1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 328/2001 Shri A.M. Ganapatye, aged 54 years, Instructor (workshop) Goa College of Engineering, Farmagudi, Ponda, Goa. ........... Petitioner. Versus 1. The State of Goa, through the Secretary (Education), Secretariat, Panaji, Goa. 2. The Principal, Goa College of Engineering, Farmagudi, Ponda, Goa. 3. Shri Reginaldo Lemos, major, Instructor (Workshop), Goa College of Engineering, Farmagudi, Ponda, Goa. 4. Shri V. A. Kulkarni, major, Instructor (Workshop), Goa College of Engineering, Farmagudi, Ponda, Goa. 5. Shri K. Bhasi, major, Instructor (Workshop), Goa College of Engineering, Farmagudi, Ponda, Goa. ........ Respondents Mr. M. S. Sonak, Advocate for the petitioner. Ms. W. Coutinho, Government Advocate for respondents No.1 and 2. 2 CORAM : R.M.S. KHANDEPARKAR & S.C. DHARMADHIKARI , JJ. Date : 30th July, 2008. ORAL JUDGMENT : (Per S.C. DHARMADHIKARI, J.) By this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus or any other appropriate writ, order or direction commanding respondents No.1 and 2 to finalise the seniority list in the cadre of Instructors (Workshop) on the basis of the date of appointment and not the date of confirmation, thereby placing the petitioner appropriately. More particularly, he should be placed as senior to Respondent Nos.3 to 5. 2. The petitioner prays that the above reliefs be granted after this Court calls for the record and proceedings pertaining to the communications dated 29.9.99 and 8.3.2001. The other prayer of the petitioner is in alternate and that is to strike down the adverse remarks for the years 1973-74, 1974- 75, and 1976-77. 3. Respondent Nos. 3 to 5 are duly served. We are informed that Respondent No.4 has since expired. Petitioner and Respondent Nos. 3 to 5 3 have retired from services. Since the issue involves fixation of Notional Seniority of the Petitioner and Respondent No.3 and 5 being in no way affected by the same, we have proceeded to dispose off this petition. It is common ground before us that if the seniority of the petitioner cannot be linked to the date of confirmation in service, then it is not necessary to enter into any larger controversy or deal with the issue of adverse remarks. 4. The petitioner has approached this Court by pointing out that pursuant to the recommendations of the duly constituted Selection Committee he was appointed as Inspector in Pattern Making at the Goa College of Engineering vide Order dated 5th September, 1968 w.e.f. 12th August, 1968. The petitioner has contended that respondents No.3, 4 and 5 were appointed in the year 1969 and the petitioner being appointed earlier and that too on regular basis, he is senior to these respondents in services. 5. Our attention is invited to a tentative seniority list of Instructors (Workshop) dated 2.2.1979, wherein the petitioner was shown as senior to respondents No.3 to 5. His name appears at serial No.4. As no objections were lodged in regard to this tentative seniority list, a circular was issued on 16.2.1979 declaring that the seniority list of 2.2.1979 stands finalised. 4 6. The petitioner then invited our attention to an order dated 21.2.79 wherein confirmation orders were issued in respect of certain posts, including Instructors (Workshop), a copy of the same is annexed as Exhibit “F” to the petition and it is pointed out to us that the post against which the petitioner was appointed is made permanent on 25th January, 1972 which is prior to the order at Exhibit “F” pertaining to respondents No.3 to 5. Naturally, therefore, the petitioner's name would not figure in the same. It is, thereafter that Adverse remarks were communicated. The case of the petitioner is that the representations/appeals against them are pending. However, by order dated 4.11.1981, Exhibit “K” to the petition, the petitioner was confirmed in the post of Instructor (Workshop). The said order indicates that the post to which the petitioner had been appointed was converted as a permanent post with effect from 25.1.1972. It is in such circumstances that the petitioner invited our attention to the tentative seniority list, Exhibit “N” wherein he is shown at serial No. 3 and respondents No.3 to 5 are shown at serial nos. 4 to 6. However, when the circular dated 6th/13th November, 1986 was issued to finalise the tentative seniority list at Exhibit “N”, the name of respondent No.3 was shown as senior to the petitioner and respondents No.4 to 5 continued to be shown as juniors to him. The petitioner protested vide representation dated 11.12.1986 in so far as placing of respondent No.3 as senior to him and reminders were addressed by him in the year 1987-1988, but there was no response. 5 7. It is then contended that by Circular dated 2.1.1991, yet another tentative seniority list of Inspectors (Workshop) was issued wherein the position of 1986 was maintained. The petitioner protested. Copies of his representations are annexed to the petition. The petitioner's representations were replied by an order dated 26.2.1999 and he was informed that his seniority position is confirmed and no alteration therein is possible. Annexure “B” is a copy of this communication. 8. Aggrieved by this communication, the petitioner approached this Court by instituting Writ Petition No. 148/99. The same was placed before this Court on 1.7.1999 and it was informed to this Court that the petitioner could approach the Appellate Authority and in fact his representations/appeals are pending before the said authority. Accordingly, this Court directed that the competent/Appellate Authority should dispose of the pending appeal within a period of 3 months and in accordance with law. 9. It is, thereafter, that the order dated 29.9.1999, Annexure “X” has been issued to the petitioner. The petitioner states that when he received the order of 29th September, 1999 he immediately forwarded his representation , copy of which is at Exhibit “Y” and followed it with reminders at Exhibits “Z” and “Z-1”. The petitioner also approached the Chief Minister of the 6 State, but he was informed that the appeal to the said Authority is rejected. 10. It is aggrieved by the above communications and more particularly that of 29th September, 1999 that the petitioner has approached this Court invoking its jurisdiction under Article 226 of the Constitution of India, claiming the above reliefs. 11. Mr. Sonak, learned Counsel appearing for the petitioner invited our attention to the Constitution Bench Decision of the Supreme Court in The Direct Recruit Class-II Engineering Officers' Association and ors. vs. State of Maharashtra and ors., reported in AIR 1990 SC 1607, (known as Direct Recruits' case) and contended that the issue of confirmation in services cannot be linked with the seniority. In fact, he submits that such an issue cannot be linked, is an admitted factual position even in this case. He invites our attention to the clarification which is annexed to the affidavit-in-reply at Exhibit “B” i.e. the Office Memorandum dated 24.2.1993, communicating the Decision dated 4.11.1992 taken by the Government of India, Ministry of Personnel, New Delhi. He submits that the decision reached by the Authorities is clear inasmuch as once the issue of seniority cannot be linked with the confirmation in services, and the reference is made by the Government itself to the Supreme Court decision in Direct Recruits' case, 7 then, the orders impugned in this petition cannot be sustained. It is his submission that assuming without admitting, that the petitioner cannot he shown as senior to Respondent No.3, yet, the post to which he was appointed being made permanent with effect from 25.1.1972, then, he is automatically senior to Respondent Nos. 4 and 5. Despite respondent Nos.4 and 5 being appointed to the permanent posts with effect from 1975, they have been erroneously shown as seniors to the petitioner. That ought to have been corrected by the authorities, is the submission. Further, when the State admits that the seniority and confirmation are not interlinked, then, refusing to correct the errors pointed out results in violation of the mandate of Articles 14 and 16 of the Constitution of India. There is nothing in the decision of the Supreme Court which would enable the State to take a stand that the seniority which is already determined according to the earlier decision of the State cannot be reopened. The Supreme Court decision does not lay down this Principle. It lays down the law that there cannot be any linking of this issue and once appointment is made on regular basis against the post, seniority must be computed from the date of such appointment. For all these reasons, he prays that the petition be allowed and the reliefs prayed be granted. 12. Ms. Coutinho, learned Government Advocate appearing on behalf of the State, on the other hand, invites our attention to the affidavit-in-reply 8 and submits that the State Government has clarified in this affidavit that the representation of the petitioner was received. However, the Government of Goa has applied the Government of India Office Memorandum dated 4th November, 1992 directing delinking of seniority from confirmation. This Office Memorandum is not applicable to the petitioner as it was made effective from 4.11.1992. Prior thereto, the petitioner's seniority was finalised in the year 1991. In such circumstances, the issue of seniority could have been linked with the confirmation. Further, there were adverse remarks against the petitioner as well. For all these reasons, the petitioner does not get any benefit of the decision of delinking and, in any event, the issue of his seniority has been properly dealt with and decided. She states that the petition, therefore, be dismissed. 13. With the assistance of the learned Counsel appearing for both sides, we have perused the petition and the annexures thereto. So also the affidavit-in-reply. We have perused the Office Memorandum of 23.2.1993 adopting the stand of the Central Government issued vide Office Memorandum dated 4.11.1992. Once the said O.M. is perused by us and it is apparent that the State has accepted that the seniority cannot be linked to confirmation in services, then, it is clear that the State of Goa cannot urge before us that the petitioner having been confirmed in service, later, his 9 seniority must be determined accordingly. Respondents No.1 and 2 cannot rely upon the fact that the Office Memorandum does not permit reopening of the issue of petitioner's seniority. In that behalf reliance is placed upon clause 4 of the said O.M. Clause 4 of the O.M. states that the orders will take effect from the date of issue of the Office Memorandum and the seniority already determined according to the existing principles on the date of issue of the orders will not be reopened even if in some cases seniority has already been challenged or is in dispute. It will continue to be determined on the basis of the principles already existing prior to the date of issue of the orders. It is an undisputed fact that the petitioner has been repeatedly representing to the authorities to determine his seniority by not linking it with the confirmation. Various representations, copies of which are annexed to the petition, were forwarded and were pending. Merely because in the year 1991, a decision was taken with regard to the petitioner's seniority, does not mean that the dispute is settled. That apart, when the O.M. of the Government of India refers to the decision of the Supreme Court in Direct Recruits' case and that decision not permitting adopting of a stand as taken and enunciated in clause 4 of the O.M. dated 4.11.1992, then, in our view, it is no longer open to the respondents to contend that the issue of confirmation in service and seniority are interlinked. 10 14. The petitioner has fairly pointed out to us that the order dated 29.9.1999 refers to the petitioner's appointment on regular basis on 12.8.1968 in temporary capacity. Two posts of Workshop Instructors were made permanent on 25.1.1972. The petitioner cannot claim to be senior to persons who have been appointed to the posts which are made permanent prior to that date. Four posts of Work Instructors were made permanent vide order dated 18.12.1975. Against those 4 posts, Shri Reginaldo Lemos, Shri V.A. Kulkarni, Shri K. Bhasi and Shri J.M. D'Souza were confirmed vide Order dated 2.2.1979. The petitioner's name did not figure for confirmation against the vacancy in the year 1975, as there was an adverse entry against him, as is set out in the impugned communication. However, the impugned communication relies upon the Notification dated 6.3.1969, linking confirmation with seniority. That issue having been already decided by us, in our view, the petitioner cannot be denied the status as prayed by him and must be shown senior to the persons whose posts have been made permanent in the year 1975. Admittedly, the petitioner has been appointed to a post which has been made regular on 25.1.1972. In such circumstances, the petitioner should have been placed in the seniority list above those whose posts were made permanent in the year 1975. This would be the logical consequence after delinking of the issue of seniority with that of confirmation. Once the O.M. relied upon by the State Government does not 11 make any distinction as sought to be made by the State of Goa, so also the decision of the Supreme Court being clear, we are of the view that the order dated 29.9.99 cannot be sustained. The petitioner must, therefore, be placed above respondents No.3 to 5 in the seniority list and although he has retired from the services, he must be granted the benefit of such placement, including monetary benefits, if any, by the Respondents. 15. The petition was filed by the petitioner, when he was in service. He having retired, the relief is modified accordingly. We direct that the petitioner's seniority will be notionally fixed in the list of cadre of Instructors (Workshop) on the basis that his appointment is made against a permanent post with effect from 25.1.1972. All consequential benefits must, therefore, follow. The petition is allowed in the above terms. Rule is made absolute accordingly. In the circumstances, however, there shall be no order as to costs. The Respondents are granted 3 months' time to comply with the above orders and directions. R.M.S. KHANDEPARKAR, J. S.C. DHARMADHIKARI, J. ssm.