IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.30872, 30873 and 35116 of 2004, 16272 and 16273 of 2005 and 26195 of 2009 and W.P.M.P.NOs.42340 to 42342 of 2004 and M.P.NOS.1 TO 3 OF 2009 T.P.Rajeev .. Petitioner in W.P.No.30872 of 2004 and W.P.No.16272 of 2005 A.K.Rathee .. Petitioner in W.P.No.30873 of 2004 and W.P.No.16273 of 2005 P.C.Rana .. Petitioner in W.P.No.35116 of 2004 Pawan Kumar .. Petitioner in W.P.No.26195 of 2009 Vs. 1.Union of India, represented by its Secretary to Government of India, Ministry of Defence, South Block, New Delhi- 110 001. 2.The Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi-110 001. 3.The Deputy Inspector General, Bureau of Naviks, Cheetah Camp, Mankhurd, Mumbai-400 088. .. Respondents in W.P.Nos.30872, 30873 and 35116 of 2004 and RR1 to 3 in W.P.26195/2009 1.The Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi-110 001. 2.The Deputy Inspector General, Bureau of Naviks, Cheetah Camp, Mankhurd, Mumbai-400 088. .. RR1 and 2 in W.P.Nos.16272 and 16273/2005 https://hcservices.ecourts.gov.in/hcservices/ 3.The Commanding Officer, 848 SQN (ICG) C/o.Coast Guard Air Station (Chennai), Rudra Road, St. Thomas Mount, Chennai-600 016. .. Respondent No.3 in W.P.Nos.16272 and 16273/2005 and R-4 in W.P.No.26195/2009 W.P.Nos.30872 and 30873 of 2004 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent policy letter dated 28.10.2003 and to quash the same and to direct the respondents to retain the petitioners in ACM(D) cadre of Coast Guard service. W.P.No.35116 of 2004 has been preferred under Article 226 of the Constitution of India for the issue of certiorarified mandamus to call for the records of the second respondent policy letter in NK/0110/1, dated 28.10.2003 along with the consequential drafting order for specialist qualification no.01/2004 reversion of the third respondent dated 19.3.2004 and to quash the same and to direct the respondents to restore the petitioner in ACM(D) cadre with all monetary benefits and privileges attached to the said position. W.P.Nos.16272 and 16273 of 2005 have been preferred under Article 226 of the Constitution of India for the issue of writ of certiorari to call for the records of the second respondent impugned communication of reversion bearing No.DTG 021627/MAY along with the consequential letter of the third respondent bearing No.848/257 dated 4.5.2005 and to quash the same. W.P.No.26195 of 2009 has been preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records of the second respondent in the impugned policy letter bearing proceedings No.NK0110/1 dated 28.10.2003 and to quash the same and to direct the respondents to retain the petitioner in Air Crew Men (Diver) cadre in the Coast Guard service. For Petitioners : Ms.N.Kavitha in W.P.No.26195 of 2009 Mr.S.Thiruvenkatasamy in other W.Ps. For Respondents : Ms.M.Nirmaladevi, ACGSC in W.P.No.26195 of 2009 Ms.R.Meenakshi, ACGSC in other W.Ps. - - - - COMMON ORDER W.P.No.30872 of 2004 was filed by one T.P.Rajeev, who was employed as a General Duty NVK in the Coast Guard Service in the year 1991. He was subsequently after giving basic training, allotted as Radio Operator in the General Duty Branch. The petitioner subsequently after having undergone Aircrew Diver course, was made as Aircrew Diver on 27.2.1997. Holding the said post of Aircrew Diver (ACD), he is entitled for monetary privileges https://hcservices.ecourts.gov.in/hcservices/ after V Central Pay Commission. His monetary benefits were increased to Rs.3500/- per month with effect from 1.7.1997. This allowance was subsequently revised to Rs.7000/-. The petitioner was in service for more than seven years in the specialised cadre of Aviation as ACD in various units. 2.It was stated that on 28.10.2003, a policy was evolved by the Coast Guard Head Quarters (CG HQ). By the aforesaid policy, the age limit including tenure was restricted. Therefore, in the light of the policy letter, dated 28.10.2003, the Director General, Coast Guard Head Quarters (DG CG HQ) curtailed the tenure. Hence the petitioner has come forward to challenge the same. 3.Along with the petitioner, another similarly placed person by one A.K.Rathee also filed a writ petition being W.P.No.30873 of 2004 for the very same relief. It is unnecessary to go into his service details. It is suffice to state that both the writ petitions were admitted on 26.10.2004. In their applications for interim relief, namely for stay of the impugned policy and injunction restraining the respondents from removing or reverting the petitioners from ACM(D), only notice was ordered. Subsequently, all the four applications were dismissed by a common order, dated 14.3.2009. A common counter affidavit, dated 18.2.2005 was filed by the respondents. 4.Thereafter, the very same petitioners M/s.T.P.Rajeev and A.K.Rathee filed Writ petitions being W.P.Nos.16272 and 16273 of 2005. In those two writ petitions, the prayer of the petitioners was to challenge the order made pursuant to the signal given as well as the consequential reversion order, dated 4.5.2005 issued by the Commanding Officer, reverting them from ACD cadre for permanent duty. Those two writ petitions were admitted on 11.5.2005. Pending those writ petitions, this court granted an interim stay on the same day. Subsequently, a vacate stay petition was filed in WVMP No.2494 of 2005 together with a supporting counter affidavit. This court refused to vacate the stay and made the stay absolute on 5.1.2008. The main writ petitions were directed to be posted for final hearing. 5.Apart from these four writ petitions, one P.C.Rana filed W.P.No.35116 of 2004 challenging the policy made by DG CG HQ, dated 28.10.2003 and the consequential reversion order, dated 19.3.2004 given to him. That writ petition was merely directed to be posted along with connected matters. On notice from this court, a counter affidavit, dated 26.4.2005 was filed by the respondents. 6.After these five writ petitions were filed, another person by name Pawan Kumar filed W.P.No.26195 of 2009, seeking to challenge the policy letter sent by CG HQ, dated 28.10.2003 and for a direction to retain him in ACM(D) Cadre. When that case came up on 21.12.2009 during vacation, this court directed the matter to be posted before the regular court. When that case came up on 7.1.2010, the respondents were directed to file counter and it was directed to be heard along with the other date fixed writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 7.On notice from this court, Ms.Nirmala Devi, Additional Central Government Standing Counsel took notice in that writ petition. A counter affidavit, dated 22.1.2010 was filed together with typed set of documents. 8.In view of the interconnectivity among these writ petitions, they were grouped together and a common order is passed. Heard the arguments of Ms.N.Kavitha, learned counsel for the petitioner in W.P.No.26195 of 2009, Mr.S.Thiruvenkatasamy, learned counsel for the petitioner in other five writ petitions, Ms.M.Nirmala Devi, ACGSC in W.P.No.26195 of 2009 and Ms.R.Meenakshi, ACGSC in all other writ petitions. 9.It must be noted that the Coast Guard was established by the Coast Guard Act, 1978. Under Section 4 of the CG Act, the said force is considered to be an Armed Force of the Indian Union. Apart from setting up the force and various procedures for disciplinary action and removal, Section 123(1) of the CG Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. Under Section 123(2), without prejudice to the generality of Section 123(1), the Central Government has other powers listed out therein. Section 123(2)(c) provides for framing rules regarding conditions of service including service privileges and deductions from pay and allowances of members of the Coast Guard. 10.The counsel for the petitioners therefore contended that the Government of India by proceedings, dated 11.11.1983 communicated sanction of the President of India for creation of Coast Guard Aviation Cadre on the terms of the conditions of service of Coast Guard Aviation personnel. The provisions of the said letter had come into force from 1.7.1983. In the annexure-II attached to the said letter, it was stated that in the general duty branch, there shall be a cadre of Airmen, which will comprise of several speciliasation including ACD. The pay scale for such post is delineated in the said letter. The privileges given to them is as follows: "Subordinate officers and Naviks of the Coast Guard Aviation Cadre, who qualify and fulfil all conditions laid down and are employed as aircrew, on tenure basis, shall be eligible for flying pay of Rs.374.50 p.m. as applicable to sailors of Naval Aviation Branch vide NI-25/74, as amended from time to time. 3.Flying Clothing Coast Guard Aviation Cadre personnel shall be entitled to flying clothing items as per scales admissible to Indian Naval Aviation personnel. Condition regarding accounting/replacement extra applicable to Indian Naval Aviation personnel shall also apply mutatis-mutandis.. 4.Special Rations for Aircrew: Coast Guard Subordinate officers and Navikas (Aircrew) will be entitled to extra https://hcservices.ecourts.gov.in/hcservices/ rations for pre-flight meals as authorised to aircrew of Indian Navy." 11.Thereafter, CG HQ, by letter, dated 18.3.1988 informed that the ACD in the Navy will be staying in the cadre for seven years. Insofar as CG HQ was concerned, they are of the view that ACD will remain the cadre as long as they are medically fit. Subsequently, by a further communication, dated 09.04.1988, the HQ informed as follows: "2.On reconsideration of the proposal, it is seen that Air Crew Diver is a specialisation of the Coast Guard Air Crew Cadre of the GD Branch. The question of restricting their utility for any fixed time does not therefore arise. 3.In view of the above, it is clarified that the Air Crew Diver in the Coast Guard would continue to be deployed for diving duties so long as they are medically fit." 12.Thereafter, the Commander in-charge of Cheetah Camp, Mankhurd, Mumbai sent a communication, dated 6.5.1988 to the HQ raising certain doubts. In paragraph 4 of the letter, the Commander expressed doubts as follows: "4.Air crew diver is a specialisation of the Coast Guard Air Crew Cadre of the GD Branch vide Coast Guard Headquarters letter quoted at para 1 above in the light of the annexure referred to at para 2(b) above. Being a specialisation by itself, it is seen that personnel qualified ACD need not udergo any other higher rank 'Q' professional Courses for promotions. It is also stated that the employability of ACD if qualified only in ACD, also would pose problems for the Service. It is recommended that ACD qualification be made q Sub-specialisation for Service personnel. It is also stated that making ACD a sub-specialisation would not detract any charm because of the Aviation scale of pay, dip money etc... etc...." 13.In response to their query, the HQ by a further letter, dated 12.8.1988 informed that ship diver or an air crew diver is an additional sub specialisation irrespective of branch and cadre. In respect of further promotion, the individual concerned will have to undergo higher rank courses of his parent branch specialisation. It was finally, the CG HQ in order to streamline the post of ACD issued guidelines called "Guidelines for Management of ACD Cadre in Coast Guard", dated 28.10.2003. For the first time, they have issued comprehensive guidelines in respect of the cadre. It was stated by the HQ that in the absence of a clear-cut policy, the ACD cadre in the CG is functioning in contravention of existing Government of India regulations in relation to age limit, tenure in cadre etc. The ACD cadre enrolled personnel are borne in https://hcservices.ecourts.gov.in/hcservices/ helicopter flights for undertaking SAR and other such operational commitments. The Government India's sanction available in the cadre is limited and continuance of personnel in cadre since enrollment without any revision in their status will lead to audit objection at a later stage. Therefore, the policy was revised and restricted to certain categories of persons regarding the volunteers undergo training and discharge his duties. 14.The petitioners were concerned about the tenure of ACM (D) as well as reversion to parent cadre as found in paragraphs 6 and 7, which is as follows: Tenure in Cadre: 6.The normal tenure of an ACD enrolled personnel would be for 07 years from the date of enrollment as laid down vide GOI MOD letter AO/4401/NHQ/733/DOI/D(N-II) dated 18 Apr 1986 (placed at Annexure-I), subject to meeting the requisite medical standards prescribed for the cadre. However, on special cases the tenure may be extended for a further period of 03 years with approval of the Government. Such cases would only be considered to meet service exigencies such as shortage in cadre etc. Cases seeking such extension are to be forwarded by Commanding Officers through Regional Commanders to CGHQ for taking up with Government. Reversion to Parent Cadre: 7.ACD enrolled personnel would be reverted to their parent cadre in the following eventualities:- (a)On completion of 07 years of service, in normal cases (However extendable by another 03 years as mentioned at para 6 ibid) (b)On promotion to the rank of Adhikari or equivalent. (c)On medical grounds. (d)In above cases, Bureau will issue CG Drafting Order Specialist Qualifications – Reversion." 15.Pursuant to the said policy, the petitioners, who were originally drafted as ACD, were reverted to the parent department. The petitioners have come forward to challenge the said policy, which according to them is an hindrance for their continuance as ACD. 16.In the typed set filed by the CG, it was stated that the policy was sent for approval by the Government of India. The Government of India, Ministry of Defence, by proceedings, dated 22.7.2008 informed the DG CGHQ, which is as follows: "I am directed to convey the sanction of the President to restrict the normal tenure of https://hcservices.ecourts.gov.in/hcservices/ ACD Cadre in Indian Coast Guard to seven years or till promotion to the rank of Subordinate Officer whichever is earlier. This will be applied with immediate effect but not for cases where the individuals have approached the High Court. Such cases shall continue to be governed by the old policy. CGHQ will incorporate this into the detailed guidelines which prescribing the tenure and other conditions for Air Crew Diver in coast Guard. 2.Coast Guard Headquarters shall vigorously pursue the cases pending in High Court." 17.The learned counsel for the petitioners mainly contended that the policy is not referable to Section 123(2)(c) of the CG Act inasmuch as the Central Government has not framed any rules. Therefore, the policy has no statutory sanction. They also stated that the petitioners have been regularly drafted into ACD. As the posts have been approved by the Central Government, unless they are medically unfit, they are entitled to continue. Since the posts involved higher emoluments, any reversion must be informed with reasons and natural justice. The petitioners having undergone training and have been discharged their duties attached to that post, should not be reverted to the lower post. This will also involve drain on the exchequer, besides denying them their legitimate expectations to hold the posts. Further such a policy cannot have any retrospective effect. 18.Per contra, Ms.R.Meenakshi, learned ACGSC contended that the post which has been created was not a sanctioned post and it was created by the approval of the Central Government with extra allowance. The post in the CG cannot have different tenure as distinct from the policy adopted in the Indian Navy. Further it was stated that nobody can claim to continue in the post, for which they were not inducted. They are only entitled for regular promotion by rank and status held by them. The procedure for medically fit was only to continue them while they were in flying duty which was an operational requirement for the Aviation unit. The condition, in which the earlier circular regarding continuance till such time they are medically found fit, cannot be continued for eternity. At the relevant time, there was enough volunteers available. Subsequently, sufficient numbers of enrolled personnel had opted to qualify for ACM(D) cadre. In order to accommodate the newly trained ACM(D), the earlier ACM(D), who completed the stipulated period, were required to be reverted to their original posts. It is only because of these improvements in the availability of volunteers, a policy decision was taken to restrict the tenure to seven years. The said policy was also ratified by the Government of India on 22.7.2008. Even in the Indian Navy, the Government of India has allowed ACDs only for seven years as can be seen from the Government of India, Ministry of Defence communication, dated 18.4.1986. https://hcservices.ecourts.gov.in/hcservices/ 19.It was stated that as per the said policy, the petitioners are liable to be reverted back to the parent cadre after completing the period of seven years of service as ACM(D). It was also stated that the policy evolved by the HQ had the approval of the Government. The petitioners have no right to question the same. The creation and abolition of posts is dictated by the policy decision, considering the existing circumstances and for administrative necessities. It cannot be questioned by the petitioner. The contentions raised by the similarly placed persons were rejected by the Bombay High Court and Delhi High Court. It was also stated that the ACD is not a specialised cadre of Aviation branch. The petitioners cannot claim any permanency. There were similarly placed persons who are also entitled to be posted for the said posts. The persons who are not covered by the Court order, have been reverted. Those who are covered by the court order are continued pending disposal of the writ petitions. 20.Further, it was stated that though the policy was evolved as early as in October, 2003, the first two writ petitioners who were originally filed writ petitions, did not get any interim order. Subsequently, again they filed two writ petitions and obtained an interim order, which cannot be allowed. In this context, it is necessary to refer to the orders passed by the other High Courts in respect of the same issue. 21.A division bench of the Bombay High Court in Narendra Kumar Dabar Vs. Union of India and others reported in CDJ 2006 BHC 784 dealt with similar contentions raised and they were rejected. The same policy was confirmed. In paragraphs 8 and 10, the Bombay High Court observed as follows: "8.In the instant case, we may note that the Petitioner was appointed as A.C.D. some time on 12.6.1992. There are similar posts in the Navy. Earlier post of A.C.D. in the Navy was tenure post of three years. It was increased from time to time and as of the date of petition, it was seven years on fulfillment of service conditions. The question which arises whether that tenure would be applicable to A.C.D.s in the coast Guard. The communication of 9.4.1988 is on internal communication which has taken a view that A.C.D in the coast guard would continue to be deployed for diving duties so long as they are medically fit. This was not an order by an authority competent to make the rules of recruitment or conditions of service. On 20.10.2003, an order came to be issued that those who are employed on tenure basis would be entitled to flying pay of Rs.375.50 per month as applicable to sailors of Naval Aviation Branch. Some additional benefits, which the personnel of Indian Navy were having, were also extended to A.C.D.s. .... https://hcservices.ecourts.gov.in/hcservices/ 10.From a bare reading of Clause (a),(b) of Para 2, of the communicatin dated 29.9.1978, it would be clear that if naval rules and regulations are not applicable, then the Central Civil Services Rules would be applicable. This would mean that in the matter of conditions of service, either the general rules of Indian Navy would be applicable or Central Civil Services Rules. The Petitioner was selected as A.C.D. and was drawing benefits of A.C.D. as payable in the Navy. If the contention of the Petitioner is to be accepted, then in that event in the absence of any rule made by the President, the Petitioner could not have been appointed as A.C.D. The general construction therefore, ought to be that in so far the conditions of service are concerned, it would include specialized services and conditions of service as applied to the Indian Navy would be applicable. In the instant case, there are similar posts in the Indian Navy. The term of deputation is seven years and as such that would be tenure also for A.C.D.s in the coast guard. There is nothing on record or brought to our notice otherwise, that the tenure posting of Navik is covered by some other rules. It cannot be that once a person is appointed as A.C.D., he continues there for all time. Considering the letter of appointment itself, it would show that it was tenure post. For all the aforesaid reasons, we are of the considered view that the tenure of the A.C.D. would be the same as made applicable to the naval services. The Petitioner therefore, has no right to contend that once he is appointed, he will continue to be deployed for diving duties so long as he is medically fit. There is no such rule. Even otherwise, any employee can always be relieved from the post on medical unfitness. A tenure post contemplates a particular period upto which a person can serve therein. In the instant case, it is seven years in terms of the contract in the Indian Navy. " (Emphasis added) 22.One Himalayan moved the Circuit Bench at Port Blair of the Calcutta High Court in W.P.(AN) No.151 of 2004. The said matter was disposed of on 15.6.2005 dealing with similar contentions. The learned Single Judge held that once a person qualifies to hold the post of ACD, he is entitled to continue in the said post and the policy issued by the department on 28.10.2003 will not affect the existing personnel. Because the policy cannot be given retrospective effect. The said issue was taken on appeal in Appeal No.50/2005 and the matter was heard by a division bench. It was held that before passing an order of reversion, an affected party must be given an opportunity in the light of the earlier observations made by that court in 17.6.2004. It is now stated https://hcservices.ecourts.gov.in/hcservices/ that the matter has been taken up before the Supreme Court and it is pending. 23.The Delhi High Court in Jal Dev Sindhu Vs. Union of India and others which was decided by a division bench on 25.11.2009 in WP(C)No.8173 of 2008. There, the Delhi High Court after referring to the judgment of the Supreme Court in Roshan Lal Tandon Vs. Union of India reported in 1968 (1) LLJ 576 (SC), held in paragraph 7 to 10 as follows: "7.It is apparent that in the Coast Guards' service there are various posts in the cadre, viz., Navik, Uttam Navik, Pradhan Navik, Adhikary, Uttam Adhikary etc. Naviks and Uttam Naviks, on completion of special training in Air Crew Diving can opt for special duty of Air Crew Diver and in such case, for doing a special job, a special additional pay is paid in addition to the regular scale of pay in the post held in the regular promotion cadre. In other words there is no separate cadre post of Air Crew Diver. The person concerned continues to hold the substantive post held by him with all benefits of the said post and in addition receives a special pay for working as an Air Crew Diver. 8.It is settled law that no employee can claim a specific duty if the employer decides that no such duty should be assigned. Instant case is not a case of dismissal of service or reversion to a lower post. The writ petitioners who joined as Naviks were working as Uttam Naviks in the year 2002 when they were posted as Air Crew Divers. The petitioners continued to remain in their cadre and will in due course get further promotion in accordance with the service rules. 9.Why in the instant case, even in ordinary cases of ordinary