ORDER
G. Bikshapathy, J.
1. The Petitioner is seeking direction to the respondents to consider his case for promotion to the post of Machinist Grade-I and Charge Hand in accordance with 40 points Roster with all consequential benefits.
2. The averments in the affidavit filed in support of the Writ Petition are that the petitioner belongs to Scheduled Tribe. He was initially appointed as Machinist Grade-Ill on 28-5-1979. The services were regularised on 10-6-1980. He worked on adhoc-basis as Machinist Grade-II for three months in the year 1980. He passed prescribed trade test for promotion to the post of Grade-II Machinist on 13-5-1981. Therefore, he was again promoted on adhoc-basis as Grade-II Machinist. His case is that he was continued on adhoc-basis in the same post and finally his probation was declared with effect from 21-11-1987. From the said date he is functioning as Machinist Grade II only and he is not being promoted to the Grade-I and Charge Hand in the points reserved for Scheduled Tribe candidates the roster of reservation. As per the 40 point roster, 4th and 17th vacancy should be filled up by the Schedule Tribe candidate, the roster has not been followed and the general candidates have been promoted in the post reserved for Scheduled Tribes. In July 1989, when the petitioner was fully eligible for promotion to the post of charge hand, Sri B. Appala Raju, a F.C. candidate was promoted and in February, 1991, one another Sri Rama Rao was promoted. Thus the roster was followed in breach rather than in its spirit. He further submits that if a S.T. candidate is available, he should be appointed in the post reserved for S.T. and the same cannot be de-reserved nor an employee holding the up-grade post of Grade-I can be considered. The petitioner being only the S.T. candidate in the establishment in which he was working and even to him the reservation facility has been denied. Therefore, he seeks proper implementation of the roster system and consequential promotion to the post of Grade-I and Charge Hand respectively.
3. The Port Trust in the counter has admitted that the petitioner belongs to S.T. community, he was appointed on 28-5-1977. In 1988 two vacancies of Machinist Grade-II arose in O.R. section and as per 40 point promotional roster, the 4th point is reserved for S.T. The case of the petitioner was considered and he was promoted on ad-hoc basis with effect from 8-5-1980 pending trade test. The petitioner was reverted as Machinist Grade-Ill on 4-4-1980 as he failed in the trade test. Again another test was conducted on 13-2-1981 in which he failed. For the third time when a test was conducted on 13-5-1981, he was successful. Accordingly, he was promoted as Machinist Grade-II on 26-10-1981 on regular basis, in short term vacancy against carry forward reservation for S.T. at 4th point. However again he was reverted on 5-12-1981, on recession of the vacancy. It is the case of the Respondent that the petitioner was continued as Officiating Grade-II from 22-12-1985 and therefore his probation was declared on 22-12-1987. In 1985 when a vacancy for Machinist Grade-I post fell vacant, which was to be filled-up by S.T. candidate, but however since the petitioner was not eligible for promotion by that time, the post was carried forward and that the General Candidate was appointed. The petitioner became eligible for promotion as Grade-I with effect from 22-11-1987 only and therefore he could not have been promoted in 1985.
4. It is nextly submitted by the Respondents that in pursuance of the meeting held between the Union and the Management, with regard to the applicability of the roster system in up-graded post, it appears that the ministry has clarified that the reservations order is not applicable to the promotions effected on personal basis which are given to employees who have completed certain: number of years of service in the Grade. Since, by that time the officials who have completed 8 years of service who are holding upgraded post on personal basis ought to have been disturbed, but the directive of the Government was implemented prospectively to avoid the disturbance to the employees already holding upgraded post.
5. The respondents also submitted that during 1989 and 1991 two posts of Charge Hand Machinist in O.R. section fell vacant against 5th and 6th point in 40 point roster. There was a carry forward reservation for S.T. at 4th point. In terms of the recruitment rules for promotion to the post of Charge Hand Machinist Grade-I shall be considered failing which the Machinist Grade-II will be considered. Since the petitioner was not holding the Machinist Grade-I and the vacancy which is sought to be filled is Charge Hand is meant for Machinist-I, therefore, the non-S.T. candidates available in Grade-I have to be selected and posted in the post of Charge Hand eventhough it is reserved for S.T. There is no illegality in the said procedure. Therefore, the Respondents submit that there are no merits in the Writ Petition and the same is liable to be dismissed.
6. The point that arise for consideration is whether the petitioner is entitled for promotion to the post of Grade-I Machinist and also for Charge Hand in the roster points reserved for S.T. candidate?
7. The petitioner was appointed on regular basis as Grade-III Machinist in May 79 and promoted as regular Machinist Grade-II with effect from 26-10-1981. But however it is stated that it was a short term vacancy and on account of the recession of the vacancy he was again reverted as Grade-III on 5-12-1981. But, it appears that he again was promoted with effect from 22-11-1985 and thereafter his probation was declared as Grade-II Machinist on 22-11-1987.
8. The case of the petitioner is that when a vacancy reserved for S.T. arose in 1985 the petitioner was denied the said promotion illegally by de-reserving the said post. Hence, the action of the authorities in not promoting the petitioner as Grade-I Machinist in 1985 is wholly illegal and arbitrary. I am afraid, I cannot accept this contention inasmuch as the Writ Petition has been filed in the year 1992 and the cause of action for him arose in 1985. Therefore, if the contention of the petitioner is to be accepted, the promotions made in the year 1985 have to be set aside which I am not inclined to do.
9. The next question that arises for consideration is whether the petitioner is entitled to be considered for the promotion to the post of Charge Hand. According to the Respondents, the post of Charge Hand fell vacant in the year 1989 and also in 1991. Since, there was no eligible candidates in Machinist Grade-I, his case was not considered. In this regard, it is necessary to refer to the Visakhapatnam Port Employees (Recruitment, Seniority & Promotion) Regulations, hereinafter called as Recruitment Regulations. Various criteria have been prescribed in respect of appointment and promotion to the Posts under the Port. The relevant rule regarding appointment/Promotion to Charge-Hand posts is extracted below:
'(1) S1.No. : 108(2) Name of the Post : Charge-Hand (Machinist)(3) Classification : C1.III(4) Scale of pay : Rs. 465-725(5) Whether selection or non-se- : Selectionlection post(6) Ace limit for direct recruits : 35 years and below(7) Educational & other qualifi- : Diploma in Mech. Engineering fromcations prescribed for direct a recognised Polytechnic and shouldrecruits have 2 years experience in a big workshop or 5 years Apprenticeshipcourse in Port or Railway work shopswith 2 years experience thereafter.(8) Whether pass in Trade Testnecessary : No.(9) Whether age and educa-tional qualifications pre- : Age : No.scribed for direct recruitswill apply to promotees : Q1. : No.(10) Method of recruitment Promotion from Mechinist Gr. Iwhether by direct recruit- failing which from Mechinist Gr.IIment or by promotion or by failing which by direct recruitment.transfer and percentages of vacancies to be filled by var-ious methods. (11) Incase of recruitment by pro- Machinist Gr. I. motion grade from which Machinist Gr. IIpromotion to be made (12) Remarks -
From the above rule, it is clear that the promotion has to be made to the post of Charge-Hand from among the Mechinist Grade-I failing which from Mechinist Grade-II or in the event of non-availability of candidates, then the post has to be filled up by direct recruitment. Age and educational qualifications are not applicable to the promotion channel. Admittedly, one post of Charge Hand has been reserved for S.Ts. and the same is to be filled-up keeping in view the above rules. In the back drop of this situation the rule has to be considered.
10. The purpose of reservation in services to Scheduled Castes (S.Cs.) and Scheduled Tribes (S.Ts.) is to bring them in line with other caste people. The reasons for such reservation need not be traced. The Constitution provided reservation for S.C. and S.T. in the service of Union and States duly maintaining the efficiency in administration. Articles 16(4), 335 and 46 of the Constitution of India spread protective umbrella to the down trodden segment of the society. Therefore, reservations are made to balance the representation of S.Cs./S.Ts. in services. It is a human rights problem demanding social justice. Whenever any reservations are made to them by virtue of constitutional provisions, every effort has to be made to implement the provisions and any deviations should be construed as an act of scuttling the very constitutional intendment and its goal.
The Supreme Court in Collector & Auditor General, New Delhi v. K.S. Jagannath clearly held that where legislation or subordinate legislation deals with human rights of exploited and backward people, the construction should be placed in the light of the constitutional protections available to them. The principle applied in the taxing of statute should not be applied to such welfare legislations or subordinate legislations.
Admittedly, the rule provides promotion to the post of Charge-Hand from the category of Mechanist Grade-I and in the event of non-availability, selection to be made from Mechinist Grade-II. The roster point fixed for S.T. in Charge Hand post is required to be filled up by S.T. only from Mechinist Grade-I and if such persons are not available then search is to be made in Grade-II Mechinist. Admittedly, the petitioner is available in Grade-II post with requisite qualifications. By saying that if no S.T. candidate is available in the first line (Mechinist Grade-I), it would go to the other non-S.T. employees in the same line, it would only mean that the post gets de-reserved without proper sanction. By this process any amount of prejudice could be caused to the reserved candidates. The only way the rule can be interpreted is that when the S.T. Mechinist Grade-I is not available to fill up the roster point to charge hand, men they should go to the Mechinist Grade-II and select the person. Even at that stage, if the candidate is not available, the vacancy is either carried forward or it is filled by other candidates subject to condition that whenever S.T. candidate is available such promotee is liable for reversion. It is also open to the management to go for direct recruitment and fill up the same by S.T. candidates and till such time, the O.C. candidates could be promoted to occupy the reserved post.
11. It can also be viewed from another angle. Reservations in service for S.C. and S.T., a measure of social justice to protect the interest of the socially and economically backward sections of the society. The protection falls within the constitutional sweep of Articles 16(4), 335 read with Article 46. The social justice is not constitutional claptrap, but fighting faith which enlivens legislatives text with militant meaning, the functionary relevancy of social justice should be taken as an aid to statutory interpretation. The constitutional empathy for the weaker sections like S.C. and S.T. must inform interpretation if it has to have a social relevancy. The statutes and the rules framed thereunder calling for construction by Courts are not partrified print, but vibrate words (sic) social functions to fulfil. So viewed, it is possible to be selective in packing out that interpretation out of two alternatives which advances the cause, the cause of weaker sections (S.T.). Therefore, in this view also when two interpretations are possible, an interpretation which advances the cause of the persons for whom the reservation has been made (S.T.) has to be preferred. Hence, I come to the irresistible conclusion that in the absence of S.T. Mechinist Grade-I, the S.T. Mechinist Grade-II shall be considered for pormotion to the post of Charge Hand and such an interpretation is in tune with the constitutional goal.
12. In view of the above, the meaning which is sought to be given to the operation of the rule, by the management, that in case of non-availability of S.T. candidate in Mechinist Grade-I, the other candidates in the same line have to be considered, has to be rejected. Such an interpretation is not only contrary to the very avowed object of reservations to the weaker sections, but runs counter to the Constitutional mandate.
13. Under these circumstances, I hold that the action of the Respondents in denying the promotion to the petitioner to the post of Charge Hand as illegal and arbitrary. Accordingly, the directions shall issue to the Respondents to consider the case of the petitioner for promotion to the post of Charge Hand from, the Mechinist Grade-II cadre and promote him if he possesses the suitability criteria with retrospective effect from 1989, when the vacancy had fallen in S.T. quota in 1989 with all consequential benefits of arrears of salary, etc.
The Writ Petition is allowed in part. There shall be no order as to costs.