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2010 DIGILAW 474 (BOM)

Vishwanath Shiva Bugde v. State of Goa

2010-03-26

S.J.VAZIFDAR, U.D.SALVI

body2010
Judgment :- Respondent no.2 is the Conservator of Forests, Government of Goa. Respondent no.3 is the Deputy Range Forest Officer. Respondent Nos.4 to 7 are Round Foresters and Deputy Range Forest Officers, whose placement in the seniority list and promotions have been challenged. 2. The Petitioner has sought an order to quash and set aside a seniority list dated 27.03.2001, a Memorandum dated 19.10.01, and a promotion order dated 01.02.2002. The Petitioner has also sought an order directing Respondent Nos.1 and 2 to prepare a fresh seniority list of Round Foresters on the basis of the rank obtained in the final results of the Forest Training School, Valpoi. Finally, the Petitioner has sought an order directing the concerned Respondents to consider Petitioner no.1 for the post of Deputy Range Forest Officer. By an amendment, the Petitioner sought an order to quash and set aside a seniority list finalized on 26.05.2004 and the promotions of Respondent Nos.4 to 7 on a regular basis to the post of Deputy Range Forest Officers effected by orders dated 13.07.04 and 05.08.2008. Lastly, by the amendment, the Petitioner sought an Order quashing and setting aside the promotion of Respondent no.6 on an ad-hoc basis to the post of Deputy Range Forest Officer. 3. A Division Bench of this Court by an order and judgment dated 22.07.2002, dismissed the Writ Petition. On 22.1-.2002, some of the private Respondents filed Civil Appeal No.362/03 in the Supreme Court. By an order and judgment dated 02.08.2005, the Supreme Court observed that none of the questions sought to be raised in the Writ Petition had been examined on merits and that the Writ Petition required deeper consideration on merits. The Supreme Court accordingly set aside the judgment of this Court and remitted the Writ Petition for decision afresh. 4. Mr. Sonak, the learned Counsel appearing on behalf of the four Petitioners, based the petition on two grounds. Firstly, he submitted that by virtue of instructions under Article 162 of the Constitution of India, the seniority list of Round Foresters ought to have been prepared on the basis of the rank obtained in the Forest Training School. The same not having been done, the Petitioners' seniority among the Round Foresters has been adversely affected. Firstly, he submitted that by virtue of instructions under Article 162 of the Constitution of India, the seniority list of Round Foresters ought to have been prepared on the basis of the rank obtained in the Forest Training School. The same not having been done, the Petitioners' seniority among the Round Foresters has been adversely affected. As per the ranking in the Forest Training School, the Petitioners would have ranked senior to some of the Respondents and, accordingly, they would have been entitled to promotion to the post of Deputy Range Forest Officer in preference to them. This of course was on the basis that promotion to the post of Deputy Range Forest Officer is on the basis of seniority. Alternatively, Mr. Sonak submitted that, in any event, the post of Deputy Range Forest Officers being a selection post, promotion thereto ought to be guided on the basis of merit and not seniority. The Petitioners contended that they had reason to believe that had the appointments been made on merits by examining the relevant confidential reports, they would have been entitled to promotion over the Respondents. 5. We will deal with the second point first. 6. Mr. Sonak submitted that the post of Deputy Range Forest Officer was admittedly a selection post. In that event, promotion ought to have been based on merit and not on seniority. He relied upon a Judgment of a Division Bench of this Court in the case of Laxman G. Phadte vs. State of Goa & Ors. dated 30.09.1998, in a group of Writ Petitions, the first of which was Writ Petition No.15/98. 7. We called for the records of the Departmental Promotion Committee. The same was produced and the Petitioners were permitted to inspect the same. Mr. Sonak fairly admitted that promotion to the post of Deputy Range Forest Officers does appear to have been made on the basis of merit and not on the basis of seniority, inter alia, by taking into consideration the relevant confidential reports. 8. In the circumstances, Mr. Sonak's second submission is rejected. 9. This brings us to the first point raised by Mr. 8. In the circumstances, Mr. Sonak's second submission is rejected. 9. This brings us to the first point raised by Mr. Sonak, which was based on the premise that in view of certain instructions issued under Article 162 of the Constitution of India, the seniority list of Round Foresters ought to have been prepared on the basis of the ranking obtained by the candidates at the Forest Training School. 10. The Petitioners were offered appointment as Round Foresters by a Memorandum dated 28.06.1995. The appointment was stated to be temporary and without conferring any title to permanent employment. Clause (2)(iii) of the Memorandum reads thus : "(iii) Immediately on appointment candidate must undergo in-service training of Foresters course of one year duration at Forest Training School, Valpoi - Goa, commencing on 1/8/1995. Failure in the aforesaid in-service training will debar them to claim retention in-service as Forester." 11. The Petitioners accepted the appointment and were accordingly issued an order dated 27.07.1995, confirming their appointment as Foresters Group 'C' non-gazetted post on a temporary basis with effect from the date of their joining and in the pay scale stated therein. 12. The Petitioners' appointment was challenged by another candidate by filing a Writ Petition in this Court. This Court, by an order and judgment dated 14.10.1998, set aside the appointments of Petitioner Nos.1 and 4 on the ground that they did not have the required height and chest measurement. The Supreme Court, however, by an order and judgment dated 04.10.1999, in Civil Appeal No.5730/1999, set aside the judgment of this Court. The Supreme Court held : "..... Under these circumstances, it must be presumed that the State thought that they had a right to relax the physical standards and this is what they did as a result of which the two appellants were appointed as Round Foresters." "We are informed that as of today there are vacancies of Round Foresters available in the Forest Department. This being so, we allow these appeals, set aside the order of the High Court and direct the appellants to be regularised in the two posts which are available along with continuity of service. It is made clear that those who have been appointed pursuant to the order of the High Court will not in any way be disturbed." 13. This being so, we allow these appeals, set aside the order of the High Court and direct the appellants to be regularised in the two posts which are available along with continuity of service. It is made clear that those who have been appointed pursuant to the order of the High Court will not in any way be disturbed." 13. The Respondents submitted that for the purpose of determining their seniority Petitioner Nos.1 and 4 must be deemed to have been appointed on the date of the order of the Supreme Court. 14. We do not agree. The order of the Supreme Court establishes that they must be deemed to have been appointed on the date on which they were appointed. Their appointment was set aside by this Court and that order was in turn set aside by the Supreme Court, which logically implies that they were always validly appointed. This is further clear from the language of the order and judgment of the Supreme Court. The Supreme Court observed that it must be presumed that the State thought that they had a right to relax the standard and that "this is what they did". The Supreme Court further directed these Petitioners to be regularized in the said post along with continuity of service. To hold therefore that the Petitioners must be deemed to have been appointed only on the date of the judgment of the Supreme Court and not on the date on which they were actually appointed, would be contrary to the judgment of the Supreme Court. 15. We would come to this conclusion even on principle. It is axiomatic that if the challenge to the appointment failed, their appointment was never invalid and, therefore, there can be no option but to treat them as having been appointed on the date on which they were appointed for all purposes including for the purpose for determining their seniority. 16. This finding, however, is of no any assistance to the Petitioners for the purpose of this Writ Petition and the first contention with which we are presently dealing. 17A. By a Circular dated 17.10.2000, Respondent Nos.1 and 2 invited objections to the tentative seniority list. 17B. 16. This finding, however, is of no any assistance to the Petitioners for the purpose of this Writ Petition and the first contention with which we are presently dealing. 17A. By a Circular dated 17.10.2000, Respondent Nos.1 and 2 invited objections to the tentative seniority list. 17B. By a letter dated 8.12.2000, Petitioner no.1 objected to his name appearing at serial no.5 in the seniority list stating that the same was probably on the basis of a merit list prepared at the time of the initial selection. He submitted that the merit list prepared at the time of selection is not relevant for the purpose of determining the seniority, inter alia, in view of Article 4(4) of the Constitution of the Forest Training School, which we will refer to shortly. He submitted that in view thereof, the seniority for new recruits who joined the Forest Training School directly, must be determined as per the rank obtained by them in the final exam at the Forest Training School. He referred to a communication dated 23.05.1996, which also will be referred to shortly. Accordingly, the Petitioner no.1 contended that he stood first in the Forest Training School and he ought to be placed in the seniority list at serial no.2. The Petitioner no.1 agreed that one Narvekar having been appointed way back in the year 1974, was rightly placed serial no.1. 17C. By a Circular dated 27.03.2001, Respondent Nos.1 and 2 rejected the above contentions of Petitioner no.1 and finalized the seniority list of Round Foresters as on that date. 17D. By a letter dated 26.04.2001, Petitioner no.1 reiterated his contentions. He further contended that the seniority of the previous batches of Round Foresters were also determined as per the ranking of the final result in the Forest Training School. 17E. Respondent no.2, by a Memorandum dated 19.10.2001, rejected the contention and stated that the seniority list had been prepared by the order of merit in which the candidate was selected for appointment on the recommendation of the Departmental Selection Committee and, therefore, was in conformity with the Government of Goa Rules, 1967. 18. In exercise of powers under Article 309 of the Constitution of India, the Administrator of Goa, Daman and Diu, made rules for determining the seniority inter-se the Officers of the Goa Government, called the Government of Goa (Seniority Rules) 1967, which came into force with effect from 06.03.1969. 18. In exercise of powers under Article 309 of the Constitution of India, the Administrator of Goa, Daman and Diu, made rules for determining the seniority inter-se the Officers of the Goa Government, called the Government of Goa (Seniority Rules) 1967, which came into force with effect from 06.03.1969. Rules 1(3) (a) and 5 read as follows : "(3) They shall apply to all Class I, Class II, Class III and Class IV Officers of the Government of Goa, Daman and Diu, except - (a) Officers in respect of whom special provision is made by or under any law for the time being in force, in regard to the matters covered by these rules; "5. Direct recruits - Notwithstanding the provisions of rule 4, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendations of the Union Public Service Commission or other selection authority, persons appointed as a result of earlier selection being senior to those appointed as a result of a sub-sequent selection. Provided that where persons recruited initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit." 19. On 01.02.2002, Respondent no.3 was promoted as the Deputy Range Forest Officer. Accordingly, on 11.3.2002, the Petitioners filed the present Writ Petition. We have already noted that this Court had dismissed the Writ Petition by the order and judgment dated 22.07.2002 and the Supreme Court by an Order dated 02.08.2005, set aside the same and remanded the Writ Petition for a fresh decision. 20. The Respondents justified the seniority list on the basis of Rule 5. It is clear to us that the relative seniority of the direct recruits in the post of Round Foresters, was determined by the order of merit in which they were selected. This was in fact not even seriously disputed. What was contended is that the seniority could not have been determined on this basis and ought to have been determined on the basis of the rank obtained by the candidates in the Forest Training School. 21. Mr. Sonak submitted that Rule 5 was subject to Rule 1(3). This was in fact not even seriously disputed. What was contended is that the seniority could not have been determined on this basis and ought to have been determined on the basis of the rank obtained by the candidates in the Forest Training School. 21. Mr. Sonak submitted that Rule 5 was subject to Rule 1(3). He further submitted that in exercise of powers under Article 162, Respondent No.1 had issued instructions fixing the seniority on the basis of the ranks obtained by the candidates at the Forest Training School and, in view of Rule 1(3), the same would prevail over Rule 5. He submitted that Rule 5 must give way to the instructions as Rule 1(3) stipulates that the said Rules would apply except in respect of Officers for whom special provision is made, by or under any law for the time being in force, in regard to the matters covered by the Rules. Instructions Under Article 162 of the Constitution of India being law for the time being in force, would thus prevail over the provisions of Rule 5. 22. We do not find it necessary to reconcile the provisions of Rule 1(3) and Rule 5 for we find that the Petitioners have been unable to establish the existence of any instructions under Article 162 as contended by them. There is, admittedly, nothing on record which can be termed as instructions under Article 162 of the Constitution of India. 23. The existence thereof was inferred on behalf of the Petitioners by reference to certain circumstances. 24. Firstly, the Government of Goa, Conservator of Forest, Group 'C' and 'D', Non-Ministerial, Non-Gazetted posts, Recruitment Rules 1992, were relied upon. The Petitioners and Respondent Nos.4 to 7, admittedly, fall in Group 'C'. Rule (3) provides that the method of recruitment to the said posts, age limit, qualifications and other matters connected therewith, shall be as specified in columns 5 to 13 of the said Schedule. The Schedule includes the post of a Round Forester and stipulates that it is a selection post in Group 'C'. Note (2) in respect of Round Foresters was relied upon : "Note (2) - Selected candidates will be sent for in-service training in Foresters' course at Forest Training School Valpoi, Goa immediately after selection. Failure in the aforesaid training will debar them to claim retention in service as Foresters." 25. Note (2) in respect of Round Foresters was relied upon : "Note (2) - Selected candidates will be sent for in-service training in Foresters' course at Forest Training School Valpoi, Goa immediately after selection. Failure in the aforesaid training will debar them to claim retention in service as Foresters." 25. The note merely provides that the selected candidates shall be sent for the said training and the consequences of a candidate failing to attend the same. It says nothing about the determination of the seniority of the candidates. 26. Mr. Sonak then relied upon a communication dated _ _ /6/1977, addressed to the Conservator of Forests by the training school certifying that the candidates mentioned therein had successfully completed their training and were placed according to their merit as stated therein. A final seniority list was prepared on 31.12.1989 in respect of twenty five candidates. The seniority of the candidates mentioned in the communication was in the same Order in the final seniority list as in the said communication. From the fact that final seniority list indicated the seniority in the same order, as in the communication dated _ _ /6/1977, Mr. Sonak submitted that this Court ought to infer the existence of the instructions under Article 162 of the Constitution of India as contended by him. 27. Mr. Sonak also relied upon a letter dated 12.01.1965, addressed to one Godinho, by the Conservator of Forest, Panjim, in which, it was stated that on the appointment of the said Godinho in the Forest Department, his seniority would be as per the ranking of the Training School of the candidates deputed by the Government. Mr. Sonak submitted that the same indicated the existence of the instructions under Article 162 to fix the seniority as per the ranking in the school. 28. The Conservator of Forest, Government of Goa, in his affidavit in reply stated that the above communications were prior to the year 1982. He further stated that earlier recruitment of Forest Executive staff was on stipend basis and after successful training. As such, prior to 1982 the performance of the candidates in training formed the basis for determining their inter-se seniority. After 1982 the candidates were sent for training after their appointment through due selection as provided for in the recruitment Rules. He further stated that earlier recruitment of Forest Executive staff was on stipend basis and after successful training. As such, prior to 1982 the performance of the candidates in training formed the basis for determining their inter-se seniority. After 1982 the candidates were sent for training after their appointment through due selection as provided for in the recruitment Rules. Accordingly after 1982, the principles for determining the inter-se appointment of the Officers of the Goa Government must be as per the said 1967 Rules. The Petitioners were appointed after 1982. This affidavit, therefore, clearly and satisfactorily answers the Petitioners contention. It clarifies the reason why earlier the seniority was fixed on the basis of the ranking in training whereas thereafter it was as per the 1967 Rules. 29. Let us assume that the manner of determining the seniority prior to 1982 was faulty. The error, if any, cannot enure to the Petitioners' benefit. There can be no question of an estoppel in such circumstances. 30. Even assuming that such instructions could validly be given under Article 162 contrary to the Rules it would in the facts of the case not be of any assistance to the Petitioners. Instructions under Article 162 of the Constitution of India cannot be a matter of conjecture. The existence thereof must be clearly established. There is nothing on record which even remotely establishes the existence of such instructions. We are not inclined to accept by inference the existence of such instructions based on the above communications of _ /06/77 and 29/1/1967 especially in view, though not only on the basis, of the explanation furnished in the affidavit of the Conservator of Forest. The documents relied upon by Mr. Sonak at the highest establish the action/decisions taken. They do not indicate the basis of such action/decisions. Our reluctance to accept by inference the existence of such instructions is enhanced by the fact that the effect thereof would be to delete the effect of the statutory Rules, namely the 1967 Rules which have been made in exercise of powers under Article 309 of the Constitution of India. 31. Mr. Sonak relied upon Article 4(4) of the Constitution of the Forest Training School, Valpoi, which provides that seniority of direct recruits who joined the school directly after their selection is required to be determined as per the ranks obtained in the final results. 31. Mr. Sonak relied upon Article 4(4) of the Constitution of the Forest Training School, Valpoi, which provides that seniority of direct recruits who joined the school directly after their selection is required to be determined as per the ranks obtained in the final results. The Constitution of the Forest Training School does not have any statutory force. The provisions thereof, therefore, cannot override the provisions of the 1967 Rules. 32. In the circumstances, the Writ Petition is dismissed.