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2022 DIGILAW 945 (BOM)

Aslambi Shaikh v. Goa Housing Board

2022-03-31

DIPANKAR DATTA, M.S.SONAK

body2022
JUDGMENT : 1. The Managing Director, Goa Housing Board, (hereafter “the Board”, for short), published an advertisement dated 13.11.2021 inviting applications from eligible candidates, inter alia, for filling up two vacant posts of Accountant by direct recruitment. The said advertisement is the subject matter of challenge in this writ petition dated 17.12.2021 at the instance of the petitioners. 2. The petitioners are holding substantive posts of Upper Division Clerks in the Board. While the petitioner no.1 has been granted ad hoc promotion on the post of Accountant vide order dated 08.09.2015, the petitioner no.2 has been granted similar such promotion by an order dated 27.04.2018. Immediately after the advertisement was issued, the petitioners by separate but identically worded representations dated 18.11.2021 called upon the Managing Director of the Board to regularize their services as Accountant on regular basis upon withdrawal of such advertisement. The prayers of the petitioners for regularization were not accepted by the Board and, in effect, such representations stood rejected in the meeting of the Board held on 20/10/2021. By the same decision which was arrived at in such meeting, it was decided to issue the advertisement for direct recruitment on the two posts of Accountant. Rejection of the said representations by the Board was followed by the impugned advertisement, which appear to be the trigger for institution of this writ petition. 3. The case pleaded in the writ petition in support of the prayers for quashing and/or setting aside of the decision dated 20/10/2021 and the advertisement dated 13.11.2021 as well as the process of recruitment initiated in terms thereof may be noted. 4. In terms of the provisions contained in notification dated 25.12.1966 issued by the Finance Department, Government of Goa, being additions to the Goa, Government Accountants (non-ministerial, non-gazetted) posts Recruitment Rules, 1966 (hereafter the “1966 Rules”, for short), provisions were made for conducting the Initial Recruitment Examination - Training and Final Examination of the Accountants. 4. In terms of the provisions contained in notification dated 25.12.1966 issued by the Finance Department, Government of Goa, being additions to the Goa, Government Accountants (non-ministerial, non-gazetted) posts Recruitment Rules, 1966 (hereafter the “1966 Rules”, for short), provisions were made for conducting the Initial Recruitment Examination - Training and Final Examination of the Accountants. Paragraph 19 under Section III of the notification ordained that any candidate seeking appointment in the cadre of Accountant in any of the departments of the Government, either by promotion or by direct recruitment, would be allowed the maximum of three chances for passing a departmental examination and that without extending opportunity to the petitioners to avail of the opportunity to clear the departmental examination availing the maximum of three chances, the Board has initiated the process for direct recruitment on the vacant posts of Accountant in contravention of the provisions of the Goa Daman and Diu Housing Board Cadre Recruitment of Staff, Functions, Powers and Sphere of Duties of Officers and Other Employees Regulations 1974, as amended from time to time (hereafter “the Recruitment Regulations”, for short). According to the petitioners, the post of Accountant in the Board has to be initially filled up by promotion and direct recruitment in the ratio of 75:25. If eligible candidates are not available for promotion, the promotional posts may be filled up by direct recruitment. If the post of Accountant can neither be filled up by a promotion nor by direct recruitment, such post can be filled up by transfer on deputation. Insofar as promotion to the post of Accountant is concerned, the feeder cadre would be that of the Upper Division Clerks of the Board. However, only those clerks having three years’ service, out of which those having at least two years’ experience as accounts clerk and who has passed the departmental examination for Accountants held by the Directorate of Accounts, would be eligible for consideration. However, only those clerks having three years’ service, out of which those having at least two years’ experience as accounts clerk and who has passed the departmental examination for Accountants held by the Directorate of Accounts, would be eligible for consideration. It is the further case of the petitioners that paragraph 7 under Annexure I of the notification published in the Official Gazette dated 10.10.1983, being the Fourth Amendment Regulations of the Recruitment Regulations, makes it clear that the service conditions of the employees of the Board shall be the same as are applicable to the Government employees and, therefore, the Board was absolutely unjustified in declining the prayers of the petitioners that the posts of Accountant held by them on ad hoc basis should not be filled up by direct recruitment without permitting the petitioners to avail of the maximum three chances. The Board having rejected the prayers of the petitioners without having due regard to the relevant statutory provisions governing promotion to the posts of Accountant, prayers have been made that the impugned decision dated 20.10.2021 and the advertisement dated 13.11.2021 be quashed and/or set aside. 5. Appearing in support of the writ petition, Mr. Sardessai, learned senior advocate has referred to paragraph 7 under Annexure I of the notification published in the Official Gazette dated 10.10.1983, reading as follows: “7. The service conditions of the employees of the Board shall be the same as are applicable to the Government employees of the Union Territory as per the relevant rules/regulations/instructions in force from time to time, subject to the modification that the powers assigned to the Government in these rules/regulations/instructions etc., shall vest with the Board. The Secretary shall exercise the powers of the Head of the Department under these rules. The pay-scales of the posts of the cadre of the Goa, Daman and Diu Housing Board will be those of the Central pay scale applicable to the corresponding posts in the Union Territory of Goa, Daman and Diu from time to time. The various allowances and other remuneration will also be at the same rates admissible to the Government employees of the Union Territory of Goa, Daman and Diu under the relevant rules/instructions in force from time to time.” 6. According to Mr. The various allowances and other remuneration will also be at the same rates admissible to the Government employees of the Union Territory of Goa, Daman and Diu under the relevant rules/instructions in force from time to time.” 6. According to Mr. Sardessai, by reason of the provisions contained in paragraph 7 extracted supra, the petitioners were entitled to the benefit of the notification dated 25.12.1966 ordaining that a candidate would be allowed the maximum of three chances for passing the departmental examination. It is contended by him that although the petitioners had failed to clear the departmental examination at the first attempt and could not also take the departmental examination which was scheduled in late August and early September 2021 owing to unbearable workload and had sought for exemption, their prayer for grant of additional chances was rejected without assigning any reason therefor. It is his further contention that even if the omission on the part of the petitioners to take the examination scheduled in late August and early September 2021 is counted as the second attempt, still the petitioners had one more chance to take the departmental examination which the Board illegally refused. The categorical submission of Mr. Sardessai is that if the State Government employees are given three chances to clear the departmental examination and in view of the existence of a regulation which provides that whatever applies to Government employees would also be applicable to the employees of the Board, a fortiori, the petitioners, it stands to reason that the petitioners are also entitled to three chances to participate in the departmental examination. The Board having not granted three chances to the petitioners and, on the contrary, having issued the advertisement dated 13.11.2021 for direct recruitment to the posts of Accountant, any appointment pursuant to such recruitment process would result in the petitioners being deprived of any further promotion during the balance three/four years of service left prior to their superannuation. To buttress his contention that the Board had been following the notification dated 25.12.1966 and had, in a particular case, even granted five chances to an Accountant, Mr. Sardessai has referred to the document at page 117 of the rejoinder affidavit. Mr. To buttress his contention that the Board had been following the notification dated 25.12.1966 and had, in a particular case, even granted five chances to an Accountant, Mr. Sardessai has referred to the document at page 117 of the rejoinder affidavit. Mr. Sardessai, based on the decision in Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 has contended that the Board has sought to introduce reasons in its reply affidavit which are not to be found in the decision dated 20.12.2021. It has, accordingly, been prayed by him that the process for direct recruitment initiated by the Board be set aside with further direction to the Board to permit the petitioners participate in a further departmental examination and based on the result of such examination, to permit the Board to take further follow up action. 7. Appearing on behalf of the Board, Mr. A.D. Bhobe, learned advocate contends that the Board never adopted the 1966 Rules for Initial Recruitment Examination - Training and Final Examination of the Accountants framed by the Government and that the Board in the matter of recruitment on such posts has all along been guided by the recruitment regulations in terms whereof it is a condition of eligibility for consideration of the candidature of the petitioners for promotion to the post of Accountant that they must have cleared the departmental examination conducted by the Directorate of Accounts. He has also invited our attention to the minutes of the 498th meeting of the Board held on 20.10.2021 in respect of agenda no.17, i.e. “Final examination of Accountant” and contended that bearing in mind the dire necessity of the Board to have regularly appointed Accountants, the Board was left with no other option but to proceed for direct recruitment. 8. The decision taken at the 498th meeting of the Board held on 20.10.2021 in respect of agenda no. 17 is extracted below: “Agenda No.17: Final examination of Accountant. This office has promoted Smt. Asiambi Shaikh, U.D.C. and Ms. Nutan Kale, U.D.C. as Accountant on ad-hoc basis on 16/9/2015 and 27/04/2018 respectively. Promotion to the post of Accountant was made on ad-hoc basis as the Recruitment Rules of the Accountant Stipulate that the promotion on regular basis to the post of Accountant could be done only after passing Accountant Examination conducted by Directorate of Accounts. Nutan Kale, U.D.C. as Accountant on ad-hoc basis on 16/9/2015 and 27/04/2018 respectively. Promotion to the post of Accountant was made on ad-hoc basis as the Recruitment Rules of the Accountant Stipulate that the promotion on regular basis to the post of Accountant could be done only after passing Accountant Examination conducted by Directorate of Accounts. Both the employees have appeared for the examination of Accountants held in month of December 2020 and have been declared failed by the Directorate of Accounts (1st Attempt). The Directorate of Accounts had informed this office regarding schedule of final examination of Accountants of XXXIVth Batch (2nd attempt) and the same was conveyed to the said employees. However both employees had made representation requesting this office to intimate Directorate of Accounts that they will be answering the examination in future as and when it is conducted by the Directorate of Accounts. However, their request was not considered and they were asked to appear for the examination. The result of examination of Accountant held in the month of August 2021 (2nd attempt) has been submitted by the Directorate of Accounts which states that Final result Absent and paper in which exemption is secured NIL. Further the Board apprised that as per Recruitment Rules there are 2 posts of Accountants and 75% of posts have to be filled by promotion and 25% by direct recruitment, failing which by transfer on deputation. As per roster maintained by GHB, both posts have to be filled by direct recruitment. Board after taking into consideration all aspects, decided to fill the two posts of Accountants by direct recruitment by inviting applications from open market. Board decided to allow both incumbents to continue holding posts of Accountants on ad hoc basis till the posts are filled on regular basis by direct recruitment.” (underlining in original) 9. According to Mr. Bhobe, the decision taken by the Board is just, proper, fair and reasonable not deserving judicial interdiction. He, thus, prays for dismissal of the writ petition. 10. We have heard the learned advocates for the parties and perused the materials on record. 11. Certain basic facts are not in dispute. The petitioners 1 and 2, by orders dated 08.09.2015 and 27.04.2018, respectively, issued by the Managing Director of the Board, were promoted to the post of Accountant on ad hoc basis. 10. We have heard the learned advocates for the parties and perused the materials on record. 11. Certain basic facts are not in dispute. The petitioners 1 and 2, by orders dated 08.09.2015 and 27.04.2018, respectively, issued by the Managing Director of the Board, were promoted to the post of Accountant on ad hoc basis. Such orders expressed in clear terms that the appointment would not confer any right for regular promotion and the service so rendered will not account for the purpose of seniority in that grade and for eligibility for promotion to the next higher grade. It is further not in dispute that both the petitioners accepted the appointments on promotion to the post of Accountant on ad hoc basis without any demur. Further, appointment on promotion on ad hoc basis was offered to the petitioners despite the fact that they did not satisfy the eligibility criteria for such appointment on promotion. They had not even written the departmental examination, not to say of passing the same. It is also undisputed that despite being recommended by the Board on two occasions for writing the departmental examination, the petitioners were once unsuccessful and on the other occasion were absent. Yet, the petitioners had prayed for regularization of their services as Accountant once the advertisement dated 13.11.2021 was issued. In such representations, no claim that they were entitled to a third chance was raised. It, therefore, seems to be clear that the petitioners had no intention of writing the departmental examination and that the plea that they are entitled to three chances has been raised for the first time in the writ petition. It is in the light of the above undisputed facts and the contours of the Recruitment Regulations as well as the 1966 Rules that we have to consider their claims. 12. The contention of Mr. Sardessai that the petitioners in terms of paragraph 7 under Annexure-1, introduced in the Recruitment Regulations by way of an amendment with effect from 10.10.1983, were entitled to have the benefit of the notification dated 25.12.1966 (being further rules to the 1966 Rules) providing for three chances to be given for clearing the departmental examination, has no substance at all. Sardessai that the petitioners in terms of paragraph 7 under Annexure-1, introduced in the Recruitment Regulations by way of an amendment with effect from 10.10.1983, were entitled to have the benefit of the notification dated 25.12.1966 (being further rules to the 1966 Rules) providing for three chances to be given for clearing the departmental examination, has no substance at all. Having read the 1966 Rules in its entirety together with the notification dated 25.12.1966, we find that Sections I, II and III thereof provided a completely different scheme for recruitment to the cadre of Accountants in the Government departments on the basis of an initial recruitment examination, followed by training and ultimately by a final examination. Paragraph 1(ii) under Section I of the 1966 Rules provides that the recruitment will be made through the initial recruitment examination for Accountants comprising a written examination, which would be followed by an oral test as indicated in the following paragraphs. Although the 1966 Rules are not too clear, a conjoint reading of all the paragraphs under the different Sections, i.e., I, II and III, would seem to suggest that anyone selected for recruitment and irrespective of he having any previous experience, would be required to undergo theoretical and practical training to be arranged by the Directorate of Accounts before they are allowed to appear for the Final Examination for Accountants in accordance with the provisions contained in Section III of the notification dated 25.12.1966. The text of paragraph 19 under Section III, being the relevant paragraph on which Mr. Sardessai has placed total reliance in support of the relief claimed in the writ petition, if read keeping the context in mind, would unravel something significant. Before we advert to it, it would be appropriate to read paragraph 19 which is as follows: “19. A candidate will be allowed the maximum of three chances for passing the departmental examination. The services of direct recruits who do not pass this examination within the number of chances so allowed will be terminated. The promotees who do not pass the final examination within the number of chances allowed will be reverted to the post they held before.” 13. The services of direct recruits who do not pass this examination within the number of chances so allowed will be terminated. The promotees who do not pass the final examination within the number of chances allowed will be reverted to the post they held before.” 13. A bare reading of paragraph 19 would reveal that a candidate even before passing the departmental examination - he may either be a direct recruit or a promotee - could become an Accountant but in case of his failure to pass the departmental examination within the maximum permissible chances, the same could result in termination of service of the direct recruit or reversion of the promotee to the post held before, as the case may be. If we juxtapose the Recruitment Regulations with the 1966 Rules read with the notification dated 25.12.1966, it would be clear that the former provides a procedure which is completely different from the one contemplated by the latter. While under the 1966 Rules read with the notification dated 25.12.1966 the eligibility criteria for Upper Division Clerks aspiring for promotion as Accountant does not require as a condition of eligibility that they should have passed the departmental examination, the same is provided as a condition of eligibility in terms of the Recruitment Regulations, as amended by the Third Amendment Regulations of 1982, which came into force w.e.f. 19.07.1983. It is, therefore, clear that for the purpose of appointment as an Accountant in the Board, passing of the departmental examination is a condition precedent whereas it is not so for appointment on promotion as an Accountant in any of the departments of the Government. We are, thus, unable to accept the contention of Mr. Sardessai that the petitioners ought to have been given two more chances, if not one more, to take the departmental examination. 14. Reliance placed by Mr. Sardessai on paragraph 7 under Annexure-1 referred to above in the Fourth Amendment Regulations, is also thoroughly misplaced because of another reason. Paragraph 7 was part of the Recruitment Regulations from the inception with the sole exception that it was numbered differently (12) and the designation 'Chairman' was used instead of 'Secretary”. However, the notification dated 10.10.1983 being the Fourth Amendment Regulations did not touch the amendments brought about earlier to the Recruitment Regulations by the Third Amendment Regulations 1982, vide notification dated 25.06.1983 published in the Official Gazette dated 19.07.1983. However, the notification dated 10.10.1983 being the Fourth Amendment Regulations did not touch the amendments brought about earlier to the Recruitment Regulations by the Third Amendment Regulations 1982, vide notification dated 25.06.1983 published in the Official Gazette dated 19.07.1983. Once the field of recruitment on the post of Accountant is governed by the Recruitment Regulations applicable to officers and staff of the Board, the same constitutes the special rules to which any general rule would yield. 15. In our considered opinion, paragraph 7 under Annexure-1 of the Recruitment Regulations could apply to situations where there is a vacuum in the Recruitment Regulations framed by the Board but would be inapplicable to situations which are governed by its Recruitment Regulations. 16. We are further not impressed with the contention of Mr. Sardessai that the minutes of meeting of the Board dated 20.10.2021 having referred to first and second attempts, the Board had proceeded in a manner as if it were guided by the 1966 Rules read with the notification dated 25.12.1966. We are inclined to the view that since the petitioners had been working as Accountants on ad hoc basis for several years, the Board could have regularized their service as Accountants provided they passed the departmental examination. It was only upon discerning that the petitioners had failed to pass the departmental examination despite two chances being given to them and that they had not whispered about taking a further chance to write the departmental examination that the Board decided to proceed for direct recruitment on the basis that there was no eligible departmental candidate for promotion, fulfilling the eligibility criteria. Indeed, the two posts of Accountants in the Board had not been filled up on regular basis for a sufficiently long period of time and we do not see reason to hold the decision of the Board to fill up the said two posts by direct recruitment, upon finding that there are no eligible candidates in the feeder cadre for promotion, to be in any manner illegal or arbitrary. The petitioners did have a right of fair consideration of their candidature for promotion and only upon due consideration thereof, did the Board decide not to entertain their claim. There is no legal infirmity in the decision making process warranting interference. 17. The petitioners did have a right of fair consideration of their candidature for promotion and only upon due consideration thereof, did the Board decide not to entertain their claim. There is no legal infirmity in the decision making process warranting interference. 17. We have further noticed from the schedule to the notification dated 25.06.1983 being the Third Amendment Regulations, 1983 of the Recruitment Regulations that any one aspiring for direct recruitment as Accountant has to be a graduate in Arts with Economics or in Commerce with Advanced Accountancy as a subject or equivalent qualification and must have experience in accounts or in audit for a period of three years. There is an age limit of 30 years but the same is relaxable for departmental candidates. In the same schedule, the educational qualifications required for the post of Upper Division Clerk reads “Intermediate/Senior Cambridge/Higher Secondary Certificate or equivalent qualification”. We had enquired whether the petitioners had the educational qualifications for applying as a direct recruit so that they being departmental candidates the Board could be directed to relax the age limit for them. We did not hear an affirmative answer. In that view of the matter too, the petitioners cannot be regarded as duly qualified for the post of Accountant and their claim for regularization appears to have been negatived not without just reason. 18. Reference to Mohinder Singh Gill (supra) by Mr. Sardessai has also not impressed us. The ratio of the decision applies to cases where orders challenged in proceedings before a Court are sought to be supported by reasons which do not appear therein but are sought to be advanced through affidavits or otherwise. However, the ratio of such decision would not apply in a case of the present nature where, upon consideration of the Recruitment Regulations and the 1966 Rules, it is found that the petitioners are not entitled to claim, as of right, the third chance to pass the departmental examination. However, the ratio of such decision would not apply in a case of the present nature where, upon consideration of the Recruitment Regulations and the 1966 Rules, it is found that the petitioners are not entitled to claim, as of right, the third chance to pass the departmental examination. On the contrary, it being a mandatory condition of eligibility that any Upper Division Clerk of the Board aspiring for promotion to the post of Accountant must have passed the departmental examination held by the Directorate of Accounts, the question of consideration of the candidature of the petitioners for promotion would not arise and no grievance can be heard from their side that they have been illegally deprived of a third or two more chances, as the case may be. Omission of the Board to record in the minutes that the 1966 Rules read with the notification dated 25.12.1966 did not apply to any recruitment process initiated by it or that the 1966 Rules read with such notification had not been adopted by the Board are not fatal to the defence that has been raised by the Board in the minutes of meeting dated 20.10.2021 while it decided to directly recruit candidates on the posts of Accountant and allowed the petitioners to continue as Accountant on ad hoc basis till the posts were filled up on regular basis on direct recruitment. If the petitioners have failed to place materials to persuade the Court to grant relief in their favour, we need not look into the reply affidavit of the Board. The cited decision is thus of no help to the petitioners. 19. There is no merit in the writ petition and, accordingly, the same stands dismissed. 20. The interim order, passed on 23.12.2021, stands vacated forthwith. 21. There shall, however, be no order as to costs.