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PETITIONER: SMT. SWATI & ORS.

       Vs.

RESPONDENT: SHRI DAMODAR ANANT KARANDIKAR& ORS.

DATE OF JUDGMENT:       08/05/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AHMADI A.M. (CJ)

CITATION:  1996 AIR 2097            JT 1996 (5)   666  1996 SCALE  (4)495

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA,J.      The short  point which  we are called upon to decide bn this appeal  is relatable  to the  percentage of reservation for the  members of Scheduled Castes/Scheduled Tribes in the promotional posts  of Bombay Port Trust. Though the point is short, it is undoubtedly important. 2. There  is no  dispute regarding  the applicability of the policy of  reservation even in promotional posts. This is so because of  the view taken by the majority in the nine-Judge Bench decision  of this  Court in  Indra  Sawhney’s    case, commonly known  as Mandal  Commission’s case,  1992 (Supp) 3 SCC 217,  The only  question  is  regarding  the  extent  of reservation: the  period of reservation shall, of course, be as indicated by the majority in Mandal case. 3. The aforesaid question was agitated before the High Court of Judicature  at Bombay,  inter alia,  by the  Bombay  Port Trust  non-Scheduled   Castes/Scheduled   Tribes   Employees Association. Its case was that the percentage of reservation in promotion  was required  to he  as at the time of initial recruitment,  for   which  purpose  the  population  of  the Scheduled  Castes/Scheduled   Tribes   in   the   State   of Maharashtra was  required to  be taken  note of.  To put  it differently,  it   was  contended  that  the  percentage  of reservation could  not be  as fixed  by the  Union of  India which, at  the relevant  time, was  15%  for  the  Scheduled Castes and  7 1/2  per cent for Scheduled Tribes. As against this, the percentage of reservation as fixed by the State of Maharashtra then  was 7%  for Scheduled  Castes and  9%  for Scheduled Tribes.  The Association  also  made  a  grievance about non-faming of any regulation  qua Class I and Class II employees by the Port Trust of Bombay. 4. The  High Court  accepted the case of the Association and directed the  Board of   Trustees  of the  Port of Bombay to frame  necessary   regulation  for   Class-I  and   Class-II

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employees. It  also took  the view that as the Port of Trust had been  following the  reservation   policy, alongwith the ratio as  fixed by  the State  Government, at  the  time  of initial appointment,  it was  not open  to the Port Trust to depart from the same while considering the reservation ratio in the promotional posts. The Court further observed that by following  All-India   percentage,  the   Port   Trust   was definitely  doing injustice to the Scheduled Tribes inasmuch as the  reservation ratio  for Scheduled  Tribes as per All- India policy  was 7  1/2% while this percentage was 9 in the State of Maharashtra. 5.  The   appellants,  who   are  members  of  the  reserved categories, have  challenged the  legality of  the aforesaid view taken  by the  High Court  in this  appeal  by  special leave. 6. We  may first  advert to the statutory provisions holding the field.  These are  to be found in sections 28 and 126 of the Major Port Trust Act, 1963, hereinafter the Act. Section 28 has conferred the power of making regulation  on a Board, which, as  defined in  the Act, means the Board of Trustees. Section 126  has conferred  the power  of making  the  first regulation  on   the  Central   Government,  notwithstanding anything contained  in the  Act. In  exercise of this power, the Central  Government made  the first regulation styled as The Bombay  Port Trust Employees (Recruitment, Seniority and Promotion ).  Regulation 1977  for  short,  the  Regulation. Regulation 13  deals with the question of reservation and is in  the following language.           "(a)  Orders   issued  by  the      Central Government  from.  time  to      time   for   the   reservation   of      appointments,  whether   by  direct      recruitment or  promotion, to posts      under  the  Central  Government  in      favour  of   Scheduled  Castes  and      Scheduled   Tribes    shall   apply      mutatis     mutandis     to     all      appointments   covered   by   these      regulations.      (b)    *      *      *      *     * 7. The  aforesaid, regulation has left nothing to doubt that the orders  issued by   the Central Government regarding the reservation to  posts under it in favour of Scheduled castes and Scheduled  Tribes are to apply, with appropriate change, to all  appointments to the made by the Port Trust. The High Court however  thought, and  with respect  wrongly that  the regulations apply  to recruitment to Class III and IV posts, because of   which a direction was given to make regulations for Class  I and  Class II posts.  This, however, is not so, as would  appear from the sub-regulation of the Board styled as Memorandum  explanatory of  the Regulations,  which is  a part of  the Volume  containing the  Regulations. Para  2 of this Memorandum has specifically stated that the regulations apply to  all posts,  except those covered by section 24 (1) (a) of  the Act  i.e., the posts of Heads of Departments and posts the  maximum of  the pay  scale of  which exceeds  Rs. 2.000. 8. The  graver error  committed by  the High  Court lies  in holding that  what applies  qua initial  appointment has  to apply to  promotion also.  This view  is not sustainable for the reason  that insofar  as direct recruitment is Class III and Class  IV posts  is concerned, the policy of the Central Government itself,  of which  mention has  been made in Para 2.1 (ii)  of Chapter  2 of  the brochure on ’Reservation for Scheduled Castes  and Scheduled Tribes in Services’, is that

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the percentage  shall be  as  shown  in  Appendix  3,  which generally would  be  in  proportion  to  the  population  of Scheduled Castes  and the Scheduled Tribes in the respective States/Territories. But  qua  the  posts  to  be  filled  by promotion, what  has been  stated in  sub-para (iii) is that the percentage  shall be  15 for  Scheduled Castes and 7 1/2 fro Scheduled  Tribes.  This  clearly  shows  that  what  is required  to  be  kept  in  mind  at  the  time  of  initial recruitment is  not required to be adopted for promotion. It would  be   apposite  to  mention  that  the  percentage  of reservation is  varied  by  the  Central  Government  itself depending  upon   the  population   figure  of   the  listed categories, as  would appear  from the  Office Memoranda  of 12th  March,  1973  and  24th  May,  1985  issued which are  at pages  19 to  21 of  the Volume containing the documents filed on behalf of respondent Nos. 1 and 2. 9. As  to  the  observating  by  the  High  Court  regarding injustice  to  the  Scheduled  Tribes,  may  we  state  that acceptance of  the percentage  as required  by the  impugned judgment, would  cause  injustice  to  the  members  of  the Scheduled Castes,  because as against 15% reservation as per All-India policy,  this percentage  would be  7 to go by the State ratio.  According to us, in a matter like one at hand, a general  view is required to be taken. and not what if due to Scheduled  Tribes or  to Scheduled  Castes separately  or segment-wise. 10.   The High  Court has given another reason tn accept the State ratio  - the  same is non-transferability of Class III and Class  IV employees,  because of which their’s was taken as "a  local cadre".  This is  not a  relevant consideration while deciding  about the  contours of  reservation  policy. Further. it  seems that  even Class I and Class II employees of the Bombay Port Trust are not transferable. 11. We,  therefore, hold  that the impugned judgment suffers from legal   infirmity inasmuch as it violates what has been provided in Regulation 13 of the regulations and it has also misconceived  the   reservation  policy   of   the   Central Government. So,  we   set aside the judgment and require the Bombay Court  of Trust  to Act, while filling up promotional posts, as  per the  percentage of  reservation fixed  by the Central Government  for posts  under  it,  which  ratio,  as already indicated,  was 15%  for Scheduled Castes and 7 1/2% fur Scheduled Tribes at the relevant time. 12. On the facts and circumstances of the case, we leave the parties to bear their own costs throughout.