1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 118 OF 2002 1. Shri Ganpat R. Palni, Major, resident of House No.1282, Janki Nivas, Palni Vaddo, Tivim, Bardez Goa. 2. Dnyneshwar Mandrekar, Raim, Sonarbhat, Siolim, Bardez Goa. ... Petitioners V e r s u s 1. State of Goa, through Chief Secretary, Secretariat, Panaji Goa. 2. Speaker, Goa Legislative Assembly, Assembly Complex, Porvorim Goa. 3. Deputy Speaker, Goa Legislative Assembly, Assembly Complex, Porvorim Goa. 4. Secretary, Goa Legislature Secretariat, Assembly Complex, Porvorim Goa. 5. Yuvraj Naik, Major, C/o Goa Legislature Secretariat, New Assembly Complex, Porvorim, Bardez Goa. 2 6. Blandina D'Sa, Major, C/o Goa Legislature Secretariat, New Assembly Complex, Porvorim, Bardez Goa. ... Respondents Mr. V. A. Lawande, Advocate for the Petitioners. Mr. S. Vahidulla, Government Advocate for Respondent No.1. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for Respondent Nos. 2 to 4. Mr. M. Sonak with Mr. J. Supekar, Advocates for Respondent Nos. 5 and 6. CORAM : A. S. OKA & F. M. REIS, JJ. DATE ON WHICH SUBMISSIONS ARE HEARD : 28th JUNE, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 29th JULY, 2010. JUDGMENT ( Per A. S. OKA, J ) By this Writ Petition under Article 226 of the Constitution of India, the Petitioners have challenged the order dated 20th August, 2001 issued by the Goa Legislature Secretariat by which the 5th and 6th Respondents have been appointed to the post of Section Officers. The prayer is for quashing the said order. The second prayer is for a Writ of mandamus enjoining the 3 concerned Respondents to fill up the vacancies to the post of Section Officer in accordance with Goa Legislature Secretariat ( Recruitment and Conditions of Service ) Rules, 1988 ( hereinafter referred to as the said Rules ). The third prayer is for a Writ of mandamus directing the concerned Respondents to maintain the seniority rating of the Petitioners over and above that of the 5th and 6th Respondents. The said prayer has been made by way of amendment on the basis of the subsequent events during the pendency of this Writ Petition. 2. The first Petitioner was appointed as a Lower Division Clerk in the Goa Legislature Department with effect from 23rd December, 1987. He was promoted to the post of Upper Division Clerk by order dated 3rd May, 1993 on Ad-hoc basis and his promotion was regularised on 8th July, 1994. The second Petitioner was appointed as a Lower Division Clerk in the Goa Legislature Department by order dated 2nd September, 1982. The second Petitioner was promoted to the post of Upper Division Clerk by order dated 1st June, 1989 on temporary basis. The Petitioner No.2 was promoted as Assistant on Ad-hoc basis by order dated 3rd May, 1993. 3. By order dated 8th March, 1995, the posts of Lower Division Clerk and Upper Division Clerk in the Goa Legislature Secretariat were 4 revised as Junior Assistant and Assistant respectively. On the same day, the existing posts of Assistant and Superintendent were designated as Senior Assistant and Section Officer respectively. The Petitioner No.1 was granted promotion on Ad-hoc basis to the post of Senior Assistant on 14th January, 1998 and he was regularised on the said post by order dated 28th August, 2000. 4. In the said Rules, the Board is defined to mean a Board consisting of Speaker and Deputy Speaker. The posts of Lower Division Clerk, Upper Division Clerk, Assistant and Superintendent are group 'C' posts. Under the said Rules, the Board is competent to make appointment to group 'C' posts. The Petitioners have relied upon the said Rules which provide that the post of Superintendent ( redesignated as Section Officer ) shall be filled in by promotion, failing which by transfer, failing both by direct recruitment. For filling the post by promotion, the feeder cadre is of Senior Assistant having at least three years service in the grade. 5. The 5th and 6th Respondents were holding the posts of Translators in the Goa Legislature Secretariat. On 20th August, 2001, two orders were issued by the Goa Legislature Secretariat under the signature of Under Secretary, Legislature. The first order states that in pursuance of Rule 4(iii) of 5 the said Rules, sanction of the Board was conveyed for the promotion of 5th and 6th Respondents ( Translators ) as Section Officers on Ad-hoc basis in the pay scale of Rs.5500-175-9000 until further orders. Another order of the same date records the sanction of the Board under the said Rules for operating the existing two posts of Translators in the Goa Legislature Secretariat as Section Officers. According to the case of the Petitioners, the pay scale of the post of Translators is Rs.4500-125-7000 which is the pay scale of the post of Senior Assistant. As stated earlier, the challenge is to the said two orders. In the Petition, the challenge is on the ground that the feeder cadre for promotion to the post of Section Officer is of Senior Assistant and, therefore, the 5th and 6th Respondents who were Translators were not eligible to be promoted as Section Officers. Therefore, the appointment of the 5th and 6th Respondents on Ad-hoc basis is contrary to the said Rules. It is contended that the post of Section Officer could have been filled in only by promotion as provided in the said Rules. Reply was filed by the 1st to 4th Respondents. It is stated that the 5th and 6th Respondents were appointed as Translators vide order dated 2nd May, 1988 and 4th August, 1989 respectively in the Goa Legislature Secretariat. It is stated that the Translators in the Goa Legislature Secretariat do not have any promotional channel to the post of Section Officer and in fact there were no promotional avenues to the post of Translator. It is pointed out that the first 6 Petitioner was promoted to the post of Senior Assistant on Ad-hoc basis by an order dated 14th January, 1998 and, thereafter, by an order dated 28th August, 2000 he was regularised in the post of Senior Assistant. Similarly, the second Petitioner was promoted to the post of Senior Assistant on Ad-hoc basis on 3rd May, 1993 and on 8th July, 1994 he was regularised to the post of Senior Assistant. It is stated in the reply that the pay scale of Translator was Rs.4500-7500 under 5th Pay Commission. It is stated that as the post of Translator in Goa Legislature Secretariat was having no promotional avenues, the Board took a decision to operate the two posts of Translators as Section Officers for lateral induction to an existing service keeping in view the long years of service which the 5th and 6th Respondents had put in and their qualifications which were higher than the qualifications possessed by those who were holding the posts of Senior Assistant. It is stated that the two posts of Translators were upgraded to Section Officers. It is stated that as on 20th August, 2001 there were no vacancies to the post of Section Officers. It is stated that the 5th and 6th Respondents were not considered for any vacancy of the Section Officers but the posts held by them were upgraded as Section Officers. It is contended that the exercise of rationalization and reorganization of staff is purely an administrative matter, the power of which lies with the Speaker of the Goa Legislative Assembly. It is pointed out in the reply that 7 vide order dated 17th February, 2005, both the Petitioners were promoted as Section Officers on Ad-hoc basis and subsequently, by an order dated 20th June, 2008, both the Petitioners have been promoted to the post of Section Officers on regular basis. 6. A rejoinder was filed by the Petitioners contending that two posts of Section Officers were created which amounted to creation of new posts which cannot be done without the concurrence of the Finance Department and the Administration Department of the State of Goa in view of the Rules of business of the Government of Goa, 1991 ( hereinafter referred to as the said Rules of 1991 ). It is pointed out that the stand taken by the 1st to 4th Respondents was contrary to the stand taken by the Goa Legislature Secretariat in Writ Petition Nos. 68 of 2001 and 72 of 2001 filed by the 5th and 6th Respondents. There is an additional affidavit filed by the 2nd to 4th Respondents in which it is stated that the upgradation of the posts of two Translators to Section Officers did not involve any financial liability since the 5th and 6th Respondents had already crossed the base figure of Rs.5,500/- which is the initial stage in the pay scale of the Section Officer. It is pointed out that though in the affidavit in reply, it is stated that the 5th and 6th Respondents have been promoted on regular basis to the post of Section Officers by an order 8 dated 20th June, 2008, the said order has not been challenged by the Petitioners. It was contended that the 5th Respondent was promoted to the post of Under Secretary in December, 2006 and Joint Secretary on 24th September, 2009 and the said appointments have not been challenged by the Petitioners. The Petitioners have filed an additional affidavit contending that there were vacancies caused in the post of Section Officer in August, 2001 and January, 2002. There is an additional affidavit thereafter filed by the 2nd to 4th Respondents. 7. The learned Counsel appearing for the Petitioners submitted that the first Respondent created two new posts of Section Officers on 20th August, 2001 without following the said Rules of 1991. He submitted that for creation of new posts previous concurrence of the Finance Department was required. He submitted that admittedly there is no concurrence of the Finance Ministry placed on record in this Writ Petition. He pointed out that the 5th & 6th Respondents herein had filed a Writ Petition in the year 2001 for seeking a Writ of mandamus to fix their pay scale in Rs.5500-9000. He submitted that the said Writ Petition was rejected by this Court by judgment and order dated 3rd April, 2006. He submitted that this Court held that the 5th and 6th Respondents were not entitled to the said pay scale. He submitted that what 9 was denied by this Court to the 5th and 6th Respondents has been granted under orders dated 20th August, 2001. He submitted that what has been done by the first Respondent is creation of two new posts of the Section Officers which is contrary to the said Rules of 1991. He invited our attention to the findings recorded by this Court in the earlier Writ Petition filed by the 5th and 6th Respondents. He pointed out that by an additional affidavit dated 16th November, 2009, it is pointed out that two vacancies were created in August, 2001 and January, 2002 to the post of Section Officer by virtue of promotion to one Mr. A.M. Amonkar and voluntary retirement of one Shri Jimmy Fernandes. He pointed out that by order dated 14th January, 1998 the Petitioner No.1 was promoted as Senior Assistant on Ad-hoc basis. He pointed out that the second Petitioner was promoted as Assistant on 3rd May, 1993 which post was upgraded by order dated 8th March, 1995 as Senior Assistant. He submitted that when the vacancy to the post of Section Officer arose in the year 2000 and 2001, both the Petitioners had held the post of Senior Assistants which are the posts of feeder cadre for a period of more than three years. 8. The learned Senior Counsel appearing for the 1st to 4th Respondents submitted that what has been granted to the 5th and 6th Respondents is not the promotion but considering the fact that there were no 10 promotional avenues to the post of Translator, the two posts held by the said Respondents were upgraded to the post of Section Officers. He submitted that on 20th August, 2001 the 5th and 6th Respondents were holding higher qualifications than the Petitioners and other two persons holding the posts of Senior Assistant. He reiterated that the 5th and 6th Respondents were not considered for any vacant posts of Section Officer but the posts held by them were upgraded. He has placed reliance on various decisions of the Apex Court. He submitted that upgradation of the posts involved no additional financial liability. He submitted that the Board constituted under the said Rules was competent to upgrade the posts. He submitted that the clause 2 of the Article 187 of the Constitution of India provides that a Legislature of the State is empowered to regulate by a law recruitment and the conditions of service of persons appointed to the Secretarial staff of the Legislature. He pointed out that clause 3 of Article 187 of the Constitution of India provides that until the Legislation is made under clause 2, the Governor was empowered to frame rules and to regulate the recruitment and conditions of service of persons appointed to the secretarial staff of the Legislative Assembly. He submitted that the Legislation referred to in clause 2 and Rules referred to in clause 3 relate only to the Recruitment and Conditions of Service of the staff. The Speaker of the Legislative Assembly has a right to create a post in the 11 secretariat of the Legislature. He submitted that the 5th and 6th Respondents have been appointed on regular basis on 20th June, 2008 and the said order has not been challenged by the Petitioners. He submitted that even the subsequent promotions granted to the 5th and 6th Respondents have not been challenged by the Petitioners. The learned Counsel appearing for the 5th and 6th Respondents also relied upon certain decisions and submitted that no interference is called for. 9. The learned Counsel appearing for the Petitioners relied upon a decision of Division Bench of this Court in the case of Madhukar Pandurang Gadade V/s State of Maharashtra & others ( 2009(4) ALL MR 160 ). He submitted that once orders impugned in this Writ Petition are quashed, all orders passed subsequently on the basis of the said orders will have to be nullified and status quo as existing on the date on which the impugned orders were passed will have to be restored. He submitted that the first to fourth Respondents have not established that two posts of Section Officers were lawfully created. He submitted that the date on which the 5th and 6th Respondents were appointed to the post of Section Officers, the Petitioners were eligible to be considered for the said posts. He submitted that what was not granted to the 5th and 6th Respondents in their Writ Petition has been 12 granted by the 1st to 4th Respondents by back door method. He submitted that creation of two posts of Section Officers involved financial liability and concurrence of Finance Department was mandatory which is admittedly not taken. 10. We have given careful consideration to the submissions. The impugned order dated 20th August, 2001 reads thus :- “Sanction of the “Board” under the Goa Legislature Secretariat ( Recruitment and conditions of Service ) Rules, 1988 is hereby conveyed for operating the existing two posts of Translators ( Group 'C') in Goa Legislature Secretariat as Section Officers ( Group 'C') in the pay scale of Rs.5500-175-9000, until further orders”. Thus, the order provides that the existing two posts of Translators in Group 'C' in Goa Legislature Secretariat will be operating as Section Officers. In the affidavit in reply dated 12th August, 2008 filed by Ms. Legia Godinho, Under Secretary of the Goa Legislature Secretariat, it is stated that the Translators in the Goa Legislature Secretariat did not have any promotional channel to the post of Section Officers and there were no promotional avenues open to the persons holding the post of Translator in the Goa Legislature Secretariat. In paragraph 8 of the said affidavit, it is stated thus : 13 “I state that the post of Translator in the Goa Legislature Secretariat is an isolated post having no promotional avenues. I state that in order to provide promotional avenues to the persons holding the post of Translators, the Board upgraded the two posts of Translators to Section Officers. I state that under Rule 4(3) of the Goa Legislature Secretariat ( Recruitment and Conditions of Service ) Rules, 1988, the Board is the Appointing Authority for Group 'C' posts. I state that the decision to operate two posts of Translators as Section Officers was taken by the Board for lateral induction to an existing service keeping in view the long years of service the two incumbents have put in and their qualifications which are higher than the qualifications of those on the Roll of Senior Assistant. I state that the following Senior Assistants were on the Roll of the Secretariat : a. Shri S. A. S. Verekar SSC 12 years as Sr. Assistant. b. Shri D. Y. Mandrekar SSC 8 years as Sr. Assistant. c. Shri Ganapat Palni SSC 3 years as Sr. Assistant. d. Shri Hemchandra Talkar HSSC 2 years as Sr. Assistant.” In paragraph 9, it is stated in the affidavit that “ I state that the two Translators were not considered for any vacancy of Section Officer but the posts of Translator held by them were upgraded as Section Officers and the 14 Respondent Nos. 5 and 6 herein upgraded posts of Section Officers”. It is stated in the additional affidavit that upgradation of two posts of Translators as Section Officers involved no additional financial liability except the pay fixation of the Translators. In additional affidavit, it is stated that the pay scale of the Translator under 5th Pay Commission was Rs.4500-7500. It is stated that the 5th Respondent on 20th August, 2001 had reached the basic pay of Rs.6500/- and the 6th Respondent had reached the pay scale of Rs. 6250/-. It is stated that the said Respondents were given benefit of Time Bound Promotional Scale ( TBPS) upon completion of 12 years service in the grade of Translators and TBPS was higher than that of the Translators. 11. Thus, the stand taken by the first to fourth Respondents is that what has been done is upgradation of two posts held by 5th and 6th Respondents to the post of Section Officers. 12. Reliance was placed on the decision of the Apex Court in the case of Union of India V/s Pushpa Rani and others ( 2008(9) SCC 242). In paragraph 35 of the said decision, the Apex Court observed that upgradation of posts involves placing of existing incumbents in the higher grade without subjecting them to the rigour of selection. In paragraph 26 of the said 15 decision, the Apex Court quoted with the approval of the decision of Full Bench of the Kerala High Court in which it was held that upgradation cannot be called as a promotion as there is no question of appointment from one post to another. Reliance was placed by the learned Senior Counsel appearing for the second to fourth Respondents as well as the learned Counsel appearing for the 5th and 6th Respondents on the decision of the Apex Court in the case of Dr. N. C. Singhal V/s Union of India and others {(1980) 3 SCC 29}. In paragraph 18 of the said decision, the Apex Court held that creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration. The Apex Court held that the creation or abolition of posts is dictated by policy decision, exigencies of circumstances and administrative necessity. 13. It appears that the 5th Respondent was working as Translator from 17th May, 1988 and the 6th Respondent was working as Translator from 4th August, 1989. The stand taken on oath which is supported by the said Rules is that the post of Translator had no promotional avenues. It is stated on oath that as on 20th August, 2001 both the 5th and 6th Respondents had reached the basic pay of Rs.6250/- and above as they were granted TBPS which was a scale higher than the pay scale of the post of Translator. Thus the operation of 16 the posts held by the 5th and 6th Respondents as Section Officers did not involve financial implications. What has been done is that the two posts held by the 5th and 6th Respondents have been upgraded and operated as the posts of Section Officers. Therefore, clause (c ) of sub-rule (1) of Rule 7 of the said Rules of 1991 which applies to cases of creation or abolition of posts will have no application. Hence, concurrence of Finance Department was not necessary. 14. Coming back to the averments made in the Petition, it is stated that the first Petitioner was promoted as Senior Assistant on Ad-hoc basis on 14th January, 1998 and his regular promotion to the said post was made on 28th August, 2000. Therefore, assuming that on 20th August, 2001 there was a vacancy, the first Petitioner was not eligible for consideration to the post of Section Officer as he had not completed the period of three years after his regular appointment in the said post. By filing further affidavit, the Petitioners have contended that on 20th August, 2001 there was one vacancy to the post of Section Officer as one Mr. A. M. Amonkar was promoted from the post of Section Officer to the post of Under Secretary. It must be noted here that the order of promotion of Mr. Amonkar was passed on 20th August, 2001 by giving effect to the said order from 17th August, 2001. Even according to the Petitioners, subsequent vacancy arose in January, 2002. It must be noted 17 here that posts held by the 5th and 6th Respondents were upgraded on 20th August, 2001. Therefore, the submission that two posts of Section Officers were vacant on 20th August, 2001 and that the 5th and 6th Respondents were given promotion to the post of Section Officers cannot be accepted. It must be noted here that earlier two Writ Petitions were filed by the 5th and 6th Respondents for grant of pay scale of Rs.5500-9000. It was held by this Court while rejecting the said Petitions that earlier the Petitioners therein were wrongly placed in the pay scale of Rs.1640-2900. The controversy which arose in the said Petitions was only as regards the fixing of pay scale which does not affect the controversy in the present Petition. The learned Counsel appearing for the Petitioners relied upon the decision of the Apex Court in the case of H. R. Ramachandraiah and another V/s State of Karnataka and others {(1997) 3 SCC 639 } in support of his contention that the transposition of an equivalent post as feeder post was not permissible unless recruitment Rules were amended. In the present case, there is no transposition of the post of Translator as a feeder post but the two posts of Translators have been operated as Section Officers on the ground that there were no promotional avenues to the post of Translator. The two posts held by the 5th and 6th Respondents were upgraded. Therefore, the said decision of the Apex Court will have no application. The learned Counsel appearing for the Petitioners 18 relied upon another decision of the Apex Court in the case of Dr. M. A. Haque and others V/s Union of India and others {(1993) 2 SCC 213}, wherein the Apex Court held that making of an appointment in breach of recruitment rules framed under Article 309 of the Constitution of India has to be deprecated. In the present case, the said Rules do not deal with creation of posts. Moreover, what has been done is upgradation of two posts of the Translators to the