Allowed

The Cochin Port Trust v. M.Satheesan

Kerala HC13 Jun 2016WA/1678/2015

Case brief

AI extract

What is this about?

Graduate engineers challenged revised recruitment and promotion regulations for reducing promotional opportunities. The court upheld the regulations and the Central Government's power to direct their framing, allowed the appeals, set aside the judgments under appeal and dismissed the writ petitions. It rejected an additional respondent's request for a promotion direction.

What did the court decide?

Judgments under appeal set aside; writ petitions dismissed.

The Cochin Port Trust Vs M.Satheesan — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938

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WA.No. 1678 of 2015 IN WP(C).255/2011

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AGAINST THE JUDGMENT IN W.P.(C)255/2011 of HIGH COURT OF KERALA DATED 20-05-2015

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APPELLANTS/2ND AND 3RD RESPONDENTS:

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THE COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI-682 009, REPRESENTED BY ITS CHAIRMAN.

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THE BOARD OF TRUSTEES OF COCHIN PORT TRUST, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI-682 009, REPRESENTED BY ITS CHAIRMAN.

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BY ADVS.SRI.K.ANAND (SR.)

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SMT.LATHA KRISHNAN SRI.M.N.RADHAKRISHNA MENON

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SRI.JOSEPH SEBASTIAN (PARACKAL)

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RESPONDENTS/PETITIONERS AND RESPONDENTS 1,4 - 10:

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M. SATHEESAN, AGED 46 YEARS, S/O.NEELAKANDAN NAMBOOTHIRIPAD, MURIYAMANGALATHU MANA, EROOR, THRIPOONITHURA.

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MATHEW VARGHESE, AGED 39 YEARS, S/O.C.M.VARGHESE, H.NO.28/2655 G3, PONNATH SOUTH ROAD, KADAVANTHARA, ERNAKULAM.

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SRINATH S.S. ALIAS JOSE, AGED 49 YEARS, S/O.LATE V.SRIDHARAN, E3/91 CPT QUARTERS RNAS, WILLINGTON ISLAND, KOCHI-682 003.

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RAJESH PILLAI, AGED 37 YEARS, S/O.RAMACHANDRAN NAIR, H.NO.23/2000 A, ANNAMKULANGARA LANE, MARUNNUKADA, PALLURUTHI, KOCHI-682 006.

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AKASH PRAKASH, AGED 34 YEARS, S/O.K.K.PRAKASHAN, H.NO.34/2014A,, SREESAILAM, BTS MAMANGALAM CROSS ROAD,, EDAPPALLY, KOCHI-682 024.

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UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF SHIPPING, PORTS WING, PARIVAHAN BHAVAN,, PARLIAMENT STREET, NEW DELHI -110 001.

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INDIAN PORTS ASSOCIATION, 1ST FLOOR, SOUTH TOWER, NBCC PLACE, BHISHAM PITAMAH MARG, LODHI ROAD, NEW DELHI-110 003, REPRESENTED BY ITS MANAGING DIRECTOR.

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W.A.No. 1678 of 2015

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:: 2 ::

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[8. N.K.RAJENDRAN, EXECUTIVE ENGINEER (M), WORKSHOP, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 003.]

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[ DELETED]

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C.K.SIVARAMAN, DEPUTY MATERIALS MANAGER, CONTROLLER OF STORES OFFICE, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI - 682 003.

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[10. G.SOMANATHAN, ASSISTANT EXECUTIVE ENGINEER (M) DOCK MASTERS OFFICE, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 003.]

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(R8 AND R10 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 7.12.2015 IN I.A.NO.1588/15)

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V.A.SAJEEV, ASSISTANT EXECUTIVE ENGINEER (M) CME'S OFFICE, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 003.

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K.G.GEORGE, ASSISTANT EXECUTIVE ENGINEER (M), DRY DOCK, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 003.

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V.J.THOMAS, ASSISTANT MATERIALS MANAGER CONTROLLER OF STORES OFFICE, COCHIN PORT TRUST,

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WILLINGTON ISLAND, KOCHI 682 003.

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ADDL R14. ASOK KUMAR .C.R., ASSISTANT ENGINEER (MECHANICAL) CHIEF MECHANICAL ENGINEER'S DEPARTMENT, COCHIN PORT TRUST, WELLINGTON ISLAND, KOCHI. (ADDITIONAL R14 IS IMPLEADED AS ADDITIONAL R14 VIDE ORDER DATED 18.1.2016 IN I.A.NO.1664/15)

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R1-R5 BY ADV. SMT.M.A.VAHEEDA BABU R1-R5 BY ADV. SRI.P.U.VINOD KUMAR R1-R5 BY ADV. SRI.K.A.NOUSHAD R1-R5 BY ADV. SRI.J.RAMKUMAR R1-R5 BY ADV. SRI.MITHUN BABY JOHN R6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RADDL.14 BY ADV. SRI.NAVEEN.T R BY SRI.R.DIVAKARAN R BY SRI.E.D.GEORGE

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2016, ALONG WITH WA.NOs.1774/16 & 54/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. 'CR'

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos.1678 & 1774 of 2015 & 54 of 2016

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13^th day of June, 2016

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JUDGMENT

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Antony Dominic, J.

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W.A.Nos.1678 and 1774 of 2015 are filed against the common judgment in W.P.(C) Nos. 255 and 2245 of 2011. W.A. No. 54 of 2016 is filed by the petitioners in W.P.(C) No. 255 of 2011. Since the issues are common and the writ petitions were disposed of by a common judgment, these appeals were heard together and are being disposed of by this common judgment. For convenience, we shall refer to the documents produced in W.P.(C) No. 255 of 2011, against which W.A. No. 1678 of 2015 has been filed.

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Briefly stated, the facts of the case are that, the Cochin Port Trust, the appellant in W.A.Nos.1678 and 1774 of 2015, is a Major Port Trust constituted under the provisions of the Major Port Trusts Act, 1963. Recruitments, seniority and promotions of the employees of the Cochin Port Trust were governed by the

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provisions of the Cochin Port Trust (Recruitment, Seniority and Promotion) Regulations, 1964. Insofar as these cases are concerned, the petitioners in W.P.(C)Nos.255 of 2011 and 2245 of 2011 are Assistant Engineers and Assistant Executive Engineers of the Mechanical Engineering Department of the Cochin Port Trust, who are engineering graduates. The 1964 Regulations show that the post to which the Assistant Engineer can aspire for promotion is that of Assistant Executive Engineer and the higher post to which an Assistant Executive Engineer can aspire is that of Executive Engineer. As per 1964 Regulations, there was a ratio of 1:1 between diploma and degree holders in the matter of promotion of Assistant Engineers to the post of Assistant Executive Engineers. Similarly, in the case of promotions to the post of Executive Engineer, the Regulations prescribed a ratio of 4:1 in the order of one degree/one diploma/three degree. According to the petitioners, as per the seniority list, they had acquired sufficient

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seniority for promotion to the higher post.

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It was at that stage, the Government of India issued Ext.P3 communication dated 06.02.2004 recommending cadre restructure

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in various Port Trusts and induction of first class and second class degree holders with post graduate qualification. Paragraphs 3.8 and 4 of Ext.P3 read thus:

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“3.8. The existing and revised set up of different departments in various Port Trusts on cadre restructuring is given in Annexures 1 to 11 for implementation after following the prescribed procedure like formulation/amendment of RRs etc. Ports should strive to achieve the proposed structure at the earliest. Where reduction in number of posts is involved, the Ports will not fill up such posts whenever these posts will fall vacant, till the proposed number of posts is reached. Such surplus posts will stand abolished as soon as these posts fall vacant.

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4. Direct Recruitment to the Junior Class-I Cadre in the Ports:

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4.1 Keeping in view the acute need for attracting competent professionals to meet the multi-dimensional problems faced by the ports due to the liberlisation of the economy, it has been decided as follows:-

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i. Induction of executives in all the departments shall not be below Class-I entry level (Rs.9,100-250-15,100).

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ii. Minimum qualification for entry into managerial cadre shall either be a 1^st class graduate or a 2^nd Class Degree holder with Post Graduate qualification. In both cases this may be in general stream or any professional streams (Engineering, Mechanical, Commerce with Accountancy etc.) Chartered /Cost Accountant, appropriate MOT Certificate for marine officers etc.

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iii.Initially upto December, 2006 33.1/3% and thereafter 66.2/3% of the posts at Class I entry level shall be filled by direct recruitment through competitive examination and interview. The departmental candidates possessing the Degree or equivalent qualification in the relevant discipline may be allowed to compete along with open market candidates against the direct recruitment quota and in their cases, the Division in Graduation and age restriction shall not apply. This will, however, not apply to posts such as Medical Officers, Pilots, Marine Engineers etc where all posts are filled up only by direct recruitment basis. Similarly, in Ports where percentage of direct recruitment is higher at present than what has been prescribed now, it may continue.

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iv.Initially upto December, 2006, 66.2/3% and thereafter 33.1/3% of the posts at Class I entry level shall be filled by promotion and the selection will be made through written test and viva voce without insisting on the prescribed educational qualifications and age restriction for direct recruitment. However, this would not apply in the case of marine and medical departments' posts where possession of requisite qualifications is essential and posts are filled up only by direct recruitment basis.

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v. Both the direct recruits as well as the promotees would be required to undergo an in-service orientation course for a month in various departments of the port so that they become acquainted with the different spheres of port working.

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vi.In addition, all the direct recruits and promottees will undergo training programmes at IIPM/NIPM and only on qualifying in the examination prescribed by the Institute at the end of the training, they will be confirmed in service. This should be one of the prerequisites for confirmation.”

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It was also ordered in paragraph 6.3 that revised draft Recruitment, Seniority and Promotion Regulations incorporating the changes envisaged, may be framed on a priority basis in consultation with Indian Ports Association and send to the Government and that the finalisation of the Regulation should precede implementation of the Pay Revision recommendation. This was followed by Ext.P4 letter, dated 26.07.2004, from the Government of India. In this letter, it is stated that Indian Ports Association has prepared a model Regulations and that the

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Government have gone through the same. A copy of the model Regulations was enclosed to the letter and the Ports were required to examine the model and to have it approved, taking into account the views of the Government of India indicated therein.

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A reading of the model Regulations shows that insofar as the post of Assistant Executive Engineer is concerned, for which a ratio of 1:1 between Diploma and Degree was in force, the rule was suggested to be modified. The modification suggested was that upto 31.12.2011, direct recruitment and promotion shall be continued in the percentage of 33 1/3% and 66 2/3 respectively and that after 31.12.2011, the direct recruitment and promotion shall be 66 2/3% and 33 1/3% respectively. Insofar as the post of Executive Engineer is concerned, the ratio between Graduates and Diploma holders that was prescribed in 1964 Regulation was recommended to be done away with. Coming to know of these developments, representations were made by the employees like

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the petitioners in the writ petitions and one such representation is Ext.P5. In the representations, they wanted the Regulations to be continued as before or at least that a reservation be provided to accommodate the existing graduate engineers.

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The matter was considered by the Board of Trustees in the meeting held on 27.03.2006. Ext.P11 is the agenda and the minutes which show that the Board, after detailed deliberation, resolved to approve the Cochin Port Employees' (Recruitment, Seniority and Promotion) Regulations, 2006 based on the Ministry's Model Regulations, subject to recasting of anomalies pointed out and subject to the approval of the Central Government. This was received by the Central Government and on its receipt the Central Government issued Ext.P6 letter dated 15.07.2008 requesting for forwarding the Regulations framed strictly in accordance with the model Regulations to enable the Ministry for notification and for necessary action. It was accordingly that the

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matter was again placed before the Board of Trustees in the meeting held on 08.05.2009, the agenda of which is Ext.P7. The mater was considered by the Board of Trustees and Ext.P8 is the resolution that was passed. This resolution shows that the Trustees of the Board had expressed various views in the matter. This includes their concern on the grievances of the employees also. Finally, the Board of Trustees passed resolution No. 20 approving the Cochin Port Employees' (Recruitment, Seniority and Promotion) Regulations, 2009, with a recommendation that existing eligible Officers to be upgraded to the newly created higher posts at the time of the introduction of the Rules. This resolution reads thus:

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“91. The Board, after detailed deliberations and considering the special circumstances, resolved to approve the Cochin Port Employees' (Recruitment, Seniority and Promotion) Regulations, 2009 and the proposed Recruitment Rules, annexed as Appendix -V, with the recommendations that existing eligible officers may be upgraded to the newly created higher posts at the time of introduction of the Rules, in order to ensure level-playing field, and the model R.Rs. Strictly implemented thereafter,

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subject to Government sanction.”

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Even thereafter, representations were made. Finally, in

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terms of the provisions contained in Section 132 of the Major Port

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Trusts Act, the Regulations were notified in the Gazette of India, a copy of which is Ext.P10. It is also relevant to note that in Ext.P10, insofar as the post of Assistant Executive Engineer is concerned, the method of recruitment stood altered thus:

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“Up to 21st Aug. 2012 By Direct Recruitment-33 1/3% By Promotion - 66 2/3%

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After 21st Aug. 2012

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By Direct Recruitment - 66 2/3% By Promotion - 33 1/3%”

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Insofar as the post of Executive Engineer is concerned, the

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ratio of 4:1 between degree holders and diploma holders stood

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deleted. Further, the Regulations also contain clause (9) conferring eligibility on the existing employees for direct recruitment. This provision reads thus:

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“ 9. ELIGIBILITY OF EXISTING EMPLOYEES FOR DIRECT RECRUITMENT

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When the posts required to be filled by direct recruitment are advertised, employees already in service may also apply, provided they possess the prescribed qualifications and experience. Age limit in such cases will not apply.”

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It was challenging the aforesaid provisions of Ext.P10 Regulations that the writ petitions were filed by the employees,

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who are now working in the category of Assistant Engineers and Assistant Executive Engineers. The writ petitions were disposed of

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by the learned Single Judge by the common judgment under appeal,

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in which the learned Single Judge concluded the issue thus:

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“10. It appears from the records that the persons similarly situated like the petitioners are few in number and therefore attempt can be made by the respondent Port Trust to save the people like the petitioners by regularising the posts and by absorbing them to the cadre by enhancing the number of post by taking note of the fact that the appointments were made prior to the coming into force of the new regulations. Undoubtedly the impugned regulations have taken away the promotional avenues of the petitioners on a fine morning. It is true that the Apex Court has observed that mere chance of promotion is not a fundamental right however, the right to be considered for

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promotion is a fundamental right and the same cannot be taken away. In fact, the proposed regulations takes away such a right of the petitioners. Therefore, this Court is of the definite view that the impugned regulations so far it creates a stagnation in the case of the petitioners in W.P.(C) No. 255 of 2011 or denies the right to hold the present post of the petitioners in W.P.(C) No. 2245 of 2011 is bad in law. However, if the impugned regulations are struck down in toto the same would affect the entire administration of the respondent Port Trust.

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11. As the Act empowers the board who is well aware of the local conditions and special circumstances of its employees to make objections or suggestions before the Government, these writ petitions are disposed of as under:

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a)The respondent board is directed to make positive suggestions in the form of amendment in the impugned regulations for remedying the situations pointed out in these petitions and to submit the same before the Government for approval. This shall be done within a period of two months from the receipt of a copy of this judgment.

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b)The Central Government who is the 1^st respondent in this case shall upon the modifications/suggestions so submitted and shall pass formal orders approving the same.

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c) The above said exercise shall be done by the board as well as the Central Government after affording the petitioners and any other affected parties an opportunity of being heard.

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d)The decision of the Central Government shall be taken

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within a period of two months from the date of submission of the modifications/suggestions by the respondent Port Trust.

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e) Till the aforesaid exercise is completed, the appointment or promotions to the next cadre as well as reversions shall be kept in abeyance.”

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It is aggrieved by this judgment, the Cochin Port Trust has filed W.A. Nos.1678 and 1774 of 2015. On the other hand, W.A.No. 54 of 2016 has been filed by the petitioners in W.P.(C)No.255 of 2011 aggrieved by the absence of any direction in the impugned judgment to revert the persons, who were promoted in terms of the impugned Regulation during the pendency of the litigation.

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We heard the learned Senior Counsel for the appellants in W.A.Nos.1678 and 1774 of 2015, the learned counsel for the appellants in W.A.No.54 of 2016, who are also the respondents in W.P.(C)No.1678 of 2015 and the learned counsel appearing for the respondents in W.A.No.1774 of 2015. The counsel for the additional 14^th respondent, a diploma holder who got himself

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impleaded in W.A. No.1678 of 2015, was also heard.

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According to the learned counsel for the appellants in W.A. Nos.1678 and 1774 of 2015, the learned Single Judge has exceeded his jurisdiction not only in interfering with the Regulations framed by the Cochin Port Trust in exercise of its statutory powers under the Major Port Trusts Act, but also in ordering that the Regulations be framed in the manner as directed in the judgment. The learned counsel submitted that the grounds on which a subordinate legislation can be interfered with by a court exercising the power of judicial review under Article 226 of the Constitution of India are well settled, and that in the absence of any such grounds being made out, even if the the Regulations are unsatisfactory to the court or lacking in some respects, the court cannot interfere with the Regulations validly framed.

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On the other hand, the learned counsel appearing for the petitioners in the writ petitions contended that as a result of

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Ext.P10 Regulation, stagnation of the Graduate engineers is the end result. Therefore, according to them, the Regulations are unreasonable and are vitiated. According to the learned counsel, when a case of stagnation is made out, it is not only in the interest of the employees, but also in the interest of the Organisation itself to rectify the Regulations providing for promotional avenues. According to them, the learned Single Judge was fully justified in interfering and issuing the directions as contained in the impugned order. They also pointed out that the graduates are a vanishing category and, according to them, in the category of Assistant Engineers and Junior Engineers of the Mechanical Engineering Department, there are only eight graduate engineers left to be promoted. It is stated that such a vanishing category of graduate engineers deserves a special treatment and it was, therefore, that the learned Single Judge issued directions for framing the Regulations. The counsel referred to the judgments of the Apex

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Court laying down the principle that the employer has the obligation to provide its employees avenues to advance in their career. It was also pointed out that under the provisions of the Major Port Trusts Act, the authority to frame Regulations is the Board of Trustees. Referring to Exts.P4 and P6 (supra), the learned counsel contended that this was a case where the Board of Trustees acted on the dictation of the Government of India. According to the learned counsel, the repository of the statutory power is bound to act independently and if it acts on the dictation of any superior authority, that is illegal and cannot be sustained. The counsel referred to the judgment of this Court in Roy V.M. v. Ayavana Grama Panchayat, Ernakulam and others¹ in this context.

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On the other hand, the additional 14^th respondent in W.A. No.1678 of 2015, a diploma holder by qualification and occupying

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the post of Assistant Engineer, submitted that going by the 1 2015 (3) KHC 445

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seniority, he is the next person to be promoted to the post of Assistant Executive Engineer and that despite the existence of vacancies, promotions are not effected by the Port Trust. On this basis, he sought a direction to the Port Trust to effect promotions to the higher post of Assistant Executive Engineer in terms of Ext.P10 Regulations.

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Having thus noticed the facts of the case and also the relevant contentions urged, we shall first examine the scope of jurisdiction exercised by this Court while examining the legality of a subordinate legislation. Insofar as this case is concerned, Section 28 of the Major Port Trusts Act confers power on the Board of Trustees to make regulations not inconsistent with the Act, to provide for the appointment, promotion, suspension, reduction in rank, compulsory retirement, removal and dismissal of its employees. Section 132 of the Act prescribes the manner in which such regulations are to be published in the gazette of India.

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Therefore, a regulation as Ext.P10 framed under the Major Port

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Trusts Act, 1963 is a piece of subordinate legislation.

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When the validity of a subordinate legislation is challenged, interference by a court is possible only on specific grounds. Such grounds have been considered by the Apex Court in its judgment in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth² and in paragraph 18 reads thus:

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“18. In the light of what we have stated above, the constitutionality of the impugned regulations has to be adjudged only by a three-fold test, namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.”

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This Court also had occasion to consider the very same

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question in the decision in Pankajaksy & Others v. George

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2 AIR 1984 SC 1543

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Mathew & Others³ . After surveying all precedents, including the

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judgment of the Apex Court referred to above, this Court concluded thus:

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“12. Thus the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is “unreasonable” to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.”

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We may also mention that in the judgment in Maharashtra State Board of Secondary and Higher Secondary

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Education (supra) , the Apex Court examined the question whether

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even a bye-law can be struck down on the ground of unreasonableness. This question was answered by the Apex Court in paragraph 21 thus:

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3 1987(2) KLT 723

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“21. The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than “is necessary” or that it does not incorporate certain provisions, which in the opinion of the court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness.”

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On an earlier occasion, the Apex Court has also examined

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whether the constitutionality of a service rule can be tested on a touchstone of individual hardships. This question was answered in the negative, in the judgment in Kamal Kanti Dutta and others v.

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Union of India and others⁴ , where in paragraph 52 of the judgment it was held thus:

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52. In regard to the individual instances cited before us as exemplifying the injustice caused to the promottees, it is not safe to test the constitutionality of a service rule on the touchstone of fortunes of individuals. No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service. The

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4 AIR 1980 SC 2056

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paramount consideration is the reconciliation of conflicting claims of two important constituents of service, one of which brings fresh blood and the other mature experience.”

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In this context, it is also relevant to notice that reduction

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of employees chances of promotion, cannot be the subject matter of judicial review as no legal right is infringed thereby. This principle has been recognised by the Apex Court in its judgment in A. Satyanarayana and others v. S. Purushotham and others⁵ , wherein it was held thus:

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“26. Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby.”

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Having thus seen the limits of the jurisdiction of this

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Court, we may now examine whether Ext.P10 Regulations could

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have been interfered with by this Court in any manner. Insofar as this case is concerned, as we have already stated, Exts.P3 and P4

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show that the Government of India wanted to maintain uniformity

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5 (2008) 5 SCC 416

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in the Regulations governing the recruitments, seniority and promotions of the employees of all Major Port Trusts in the country. It was with that intention that the Government issued directions to the Major Ports to revise the regulations in consultation with the Indian Ports Association. Accordingly, the Indian Ports Association framed the model regulations, which was approved by the Government of India and was forwarded to the Major Ports in the country for adoption. It can be seen from Exts.P5 and P9 that representations were made by the affected employees and their grievances were also reflected in the deliberations of the Board of Trustees. This is also evident from Ext.P11 minutes of the meeting of the Board of Trustees, which was received by the Government of India and again the Government vide Ext.P6 letter instructed the Board to frame its regulations strictly in compliance with the model regulations. It was accordingly that the matter was again considered by the Board of

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Trustees in the meeting held on 08.05.2009. Ext.P8, the minutes of that meeting, show that in the deliberations, the Trustees of the Board had taken up the grievance of the affected persons and finally they resolved unanimously to approve the regulations. It was these regulations which was finally notified by the Government of India as per Ext.P10.

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Insofar as the Graduate Assistant Engineers are concerned, the manner in which they are affected as a result of Ext.P10 Regulations is that in the matter of their promotion to the post of Assistant Executive Engineer, under the 1964 Regulations, there was a ratio of 1:1 between Diploma and Degree holders and with effect from 21.08.2012, this ratio has been modified into 33 1/3% : 66 2/3% between direct recruitment and promotion. Similarly, in the case of promotion to the post of Executive Engineers, the ratio of 4:1 between graduates and diploma holders has been done away with. At the same time, to our mind, a

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beneficial provision has been incorporated in Ext.P10 Regulations, vide clause (9) thereof, entitling the existing employees of the Port to compete for direct recruitment, when the higher posts are filled up by that method.

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In this background, the question to be considered is whether the petitioners have made out any ground justifying interference by this Court. We shall first examine whether the provisions of Ext.P10 Regulations are ultra vires the provisions of the Major Port Trusts Act, 1963 or in any manner inconsistent therewith. As we have already mentioned, Section 28 of the Major Port Trust Act enables the Board of Trustees of a Major Port to make regulations, not inconsistent with the Act, to provide for the appointment, promotion, suspension, reduction in rank, compulsory retirement, removal and dismissal of its employees. Undoubtedly, Ext.P10 Regulations are framed in exercise of the powers under Section 28 of the Act. From the submissions made

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before us, as we have already stated, two contentions are raised impugning the Regulations. First is that, the Regulations are unreasonable in as much as it limits or reduces the promotional avenues of the existing graduate engineers now working in the cadre of Assistant Engineers in the Mechanical Engineering Department and that since the ratio has been abolished, the adhoc promotees now occupying higher posts are likely to face reversion. The second contention raised is that, the Regulations have been made, in violation of the provisions contained in Section 125 of the Major Port Trusts Act, as the Board of Trustees have acted at the dictates of the Government of India. Insofar as the first contention that the Regulations are unreasonable as it limits or denies the promotional opportunities of graduate engineers in the cadre of Assistant Engineers in the Mechanical Engineering Department is concerned, as we have already seen, the net effect of the changes brought about to the method of recruitment to the post of Assistant

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Executive Engineer is that as against the prevailing ratio of 1:2 in the matter of direct recruitment and promotion, that has now been altered 2:1, which means the rate of induction of fresh blood into the service of the Port would be doubled. It also needs to be noticed that changing the ratio 1:1 between Degree and Diploma that was prevailing for the post of Assistant Executive Engineer, as per the new Regulations, the ratio introduced upto 31.12.2011 was 33 1/3% : 66 2/3% between Direct Recruitment and Promotion. In other words, till 31.12.2011, the quota earmarked for promotion was double the quota, earmarked for Direct recruitment. This must have been done only to minimise the hardship of existing employees. It is only from 1.1.2012, the ratio of 66 2/3 % : 33 1/3% between Direct Recruitment and Promotion was brought into force.

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Similarly, insofar as the post of Executive Engineer is concerned, the ratio of 4:1 between the graduates and diploma

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holders has been given a go by. The purpose for introducing such a ratio, as is seen from Ext.P3, the report of the Pay Revision Committee, is to induct more number of qualified fresh graduate engineers into the technical cadres of the Port Trust. The essence and substance is that as a result of the changes that are now brought about, there will be induction of more number of fresh graduates in the technical cadres of Port Trust and there could be reduction in the promotion avenues of the existing employees in the feeder category posts. Similarly, promotion to the post of Executive Engineer would, henceforth, be on the basis of seniority in the feeder category. At the same time, the rule making authority has also ignored to take into account the interest of the existing employees which is evident from the ratio introduced for the post of Assistant Executive Engineer. According to such policy decisions taken by the statutory authorities, which are aimed at increasing the efficiency of service in their organisation cannot be interfered

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with by courts exercising power of judicial review.

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We have already stated that reduction in the promotional avenues is not a subject matter of judicial review as no legal right is infringed thereby. This principle has been recognised by the Apex Court in its judgment in A.Satyanarayana's case (supra), wherein it has been held that the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby.

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Similarly, validity of service rule cannot be tested on the ground of individual hardship of the employees. Insofar as the contention of the learned counsel for the employees that the Regulation is unreasonable because it would result in stagnation of the existing employees is concerned, the concept of stagnation as understood in the service jurisprudence is the situation where the employees are forced to continue in a cadre without any avenues of

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promotion. Insofar as this case is concerned, such a situation is not there. On the other hand, the writ petitioners can only complain of reduction in the chances of their promotions. Such a situation is not a case of stagnation to challenge Ext.P10 Regulation on the ground of unreasonableness. We may, in this context, also hasten to add that even if, according to the petitioners or to this court, this Regulation is unreasonable for the reason that the Regulations could have been made better with additional provisions, that also is not a ground to interfere with Ext.P10 Regulation made by the statutory authority in exercise of its statutory powers.

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Insofar as the further contention, relying on Section 125 of Major Port Trust Act is concerned; Section 125 of the Major Port Trust Act reads thus:

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“125. Power of Central Government to direct regulations to be made or to make regulations--(1) Whenever the Central Government considers necessary in the public interest so to do, it may, by order in writing together with a statement of reasons therefor, direct any Board to make any regulations for all or any of the matters specified in section 28 or section 76 or section 123 or to amend any

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regulations, within such period as the Central Government may specify in this behalf:

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Provided that the Central Government may extend the period specified by it by such period or periods as it may consider necessary.

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(2) If any Board, against whom a direction is issued by the Central Government under sub-section (1), fails or neglects to comply with such direction within the period allowed under sub-section (1) that Government may make the regulations or amend the regulations, as the case may be, either in the form specified in the direction or with modifications thereof as the Central Government may think fit:

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Provided that before so making or amending the regulations the Central Government shall consider any objection or suggestion made by the Board within the said period.

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(3) Where in pursuance of sub-section (2), any regulations have been made or amended, the regulations so made or amended shall be published by the Central Government in the Official Gazette and shall thereupon have effect accordingly.”

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The contention raised is while Section 28 of the Act

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confers power on the Board of Trustees of the Port, by issuing

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directions to the Board to adopt or to frame Regulations in accordance with the Model Regulations, the Government of India

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has usurped the statutory powers of the Board and the Port succumbed to the dictates of the Government of India. This contention cannot be accepted for various reasons. First of all, Section 125 entitles the Central Government, when it considers necessary in the public interest so to do, to issue an order in writing in the manner as stated in the Section, directing the Board to make regulations for all or any of the matters specified therein or to amend any regulations, within a time specified. Sub Section (2) further provides, in case, any direction issued under Sub Section (1) is disobeyed by a Board of Trustees, the Government itself may make the regulations or amend the regulations. However, when the power under Section 125(2) is exercised, the proviso to sub section (2) require the Government to consider the objections and suggestions made by the Board within the stipulated period.

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Insofar as this case is concerned, from the facts, it is

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obvious that in order to achieve uniformity in the service regulations in the Major Port Trusts in the country, Government issued Exts.P2 and P3 and the model regulations and it is on that basis, the Government issued directions as per Exts.P4 and P6. These directions are thus issued under Section 125 of the Major Port Trusts Act. It is perfectly within the domain of the Central Government to issue such directions in exercise of the powers under Section 125 of the Act. Since such directions are binding on the Port Trust, this court cannot interfere with the action taken in pursuance thereof, on the ground that it is inconsistent with the provisions of the Act. Therefore, those grounds urged for interference are not available in these cases.

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The second ground for interference is when the regulations infringe any of the fundamental rights or any other rights or limitations imposed by the Constitution. We have already examined the Regulations and we have come to the conclusion that

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the net effect of the Regulation is reduction of the promotional chances for the existing employees, resulting in individual hardship. Law is trite and has been reiterated in the Apex Court judgment in Sathyanarayana's case (supra) that reduction in promotion chances does not justify interference as no legal rights are infringed thereby. Therefore, when such is the impact of the Regulation impugned, this court cannot interfere with the same on the ground that any of the fundamental rights or other rights of the employees of the Port Trust are affected by the Regulations.

¶218

It is true that on account of the reduction in the chances of promotion of the existing employees of the Port Trust, individual hardships have been caused. But, however, when policy decisions are taken and Regulations are framed governing the conditions of service of the employees of an establishment such as the Cochin Port Trust, such individual hardships can occur. If such individual hardships occur, it is for the employer to remedy the grievances.

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Reference in this connection may be made to the principles laid down by the Apex Court in paragraph 52 of its judgment in Kamal Kanti Dutta's case (supra) . From the aforesaid discussions, it is clear that the Regulations in question could not have been interfered with by this court and none of the vitiating grounds have been made out by the petitioners.

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Insofar as the grievance of the additional 14^th respondent in the Writ appeal 1678/2015 is concerned, he is a Diploma holder and his grievance is that despite the availability of vacancies, promotions are not effected by the Port Trust in terms of Ext.P10 Regulations. According to us, if at all he has such a grievance, he cannot seek any relief from this court in the writ appeal filed by the Port Trust arising out of a writ petition filed by the graduate engineers impugning the Regulations. Therefore, the request made by the additional 14^th respondent in W.A.1678/15 can only be rejected.

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From the aforesaid observations, we are clear in our minds that the learned Single Judge has exceeded his jurisdiction in interfering with the Regulations and issuing the impugned directions. Therefore, the writ appeals are allowed. The judgments under appeal are set aside and the writ petitions will stand dismissed.

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Sd/- ANTONY DOMINIC JUDGE

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Sd/- DAMA SESHADRI NAIDU JUDGE

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jes

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// True copy //

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P.A. to Judge

The Cochin Port Trust v. M.Satheesan

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The Cochin Port Trust v. M.Satheesan

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