T. A. Rane v. Goa University and another — 1995 DIGILAW 170 (BOM)

JUDGMENT - - T.K. CHANDRASHEKHARA DAS, J.:---The facts of the case on which the parties are not at variance are as follows :--- 2. The petitioner was appointed as Statistical Assistant in the Town Country Planning Department by the Government with effect from 31-8-1970. By order dated 30th March, 1982 the petitioner was promoted to the post of Research Assistant on ad hoc basis but subsequently he was regularised in that post by order dated 19-10-1984. 3. While so, the first respondent had invited applications for the post of Programmer to be appointed on deputation from the employees in the Government of Goa, Daman and Diu and other semi-Government organizations. Pursuant to that Notification, the petitioner applied for the said post and was called for interview on 15th January, 1987 and ultimately he was offered the post of Programmer on the basis of deputation. He joined as Programmer in the service of the first respondent on 27-3-1987 pursuant to Exh. C order dated 12-2-1987. As per the said order of the first respondent the deputation of the petitioner was initially for a period of two years on terms and conditions laid down by the Government of India Ministry in the Office Manual Finance, O.M. No. F-1(11)/E-VI(B) dated 7-11-1975 as amended from time to time with liberty to extend. 4. In the year 1988 the first respondent has framed Rules of Recruitment which is called the Goa University Recruitment Rules, 1988 for different posts including the post of Programmer which came into force in the year 1988. As per these rules the post of Systems Analyst/Systems Manager has to be filled in by selection for promotion from among the eligible Programmers serving Goa University. Rule 10 prescribes the method of recruitment to the post of System Analyst/System Manager is by promotion, failing which by transfer/deputation; failing both by direct recruitment or on contract basis. Rule 7 prescribes the educational qualifications required for the post of Systems Analyst/Systems Manager for direct recruits, is Master's degree in Computer Application/Mathematics/Statistics, Operational Research/Physics with Electronics/Economics/Commerce with Statistics of a recognised University or equivalent; or 5 years' experience of statistical data processing work including experience in programming on a computer system. Qualifications may be relaxed by the DPC/DSC in case of candidates otherwise well qualified. Qualifications may be relaxed by the DPC/DSC in case of candidates otherwise well qualified. In Rule 11 it is stated that if the post is to be filed by promotion it should be from Programmers who are working under the Goa University with 5 years regular service in that category. 5. While the petitioner was working as Programmer as mentioned above, he was absorbed as per order dated 5-2-1993 with effect from 27-3-1991 (Exh. A) in the post of Programmer. While so, the post of Systems Analyst/Systems Manager fell vacant on 1-1-1994 consequent upon the retirement of the present incumbent (2nd respondent) on 31-12-1993. The petitioner claimed that he has all the required qualifications and eligibility for promotion to the post of Systems Analyst and requested the 1st respondent to consider his claim. But his claim was not considered. Therefore he filed this writ petition on the allegation that his case has not been considered and that the second respondent was illegally given a further extension of period on contract basis for a period of two years from 1-1-1994. With these allegations the petitioner approached this Court for the relief to issue a mandamus to the respondent No. 1 to forbear for appointing the respondent No. 2 on contract basis; (2) to issue a mandamus or any other appropriate writ, order or direction commanding the respondent No. 1 to fill in the post of Systems Analyst by promotion from amongst the eligible Programmers from the Department; and (3) for an injunction restraining the respondent No. 1 from re-employing the respondent No. 2 on contract basis and for an ad-interim ex-parte relief. 6. This writ petition came up for admission before this Court on 18-1-1994. By the order passed on that day, this Court has directed to keep the appointment of the respondent No. 2 in abeyance and to comply with the method of recruitment by promotion as mentioned in the Goa University Recruitment Rules, 1988 and as a stop-gap arrangement the University to re-employ respondent No. 2 for a period of six months and the Court also directed the parties to approach the Court by the end of the period of six months to take appropriate orders. Subsequently the first respondent informed the Court even though they have taken steps under the Rules calling the D.P.C. for filing up the post of Systems Analyst by promotion the D.P.C. found that no employees are found eligible to be promoted. It was reported by the first respondent that the petitioner was considered in the D.P.C. held on 6-4-1994 but found lacking five years of regular service required under the Rules for the promotion to the Systems Analyst and he could not be promoted. In view of this situation this Court has passed an Order dated 14-9-1994 as follows :--- "We have considered the matter. The fact remains that by our earlier order we held that the matter about the regular service of the petitioner whether it is to be computed from 1987 or from 1989, as contended by the petitioner, or from 27th March, 1991, as contended by the University, is at large in the main petition. But with a view not to create any void, as mentioned in our earlier order we find no difficulty in directing the Goa University to appoint the respondent No. 2 for a further period of six months or until the disposal of the petition finally, whichever is earlier. ...." As pointed out by this Court, the moot question which arises for consideration in this case is whether the service rendered by the petitioner under the first respondent as Programmer could be treated as regular service making him eligible to be considered and promoted as Systems Analyst. According to the petitioner he has in his credit more than six years as Programmer considering his service in the 1st respondent from 27-3-1987. 7. The counsel for the petitioner Mrs. Agni has contended that the action of the D.P.C. finding the petitioner not eligible to be promoted is illegal and vitiated by extraneous consideration. She submits that "regular service" contemplated under the Rules means that it does take in ad hoc service or service rendered as stop-gap arrangement. All other services rendered consequent upon the appointment as per the Rules should be treated as regular service. She has also fortified her argument by citing a decision in (K. Madhavan and another v. Union of India and others)1, reported in A.I.R. 1987 S.C. 2291. All other services rendered consequent upon the appointment as per the Rules should be treated as regular service. She has also fortified her argument by citing a decision in (K. Madhavan and another v. Union of India and others)1, reported in A.I.R. 1987 S.C. 2291. She has also relied upon a decision of a Constitutional Bench of the Supreme Court in (The Direct Recruit Class II Engineering Officers' Association and others v. State of Maharashtra and others)2, reported in A.I.R. 1990 S.C. 1607. She also argued that the action of the University finding the petitioner ineligible to be promoted as Systems Analyst is mala fide and with a view to unduly help the second respondent to give extension on his superannuation. 8. The learned Counsel for the first respondent, Mr. Khandeparkar, very vehemently supported the action of the first respondent. He specifically argued that since the initial appointment of the petitioner is not regular and only as stop-gap arrangement; that even after the Rules his service cannot be termed as regular as he was continuing in the parent Department till he was absorbed in the Department with effect from 27-3-1991. In support of his argument he cited a decision of this Court in (P.J. Joss v. The Administrator of Goa, Daman and Diu and others)3, reported in 1985(3) S.L.R. 68, (Union of India and another v. Prof. S.K. Sharma)4, reported in A.I.R. 1992 S.C. 1188 and in (Puranjit Singh v. Union Territory of Chandigarh and others)5, reported in A.I.R. 1994 S.C. 2737. Mr. Lotlikar, learned Counsel appearing for the second respondent, has also supported the argument of the Goa University. 9. Though all the above decisions were cited in support of the argument of the respective parties, according to us, those decisions are not directly applicable to the facts of this case, because all those decisions were rendered in respect of resolving the dispute regarding inter se seniority between the parties therein. But however, the general principles that could be deduced from such decisions cannot be ignored. Before we go into those decisions, we would like to refer to the relevant Rules in this case. As we pointed out earlier, the petitioner's claim for promotion by selection to the post of Systems Analyst was denied only on the ground that he did not have 5 years regular services as Programmer and in all other respects the petitioner was found fit. As we pointed out earlier, the petitioner's claim for promotion by selection to the post of Systems Analyst was denied only on the ground that he did not have 5 years regular services as Programmer and in all other respects the petitioner was found fit. Therefore, ultimately, the controversy centres round the issue whether the service put by the petitioner as Programmer under first respondent could be treated as regular service. It is an admitted case that it is on the initiative of the first respondent that the petitioner has been appointed in the post of Programmer initially for a period of two years but subsequently extended. When direct recruitment appears to be time consuming process and also when eligible candidates would not have been some time available in the market with the desired experience which is required for the job, normally, deputation is always a recognised mode of appointment to a post. The legal consequence of the deputationist is that the candidate deputed will be always having a lien on his parent Department and his emoluments will be regulated by the terms of the deputation. Therefore, can it be said that the period spent by a candidate on deputation to a transferee Department be treated as irregular in contradistinction with regular service? In true sense, therefore, we have to come to the conclusion that 'regular service' should be defined in contradistinction with irregular service. In other words, any service which is not regular (sic irregular) can be treated as regular service. Learned Counsel for the first respondent tried to impress upon us that during the period of deputation in the University, since the petitioner is retaining his lien in the parent Department, he cannot be treated as a regular employee and therefore the service put in the University cannot be treated as regular service. This contention of the counsel for the first respondent may be relevant if a question arises whether that period of service spent on deputation could be considered for the purpose of inter se seniority among the employees of transferee Department. The regular service contemplated under the Rules cannot be viewed as regular service for the purpose of calculating the seniority. Here we must examine the scope of regular service in the context of job requirements. Job requirement as we see in the context of direct recruitment, is five years' experience. The regular service contemplated under the Rules cannot be viewed as regular service for the purpose of calculating the seniority. Here we must examine the scope of regular service in the context of job requirements. Job requirement as we see in the context of direct recruitment, is five years' experience. The Rules provide a preference to the candidate already in service of the 1st respondent to the direct recruitment. In other words, Rules specify that in case Programmers having 5 years experience in the service are available, no direct recruitment could be resorted to. Only one condition imposed by the Rules is that the employee concerned should be in regular service at the time of selection. 10. If we examine the regular service in another angle, it can be seen that the regular service means those services which are not ad-hoc, temporary or stop-gap. This is what was held by the Supreme Court in A.I.R. 1987 S.C. 2291, (supra). Though in that decision regular service as such has not been interpreted, service on "regular basis" has been considered. In order to understand the facts of the case we have to extract paragraph 6 of that judgment which reads thus :--- "The petitioners have, in the first instance, challenged that respondent No. 5 was not even eligible for appointment to the post of SP CBI. Respondent No. 5 was a deputationist and under the 1963 Rules that were prevailing at the material time, he was to complete eight years service in the grade. There has been much controversy over the expression "in the grade". According to the petitioners, the expression should be understood as meaning in the grade of SP in the CBI. In other words, the contention of the petitioners is that respondent 5 should have been for eight years in the CBI and DSP before he would be eligible for appointment to the post of SP in the CBI. As respondent 5 joined the post of DSP in the CBI on deputation on 1-7-1967, he could not be appointed to the post of SP even on 28-10-1972, far less on 21-7-1971 (FN), for on either date, he did not complete eight years of service in the CBI. We are, however, unable to accept the contention, "eight years service in the grade" would mean "eight years" service in the grade of DSP". We are, however, unable to accept the contention, "eight years service in the grade" would mean "eight years" service in the grade of DSP". The 1963 Rules do not provide that the period of eight years should be computed from the date of deputation to the CBI as DSP. In the absence of any such express provision, it must be held that the period during which one held the post of DSP in the State Police Service should also be taken into account for computing the period of eight years. The 1963 Rules provide that two years must be spent on probation as DSP in the CBI. The position, therefore, comes to this that of the total period of eight years, two years must be on probation basis in the CBI. An officer may have been in the State Police as DSP for a period of six years and, thereafter, if he joins the CBI on deputation and spends two years on probation, he would be eligible for consideration for appointment to the post of SP....." The Supreme Court on basis of the facts of that case has held :--- "The 1975 Rules which are relevant for the purpose do not explain what is meant by the expression 'on a regular basis'. The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on ad hoc basis, the appointment is not on a regular basis. The expression 'on a regular basis' in the 1975 Rules cannot in our opinion, be interpreted to mean as on absorption in the CBI as SP. The expression 'on a regular basis' in the 1975 Rules cannot in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post." It is also relevant to note another decision of the Supreme Court reported in A.I.R. 1990 S.C. 1607, (supra) wherein it has been stated in paragraph 44(B) thus :--- "(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." Therefore, as per the general principle laid down in the above decisions we have to see that the petitioner's service in the first respondent cannot be termed as not regular service. 11. Another important factor to be noted in this case is that even though deputation of the petitioner to the service of the first respondent was before the framing of the Rules, the Rules which were framed subsequently have recognised the deputation as a mode of recruitment and this has to be taken as a mitigating circumstance in favour of the petitioner. Therefore, in view of the Supreme Court decision in A.I.R. 1990 S.C. 1607 (supra) even though the initial appointment of the petitioner was made before the framing of the Rules, it should be deemed that he has been appointed initially on regular basis and continued in service regularly and absorbed in service in terms of the Rules. At this juncture the contention of the learned Counsel for the first respondent that the petitioner's absorption into service as a regular employee with effect from 27-3-1991 will go to show that the service rendered by him prior to that date cannot be treated as regular service, cannot be acceptable to us. The result of absorption of the petitioner in service of the first respondent w.e.f. 27-3-1991, of course, severing the relationship of the petitioner with the Government and the contract of deputation between the employee and the University stands terminated on that date. The result of absorption of the petitioner in service of the first respondent w.e.f. 27-3-1991, of course, severing the relationship of the petitioner with the Government and the contract of deputation between the employee and the University stands terminated on that date. But how to treat the service rendered by the petitioner till the date of absorption is the question posed in this case. As we discussed earlier we are satisfied that in view of the decisions of the Supreme Court (supra), the service rendered by the petitioner under the first respondent could be treated only as 'regular service'. 12. Lastly, we cannot help expressing our deep dissatisfaction in the manner in which the whole matter has been dealt with by Goa University, which resulted in extending the superannuation of its employee. We must understand that extension of retirement means denial of opportunity of employment to the countless youth of this State waiting in despair for his turn to come in the long queue of the educated unemployed. Reason stated by the respondent No. 1 to extend the period of employment of the 2nd respondent after his retirement on 31-12-1993, for another period of two years is that suitable candidate is not available to be appointed as Systems Analyst in the place of 2nd respondent after his retirement. We are least impressed and we find no sincerity in that explanation. A retirement date of an employee under a public authority is fixed well in advance. Normally it is ascertainable on the very date of his entry. In such a circumstance, we fail to understand why the Goa University did not take timely action in filling up the vacancy after following the procedure in accordance with Rules. No convincing reply is forthcoming from the University and that spells out a world of suspicion on the bona fides of the University. Reason found by the 1st respondent to deny promotion to the petitioner, according to us, must be an excuse to extend the period of retirement of the 2nd respondent for obvious reasons. We least appreciate the action of the 1st respondent. 13. In the result, we allow the writ petition. We declare that the petitioner is entitled to be selected and promoted to the post of Systems Analyst with effect from 1-1-1994. We least appreciate the action of the 1st respondent. 13. In the result, we allow the writ petition. We declare that the petitioner is entitled to be selected and promoted to the post of Systems Analyst with effect from 1-1-1994. We direct the first respondent to take necessary steps to select and promote the petitioner to the post of Systems Analyst within 8 weeks from today. The second respondent is allowed to continue in that post for 8 weeks or till on such date the petitioner joins duty in the post of Systems Analyst in his promotion, whichever is earlier. On his appointment the petitioner will be entitled to all benefits of service w.e.f. 1-1-1994 except the salary. Rule made absolute in the above terms. In the circumstances, there shall be no order as to costs. Petition allowed.