Rajesh Kumar vs Union of India and Others

Ravi R. Tripathi, J.—The present petition is filed praying that:-

A) Quashing and setting aside the order dt. 2.4.2013 qua the petitioner reverting him from ACM(D) Air Crew Man) (Diver) specialization to parent cadre and debarring him from drawing Flying pay and other allowances/benefits w.e.f. date of reversion i.e. from 2/5/2013.

Learned Advocate Mr. Supehia for the petitioner invited attention of the Court to the order under challenge, which is produced at Annexure-H, page No. 21. The order reads as under:-

Drafting order for Specialist Qualification No. 01/2013 Reversion.

The under mentioned enrolled personnel are being reverted from ACM (D) specialisation to parent cadre and are not entitled to draw Flying Pay and other allowances/benefits of ACM (D) specialisation w.e.f. date of reversion mentioned against each:-

1.1 The name of the present petitioner appears at Sr. No. (c) and the date of reversion mentioned is 02 May 2013.

Learned Advocate for the petitioner is not able to dislodge policy of the Government which is dated 11.11.1983, a copy of which is produced at Annexure-A page No. 7. Its later version dated 28.10.2003 is produced at Annexure-R7, page No. 88, along with affidavit in reply affirmed by one Shri Himanshu Nautiyal, Chief Staff Officer (Personnel & Administration) in Coast Guard Regional Headquarters (North West). This policy dated 28.10.2003 specifically provides for, "Tenure in Cadre" in Clause-6 and "Reversion to Parent Cadre" in Clause-7. The said Clauses-6 and 7 read as under:-

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/NH1/733/DOI/D(N-II) dated 18 Apr 1986 (placed at Annexure-I), subject to meeting 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.

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."

Learned Advocate for the petitioner submitted that in the year 2009, there was a representation made by the concerned persons for maintaining a permanent cadre of ACM (D). That was considered by the Tatrakshak Mukhyalaya (Coast Guard Headquarters), New Delhi, but did not find it acceptable.

Learned ASG submitted that the said representation was replied, relevant part of it is as under:-

(f) Maintaining 07 years tenure motivates large number of youngsters for volunteering for Ships Diver course with the aim of becoming ACDs (as being a SD is a prerequisite qualification) thus having a double benefit for the organisation. Further post de-induction, the EP continues to be utilised for Ships'' Diver duties.

Learned Advocate for the petitioner submitted that in 2013, the matter was again under consideration of MoD.

The Court is of the opinion that until a decision is taken by MoD, accepting the demand of permanent cadre, the petitioner is not entitled to get relief prayed for. This Court has no reason to believe that once a favourable decision is taken by MoD, the benefit of that decision will not be given to the petitioner.

6.1 The fact remains that the term ''reversion'' used in the letter/order impugned is, in fact, "repatriation". This is clear from the term used ''induction'' and ''de-induction''. The decisions relied upon by learned ASG are, (1) of the High Court of Judicature at Bombay in Writ Petition No. 969 of 2006 in the matter of Narehdra Kumar Dabar Vs. Union of India & Ors., (2) of the Delhi High court in Writ Petition (Civil) No. 8137 of 2008 with Writ Petition (Civil) No. 714 of 2009 in the matter of Jal Dev Sindhu Vs. Union of India & Ors., (3) of the High Court of Judicature at Madras in Writ Petition No. 30872 of 2009 and allied matters in the matter of T.P. Rajeev Vs. Union of India & Ors. And (4) of the High Court of Calcutta in MAT No. 19 of 2007 in the matter of Union of India & Ors. Vs. Rajesh Kumar.

6.2 The decision of the High Court of Calcutta is already before the Hon''ble the Apex Court pending its consideration. The last order passed is dated 29.07.2013 in Civil Appeal No. 6616 of 2008. The order reads as under:-

Learned counsel for the appellant undertakes to file statement of case within three weeks and no more. In case it is not filed, the appeal will stand automatically dismissed without further reference to the Court.

6.3 Taking into consideration the reasoning set out in those decisions, this Court is of the opinion that this petition is devoid of any merit. Beside, this petition deserves to be dismissed on the ground of suppression of material facts.

Learned Advocate Mr. Supehia for the petitioner submitted that his client did not furnish him the details of the aforesaid decisions of various High Courts. He further submitted that after the same were cited by the learned ASG, he did ask his client about the aforesaid decisions. But, his client stated that he was not aware of those decisions.

This Court is not ready to believe that a person - the petitioner, who is aware of an order passed by the Andhra Pradesh High Court of interim nature which was relied upon to get interim relief from this Court, is not aware of the final decisions in similar matters.

Taking into consideration the aforesaid facts, this Court is of the opinion that the order under challenge is not an ''order of reversion'' and it is only an ''order of repatriation''. If a policy of the Government is uniformly applied to other persons, petitioner cannot be granted any relief. The petition is dismissed. Rule is discharged. Interim relief granted earlier is vacated. The Court wanted to impose cost in this petition, but at the request of the learned Advocate for the petitioner, the Court restrains itself from imposing any cost on the petitioner. The Court also wanted to send a copy of this order to the Disciplinary Authority of the petitioner, but then the Court has restrained itself from doing so.