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1991 Supreme(Bom) 88
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
G.D. Kamat Dr. E.S. D’Silva, JJ.
Vishvanath Putu Chipkar others .... Petitioners.
Versus
Mormugao Port Trust by its Chairman others .... Respondents.
Writ Petition No. 479 of 88, decided on 13-2-1991.
Advocates appeared :
F. Rebello with G.D. Kirtani, for the petitioners.
V.B. Nadkarni with A.C. Navelkar, for the respondent No. 1.
G.U. Bhobe, for the respondent No. 2.
Headnote:
CONSTITUTIONAL LAW - RESERVATION FOR SC/ST - PROMOTION - PERCENTAGE - HIGHER PERCENTAGE FOR PROMOTION THAN DIRECT RECRUITMENT - VALIDITY - MAINTENANCE OF EFFICIENCY IN ADMINISTRATION - ARTICLE 14, 15(4), 16(4), 335, 341 AND 342 OF THE CONSTITUTION OF INDIA - MAJOR PORT TRUSTS ACT, 1963 - SECTION 28, 125 AND 126 - REGULATIONS MADE THEREUNDER - OFFICE MEMORANDUM DATED 27TH NOVEMBER, 1972 AND 4TH JANUARY, 1957 - OFFICE ORDER DATED 28TH JULY, 1975 - CIRCULAR DATED 8TH FEBRUARY, 1988 - Held, that the reservation of 2% and 1% for SC/ST respectively, for direct recruitment, no doubt based on local or regional basis is independent from the reservation of 15% and 7% at promotional levels, for, the socially backward classes need adequate representation at higher level. The recruitment on regional or local basis adopted by instrumentalities of the Central Government like Mormugao Port Trust has nothing to do with the recruitment policy of the local State Government. Mormugao Port Trust is bound to follow its regulations and the directions of the Central Government in the matter of reservation of seats on All India basis. Reservation at promotional level at 15% for SC and 7% for ST is by no stretch of imagination excessive or extensive, looked from any angle. Even otherwise, appointments at higher levels are far less in number than posts filled at lower level at initial direct recruitment. Therefore, it stands to reason that higher percentage for promotional posts is more in the nature of equalization as otherwise the constitutional requirement may be whittled down because only a negligible percentage of SC/ST would get opportunity for promotion at higher levels without adequate representation.
Fact of the Case:
The petitioners, employees of Mormugao Port Trust, challenged the reservation policy of the Trust, which provided for 15% reservation for SC and 7½% reservation for ST in promotions, while the reservation for direct recruitment was 2% for SC and 1% for ST. They contended that the higher percentage for promotion was arbitrary and violative of Articles 14 and 16 of the Constitution, that reservation should be based on the percentage of population of SC/ST in the local area, and that only SC/ST from the State of origin were entitled to reservation benefits.
Finding of the Court:
The Court held that the reservation policy of the Trust was not arbitrary or violative of Articles 14 and 16 of the Constitution. It held that the higher percentage for promotion was justified to ensure adequate representation of SC/ST at higher levels, and that the reservation policy was based on the All India population of SC/ST, not on the local population. The Court also held that only SC/ST from the State of origin were entitled to reservation benefits.
Issues: 1. Whether the reservation policy of the Trust, which provided for 15% reservation for SC and 7½% reservation for ST in promotions, while the reservation for direct recruitment was 2% for SC and 1% for ST, was arbitrary and violative of Articles 14 and 16 of the Constitution? 2. Whether reservation should be based on the percentage of population of SC/ST in the local area? 3. Whether only SC/ST from the State of origin were entitled to reservation benefits?
Ratio Decidendi: 1. The reservation policy of the Trust was not arbitrary or violative of Articles 14 and 16 of the Constitution. 2. Reservation should not be based on the percentage of population of SC/ST in the local area. 3. Only SC/ST from the State of origin were entitled to reservation benefits.
Final Decision: The petition was dismissed.
2. The petitioners were initially appointed as Clerks between the period 1964 to 1966 and promoted as Senior Clerks in 1972-1973. Respondents Nos. 3 and 4 were appointed as Clerks in the year 1979, respondent No. 5 in 1982 and respondent No. 6 in 1983 and subsequently promoted is Senior Clerks.
The next promotion for a Senior Clerks is that of Accountant. According to the petitioners based on seniority and otherwise nothing adverse found, they are liable to be promoted as Accountants, as on 31st August, 1987, respondent Nos. 4 and 5 on 5th September, 1988 and respondent No. 6 ad-hoc basis on 28th October, 1988. It is now set out that respondents Nos. 3, 4, 5 and 6 though junior to the petitioners were promoted to the posts of Accountants out of turn they belong to Scheduled Caste/Scheduled Tribe.
3. Section 28 of the Major Port Trusts Act, 1963, enables the Board of Trustees to make regulations not inconsistent with the Act to provide for appointment, promotion, suspension, removal and dismissal of its employees, matters relating to leave, leave allowances, pension, gratuity, terms and service conditions of the employees and other matters which are incidental to or necessary for the purposes of regulating the appointment and conditions of service of its employees.
Section 126 thereof says that notwithstanding anything contained in the Act the first regulation under this Act shall be made by the Central Government and the same to have effect on being published in the Official Gazette. Section 125 empowers the Central Government when it considers necessary in public interest to do so, by order in writing, to direct the Board of Trustees to make any regulation for all or any of the matters specified in section 28 or to amend any regulation within such period as the Central Government may specify in that behalf.
4. By virtue of section 126 read with section 28 of the Major Port Trusts Act, the Central Government made a Regulation known as the Mormugao Port Employees (Recruitment, Seniority and Promotion) Regulation, 1964, for short the "Regulation". This Regulation has undoubtedly come into force from 1st July, 1964, and Clause 13(a) is to this effect :-
"Section 13(a)---Reservation to Specified Sections of the People:
Orders issued by the Central Government from time to time for the reservation of appointments or posts under the Central Governmental in favour of Scheduled Castes and Scheduled Tribes shall apply mutatis mutandis to all appointments governed by these regulations ."
5. From the above, therefore, it is clear that in matters of reservation of posts for Scheduled Caste for short "S.C" and Schedule Tribes, for short "S.T" the Regulation clearly provides that orders issued by the Central Government from time to time shall mutatis mutandis apply to all appointments governed by the Regulation. By invoking a Circular viz. Department of Personnel O.M. No. 27-2-71-Estt. (S.C.T.) dated 27th November, 1972, issued by the Central Government to all ministries, etc. on the subject of reservation for S.C/S.T. in posts filled by promotion-promotions on the basis of seniority subject to fitness (Exh. A-1), the Mormugao Port Trust issued an Office Order dated 28th July, 1975 (Exh. 1). This Office Order made in suppression of para 6 of the Office. Order earlier made on 28th September, 1973, says that there will be reservation of 15% for Scheduled Caste and 7½% for Scheduled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all posts Class I, Class II, Class III and Class IV in grades or services in which the allotment of direct rec
