D. Ajithkumar v. The Chairman, Cochin Port Trust and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 WP(C) NO. 12971 OF 2017`** ``` PETITIONER: ``` ``` D.AJITHKUMAR ASSISTANTEXECUTIVEENGINEER(ELECTRICAL, OFFICEOFTHEDEPUTYCHIEFMECHANICALENGINEER(ELE), COCHINPORTTRUST,COCHIN-9. BYADVS. SRI.GEORGETHOMAS(MEVADA)(SR.) SRI.AMALGEORGE SRI.MANUGEORGEKURUVILLA ``` ## **`RESPONDENTS:`** ``` 1THECHAIRMAN,COCHINPORTTRUST W.ISLAND,COCHIN-9. 2COCHINPORTTRUST W.ISLAND,COCHIN-9, REPRESENTEDBYITSSECRETARY. 3R.S.AJAYAKUMAR EXECUTIVEENGINEER(ELE), OFFICEOFTHEDEPUTYCHIEFMECHANICALENGINEER(ELE), COCHINPORTTRUST,COCHIN-9. 4UNIONOFINDIA MINISTRYOFSHIPPING,ROADTRANSPORTANDHIGHWAYS, CENTRALSECRETARIAT,NEWDELHI REPRESENTEDBYTHESECRETARY. BYADVS. SRI.K.ANAND(SR.) SRI.GEORGETHOMAS(MEVADA,SR.COUNSEL ``` W.P(C) No.12971 of 2017 2 ``` SHAMEENASALAHUDHEEN SRI.S.MANU SMT.LATHAANAND,SC,COCHINPORTTRUST R.MEENAKSHI(M-1290) BEAMARYBENNY ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 18.12.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P(C) No.12971 of 2017 3 ## **JUDGMENT** This writ petition is filed seeking to quash Ext.P14 order as per which the 3rd respondent herein, who was working as a Safety Officer in the Cochin Port Trust, was promoted as Executive Engineer (Electrical). The petitioner also challenges the Cochin Port Trust (Recruitment, Seniority, and Promotion) Regulation, 2010 (‘RSP 2010’ for the sake of brevity) to the extent it includes the post of ‘Safety Officer’ as feeder category post eligible for promotion to the post of Executive Engineer (Electrical). Essentially, the contention is that the 3rd respondent has been promoted, overlooking the seniority and eligibility of the petitioner. He has also sought for a declaration that the petitioner is eligible to be promoted as Executive Engineer (Electrical) in the Cochin Port Trust on the strength of his qualification and experience. 2. The short facts of the case, as borne out from the records, are as under: - a. The petitioner joined the Cochin Port Trust as a Junior Engineer (Electrical) on 21.10.1992. Later, after acquiring an MBA from the Cochin University of Science and Technology, he was promoted as Assistant Executive Engineer (Electrical) on 1.7.2009 on an adhoc W.P(C) No.12971 of 2017 4 basis. On 20.11.2013, the petitioner was promoted as Assistant Executive Engineer (Electrical) on a regular basis. - b. The 3rd respondent, on the other hand, joined the Cochin Port Trust only on 28.01.1994 as Junior Engineer (Electrical), about 16 months after the petitioner had joined the service. c. In the year 2005, one post of Safety Officer fell vacant and applications were invited from eligible departmental candidates for filling up the post. As per the recruitment rules, promotion had to be made from eligible departmental candidates, failing which, by direct recruitment. The departmental candidates working as Assistant Engineer (Mech/Ele) with three years of regular service and with a Degree/Diploma in Industrial Safety from institutions approved by the Central Government were entitled to apply for the post. The 3rd respondent was working as Assistant Engineer (Electrical) in an upgraded post when the post of Safety Officer had become vacant. The petitioner asserts that as the 3rd respondent was not working in a regular post of Assistant Engineer but only in an upgraded post, and therefore, he did not fulfill the criteria of W.P(C) No.12971 of 2017 5 having three years of experience as an Assistant Engineer (Electrical) to be appointed as a Safety Officer as prescribed in Ext.P4 recruitment rules. d. In the year 2010, the Major Ports in India implemented the Officers Cadre Restructuring in terms of the directions of the Ministry of Shipping in compliance with Model Recruitment Seniority Promotion Guidelines issued by the Indian Ports Association. Accordingly, RSP 2010 was gazetted and implemented from 28.10.2010 in the Cochin Port Trust. As per the RSP 2010, the post of Safety Officer was included in the feeder category to the post of Executive Engineer (Electrical). This was done without protecting the seniority of the Electrical Engineers and in violation to Regulation 25(4) of the RSP guidelines. The post of Safety Officer was included in the feeder category to the post of Executive Engineer (Electrical) without specifying the required hands on experience in the relevant Engineering field and without protecting the seniority of the Electrical Engineers already in the cadre. This, according to the petitioner, is in a clear violation to Regulation 25(4) of Ext.P8 guidelines. The 3rd respondent is far junior to the petitioner in the W.P(C) No.12971 of 2017 6 cadre of Assistant Engineer (Electrical) by about two years and junior to six others presently in service, as is evident from Ext.P9. - e. After the enactment of the new recruitment rule, by Ext.P10, the lien of the 3rd respondent in the Electrical cadre was terminated with effect from 28.10.2010, and he was permanently absorbed in the post of Safety Officer. - f. Due to the inherent flaw in the recruitment rules framed by the 2nd respondent by adding Safety Officers for the feeder category of Executive Engineer (Electrical), the 3rd respondent, who had been working as a Safety Officer for over a decade, has been wrongly promoted as Executive Engineer (Electrical). g. In terms of Ext.P3 Recruitment Rules, for the post of Executive Engineer (Electrical), five years of experience in various fields of electrical distribution and maintenance is required, even for direct recruitment. The 3rd respondent did not have the requisite experience or the expertise to be promoted to the post of Executive Engineer. It is also stated that the post of Safety Officer has not been included in the feeder category of Executive Engineer W.P(C) No.12971 of 2017 7 (Electrical) in any of the other major ports. According to the petitioner, the change in the Recruitment Rules has not been effected in a bona fide manner, and it has resulted in stifling the promotional opportunities available for Assistant Engineer (Electrical) as well as Assistant Executive Engineers (Electrical) under Ext.P3 rules. The amendment of the rules has adversely affected the career progression of the petitioner and other senior hands in the electrical division. It is on these assertions that this writ petition is filed seeking the following reliefs:- 1. Issue a writ of certiorari or such writ, order or direction, quashing Exhibit P14 order promoting the 3rd respondent as Executive Engineer (Ele) in Cochin Port Trust. 2. Declare that the new Recruitment Rules framed in 2010 by Exhibit P6A for including the Safety Officers also as a feeder category, eligible for consideration for promotion to Executive Engineer (Ele), is clearly unsustainable and factually unsupportable. 3. Declare that the petitioner is eligible to be promoted as Executive Engineer (Ele) in Cochin Port Trust by virtue of his qualification, experience and exposure to electricity related works since the last 24 years as against the 3rd respondent who is a total stranger to the subject since the last 11 years. W.P(C) No.12971 of 2017 8 4. Declare that the new Recruitment Rules framed in 2010 by Exhibit P6A has stifled the promotion opportunities for the Asst. Exe. Engineers and Asst. Engineers in the cadre and direct respondents 1 and 2 to make amends for the same. 5. Declare that the termination of lien of the 3rd respondent by Ext.P10 order to enable the 3d respondent to come back to the parent cadre as a stranger to the parent cadre is illegal. 3. A counter affidavit has been filed by respondents 1 and 2 denying the contentions. The contentions raised in the counter can be encapsulated as follows: a) The 2nd respondent is a Major Port Trust in India and is governed by the Major Port Trusts Act, 1963. In order to bring uniformity in the cadres of all Major Ports to rationalize and streamline the Recruitment, Seniority, and Promotion Procedures in the Major Ports, and to follow progressive human resources policies so as to meet future challenges, the Ministry of Shipping Government of India has initiated cadre restructuring in the Major Ports across India. It was thereafter that RSP, 2010 was brought into effect for Class-I posts to ensure that promotional avenues are provided for a maximum number of cadres and categories of employees are protected. W.P(C) No.12971 of 2017 9 b) It is well within the prerogative of the 2nd respondent Management to frame progressive and appropriate HR policies required for the progress of the Organisation, and discretion has been conferred upon the management to adopt a suitable human resource policy. RSP, 2010 has been upheld as legal and valid by a Division Bench of this Court in W.A No.1678 of 2015 and connected cases. c) As per the RSP Regulations 2010, the post of Safety Officer has become a feeder category post along with the post of Assistant Executive Engineer for considering the promotion to the higher post of Executive Engineer (Mechanical/Electrical/Electronics and Communication) under the Mechanical Engineering department of the 2nd respondent. The 3rd respondent, who was holding the post of Safety Officer, was permanently absorbed in the post with effect from 28.10.2010, and as such, the 3rd respondent attained the eligibility for promotion as Executive Engineer (Electrical /Electronics and Communication) after five years as per the RSP Regulations 2010. Though the petitioner is also eligible to be considered for the post of Executive Engineer (Electrical/ Electronics and Communication), the 3rd respondent fulfilled the first eligibility W.P(C) No.12971 of 2017 10 criteria as per the RSP Regulations 2010, whereas the petitioner fulfilled only the 2nd eligibility criteria. It is further stated that the promotional avenues of the petitioner have not been taken away by RSP Regulations 2010, but the avenues have only been reduced. According to respondents 1 and 2, the power of the State to take a policy decision as a result where the chance of an employee’s promotion is diminished cannot be a subject matter of interference under 226 of the Constitution of India. 4. The 3rd respondent has also filed a counter affidavit. It is stated that the 3rd respondent was appointed to the post of Junior Engineer (Electrical) on 18.1.1994 by Ext.R3(a) order. In the year 2001, the Board of Trustees of the Cochin Port Trust upgraded various grades of Junior Engineers and the petitioner, as well as the 3rd respondent, who has also upgraded to the post of Assistant Engineer. It is contended that in terms of Ext.P4, the feeder category of Safety Officer is Assistant Engineers (Mechanic/Electrical) with three years of regular service. The 3rd respondent was holding a regular post of Assistant Engineer (Electrical) with effect from 27.6.2001. However, since he had the qualifications prescribed for the post of Safety Officer and other seniors of the 3rd respondent did not have the said qualification, being the only eligible candidate, the 3rd respondent was considered, W.P(C) No.12971 of 2017 11 and he was appointed as Safety Officer. It is further stated that it was protecting the seniority of others that the 3rd respondent was promoted to the post of Safety Officer. It is further stated that the challenge raised by the petitioner to Ext.P6A Recruitment Rules, which was finalized as early as in the year 2010 is legally untenable. It is also stated that the challenge to the promotion of the petitioner as a Safety Officer cannot be legally sustained. 5. A reply affidavit has been filed by the petitioner. 6. The learned Senior counsel appearing for the petitioner would point out that the 3rd respondent is far junior to the petitioner in service. The learned counsel would then point out that going by Ext.P4 Recruitment Rules, only an Assistant Engineer (Mechanical/Electrical) with three years of regular service alone could have been appointed as a Safety officer. It is submitted that a perusal of Ext.P5 order dated 9.12.2005 would disclose that a certain Sri. Mathew Paul, the senior in service of the 3rd respondent among the Junior Engineers in the Port Trust, was promoted to the post of Assistant Engineer only on 9.12.2005. If that be the case, the 3rd respondent would not have the requisite qualification to be appointed to the post of Safety Officer in the year 2005. It is further stated by referring to Ext.P6 order that while promoting the 3rd respondent as Safety Officer W.P(C) No.12971 of 2017 12 on 25.2.2005, his lien in the parent cadre was ordered to be retained at his option. However, as per Ext.P10 order dated 3.12.2011, the lien retained by the 3rd respondent to the cadre of Assistant Engineer (Electrical) was terminated with retrospective effect from 28.10.2010. The learned Senior counsel would point out that the termination of a lien with retrospective effect is a procedure that is unheard of. He would then refer to Ext.P11 counter affidavit filed by the Port Trust in W.P.(C) No.13001 of 2012, and it is submitted that though the pay scales of Safety Officer and Assistant Executive Engineers are the same, the duties and responsibilities of the posts are totally different. It is submitted that the 3rd respondent, who had been working as a Safety Officer for over one decade with no experience in electrical matters could never have been posted to the post of Executive Engineer. It is submitted that if the above course adopted by the respondents is accepted, it may lead to a situation wherein even a person who is not an Electrical Engineer may end up being promoted to the post of Executive Engineer. It is submitted that the post of Executive Engineer (Electrical) is a prime post where deep knowledge of theoretical and practical aspects of Electrical Engineering is essential. According to the learned Senior counsel, the post of Safety Officer was included in the Rules only because of the influence of a near relative of the 3rd respondent, who was holding a very senior position in the Cochin Port Trust. W.P(C) No.12971 of 2017 13 7. Sri. Vishnu, the learned counsel appearing for respondents 1 and 2, would counter the contentions advanced by the learned Senior counsel. He would initially point out that as per Ext.P1, 18 officers who were working as Junior Engineers (Electrical) were upgraded to the post of Assistant Engineers (Electrical) with immediate effect. He would point out that for the post of Safety Officer, a Degree or Diploma in Industrial Safety recognized by the Central Government was one of the qualifications. In the case on hand, the 3rd respondent had a degree in Electrical Engineering, and he also had a Diploma in Industrial Safety. It is in the said circumstances that being the person who was qualified to hold the post of Safety Officer, that Ext.P6 order was issued on 25.2.2005 promoting the 3rd respondent as Safety Officer with immediate effect. He would contend that the contention that at the time of issuance of Ext.P6, the petitioner did not have three years of regular service is incorrect. It is contended that from Ext.P1 itself, it would be evident that the 3rd respondent was upgraded to the post of Assistant Engineer (Electrical) on 27.6.2001. He would point out that before the RSP Regulations 2010, the post of Safety Officer was an isolated post. However, as per RSP Regulations, 2010, the post of Safety Officer has been included as a feeder category post of promotion to the post of Executive Engineer (Electrical/Electronics and Communication). He pointed out that the criteria for promotion have been clearly W.P(C) No.12971 of 2017 14 enumerated in Ext.R2(a). There are two sets of eligibility criteria with a clear order of priority. The learned counsel would point out that the 3rd respondent was - - appointed as a Safety Officer in the pay scale of Rs.9100 250 15100, and as he had completed five years of service in the feeder category, he was promoted to the post of Executive Engineer on 9.11.2016. Though the petitioner was also qualified for the post, he could not be appointed as he fulfilled only the 2nd eligibility criteria and did not have the requisite experience at that time. It is further submitted that the challenge raised by the petitioner against the RSP Regulations, 2010 cannot be sustained under the law as the above regulation has been approved by the Central Government and published in the gazette in terms of Section 132 of the Act. The learned counsel contends that in the light of the law laid down in **State of Tamil Nadu and Ors. v. Sri. Krishnamoorthy and Ors.[1]** , there is a presumption in favor of the validity of subordinate legislation. None of the contentions raised by the petitioner fulfills the benchmark for mounting a challenge. The learned counsel submits that the petitioner has no case that the RSP Regulations, 2010 ultra-vires the parent Statute or the constitutional provisions or that his fundamental rights have been violated. > 1 [2006 (4) SCC 517] W.P(C) No.12971 of 2017 15 8. I have heard Smt.Shameena Salahudeen, the learned counsel, appearing for the 3rd respondent. 9. The first contention advanced by the learned counsel appearing for the petitioner is with regard to the promotion of the 3rd respondent as Safety Officer in the year 2005. The records would disclose that this writ petition was filed on 10.4.2017. The appointment of the 3rd respondent as Safety Officer was on 25.02.2005. The challenge has been raised about 12 years after the appointment of the 3rd respondent as Safety Officer. Furthermore, the records reveal that in the year 2005, it became necessary for the respondents to appoint a Safety Officer, which was a statutory post. As per the Recruitment Rules, then in force, a Safety Officer could be appointed by promotion from eligible departmental candidates, and if no such candidate was available, direct recruitment could be made. The qualification prescribed for departmental candidates was Assistant Engineer (Mech/Ele) with three years of regular service and with a Degree/Diploma in Industrial Safety from institutions approved by the Central Government. The 3rd respondent was working as an Assistant Engineer (Ele) in an upgraded post, and he was holding a B.Tech in Electrical Engineering and a Diploma in Industrial Safety. None of the other Departmental candidates had the requisite qualifications. Ext.R3(c) produced by the 3rd respondent would reveal that upgraded posts will be W.P(C) No.12971 of 2017 16 treated at par with the creation of posts, and the same consideration would apply for such upgradation. In that view of the matter, the contention of the petitioner that the 3rd respondent having rendered service in an upgraded post, did not satisfy the requirement of having three years’ experience as Assistant Engineer (Electrical) cannot be sustained. The appointment of a Safety officer was a statutory obligation, and it was in the said circumstances that the 3rd respondent, being qualified for the post, was appointed. The first contention is without merit and, hence, rejected. 10. The next contention raised by the learned Senior counsel is with regard to the termination of the lien of the 3rd respondent with retrospective effect as per Ext.P10. Since the post of Safety Officer was an isolated post with no promotional avenues, his lien was retained to the parent cadre of Electrical Engineers. However, with the implementation of the cadre restructuring orders in the Cochin Port Trust with effect from 28.10.2010, the post of Safety Officer was made one of the feeder posts for promotion to the post of Executive Engineer (Mechanical/Electrical/Electronics and Communication). Consequent to the same, the 3rd respondent was permanently absorbed to the post of Safety Officer with effect from 28.10.2010, and the lien to the cadre of Electrical Engineers was terminated with effect from the said date. The standing guidelines on fixation of W.P(C) No.12971 of 2017 17 seniority in the case of persons who are initially taken on deputation are absorbed later says that seniority in the grade in which an employee is absorbed will be counted from the date of absorption. In that view of the matter, I am unable to accept the contention of the learned senior counsel that the termination of the lien of the 3rd respondent is illegal. 11. The next contention advanced by the learned senior counsel is with regard to the promotion of the 3rd respondent as Executive Engineer (Electrical). As per the RSP Regulations 2010, the Post of Executive Engineer (Mechanical/Electrical/Electronics and Communication) is a Class-1 Post. There are altogether seven posts, out of which four posts are Executive Engineer (Mech) and three posts are Executive Engineer (Electrical/Electronics and Communication). The criteria for promotion are elaborated in column No.12 of Ext.R1(a), which reads as under: Promotion from Asst. Exe. Engineer /Safety Officer in the scale of pay of Rs.9100-15100 with 5 years regular service in the grade, failing which from Assistant Executive Engineer in the scale of pay of Rs. 9100- 15100 with 2 years regular service in the grade and a combined regular service of eight years in the scale of pay of Rs.9100-15100 with two years regular service in the grade and a combined regular service of eight years in the scale of pay of Rs. 9100- 15100 and Rs.8600-14600 in the respective discipline of M&E Engg. Deptt. Or Diploma Engrs in the scale of pay of Rs. W.P(C) No.12971 of 2017 18 8600-14600 with eight years of regular service in the grade where the pay scale of Rs.9100- 15100 does not exist in that discipline. Absorption/deputation will be of Officers holding analogous posts in respective discipline or feeder post with 5 years regular service in the grade in a Major Port Trust. 12. The vacancy for the post of Executive Engineer (Electrical/Electronics and Communication) occurred on 31/10/2016. The 3rd respondent had more than five years of service as a Safety Officer at the time of consideration, and he was on the scale of pay of 9100-15100. Insofar as the petitioner is concerned, he had completed only 2 years and 11 months in the scale of pay of 9100-15100. If a candidate falling under the first criteria is available, the said candidate will have to be appointed without considering the candidate falling under the 2nd eligibility criteria. The 3rd respondent fulfilled the 1st eligibility criteria in terms of the RSP Regulations 2010, and he was appointed to the post of Executive Engineer (Electrical). The contention of the petitioner that the 3rd respondent was not having the expertise to carry out the functions of an Executive Engineer (Electrical) cannot be sustained. The 3rd respondent is a graduate in Electrical Engineering, and the Recruitment Rules allow a Safety Officer with the requisite qualification to be promoted to the post. W.P(C) No.12971 of 2017 19 13. One of the prayers of the petitioner is for a declaration that the new Recruitment Rules framed in the year 2010 by Ext.P6A for including the Safety Officers as a feeder category eligible for consideration is clearly unsustainable. In this context, I find that Section 28 (a) of the Major Port Trust Act, 1963 empowers the 2nd respondent to make regulations dealing with the appointment, promotion, etc, of its employees. It is in the exercise under the Act that the 2nd respondent has enacted the Cochin Port Trust (Recruitment Seniority, Promotions) Regulations, 2010. The above Regulations have been approved by the Central Government and have been published in the Gazette in accordance with Section 132 of the Act. 14. Now, the question is whether the challenge against the new recruitment Rules for including the Safety Officer also as a feeder category can be sustained. Section 28 of the Major Port Trusts Act confers power on the Board of Trustees to make regulations not inconsistent with the Act to provide for the appointment, promotion, suspension, reduction in rank, compulsory retirement, removal, and dismissal of its employees. Section 132 of the Act prescribes the manner in which such regulations are to be published in the gazette of India. Therefore, a regulation framed under the Major Port Trusts Act 1963 is a piece of subordinate legislation. When the validity of a subordinate legislation is challenged, interference by a court is possible only on specific grounds. In **Cochin Port Trust** W.P(C) No.12971 of 2017 20 **and Others v. M Satheesan and Others[2] ,** where identical contentions were taken, this Court, after considering the entire law on the point held as follows in paragraphs Nos.14 to 20 of the judgment. **14.** On the other hand, the additional 14th respondent in W.A. No. 1678 of 2015, a diploma holder by qualification and occupying the post of Assistant Engineer, submitted that going by the seniority, he is the next person to be promoted to the post of Assistant Executive Engineer and that despite the existence of vacancies, promotions are not effected by the Port Trust. On this basis, he sought a direction to the Port Trust to effect promotions to the higher post of Assistant Executive Engineer in terms of Ext.P10 Regulations. **15.** Having thus noticed the facts of the case and also the relevant contentions urged, we shall first examine the scope of jurisdiction exercised by this Court while examining the legality of a subordinate legislation. Insofar as this case is concerned, Section 28 of the Major Port Trusts Act confers power on the Board of Trustees to make regulations not inconsistent with the Act, to provide for the appointment, promotion, suspension, reduction in rank, compulsory retirement, removal and dismissal of its employees. Section 132 of the Act prescribes the manner in which such regulations are to be published in the gazette of India. Therefore, a regulation as Ext.P10 framed under the Major Port Trusts Act, 1963 is a piece of subordinate legislation. **16.** When the validity of a subordinate legislation is challenged, interference by a court is possible only on specific grounds. Such grounds have been considered by the Apex Court in its judgment in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh 2 (2016 SCC OnLine Ker 18619) W.P(C) No.12971 of 2017 21 Bhupesh Kurmarsheth [AIR 1984 SC 1543] and in paragraph 18 reads thus: “18. In the light of what we have stated above, the constitutionality of the impugned regulations has to be adjudged only by a three-fold test, namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.” **17.** This Court also had occasion to consider the very same question in the decision in Pankajaksy v. George Mathew [1987 (2) KLT 723]. After surveying all precedents, including the judgment of the Apex Court referred to above, this Court concluded thus: “12. Thus the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. to ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is “unreasonable” to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.” **18.** We may also mention that in the judgment in Maharashtra State Board of Secondary and Higher Secondary Education (supra), the Apex W.P(C) No.12971 of 2017 22 Court examined the question whether even a bye-law can be struck down on the ground of unreasonableness. This question was answered by the Apex Court in paragraph 21 thus: “21. The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than “is necessary” or that it does not incorporate certain provisions, which in the opinion of the court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness.” **19.** On an earlier occasion, the Apex Court has also examined whether the constitutionality of a service rule can be tested on a touchstone of individual hardships. This question was answered in the negative, in the judgment in Kamal Kanti Dutta v. Union of India [AIR 1980 SC 2056], where in paragraph 52 of the judgment it was held thus: 52. In regard to the individual instances cited before us as exemplifying the injustice caused to the promottees, it is not safe to test the constitutionality of a service rule on the touchstone of fortunes of individuals. No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service. The paramount consideration is the reconciliation of conflicting claims of two important constituents of service, one of which brings fresh blood and the other mature experience.” W.P(C) No.12971 of 2017 23 **20.** In this context, it is also relevant to notice that reduction of employees chances of promotion cannot be the subject matter of judicial review as no legal right is infringed thereby. This principle has been recognised by the Apex Court in its judgment in A. Satyanarayana v. S. Purushotham [(2008) 5 SCC 416], wherein it was held thus: “26. Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby.” 15. The court, considering the validity of subordinate legislation, will have to consider the nature, object, and scheme of the enabling Act and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity. (See State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517). W.P(C) No.12971 of 2017 24 ## 16. In Paragraph 15 of **P. Krishnamurthy** (supra), it was held as follows: **15.** There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: - (a) Lack of legislative competence to make the subordinate legislation. - (b) Violation of fundamental rights guaranteed under the Constitution of India. - (c) Violation of any provision of the Constitution of India. - (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. - (e) Repugnancy to the laws of the land, that is, any enactment. - (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 17. The petitioner has not made out any of the grounds above to interfere with the regulations. 18. Another contention advanced by the learned Senior Counsel is that the right of the petitioner to promotion would be affected by the new regulations. In **State of H.P. v. Raj Kumar[3]** , the Supreme Court, after surveying the entire precedents on the subject, has held that a candidate has a right to be considered in > 3 (2023) 3 SCC 773 W.P(C) No.12971 of 2017 25 the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. In the case on hand, the 3rd respondent has been promoted in accordance with law and in conformity with the relevant Rules. The mere reduction in the chance for promotion of the petitioner cannot be a ground for the exercise of judicial review. 19. Having considered the matter from all its perspectives, I am not inclined to grant any of the reliefs sought by the petitioner in this writ petition. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS W.P(C) No.12971 of 2017 26 ## **`APPENDIX OF WP(C) 12971/2017`** ``` PETITIONEREXHIBITS: ``` |`EXHIBIT `|`P1:`|`TRUE PHOTOCOPY OF THE ORDER DATED 27.6.2001`| |---|---|---| |||`UPGRADING THE 3RD RESPONDENT AS ASSISTANT`| |||`ENGINEER (ELE) UG (UPGRADED).`| |`EXHIBIT `|`P2:`|`TRUE PHOTOCOPY OF THE ORDER DATED 1.12.2001`| |||`GRANTING PROMOTION TO SRI.K.SANL KUMAR AND`| |||`SMT. HUMBLI JOHN FROM ASSISTANT ENGINEER (UG)`| |||`TO THE ASSISTANT ENGINEER.`| |`EXHIBIT `|`P3:`|`TRUE PHOTOCOPY OF THE RECRUITMENT RULES`| |||`PERTAINING TO EXECUTIVE ENGINEER (ELE) TILL`| |||`2010.`| |`EXHIBIT `|`P4:`|`TRUE PHOTOCOPY OF THE RELEVANT RECRUITMENT`| |||`RULE PERTAINING TO SAFETY OFFICER.`| |`EXHIBIT `|`P5:`|`TRUE PHOTOCOPY OF THE ORDER DATED 9.12.2005`| |||`PROMOTING SRI.MATHEW PAUL AS ASSISTANT`| |||`ENGINEER (ELE) (SDO).`| |`EXHIBIT `|`P6:`|`TRUE PHOTOCOPY OF ORDER DATED 25.2.2005`| |||`PROMOTING THE 3RD RESPONDENT AS SAFETY`| |||`OFFICER.`| |`EXHIBIT `|`P6A:`|`TRUE PHOTOCOPY OF THE AMENDED RECRUITMENT RULE`| |||`FOR FILLING UP THE POST OF EXECUTIVE ENGINEER`| |||`(ELE).`| |`EXHIBIT `|`P7:`|`TRUE PHOTOCOPY OF THE MANUAL OUTLINING THE`| |||`DUTIES AND RESPONSIBILITIES OF THE SAFETY`| |||`OFFICER.`| W.P(C) No.12971 of 2017 27 |`EXHIBIT `|`P8:`|`TRUE PHOTOCOPY OF PAGES 101 AND 102 OF THE`| |---|---|---| |||`GAZETTE NOTIFICATION OF THE RSP GUIDELINES`| |||`PERTAINING TO REGULATIONS 22 TO 26.`| |`EXHIBIT `|`P9:`|`TRUE PHOTOCOPY OF THE SENIORITY LIST IN THE`| |||`CADRE OF ELECTRICAL ENGINEERS AT THE TIME OF`| |||`IMPLEMENTATION OF RSP 2010.`| |`EXHIBIT `|`P10:`|`TRUE PHOTOCOPY OF THE BY ORDER DATED 3.12.2011`| |||`TERMINATING THE LIEN OF THE 3RD RESPONDENT IN`| |||`THE ELECTRICAL CADRE.`| |`EXHIBIT `|`P11:`|`TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED`| |||`IN WPC NO.13001 OF 2012.`| |`EXHIBIT `|`P12:`|`TRUE PHOTOCOPY OF THE REPRESENTATION DATED`| |||`11.10.2016 SUBMITTED BY THE PETITIONER TO THE`| |||`IST RESPONDENT.`| |`EXHIBIT `|`P13:`|`TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE`| |||`DEPARTMENTAL PROMOTION COMMITTEE MEETING HELD`| |||`ON 9.11.2016.`| |`EXHIBIT `|`P14:`|`TRUE PHOTOCOPY OF THE ORDER DATED 9.11.2016`| |||`PASSED BY THE 2ND RESPONDENT PROMOTING THE 3RD`| |||`RESPONDENT AS EXECUTIVE ENGINEER (ELE).`| |`EXHIBIT `|`P15:`|`TRUE PHOTOCOPY OF THE LETTER DATED 7.12.2016`| |||`SENT BY THE 2ND RESPONDENT TO THE PETITIONER.`| |`EXHIBIT `|`P16:`|`TRUE PHOTOCOPY OF THE COMPARATIVE TABLE OF THE`| |||`RECRUITMENT RULES APPLICABLE FOR PROMOTION TO`| |||`THE POST OF EXECUTIVE ENGINEERS IN 9 MAJOR`| |||`PORTS`| |`ANNEXURE `|`1`|`TRUE PHOTOCOPY OF THE RECRUITMENT RULES FOR`| |||`SAFETY OFFICER ISSUED IN 2010`| W.P(C) No.12971 of 2017 28 ``` RESPONDENTEXHIBITS ``` ``` ExhibitR3(a) ``` ``` ATRUECOPYOFTHEORDERNO NO.C3/JELE/GC/93-M(5)DATED18.1.1994 ``` ``` ExhibitR3(b)ATRUECOPYOFTHEBOARDRESOLUTIONDATED 23.4.2001 ``` ``` ExhibitR3(c)ATRUECOPYOFTHEORDERNO. ``` ``` A-11013/33/96-PE-IIDATED10THJUNE1998 ``` ``` ExhibitR3(d)ATRUECOPYOFTHEORDERDATED27.5.2005 ISSUEDBYTHE2NDRESPONDENT ``` ``` ExhibitR3(e)ATRUECOPYOFTHERELEVANTPAGESMINUTESOF THEPROCEEDINGSOFBOARDOFTRUSTEESHELDON 26.10.2016 ```