S SRINIVAS RAO Vs. MARMUGAO PORT TRUST

JUDGEMENT

(1.) THE petitioner is a head-draughtsman, working for Engineering Civil Department of the respondent No. 1. His next promotion under the existing rules was the Assistant Engineer. While the petitioner was holding the post of estimator and Senior draughtsman Grade I, and as the incumbent holding the post of head draughtsman, was unqualified to be promoted to the post of Asst. Engineer and as he was getting stagnated and since many of the petitioners colleagues who had joined even after him to the field section, had already superseded the petitioner, the petitioner represented by various representations from the year 1982 to 1990 to amend the rules and provide the petitioner avenue of promotion to the post of Assistant Engineer. In response to those representations, it is averred in the writ petition that by letter dated 23-1-1990, the Chairman of the respondent No. 1 assured the petitioner that he would be considered for the promotion as a direct recruit for the post of Assistant Engineer. This, in fact, did not materialise. Disappointed by the inaction of the respondent No. 1 for not giving promotion to the post of Assistant Engineer, the petitioner has filed this writ petition, praying inter alia that the rules "exhibit A" be declared as null and void and also mandamus directing the respondent No. 1 to fill up the post of Assistant Engineer in terms of rules "exhibit B". Under Exhibit B Schedule to Marmugao Port Employees (Recruitments, Seniority and Promotions) Regulations, 1964, the promotion to the post of Senior Draughtsman, was the Assistant Engineer II. An amendment was effected in the year 1984 to the schedule of recruitments rules, whereby the post of Sr. Draughtsman, was ceased to be a feeder post of Assistant Engineer II vide Exhibit A. If the rules had not been amended by Exhibit A the petitioner would have been eligible to be considered for the post of Assistant Engineer. However, the petitioner did not choose to file any writ petition when the post of Assistant Engineer fell vacant or when he has become eligible to be considered for the post of Assistant Engineer. As all these relevant points are lacking in the writ petition, the writ petition would have been liable to be dismissed on that count alone. But, since the petitioner has raised an important question, namely the authority of amending the Rules by the Chairman, we are persuaded to examine that argument of the Counsel for the petitioner.

(2.) EVIDENTLY Exhibit A came into being as amendment to the existing Rules Exhibit B by the Chairman. Learned Counsel for the petitioner Shri Coelho Pereira contended that under the statute or rules or regulations, the Chairman is not empowered to amend the rules relating to the service conditions of the employees of the Port Trusts, particularly of those employees whose maximum pay exceeds Rs. 1,000/- -. He brought to our notice the relevant provisions of the Act. This writ petition has been taken up for hearing as early as August, 1996. In view of the contentions raised by the Counsel for the petitioner, we, vide order dated 10-7-1996 have called upon the respondents to clarify the points, which are extracted below :

(3.) LEARNED Counsel for the respondent No. 1 Shri Talaulikar drew our attention to section 21, and submitted that as per section 21, the Chairman is empowered by the Central Government with all duties and powers. Therefore, the Chairman, can also amend the regulation. We cannot agree with this submission. When sections 27 and 28 specifically deal with particular contingencies, it goes without saying that section 21 cannot be invoked. Section 21 gives only the powers to be authorised by the Central Government to the Chairman, which were not elsewhere enacted. Learned Counsel for the respondent Shri Talaulikar also brought to our notice an unreported decision of the Madras High Court in Writ Appeals No. 149 and 150/1980 (Harry Supta v. The Madras Port Trust, Madras) wherein, according to him, a similar question has been answered by the Madras High Court and it was found that the Chairman has got power to regulate the service conditions of the employees. With great respect, we cannot agree with the learned Counsel for the respondent No. 1. First of all, that judgment has not taken into account the implications of section 27. As we pointed out earlier, section 27 gives specific power to specific authority to create posts of specific categories of employees. Regulation 7 says that the authority to prescribe conditions of service and method of appointment, qualification and age is the competent authority to create the posts. Therefore, any matter touching the service conditions of the employees, cannot be examined on the basis of the provisions of section 21. Therefore, the ratio laid down in the Madras High Court decision is not applicable to the case in hand in the light of submission and the position of law, brought to our notice by the Counsel for respondent No. 1.