionary benefits or in the alternative to continue him in service till 31.1.1997 reckoning 15 years' period from the date of completion of initial 4th year of training. Of course, later by amendment he pleads for continuance of his service by way of re-engagement.
1. The petitioner was enrolled as Artificer apprentice in the Indian Navy on 19.1.1978 He was aged 17 years at that time, as such he was eligible for such appointment. He was also eligible for counting the said period of employment for pensionary benefits as before attaining the age of 17 years, service rendered as a boy is not counted towards pension. The appointment is governed by Section 11 (2) of the Navy Act, 1957, which reads : “No person shall be enrolled as a seaman/sailor in the Indian Navy for a period exceeding 15 years in the first instance, provided that in the case of minor the said period of 15 years shall be reckoned from the date on which he attains the age of seventeen.” Regulation above framed under the said rule making power under Sub-section (1) of Section 11 of the said Act and Regulation 78 and 79 are relevant. Regulation 78 prescribes qualifying service for pension and the same is 15 years. The petitioner was not re-engaged after the tenure of 15 years and he himself filed an application in a format stating his unwillingness for re-engagement and seeking for issuance of a ‘No objection Certificate.’ On evaluation of the work and conduct of the petitioner, the High Power Committee of Naval Commodore Bureau of Sailors-third respondent herein comprising of high rank Navy officers have not recommended for re-engaging the petitioner for two reasons : (1) Poor record and (2) unwillingness of the petitioner to be re-engaged. I will deal with the second aspect first, i.e with regard to the claim of the petitioner for re-engagement.
2. It is not disputed that the petitioner has filed an application in a prescribed form seeking for ‘No Objection’ and stating categorically his unwillingness to get re-engaged in naval service. Further, the regulation expressly states that re-engagement cannot be claimed as a matter of right. There are some requirements to be satisfied under the Regulation for re-engaging a Navy Officer after the completion of the initial period of 15 years and that is not pertinent in so far as the officer is concerned, as the officer has got no right to claim re-engagement. Those fetters are only against the authority who is empowered to re-engage so as to see that they act in consonance with the Regulation and not in an unfettered manner. Lest, he may go uncontrolled in the manner of taking decisions for re-engagement. In so far as the evaluation aspect is concerned, I cannot concur with the argument of Sitharam Murthy, learned counsel for the petitioner, that merely because the petitioner's immediate officers had issued commendation letters. It was binding on the third respondent which is admittedly a superior Body empowered to re-evaluate the performance and conduct of the Navy Officer's. It cannot be said that there is no valid material for the third respondent to form an opinion with regard to the evaluation of the petitioner that he is below average. I do not sit as an appellate authority over the third respondent in the matter of evaluation and I cannot substitute my opinion to that of the opinion of the third respondent. This argument with regard to the claim of the petitioner for re-engagement is thus rejected on the grounds mentioned below.:
(1) That there is no right for claiming re-engagement;
(2) That the petitioner himself voluntarily sought issuance of No Objection Certificate stating categorically and unambiguously that he does not want to service the Navy any more;
(3) That there is a valid basis for the evaluation made by the third respondent with regard to the opinion they have framed regarding the performance of the petitioner being below average.
3. Then, I proceed to the next contention. The initial period of appointment is for 15 years. First-four years is the training period. If only the performance is satisfactory for the purpose of continuing the sailor in the post, he will be further continued. But, Mrs. Chaya Devi, learned counsel for the respondents seeks to dissect Regulation 79 and wants to interpret that, while for the purpose of reckoning the period of service at the time of retiring an employee, the period of training shall also be reckoned and that the period of training of four years shall not be reckoned while computing pension. She takes strength for her argument from the words ‘employed’ in Regulation 79. But Regulation 79 has been framed by virtue of the rule making power vested in the Union of India and the same in consonance with the fundamental right guaranteed in Indian Constitution. If the classification is irrational, then it has to be read down so as to be in tune with the equality clause guaranteed under Article 14 of the Constitution. A Rule or Regulation has to be read as a whole and there is no question of dissection of the same and then interpreting an advantageous part in favour of a party while rejecting the other part. It does not stand to reason that when the training period of four years is reckoned for the purpose of computation of 15 years for retiring a person, the same is not being reckoned for the purpose of pension. There is absolutely no intelligible differntia for making such a classification. Mrs. Chaya Devi submits that there is a valid basis for classification as during the training period of four years what was being paid was not a regular scale of pay but only a consolidated pay. But the same is immaterial in so far as the computation of the period is concerned. We are not concerned with the quantum of pay to be fixed whether consolidated or on time scale. The qualifying service for claiming pension is 15 years. If 15 years has to be reckoned from the initial period of appointment, then the petitioner is entitled. But Mrs. Chaya Devi submits that 15 years cannot be reckoned from the date of initial appointment as the training period is an ex-cadre’ service. If it is an ex-cadre service, then as a necessary corollary, 15 years can be reckoned only from the date of completion of the training period of four years. In that case the petitioner has got to be engaged in service till 31.1.1997 But she states that the petitioner is not entitled to continue in service. In effect, the argument is that the petitioner can be in effective service in cadre for only 11 years while the regulation says that the period shall be 15 years and there is no discretion conferred on the authority to disengage the sailor after the successful completion of training of four years, and till the expiry of 15 years. Equally there is another embargo on the part of the employees like the petitioner not to leave the service after the initial period of four years training. In those circumstances, the only harmonious interpretation is that the service of the petitioner had started right from 19.1.1978 and that it expired on 18.1.1993 But because of the uniform rule that the petitioner is retired at the end of the month, it was 31.1.1993
4. The petitioner shall be entitled for pension computing his service for the above period but not beyond 31.1.1993 The petitioner was continued in service because of the interim order of this Court. But from today, he is deemed to have been relieved of his duties and he ceases to be an officer of the Indian Navy. However, he shall be entitled for pension for the above period and the said pension shall be computed and paid to him within a period of one month from the date of receipt of this order. The 4th respondent also shall forthwith issue a ‘No Objection Certificate’.
5. The writ petition is allowed to the extent indicated above.
6. No costs.
7. Petition allowed.