G K NAYAR Vs. UNION OF INDIA

JUDGEMENT

(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 under Ext. P1 notification dated 2-8-1974 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 S. 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 21-1-1982 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 21-1-1982. 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 filling 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 Art. 226 of the constitution of India seeking a writ of certiorari calling for the records leading upto Exts. P3 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 be 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 S. 123 of the Act and cannot be 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.) SUB-sections (1), (2) (a) and (3) of S 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 Cost Guard: xxx xxx xxx xxx (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 by 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)