JUDGMENT
H.H. Kantharia, J.
1. In this petition under Article 226 of the Constitution the petitioner challenges the promotion of the second respondent to the post of Personal Assistant to the Chairman of the Mormugao Port Trust (hereinafter referred to as ” the M.P.T.”).
2. The petitioner has been working as a Senior Stenographer (Grade-I) in the office of the M.P.T. from March 22, 1975. She claims to be number one in the seniority list of such Stenographers. According to her, the post of Personal Assistant to the Chairman is a promotional post for Senior Stenographers (Grade I) subject to a test. Therefore, a test was held in which she was declared successful alongwith three others whereas the second respondent had failed. The petitioner further contended that the post of Personal Assistant to the Chairman fell vacant on May 26, 1986 which was not filled up for a sufficiently long time and, therefore, she made representation from time to time for filling up that post by promoting her. She was informed by a memorandum dated June 3, 1988 that the post was not filled up for administrative reasons and a clearance for filling up the same was given only on January 4, 1988 and was filled up on ad hoc basis by a candidate belonging to Scheduled Tribe i.e. respondent No. 2. It is the case of the petitioner that the second respondent was appointed as Senior Stenographer (Grade -I) in the M.P.T. on May 27, 1985 on probation for two years and he had not passed the prescribed test for the promotion to the post of Personal Assistant to the Chairman. According to her, the second respondent belongs to “Halbi” community of the Scheduled Tribe in the State of Maharashtra and, therefore, was not eligible for the promotion in a reserved vacancy and also that he had not completed his probationary period of two years at the time when the post fell vacant on May 26, 1986. The petitioner, therefore, claimed that in preference to the second respondent she should have been appointed to the promotional post and prayed for a writ therefore.
3. The petition has been vehemently opposed by and on behalf of the M.P.T. Senior Assistant Secretary G.S. Borkar of the M.P.T. who filed an affidavit contended that direct recruitment or promotion of Class I, Class II, Class III and Class IV posts under the M.P.T. are regulated by regulations called “The Mermugao Port Employees (Recruitment, Seniority and Promotions) Regulations, 1964 (hereinafter referred to as “The said regulations”) which came into force from July 1, 1964. Regulation 13(a) of the said regulations provided for reservation for the employees of the M.P.T. according to which the orders issued by the Central Government for the reservation of appointments or posts under the Central Government in favour of the Scheduled Castes and Scheduled Tribes shall apply mutadis-mutandis to all the appointments covered by the said regulations, it was further contended. The affidavit further dealt with all the points raised by the petitioners as to the qualifications, suitability and promotion of the second respondent about which we shall advert little later.
4. In support of the petition, Mr. Diniz, learned advocate appearing for the petitioner, made three propositions for our consideration.
(i) On the date of his promotion the second respondent had not passed the prescribed test for the post of Personal Assistant to the Chairman;
(ii) On the date when the vacancy arose on May 27, 1986 he was not eligible inasmuch as he had not completed his probation period of two years; and
(iii) His Caste “Halbi” is not recognised as Scheduled Tribe in the State of Goa but it is one recognised as such in the State of Maharashtra and, therefore, he was not entitled to the promotion on the basis of reservation.
5. Before we embark upon discussing the merits of the matter, it may be noted that by an amendment carried out on August 17, 1989 as per prayer clause (aa) the petitioner had challenged the constitutional validity of regulation 13(a) of the said regulations but at the hearing Mr. Diniz gave up that prayer.
6. Now, in support of his first contention, Mr. Diniz pointed out that the second respondent had appeared for a test meant for the Senior Stenographers (Grade-I) for the promotion to the post of Personal Assistant to the Chairman but had not passed the same and as such he was not entitled to the promotion as this essential requirement prescribed by the recruitment rules was not satisfied by him. It is no doubt true that the second respondent had failed in the said test but it is important to note that in case of the members belonging to the Scheduled Castes and the Scheduled Tribes by an Office Memorandum No. 36011/6/79 Estt (SCT) dated April 19, 1979 addressed to all Ministries of the Central Government by the Department of Personnel and A.R. regulation in the standards for being qualified for promotion was communicated. In this connection, the affidavit of G.S. Borkar discloses that whether the second respondent did pass the prescribed test or not was irrelevant as he belongs to the Scheduled Tribe and was promoted to the post of Personal Assistant in a vacancy reserved for the Scheduled Tribe under the rules. We also find from the said affidavit and the record shown to us by Mr. Nadkarni, learned Advocate General, that the Departmental Promotion Committee, which met on March 3, 1988 for considering the filling up the vacancy to the post of Personal Assistant to the Chairman which was reserved for a Schedule Tribe candidate took into consideration the Government guide lines contained in Office Memorandum No. 24/7/(1). Esst (SCT), dated September 24, 1986 and another Office Memorandum No 8/12/69. Estt (SC), dated December 23, 1970 which provided for relaxation for qualifying standards for the prescribed test and recommended the second respondent for the promotion to the post in question subject to a condition that he obtained the required preficiency within six months from the date he took over the charge of the said post. It is further disclosed therein that on the expiry of six months period the Departmental Promotion Committee had reviewed the case of the second respondent and had found that the had obtained the required preficiency. Therefore, it was under such relaxed conditions that the second respondent was promoted to the concerned post and as such we fined no substance in this contention of Mr. Diniz . It is also pertinent to note that unless the post reserved for the Scheduled Caste and the Scheduled Tribe candidate is de-reserved the same cannot be made available to those not belonging to these communities and that the petitioner here has not made out a case that the post in question was de-reserved. Mr. Nadkarni, therefore, rightly contended that in law there was no vacancy that had to be filed up from the persons not belonging to the Scheduled Tribe in the instant case. Mr. Diniz urged that the post should have been de-reserved and made available to the petitioner to which we may usefully quote the observations made by the Supreme Court in S.S. Sharma v. Union of India, that:
“Whether or not reserved vacancies should be de-reserved is a matter falling primarily within the administrative discretion of the Government. There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. If at all, a claim in that behalf can arise only if no valid arangement can be made for filling the reserved vacancies and de-reservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the Memorandum against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year. Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies. De reservation as a process should be resorted to only when it is not reasonably possible within the contemplation of law, to fill the reserved vacancies. The process of de-reservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution”.
The fact, however, remains that in our case the post reserved for the Scheduled Tribe was not de-reserved and, therefore, the petitioner could never have legitimately claimed promotion to that post.
7. As regards the second contention of Mr. Diniz, it is not necessary that on the day when the vacancy arose one should be qualified for the same by completion of the probation period as what is really necessary, in our opinion, is that on the day of the appointment one should be eligible for the post. It is no doubt true that the vacancy arose on May 27, 1986 on which day the second respondent had not completed his probation period of two years because he was appointed to the post of Senior Stenographer (Grade -I) on May 27, 1985. But that would make no difference as on the day when he was actually promoted on March 17, 1988 he had completed his probation period. Dealing with this aspect of the matter Mr. Nadkarni brought to our notice that after the test was held, vacancy was filled up by one Mrs. Mesquita and after her retirement the post was not filled up because the incumbment in the post of the Chairman was not available during the period from October 14, 1986 to December 15, 1987 and that is how there was delay in filling up that post but ultimately the post which was reserved for a Scheduled Tribed candidate was filled up on March, 17, 1988 initially on ad hoc basis on condition that the second respondent achieves proficiency within six months which he did and, therefore, there is no substance in the contention of Mr. Diniz.
8. Now, the most important point raised by Mr. Diniz is that the second respondent who belongs to “Halbi” community of the Scheduled Tribe is not entitled to the benefits of reservation in Goa State as “Halbi” is not a community recognised as Scheduled Tribe in the State of Goa but it is so recognised in the State of Maharashtra and in fact the second respondent had obtained such a caste certificate from Taluka Magistrate Achalpur, in the State of Maharashtra. In support of his contention, Mr. Diniz relied upon a Full Bench judgment of this Court in the case of M/s. Malathi v. Commissioner, Nagpur Division, and a Division Bench unreported ruling of this Court in Writ Petition No. 1098 of 1982, in the case of Damodar Anant Karandikar & anr v. Board of Trustees of the Port of Bombay and ors., decided on August 29, 1988. The argument of Mr. Diniz is that the area of operation of M.P.T. is in Goa and Goa alone and the employment is confined to the State of Goa and further that the services of the employees of the M.P.T. are not transferable and promotion are also restricted to the area of operation and, therefore, the M.P.T. ought to have followed the reservation policy consistent with the local cadre of the State of Goa and that being so, the second respondent could not have been promoted to a vacancy reserved for a Scheduled Tribe candidate in Goa State, he being a Maharashtrian. We find it difficult to persuade ourselves to agree with Mr. Diniz. So long as the Full Bench judgment is concerned we are of the view the same is not applicable to the facts of the present case inasmuch as in the said matter one of the petitioners was seeking admission in the State Government Dental College at Nagpur and the other was claiming Seniority in the services in the State of Maharashtra although the castes to which they both belonged were not recognised as Scheduled Castes in the State of Maharashtra but were so recognised in relation to Tamil Nadu and Karnataka. The full bench, in the background of these facts, in the case before it, held that a member belonging to the Scheduled Caste would be Scheduled Caste only to the State in relation to which his Caste is specified as a Scheduled Caste and that in a State in relation to which such caste has not been specified as Scheduled Caste under Article 341, for purposes of the Constitution, the Caste would not be deemed to be a Scheduled Caste. In our case, the second respondent, whose caste is not recognised as Scheduled Tribe in Goa State, is not asking for any preferential treatment, on the basis of his caste, from any beneficial scheme or policy formulated by the Goa Government for the members of the Scheduled Tribes in relation to Goa State. He, in fact, is in the employment of the M.P.T. which admittedly is not an agency or instrumentality of the State of Goa under Article 12 of the Constitution. On the contrary, the various provisions of the Major Port Trusts Act, 1963 (hereinafter referred to as the Act”) under which the M.P.T. was constituted show that the M.P.T. is an agency or instrumentality of the Central Government.
9. Thus, section 3(1) of the Act provides that the Central Government shall cause to be constituted in respect of any Major Port a Board of Trustees to be called Board of Trustees of that port which shall consist of the following Trustees, namely:–
(a) a Chairman to be appointed by the Central Government ;
(b) a Deputy Chairman, if the Central Government deems fit to appoint one ;
(c) not more than nineteen person in the case of each of the ports of Bombay, Calcutta and Madras and not more than seventeen persons in the case of any other port who shall consist of—
(i) such number of persons, as the Central Government may, from time to time, by notification in the Official Gazette, specify, to be appointed by that Government from amongst persons who are in its opinion capable of representing any one or more of such of the following interests as may be specified in the notification, namely:—
(1) labour employed in the port;
(2) the Mercantile Marine Department;
(3) the Customs Department;
(4) the Government of the State in which the port is situated;
(5) the Defence Services;
(6) the Indian Railways; and
(7) such other interests as in the opinion of the Central Government, ought to be represented on the Board;
Provided that before appointing any person to represent the labour employed in the port, the Central Government shall obtain the opinion of the trade unions, if any, composed of persons employed in the port and registered under the Trade Unions Act, 1926 and that the number of persons so appointed shall not be less than two;
(ii) such number of persons, as the Central Government may, from time to time, by notification in the Official Gazette, specify, to be elected by such bodies and representing any one or more of such of the following interests as may be specified in the notification from among themselves namely:—
(1) ship owners;
(2) owners of sailing vessels;
(3) shippers; and
(4) such other interests as, in the opinion of the Central Government, ought to be represented on the Board;
Provided that in a case where any such body is an undertaking owned or controlled by the Government, the person to be elected by such body shall be appointed by the Central Government.
(2) A trustee appointed by the Central Government under this Act may be appointed by name or by virtue of office.
(3) Every notification issued under sub clause (ii) of clause (c) of sub section (1) may also specify the number of Trustees that each of the bodies referred to in that clause may elect.
(4) The election of Trustees under sub-clause (ii) of clause (c) of sub-section (1) shall be held within such period as may, from time to time, be specified by the Central Government.
(5) The chief executive authority of every electing body shall communicate forthwith to the Central Government the result of any election held in pursuance of sub-section (4).
(6) The name of persons appointed or elected as Trustees shall be notified by the Central Government in the Official Gazette.
Further, a perusal of sections 6, 7, 8, 10, 11, 12, 13, 14 and 15 of the Act shows that the Central Government has the powers and supervisory control in all respect over the Board of Trustees. Sections 23, 24, 27 and 28 empower the Central Government to control even recruitment and conditions of service of the employees of the Board of Trustees. As per section 29 the transfer of assets and liabilities of the Central Government will vest in the Board. Chapter IX of the Act which consists of sections 106 to 111 deals with powers of the Central Government in respect or supervision and control of the Boards. Section 125 empowers the Central Government to direct regulations to be made or make regulations itself and as per section 126 the power is with the Central Government to make the first regulations. All these provisions of law clearly show that the M.P.T. is an instrumentality or an agency of the Central Government. In fact, this position in law is not disputed by Mr. Diniz. That being so, in view of regulation 13(a) of the regulations the M.P.T. has to follow the reservation policy laid down by the Central Government.
10. Although it is an accepted position that the area of operation of the M.P.T. is Goa and in the Cadre of the employees of the M.P.T. could be called local cadre it is not possible to accept the contention of Mr. Diniz that the people from Goa and Goa alone would be entitled to the benefits available to the members of the Scheduled Castes and Tribes in the matter of employment and promotion in the M.P.T. Mr. Diniz invited our attention to a Circular dated March 13, 1985 issued by the Power Supply & Welfare Department of the Government of Goa, Daman & Diu and pointed out that a Scheduled Caste and Tribe person who migrated from his/her State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of the origin and not from the State to which he migrated. In our judgement, this circular is of no avail to Mr. Diniz because firstly it concerns the issuance of caste certificate to the people migrated from one State to another and then speaks is terms of deriving benefits from the State of origin and not, as has been very correctly canvassed by Mr. Nadkarni, in the State of origin. There is lot of difference when it is said that one is entitled to derive benefits from the State and in the State. If we accept the argument of Mr. Diniz the Scheduled Caste and Tribe people from all over the country will have to confine themselves for everything only in the State of their origin and nowhere else in the country even form the purpose of employment with the Central Government. When it is a matter of deriving benefits from the State one has to derive it from the State of his/her origin and not from the State to which he/she migrated and the concept of State of origin will not be applicable if the benefits are to be derived from the Central Government. We want to make it amply clear here that we are presently not dealing with a problem of a person who is domiciled in a particular State in which his caste is not recognised as Scheduled Caste or Tribe but is so recognised in the State of his origin. To Illustrate the point, if X is domiciled in Y State in which his caste is not recognised as Scheduled Caste or Tribe but is so recognised in Z State which is a State of his origin, the question is whether X should be entitled to the constitutional benefit available in Y State where he is domiciled ? We should not be understood as having decided that question too.
11. Relying upon the observations made by the division bench in the case of Damodar Anant Karanadikar (supra) that the area of operation of the Bombay Port Trust is confined to Bombay as the services of the Class III and Class IV employees are not transferable out of Bombay and thereafore practically that was a local cadre. Mr. Diniz urged that operation of area of M.P.T. being in the State of Goa the rules of reservation of the State of Goa would be applicable. Speaking with utmost respect to the division bench we are of the opinion that the division bench had come to such a conclusion on a concession and the said finding would not go to the rescue of Mr. Diniz.
12. Before parting with the matter, we may point out that G.S. Borkar on behalf of the M.P.T. has stated in his affidavit that second respondent was originally appointed to the post of a Stenographer in the year 1977 as a member of the Scheduled Tribe against a reserved vacancy for the Scheduled Tribe and, therefore, he should continue to enjoy all the benefits of the reservation as provided in the rules for promotion to the post of the Personal Assistant to the Chairman against the vacancy for reserved the Scheduled Tribe. There is no reason to deny him the benefit that he derived in the year 1977 now in the year 1989.
13. In the premises aforesaid, we find no merit in the writ petition. It fails and stands rejected. Rule is accordingly discharged but with no order as to costs.