-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 627 OF 2003 Mr. Ramesh S. Shirodkar, Head Master, Government High School,. Gaondongari, Canacona, Goa. ...... Petitioner V e r s u s 1. State of Goa, Through its Chief Secretary, Secretariat, Panaji, Goa. 2. The Director of Education, Government of Goa, Directorate of Education, Panaji, Goa. 3. Mr. Santosh Amonkar, Deputy Director, State Institute of Education, Porvorim, Goa. 4. Mr. R. W. Dande, Principal, Dr. T. B. Cunha Higher Secondary School, Panaji, Goa. 5. Mr. S. S. Rane, Principal, Govt. Higher Secondary Schoo, Baina, Vasco da Gama, Goa. 6. Mr. J. A. Redkar, Dy. Education Officer, Central Educational Zone, Panaji, Goa. 7. Mr. B. G. Naik, Principal, Govt. Higher Secondary School, Khandola, Marcela, Ponda, Goa. 8. Mr. R. A. Naik, -2- Jt. Secretary, Goa Board of Secondary and Higher Secondary Education, Porvorim, Goa. 9. Mr. H. S. Patil, Principal, Govt. Higher Secondary School, Pernem, Goa. 10. Mr. M. L. Patil, Principal, Govt. Higher Secondary School, Borda, Margao, Goa. 11. Mr. Shivanand Talkar, Principal, Govt. Higher Secondary School, Sanqualim-Goa. 12. Mrs. Vijaya Borkar, Principal, Govt. Higher Secondary School, Valpoi, Goa. 13. Mr. Gananan Bhatt, Dy. Education Officer, North Educational Zone, Mapusa, Goa. 14. Mr. Thomas Mathew, Environmental Education Officer, Directorate of Education, Panaji, Goa. 15. Miss Maria Rose Grace D' Souza, Vocational Education Officer, Directorate of Education, Panaji, Goa. 16. Mr. Shailendra Virdikar, Vocational Education Officer, Goa Board of Secondary and Higher Secondary Education, Porvorim, Goa. 17. Mr. L. G. Phadte, Dy. Education Officer, -3- North Educational Zone, Mapusa, Goa. (Registered Addresses) ...... Respondents Petitioner present in person. Ms. Winnie Coutinho, Government Advocate for the Respondent No.1 and 2. CORAM: A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 10 th October, 2008. ORAL JUDGMENT (Per A. P. DESHPANDE, J.) This petition is filed by the petitioner while being in service of the Government of Goa and while holding the post of Head Master, which post, is borne on General Service Group A Gazetted, seeking a relief of quashing of the promotions granted to the respondent nos. 3 to 17 to the post of Principal of Government Higher Secondary Schools (XIth and XIIth standard or its equivalent). The petitioner was initially appointed as a Teacher, Grade I w.e.f. 15.09.1978. The petitioner had put in satisfactory service and thus was granted promotion to the post of Head Master on adhoc basis vide Order of Promotion dated 20.06.1991. The petitioner was served adverse CRs for the year 1991-92, 1992-93 and 1993-94. Against the adverse CRs communicated to the petitioner, he had made representations. The representations made by the petitioner were rejected by the Competent Authority viz. the Director of Education and, as such, the adverse CRs were capable of being acted upon. However, the petitioner was granted regularization and confirmation in the -4- post of Head Master by an Order dated 17.11.1997 on recommendations of the Public Service Commission. It is thus clear that the petitioner had shown improvement after he was served with adverse CRs during the aforesaid years and hence was granted regularization/confirmation on 17.11.1997. The next promotional post in the hierarchy of Education Department is the post of Principal in the Government Higher Secondary Schools. The petitioner was aspiring for the said promotion as he was very much eligible and qualified for being promoted to the said post. In the year 2002, it was realized by the Government that though many posts were lying vacant in the cadre of Principals in the Government Higher Secondary Schools, no eligible Officers were available. In view of the fact that one of the conditions of eligibility for appointment to the post of Principal in Government Higher Secondary Schools, was to possess an experience of eight years after regulatization in the feeder cadre i.e. the post of Head Master of Secondary Schools, a policy decision was reached by the State to relax the requirement of the Rule and to count the period of adhoc service together with regular service in the feeder cadre for determining the eligibility of experience. In tune with the said decision, cases of the candidates were considered and six Head Masters came to be promoted in the year 2002 to the next higher post of Principals in Government Higher Secondary Schools on adhoc basis. The petitioner's name was at serial no.3 in the seniority list of candidates, however, the petitioner was not considered for grant of promotion only for the reason that there were adverse CRs against the petitioner for the year 1991-92, 1992-93 and 1993-94. Thus, when promotions were made on 30.01.2002, the -5- petitioner though otherwise eligible and qualified, was not considered for promotion on the ground that he was unfit for being so promoted on account of the adverse CRs. referred to hereinabove. Yet, again in the year 2003, when the Government considered the cases for grant of promotion, the petitioner was left out. In the list of candidates for grant of promotions in the year 2003, the petitioner was at serial no.1. The Committee which considered the question of grant of promotion was headed by the Under Secretary, School Education. Perusal of the notes prepared by the Committee headed by the Under Secretary dated 31.01.03, reveals thus : “These two Officers (The petitioner and one Shri M. L. Patil), were not considered for adhoc promotion in the previous occasion and in the earlier proposal was moved. Extract of the note is placed at page 118/c and based on which 6 Officers were granted adhoc promotions vide order No.14/39/93-EDN-Part/6351 dated 30.01.2002 placed at page 139/c. The main reason for their non-consideration was that 1) Shri M. L. Patil, Headmaster though was fulfilling the required qualification was falling short of criteria of experience and (2) Shri Ramesh Shirodkar, Headmaster, was though fulfilling the required qualification i.e. IInd Class Master's Degree in Philosophy and Degree in Education and has been fulfilling the criteria of service experience considering the period of his adhoc and regular service but due to adverse remarks as 'NOT FIT' entered in the Annual Confidential Reports/Dossiers (refer portion marked as 'Y' read with 'X' thereto on page 63-B/c zerox copy -6- of the extract placed at page 141/c and 144-146/c. Under the present proposition also his case appears to be not likely to get favourable consideration.” By making the above extracted remarks, the petitioner's case was not considered for the grant of promotion by holding him to be not fit on account of adverse CRs for years 1991-92, 1992-93 and 1993-94. 2. The petitioner, who is appearing in person, has contended that though the promotions granted to the candidates are termed as adhoc, the same are based on considerations on merit, suitability, experience and eligibility. The said promotions are later on regularised. The promotions granted to the candidates in the year 2002 and 2003, though termed as adhoc, were in fact regular and the petitioner's claim to the promotional post, ought to have been considered. Touching the merit of the decision, it is submitted that stale adverse CRs recorded even prior to grant of regularization in the feeder cadre cannot form a basis for refusing to consider the petitioner's claim for the promotional post. 3. The learned Government Advocate, on the other hand, has placed on record an affidavit in reply on behalf of respondent nos. 1 and 2 today in the Court together with accompanying documents. Perusal of the relevant documents clearly reveal that the petitioner was served with adverse CRs and the petitioner had made representation to the competent Authority for expunging the CRs communicated by the Reporting Authority. The -7- competent Authority has directed the adverse remarks to be maintained in the service records. What is relevant to note is that the petitioner has been conferred with the status of regular promotee in the year 1997. The effect of granting regularization to the petitioner in the year 1997 would be that the adverse CRs prior thereto would be taken to be erased and could not have been taken into account for refusing promotion to the Petitioner in the year 2003. 4. In the year 2003, yet again, the petitioner has been rejected on the same ground of adverse CRs for the year 1991-92, 1992-93 and 1993-94. The short question that arises for consideration is as to whether the respondent is justified in refusing to consider the petitioner for grant of promotion in the year 2003 on the ground that adverse CRs exists in the Dossiers of the petitioner for the year 1991-92, 1992-93 and 1993-94. The petitioner has placed on record extract of the guidelines to be followed by the Departmental Promotion Committee, which deals with confidential reports. 5. Clause 6.2 provides thus : “6.2. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence- a) ... b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for 5 -8- preceding years. However, in cases where the required qualifying service is more than 5 years, the DPC should see the record with particular reference to the CRs for the years equal to the required qualifying service. (If more than one CR has been written for a particular year, all the CRs for the relevant year shall be considered together as the CR for one year). 6. Thus, ordinarily, CRs of preceding 5 years are to be considered. However, in cases where the required qualifying service is more than five years, DPC should consider the CRs for the number of years of qualifying service. Thus, at the most, past service for the purpose of promotion to the post of Principal of Government Higher Secondary School could be considered for total period of 8 years. It is relevant to note that in the present case, the DPC had not met and promotions though granted and termed as adhoc, the exercise was carried out by considering the relevant criteria of eligibility and, in the process, the petitioner's claim was not considered on the ground that the petitioner had adverse CRs for the above referred period. Thus, the learned Government Advocate contends that non-consideration of the petitioner's claim while granting promotion to the candidates pursuant to the Order dated 30.01.02 cannot be faulted as by then, preceding 8 years had not lapsed from the date of the last adverse CR. However, it is not in dispute that when promotions were granted to nine Officers on the basis of Order of Promotion dated 12.03.03, the case of the petitioner was illegally not considered and the petitioner was rejected from consideration solely on the -9- ground of adverse CRs for the years 1991-92, 1992-93, 1993-94. There is hardly any justification for rejecting the claim of the petitioner and/or for refusing to consider the petitioner's claim for grant of promotion to the post of Principal of Government Higher Secondary School when cases of other similarly situated Junior Officers were considered and they were granted promotion, viz. Respondent nos. 9 to 17. The petitioner was at serial no.1 in the Seniority list and all the nine candidates who were granted promotion, who are respondent nos. 9 to 17, were all Junior to the petitioner. As we have already concluded that the claim of the petitioner could not have been refused to be considered on the ground of adverse CRs for the year 1991-92, 1992-93 and 1993-94, when the promotions were made in the year 2003, it has to be held that the petitioner was discriminated against for no just and valid reason. Even when the DPC makes regular promotions, the DPC cannot consider the CRs for more than eight preceding years and, thus, while making adhoc promotions, no CR for a period beyond preceding eight years could have been taken into consideration. It is reiterated at the risk of repetition that though the promotions granted to the respondent nos. 9 to 17 are termed as adhoc, the same were after considering individual cases on their own merit and in accordance with seniority and having regard to eligibility. The adhoc promotions came to be regularised subsequently. The record clearly reveals that the petitioner was not considered for promotion as he was found to be not eligible on account of adverse CRs. If this be the reason for non-consideration of the petitioner's claim then the action is illegal and unsustainable. We have no iota of doubt that the petitioner's right contained in Article 14 and 16 of the -10- Constitution of India has been breached and violated. Candidates Junior to the petitioner have been promoted and they have superceded the Petitioner for promotion to the post of Principal of Government Higher Secondary School. 7. In the result, the petition must partly succeed. Respondent nos. 9 to 17 were granted promotion to the post of Principal of Government Higher Secondary School by an Order dated 12.03.03. The petitioner has already retired from service. Refusing the relief for quashing the promotion of the Respondents, we direct the State Government to grant deem date of promotion to the petitioner with effect from the date on which the petitioner's Juniors were promoted i.e. w.e.f. 12.03.2003. We also direct the respondent to treat the petitioner as having been promoted to the post of Principal of Government Higher Secondary School notionally w.e.f. 12.03.03 and pay the petitioner all monetary benefits admissible to the promotional post after adjusting the amount that has been paid to the petitioner till his retirement. The petitioner shall also be entitled to the pensionary benefits/difference in the terminal benefits. Rule made absolute in above terms with no Orders as to cost. We hope and trust that respondent would release the monetary dues as expeditiously as possible. A. P. DESHPANDE, J. N. A. BRITTO, J. arp/*