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G.K. Nayar and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1983)ILLJ461Ker
AppellantG.K. Nayar and ors.
RespondentUnion of India (Uoi) and ors.
Cases ReferredIn Ramesh Prasad v. State of Bihar
Excerpt:
- - , as well as certain other organisations with the coast guard, as per presidential sanction obtained for the purpose. as is well known the process of rule making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. in such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them. the rules may state at best that the central government may constitute the coast guard or that such other specified authority could so constitute the coast guard......from norway and distributed the same among the six custom collectorates including cochin. the coast guard act, 1978 (for short 'the act') was enacted to constitute the coast guard to ensure the security of the maritime zones of india with a view to protect the maritime and other national interests in such zones. these interests have been detailed in section 14 of the act. it provides, inter alia, for measures to assist the customs and other authorities in anti-smuggling operations. since that is the purpose for constitution of the c.m.o., the central government decided to merge c.m.o., as well as certain other organisations with the coast guard, as per presidential sanction obtained for the purpose. this is made clear in ext.p3 letter dated 21st january 1982 of the government of.....
Judgment:

U.L. Bhat, J.

1. Petitioners, 36 in number, in these 3 petitions are personnel of the Customs Marine Organisation (for short C.M.O.), a temporary organisation created by the Central Government tinder Ext.P1 notification dated 2nd August 1974 for conducting anti-smuggling operations. The Central Government acquired 20 new crafts from Norway and distributed the same among the six custom collectorates including Cochin. The Coast Guard Act, 1978 (for short 'the Act') was enacted to constitute the Coast Guard to ensure the security of the maritime zones of India with a view to protect the maritime and other national interests in such zones. These interests have been detailed in Section 14 of the Act. It provides, inter alia, for measures to assist the Customs and other authorities in anti-smuggling operations. Since that is the purpose for constitution of the C.M.O., the Central Government decided to merge C.M.O., as well as certain other organisations with the Coast Guard, as per presidential sanction obtained for the purpose. This is made clear in Ext.P3 letter dated 21st January 1982 of the Government of India addressed to the Director General of Coast Guard Headquarters. The terms and conditions for merger are to be seen in annexure B in Ext.P3 which is separately marked as Ext.P3A. Ext.P3A provides for taking in the personnel of C.M.O. into the Coast Guard as temporary employees in two cadres, the uniformed cadre and the civilian cadre, Merger was effected with effect from 21st January 1982. As per Ext.P4 letter, the Director General of Coast Guards requested the Director of Preventive Operations to ask the personnel of the C.M.O. to exercise their options as envisaged in the merger committee report by tilling in proforma given in Appendices A and B therein which are separately marked as Exts.P6 and P6A, This request was conveyed to the various zones under Ext.P5 letter. Ext.P5 also stated that the personnel must be informed that the Customs department undertakes no responsibility for the rehabilitation of those who do not opt for joining the Coast Guard Organisation under the terms and conditions offered to them. The petitioners have filed these petitions under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records leading upto Exts.P.3 to P6A and to quash the same and a writ of mandamus to compel the first respondent, Union of India, to continue the C.M.O. as such without merging it with the Coast Guard to he constituted under the provisions of the Act.

2. Learned Counsel for the petitioners made two submissions in the course of his arguments, According to him, Coast Guard can be constituted only as per statutory rules framed under Section 123 of the Act and cannot he constituted by executive instructions found in Ext.P3 and therefore the constitution of the Coast Guard now made is illegal. The other submission made is that in constituting the Coast Guard by means of executive instructions, discrimination has been shown between uniform cadre and civilian cadre. The stand taken in the counter affidavit filed by Vice Admiral Melville Ramond Schunker, Director General, Coast Guard, New Delhi, on behalf of the respondents is that it is not mandatory that statutory rules should be framed for constitution of Coast Guard and the same can be effected by executive directions. The allegation regarding discrimination is also challenged.

3. Section 4 of the Act reads thus:

4. (1) There shall be an armed force of the Union called the Coast Guard for ensuring the security of the maritime zones of India with a view to the protection of maritime and other national interests in such zones.

(2) Subject to the provisions of this Act, the Coast Guard shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Coast Guard shall be such as may be prescribed.

(Emphasis supplied)

4. The word 'prescribed' has been defined in Section 2(r) in this way: In this Act, unless the context otherwise requires, --

prescribed' means prescribed by rules made under this Act.

5. Sub-sections (1), (2)(a) and (3) of Section 123 (which alone are relevant for the purpose of this case) read as follows:

123. (1) The Central Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for, -

(a) the constitution, governance, command and discipline of the Coast Guard:

xx xx xx xx(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(Emphasis supplied)

6. The argument on behalf of the petitioners is that Section 4(2) requires that the Coast Guard shall be constituted in such manner as to be 'prescribed' and since the word 'prescribed' means prescribed by rules made under this Act, that is, Section 123 of the Act and since Section 123(2)(a) of the Act contemplates making of rules for the constitution of the Coast Guard the Coast Guard can be constituted only by way of statutory rules and not by way of executive instructions.

7. On a reading of Section 2(r), 4(2) and 123(2)(a) of the Act, it may appear at first blush that Coast Guard can be constituted only by rules made under the Act. According to learned Counsel for the petitioners this is the only construction possible since in such an important matter, the legislative intent would have been to secure the consent of the Parliament for the constitution of the Coast Guard, since rules have to be placed before the Parliament. This argument loses sight of the fact that the Government has inherent executive power to issue administrative directions and constitute departments, create services and posts. In B.N. Nagarajan v. State of Mysore 1967-I L.L.J. 698 the Supreme Court has observed that Government has executive power in relation to all matters with respect to which the legislative power to make laws extends. The Parliament has legislative power to make laws in regard to the constitution of Coast Guard and creating and filling posts in the Coast Guard. Therefore, the executive power of the Union Government extends to creation of departments and posts and filling posts. This is also supported by the observation of the Supreme Court in M. Ramanatha Pillai v. State of Kerala 1973-II L.L.J. 409 to the following effect:

The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign Government has this power in the interest and necessity of internal administration.

8. It is clear that a service, department or post can be created either under statutory rules or by means of executive instructions. When such is the position, can it be said that by use of the word 'prescribed' in Section 4(2) of the Act and defining the word 'prescribed' as prescribed by the rules framed under the Act, the Parliament intended that the Coast Guard can be constituted only by statutory rules and not executive directions? Such a legislative intent cannot be inferred from the scheme or provisions of the Act. It is significant to note that Section 4(2) of the Act does not state that Coast Guard shall be constituted only in such manner as may be prescribed. In the context, the word 'prescribed' need not necessarily carry the same meaning as defined in Section 2(r). The dictionary meaning of 'prescribed' is 'to describe or write beforehand, to write or lay down as a rule or direction to be followed, to ordain, to direct, to enjoin.' It appears that this meaning of the word 'prescribed' would be opposite in the context of Section 4(2) of the Act and a restricted meaning is not called for. In other words, in the light of the inherent power of the Government to constitute a service or department and in the light of the fact that a service can be constituted either by means of statutory rules or by executive directions and the word only has not been used in Section 4(2), it has to be held that the word 'prescribed' in Section 4(2) of the Act has to be interpreted in its broad sense, that is, prescribed either by statutory rules or executive directions, and not in the sense conveyed by the definition.

9. I am supported in this view by a number of decisions cited at the Bar. In Lakshmi v. Asst. Educational Officer 1966 K.L.T. 1042, this Court had to consider Section 11 of the Kerala Education Act which stated that the teachers of aided schools shall be appointed by managers from among persons who possess the qualifications prescribed under Section 10. Section 10 stated that the Government shall prescribe qualifications. Section 2(r) defined 'prescribed' as prescribed by the rules made under the Act. Mathew J. (as he then was) noticing the use of the word 'prescribed' in Section 10 and 'prescribe' in Section 11 and the absence of the word only or the absence of any indication in Section 11 to show that the legislature intended in the context to give a narrow meaning to the word 'prescribed', held that Government was competent to lay down qualifications by executive orders and teachers are required to possess such qualifications. In Sant Ram v. State of Rajasthan 1968-II L.L.J. 830, the question arose whether promotions to selection grade posts from persons holding junior scale and senior scale posts in the Indian Police Service could be made, in the absence of statutory rules, on the basis of executive directions. The Supreme Court said:

It is true that there is no specific provision in the Rules laying down the principle of promotion of Junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts.

In Ramesh Prasad v. State of Bihar 1978-I L.L.J. 197, a question arose whether the Bihar State Electricity Board could constitute a separate service, that is, telecommunications division and institute a post and fill it up without making rules and the Supreme Court observed:

As is well known the process of rule making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them....

10. Section 4(2) states 'shall be constituted in such manner as may be prescribed' and conditions of service shall be such as may be prescribed. Section 123(1) states that the Central Government 'may make rules', Sub-section (2) states that 'such rules may provide for'. It does not appear that it is obligatory on the Central Government to frame rules immediately or within any particular period of time. There is nothing in the provisions of the Act which will lead to an inference that the constitution of the Coast Guard is to be postponed till such time as the rules are framed, that is, till the complicated and laborious process of rule making is over. In this view also it appears that the word 'prescribed' in Section 4(2) must be understood as prescribed by the rules or otherwise, If that be so, the constitution of the Coast Guard by executive instructions is lawful,

11. Learned Counsel for the petitioners pointed out that Section 4 does not state who is to constitute the Coast Guard and argued that the legislative intent was that the Authority to constitute must be located in the statutory rules and as long as rules are not framed, the Coast Guard cannot be constituted. We have already seen that the Central Government has inherent executive power to constitute a department or service or post or fill up the post. This power exists de hors any rules that may be framed. Even if rules are framed what is it that they can provide for? There is no authority higher than the Central Government which could constitute the Coast Guard. There is also no question of the rules providing for the power of constitution with any such higher authority. The rules may state at best that the Central Government may constitute the Coast Guard or that such other specified authority could so constitute the Coast Guard. Such specified authority could only be inferior to the Central Government and where such inferior authority is empowered to constitute the Coast Guard, it will do so, so to say, as a delegate of the Central Government, the delegation having been made under the rules. The rules can only locate the Authority to constitute either in the Central Government or some inferior authority. When that be the position, there does not appear to be any legal difficulty for the Central Government themselves to constitute the Coast Guard even without the rules. A specific confirmation of Authority by virtue of the rules does not appear to be necessary.

12. Paragraph 4 of Ext. P3A states that personnel of the C.M.O. who become part of the uniformed cadre of the Coast Guard will be subject to the Act and be governed by the terms and conditions of the Coast Guard as promulgated under Government of India letter dated 29th September, 1978 and any other letters on the subject issued from time to time. Some of the benefits accruable to the uniformed cadre are specified in Ext.P3A. Paragraph 7 states that the terms and conditions of the civilian component of the customs marine, industrial and non-industrial on transfer to Coast Guard will be governed under the Civil Services Rules in force. The personnel of the C.M.O. are civilian personnel governed by the Civil Services Rules. It is argued for the petitioners that un-constitutional discrimination is being shown towards the personnel of the C.M.O. who opt to the uniformed cadre of the Coast Guard. Every discrimination or classification will not offend Article 14 of the Constitution. It is only an unreasonable discrimination which is liable to be struck down. The discrimination between uniformed cadre and non-uniformed cadre exists in several armed forces and also the police force. That is only a reasonable classification considering the difference in duties which members of each unit are to perform. Naturally their conditions of service and other rules may also be different. This classification has a nexus with the object of the entire action, that is, to constitute Coast Guard to safeguard the national interests of the country. For the purpose of safeguarding such national interests, constitution of Coast Guard is necessary and for the efficient functioning of the Coast Guard, it must have two components, one uniformed and the other civilian, I am therefore unable to agree that the classification made offends equality clause in the Constitution.

In the result, the petitions are dismissed, but under the circumstances, without costs.


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