VASUDEVA RAJA Vs. COCHIN PORT TRUST AND OTHERS

JUDGEMENT

(1.) This writ petition has been referred to a Division Bench by a learned Judge of this Court in view of the importance of the questions raised in the case.

(2.) By a resolution dated 25-6-1976 passed in accordance with Regulation 7 of the Cochin Port Employees (Recruitment, Seniority and Promotion) Regulations, 1964, framed under Sec. 28 of the Major Port Trusts Act 1963, the post of Assistant Mechanical Superintendent (Mechanical) is declared a selection post. The mode of recruitment is by promotion. But, if no suitable candidate is available for promotion, appointment by direct recruitment is permissible. A vacancy for the post arose on 8-5-1976. The proceedings of the Committee have not been exhibited. But the file as stated by the learned Judge in the order of reference, shows that the petitioner's unsuitability was rested on account of his lack of experience of 5 years in a Marine Engineering Workshop, on account of the pendency of certain C. B. I. enquiry against the petitioner, and the unsatisfactory nature of his confidential records. Thereafter applications were invited for direct recruitment to the post by notification dated 7-8-1976, a copy of which is Ext R4. Meanwhile, on 25 6-1976, the qualifications for the past of Assistant Mechanical Superintendent (Mechanical) had been changed, and the post bad been re-designated as Assistant Mechanical Superintendent (Mechanical) and Assistant Mechanical Superintendent (Marine). The revised qualifications required that the candidates should be a graduate in Mechanical Engineering with 5 years' experience in a Mechanical Engineering Workshop of 'repute and that other things being equal experience in Marine Engineering Workshop will be given preference. Ext. R 4 expressly recited this qualification and it was on the basis of the same, that applications were invited. Ext. R5 dated 27-8-1976 is a copy of the application of the petitioner in response to the notification. The petitioner has stated that he is a graduate in Mechanical Engineering, a post-graduate in Business Administration and has experience in the Cochin Port's Workshop for a total period of five years and 81/2 months. The Departmental Promotion Committee met at 10 A. M. on 30-9-1976 and Ext. R. 1 of the said date is a copy of the proceedings of the Committee. It is seen from paragraph 2 of Ext .R l that the Committee referred to and quoted the Recruitment Rules approved by the Board's Resolution No 400 dated 20th Jan. 1969 On the strength of this resolution, the Committee came to the conclusion that there was no person holding the post of Executive Engineer (Mechanical) except one who was quite unsuitable. The only candidate therefore to be considered was the petitioner It was observed that he does not posses 5 years experience in a Marine Engineering Workshop carrying on business of repairs which was the necessary qualification prescribed for the post. It was also observed that his confidential? were not satisfactory and that there was a C. B 1. enquiry pending against the petitioner. There was also a meeting of the Staff Selection Committee on the same day i. e 30-9-1976. The 3rd Respondents was appointed on 4-10-1976. This writ petition had been filed in this Court even on 27-9-1979.

(3.) Counsel for the petitioner attacked the section and appointment of the 3rd Respondent and the proceedings leading to the same on two grounds ; First, it was Said that the lack of 5 years' experience which was one of the grounds on which the petitioner was disqualified, was not a proper or justified ground of disqualification With respect to Ext. R4 it was said that it merely required 5 years' experience which undoubtedly the petitioner had The an J taken by the Port Trust, the 1st Respondent, is that out of the total experience of 5 years and 81/2 months which the petitioner had, must be discounted his ore year's apprenticeship during which time he learn rather than works, and that only experience of actual works can count for the purpose of qualification. In this region of construing a rule, we are not prepared to hold that this view which has been commended for our acceptance is not a plausible view, and we are not prepared to interfere in Art. 226 for the said view that was taken by the Authorities. But there is considerable difficulty in the second end the more fundamental ground of attack raised by the petitioner It was argued by the Counsel for the petitioner that the Departmental Promotion Committee which met on 16-6-1976 and pronounced the petitioner unsuitable and decided to fill up the post by direct recruitment was not properly constituted in accordance with Regulation 16 of the Recruitment Regulations referred to above. According to that Regulation, the Committee was to consist of the Chairman of the Board, Head of a Department where the vacancy exists and another Head of a Department nominated by the Chairman. In this case instead of the second Head of the Department, the Deputy Chairman of the Port Trust was nominated to be a Member of the Departmental Promotion Committee. The infirmity seems to have been realised after the issuance of the notification and therefore a second Departmental Promotion Committee in accordance with Regulation 16 was constituted on 30-9-1976. The same day it considered the suitability of the petitioner for selection. Ext. R. 1 dated 30-9-1976 is a copy of the Minutes of the Committee. The Committee cited the Recruitment Rules approved by the Board by its resolution dated 20th Jan., 1959 according to which the qualifications for the post of Assistant Mechanical Superintendent are :