IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 636 of 2003(D)
1. R. SATHISH, STATISTICAL & RESEARCH
... Petitioner
Vs
1. C. PREMAKUMARI, STATISTICAL &
... Respondent
2. COCHIN PORT TRUST, WILLINGTON ISLAND,
3. THE SECRETARY, COCHIN PORT TRUST,
4. THE CHAIRMAN, COCHIN PORT TRUST,
5. THE UNION OF INDIA, REPRESENTED
For Petitioner :SRI.C.P.SUDHAKARA PRASAD (SR.)
For Respondent :SRI.M.V.BOSE
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :30/06/2008
O R D E R
H.L. DATTU, C.J. & A.K. BASHEER, J.
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W.A. No. 636 of 2003
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Dated this the 30th day of June, 2008
Judgment
A.K.Basheer, J:
This writ appeal, which is at the instance of respondent No.5 in
the Original Petition, is directed against the order passed by the
learned single Judge directing the Cochin Port Trust (for short, the Port
Trust) to consider the claim of respondent No.1/petitioner for
promotion to the post of Statistical and Research Officer with effect
from the date of occurrence of the vacancy. While issuing the above
direction, the learned single Judge had quashed Exts.P14 and P15
orders issued by the Port Trust, by which petitioner was reverted from
the post of Statistical and Research Officer and appellant was
promoted.
2. A brief reference to the essential facts is necessary to consider
the question whether the claim of the appellant for promotion in
preference to respondent No.1 is legal and valid. Parties shall be
referred to in this judgment as they were arrayed in the Original
Petition.
3. Petitioner joined the service of the Port Trust as Research
Officer on June 3, 1996. Respondent No.5 was also appointed in the
same cadre on December 30, 1996. But it is not in dispute that
respondent No.5 was treated as senior to the petitioner on the basis of
his rank in the select list.
WA.636/03 : 2 :
4. On December 1, 2000 a vacancy arose in the next promotion
post viz., Statistical and Research Officer. Petitioner had Masters’
Degree in Statistics as well as in Computer Applications to her credit at
the time of her appointment itself, whereas respondent No.5 was a
B.Tech graduate in Computer science. On the date when the vacancy
arose, the requisite qualification for the said post as prescribed in the
Cochin Port Employees’ (Recruitment, Seniority and Promotion)
Regulations 1964 was Masters’ degree in Statistics/Mathematics/
Economics, with two years’ regular service as Research Officer and
Masters’ Degree in Computer Science as a desirable qualification.
Though admittedly petitioner was the only qualified person for
promotion at the time of occurrence of vacancy, her request was not
considered since the Port Trust took the view that the proposal made by
it for amendment of the qualification for the post, as resolved by the
Board of Directors, was pending consideration before the Government
of India. The proposal was to include degree in Engineering with
Computer Science as an alternate qualification for the post. Though the
claim of the petitioner was resisted for some time, the management had
promoted her as Statistical and Research Officer with effect from
February 28, 2002, on an ad hoc basis as revealed from Ext.P8 order.
5. The Government of India issued a notification in the gazette
dated March 8, 2002 amending the qualification for the post of
Statistical and Research Officer in the Port Trust as requested by the
WA.636/03 : 3 :
Board of Directors. Shortly thereafter, Ext.P14 order was issued by the
Port Trust on May 13, 2002 reverting the petitioner from the post of
Statistical and Research Officer. On the same day Ext.P15 order was
issued promoting appellant/respondent No.5 to the above post. It was
in the above circumstances that the petitioner had filed the Original
Petition under Article 226 of the Constitution seeking issue of a writ of
certiorari to quash Exts.P14 and P15. There was a further prayer to
issue a writ of mandamus or such other appropriate writ or direction to
the Port Trust to promote the petitioner to the post of Statistical and
Research Officer with effect from the date of occurrence of vacancy.
6. Learned single Judge upheld the claim made by the petitioner
primarily on the ground that on the date of occurrence of vacancy
petitioner was the only qualified candidate available and also that there
was no material on record to show that the Port Trust had taken a
conscious decision not to fill up the vacancy till the amendment to the
Rules was approved by the Government of India.
7. Learned counsel for the appellant contends that the Port Trust
was justified in reverting the petitioner after amending the relevant
regulation. It is pointed out by the learned counsel that petitioner was
promoted only on an ad hoc basis. Obviously therefore petitioner was
all along aware that her promotion was subject to the decision of the
Government on the request made by the Director Bord. It is also
contended by the learned counsel that the ad hoc promotion given to
WA.636/03 : 4 :
the petitioner by itself was indicative of the conscious decision of the
Port Trust not to fill up the vacancy on a permanent basis and therefore
the learned single Judge was not justified in taking the view that no
conscious decision had been taken by the Port Trust not to fill up the
vacancy.
8. It is beyond controversy that petitioner was the only qualified
candidate eligible for promotion on the date of occurrence of vacancy.
To put it differently, respondent No.5 was not eligible for promotion as
Statistical and Research Officer going by the then existing Rules because he
did not have the requisite qualification. It is true that the Director Board of
the Port Trust had passed a resolution to request the Government to accept
its proposal to amend the qualification for the post of Statistical and
Research Officer shortly before the vacancy arose. But that did not mean
that the Port Trust had decided not to fill up the vacancy, which it was
aware, was due to arise shortly. Therefore, the legitimate expectation of the
petitioner that she would be promoted to the post could not have been
faulted at all, especially since she had got the requisite qualifications. In
fact petitioner had approached the management with such a request, which
was apparently kept in cold storage for more than one year, though
ultimately she was promoted, albeit, on an ad hoc basis.
9. It is trite that eligibility criteria prescribed in the recruitment rules
governing the field as on the date of occurrence of vacancy alone are
relevant. Significantly the Government had issued the gazette notification
on March 8, 2002 amending the qualification only prospectively.
WA.636/03 : 5 :
Therefore, as rightly contended by the petitioner, the said prospective
amendment could not have had any impact on the vacancy which had arisen
more than two years prior to the amendment. More importantly, by the time
the amendment was brought into force, petitioner had already been
promoted. The learned Single Judge, in our view, was therefore justified in
upholding the claim for promotion made by the petitioner. As rightly
noticed by the learned Judge, the management had not produced any
material to show that a conscious decision had been taken not to fill up the
post pending amendment of the Rules. Still worse, there was nothing on
record to show that aspirants for promotion like the petitioner, had been
informed about any such decision. The entire conduct of the management
clearly revealed that respondent No.5 was given a favoured treatment.
10. It is contended by learned counsel for the appellant and the Port
Trust that going by the provisions contained in Section 111 of the Major
Port Trust Act, 1963 it was incumbent on the management to implement any
order or direction issued by the Government. After the amendment of the
regulations prescribing the qualification for the post in question, the
management had to revoke its earlier decision to promote the petitioner
since respondent No.5 who had the requisite qualification under the
amended Rules was senior to the petitioner. Thus, it is contended that the
management had only complied with the statutory mandate contained in
Section 111 of the Act.
11. Having carefully perused the provisions contained in Section 111
of the Act, we are unable to accept the above contention, which in our
view, is totally misconceived and untenable. What has been provided in
WA.636/03 : 6 :
Section 111 is only that every Board, in the discharge of its functions under
the Act, shall be bound by the directions, on questions of policy, which may
be issued by the Central Government in writing from time to time. We have
no hesitation to hold that there was no question of policy involved in the
issue on hand. What was called in question by the petitioner was his right
to be considered for promotion to a vacancy which had arisen. He had only
requested the management to promote him in accordance with the then
existing Regulation/Rule as contained in Cochin Port Employees
(Recruitment, Seniority and Promotion) Regulations, 1964. Therefore, the
contention raised by the appellant and the Port Trust based on Section 111
is also liable to be repelled. We do so.
13. Having regard to the entire facts and circumstances, we do not
find any reason to interfere with the order passed by the learned Single
Judge. There is no merit in any of the contentions raised by the appellant.
The writ appeal fails and it is accordingly dismissed.
H.L. DATTU
Chief Justice
A.K. BASHEER
Judge
an.