Delhi High Court

Jal Dev Sindhu vs Uoi & Ors. on 25 November, 2009

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 19th November, 2009
                     Judgment Delivered on: 25th November, 2009

+                          WP(C) No. 8173/2008

       JAL DEV SINDHU                         ....Petitioner
                 Through:      Ms.Geeta Luthra, Sr.Advocate
                               With Ms.Aakanksha Munjal, Adv.

                                Versus

       UOI & ORS.                               ....Respondent
                 Through:      Ms.Jyoti Singh, Advocate

                           WP(C) No. 714/2009

       ANUPAM MAITY                           ....Petitioner
               Through:        Ms.Geeta Luthra, Sr.Advocate
                               With Ms.Aakanksha Munjal, Adv.

                                Versus

       UOI & ORS.                               ....Respondent
                 Through:      Ms.Jyoti Singh, Advocate


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?     No

     3. Whether the judgment should be reported in the
        Digest?                                   No


PRADEEP NANDRAJOG, J.

1. With the promulgation of the Coast Guard Act, 1978,

a cadre of Coast Guards was created by hiving off a wing of the

Indian Navy. A distinct and separate service with a separate

cadre was constituted. Various posts were notified and

eligibility and service conditions thereto were notified.

2. Petitioners Jal Dev Sindhu and Anupam Maity were

employed by the Coast Guards as Naviks on 30.1.1997 and

13.4.1997 respectively and were subsequently promoted to the

post of Uttar Navik. They continued to work as Uttar Naviks till

they were selected as Air Crew Men (Diver) and posted to said

posts on 13.4.2002. The post of Air Crew Man (Diver) is a post

under the Coast Guards. A similar post exists under the Indian

Navy as well. When appointed as Air Crew Men (Diver) w.e.f.

13.4.2002, the notified Recruitment Rule stipulated that

personnel appointed as Air Crew Divers would continue to work

on said post till they remained physically fit and on being

declared physically unfit would be posted back to the post

which they held when they were appointed as Air Crew Divers.

3. It may be noted here that the pay of Air Crew Men

(Diver) is the same as that of an Uttar Navik except that Air

Crew Men (Diver) are paid some additional allowances and

hence the gross pay of Air Crew Men (Diver) is more than Uttar

Naviks.

4. The grievance of the petitioners is that on

28.10.2003 the terms and conditions for serving as Air Crew

Men (Diver) was altered by issuing a notification mandating that

henceforth persons appointed as or persons working as Air

Crew Men (Diver) would serve initially for a period of 7 years

extendable up to 10 years if being declared fit.

Notwithstanding the person being fit even after 10 years, he

would be posted back to the post held at the time he was

appointed as an Air Crew Men (Diver). To put it simply, the

petitioners claim a vested right in their favour on the premise

that when they joined as Air Crew Men (Diver) the notified rule

stipulated that as long as they remained fit they would work

and perform duties of the post of Air Crew Men (Diver). A

second contention is also advanced by the writ petitioners by

bringing out that under the Indian Navy, till 28.4.2008 the

eligibility condition for working as an Air Crew Men (Diver) was

7 years' service extendable up to 10 years on being declared

medically fit, but with the promulgation of the notification on

28.4.2008 it was mandated that as long as they were fit,

persons appointed as Air Crew Men (Diver) would function as

such. In other words, whereas the Indian Navy reversed the

existing service condition by extending the tenure till the

incumbent remained fit, the Coast Guards did the reverse. It is

alleged that both services i.e. the Indian Navy and the Coast

Guards are services under the Union and hence it is claimed

that the same Master cannot discriminate against two sets of

employees.

5. At the hearing of the writ petitions, Ms.Geeta Luthra

learned senior counsel for the petitioners urged that when her

clients opted for the cadre of Air Crew Men (Diver) no restriction

of the duration of the duty was prescribed and for said reason

her clients joined the said cadre with the expectation that they

would be entitled to continue to perform said duty as long as

they were fit; her clients underwent special training courses and

were held out a promise that they would be paid special

remuneration fixed to such duty in addition to the regular salary

and in the midst of their service career, they cannot be asked to

go back to the old cadre. With respect to the second plea of

discrimination, it was urged that the Union cannot discriminate

between two sets of employees in different organizations

holding same posts.

6. In response, Ms.Jyoti Singh, learned counsel for the

respondents urged that it is for the employer to decide the

tenure of a particular post and if the employer decides to adopt

a new policy in the matter of allotting a particular type of duty

and curtail the tenure thereof, the employee cannot compel the

employer to continue with the previous policy. The second plea

predicated on discrimination was negated by urging that

equality of posts has not to be determined with reference to the

nomenclature. The qualitative and quantitative test in relation

to the duties performed determines equivalence, urged the

learned counsel. It was highlighted that there are no pleadings

in the writ petitions to bring home the qualitative and

quantitative parity between same posts under the Indian Navy

and Coast Guards. Learned counsel urged that whereas the

Indian Navy was a fighting arm of the Armed Forces charged

with the duty of defending the maritime boundaries of India, the

duty of the Coast Guards was to patrol the maritime boundaries

with the primary aim of preventing infiltration into the territorial

waters of India.

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 service, no employee has a right to claim that a

particular duty should be allotted to him. It is not the case of

the petitioners that they have been reverted to an inferior post

by way of the policy decision. As a result of the new decision, a

particular duty of a special type previously entrusted to them

would not be given to them.

10. Even if an employer decides to abolish a post, the

employee cannot resist such action unless such decision is

tainted with mala fide.

11. In the decision reported as (1968) I LLJ 576 SC

Roshan Lal Tandon v. Union of India the petitioner joined the

Northern Railways as a skilled fitter on 6.3.1954. He was

selected for the training for the post of train examiner, grade D,

on 5.6.1958. At that time, promotions to grade C from grade D

were to be based on seniority-cum-suitability. Subsequently, on

27.10 1965, the Railway Board issued a notification altering

said position and fixing that only 20% of the posts in grade C

were to be filled by the train examiners from grade D. Petitioner

filed a writ petition challenging said notification on the ground

that there was a contractual right regarding the conditions of

service applicable to the petitioner at the time he entered grade

D and the conditions of service could not be altered to his

disadvantage by the notification issued by the Railway Board.

Holding that the petitioner had no vested right in regard to the

terms of his service, Supreme Court observed as under:-

"Once appointed to his post or office, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government."

12. In the decision reported as AIR 1973 SC 2641

N.Ramansatha Pillai Vs. State of Kerala, it was held that

Government has a right to abolish or create posts and that the

general rule of the doctrine of estoppel is not attracted in such

a situation.

13. If the Government has the right to abolish a post, it

would certainly have a right to curtail the tenure thereof.

14. The issue of parity has not to be determined with

reference to the post held. The issue has to be determined with

reference to the qualitative and quantitative test i.e. to

compare the nature of duties, responsibilities etc. i.e.

everything which relates to the quality and quantity of work