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2010 DIGILAW 1208 (CAL)

Kunjumon Francis v. UNION OF INDIA

2010-09-20

KALIDAS MUKHERJEE

body2010
JUDGMENT Kalidas Mukherjee, J. 1. THIS is a writ petition filed by the petitioner under Article 226 of the Constitution of India. The case of the writ petitioner, in short, is that he joined the coast guard service as Navik (GD) with effect from August, 1, 1997, and completed the basic training from August 4, 1997 to January 25, 1998. On completion of the said training, he was allotted Aviation Branch with specialized Trade AH-III (Aircraft Handler). He completed his sea training during the period from January 26, 1998 to March 1, 1998. The AH-III course was completed from SFNA (School for Naval Airmen), INS Garuda at Kochi from March 2, 1998 to July 18, 1998. The petitioner was posted at CGAS (Coast Guard Air Station) at Daman. The petitioner during his tenure as CGAS was asked to opt for diving course to become Ship Diver. He has undergone such diver course and become a ship diver. He was benefited with an allowance of Rs. 200/- per month in his salary. Thereafter, he was also asked to opt for other course of Air Crew Diver and he opted for such course. After successful completion of such course, he joined as Air Crew Diver (ACD) on September 27, 2003 and accordingly, was inducted to the permanent cadre of Air Crew Diver. 2. IT is contended by the petitioner that from the letter dated March 18, 1988 and April 9, 1988 issued by the Coast Guard Headquarter, it is clear that the ACD in the Coast Guard would continue to be deployed for diving duty so long as they are medically fit. IT is the case of the petitioner that the two other ACDs filed writ petition earlier and fought for their legitimate claim against the arbitrary action of the respondent authorities terminating them from the specialized cadre, before the Honble Court, but, the respondent authorities submitted before the Honble Court that the tenure of 7 years applicable to Naval Sailors vide letter dated April 18, 1986 was also applicable to Coast Guard ACDs. Reversion of ACD sailor is carried out in the Indian Navy after 7 years of service in accordance with Ministrys letter dated April 18, 1986. Reversion of ACD sailor is carried out in the Indian Navy after 7 years of service in accordance with Ministrys letter dated April 18, 1986. The coast guard has now adopted the same procedure of reversion from October, 2003 and thus the claim of the previous ACM(D) had been rejected to continue in specialist cadre so long they were medically fit. The petitioner has contended that by virtue of letter dated April 28, 2008 issued by the Ministry of Defence, the petitioner has the full specialist qualification as a permanent cadre in the Naval Airmen branch with effect from April 30, 2008. The coast guard has adopted the same procedure as applicable in Indian Navy and in view of the amendment in Indian Navy implementing permanent tenure for ACM(D) till they are medically fit, the coast guard is also required to amend the tenure of ACD cadre. It is contended that the petitioner is 33 years old and he is expected to continue another 15 years since he is medically fit and the respondents can utilize his experience as well. The petitioner has made representation for amendment of service tenure for ACD as it is amended by the Indian Navy. The respondents have filed the affidavit-in-opposition, contending, inter-alia, that previously a policy decision was taken by the coast guard headquarter, New Delhi on April 19, 1988 that ACD in coast guard would continue to be deployed for daily duties so long as they are medically fit. But subsequently, in October 2003 by letter dated October 28, 2003, the policy was taken that the tenure of ACD would be 7 years. It has been contended in the affidavit-in-opposition that the prevailing tenure based policy of 7 years has also been ratified by the Ministry of Defence letter dated July 22, 2008 and in view of the latest policy decision of the Govt. of India, the petitioner is not entitled to get permanent tenure as ACD in the coast guard. 3. MS. Ganguly appearing for the petitioner submits that in the earlier writ petition, the respondent authorities stated that the general rules and procedures applicable to Indian Navy were also applicable to coast guard, but, after amendment of the rule in Indian Navy granting permanent tenure, the coast guard is also required to introduce the same policy of permanent tenure in respect of ACD in the coast guard. It is contended by MS. Ganguly that representation was made by the writ petitioner to the respondent authorities, but, it was rejected stating that the petitioner could apply for extension for three years vide letter dated October 28, 2003 and that there was no provision for retention. 4. MS. Ganguly contends that the writ petitioner has specialized knowledge and there is dearth of such specialized personnel in the coast guard, but, the respondent authorities are not willing to grant permanent tenure so long there is medical fitness, in deviation of the same policy as available in the Indian Navy. MS. Ganguly contends that since the coast guard used to follow the general practice and procedure of Indian Navy and the rules of the Indian Navy have since been amended granting permanent tenure to ACMD, the same facility of permanent tenure so long there is medical fitness, should also be extended to the ACD in the coast guard. Mrs. Biswas appearing for the respondent authorities submits that it was the policy of the coast guard up to 2003 that ACD would continue to be deployed for daily duties so long as they are medically fit, but, in October, 2003, a policy decision was adopted granting 7 years tenure to the ACD which was subsequently ratified vide letter dated April 16, 2009 issued by the coast guard headquarter, New Delhi. 5. MRS. Biswas contends that since 2003, there is the consistent policy of the coast guard that the tenure of the ACD would be 7 years. MRS. Biswas contends that ACD is not a cadre post, but, it is a course for specialization which the writ petitioner voluntarily opted and subsequently it yielded him some extra allowances in his salary. Ms. Ganguly contends that in the case of Indian Navy, the tenure is for 15 years and in case of coast guard it is upto 57 years. It is contended that in case of ACD which is specialized post its tenure is for 7 years only because of hard nature of work which is discharged by the ACD. MRS. Biswas contends that government has taken the policy that the tenure of ACD should not be extended beyond 7 years in order to give opportunity for fresh employment. 6. IT appears that the writ petitioner joined as Navik and by undergoing subsequent training he is now posted as Pradhan Navik. MRS. Biswas contends that government has taken the policy that the tenure of ACD should not be extended beyond 7 years in order to give opportunity for fresh employment. 6. IT appears that the writ petitioner joined as Navik and by undergoing subsequent training he is now posted as Pradhan Navik. IT has been contended in ground no.II of the writ petition that the claim in the earlier writ petition to continue as ACM(D) till they were medically fit was rejected by the Honble Court as the coast guard contended that as per the general rules and procedures of Indian Navy which was also applicable to coast guard, the tenure of 7 years was also applicable in case of ACD. Ms. Ganguly has drawn my attention to para 4 of the affidavit-in-opposition wherein it has been stated that a policy decision was taken by the coast guard headquarter on April 19, 1988 that the ACD would continue to be deployed for daily duties so long as they are medically fit. By making reference to this averment in the affidavit-in-opposition Ms. Ganguly wants to establish that in spite of such averment, the respondent authorities are not deliberately extending such benefit to the writ petitioner. It appears from the Annexure R-I to the affidavit-in-opposition, a letter dated October 28, 2003 that the tenure of ACD would be 7 years which was subsequently ratified by letter dated April 16, 2009, Annexure P to the affidavit-in-opposition. It appears from the letter dated April 16, 2009 (Annexure R-5 to affidavit-in-opposition) that the normal tenure of the ACD coast guard has been restricted to 7 years or till promotion to the rank of subordinate officer whichever is earlier and that the provision for extension of tenure beyond 7 years has not been concurred by the Govt. of India, Ministry of Defence. Mrs. Biswas has also referred to Annexure R-3, that is, the judgment of the Honble High Court at Madras wherein similar claim was also dismissed. 7. SINCE it is the consistent policy of the coast guard that the tenure of the ACD would be 7 years and the extension beyond that has not been concurred by the Govt. of India, it cannot be said that the coast guard should adopt the policy of permanent tenure so long they are medically fit as is available in Indian Navy. of India, it cannot be said that the coast guard should adopt the policy of permanent tenure so long they are medically fit as is available in Indian Navy. In view of such clear policy for the tenure of 7 years in case of ACD of the coast guard, the contention of the writ petitioner as made in this writ petition, is not acceptable. There is no merit in this writ petition. 8. THE writ petition is, accordingly, dismissed. Urgent photostat certified copy, if applied for, be made over to the parties as early as possible.