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Judgment
,,
 N.M. Jamdar, J",,
This Petition concerns the post of Assistant Director, Electronic Data Processing, Â in the establishment of Mormugao Port Trust, Goa.",,
The Respondent No.1 is the Port of Mormugao. It is governed under the Major Ports Trusts Act, 1963. The administration of the Port is",,
vested in the Board of Trustees. The Mormugao Port Trust is under the supervision and control of the Respondent No.2-Union of India.,,
Respondent No.3 is the Departmental Promotion Committee, constituted by the Mormugao Port Trust (Port Trust). Â Respondents No.4 and",,
5 are the Authorities of the Port Trust, who are involved in the process of promotion to the post of Assistant Director (EDP). Respondent No.",,
6 was promoted to the post of Assistant Director (EDP) by the impugned order dated 4 July 2017. Â,,
The Petitioner and Respondent No.6 have been working for the Port Trust for a considerable period of time. The Petitioner is five years,,
older than Respondent No.6. The Petitioner was appointed in the Port Trust as a Clerk (Ad hoc) on 4 September 1978. Respondent No.6 was,,
appointed as a Clerk (Outdoor) seven years later, on 29 October 1985. The Petitioner was appointed on regular basis on 6 January 1979.",,
Thereafter, the Petitioner was promoted as Senior Clerk on ad hoc basis on 30 April 1985 and was promoted as Senior Clerk on regular basis",,
on 8 February 1986. On 16 October 1987, the Petitioner and Respondent No.6 were appointed as Data Entry Operators. Thereafter, on 12",,
August 1992, the Petitioner and Respondent No.6 were promoted as Junior Programmer on Regular basis. Thereafter both, the Petitioner and",,
Respondent No.6 were appointed and reverted for the administrative purposes for a short span. Later on, on 2 February 2001, the Petitioner",,
and Respondent No.6 were appointed as Programmer on regular basis. By an order dated 5 August 2011, the Petitioner and Respondent No.6",,
were appointed as Senior Manager-IT/Asst. Director-IT on ad hoc basis. On 4 August 2012, the Petitioner and Respondent No.6 were",,
reverted from their original post of Assistant Manager â€" IT (Regular). The Assistant Manager-IT is a feeder post for the post of Assistant,,
Director (EDP) which is in question.,,
On 4 July 2017, a meeting of the Departmental Promotion Committee was held for selection of the candidates for promotion to the post of",,
Assistant Director (EDP) in the Finance Department. The Departmental Promotion Committee was headed by the Deputy Chairman of the,,
Port Trust, with the Secretary and the Finance Advisor, as Members and a representative from the Scheduled Caste and Scheduled Tribe.",,
The Departmental Promotion Committee noted that consequent to upgradation of the vacant post of the Assistant Manager (EDP) to its,,
original status as Assistant Director (EDP), one vacancy has arisen in the category of Assistant Director (EDP) on 4 July 2017. The",,
Departmental Promotion Committee noted that the Petitioner was the senior-most candidate in the seniority list, however, did not fulfill the",,
requirement in respect of essential qualifications. Thereafter, the Departmental Promotion Committee considered the second senior candidate",,
i.e. Respondent No.6 and his educational qualifications. As regards his qualification from Periyar University of M. Sc. in Information,,
Technology, the Departmental Promotion Committee noted that derecognization of the degrees of Periyar University was stayed by the",,
Madras High Court. The Departmental Promotion Committee also noted that a clarification was sought from the Goa Engineering College,,
whether the educational qualification of M. Sc. in Information Technology acquired by Respondent No.6 could be considered as equivalent,,
qualification to Degree in Computer Engineering/Computer Sciences as stipulated in the Recruitment Rules. Opinion was received from the,,
Goa Engineering College that the qualification of the Respondent No.6 may not be necessarily equated to having Graduate Degree under the,,
Recruitment Rules. The Departmental Promotional Committee noted that the Post Graduate qualification is one of the desirable qualifications,,
under the Recruitment Rules and on that basis, considered the Respondent No.6 as eligible for promotion. Thereafter, the Departmental",,
Promotion Committee ascertained whether there is any adverse remark against Respondent No.6 in his confidential reports and having found,,
that in order, recommended that Respondent No.6 to be promoted on regular basis on a condition, to be reverted to his vacant post if the",,
University Grant Commission or Court determines that M. Sc. (IT) course offered by Periyar University is not recognized.,,
Pursuant to the recommendation by the Departmental Promotion Committee, Respondent No.6 was promoted on regular basis by the",,
impugned Order dated 4 July 2017. Â This order has been challenged by the Petitioner in this Petition. By an order dated 3 October 2017, the",,
Division Bench issued Rule and directed that the appointment of Respondent No.6 would be subject to the outcome of the Petition.,,
We have heard Mr. S.G. Dessai, learned Senior Advocate for the Petitioner, Mr. Y.V. Nadkarni, learned Counsel for Respondents Post",,
Trust authorities and Mr. Gaurish Agni, learned Counsel for Respondent No.6.",,
The Petitioner has sought twofold relief in this Petition. Firstly that the impugned order dated 4 July 2017 be set aside and the Petitioner be,,
promoted to the post of Assistant Director (EDP), with retrospective effect from 4 July 2017. Â",,
Hierarchy in the Department is that the feeder post for promotion to the Assistant Director (EDP) is Senior Manager-IT. After the post of,,
Assistant Director (EDP), the next post is that of Deputy Director (EDP) and then of Senior Deputy Director (EDP). In exercise of the",,
powers conferred under the Major Port Trusts Act, the Central Government has framed the Mormugao Port Trust Employees' (Recruitment,",,
Seniority and Promotion) Regulation, 2010. Regulation 4 deals with the manner of appointments to various posts. The Departmental Promotion",,
Committee is contemplated under Regulation 26. Promotion through selection is dealt with under Regulation 27, which reads thus : Â",,
“Where one or more posts in a grade are required to be filled by promotion through selection method from employees holding posts in the,,
feeder grade in accordance with the prescribed recruitment rules employees holding the eligible posts and having the prescribed qualifications,,
and experience for promotion shall be considered for promotion if they fail within the zone of consideration.,,
(2) The following procedure shall be observed whilerecommending employees for promotion through selection method:,,
(a) The Departmental Promotion Committee (DPC)shall determine the merit of those being assessed for promotion with reference to the,,
prescribed benchmark and accordingly grade the officers as 'fit' or 'unfit'. Only those who are graded 'fit' by the DPC shall be included and,,
arranged in the select list in order of their inter se seniority in the feeder grade. Those Officers who are graded as 'unfit' by the DPC shall not,,
be included in the select list.,,
(b) The Departmental Promotion Committees shall alsoconsider the cases of eligible employees who are on foreign service or on study leave.,,
(c) The instructions issued by the Govt. from time totime on procedure to be followed in DPC proceedings in respect of Govt. Servants shall,,
mutatis mutandis apply.,,
Note: For absorption to the post carrying pay scale of Rs. 16000-400-20800 and above and for which composite method of recruitment is,,
adopted, the benchmark in the overall grading shall be 'Very Good'. In all other cases, the benchmark shall be ""Good"".",,
(3) For promotion to non-selection posts, where nobench mark is specified, the criteria for selection shall be seniority-cum-fitness.â€",,
Adhoc appointments are contemplated under Regulation 28, which reads thus :",,
“28. Adhoc Appointments,,
1,Serial number,1.
2.,Name of post,Assistant Director (EDP)
3.,Number of posts,2
4.,Classification,Class-I
5.,Scale of Pay,9100-250-15100
6.,Whether Selection or non selection., Selection.
7.,"Upper age limit for direct recruitment
(in years).",30
8.,"Educational and other qualifications
prescribed for  direct recruitment.","Engineering with Post Graduate
Diploma in Computer
Application/Computer
Science/Information Technology from a
recognized university/ institution. Desirable :
(i) Post Graduate Degree in
Maths/Statistics/Operational
Research/Economic or Post
Graduate Degree in Computer
Science or Computer
Engineering or Systems or Information
System or MIS or Information Technology
or Computer Application or Business
Administration (PG degree/diploma) with
Specialization in Systems or Information
Systems or MIS or Information Technology
and allied subjects from a recognised
University/Institution.
(ii) Two years experience in
Programming/Electronic data
Processing/System Analysis, etc.
9.,"Whether (a) age (b)
Educational qualification (c)
Experience for direct recruits will
apply in the case of promotion/
absorption/deputation. Â","(a) No.
(b) Yes.
(c) No.
10.,Period of probation (in years)., 2.
11.,"Method of recruitment, (whether by
direct recruitment or by
promotion/absorption/ deputation.","Upto 21st Aug.2012.
By direct recruitment â€" 33.1/3%.
By promotion â€" 66.2/3% After
21st Aug. 2012. By direct
recruitment 66.2/3%.
By promotion 33.1/3%
12.,"In case of  promotion/
Absorption/deputation, grades from
which it should be made.","Promotion from Assistant Manager (EDP) in
the scale of pay of Rs.8600-14600 with 3
years regular service in the grade OR
Promotion from Class III employees in the
scale of pay of Rs.6170-11975 in the
respective discipline of P & R Div. with 5
years regular service in the grade where
there are no Class II posts in the pay scale
of Rs.8600-
14600 in that discipline. Â
Â
13.,Remarks,
cannot be dismissed summarily only on this ground. The Petitioner is admittedly senior to the Respondent No.6 by seven years in service. It is,,
not that the Respondent No.6 has been given officiating charge of the post of Assistant Director (EDP). Respondent No.6 has been promoted,,
on regular basis. If Respondent No.6 is not qualified to be promoted on regular basis, then the question that would arise is how to fill up the",,
post of Assistant Director (EDP), whether by direct recruitment or on ad hoc basis or officiating charge can be given. If the promotion is to",,
be made on ad hoc basis or by giving officiating charge, which contingency is provided in the Recruitment Rules, question of seniority cannot",,
be said to be irrelevant. Therefore, the Petitioner is entitled to question the promotion of Respondent No.6 on regular basis to the post of",,
Assistant Director (EDP).,,
Now to consider the argument that the Degree in Information Technology obtained by the Respondent No.6 could be considered as,,
covered under the 'Degree in Computer Sciences' Respondent No.6 had made a request that since he was  possessing Degree in,,
Commerce having Economics subject with diploma, it may be considered as one qualification. An opinion was sought from the Goa University",,
by the Port Trust and it was informed that merely because one of the subjects was Economics, it cannot be considered as a Degree in",,
Economics and, therefore, the qualification of Degree in Economics with Post Graduate Diploma in Information Technology is not available",,
with Respondents No.6.,,
It was then contended on behalf of Respondent No.6 that Respondent No.6 has a Post Graduate Diploma in Information Technology,",,
which includes a degree as well. This submission has no merit. The Post Graduate Degree contemplated under the Recruitment Rules as a,,
desirable qualification is part of a scheme. Scheme of the Rules postulates two levels of qualifications. First the essential qualifications, where",,
certain Degrees are prescribed. Second the step above, that is a Post Graduate Degree, which is a desirable qualification. What Respondent",,
No.6 has, is a certificate from Periyar University which states that the Petitioner is given 'Degree of M. Sc.' in Information Technology. It is",,
pointed out to us that this Post Graduate Degree was given in two years, without there being any Degree at the first instance, but a Diploma",,
through correspondence course and 'Post Graduate Degree' is also by correspondence course. Even though the Certificate possessed by,,
Respondent No.6 contains the phrase 'Post Graduate Degree', it is not a Post Graduate Degree as contemplated under the Recruitment Rules.",,
The Recruitment Rules will have to be read in a purposeful manner as it will apply uniformly to all the applicants in future and cannot be,,
interpreted merely because it suits a particular candidate at a given time. The Recruitment Rules will have to be read so as to ensure that a,,
suitable talent is available and appointed to perform the public duties. In the case of Prof. Yashpal and anr. vs. State of Chhattisgarh and ors.,,
 the Apex Court had an occasion to analyse the meaning of Degree and what it connotes. The Supreme Court observed that a degree,,
conferred by an university is a proof of the fact that a person has studied a course of a particular higher level and has successfully passed the,,
examination certifying his proficiency in the said subject of study to such level. An university degree confers a kind of status upon a person,,
like a graduate or a postgraduate. The interest of society also requires that the holder of an academic degree must possess the requisite,,
proficiency and expertise in the subject which the degree certifies. Therefore, the interpretation placed by Respondent No.6 on the term",,
'Degree in Computer Sciences' occurring in the essential qualification to the post of Assistant Director (EDP) cannot be accepted. The,,
educational and other qualifications prescribed for the selection to the post of Assistant Director (EDP) show that certain qualifications are,,
treated as essential. If the candidates are equally placed, then desirable qualification would be taken into consideration. It cannot be possibly",,
argued that a candidate who does not possess the essential qualification, can be considered as qualified because he possesses desirable",,
qualification. Respondent No. 6 thus does not have qualification to be promoted to the post of Assistant Director (EDP).,,
Though Mr. Nadkarni initially sought to urge that the Degree held by Respondent No.6 could be considered as an essential qualification,",,
upon pointing out that it was not the stand taken on affidavit by the Port Trust, nor taken by the Departmental Promotion Committee, Mr.",,
Nadkarni did not pursue that angle further. The Departmental Promotion Committee itself did not consider the case of Respondent No.6 as,,
having the essential qualifications. The Minutes of the Departmental Promotion Committee are on record. The DPC, in fact, held that",,
Respondent No.6 did not possess the essential qualifications. The relevant paragraph of the minutes, reads thus :",,
“ vi. The senior most candidate in the seniority list Viz. Shri Shirish A. N. Desai, Asst. Manager (EDP) does not fulfill the requirement of",,
RRs in respect of Educational qualification. The second senior most candidate in the seniority list viz. Shri Prasad Nayak, Asst. Manager",,
(EDP) has acquired the educational qualification of M.Sc (Information Technology) from Periyar University Salem, Tamil Nadu, which is",,
actually a two years PG Degree course by appearing for only one examination of Second Year as he was granted lateral entry to Second,,
year M.Sc. (Information Technology) having passed First Year M.Sc. (Information Technology)/PGDIT from Sikkim Manipal University in,,
the year 2003. Â The further correspondence with the Periyar University also reveals that the recognition for the year 2015-16 and 2016-17,,
was denied to the said University by UGC against which PRIDE of Periyar University has obtained Stay Order from the High Court of,,
Madras, Chennai (W.P. No.34428 of 2015 and W.P. No. 37992 of 2016). Since the Stay Order continues, the DPC conclude that the",,
recognition of the University also continues.,,
vii. DPC further noted that since there has been representation on the alleged deviation in the educational qualification possessed by Shri,,
Nayak vis-avis RRs, clarification was sought from the Goa Engineering College Farmagudi to ascertain whether the educational qualification",,
of M.Sc. in Information Technology  acquired by Shri Nayak can be considered as equivalent qualification to Degree in Computer,,
Engineering/Computer Sciences as stipulated under RRs. In response, the Principal, Goa College of Engineering, Farmagudi, has submitted the",,
clarification dtd 19.2.2017 given in this regard by Dr. Vijay Borges Asst. Professor, Goa College of Engineering, wherein it has been clarified",,
as Sl. No. 'c' of his opinion that “the incumbent's educational Post Graduate qualification of M.Sc. in Information Technology may not be,,
necessarily equated to having Graduate Degree as specified under the said RRs.†Since Shri Prasad Nayak posses post graduate in M.Sc.,,
(IT) which is one on the desirable qualification, the DPC decided to consider him as eligible.â€Â     Â",,
Therefore, the Departmental Promotion Committee had decided to recommend Respondent No.6 for promotion only on the ground that he",,
possessed desirable qualification, without essential qualification which is not permissible.",,
This brings us to the situation where both, the Petitioner and Respondent No.6 are not qualified to be promoted to the post of Assistant",,
Director (EDP). It was argued by Mr. Nadkarni that the Court should not interfere in the Certiorari jurisdiction as the quashing of the order,,
would result in greater harm to the society. It was contended that only due to administrative exigencies that Respondent No.6 came to be,,
promoted. As far as angle of administrative exigency is concerned, we fail to understand as to how that can justify promoting a totally",,
unqualified candidate on regular basis. The Recruitment Rules themselves provide for ad hoc promotions and in the past they have been so,,
given. Had Respondent No.6 been given ad hoc promotion or officiating charge, the argument of administrative exigency and desirable",,
qualification could have been viewed in a different context. Blatant breach of the Recruitment Rules cannot be excused as an administrative,,
exigency, especially when alternative modes to resolve such administrative exigencies are provided under the Recruitment Rules. Nothing is",,
shown to us as to why the post in question cannot be filled in by way of direct recruitment or by way of ad hoc arrangement  or by giving,,
officiating charge. If there is really a serious administrative exigency, no answer to this is forthcoming.",,
If both, the claim of the Petitioner and Respondent No.6 is to be considered for selection on adhoc basis, even in the cases of both merit-",,
cum-seniority and seniority-cum-merit, seniority is not entirely irrelevant. The minutes of the Departmental Promotion Committee show that,",,
having acknowledged the position that Respondent No.6 did not have essential qualification, the Committee did not consider the aspect of inter",,
se seniority between the Petitioner and Respondent No.6, nor their competitive merit. We have not been shown anything adverse against the",,
Petitioner, nor it is the case of the Respondent-Port Trust. The Departmental Promotion Committee, therefore, either should have rejected the",,
candidature of Respondent No.6 or if it had to recommend ad hoc promotion or giving officiating charge, it should have considered the",,
seniority and competitive merit of both the candidates. The Departmental Promotion Committee did neither and in complete violation of the,,
Recruitment Rules, recommended the promotion of the Respondent No.6 on regular basis. This exercise by the Departmental Promotion",,
Committee is, therefore, entirely illegal and cannot be sustained and consequently, the impugned order promoting Respondent No.6, being",,
based on the recommendation of the Departmental Promotion Committee, also cannot be sustained.",,
As far as the post of the Assistant Director (EDP) that will now become vacant is concerned, it is open to the RespondentPort Trust to fill",,
up the same by direct recruitment or if the administrative exigencies are so grave that it cannot wait till the direct recruitment, to exercise the",,
option of ad hoc arrangement. If the ad hoc arrangement is to be considered, as per Regulation 28 of Regulations of 2010, parameters therein",,
are provided. Since it is the contention of the Respondent-Port Trust that promotion of Respondent No.6 had to be made in view of the,,
administrative exigencies, if the promotion is set aside, the administrative exigencies as projected would continue. That being the position, the",,
Respondent-Port Trust should immediately initiate the process for direct recruitment or ad hoc promotion. Till the recruitment process is,,
completed, Regulation 28 does contemplate this course of action upto a period of one year. It is, however, for the Respondent-Port Trust to do",,
so. We have referred to this position only because it is the argument of the Respondent-Port Trust that Respondent No.6 was regularly,,
promoted, apparently in breach of the Recruitment Rules, because the post could not be kept vacant, being an important post.",,
In view of this position, we have not referred to the wider issues raised by Mr. Dessai regarding powers of Periyar University to issue",,
degrees in education and the interpretation placed on the powers of the State Legislature and the Parliament. We have found that even,,
assuming the Post Graduate Degree in favour of Respondent No.6 is considered as valid, it cannot fall within the ambit of the essential",,
qualification. We have also not gone into the factual aspect raised by Mr. Dessai as to the leave record of the Respondent No.6 for the,,
contention as to how he could manage to get the degree without leaving the Office.,,
As a result of the discussion, the Petition succeeds. The Impugned order dated  4 July 2017 is quashed and set aside. In view of the",,
administrative exigency expressed by the Respondent-Port Trust of its inability to keep the post of Assistant Director (EDP) vacant, we direct",,
that the Respondent-Port Trust will take necessary steps of either initiating appointment by direct recruitment or ad hoc appointment, within a",,
period of one month from today.,,
Rule is made absolute in the above terms. No order as to costs.,,