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1991 DIGILAW 385 (BOM)

Joseph Emmanuel v. State of Goa & others

1991-08-22

E.S.DA SILVA, K.SUKUMARAN

body1991
JUDGMENT - K. SUKUMARAN, J.:---The petitioner, who has been functioning as Principal of the Goa College of Pharmacy from 1981 onwards, has approached this Court challenging the order of the Government-Exhibit 'O' dated 7-8-1991 by which the 3rd respondent was promoted on 'ad-hoc" basis to the post of Principal with immediate effect and for a period of one year or till the post is filled in on regular basis whichever event occurs earlier. In that order it was further mentioned that the petitioner would be relieved of the additional charge of the post of Principal. The order was varied by the Government itself by order dated 12-8-1991, where the word "promote" was substituted by the word "appoint". By an amendment petition, the petitioner had prayed for quashing this order as well as totally unjustified and contrary to law. The 3rd respondent has filed an affidavit in justification of the appointment and asserting his continuance as Principal after having assumed charge of that post from 8-8-1991. 2. The appointment to the post of Principal was earlier governed by the rules framed in the year 1969. Regular appointment was not made inspite of the lapse of a fairly long period. It is not in controversy that the petitioner was having additional charge of the Principal from the year 1981 onwards. Attempts were made to fill in the post on a regular basis. An advertisement was made inviting applications in that behalf. The petitioner contended that the qualifications for the post referred to in the advertisement were contrary to those provided by the rules. He moved this Court and successfully too. It was ruled by this Court that the advertisement did not have the necessary support from the statutory rules. The advertisement was accordingly quashed. 3. The rules were amended in the year 1988. Attempts at filling in the post on regular basis were revived. Initially, a selection made by the Government was suggested to be by passed by the Public Service Commission observing that a larger number of candidates would be preferably considered for appointment to that post. In that process, other advertisements followed. However, till 2-7-1991 there was no rectification of the attempts of the Government in selecting a person for appointment on regular basis. The last advertisement was published on 2-7-1991. 31-7-1991 was fixed as last date for submitting the applications. The 3rd respondent did respond to the advertisement. In that process, other advertisements followed. However, till 2-7-1991 there was no rectification of the attempts of the Government in selecting a person for appointment on regular basis. The last advertisement was published on 2-7-1991. 31-7-1991 was fixed as last date for submitting the applications. The 3rd respondent did respond to the advertisement. No appointment on a regular basis has been made by the Government. The impugned order of appointment, as noted earlier, is only an ad-hoc appointment and one which is to enure for a period of only one year or till a regular appointment is made. 4. The impugned order has the effect of disturbing the existing arrangements which had been in vogue for over a decade. On behalf of the Government, it was pointed out that the University and the Pharmacy Council were insisting on the post being filled in by a duly qualified hand. The disaffiliation threat apparently forced the Government to make an immediate order in relation to the filling up of the post. To the question whether the petitioner has challenged the qualification of the 3rd respondent to be appointed to the post of Principal for holding a Doctorate in Applied Biology, he has got a contention that Pharmacy is a subject, an important subject, in the scheme that is called a Doctorate in Applied Biology. There has not been any evaluation of this aspect of the matter. It is essentially and primarily for the academic Bodies to consider the effectiveness of a Doctorate in Applied Biology as equivalent to Doctorate in Pharmacy or Pharmaceutical Technology. That has to be necessarily attempted before a regular appointment is made by the Government and a disturbance of the existing arrangement is resorted to. It is not proper or legal for the Government to switch on from one ad-hoc arrangement to another. This has been repeatedly held to be undesirable and unsustainable in relation to public service. If the holder of a post is not holding it on regular basis, attempt should be made to fill it up on a regular basis and on a proper consideration of the various matters. A dislocating attempt by another ad-hoc or temporary arrangement which is of temporary character is not a solution. Such frequent disturbances would be contrary to the public interest. Consequently, there would be an adverse impact upon the rule of law. A dislocating attempt by another ad-hoc or temporary arrangement which is of temporary character is not a solution. Such frequent disturbances would be contrary to the public interest. Consequently, there would be an adverse impact upon the rule of law. In the present case, the disturbance is of a person who had been holding that post for about 10 years. If he is not qualified and someone else is duly qualified, the Government will be free and will have a duty to fill in that post with such a qualified person. There is, no justification in this late hour to disturb the position which the petitioner has been holding for the last 10 years. In that view of the matter we quash Exhibit 'O' dated 7-8-1991 and Exhibit 'P8' dated 12-8-1991. The petitioner will be permitted to continue to hold the additional post of Principal till a regular appointment is duly made by the Government. 5. The learned Government Pleader rightly and justly brought to our attention the fact that the University may take a serious view in relation to the delay in the appointment of a regular qualified hand and consequently the future of the students and the Institution may be in jeopardy. We are sure that the University will take note of the intervening events in a pragmatic and practical manner in the circumstances. If any untoward incident happens, the Court is here to rectify such matters and to protect the cause of students and the affiliation of the Institution. We allow this petition in the manner indicated above. The judgment of this Court will not in any way deter the Government from proceeding with the appointment on a regular basis, of course, of duly qualified person. 6. The writ petition is disposed of as above. There will be no order as to costs. The petitioner will be permitted to joint the post and his reporting shall be done within 3 days. Counsel for the petitioner, on the basis of the instruction of his client who is present in the Court, has assured this Court that his client will be reporting to duty within the time prescribed. Order accordingly. -----