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PETITIONER: CAPT.  KARAN VASWANI

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       29/03/2000

BENCH: S.S.Ahmad, Y.K.Sabhaewal

JUDGMENT:

     Y.K.SABHARWAL J.

     Leave granted.

     In exercise of the powers conferred by Section 28 read with Section 124 of The Major Port Trusts Act, 1963, The New Mangalore  Port  Trust (Recruitment of Heads of  Department) Regulations,  1991 have been framed.  Regulation 5  provides for  method of recruitment and Regulations 9 and 10  provide for application for direct recruitment and their eligibility etc.   The  recruitment to various posts including  that  of Deputy Conservator is governed by these Regulations.  A post of Deputy Conservator fell vacant in November, 1994.  It was sought  to  be filled by appointment by direct  recruitment. Besides  others,  appellant and respondent no.4 ??   Captain Subhash  Kumar  submitted their applications.  We  are  only concerned  with the appellant and Captain Kumar.  Both  were interviewed.   Captain  Kumar was selected and appointed  as Deputy   Conservator.    The    appellant   challenged   his appointment  by filing a writ petition in the High Court  of Karnataka.  A learned Single Judge allowed the writ petition holding  that  Captain Kumar did not possess  experience  as provided  in  the  Schedule  to  the  Regulations  and  was, therefore, ineligible to be appointed as Deputy Conservator. The  judgment of learned Single Judge was, however, reversed in  appeal  by  impugned judgment dated 19th  August,  1997. Union  of  India ??  respondent no.1 and New Mangalore  port Trust,  respondent  no.2,  have all  through  supported  the appointment  of  Captain Kumar.  The principal  question  is whether  Captain Kumar possesses the essential experience as stipulated  in the Regulations.  The experience required for the post is as follows :

     "10  years experience as Master of foreign going  ship or in pilotage and dredging in a Major Port Trust."

     Captain  Kumar  had  the experience of 6  years  as  a Master  and  9 years as a Pilot.  The appellant had, at  the relevant  time,  an experience of 2 years as Master  and  11 years as a Pilot.

     Can  experience  as  a  Master and  Pilot  be  clubbed

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together  for possessing 10 years experience is the question for  consideration?  Learned Single Judge took the view that clubbing  of experience is not permissible and on that view, quashed  the  appointment of Captain Kumar made by the  Port Trust.  The Division Bench, on the other hand, held that the experience  gained either as a Master or as a Pilot or  both together  could be taken into consideration and,  therefore, no  fault could be found with such an interpretation  placed by  the  Select  Committee.  It further held that  when  two views  are  possible,  the   one  which  the  administrative authority  has taken, should not be interfered with and that the  view taken by Selection Committee was possible or  even probable  view.  Thus, the appointment of Captain Kumar  was upheld.

     In  the hierarchy of posts, the Deputy Conservator  is higher  than ‘Harbour Master’ which post is higher than that of  a  ‘Pilot’.  These three posts, under The New  Mangalore Port (Authorisation of Powers) Regulations, 1980 are defined as under :-

     "‘Deputy  Conservator’ means the Deputy Conservator of the  port  and  the  officer  to  whom  the  direction   and management of pilotage are vested;

     ‘Harbour  Master’ means the officer appointed as  such by  the  Board to perform such duties as may, from  time  to time be assigned to him by the Deputy Conservator;

     ‘Pilot’ means a person lawfully appointed and licensed as  such  by the Board subject to the authorisation  of  the Central  Government,  to  pilot in the Port  any  vessel  as directed by the Deputy Conservator or Harbour Master;"

     The  terms  ‘foreign-going  ship’   and  ‘Master’  are defined  in Section 3(13) and Section 3(22) of The  Merchant Shipping Act, 1958 as under :-

     "‘foreign-going  ship’  means  a  ship,  not  being  a home-trade  ship,  employed in trading between any  port  or place  in India and any other port or place or between ports or places, outside India;

     ‘Master’  includes  any  person  (except  a  pilot  or harbour master) having command or charge of a ship;"

     In  Section  2(n) of The Major Port Trusts Act,  1963, the term ‘master’ has been defined as under :-

     "‘Master’,  in relation to any vessel or any  aircraft making use of any port, means any person having for the time being the charge or control of such vessel or such aircraft, as  the  case  may  be,  except  a  pilot,  harbour  master, assistant  harbour master, dock master or berthing master of the port;"

     We  have no difficulty in accepting the contention  of Mr.    Rao,  learned  senior   counsel  appearing  for   the appellant, that the post of ‘Master’ does not include in its ambit the post of ‘Pilot’.  However, that by itself does not show  that the experience as a master of foreign-going  ship cannot  be clubbed with the experience of a pilot to satisfy the  requirement  of experience provided in the  Regulations

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for  the  post of Deputy Conservator.  According to The  New Mangalore  Port Trust Employees (Recruitment, Seniority  and Promotion)  Regulations,  1980 as amended in 1989,  for  the post  of Pilot as also for the post of Harbour Master, it is essential  to hold a certificate of competency as master  of foreign-going  ship  issued by the Ministry of Shipping  and Transport,  Government of India or by Board of Trade, UK  or any   other  Commonwealth  country   whose  certificate   of competency has commonwealth validity.  For the post of Pilot it is also essential to have three years experience as Chief Officer or as a master of foreign-going ship whereas for the post  of  Harbour  Master, it is essential to  possess  five years  experience as a pilot after attaining proficiency  in handling  all types of ships with unrestricted tonnage.  For the   post   of   Deputy   Conservator,   when   filled   by promotion/transfer/  deputation, officer is required to hold analogous  post  or with three years regular service in  the lower   post   equivalent  to  or  above   Harbour   Master. ‘Analogous  posts’ under Regulation 3(i) of 1991 Regulations means   a   post   of  which   the  duties  and   level   of responsibilities  and/or  the pay ranges are  comparable  to those of the post to which selection is to be made.

     The  post  of Deputy Conservator is required  to  have variety  of  experience.   The direction and  management  of pilotage  is vested in Deputy Conservator.  The duties to be performed by Harbour Master are assigned by him.  The Deputy Conservator  is  thus required to have a varied  experience. The  Regulations stipulate 10 years’ experience as Master or in  pilotage or dredging in a Major Port Trust.  There is no prohibition  in  the  regulations  in clubbing  of  the  two experiences.   The  regulation reproduced above has  equated the  two experiences.  If the contention of the appellant is accepted,  it will mean that despite having vast  experience but  less than 10 years as Master of foreign-going ship  and having  equally  vast experience as a pilot, a person  would still  be  ineligible for being considered for the  post  of Deputy  Conservator.   We  are  unable   to  read  any  such intention in the regulations.

     It  may  further  be  noticed that the  stand  of  the Central  Government is that it has consistently  implemented the   Regulation  taking  into   consideration   the   total experience  notwithstanding that it is partly as a master of foreign-going  ship  and partly in pilotage.  It has  always considered  the experience clubbed together.  This is stated to  being  consistently followed in recruitment of heads  of department  in other major ports including Madras and Cochin where Deputy Conservator was recruited by direct recruitment method in 1994.  It has also been stated that the nature and functions  of  a  Master  and  a  Pilot  are  similar.   The Government states that the Master of a ship is authorised to perform  the  acts  ordinarily necessary for  the  safe  and proper execution of the voyage.  A pilot primarily navigates within the harbour.  As already stated, both have to possess certificate  of competency as Master of foreign-going  ship. The  Pilot has specialised local knowledge whereas Master of a  ship  entering  in a port, is not expected  to  have  the detailed  information about the local signals, lights, depth of  harbour  etc.   The  Union   of  India  has   throughout understood and implemented the stipulation about experience, to  mean  the  total experience, either as a Pilot or  as  a Master  and  clubbing  the two, has considered the  case  of recruitment in the past as well.  It cannot be said that the interpretation  placed by the respondents is not  reasonable

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or is impermissible.

     Another contention urged on behalf of the appellant is that  Captain  Kumar was guilty of suppression  of  material information  which,  if known, would have debarred him  from being appointed to the post in question.  The Division Bench of  the High Court has rightly rejected the said contention. Further  we find no reason to reject the stand taken of  the Port   Trust  that  during   interview,  Captain  Kumar  was specifically  asked  regarding the sinking  incident,  which according to the appellant was suppressed.  Moreover, on the representation of the appellant, this aspect was examined by the  Ministry  of Surface Transport and it did not find  any merit   in  the  assertion  of   the  appellant  about   the suppression  of  material information.  We do not  find  any infirmity  in  the  approach  of  the  Ministry.    Further, admittedly  for  the  post of  Deputy  Conservator,  neither attestation  form is required to be filled nor any such form was filled which is unlike the requirement to be complied at the  time of appointment as a pilot.  We are not  suggesting that  on  this account, a person can suppress  any  material information.   We  find no substance in this  contention  as well.

     For the reasons aforesaid, we find no infirmity in the impugned  judgment  of the Division Bench.  The appeals  are accordingly  dismissed.   The parties are, however, left  to bear their own costs.