1IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09-2006 CORAM : THE HONOURABLE MR. JUSTICE A.KULASEKARAN W.P. Nos. 30240 of 2003, 22354 and 36065 of 2005 WP No. 30240 of 2003 S.K. Chaudhary .. Petitioner Versus 1. Union of India rep. by Secretary to Government of India Ministry of Defence South Block New Delhi – 110 001 2. The Director General Coast Guard Coast Guard Head Quarters National Stadium Complex New Delhi – 110 001 3. Mr.K.C.Pande DIG, Coast Guard Head Quarters National Stadium Complex New Delhi – 110 001 4. Mr. M.A. Thalha DIG, Coast Guard District Headquarters – 3 New Mangalore Port New Mangalore 5. Mr. K.R. Nautiyal DIG Officer-in-charge Bureau of Naviks Cheetah Camp Mankhud, Mumbai 6. Mr. S.C. Tyagi DIG Office of Commander-in-Chief Andaman & Nocobar Port Blair https://hcservices.ecourts.gov.in/hcservices/ 7. Mr. S.D. Sonak Commandant Coast Guard H.Qrs (West) Golfa Devi Road Prabhadevi P.O. Mumbai .. Respondents WP No. 22354 of 2005 Commandant S.K. Chaudhary Commanding Officer Coast Guard Station-Mandapam Mandapam, Rameswaram .. Petitioner Versus 1. The Director General of Coast Guard Coast Headquarters National Stadium Complex New Delhi 110 009 2. The Commander South Guard Region (East) Near Napier Road Coovam River Mouth Chennai – 600 009 3. Vice Admiral A.K. Singh Director General of Coast Guard National Stadium Complex New Delhi – 110 009 .. Respondents WP No.36065 of 2005 S.K. Chaudhary .. Petitioner Versus 1. Union of India rep. by Secretary to Government of India Ministry of Defence South Block New Delhi – 110 001 2. The Director General Coast Guard Coast Guard Head Quarters National Stadium Complex New Delhi – 110 009 https://hcservices.ecourts.gov.in/hcservices/ 3. The Commander Coast Guard Region (East) Near Nappiar Bridge Koovam River Mouth Chennai – 600 009 4. VSR. Murthy (0092-J) DIG, Coast Guard Headquarters National Stadium Complex New Delhi – 110 009 5. K. Natarajan (0091-E) DIG, CGS Vivek C/o. Fleet Mail Office Kochi 6. KPS. Raghuvanshi (0095-P) DIG, Coast Guard Headquarters National Stadium Complex New Delhi – 110 009 7. G. Singh (0083-M) DIG, Coast Guard District Headquarters-8 Haldia West Bengal 8. K.S. Sheoran (0089-C) DIG, CGS VAJRA C/o.Fleet Mail Office Vishakapatnam Andhra Pradesh .. Respondents WP No. 30240 of 2003: Petition under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the Promotion List issued by the second respondent for the post of Deputy Inspector General, Coast Guard, dated 18.08.2003 in reference No.AIG 2061 and quash the same and direct the respondents to promote the petitioner as Dy. Inspector General with effect from 29.06.2001 with all consequential benefits. WP No. 22354 of 2005: Petition under Article 226 of The Constitution of India praying for a Writ of Certiorari to call for the records relating to the show cause notice dated 08.06.2005 in LW/0551/15 of the first respondent, communicated to the petitioner by the second respondent by letter dated 13.06.2005 and quash the same. WP No. 36065 of 2005: Petition under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 2nd respondent dated 30.10.2005 R 301401 125 C.G. Promoting respondents https://hcservices.ecourts.gov.in/hcservices/ 4 to 8 as D.I.G. (GD) and quash the same and direct the respondent 1 and 2 to promote the petitioner as D.I.G. Coast Guard with effect from 29.06.2001. For Petitioner : Mr. G. Rajagopal, Senior Counsel for M/s. G.R. Associates in all the writ petitions For Respondents : Mr. V.T. Gopalan Additional Solicitor General assisted by Mr.P. Wilson Special Government Pleader for RR1 and 2 in WP 30240/03 for RR1 to 3 in WP 36065/05 for all respondents in WP 22354 of 2005 COMMON ORDER By consent of counsel for both sides, the writ petitions are taken up together for hearing, common arguments were advanced by counsel on both sides, hence, the writ petitions are disposed of by this common order. 2. The petitioner joined Indian Coast Guard as Assistant Commandant in December 1982, later, he was promoted as Commandant – Selection Grade on 29.06.2003. He worked as Commandant at Coast Guard District Head Quarters-5, Stationed at Madras, when filing the writ petitions, he was transferred as Commandant Officer, Mandapam. The Coast Guard (Seniority and Promotion Rules) 1989 provides for promotion to the post of Deputy Inspector General from the rank of Commandant, who should have completed 8 years of service in the rank of Commandant and two years of sea-time. The petitioner is said to have qualified for next promotion as Deputy Inspector General, which was due on 29.06.2001. The petitioner gave a representation on 10.03.2003 to the respondents/department to consider him for promotion to the post of Deputy Inspector General, which is due for a long period. The Coast Guard Head Quarters sent a communication dated 09.06.2003 stating that his representation was considered and he is eligible for consideration for promotion to the post of Deputy Inspector General and he would be considered for promotion as and when the Board is convened. On 08.08.2003, the Departmental Promotion Committee (DPC) was convened by the second respondent for the year 2003 for 12 vacancies of Deputy Inspector General. Though the petitioner and others were considered, he was not selected but his batch mates namely K.C. Pande, M.A. Thalha, K.R. Nautiyal and S.R. Thyagi, who are respondents 3 to 6 in WP No. 30240 of 2003 were selected and only 4 vacancies were filled up out of the 12 vacancies. Aggrieved by the said act of non-selection, the Petitioner has filed W.P. No. 30240 of 2003 to call for the records relating to the promotion list issued by the respondents/department for the post of Deputy Inspector General for Coast Guard dated 18.08.2003 and quash the same and direct the respondents/department to promote him as Deputy Inspector General with effect from 29.06.2001 with all consequential benefits. When the said writ https://hcservices.ecourts.gov.in/hcservices/ petition is pending, the respondents/department have sent a communication dated 13.11.2003 threatening departmental action since the petitioner has filed writ petition before this Court, which was also brought to the notice of this Court and this Court directed the respondents/department to tender an unconditional apology, which was complied with by them. At that time, the respondents/department proposed to convene DPC and the petitioner filed WPMP No. 31809 of 2004 to consider his name and the respondents/department submitted that the name of the petitioner would be considered by them and the said petition was ordered accordingly. The petitioner was surprisingly issued a show cause notice by the second respondent stating that when the petitioner was sitting along with other members to hear a case, though ample documentary evidence were brought on records to establish the charges relating to the said accused, the same were not considered properly, which amounts to failing in the duty and called for an explanation from him. The said notice is challenged in WP No. 22354 of 2005 on the ground that the same was issued only to defeat his promotional aspect. The petitioner later came to know that the second respondent conveyed a department promotion committee on 30.10.2005 and promoted his juniors, challenging the same, he has filed WP No. 36065 of 2005 wherein the said persons were cited as respondents 4 to 8. 3. The learned Senior counsel Mr. G. Rajagopal appearing for the petitioner submitted as follows:- The petitioner came to know when ranking on merit was made his name was placed in the second or third position in the list of the persons to be promoted as DIG in the year 2003, but his name was not included in the select list when published. There were 12 vacancies of DIG post, but the respondents/department filled up only 4 vacancies. Non-filling of rest of the vacancies is against the Rules. Non-consideration of the petitioner for promotion is violative of Fundamental Rights. The Rule, which prevailed in the year 2003 was that the promotion of officer to the rank of Commandant and above shall be made on the basis of merit with due regard to seniority. When apply merit with seniority as prescribed in the then Rule, the assessment of comparative merit of all eligible candidates and selecting the best out of them has to be made. The selection based on merit with due regard to seniority means merit in all respects shall be the governing consideration and the seniority shall play only a secondary role. It is only when merit and suitability are roughly equal, the seniority will be the determining factor. Though the petitioner secured more marks than the sixth respondent in WP No. 30240 of 2003, non-inclusion of his name is illegal, which is evident that in Appendix B of nominal roll of commandants for consideration for promotion to the rank of DIG by CGSPB NO.2 – 18TH AUGUST 2003 (FOR THE YEAR 2002) it is mentioned thus:- S.No. Name Average Fit/Unfit 4. K.C. Pande 14.20 fit 5. M.A. Thalha 13.92 fit 6. K.R. Nautiyal 13.84 fit 7. S.C. Tyagi 13.74 fit 8. S. Sonak 13.38 unfit https://hcservices.ecourts.gov.in/hcservices/ 9. S.K. Chaudhary 13.76 fit 10. K.N. Krishnamoorthy 14.42 fit The bench marks 13.50 to 14.99 is very good. By pointing out the said Appendix, the learned Senior counsel submitted that K.N. Krishnamoorthy has secured 14.42 and the petitioner herein has secured 13.76, both were found fit, but the respondents/ department arbitrarily selected the person at Sl.No.7 Tyagi (R6 in WP No. 30240 of 2003), who has secured only 13.74, hence, the selection is contrary to the said Rules, besides, only four vacancies were filled up out of 12. The details of the said benchmarks were deliberately not mentioned in the counter, but the same was ascertained only when the records were summoned by this Court. It is also wrongly mentioned in the counter that non- inclusion of the petitioner was that he was in low medical category. Even in case of low medical category, the respondents/department should have forwarded it to Director General, who is the competent authority, but the respondents/department failed to do so in the petitioner's case. In support of this contention, the learned Senior counsel relied on the below mentioned decisions:- i) (Union of India and others vs. Lt. General Rajendra Singh Kadyan and others) AIR 2000 Supreme Court 2513 wherein in Para Nos. 11 and 12, it was held thus:- 11. ...Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely, 1. seniority-cum-fitness, 2. seniority-cum-merit, 3. merit-cum-suitability with due regard to seniority. 12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non- selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. “Seniority-cum-merit” postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum- merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them." https://hcservices.ecourts.gov.in/hcservices/ ii) (Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and others) 2006 AIR SCW 2822 wherein in Para Nos. 13, 20 and 21, it was held thus:- "13. This Court also noted that while the principle 'merit-cum-seniority' laid greater emphasis on merit and ability and seniority plays a less significant role, becoming relevant only when merit is approximately equal.... 20. The learned counsel for the Bank placed reliance on the decision of this Court in K. Samantaray v. National Insurance Co Ltd., (2004) 9 SCC 286) where this Court, following the earlier decision in Syndicate Bank SC & ST Employees Assn. v. Union of India (1990 Supp SCC 350) reiterated that apart from the recognised methods of seniority-cum-merit and merit-cum- seniority, there can also be a third method, that is a hybrid mode of promotion. This Court observed: 'While laying down the promotion policy or rule, it is always open to the employer to specify the area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, nor has the effect of violating any statutory scope of interference and other relatable matters.' But in that case promotions were not governed by any statutory Rules, but by a promotion policy. The above observations made with reference to such a policy, which wholly occupied the field insofar as promotion is concerned, are not relevant where the Statutory Rules require promotion by seniority-cum-merit. 21. ....Having regard to the factual background of the case, and having regard to the fact that even under the merit-cum-seniority basis adopted by the bank the appellant had secured high marks and he was denied promotion on the ground that he failed to secure high marks in the interview, there is no need to refer the matter for fresh consideration. With a view to do complete justice, in exercise of our power under Article 142, we hereby direct the first respondent bank to promote the appellant as a Field Supervisor, from the date the third defendant was promoted as Field Supervisor and place him above the third respondent. However, he will be entitled to monetary benefits flowing from such promotion https://hcservices.ecourts.gov.in/hcservices/ only prospectively, though the pay is to be re- fixed with reference to the retrospective date of promotion.” iii) (Sarat Kumar Dash and others vs. Biswajit Patnaik and others) 1995 Supp (1) Supreme Court Cases 434 wherein in Para Nos. 8, it was held thus:- "8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play. In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of ‘B’. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit. The learned Senior counsel for the petitioner submitted that the respondents 4 to 8 in WP No. 36065 of 2005 are juniors to the petitioner and the respondents/ department have promoted them ignoring the merits of the petitioner. Non-promotion of the petitioner as Deputy Inspector General is clearly mala fide which is apparent from the contents of WP No. 30240 of 2003 and WP No. 22354 of 2005. The petitioner maintained unblemished record of service but promotion was denied to him from 2001 onwards. In 2003, petitioner's name was not included in the selection list on the ground that he was not senior. In 2005, his name was not included because of the reason that he has not satisfied the merit, thus the respondents, on two occasions denied promotions on the sole ground that the petitioner has approached this Court by filing WP No. 30240 of 2003. When WP No. 30240 of 2003 was pending, the respondents/department have sent a communication dated 13.11.2003 threatening departmental action against him, which was also brought to the notice of this Court and this Court directed the respondents/ department to tender unconditional apology. Of course, the said order was complied by the respondents. In order to victimise the petitioner for the said reasons, the respondents/department have issued a show cause notice on the ground that the petitioner, while https://hcservices.ecourts.gov.in/hcservices/ sitting along with other members to hear a case has allegedly not considered the evidence properly and acquitted the accused. The said act of the respondents/department amounts to mala fide. The petitioner has filed WP No. 22354 of 2005 wherein he has submitted valid reasons justifying the mala fide act of the respondents/department. It is further submitted by Mr. Rajagopal that it is not necessary for the party alleging mala fide to name the officer in the petition and prove by positive evidence that a particular officer was responsible for misusing the authority by taking action for collateral purpose. In support of this contention, the learned Senior counsel relied on the decision reported in (The State of Punjab vs. Ramji Lal and others) AIR 1971 Supreme Court 1228, wherein in Para No.9, it was held thus:- 9. Counsel for the State of Punjab contended that the plea that the action of State was not bona fide cannot be said to be established unless the party alleging that case names the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, and since no such attempt was made and the High Court did not find that any named officer or officers was or were responsible for that official act the plea that it was bona fide must fail. We do not think that the law casts any such burden upon the party challenging the validity of the action taken by the State Government. The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claim to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose. The learned Senior counsel for the petitioner submitted that the respondents/department have issued a show cause notice 08.06.2005, which is challenged in WP No. 22354 of 2005. Though it is a show cause notice, when the authorities have no jurisdiction to issue the same, the petitioner is entitled to seek remedy under Article 226 of the Constitution of India for enforcement of his fundamental rights. To substantiate this contention, the learned Senior counsel relied on the decision reported in (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others) AIR 1999 Supreme Court 22, wherein in Para No. 15, 20 and 21, it was held thus:- https://hcservices.ecourts.gov.in/hcservices/ "15. ....But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “TRIBUNAL”." 4. Mr. V.T. Gopalan, learned Additional Solicitor General appearing for the respondents 1 and 2 in WP No. 30240 of 2003, respondents 1 to 3 in WP No. 36065 of 2005 and all the respondents in WP No. 22354 of 2005 submitted that as per Rule 7 (3) of the Coast Guards (Seniority and Promotion) Rules 1986, promotion to the rank of Commandant and above shall be made on the basis of merit with due regard to seniority. As per DOP&T instructions, on conducting of promotion boards, for promotion to the selective rank, zone of consideration has been fixed as 5 for 1 vacancy; 8 for 2 vacancies; 10 for 3 vacancies and twice a number of vacancy plus four in the event vacancies are more than 3. Keeping in view the pay scale of the selective ranks, benchmarks for promotion has also been prescribed. The benchmark for selective promotion to the rank of Deputy Inspector General in the pay scale of 16400-450-20000 is 'very good' based on last five years confidential reports. The Coast Guards service is following numerical grading system. The Government has fixed sum of promotion potential and promotion quotient equivalent to 13.50 to 14.99 as very good. Further, keeping in view the benchmark assessment as above, the eligible officer in the zone of consideration are considered fit or unfit for further promotion. The select list is thereafter drawn from amongst those https://hcservices.ecourts.gov.in/hcservices/ considered fit for promotion in the order of their inter-se seniority. Merely the petitioner become eligible for consideration for promotion does not confer any right to him as the promotion to the rank of Deputy Inspector General is made on selection basis. The petitioner has wrongly submitted that there are 13 or 12 vacancies in the rank of DIG. The Officers to be promoted must be medical category S1A1, S2A1 or S2A2 on the date of promotion. Officers who are placed in low medical category temporarily or permanently are not automatically promoted to the rank of Deputy Inspector General even if they meet the criteria for selective promotion to this rank. Such cases are to be submitted to the Director General accompanied with medical board proceedings for decision on merits of each case. The petitioner being in low medical category S3A2 on the relevant date, he is not entitled for promotion to the rank of Deputy Inspector General in the normal course. The petitioner at serial No.9 of the nominal roll of commandant (GD) was duly considered as he was found eligible and within the laid down zone of consideration. 4 commandants (GD) who are senior to the petitioner were found fit for promotion and in the promotable medical category were recommended by the promotion board. AS the promotions were made against vacancies of the year 2002, four commandants, who are respondents 3 to 6 in WP No. 30240 of 2003 were promoted on 18.08.2003 itself. The representation made by the petitioner as against the said promotion in the year 2003 was also duly considered by the respondents/department and rejected. The eligible officers in the zone of consideration for promotion to the rank of Deputy Inspector General were assessed by the Board as indicated in Appendix A and B with reference to last five years confidential