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1989 Supreme(Bom) 268
IN THE HIGH COURT OF BOMBAY
[Panaji Bench]
H.H. Kantharia G.D. Kamat, JJ.
Mrs. Olga D’souza .... Petitioner.
Versus
Board of Trustees of the Port of Marmugao and others .... Respondents.
Writ petition No. 390 of 1988, decided on 13-9-1989.
Advocates Appeared :
A.F. Diniz, for the petitioner.
V.B. Nadkarni, General with Arun Navalkar, for respondent Nos. 1 and 2.
G.U. Bhobe, Standing Counsel, for the Union of India, for respondent No. 3.
Headnote:MARMUGAO POST EMPLOYEES (RECRUTMENT, SENIORITY AND PROMOTIONS) REGULATION, 1964.
Rule 13 (a) -Constitution of India, Arts. 14 and 46 Promotion of employee to reserved post -When promotional post are to be filed up from amongst SC/ST candidates only, general category candidates cannot have any claim on such promotions.
The Department 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 received for a Scheduled Tribe candidate took into consideration the Government guide lines contained in Office Memorandum No. 24/7/(1) East (SCT), dated September 24, 1986 and another Officer Memorandum No. 8/12/69 Estt. (SC), dated December 23, 1970 which provided for relaxation for qualifying standards for the prescribed the and recommended the second respondent for the promotion to the post in question subject to a condition that he obtained the required proficiency within six months from the date he took over the charee of the said post. It is further disclosed that on the expiry of six months period the Departmental Promotion Committee had reviewed the case of the second respondent and had found that he had obtained the required prescience. Therefore, it was under such relaxed conditions that the second respondent was promoted to the concerned post and as such Court finds no substance in this contention of petitioner. 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 others not belonging to these communities and that the petitioner here has not made out a case that the post in question was dereserved.
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
