:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 421 OF 2010 Shri Kashinath Shetye and 12 Others ... Petitioners V e r s u s Legislature Secretariat of Goa, Through the Speaker and Anr. ... Respondents Mr. R. Menezes, Advocate for the Petitioners. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for the Respondent No.1. CORAM : A. S. OKA & F. M. REIS, JJ. DATED : 20TH JULY, 2010. ORAL ORDER We have heard the learned Counsel appearing for the Petitioners and the learned Senior Counsel appearing for the first Respondent. The Petitioners claim to have filed this Petition in the public interest raising a contention that the post of Secretary ( Legislature) of Goa Legislative Assembly ought to have been filled in strictly and rigorously as per the provisions of the Goa Legislature Secretariat ( Recruitment and Conditions of Service ) Rules, 1988 ( hereinafter referred to as 1988 Rules ). :2: 2. The occasion for filing the present Petition arose on account of extension of service granted to the 2nd Respondent. An order was passed on 29th April, 2010 which records that the Governor of Goa after consultation with the Special Board under sub-rule (1) of Rule 4 of 1988 Rules was pleased to extend the services of the second Respondent who was the Secretary of the Goa Legislature Secretariat beyond the superannuation, for a period of one year w.e.f. 1st May, 2010. The contention in the Petition is that the extension in service has been granted to the second Respondent without recourse to the alternate modes of recruitment provided for in 1988 Rules. 3. The learned Counsel appearing for the Petitioners has fairly invited attention of this Court to the judgment and order dated 14th June, 2010 passed by this Court in Writ Petition No. 438 of 2009 in Petition filed by some of the Petitioners. The learned Counsel appearing for the Petitioners placed reliance on the decision of the Apex Court in the case of Secretary, State of Karnataka and others V/s Umadevi and others ( 2006 STPL (LE) 36604 SC ). He submitted that it is necessary that appointments to the posts must be made in accordance with law by following the modes prescribed in the law. He also placed reliance on another decision of the Apex Court in the case of Sant Ram Sharma V/s State of Rajasthan and Others ( 1967 STPL (LE) 4011 SC ). He submitted that the said decision :3: was followed by the Apex Court in the case of Union of India and Another V/s Central Electrical & Mechanical Engineering Service ( CE & MES ) Group A ( Direct Recruits ) Association, CPWD & Others ( 2007 STPL (LE) 39096 SC ). He submitted that the executive action of filling up any post has to be in conformity with the recruitment Rules. He pointed out the stand taken by the first Respondent on oath and especially in paragraph 23 of the affidavit in reply which records that the Hon'ble Speaker has already initiated steps to fill up the post by resorting to the alternate mode of recruitment by transfer on deputation to the post of Secretary, Goa Legislature Secretariat. He pointed out that there is no case made out in the affidavit that the said alternate mode of recruitment has been exhausted as no eligible candidate was found for appointment by transfer on deputation. He, therefore, submitted that without resorting to alternate mode of recruitment provided for in the recruitment Rules, the extension in service is granted to the second Respondent. The learned Senior Counsel appearing for the first Respondent pointed out that the feeder cadre for promotion to the post of Secretary is the cadre of Joint Secretary. He pointed out that the requirement of Rules is that only a person who holds the post of Joint Secretary for a period of three years in regular service is eligible for consideration for the promotion. He pointed out that two incumbents holding the posts of Joint Secretary have been recently appointed and both of them are not eligible and :4: they will not be eligible in near future. He pointed out that a process has been initiated for appointment by method of transfer on deputation but pending the said process, as no other eligible person is available, the second Respondent has been continued for a further period of one year. He pointed out various averments made in the reply which according to him make out the case for continuing the employment of the second Respondent. 4. We have given careful consideration to the submissions. The legal issue as regards the power of the appointing authority to grant extension of service to superannuated employee without following the recruitment Rules arose in Writ Petition No. 438 of 2009 to which we have already made reference. After considering the law on this aspect, in paragraph 59 of the judgment, the Division Bench of this Court held thus :- “The Government has power to make contractual appointments as well as to extend the services of the persons, who were superannuated from the service of respondent no.1. This is an inherent power. The power is circumscribed and limited by the policy of the State Government as contained in and evidenced inter-alia by the said Office Memoranda dated 1.7.2001, 4.4.2007, 15.1.2008 and 17.8.2009 and any other such directions given or policy decisions that may have been taken/adopted. It is not necessary that this power is exercised only upon :5: exhausting the modes of recruitment stipulated in the recruitment rules. The legality of such appointments and contracts would depend upon the facts of each case. In the present case, the appointments of respondent Nos. 2 to 5 cannot be said to be illegal being contrary to any Statute, Rules or Regulations or instructions. It is, therefore, not possible to issue a writ of quo-warranto. The Office Memoranda established that the extensions have been granted and contracts have been issued in breach and violation of the law and of the policy of the State Government. It is unnecessary, however, to pass any orders directing the State Government to comply with the law as well as the policy of the State Government for that, it is bound to do in any event. Any act contrary thereto, must be challenged independently”. Thus, what has been held by this Court is that the State has inherent power to extend the services of a person, who was superannuated from his employment and it is not necessary that the power of extending the employment of those who are superannuated should be exercised only upon exhausting the modes of recruitment stipulated in the recruitment Rules. This Court held that the legality of such action will depend upon the facts of each case. :6: 5. Now turning to the facts of the present case, under 1988 Rules the appointment of the Secretary is required to be made by the Governor after consultation with the Special Board as defined in 1988 Rules. The Rules provides for filling up the post of Secretary by promotion of an eligible candidates failing which by transfer on deputation. A Joint Secretary ( Legislature ) having three years experience in regular service as a Joint Secretary is eligible to be promoted to the post of Secretary under the Goa Legislature Secretariat. There is an affidavit in reply filed on behalf of first Respondent in which it is stated that one Shri N. B. Subhedar and one Shri Yuvraj Naik have been recently promoted to post of the Joint Secretary. It is stated that the said Shri Yuvraj Naik was holding the post of Joint Secretary w.e.f. 24th September, 2009 on Ad-hoc basis. It is set out that the date on which the vacancy on account of superannuation of the second Respondent was to occur, both the persons holding the posts of Joint Secretary were not eligible for considering them for promotion to the post of Secretary. 6. In paragraph 11 of the reply, it is stated that for the period between 30th June, 2000 to 24th May, 2002, 20th February, 2006 to 29th February, 2008 and 1st March, 2008 to 7th September, 2008, the persons set out therein were appointed on deputation to the post of the Secretary. The last incumbent was appointed on contract basis on 9th September, 2008 for a :7: period of two years. He tendered his resignation on 10th June, 2009. Ever since the second Respondent has been holding the post of Secretary. He is holding the post of Secretary from 11th June, 2009. 7. The nature of the duties of the Secretary has been set out in the affidavit. It is stated that it is a specialised job which is required to be handled by an experienced, competent and capable person. It is set out in the affidavit that on the date the second Respondent was appointed, there was a severe backlog including that of examination of CAG's Reports by the Public Accounts Committee. In the affidavit, the first Respondent has set out the various steps which are required to be taken by the Secretary of the Legislature in that behalf. In paragraph 18 of the affidavit, the experience of the second Respondent has been set out and in paragraph 19, it is stated that the second Respondent has conducted three Assembly Sessions as a Secretary from June, 2009 in a most satisfactory manner. It is stated that the second Respondent has ensured that the backlog of examination of CAG's Reports by the Public Accounts Committee from 2003 onwards is cleared and the Reports for 2003-04, 2004-05 and 2005-06 will be presented to the House very shortly. In paragraph 23 of the affidavit, it is stated thus : :8: “23. I state that aforesaid person occupying the feeder post viz., Shri N. B. Subhedar, even after a period of one year, i.e., after the extension of Shri J.N. Braganza, would still not be eligible to be considered for the post of Secretary as the requirement is three years of regular service in the post of Joint Secretary. The said incumbent would not have been completed the period of probation of two years which is also a statutory period and in this view of the matter, Respondent No.1 through the Hon'ble Speaker, has already initiated steps to fill up the post by resorting to the alternate mode of recruitment by 'transfer on deputation' to the post of Secretary, Goa Legislature Secretariat, and has even written to other State Legislatures requesting them to depute a suitable Officer willing to take up the post of Secretary in the State Assembly Secretariat. The Respondent No.1 has therefore made attempts to exhaust the second mode of recruitment”. Thus, after finding that both the Joint Secretaries are not eligible to be considered for promotion, the steps have been taken to take recourse to the other mode of recruitment by transfer on deputation. The learned Senior Counsel appearing for the first Respondent stated that the said process is not yet concluded. 8. We are satisfied that the date on which the order dated 29th April, 2010 was passed there were no eligible candidates in the feeder cadre :9: who could have been considered for promotion to the post of Secretary of the Goa Legislature Secretariat. The post could not be kept vacant and that is how the order of extension has been passed extending the services of the second Respondent for a period of one year w.e.f. 1st May, 2010. In the circumstances, this is not a case where the challenge to the continuation of the second Respondent can be upheld in a public interest litigation. We, therefore, decline to entertain the Petition and the same is accordingly rejected. A. S. OKA, J F. M. REIS, J at*