Hany Gupta vs Madras Port Trust and Another

Chandurkar, C.J.—The two appellants in these two appeals had filed two separate writ petitions challenging the order of the promotion

made by the Chairman on 22nd December 1979 promoting eight persons out of whom six persons were Junior Engineers being degree holders

and two were General Foremen. All these were promoted as temporary Assistant Executive Engineers. The contention of the petitioners who are

diploma holders before the learned single Judge was that the ratio of 1 : 4 between the diploma holders and the Junior Engineers was an arbitrary

exercise of the power by the Chairman and that the Chairman had no power to fix the ratio for promotion of Foreman and Junior Engineers to the

post of Assistant Executive Engineers. These contentions have been negatived by the learned Judge and that order is challenged in these appeals.

Admittedly, both the appellants initially entered the service of the Port Trust as Supervisor Grade II. The next promotional post of the

Supervisor Grade II is Supervisor Grade I and Supervisor Grade I is then promoted as Foreman. Vacancies in the posts of Assistant Executive

Engineers were to be filled in by promotion from two categories of employees, that is, from amongst Foremen and from amongst Junior Engineers.

In exercise of the power under S. 28 of the Major Port Trusts Act, 1963, the Port Trust had made certain regulations which are known as the

Madras Port Trust Employee''s (Recruitment, Promotion etc.) Regulations, which came into force on the 1st April 1979. Regn. 5 with which we

are concerned is as follows :

Manner of Appointment - The manner of appointment to a post or category of posts, i.e. whether by direct recruitment or by departmental

promotion or by transfer and in the latter cases the channel of promotion and whether the promotion is by selection or by seniority subject to

suitability, age limit, educational and other qualifications and experience shall be as laid down by the Chairman from time to time :

Provided that the upper age limit may be relaxed in case of candidates belonging to Scheduled castes, Scheduled tribes or any other special

category in accordance with the general orders issued from time to time by the Central Government.

Regulation 5 has left the manner of appointment to a post or category of posts i.e. whether the appointment should be made by promotion or by

transfer or by direct recruitment and whether the promotion should be by selection or on the basis of seniority-cum-merit and other conditions such

as age limit, educational and other qualifications, were all left to the Chairman to determine from time to time. In exercise of the powers conferred

by this Regn. 5, the Chairman laid down the manner of appointment to the posts of Assistant Executive Engineers. The posts were to be filled up

by promotion of diploma holders and degree-holders. We are not concerned with the other qualifications with regard to the length of service.

While providing for the post of Assistant Executive Engineer to be filled up by direct recruitment, departmental promotion, or transfer, the

Chairman laid down that 20 per cent. of the vacancies will be reserved for diploma holders in Civil Engineering, and the remaining vacancies will be

reserved for Junior Engineers and such of those diploma holders who have acquired a degree or equivalent qualification and who held posts in the

same scale of pay as that of the Junior Engineer or higher scales. The order of promotion dated 22nd December 1979 impugned in the writ

petitions by the two persons (appellants) is made in accordance with this ratio.

In this appeal Mr. A. R. Ramanathan, appearing for the appellants, contended that delegation was not permissible to be made by the Board in

favour of the Chairman permitting him to fix the ratio and alternatively if it was permissible to delegate such a power, the power of the Chairman is

arbitrary and must, therefore, be struck down.

Now undoubtedly there is not express provision in Regulation 5 permitting the Chairman to fix a ratio between the two feeder categories from

which promotions have to be made to the posts of Assistant Executive Engineers. But it is obvious that when Regn. 5 refers to the manner of

appointment to a post, that is, whether by direct recruitment or by departmental promotion or by transfer, this power necessarily implies that

promotion to a particular post could be made both by direct recruitment and by departmental promotion and where there are more than one feeder

category from which promotions have to be made to the posts of Assistant Executive Engineers, it would become necessary to fix a ratio between

the members of the two feeder categories before promotion can validly be made. We must, therefore, construe Regn. 5 as clearly enabling the

Chairman to fix a ratio where promotions are to be made from more than one feeder category.

Now the second argument that such a power is arbitrary and cannot be sustained must also be rejected. The Regulations is question are made in

exercise of the power under S. 28 of the Major Port Trusts Act 1963. Clause (a) of S. 28 enables the Board to make regulations not inconsistent

with the Act to provide for any one or more of the matters specified in S. 28. Clause (a) refers to the appointment, promotion, suspension,

reduction in rank, compulsory retirement, removal, and dismissal of the employees of the Board. There is an important provision in S. 21 of the

Act which provides for delegation of powers of the Board to the Chairman. S. 21 of the Act reads as follows :

A Board may, with the approval of the Central Government, specify (a) the powers and duties conferred or imposed upon the Board by or under

this Act, which may also be exercised or performed by the Chairman, and ....

Clause (b) and the proviso are not relevant for our purposes. Clause (a) of S. 21, therefore, is a specific provision which enables the Board to

delegate its powers and the duties to the Chairman; the only condition of valid delegation being that it is to be done with the approval of the Central

Government. It is obvious that Regulation 5 is clearly made taking S. 21 of the Act in view and the preamble of the regulations also specifically

recites that the regulations are made with the previous approval of the Central Government. Regulation 5 is not challenged before us. The one

safeguard in respect of powers and duties which could be delegated is, therefore, the control of the Central Government and such delegation

cannot, therefore, be called arbitrary.

Now undoubtedly, even though the delegation may be valid, the exercise of delegated power could, in a given case, be struck down, if such

power has been arbitrarily exercised. We, therefore, requested Mr. Ramanathan to tell us the number of Foremen and the Junior Engineers in the

respective cadres because where promotion to a post is made from two categories the number of employees who constituted such cadres is

relevant consideration while making available to them the chances of promotion. We have been fairly informed that the cadre of Foremen consisted

of 16 employees and the cadre of Junior Engineers consisted of 64 employees. It is obvious, therefore, that the proportion of 1 : 4 fixed is the

same as between the strength of cadre of Foremen to the strength of the cadre of Junior Engineers. It cannot, therefore, be said that the power of

the Chairman to fix the ratio has been exercised arbitrarily.

An argument was advanced before us that a Junior Engineer who is promoted as an Assistant Executive Engineer works in the scale of Rs. 675

- 1052 while the Foreman works in the scale of Rs. 900 - 1230. The argument appears to be that the post of the Foreman having higher scale of

pay should be given a higher ratio when promotion is made. It is pointed out it is Supervisor Grade I who is in the same scale of pay as the Junior

Engineer and it is therefore Unfair, according to the learned counsel, to give higher chances of promotion to a Junior Engineer who is equivalent in

terms of the scale of pay to an employee inferior to the post of a Foreman. Now admittedly in the case of the degree holders, who are initially

appointed as Junior Engineers, the immediate higher post was the Assistant Executive Engineer. In so far as the diploma holders were concerned, it

is obvious that Supervisor Grade I could not be promoted straightaway as Assistant Executive Engineers because their immediate next post of

promotion is that of a Foreman. Therefore, irrespective of the scales of pay of the Junior Engineer and the Foreman a Foreman alone, and not a

Supervisor Grade I, could be promoted to the post of Assistant Executive Engineer. Having regard to the structure of the two cadres, therefore, it

appears to us that there was nothing unreasonable when the Junior Engineers were to be promoted to the post of Assistant Executive Engineer,

which was the next higher post, and the ratio fixed having regard to the strength of the two cadres of Foremen and Junior Engineers cannot be said

to be unreasonable.

In our view, there is no substance in these appeals and they must therefore fail. They are accordingly dismissed. However, we make no orders

as to costs.

Appeals dismissed.