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1997 DIGILAW 482 (KAR)

NEW MANGALORE PORT TRUST v. CAPTAIN KARAN VASWANI

1997-08-19

H.RANGAVITTALACHAR, S.RAJENDRA BABU

body1997
S. RAJENDRA BABU, J. ( 1 ) THESE three appeals arise out of an order made by the learned single judge in a writ petition by which the new mangalore port trust ('port trust' for short) sought to fill up the post of deputy conservator for port trust by direct recruitment. The recruitment to the various posts including that of the said deputy conservator is governed by the Provisions of the new mangalore port trust (recruitment of heads of departments) regulations, 1991. The point principally canvassed before the learned single judge was that the selected candidate did not possess the essential experience of 10 years as master of foreign going ship or in flotage and dredging in a major port trust. The learned single judge took the view that the experience of master of foreign going ship or in piloting cannot be read cumulatively to find out the extent of experience. He felt that the experience should be as a master of foreign going ship for 10 years or in the alternative, experience in piloting or dredging for a period of 10 years in a major port trust. On that basis, he allowed the writ petition and quashed the appointment made by the port trust. Hence, these appeals by the port trust, the union government and the selected candidate. ( 2 ) ). . ON behalf of the appellants, it is submitted that the relevant rule requires experience either as master of foreign going ship or in piloting or dredging in a major port trust and the two kinds of experience are alternative to one another and that is clear by the use of the expression 'or' between those two phrases. However, qualitatively there is no difference between the qualification for a master of foreign going ship or in piloting or dredging. It is submitted that the two phrases should be read synonymously and if so done, cumulative experience of 10 years either as master of foreign going ship or in piloting would be sufficient. However, qualitatively there is no difference between the qualification for a master of foreign going ship or in piloting or dredging. It is submitted that the two phrases should be read synonymously and if so done, cumulative experience of 10 years either as master of foreign going ship or in piloting would be sufficient. On behalf of the respondents, relying upon the decision in rex v oakes, nasiruddin v state transport appellate tribunal and paras ram v State of haryana , it is contended that the distinction between the conjunction 'and' or 'or' is well known and the expressions 'and' or 'or' could be replaced only in particular circumstance as pointed out in the aforesaid decisions and when the connecting terms are not synonymous, it is submitted that it is not open to the authorities to read them together to find out the extent of experience possessed by the selected candidate. ( 3 ) LEARNED counsel for the 1st respondent also submitted that there are certain other aspects in the matter such as non-disclosure of relevant information by the selected candidate, and the committee' which was constituted to select the candidate did not consist of persons who are fully qualified to do so and did not conform to the relevant regulation and therefore, the selection is bad on the face of it. ( 4 ) WE shall take up the last of the two contentions advanced on behalf of the 1st respondent first for consideration. These two contentions were raised in an additional statement filed before the court. It is not clear from the records whether the appellant was permitted to file such additional statement and whether the other side had any opportunity to meet the contentions urged therein. Under the writ proceeding rules, there is a definite requirement that whenever fresh pleadings are to be raised, leave of the court is necessary and when such leave is not granted, those pleadings cannot be looked into at all. In this case, that is exactly the position. Even so, we do not want to dispose of the contentions raised on behalf of the appellants on this technical ground. So far as the suppression of the material by the selected candidate is concerned, what is required to be seen is the scope of the Rule which requires furnishing of information and the effect of suppression of facts. Even so, we do not want to dispose of the contentions raised on behalf of the appellants on this technical ground. So far as the suppression of the material by the selected candidate is concerned, what is required to be seen is the scope of the Rule which requires furnishing of information and the effect of suppression of facts. Regulation 15 of the new mangalore port trust (recruitment of heads of departments) regulations, 1991, provides that any candidate who is found to have knowingly furnished any particulars which are false or to have suppressed material information of a character which, if known would ordinarily have debarred him from getting an appointment in the board's service is liable to be disqualified and, if appointed, to be dismissed from service. The candidate should have the necessary information in this regard that he is likely to be debarred from getting appointment in the board's service and such a matter needs investigation. If the point had not been raised at the earliest either before the authorities or before this court and no investigation had been done on that aspect of the matter, we cannot permit the respondent to raise this contention for the first time before us. In the circumstances, we do not think we can go into this aspect of the matter. Moreover, the allegation raised is that the selected candidate was involved in a marine casualty and therefore, a proceeding was pending before an authority and that pending proceeding had a bearing upon his selection. Indeed, the matter had been examined by the Supreme Court in capt. Subash kumar v the principal officer, mercantile marine department, Madras and before the Supreme Court, three contentions were put forth. Firstly, that the negligence complained of the said subash kumar was in respect of a foreign ship flying foreign flag at a place 232 nautical miles away from india, as such, outside the territorial waters of India and whether the act would be applicable at all and even if applicable, it would not amount to shipping casualty as envisaged in part xii of the act. Lastly, even assuming that chapter xii applies, the complaint could not have been filed by the principal officer in the court of the metropolitan magistrate, egmore. Lastly, even assuming that chapter xii applies, the complaint could not have been filed by the principal officer in the court of the metropolitan magistrate, egmore. When the outcome of the proceeding is dependent on so many imponderables, whether any non-disclosure of information has any effect or bearing upon the matter is not clear. In the circumstances, we shall not hazard a decision on that aspect of the matter. Therefore, we do not think we can base our conclusions on the contentions raised in this regard. Therefore, that contention cannot be sustained at all and the same stands rejected. ( 5 ) SO far as the Constitution of committee is concerned, the requirements are that a committee has to be constituted by the central government consisting of the following persons as provided in Rule 11: 1. Additional secretary or joint secretary, government of india. 2. Chairman, new mangalore port trust, and 3. Any other officer having wide experience as may be nominated by the central government. There is no dispute that the first two members were on the selection committee. So far as the third member is concerned, what is contended is that a development officer had been, nominated and according to the respondent, he did not possess such experience. But, if it is the opinion of the central government that he had wide experience in that department, we do not think we can take any exception to the same unless it is pointed out that there is gross lack of such experience and no such circumstance is pointed out. In that view of the matter, we do not think there is any substance in the second contention either. Therefore, that contention also stands rejected. ( 6 ) NOW, we shall go to the main contention urged before us regarding experience. In order to correctly appreciate the rival arguments we have examined the relevant provision relating to experience and the same reads as under: experience: 10 years experience as master of foreign going ship or in pilotage and dredging in a major port trust. As to how an expression of this nature should be dealt with is given a masterly treatment by reed dickerson in his book on "the fundamentals of legal drafting". As to how an expression of this nature should be dealt with is given a masterly treatment by reed dickerson in his book on "the fundamentals of legal drafting". Unless it could be said that the two categories of alternates are mutually inconsistent or such they cannot co-exist at all, or of such nature as one would not include the other, then a conclusion could be drawn that the two ideas cannot be taken together. Otherwise, the two ideas could be taken together. Indeed, when a phrase is used, as to how that expression could be understood, is explained as follows: whenever expression 'charitable' and 'educational' are used, the same must be appraised in the light of the fact that these terms are potentially cumulative. The same institutions can be both charitable and educational. On the other hand, those phrases dealing with the modifiers 'hospital' and 'burial' must be considered in the light of the fact that these terms are not potentially cumulative but mutually exclusive. An expense can be a hospital expense or a burial expense, but it cannot be both. But if the institutions are both charitable and educational, then it would mean institutions that are either charitable or educational or it could be both. In the present context, if we tabulate the different ideas such as the qualification of a master of a foreign going ship in one category, piloting and dredging in another category, unless we can show that they are mutually exclusive we cannot say the two ideas cannot be taken together. Therefore, we have to accept the contention put forth on behalf of the appellants that the two ideas are synonymous, then the experience gained either as master of foreign going ship or as pilotage or both together could be taken into consideration. If the two categories are taken together, we cannot find any fault with the interpretation placed by the selection committee as to experience of the selected candidate and he falls within the range of those expressions. When two views are possible on the interpretation of a provision, that which the administrative authority has taken note of should not be interfered with, in judicial review. In this case, on the analysis of the provision relating to experience, the view taken by the selection committee of the port trust is possible or even a probable view. When two views are possible on the interpretation of a provision, that which the administrative authority has taken note of should not be interfered with, in judicial review. In this case, on the analysis of the provision relating to experience, the view taken by the selection committee of the port trust is possible or even a probable view. We think, therefore, the order under appeal needs to be reversed. In that view of the matter, we allow the appeals and set aside the order made by the learned single judge and dismiss the writ petition filed by the 1st respondent in each of these appeals. --- *** --- .