AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1019 OF 2009 Harendra Singh Ag EAP 4 ... Petitioner Vs. The Union of India & Ors. ... Respondents Mr. Ajay Pal Singh for the petitioner. Mr. A.M. Sethna with Mr. S.C. Pal and Mr. Hariharan i/b Mr. T.C. Kaushik for respondents 1 to 5. CORAM : SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED : 9TH NOVEMBER, 2009. P.C.:- 1. The case of the petitioner is that on 20/6/2003, the Indian Navy invited applications from candidates with 10+2 (PCM) academic qualifications for enrollment in the Navy as Artificer Apprentices for AA-115 Batch by publishing an advertisement in the “Employment News” dated 20/6/2003 setting out terms and conditions of the AJN 2 service. According to the petitioner, he was eligible for the post and, hence, he submitted his application. On 31/1/2004, the petitioner was duly enrolled in the Navy under 10+2 (PCM) entry Artificer Apprentice for Batch-115 through a prescribed selection process. According to the petitioner, from 2/2/2004 to 29/4/2006, he has undergone the initial training for 117 weeks with the Navy as per the scheduled training programme. 2. It is the case of the petitioner that while he was in the final phase of his initial training at INS Valsura, CABS vide his order No.26 dated 9/3/2006 has issued “Disposal instructions” to AA-115 batch sailors to be posted on board ships on permanent duty on completion of their 117 weeks of initial training and to be promoted to the rank of Artificer 5th Class. According to the petitioner, on 27/4/2006, IHQ, MOD (Navy) / Directorate of Naval Training has provisionally approved promotion to 10+2 entry Artificer to 5th Class with the effective date adjusted to 130 weeks from the date of commencement of initial AJN 3 training of AA-115 batch, pending amendment to NI 2/96, and further requested FOCINC (SOUTH) to draw up a suitable syllabi for 13 weeks afloat/squadron training for the Electrical, Shipwright and Aviation 10+2 entry AA's, so as to make the total initial training period to 130 weeks, so as to equate with the initial training duration to that of ERAs. 3. The petitioner's further case is that on 27/4/2006, the above direction of the IHQ MOD (Navy) was duly executed by INS Valsura in its letter and spirit and all sailors of AA-115 batch were transferred to ships on permanent duty as per the disposal given by CABS and on completion of 130 weeks of total initial training (117 + 13) weeks, all AA-115 batch sailors were promoted to Artificer 5th class w.e.f. 29/4/2006 by their respective Cos. 4. According to the petitioner, on 2/5/2006, the Bureau of Sailors, vide letter No.DV/300/10+2-AA dated 2/5/2006 directed the Commanding Officers of the concerned ships AJN 4 that consequent to amendment in the training pattern for 10+2 entry Artificer Apprentices, the date of promotion to Artificer 5th class should be adjusted to 130 weeks from the date of commencement of training (basic date) for AA-115 batch Artificer Apprentices, and accordingly all sailors of AA-115 batch were promoted to the rank of Artificer 5th class on completion of 130 weeks i.e. on 31/7/2006. 5. According to the petitioner, on 28/8/2006, the petitioner was promoted to the rank of EAP 5 with effect from 29/7/2006 by CO INS Brahmaputra vide Genform No. 0600652/S dated 28/8/2006. According to the petitioner, on 5/10/2007, the petitioner was again promoted to the rank of Ag EAP 4 with effect from 22/4/2007 vide INS Brahmaputra Genform No.0701135/S dated 5/8/2007. 6. It is the petitioner's case that on 22/4/2008, the petitioner appeared and qualified confirmation board for EAP4. However, his confirmation has been withheld AJN 5 without any authority and he has also not been deputed for PO Leadership course which is mandatory for his next promotion i.e. EAP 3. 7. It is the petitioner's case that on 31/5/2008, since CABS did not issue BOP, despite the fact that CO INS Brahmaputra had duly promoted the petitioner and issued the necessary Genforms (INS Brahmaputra Genform No. 0600652/S dated 28/8/2006 and Genform No.0701135/S dated 5/8/2007 relevant), showing that the petitioner has been promoted to the rank of EAP 5 with effect from 29/7/2006 and Ag EAP4 w.e.f. 22/4/2007 and, therefore, Naval Pay Office could not adjust his Pay and Allowances as per the rank held from time to time. According to the petitioner, he put up a general request to his CO seeking redressal for non adjustment of Pay & Allowances as per his rank held. The CO INS Brahmaputra in turn forwarded the case to his superior vide his letter no.403/16/2 dated 31/5/2006 i.e. FOCWF with copy to CABS and LO i/c Naval Pay Office, Mumbai for the necessary action by the AJN 6 competent authority. The petitioner's case was sent to to FOC-in-chief. On 7/7/2008, HQ Western Naval Command forwarded the case to the Chief of the Naval Staff, requesting him to notify promotion policy to AA 10+2 entry sailors by getting the NI 2/96 amended. According to the petitioner, in the meantime, promotion to Artificers 5th class has been declared as provisional. However, no authority has been quoted for that. According to the petitioner, on 5/8/2008, HQ Western Naval Command has promulgated new promotion policy without quoting any authority. Aggrieved by this, the petitioner put up a statutory representation. However, the petitioner's grievance was not redressed. 8. The petitioner, therefore, filed Writ Petition No.217 of 2009 in this court. On 10/2/2009, the Division Bench of this court presided over by the Hon'ble the Chief Justice disposed of the petition by directing the competent authority to consider the averments made in the writ petition as well as in the earlier representation submitted AJN 7 to the respective authorities and take a final decision by passing a reasoned order within four weeks. 9. Pursuant to this order, a reasoned order came to be passed on 9/3/2009. That order is annexed at Ex-S to the petition. The said order is the subject matter of this writ petition. 10. We have heard learned counsel for the petitioner at some length. He has reiterated the contentions raised in the petition. We have also heard learned counsel for the respondents. He has drawn our attention to the affidavit in reply filed by Captain Alexander Joseph, Officiating Commodore Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai. It would be necessary to quote the relevant paragraphs of the said affidavit. “3. At the outset, I say and submit that the Petitioner was enrolled in the Indian Navy with Basic Date 02nd February, 2004 (01/2004 10+2 AA Branch). The initial training was scheduled for 117 weeks as per pre-scheduled program. The Commodore Bureau of Sailors (CABS) issued AJN 8 disposal instruction after completion of 117 weeks of training. With this background, I say and submit, that the reliefs sought in the petition hinge on a Policy Decision which is being taken out at the highest level by the Integrated Headquarters, Ministry of Defence (Navy), New Delhi. The issue agitated in the Petition mainly relates to the promotion to EAP 5th class (Provisional) of the Petitioner. In this context I submit that the Integrated Headquarters, Ministry of Defence (Navy), New Delhi had accorded appointment for promoting all 10+2 Entry Artificer Apprentice to Artificer 5th class provisionally with an effective date adjusted to 130 weeks from date of commencement of training. Since the promotion was provisional, Bureau Order of Promotion (BOP) was not issued to the Petitioner. Infact there is no reference to provisional appointment to Artificer 5th class anywhere in the Navy Instruction 2/S/96 and accordingly no BOP was issued to the Petitioner. However, the Petitioner was erroneously / incorrectly promoted by his unit to Acting EAP 4, when in fact the Bureau of Sailors had vide the letter dated 31st October, 2008 had clarified that such sailors may be permitted to wear the rank and batch of Artificer 4th class while the date of promotion would be adjusted as per the existing provisions of the NI 2/S/96. 4. I further say and submit that the Petitioner had put up a Redressal of Grievance under Part II of the Navy Regulations 234-239. In the petitioner the present Petitioner had filed Writ Petition, on the same grounds as the present one before this Hon'ble Court which was duly disposed of vide order dated 10th February, 2009. Accordingly the authorities have duly acted on the Petitioner's representation and pursued an order dated 9th March, 2009 the contents of AJN 9 which are self explanatory, a copy of which is at Annexure C of the Petition. The saide order categorically mentions that as the issue involves a Policy Decision, it will have repercussion at the all India level. The promotion pattern in respect of 10+2 Artificer Apprentice Entry Scheme sailors inducted since Jan 2004 has been comprehensively examined at Integrated Headquarter, Ministry of Defence (Navy), New Delhi. A case for amendment of NI-2/S/96 is being taken up with Ministry of Defence (Navy) for implementation with retrospective effect i.e. Jan 2004 onwards. Post promulgation of the amended provision, adjustment of promotion / seniority of these sailors along with pay and allowances as applicable would be effected.” 11. From the above quoted paragraphs, it is clear that the amendment of NI-2/S/96 has been taken up with the Ministry of Defence (Navy) for implementation of new policy with retrospective effect from January, 2004 onwards. We are informed that early decision on the issue is expected. This is again reiterated by Commodore Dilip P. Kulkarni, Commodore Bureau of Sailors, Cheetha Camp, Mankhurd, Mumbai – 400 088 in his affidavit dated 14/9/2009. We may quote the relevant paragraphs from his affidavit. AJN 10 “2. I say and submit that, further to the order dated 09 Mar 09 issued by Integrated Headquarters, Ministry of Defence (Navy), The case of Amendment of Navy Instruction (NI) has been taken up with Ministry of Defence (Navy) on 11 Apr 09. Presently, the matter is pending with Ministry of Finance. The said matter is under active consideration. Annexed hereto and marked as Exhibit-A is a copy of the Integrated Headquarters, Ministry of Defence (Navy), Directorate of Personnel directive dated 04th Sep 2009. 3. I say and submit that, it is also pertinent to mention that as on todate the proposed amendment to the Navy Instruction, will affect about 739 sailors. Hence there is no merit for the petitioner to state that only he is victimised. The so called amendment to Navy Instruction is a routine administrative procedure involving the approval of Ministry of Defence (Navy) and Ministry of Finance, hence the petitioner along with all other affected sailors will be paid all their dues with retrospective affect on and from the said amendment coming into force and effect. ...” 12. In our opinion, it is possible that after NI-2/S/96 is amended with retrospective effect, the petitioner's grievance may be redressed. In that case, he may get adjustment/promotion and seniority along with pay and AJN 11 allowances. It would be, therefore, proper not to pass any order and await the decision of the Ministry of Defence. We, therefore, dispose of the petition with liberty to the petitioner to file appropriate petition in this court if he so desires in case, the proposed amendment either causes prejudice to him or it does not redress his grievance. We expect the Central Government to take expeditious steps in respect of the proposed amendment considering the fact that this case involves service conditions of 739 sailors in this category. 13. We make it clear that all contentions raised in this petition are kept open. Nothing said by us in this order should be treated as our opinion on the contentions raised by the petitioner. 14. The petition is disposed of. [SMT. RANJANA DESAI, J.] [SMT. MRIDULA BHATKAR, J.]