& Ors Vs. Shri Damodar Anant Karandikar & Ors  INSC 688 (8 May 1996)
B.L. (J) Hansaria B.L. (J) Ahmadi A.M. (Cj) Hansaria,J.
1996 AIR 2097 JT 1996 (5) 666 1996 SCALE (4)495
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.
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.
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.
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
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.
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
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.
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.
13 deals with the question of reservation and is in the following language.
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.
* * * *
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.
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
(ii) of Chapter 2 of the brochure on 'Reservation for Scheduled Castes and
Scheduled Tribes in Services', is that 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.
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.
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.
it seems that even Class I and Class II employees of the Bombay Port Trust are
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.
the facts and circumstances of the case, we leave the parties to bear their own