IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WA.No. 636 of 2003(D) ---------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.13631/2002 Dated 11/02/2003 .................... APPELLANT: 5TH RESPONDENT IN O.P. ------------------------------------------------------ R. SATHISH, STATISTICAL & RESEARCH OFFICER, PLANNING & RESEARCH DIVISION, SECRETARY'S DEPARTMENT, COCHIN PORT TRUST, WILLIONGTON ISLAND-682 009. BY SRI.ELVIN PETER P.J. RESPONDENTS: PETITIONER & RESPONDENTS 1 TO 4 IN O.P. ---------------------------------------------------------------------------------------- 1. C. PREMAKUMARI, STATISTICAL & RESEARCH OFFICER, (NEW ORDERED TO BE REVERTED AS RESEARCH OFFICER, PLANNING & RESEARCH DIVISION, SECRETARY'S DEPARTMENT, COCHIN PORT TRUST, WILLINGTON ISLAND-682 009. 2. COCHIN PORT TRUST, WILLINGTON ISLAND, PIN-682 009, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, COCHIN PORT TRUST, WILLINGTON ISLAND-682 009. 4. THE CHAIRMAN, COCHIN PORT TRUST, WILLINGTON ISLAND. 5. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF SHIPPING & SURFACE TRANSPORT, NEW DELHI. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY SRI.A.K.JAYASANKAR NAMBIAR SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008,THE COURT ON 30/06/2008 DELIVERED THE FOLLOWING: ORDER ON CMP.2001/2003 & IA.NO. 2024/2004 IN WA. 636 OF 2003. ....... CLOSED. 30/06/2008. SD/- H.L.DATTU, CHIEF JUSTICE. SD/- A.K. BASHEER, JUDGE. H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 636 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2008 Judgment A.K.Basheer, J: This writ appeal, which is at the instance of respondent No.5 in the Original Petition, is directed against the order passed by the learned single Judge directing the Cochin Port Trust (for short, the Port Trust) to consider the claim of respondent No.1/petitioner for promotion to the post of Statistical and Research Officer with effect from the date of occurrence of the vacancy. While issuing the above direction, the learned single Judge had quashed Exts.P14 and P15 orders issued by the Port Trust, by which petitioner was reverted from the post of Statistical and Research Officer and appellant was promoted. 2. A brief reference to the essential facts is necessary to consider the question whether the claim of the appellant for promotion in preference to respondent No.1 is legal and valid. Parties shall be referred to in this judgment as they were arrayed in the Original Petition. 3. Petitioner joined the service of the Port Trust as Research Officer on June 3, 1996. Respondent No.5 was also appointed in the same cadre on December 30, 1996. But it is not in dispute that respondent No.5 was treated as senior to the petitioner on the basis of his rank in the select list. WA.636/03 : 2 : 4. On December 1, 2000 a vacancy arose in the next promotion post viz., Statistical and Research Officer. Petitioner had Masters' Degree in Statistics as well as in Computer Applications to her credit at the time of her appointment itself, whereas respondent No.5 was a B.Tech graduate in Computer science. On the date when the vacancy arose, the requisite qualification for the said post as prescribed in the Cochin Port Employees' (Recruitment, Seniority and Promotion) Regulations 1964 was Masters' degree in Statistics/Mathematics/ Economics, with two years' regular service as Research Officer and Masters' Degree in Computer Science as a desirable qualification. Though admittedly petitioner was the only qualified person for promotion at the time of occurrence of vacancy, her request was not considered since the Port Trust took the view that the proposal made by it for amendment of the qualification for the post, as resolved by the Board of Directors, was pending consideration before the Government of India. The proposal was to include degree in Engineering with Computer Science as an alternate qualification for the post. Though the claim of the petitioner was resisted for some time, the management had promoted her as Statistical and Research Officer with effect from February 28, 2002, on an ad hoc basis as revealed from Ext.P8 order. 5. The Government of India issued a notification in the gazette dated March 8, 2002 amending the qualification for the post of Statistical and Research Officer in the Port Trust as requested by the WA.636/03 : 3 : Board of Directors. Shortly thereafter, Ext.P14 order was issued by the Port Trust on May 13, 2002 reverting the petitioner from the post of Statistical and Research Officer. On the same day Ext.P15 order was issued promoting appellant/respondent No.5 to the above post. It was in the above circumstances that the petitioner had filed the Original Petition under Article 226 of the Constitution seeking issue of a writ of certiorari to quash Exts.P14 and P15. There was a further prayer to issue a writ of mandamus or such other appropriate writ or direction to the Port Trust to promote the petitioner to the post of Statistical and Research Officer with effect from the date of occurrence of vacancy. 6. Learned single Judge upheld the claim made by the petitioner primarily on the ground that on the date of occurrence of vacancy petitioner was the only qualified candidate available and also that there was no material on record to show that the Port Trust had taken a conscious decision not to fill up the vacancy till the amendment to the Rules was approved by the Government of India. 7. Learned counsel for the appellant contends that the Port Trust was justified in reverting the petitioner after amending the relevant regulation. It is pointed out by the learned counsel that petitioner was promoted only on an ad hoc basis. Obviously therefore petitioner was all along aware that her promotion was subject to the decision of the Government on the request made by the Director Bord. It is also contended by the learned counsel that the ad hoc promotion given to WA.636/03 : 4 : the petitioner by itself was indicative of the conscious decision of the Port Trust not to fill up the vacancy on a permanent basis and therefore the learned single Judge was not justified in taking the view that no conscious decision had been taken by the Port Trust not to fill up the vacancy. 8. It is beyond controversy that petitioner was the only qualified candidate eligible for promotion on the date of occurrence of vacancy. To put it differently, respondent No.5 was not eligible for promotion as Statistical and Research Officer going by the then existing Rules because he did not have the requisite qualification. It is true that the Director Board of the Port Trust had passed a resolution to request the Government to accept its proposal to amend the qualification for the post of Statistical and Research Officer shortly before the vacancy arose. But that did not mean that the Port Trust had decided not to fill up the vacancy, which it was aware, was due to arise shortly. Therefore, the legitimate expectation of the petitioner that she would be promoted to the post could not have been faulted at all, especially since she had got the requisite qualifications. In fact petitioner had approached the management with such a request, which was apparently kept in cold storage for more than one year, though ultimately she was promoted, albeit, on an ad hoc basis. 9. It is trite that eligibility criteria prescribed in the recruitment rules governing the field as on the date of occurrence of vacancy alone are relevant. Significantly the Government had issued the gazette notification on March 8, 2002 amending the qualification only prospectively. WA.636/03 : 5 : Therefore, as rightly contended by the petitioner, the said prospective amendment could not have had any impact on the vacancy which had arisen more than two years prior to the amendment. More importantly, by the time the amendment was brought into force, petitioner had already been promoted. The learned Single Judge, in our view, was therefore justified in upholding the claim for promotion made by the petitioner. As rightly noticed by the learned Judge, the management had not produced any material to show that a conscious decision had been taken not to fill up the post pending amendment of the Rules. Still worse, there was nothing on record to show that aspirants for promotion like the petitioner, had been informed about any such decision. The entire conduct of the management clearly revealed that respondent No.5 was given a favoured treatment. 10. It is contended by learned counsel for the appellant and the Port Trust that going by the provisions contained in Section 111 of the Major Port Trust Act, 1963 it was incumbent on the management to implement any order or direction issued by the Government. After the amendment of the regulations prescribing the qualification for the post in question, the management had to revoke its earlier decision to promote the petitioner since respondent No.5 who had the requisite qualification under the amended Rules was senior to the petitioner. Thus, it is contended that the management had only complied with the statutory mandate contained in Section 111 of the Act. 11. Having carefully perused the provisions contained in Section 111 of the Act, we are unable to accept the above contention, which in our view, is totally misconceived and untenable. What has been provided in WA.636/03 : 6 : Section 111 is only that every Board, in the discharge of its functions under the Act, shall be bound by the directions, on questions of policy, which may be issued by the Central Government in writing from time to time. We have no hesitation to hold that there was no question of policy involved in the issue on hand. What was called in question by the petitioner was his right to be considered for promotion to a vacancy which had arisen. He had only requested the management to promote him in accordance with the then existing Regulation/Rule as contained in Cochin Port Employees (Recruitment, Seniority and Promotion) Regulations, 1964. Therefore, the contention raised by the appellant and the Port Trust based on Section 111 is also liable to be repelled. We do so. 13. Having regard to the entire facts and circumstances, we do not find any reason to interfere with the order passed by the learned Single Judge. There is no merit in any of the contentions raised by the appellant. The writ appeal fails and it is accordingly dismissed. H.L. DATTU Chief Justice A.K. BASHEER Judge an.