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2011 DIGILAW 1272 (BOM)

Lisette E. R. Camara v. State of Goa

2011-10-11

A.P.LAVANDE, R.P.SONDURBALDOTA

body2011
Judgment R. P. SONDURBALDOTA, J. 1. The petitioner is working as Assistant Physical Education Officer (hereinafter referred to as APEO) with respondent no.2. By this petition, filed under Article 226 of the Constitution of India, she challenges the appointment of respondent nos.4 and 6 to the same post and her reversion orders dated 3-2-2005 and 4-2-2005. She also prays that her services as APEO be treated as on regular basis w.e.f. 12-7-2002 i.e. from the date of her initial appointment as APEO. and in the alternative that she be shown as appointed to the post on regular basis w.e.f. 1-3-2003. The petition as filed originally, challenged the appointment of respondent nos.3 and 5 also as APEO She, however, amended the petition to delete respondent nos.3 and 5 from the petition and gave up the challenge to their appointments. 2. On 5-4-2002, an advertisement was published in newspaper by respondent nos.1 and 2 inviting applications for four posts of APEO in the Directorate of Sports, Campal, Panaji, Goa, to be filled by direct recruitment. Out of the four posts, one was reserved for scheduled caste (SC), one for scheduled tribe (ST), one for other backward caste (OBC) and one for general category. The advertisement mentioned that if suitable candidates were not to be available for the reserved category the posts would be filled by general category candidates. The petitioner who was already working as Taluka Sports Organizer in the office of respondent no.2 since the year 1987 applied for the said post and was selected. She was placed second on the merit list of general category candidates after one Shri Navin Archarya. Thereafter, on 8-8-2002, respondent no.6 was appointed as APEO to the post reserved for SC, one Kiran Dhargalkar to the post reserved for OBC and Navin Archarya to the general category post. For the fourth post reserved for ST, no candidate belonging to ST was available. The petitioner was therefore appointed to that post on adhoc basis w.e.f. 12-7-2002 vide appointment letter dated 8-8-2002. The petitioner accepted the adhoc appointment and started working as APEO. During the pendency of the petition she was reverted to the post of Physical Education teacher(PET) vide order dated 3-2-2005 and transferred to Ponda as a Taluka Sports Organizer(TSO) vide order dated 4-2-2005. The petitioner then amended the petition to challenge her reversion. 3. The petitioner accepted the adhoc appointment and started working as APEO. During the pendency of the petition she was reverted to the post of Physical Education teacher(PET) vide order dated 3-2-2005 and transferred to Ponda as a Taluka Sports Organizer(TSO) vide order dated 4-2-2005. The petitioner then amended the petition to challenge her reversion. 3. The petitioner who appears in person contends that there could not have been a reservation either for scheduled tribes or scheduled castes since in terms of the notification of the year 1996 which was in force on the date the vacancies to the post of APEO arose, only ½ % of the posts were reserved for ST category and 2% of the posts were reserved for SC category. At the relevant time the post reserved for ST category was already filled in by a ST candidate Mr. Malgi. Similarly, two posts reserved for SC category had been filled in by Mr. N. G. Akargekar and Uday Navelkar. Therefore, according to her the advertisement issued by respondent nos.1 and 2 ought to have been at least for two posts for general category and the petitioner being second in the merit list ought to have been given regular appointment w.e.f. 12-7-2002 to the post of APEO. 4. Perusal of the petition shows that there is no challenge included therein to the advertisement dated 5-4-2002 issued by respondent nos.1 and 2. Therefore, we are inclined to accept the submissions advanced by Shri S. Bandodkar, learned Additional Government Advocate on behalf of respondent nos.1 and 2 and Shri S. D. Lotlikar, learned Senior Counsel on behalf of the respondent nos.3 to 6 that the petitioner cannot be allowed to canvass any contention based on any defect in the advertisement for want of challenge thereto and also since she participated in the selection process under the very advertisement without demur. The petitioner has amended the petition to delete respondent nos.4 and 6 therefrom and restricted the challenge to appointments of respondent nos.3 and 5. But the petition cannot sustain against respondent no.6 also his appointment having been made on 8-8-2002 pursuant to the selection process under the advertisement. 5. In any case on merit also we find it difficult to accept the contention of the petitioner as regards the advertisement. But the petition cannot sustain against respondent no.6 also his appointment having been made on 8-8-2002 pursuant to the selection process under the advertisement. 5. In any case on merit also we find it difficult to accept the contention of the petitioner as regards the advertisement. Respondent No.2 in her affidavit-in-reply to oppose the petition has pointed out that the advertisement dated 5-4-2002 included the posts reserved for ST/SC/OBC in view of long standing backlog of vacancies as per the roaster. As per the remark of Assistant Director SC/OBC(Welfare) Directorate of Social Welfare, Panaji and as per the notification of reservation issued in the year 1995-96 reservation kept for ST. 1/2% reservation covered roaster at ration nos. 4, 17, 30, 43, 56, 69, 81 and 94. Shri C. N. Mahalgi was promoted to the post of APEO from promotional quota thereby 50% quota was completed and in order to fulfill the remaining 50% from direct recruitment the post of APEO reserved for ST candidate was advertised. Since no ST candidate was available the post was filled by general candidate on adhoc basis for one year by appointing the petitioner to the post. In view of these facts on merit also there can be no substance in the contention of the petitioner. 6. This takes us to the second grievance of the petitioner relating to her reversion. The petitioner submits that in view of pendency of the present petition it was incumbent upon respondent nos.1 and 2 to maintain status quo until the disposal of the petition particularly when the petitioner has been seeking regularization of her appointment as APEO on the grounds stated in the petition. Secondly, it is submitted by her that she having been appointed as APEO on adhoc basis before respondent no.5, who was also appointed on adhoc basis, if at all anybody had to be reverted it had to be respondent no.5 on the principle of last come first go basis. Admittedly, the petitioner was holding the post of APEO on adhoc basis in the post reserved for ST category. Therefore there can be no substance in the contention that respondent nos.1 and 2 ought to have maintained status quo even in the absence of interim orders to that effect merely because the petition was pending. Admittedly, the petitioner was holding the post of APEO on adhoc basis in the post reserved for ST category. Therefore there can be no substance in the contention that respondent nos.1 and 2 ought to have maintained status quo even in the absence of interim orders to that effect merely because the petition was pending. As regards the second argument, the petitioner having withdrawn the petition against respondent no.5 she can no more contend that it is respondent no.5 and not the petitioner who ought to have been reverted. Therefore, we find no merit in the grievance of the petitioner as regards her reversion. In any case, it is undisputed position that the petitioner has immediately thereafter been regularly posted as APEO and has not lost any monetary benefit nor her position in the seniority. 7. Pursuant to the advertisement dated 5-4-2002, one Kiran Dhargalkar was appointed as APEO to the post reserved for OBC category. On his resignation from the post, respondent no.4, also an OBC candidate was appointed as APEO w.e.f. 1-3-2003 thereby regularizing his earlier adhoc appointment dated 27-9-2002. The petitioner argues that on resignation by Kiran Dhargalkar the post became available to the general category and ought to have been filled in by appointing her to the post she being next in the general category list after Navin Archarya. According to her, even if the post is to be treated as reserved for OBC respondent no.4 was not eligible to be appointed thereto since he fell within the creamy layer of OBC as he was drawing salary above Rs.1,00,000/- per year. The petitioner has annexed a Xerox of one pay sheet of respondent no.4 to the petition. It shows the total amount drawn by him for that particular month as Rs.11,149/-. This amount is seen to include leave salary of Rs.3,295/-. The leave salary not being part of the monthly salary is required to be deducted from the amount of Rs.11,149/-. On such deduction, the monthly salary of respondent no.4 would become of Rs.7,854/-bringing his yearly salary well below Rs.1,00,000/-. It has also been pointed out by the respondents that the post held by respondent no.4 was a Class III post. Therefore, in view of the Government notification bearing Reference No.13/14/90/SWD1173 dated 7-8-2003 the persons belonging to Class III and Class IV posts do not come under the category of creamy layer. It has also been pointed out by the respondents that the post held by respondent no.4 was a Class III post. Therefore, in view of the Government notification bearing Reference No.13/14/90/SWD1173 dated 7-8-2003 the persons belonging to Class III and Class IV posts do not come under the category of creamy layer. Taking into consideration the notification as well as the actual salary drawn by respondent no.4 at the relevant time, it cannot be said that he was coming under the creamy layer category. Besides the appointment of respondent no.4 to the post fallen vacant by resignation of Kiran Dhargalkar was an appointment from OBC category as per post based roaster. Therefore, no fault could be found with the same. 8. For the reasons given above, we find no merit in the petition. It may be repeated here that there is no dispute that despite her reversion for a short period the petitioner has not suffered any monetary loss. Her position in the seniority list qua respondent no.5 has also been maintained. From the submissions advanced by the petitioner in person, we find that she harbours some misplaced apprehension that her appointment may be challenged by somebody as an appointment not made validly. In our opinion, considering the length of service of the petitioner as also the fact that she has been holding a regular post as APEO there need be no cause for concern for her. Hence the rule is discharged and the petition is dismissed.