IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08/04/2003 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA REVIEW APPLICATION No.68 OF 2001 W.P. Nos.4573 and 4774 OF 2003 AND C.M.P. Nos.21913 and 13438 of 2001 W.P.M.P. Nos.5796, 5797, 6054 and 6055 of 2003 REVIEW APPLICATION No.68 OF 2001: The Madras Port Trust represented by its Chairman Chennai 600 001 ..... Petitioner -Vs- 1. V. Ramalingam 2. K. Ramamoorthy 3. G. Ravichandran 4. S. Sathyanarayanan N. Muthu (Died) 5. Union of India, represented by its Secretary, Ministry of Surface Transport New Delhi ..... Respondents W.P. NoS.4573 AND 4774 OF 2003 A. Manoharan Assistant Executive Engineer Chennai Port Trust :: Petitioner in Chennai W.P. No.4573/03 The Chennai Port Trust Petitioner in Degree Engineers Association :: W.P. No.4774/03 :versus: 1. Union of India rep. by its Secretary to Government Ministry of Shipping Parivahan Bhavan No.1, Parliament Street New Delhi-1 2. Under Secretary to Government of India, Ministry of Shipping Parivahan Bhavan No.1 Parliament Street New Delhi 1 3. Chennai Port Trust Diploma Engineers Association, rep. by its General Secretary, Engineering Department, Chennai Port Trust :: Respondents Chennai 600 001 in both the Wps Review Application under Order 43 Rule 1 CPC read with Sec.114 of CPC against the judgment and order dated 26-6-2001 made in W.A. No.1251 of 2000 !For Petitioner in :: Mr. R.G. Rajan Review Application ^For respondents 1 to 4 :: Mr. S. Krishnasamy in the review application For Petitioner in the writ petitions :: Mr. Vijay Narayan For Respondents in the Mr. S.M. Deenadayalan writ petitions :: Mr. A. Kalaiselvan A.C.G.S.C. for R1 & R2 :ORDER V.S. SIRPURKAR, J. This judgment will dispose of Review Application No.68 of 2001 in W.A. No.1251 of 2000, which emanated from W.P. No.11938 of 1993. The judgment will also cover C.M.P. No.13438 of 2001, which is an application for grant of leave to file a re ation in Review Application SR No.54979 of 2001 against the same aforementioned Division Bench judgment in W.A. No.1251 of 2001. Since the subject is common this judgment will also dispose of W.P. Nos.4573 and 4774 of 2003. Few facts will be necessary for understanding the controversy involved. 2. A writ petition came to be filed being W.P. No.11938 of 1993 by the present respondents 1 to 4 and one Muthu, who were employed in the Madras Port Trust, petitioner herein. They all are the engineers, having the qualification of diploma ring. Initially the petition was for a relief of a Mandamus or a Direction to the Madras Port Trust to carry out the necessary amendments to the regulations framed and thereby providing the promotion opportunities to the Diploma-Engineers to the post of Executive Engineer in the ratio of 4:1, i.e. as against four posts of Executive Engineer to graduate-engineers, one post to diploma-engineer was sought. This was obviously on the basis of the earlier communications made by the Central Government, beari ng Ref. No.C-13019/24/87-PE-II, dated 8-6-1991. 3. It was pointed out that as per this communication, the Madras Port Trust had also constituted a Committee, which also recommended by its recommendation dated 30-6-1992 that the diploma-holders should be made eligible to be promoted to th xecutive Engineer. During the pendency of this petition, however, the Union of India sent a second communication dated 29-6-1994 and by that it was provided that a common seniority list should be maintained for diploma-holders and degree-holders once th e two streams merge i.e. once the diploma-holders and degree-holders come on the common platform occupying the same post. By that communication, the Chairman was requested to take action immediately. This letter was in supersession of an earlier letter Ref.C-13019/3092-PE-II, dated 6-6-1994 and in partial modification of letter Ref.C-13019/20/94-PE-II dated 8-6-1991. 4. The petitioners, therefore, amended their prayer and sought for issue of a Mandamus, directing the respondents to carry out the necessary amendments in the manner of appointment to the post of Executive Engineers, enabling the diploma-ho eing promoted to the post of Executive Engineer as also for further promotions on the basis of common seniority in the post of Assistant Engineer. This amendment application, however, remained without being ordered upon. The learned single Judge, howev er, realising that the subject of common seniority list was introduced by way of amendment, took the view that since the Union of India had already considered that the diploma-holders could be promoted to the post of Executive Engineer, the unamended pra yer, i.e. for a direction to amend the regulations was already granted. However, in so far as the other prayer for promotion was concerned, the learned single Judge observed that the petitioners should make an administrative representation to the Port Trust and that is how the petitioner was disposed of. 5. The petitioners thereafter waited for long time but found that the matters were not moving at all in the matters of their promotions. They filed a writ appeal taking up the position as if their writ petition was dismissed, which was not t position because the learned single Judge had only declared the writ petition to be infructuous on the ground that decision was already taken by the respondent Government making them eligible to the promotion to the post of Executive Engineer. When th e matter came for final hearing, a specific stand was taken by the learned counsel appearing for the Port Trust that the Committee constituted by the Port Trust had undoubtedly recommended that even the diploma-holding engineers could be promoted to the post of Executive Engineer. He also referred to the Madras Port Trusts Committee report, dated 30-6-1992, which expressed that since the Board Regulations had not been amended, it was not possible for the Board to implement the decision of the learned single Judge and to give promotions in the ratio of 4:1. 6. Learned senior counsel for the Union of India took the stand during the arguments that it was not necessary for the Government to issue any approval for amending the Board regulations which had otherwise provided that the post of Executi could be filled in only by the degree-holding engineers. A further clear stand was taken by the learned standing counsel for the Central Government that the promotions could be granted to the Assistant Engineers who were only diploma-holders because th at was the clear stand of the Central Government. It was clarified by him that initially the stand of the Central Government was such promotions could be granted in the ratio of 4:1 as compared to the graduate-engineers but, thereafter, the Central Gove rnment had taken a further stand that there would be no question of any proportion between the graduate-engineers and the diploma-engineers once they reach a common platform of the post of Assistant Engineer. He took further stand that the Central Gover nment had modified the stand by providing that there shall be a common seniority list of Assistant Engineers both graduate-engineers as well as the diploma-engineers and the further promotions would be on the basis of that common seniority list. It was also pointed out that the Central Government had the authority to issue such directions to the Port Trust and, therefore, the Central Government took the stand that it was up to the Port Trust to implement the decision and in fact implemented the same as per the guidelines provided by the Central Government much earlier. 7. It was, therefore, held by the Division Bench, to which one of us (V.S. Sirpurkar, J.) was a party, that once this stand of the Central Government was clear so as to enable the diploma-holding engineers to be promoted to the post of Exec eer, there was no question of any further contest. The writ petition was, therefore, allowed and the directions were given to the respondents to promote the petitioners, in keeping with the rules. The directions were also given fixing the deemed date o f the retired employees like Ramalingam, Ramamurthy and Muthu. This judgment is now sought to be reviewed by the Madras Port Trust. 8. In the present application, it is pleaded by the Madras Port Trust that there were regulations framed under Sec.28 of the Madras Port Trust and under Regulation 5 of the Regulations, the power vested with the Chairman in the matter of ap s also to provide for the suitability of the age limit, educational and other qualifications, etc. The Board regulations specifically provide that for being promoted to the post of Executive Engineer a degree in engineering, from a recognised University , is a must. It is then pointed out that these regulations were statutory in character and the infraction of the same would vitiate any action taken. It was then pleaded that the circular dated 28-1-1994 was sought to be clarified, by the letter dated 12-10-1994, on which the Government has not taken any action. 9. In short, it was pleaded that in the absence of any amendment to the regulations, which provided for the minimum qualification of engineering degree for promotion to the post of Executive Engineer, nothing was possible. 10. The amendment noted by the Division Bench is attacked on the ground that by that amendment, a new cause of action arose and the writ petitioners in that event had to implead the degree-holders or part-time degree-holders as necessary pa is further pleaded that right from 1993, promotions were made on the basis of the unamended regulations and they would have to be disturbed and if that was so, those promotees were also the necessary parties. 11. Along with this review application, as many as about ten petitioners filed a review application and since they were not parties to the earlier writ petition, they sought to move a petition (C.M.P. No.13438 of 2001) for leave to file the lication against the judgment, to which they were not the parties. On the whole, their contention is that they were the necessary parties in the writ appeal as their rights were in jeopardy. 12. When the matters came up for hearing, after notice to the original writ-petitioners/respondents herein, Shri V.T. Gopalan, learned senior counsel very heavily relied on the circular bearing No.C-13019/11/96-PE-II, dated 8-3-2000 and poi at this letter dated 8-3-2000 was not kept before the Division Bench by either the learned counsel appearing for the Madras Port Trust or even by the learned standing counsel appearing for the Central Government. Learned counsel pointed out that by this letter, the earlier letters of the Ministry bearing Ref.No.C-13019/24/87-II dated 8-6-1991, C-13019/20/94-PE-II dated 28-6-1994 and C-13019/20/94-PE-II dated 11-10-1994 were kept in abeyance since the issue relating to cadre restructuring of diploma/deg ree engineers of Major Ports was under consideration in consultation with the Ministry of Finance. According to him, if the necessary result would be that the original regulations would govern the issue and as such the diploma-holders would not be able to be promoted to the post of Executive Engineers. 13. When we see the grounds for review in the review application, this letter is not even distantly referred to therein. All that stated was that unless the regulations were amended, the petitioners could not be held qualified to be promot post of Executive Engineer. Ordinarily, this letter would have clinched the issue though the question still remains as to whether a letter, which was not at all shown or pointed out to the Division Bench could be made a basis for a prayer of a review. L earned senior counsel very candidly admitted that the letter ordinarily should have been pointed out to the Division Bench but was not so pointed out. This letter, undoubtedly, would have mattered because all the three earlier-mentioned letters which h ad held the even the diploma-engineers to be qualified to be promoted to the post of Executive Engineers were obviously set at naught by this letter. It is significant to note that in all these three letters, which are in the nature of guidelines, the C entral Government had consistently taken a stand that firstly the diploma-engineers holding the post of Assistant Engineers could be promoted to the post of Executive Engineers; secondly, initially it had taken a stand that the ratio between the degree-e ngineers and diploma-engineers would be 4:1; lastly, it took the stand that there would be no necessity of any ratio and once these engineers came on the common platform of the post of Assistant Executive Engineer then there will be a common seniority am ong themselves. If by letter dated 8-3-2000 all these three letters were kept in abeyance then obviously the regulations would rule the roost, according to which, the promotion was available only to the degree-holding engineers. 14. Shri Thiagarajan, learned senior counsel appearing on behalf of the respondents herein produced one more letter of the Central Government dated 24-12-2002. This letter makes a reference to the earlier letters dated 8-6-1991, 6-6-1994, and 11-10-1994. So also, the earlier controversy regarding the degree-engineers and diploma-engineers has been referred to. A specific summary of these letters has been drawn in five clauses. They being: firstly, the diploma-holders could be promoted up to the level of Executive Engineers; secondly, there could be a limited allocation of posts for diploma-holders in the ratio of 4:1 or 5:1 in relation to graduate-engineers; thirdly, Class III posts in the Engineer cadre were to be redesignated without any change in their duties and without any financial implications; fourthly, common seniority list was to be maintained for degree and diploma engineers once the two streams merge for promotion to the higher cadres; and lastly, regarding the ratio of 4:1 or 5:1 between degree-engineers and diploma-engineers whenever the two streams merge, no ratio system would exist meaning thereby, that after the merger, i.e. after the two category of engineers come on the same platfor m, the promotion has to be made on the basis of common seniority list. After this, the following paragraph appears in that letter, which reads as follows: These guidelines were in vogue till 2000 when these instructions were kept in abeyance by letter No.C-13019/11/96/PE-I dated 8-3-2000 on the ground that cadre restructuring of degree/diploma holders was under consideration. Cadre restructuring p roposal, involving upgradation of some posts and financial implications, could not be finalised as it needs consultation / concurrence of Ministry of Finance. Thus as on date there are no clear instructions on the subject of promotional avenue to the di ploma holders. Decision on cadre restructuring will be implemented with all its consequences. However, in the mean time we need to provide guidelines as promotion of diploma / degree holders, if due, should not wait till the cadre restructuring is fina lised. In the circumstances, it has been decided to withdraw this Ministrys letter No.C-13019/11/96/PE-II dated 08.03.2000 and restore the position available before 08.03.2000. The ports are accordingly requested to take necessary action in the matter . (emphasis ours) Once this letter was produced, learned senior counsel appearing on behalf of the Port Trust sought time to check the factual position and ultimately conceded that the said letter was there and in view of the said letter, once the letter dated 8-3-2000, w as withdrawn, there will be no question of reviewing the judgment. Learned counsel took the stand that these guidelines issued in the latest letter as also the earlier letter would be binding on the Port Trust come what may (in spite of the regulations to the contrary). Learned counsel, therefore, did not press the other submissions in the review application. In view of that, the review application is dismissed as also the other connected applications are closed. 15. However, the matter did not stop there. Shri Vijay Narayan, learned counsel appearing on behalf of the ten graduate-engineers pressed his application for review and for that purpose sought the permission of the Court. Since the degree were not the parties to the writ petition or the writ appeal, the review application by these persons for the first time cannot be entertained. It has not been shown as to in what manner would the ten petitioners individually be affected. The review ap plication is silent about the same. We are, therefore, not in a position to permit the review. C.M.P. No.13438 of 2001 for leave to file review application is dismissed. Consequently Review Application SR No.54979 of 2001 cannot be entertained. It is rejected. 16. The matters do not stop even there. Realising the technical difficulty regarding the tenability of the review application filed by the petitioners, who were not even the parties to the original writ petition and the writ appeal, two wri (W.P. Nos.4573 by one Manoharan, Assistant Executive Engineer, who had sought leave to file the review application vide C.M.P. No.13438 of 2001 and 4774 of 2003 by the Chennai Port Trust Degree Engineers Association) came to be filed. Both the writ p etitions came to be placed before us. Since we were already dealing with the subject of the promotions to the diploma-engineers and the degree-engineers, we heard Shri Vijay Narayan at length. 17. The contention raised in this writ petition is that the order in the nature of guidelines issued by the Central Government, bearing No.C-13019/11/96/PE-II dated 24-12-2002 is firstly beyond the powers of the Central Government and fur itrary. In so far as the first contention is concerned, the petitioner referred to the regulations of the Madras Port Trust and the proceedings dated 4-12-1979 issued by the Chairman in which it was provided that the post of Executive Engineer shall be available only to the degree-holders. 18. The petition then referred to the representations made by the diploma-holders and referred to the communication dated 8-6-1991 passed by the Central Government. We have already made a reference in the earlier part of this judgment to th ation and, therefore, we need not repeat the same. However, it is sufficient to state that, finding that there were varying situation in the Ports, this communication was in the nature of the guidelines and therein, it is specifically pointed out that t he diploma-holders could be promoted up to the level of Executive Engineers. The ratio of 4:1 or 5:1 was also accepted therein. The writ petitioners then referred to the formation of a sub-committee by the Chairman of the Port Trust and its unfruitful d iscussions with the degree-holding engineers association and the diploma-holding engineers association and further to the fact of reference having been made to the Indian Ports Association for solving this issue between the diploma-engineers and the de gree-engineers. 19. A reference is also made to the modification dated 6-6-1994 to the earlier guidelines for directing therein to maintain a common seniority list. It is further stated that by letter dated 28-6-1994 also a common seniority list was direc aintained for diploma-engineers and degree-engineers, once the two streams merge. The petitioners have even made a reference to the letter dated 1-10-1994 and then proceeded to point out that on 15-5-1995 a letter was written by the Government of Indi a to the Managing Director of Indian Ports Association, in which it was suggested that the issue regarding their cadre restructuring of degree/diploma holding engineers was pending for a long time and the position was varying from port to port, leading t o unnecessary complications and lot of dissatisfaction amongst the staff and, therefore, the Government had decided to refer the issue and for filing a consolidated report to the Ministry after that issue was resolved. 20. According to the petitioners, this issue was referred to a committee and the suitable actions were to be taken on the basis of this report. A reference is then made to a draft report of degree-engineers and diploma-engineers at major p is pointed out that five cadres were to be prepared wherein the diploma-holders were to be directly inducted to the post of Junior Engineers Grade-II in Class III cadre and had the further promotional avenues to the posts of Assistant Engineer Class II, Assistant Executive Engineer Class I and Executive Engineer Class I. It is further pointed out that in this report the positions higher to the Executive Engineer were to be filled up only by degree-holding engineers. It is then pointed out that Govern ment of India had not taken any decision in pursuance of this draft report but, issued a letter on 8-3-2000 stating that the letters dated 8-6-1991, 28-6-1994 and 11-10-1994 should be kept in abeyance. 21. A reference in paragraph 14 is thereafter made to a Parliamentary Committee on subordinate legislation which suggested that instead of leaving the issue to the Chairman of the Port Trust, it would be better if the guidelines are provide gulations by adding a schedule so as to make it self-contained. It is then pointed out that the recommendations of the Parliamentary Committee were accepted by the Government and the Ministry of Surface Transport directed the Madras Port Trust to amend the regulations suitably on the lines of the recommendations of the Parliamentary Committee. The Madras Port Trust, in its meeting held on 30-5-1989, approved all the amendments proposed to the said regulations subject to the sanction of the Central Gov ernment and on 4-8-2000, the Government decided to amend the regulations and the Regulation No.5 stood amended whereby it was provided that the qualifications to the department posts shall be as per the schedule which prescribed that for the promotion to the post of Executive Engineer, a degree in Civil Engineering was a must. 22. The petitioners then referred to the writ petition filed by the diploma-holders and the writ appeal. They also referred to the review petitions and then pointed out that in the mean time, the letter dated 24-12-2002 has been issued. Th ated 24-12-2002 is assailed on various grounds as we have already made clear. 23. The first ground of objection raised by Mr. Vijay Narayan was that the Central Government did not have any power to issue this letter more particularly under Sec.125 of the Major Port Trusts Act. Learned counsel says that the letter ha the proper format under Art.71 of the Constitution. In short, the contention is that the letter dated 24-12-2002 is not in accordance with the Act and more particularly in accordance with Sec.125 . It will be, therefore, necessary to see as to whether the Central Government had the necessary powers to issue the said letter. 24. Before we approach the problem it has to be stated that this letter is issued by the Government of India, Ministry of Shipping and is in the nature of the guidelines, which is clear from the beginning words of paragraph 2. Seeing the l annot be disputed that all through, the Central Government has been issuing the guidelines and they were more particularly issued in the letters dated 8-6-1991, 6-6-1994 and 28-6-1994. In the impugned letter also, the guidelines expressed in the aforeme ntioned earlier three letters, making the post of Executive Engineer available to the diploma-holding engineers, is reiterated. It will be seen that all through, right from the beginning of 1990, there has been a consistent stand that the diploma-holdin g engineers could be appointed to the post of Executive Engineers. This consistent policy, which started from 1991 and was ruling the roost up to 2000, was suddenly kept in abeyance because of the letter dated 8-3-2000. All that the present letter does is to remove the eclipse on the earlier policy and to rejuvenate the same. 25. It cannot be disputed that the letter has to be treated as a guideline because the letter itself purports to be one. Even the Central Government has not taken any exception to this letter during the debate on the review application and he same. To say that the said policy cannot be informed by the letter signed by the Under Secretary would, therefore, be a travesty. This is merely a guidelines issued by the Central Government and the letter has been written by the Under Secretary