- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. Writ Petition NO. 310 OF 2001. Shri Ashok M. Bhat, Assistant Plant Superintendent/Asst. Executive Engineer (Mechanical) Mormugao-Goa. ........ Petitioner. Versus 1 The Board of Trustees of the Port of Mormugao, having office at Mormugao-Goa. 2 Union of India, by its Secretary, Ministry of Surface Transport (Ports Wing), having office at 1, Sansad Marg, New Delhi. 3 Shri Papa Rangaswamy, Dy. Plant Superintendent, Mormugao Port Trust, Mormugao, Harbour-Goa. ........ Respondents. Mr. M. S. Sonak, Advocate for the petitioner. Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, for respondent no.1. Mr. C. A. Ferreira, Assistant Solicitor General for respondent no. 2. Coram:- A. S. OKA & F. M. REIS, JJ. Date on which Judgment is reserved:- 28th July, 2010. Date on which Judgment is pronounced:- 12th August, 2010. - 2 - JUDGMENT (Per A. S. OKA, J.) We have heard the learned Counsel appearing for the Petitioner. We have heard learned Senior Counsel appearing for the first Respondent as well as the learned Assistant Solicitor General of India for the second Respondent. 2. With a view to appreciate the submissions made by learned Counsel appearing for the parties, it is necessary to briefly refer to the facts of the case. The Recruitment Rules of 1964 of the first respondent (Board of Trustees of the Port of Mormugao) provided for promotions to the post of Executive Engineer(Mechanical)/Deputy Plant Superintendent(Mechanical). The said Rules provide that only the Engineering degree holders were eligible to be considered for promotion to the said posts. The case of the petitioner is that the Recruitment Rules of 1964 being the first regulations were framed by the Central Government under section 126 of the Major Port Trusts Act, 1963( hereinafter referred to as the said Act of 1963). The case of the Petitioner is that any further amendments to the said Rules or any further regulations dealing with issue of promotions are required to be framed by the Board of - 3 - Trustees of the first Respondent in accordance with section 28 of the said Act, 1963. It is submitted that regulations/amendments made under section 28 of the said Act, 1963 become effective only after its approval by the Central Government and publication thereof in Official Gazette in accordance of section 124 of the said Act, 1963. 3. It is pointed out that the third Respondent who was holding diploma in mechanical Engineering was promoted to the post of Deputy Plant Superintendent( Mechanical) on 21st July, 2001. It is contended that Petitioner has reason to believe that the Recruitment Rules of 1964 were never amended in accordance with law. It is stated that though the Recruitment Rules were purported to be amended on 14th November, 1992 by an Office order making diploma holders eligible for the promotion to the aforesaid posts, a copy of the said order was not furnished to the petitioner. It is pointed out that on 8th June, 1991 the Central Government issued instructions recording no objection for providing the promotional avenues to the diploma holders up to the level of Executive Engineers. It is alleged in the petition that a copy of the said communication dated 8th June, 1991 has not been furnished to the Petitioner. It is pointed out in the petition that on 28th June, 2000, the Board passed resolution to - 4 - amend the Recruitment Rules of 1964 providing for promotion to diploma holders in the ratio of 3:1 w.e.f. 1st July, 2000. It is stated that resolution was to amend Recruitment Rules of 1964 for which no approval has been granted by the Central Government. It is submitted in the petition that on 3rd February, 2001, the Petitioner and his colleagues sought copies of certain documents to enable them to verify whether the Recruitment Rules of 1964 were amended. As copies of the documents were not provided, on 26th June, 2001, a representation was made by the Petitioner and others pointing out that no amendment was carried out to the Recruitment Rules of 1964. On 18th August, 2001, a legal notice was served by the Petitioner to the first Respondent recording protest against the promotion given to the third Respondent. By the said legal notice, information was sought from the first Respondent as to whether amendment was carried out to the Recruitment Rules of 1964. Reply was sent on 24th September, 2001, to the said notice which according to the Petitioner does not clarify the matter. Therefore the present writ petition has been filed. 4. The first substantive prayer is for issue of appropriate writ for quashing impugned Office Order no. 34 dated 21st July, 2007, by which third Respondent was promoted to the post of Deputy Plant - 5 - Superintendent (Mechanical). Second prayer is for issue of Writ of Mandamus to strike down the Office Order dated 14th November, 1992 to the extent to which same purports to amend the Recruitment Rules of 1964. There is a consequential prayer directing the first Respondent to consider the case of the Petitioner alongwith similarly placed degree holders for promotion to the post Deputy Plant Superintendent(Mechanical). There is a reply filed by the first Respondent raising various preliminary objections. It is contended that two earlier petitions were filed by the Graduate Engineers Association in the year 1998 and in the year 2000 which show that Petitioner had knowledge that there were 1992 Recruitment Rules. It is pointed out that not only the present Petitioner is a member of the said Association but a representation made by the Petitioner and others on 9th May, 2000 was relied upon in Writ Petition no. 254/2000. It is pointed out that both the Writ Petitions were withdrawn and now belatedly, a challenge sought to be made to the amendment of 1992. 5. The learned Counsel appearing for the Petitioner invited our attention to the Recruitment Rules of 1964 which were framed in exercise of powers under section 28 of the said Act of 1963. He pointed out that under the said Rules only the persons possessing a - 6 - decree in mechanical engineering were eligible for promotion to the posts of Deputy Plant Superintendent(Mechanical)/Executive Engineer(Mechanical) (herein after referred to the “said posts”). He pointed out that amendment to the said rules was made by Office Order dated 14th November, 1992 providing for promotional ratio of 4 (degree holders) :1(Diploma Holders). The learned Counsel appearing for the Petitioner submitted that the said Office Order at the highest is an executive order by which regulations made in exercise of powers under section 28 could not be amended. He submitted that Recruitment Rules of 1964 could have been amended only by following the procedure prescribed under section 28 read with section 124 of the said Act of 1964. He pointed out that the Petitioner and similarly placed employees were labouring under a bonafide impression that in the year 1992 amendments were carried out to the Recruitment Rules of 1964 thereby making diploma holders eligible for promotion to the said posts. He pointed out that in the meeting of the first Respondent held on 28th June, 2000, a resolution no. 25 was passed for amendment to the Recruitment Rules for the post of Executive Engineer(Mechanical). He pointed out that action taken report of the first Respondent shows that the amendment was awaiting sanction of the Central Government. He submitted that the - 7 - communication dated 8th March, 2000 issued by Government of India shows that issue relating to the Cadre Restructuring of Degree and Diploma Engineers was under consideration. The learned Counsel submitted that from the correspondence annexed to the petition, it is crystal clear that the Recruitment Rules of 1964 were never lawfully amended providing for promotional avenues to the diploma holders. Relying upon the decision of the Apex Court in the Case of A. Manoharan and others Vs. Union of India and others[(2008) 3 SCC 641], he submitted that amendment can be made to the Recruitment Rules of 1964 only in accordance with provisions of the said Act of 1963. He submitted that though a copy of the alleged office order dated 14th November, 1992 was never made available to the Petitioner, by way of abundant caution, the petitioner has prayed for quashing the said Office Order. He submitted that in absence of any amendment to the 1964 Recruitment Rules made in accordance with said Act of 1963, the third Respondent who is a diploma holder could not have been promoted to the post of Deputy Plant Superintendent (Mechanical). 6. Learned Counsel appearing for the first Respondent pointed out that the petitioner is a party to the representation dated 9th - 8 - May, 2000 submitted to the first Respondent. He pointed out that the said representation proceeded on the footing that diploma holders are eligible for promotions to the post of Executive Engineer ( Mechanical). In fact contention in the said representation was that the prescribed ratio between degree holder and diploma holder is 4:1. He pointed out that writ petition no.254/2000 was filed by the Association of Graduate Engineers of the first Respondent of which Petitioner is a member. He pointed out that the said Writ Petition proceeded on the footing that the Recruitment Rules were validly amended in the year 1992 for making promotional avenues available to the diploma holders. He submitted that the other petition filed by the Association in the year 1998 proceeded on the footing that Rules were amended in the year 1992. He, therefore, submitted that now the Petitioner cannot take a stand that there are no valid Recruitment Rules of 1992. 7. Learned Counsel appearing for the Petitioner replied that even as of today the so called Recruitment Rules of 14th November, 1992 have not been placed on record by the first Respondent and the said Rules ought to have been placed on record and the first Respondent ought to have shown that the said Rules - 9 - have the legal effect of amending the Recruitment Rules of 1964. 8. We have given careful consideration to the submissions. To the reply filed by the first Respondent, a copy of the representation dated 9th May, 2000 made by the Petitioner and other degree holder engineers submitted to the first Respondent has been annexed. In the rejoinder, the Petitioner has not denied that he was a party to the said representation. In the said representation it is stated that as per existing Rules of Recruitment, the promotional ratio between degree and diploma holders is 4:1 in respect of post of Executive Engineers ( Mechanical). Reliance was placed on Office Order dated 10th May, 2000 which was attached to the said representation. The grievance made in the said representation is that injustice has been done to the diploma holders while considering the case for promotion on the basis of ratio of 4:1. The Association of Graduate Engineers employed with the first Respondent filed writ petition no. 254/200 by which a challenge was made to the promotion granted to Shri Papa Rangaswamy, third Respondent to the said petition. Incidently, the order of promotion challenged in the present petition is again of the same third respondent. In the said petition reliance has been placed on Recruitment Rules of 1992 which provided for ratio of 4:1 - 10 - between degree holders and diploma holders. The challenge in the said petition to the promotion granted to third Respondent was on the ground that the promotion granted to the first Respondent was in breach of 1992 Recruitment Rules. In fact a copy of the said Writ Petition annexed to the reply of the first respondent discloses that a copy of the Recruitment Rules of 1992 was annexed to the said petition as Exhibit “A”. A grievance was made in the said petition, as regards the failure to grant promotion to the first Petitioner therein who was subsequently promoted. Thus the said Writ Petition which is based on representation dated 9th May, 2000 to which Petitioner is a party proceeded on the footing that the Recruitment Rules of 1992 which provided the promotional avenues to diploma holders are valid Rules. The said Writ Petition was permitted to withdrawn by order dated 9th August, 2000 by granting a limited liberty to the Association to challenge the Office Order no. 99 dated 10th May, 2000. The said Office Order provided that the promotional ratio between degree and diploma holders will be 3:1 instead of 4:1. As stated earlier, the representation dated 9th May, 2000 made by the Petitioner and others proceeds on the assumption that the Recruitment Rules provide for promotional avenue to the diploma holders. Thus the only grievance of the Association of which Petitioner is a member was as regards the - 11 - ratio of 3:1. 9. As far as the Writ Petition no. 160/98 is concerned, the same was filed again by the same Association which proceeded on the footing that the Recruitment Rules amended in the year 1992, were in force. The contention in the said Writ Petition was that the posts should be filled in as per the Recruitment Rules of 1992. 10. Now in the present petition, the stand taken is that the Recruitment Rules of 1964 was never lawfully amended in the year 1992 and therefore promotional avenue is not open to the diploma holders. The stand taken by the Petitioner in the present petition is completely contrary to the stand taken by the Petitioner in his representation dated 9th May, 2000. The only grievance made at that time was as regards the ratio between the degree holders and diploma holders to the promotional posts. Neither the Petitioner nor the Association of Engineers of which the Petitioner is a member challenged the Recruitment Rules of 1992 which provided promotional avenue to the diploma holders. In fact the earlier two petitions filed by the Association proceeded on the assumption that the Recruitment Rules amended in the year 1992 are legal and valid. - 12 - 11. The Petitioner has invoked extraordinary remedy under Article 226 of the Constitution of India. Now the petitioner wants to take up a stand that there is no lawful amendment made in the year 1992 to the Rules of 1964 and that promotional avenue is not open to diploma holders. The petitioner cannot be permitted to take such a contrary stand belatedly after having accepted the validity of the Recruitment Rules of the year 1992. This is not a case where Writ jurisdiction can be exercised in favour of the Petitioner. 12. Hence we pass following order:- The Writ petition is rejected. Rule is discharged with no order as to costs. A. S. OKA, J. F. M. REIS, J. vn*