1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 438 OF 2009 1. Shri Kashinath Shetye, Major of age, Indian national, Resident of Babino Building, Alto Fondvem, Ribandar, Goa. 2. Shri Anthony Rebello Major of age, Indian national, Resident of H.No.724 Bhiunsa, Cuncolim, Salcete, Goa 3. Shri Navin Desai Major of age, Indian national, Resident of Dogri Navelim, Salcete-Goa 4. Shri Prashant Naik Major of age, Indian national, Resident of Opp. PWD Fatorda, Margao, Goa. 5. Shri Gautam Bene, Major of age, Indian national, Resident of Tilamol Quepem-Goa 6. Shri Mahesh Kamat Major of age, Indian national, Resident of Near Loyola High School, Margao, Goa 7. Shri Adityaprasad Prabhu Major of age, Indian national, Resident of Nirankal Ponda, Goa 8. Shri Atish Mandrekar, Major of age, Indian national, Resident of Vodlebhat, Taleigaon, Goa. 9. Shri Vassudev Prabhu, Major of age, Indian national, 2 Resident of Government Quarters, Altinho, Panaji,Goa .. Petitioners Versus 1. The State of Goa, Through the Chief Secretary, Government of Goa, having his office at the Secretariat, Porvorim, Bardez, Goa 2. Shri Nirmal Braganza Chief Electrical Engineer Electricity Department, Having his office at Viyut Bhawan, Panaji-Goa 3. Shri S. T. Bhangui Supertending Engineer Circle II (N) Electricity Department, Having his Office at Viyut Bhawan, Panaji-Goa. 4. Shri R. D. Talegao Supertending Engineer Circle I (S), Electricity Department, having his office at office of the Supertending Engineer Circle I (S) Acquiem, Margao-Goa. 5. Shri Peter Fernandes Executive Engineer Division IV Electricity Department having his office, Margao-Goa 6. Shri V. P. Shetye Law Secretary, having his office at the Secretariat, Porvorim, Bardez-Goa. (deleted as per order dt.15.4.2010) 7. Shri P. V. Kadnekar, Undersecretary (Law), Having his office at the Secretariat, Porvorim, Bardez – Goa (Deleted - 3 as per order dt.22.4.2010) 8. Shri Shrikant Rane Inspector of Survey and Land Records, Margao- Goa. 9. Shri Ajit Talaulikar Superintending of Survey and Land Records, Margao- Goa. (Deleted as per order dt.22.4.2010) 10. The Goa Public Service Commission, Commission through its Member Secretary, having its office at EDC House, Panaji, Goa. .. Respondents. AND Goa Government Employees Association, a registered Association, represented herein by its General Secretary Mr. Ganesh Chodankar, and having office at 213/B, Govinda Building, Mahatma Gandhi Road, Panaji, Goa 403 001. .. Intervenor. Mr. Ryan Menezes, Advocates for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Additional Government Advocate for the respondent No.1. Mr. A. N. S. Nadkarni, Senior Advocate for the respondent No.10. Mr. Nigel D' Costa Frias, Advocate for the intervenor. CORAM :- S. J. VAZIFDAR & U. D. SALVI, JJ. DATE OF RESERVING THE JUDGMENT:- 4 th May, 2010. 4 DATE OF PRONOUNCING THE JUDGMENT: 14 th JUNE, 2010 JUDGMENT : (Per S. J. Vazifdar) The petitioners have sought a writ of Mandamus directing the respondents to withdraw or cancel all orders retaining retired / superannuated officers in employment in the posts under the Government by way of extension in service or on contract basis appointments. The petitioners have also sought an order directing the respondents to fill the posts by making regular promotions, transfers / appointments of eligible persons in terms of the recruitment rules and by following the due procedure prescribed by law and the rules. 2(A). By an order dated 22th April, 2010, we allowed the petitioners to amend the petition. By this amendment, the petitioners challenged the continuation in service by extension or on contract basis of respondent Nos. 2 to 5 and 8. (B). Respondent Nos. 6,7 and 9 whose appointments were also challenged, were deleted by separate orders passed earlier in view of their engagement in any manner having been discontinued. 5 The learned Advocate General made a statement that the appointment of respondent No.8 expires on 31st May, 2010 and the government is not going to extend the same nor is the government going to engage his services in any other manner including by way of grant of extension or on contract basis, short term or otherwise. The statement is accepted. In view thereof, it is not necessary to consider the case in respect of respondent No.8 either. Thus the hearing was confined, apart from the general questions to the case regarding respondent Nos. 2 to 5 only. (C). Respondent Nos. 10 and 11 were impleaded by an amendment. Respondent No.10 is the Goa Public Service Commission (GPSC). Respondent No.11 is the Goa Government Employees' Association, a registered association. 3. The petition is filed as a Public Interest Litigation. Petitioner Nos. 1 and 9 are Junior Engineers and petitioner No.2 is an Assistant Executive Engineer in the Electricity Department of the Government of Goa. The petitioners claim to be concerned about the welfare of the State of Goa and the interest of its citizens as also the proper 6 administration of the State. The petitioners have questioned the alleged practice of respondent No.1 of continuously granting appointments to posts by way of extensions and contracts without giving an opportunity to all the members of the public eligible as per the rules of appointment to the concerned posts or by depriving the persons in the feeder grades of the benefit of promotion to the higher posts without there being any special or extraordinary reasons to justify the same. They contend that the same is not in public interest. It was contended that the practice deprived the officers in service of an opportunity of being considered for promotion, transfer or appointment, and as a consequence thereof, their career prospects are prejudiced. It was contended that this practice has been implemented without even resorting to the alternate modes of filling the concerned vacancies as provided in the recruitment rules framed by the Government in respect of the said posts. 4. It is not necessary for us to pass omnibus directions compelling the Government to follow the law including the rules and regulations framed by it. That, they 7 are bound to do. Further, the Government of Goa has recognised the need to do so and has adopted a policy in this regard by issuing various instructions, some of which are as follows :- (A) By an Office Memorandum dated 12th July, 2001 issued by the Under Secretary (Personal), the attention of the Heads of Departments was 'once again' invited to an Office Memorandum (O.M.) dated 31st January, 2001 conveying the policy decision of the Government not to grant any extension in service and not to make any appointment on contract basis unless it is provided under the recruitment rules for the posts. The O.M. states that it has come to the notice of the Government that the proposals for extensions in service beyond the age of superannuation and for appointment on contract basis are being recommended by the departments. The O.M. reiterates that it is the policy of the Government to neither give extensions of service nor to make appointments on contract basis of the retired officers and that no file should be moved in this regard unless specifically called for by the Government. Lastly, the O.M. states that the same be strictly adhered to. 8 (B) By an Office Memorandum dated 4th April, 2007 issued by the Joint Secretary (Personal) the attention of all the Heads of the Departments was invited to the earlier Office Memorandum. It stated that Goa Government Employees' Association had strongly objected to the re-engaging of retired State Government Officials/ Officers on contract basis “as it hampers the promotional avenues and also numbers of government servants are stagnating without promotion.” The O.M. states that the Government had constituted a High Level Committee to examine the same, and that High Level Committee had recommended not to resort to engaging any retired government servants on contract basis 'as far as possible,' and that the Government had accepted the recommendation, and has decided not to engage retired government officers / officials on contract appointment. The O.M. further clarifies that the department may consider only those candidates where proper justification is furnished by the respective departments and whose services are essentially required for continuation of work at hand as per the prevailing guidelines. The Heads of Department/ officers were directed to comply with the instructions strictly. 9 (C)(i). By an Office Memorandum dated 15th January, 2008 issued by the Joint Secretary (Personal), it is stated that inspite of instructions to the contrary, it has been observed that the Heads of the Department forward/ recommend the proposals for grant of extension in service. The O.M. further states as follows :- “It is once again reiterated that, in accordance with Government policy, no proposal for grant of extension in service beyond superannuation shall be forwarded/ recommended by the Heads of Departments, except in respect of technical posts and those rare cases where there is no other alternative, subject to fulfillment of the conditions for grant of extension laid down under the O.M. read in preamble. It is, therefore, enjoined upon all the Heads of Departments to strictly adhere to the instructions/ guidelines issued by the Government from time to time in this behalf.” We find it difficult to read the words “no other alternative” very strictly. They must be interpreted reasonably and in the context in which they appear. The alternative must be a reasonable, viable one suited to the situation. The words cannot be read to mean that merely because there is another candidate, who is qualified to be appointed to the post, he must as an inflexible, absolute rule 10 be appointed in preference to the grant of extension to an incumbent even where the exigencies of the situation require an extension being granted to the incumbent. Take for instance a case of an extremely sensitive project of a highly confidential nature, which requires to be completed within a given period of time on which the incumbents have been working for a number of years in a key position and the project is expected to be completed within a short period after his superannuation. The Government cannot then be faulted for continuing / extending his services to enable the successful and efficient execution of the project. In other words, the Government must be allowed some play in the joints without which it would be difficult for it to function efficiently. The resort to extension in service of an incumbent, however, must be an exception in “those rare cases where there is no alternative”. Whether the extension meets the test formulated even by the policy decision of respondent No.1 is a question of fact which must depend upon the facts and circumstances of each case. 11 (D)(ii). An Office Memorandum dated 17th August, 2009 issued by the Under Secretary (Personal) referred to the said Office Memoranda dated 2nd September, 1993, 4th April, 2007 and 15th January, 2008. The O.M. laments that inspite of the instructions contained in the previous O.Ms. various departments continued to submit proposals for extension in service and appointment of retired officers on contract basis without going into the merits of the case. It also records that during the Assembly Session summoned in March 2009, the Chief Minister had given an assurance on the floor of the House that as far as possible no extension to retired government servants on attaining the age of 60 years would be given nor would they be appointed on contract basis. 5. The policy of the government is, therefore, in place at least in letter. There is and indeed there can be no grievance about the same. This is what the petitioners seek. This is what public interest demands. The question is whether the same is being followed and implemented. Looking to the tenor of the O.Ms. themselves and nothing more, Mr.Menezes was justified in inviting us to conclude that the policy of the Government has been observed in several cases in the breach. The OMs contain clear, 12 unequivocal admissions that the Heads of Department have acted in this regard contrary to the policy of the Government and the instructions issued to them. There cannot be a clearer admission of the same. If it were not so, there would have been no need for the government itself to issue successive Office Memoranda of the above nature. This is indeed unfortunate. It discloses a very sorry state of affairs. 6. The petitioners' submission in this regard is not merely well founded but conclusively established on the basis of the above Office Memoranda. The fact that the petitioners have not made out a case on merits regarding respondent Nos. 2 to 5 makes no difference. The remaining respondents other than respondent No.1 have been deleted in view of the statement on behalf of the government during the pendency of this writ petition that their services would not be extended. It is for this reason alone that we have not dealt with the cases of respondent Nos. 6 to 9. Not having dealt with the cases of respondent Nos. 6 to 9, we desist from holding the Writ Petition as being irresponsible on the ground that we do not find substance in the merits of the case as against respondent Nos. 2 to 5. Such a finding would be unfair to the petitioners especially as we did not permit 13 Mr. Menezes to address us on the merits of the appointments/ engagement of respondent Nos. 6 to 9. We did not permit him to do so as their engagement in any event are now discontinued. 7. The learned Advocate General invited us to dismiss the writ petition on the ground that the same was mala-fide. He submitted that petitioner No.1 had not filed this as a genuine public interest litigation, but had done so in view of his personal grievances against the government. This submission as far as petitioner No.1 is concerned is well founded. 8. Petitioner No.1 had earlier filed Writ Petition No.55 of 2009 challenging an order of transfer. On 30th January, 2009, the writ petition was allowed to be withdrawn. It is pertinent to note that the order records that along with the petitioner various other employees have also been transferred. It also records that the Counsel of petitioner No.1, realising that in transfer matters, the powers of the Court are very limited, sought to withdraw the writ petition with liberty to make a representation to the appropriate authority after joining at the place where he is transferred. 14 Petitioner No.1 thereafter made a representation against his transfer, but the same was rejected on 13th April, 2009. Petitioner No.1, thereafter, filed W.P. No.324 of 2009 on 25th May, 2009 challenging his transfer and the rejection of his representation. While W.P. No.324 of 2009 was pending, the present writ petition was filed on 15th June 2009. By this time, petitioner No.1 was an aggrieved person as his representation against his transfer order was rejected. On 30th November, 2009, the Division Bench of this Court dismissed writ petition No.324 of 2009. The Division Bench rejected the contention that petitioner No.1 has been victimised and that he had been frequently transferred. The Division Bench held that petitioner No.1 had made false allegations belatedly and by way of an afterthought. On 1st December, 2009, petitioner No.1 made an application for intervention in the Suo Motu PIL W.P. No.1/2009 regarding the acquisition of CFL bulbs by the government. The application was dismissed by an order dated 16th February, 2010. 9. The above facts do indicate that petitioner No.1 had a serious grievance against respondent No.1. These 15 facts indicates that the present writ petition has been filed by him only in view thereof. This view finds further support from the fact that petitioner No.1 filed this writ petition only on 15th June 2009 after respondent No.1 had issued him a transfer order, and rejected his representation against the same. If petitioner No.1 had a genuine and bona-fide intention of agitating the issues in the present writ petition, in the interest of public, he would have filed the same many years ago. As we shall indicate, if his allegations against respondent Nos. 2 to 9 are correct and justified, which obviously he thought they were, he would have filed the writ petition latest by the year 2005-2006 as the appointments challenged in the Writ Petition pertain to the period commencing in the year 2003 and continued throughout. 10. We are, however, not inclined to dismiss a writ petition of this nature merely because a strong case has been made out against petitioner No.1. Mr. Ryan Menezes, the learned Counsel appearing on behalf of the petitioners rightly pointed out that there are eight other petitioners. There is nothing on record, which justifies our painting them with the same brush. There is nothing that justifies the conclusion that the remaining petitioners joined petitioner 16 No.1 in this writ petition only to assist him in airing his personal grievance. Thus, while we would have rejected this writ petition had it been filed by petitioner No.1 alone, we are not inclined to do so in view of the fact that we find nothing against the remaining petitioners despite the fact that the Writ Petition has been verified only by petitioner No.1. 11. Mr. Menezes raised a point of considerable importance under Article 320 of the Constitution of India. He submitted that under Article 320 of the Constitution of India, it was mandatory for the government to consult the GPSC even while granting extension or appointing persons on short term contracts. He was supported in this regard by Mr. A. N. S. Nadkarni, the learned Senior Counsel appearing on behalf of the GPSC – respondent No.10. 12. After this point was argued for a while, we agreed with the learned Advocate General that the point ought not to be permitted to be advanced in the present writ petition as it had not been pleaded. Indeed, it appears that on an earlier occasion, the point had been raised across the bar and noted in an earlier order. The point is undoubtedly of considerable 17 public interest and importance with very vital implications. For that reason itself, we are of the view that such an important point dealing with a constitutional issue ought not to be permitted to be raised across the bar at the last minute if it is not pleaded as it may be detrimental not only to the parties, but to the development of the law itself. 13. Suffice it to state, as agreed by all the learned Advocates that while making appointments on contract basis or by extension of service, the GPSC, if required, shall be consulted. We leave the question open as to whether consultation with the GPSC is required in each case. By an interim order dated 21.11.2009, respondent No.1 was directed to make such appointments only after approval by the GPSC and with the leave of this Court. The interim orders would come an end by this judgment and order finally disposing of this writ petition. However, needless to add that if consultation with the GPSC is required by law, respondent No.1 shall do so. Whether it is bound to do so in a given case will be decided on merits in independent proceedings if the occasion arises. 14. The next question is whether the government has 18 the power to extend the services of an employee. Referring to the recruitment rules in respect of the posts, Mr.Menezes submitted that unless the modes of recruitment stipulated therein are exhausted, the government does not have power to extend the services of an employee. For instance, some of the rules provide for the modes of filling up vacancies by promotion, failing which by transfer on deputation and failing both by short term contracts or by direct recruitment. Mr. Menezes submitted that unless these modes of recruitment are exhausted, the government does not have power to extend the services of an employee. 15. The submission is not well founded. That the recruitment rules do not specify extending the services of an incumbent as one of the modes of filling up vacancies, does not denude the government of the power to do so. The learned Advocate General's reliance upon the judgment of a Division Bench of this Court in R. R. Tripathi Versus Union of India; 2008 4 BCR 688 is well founded. This was also a PIL. The petitioners challenged the grant of extension of services to the Director General of Police, Maharashtra State and the Commissioner of Police, Mumbai. The Division Bench, however, made it clear that the decision rested on the finding 19 that the decision making process was flawed. One of the questions dealt with by the Division Bench was whether the government has power to grant extension under the All India Services (Death- cum- Retirement Benefits) Rules, 1958. Rule 16 thereof provided inter alia that a member of the service shall retire from the service at the age of 60 years. The Rule however permitted the services of an incumbent to be extended in the manner and to the extent specified therein. Section 3 of the All India Service Act, 1951 empowered the Central Government to make rules. Pursuant thereto, the All India Services (Condition of services – residuary matters) Rules, 1960 were made. Rule 3 thereof vested the powers in the Central Government to relax the operation of any rules made or deemed to have been made under the All India Services Act, 1951 or any regulation made under any such rule regulating the conditions of services of persons appointed to All India Service in case of undue hardship in any particular case to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The learned Advocate General's reliance upon paragraphs 17, 19, 20 and 21 of the judgment is well 20 founded. The same read as under ; “17. The contention raised on behalf of the petitioners is that firstly there is no power with the authorities to grant extension beyond the specified period and the Rule should be strictly construed in consonance with the language of the rule and secondly the grounds stated in the Rules have not been specified in the order granting extension. In fact, according to the counsel appearing for the petitioners, the Central Government hardly has the power to grant extension particularly in the facts of the present case. This contention is based upon misconception of the relevant rules and is opposed to the basic concept of service jurisprudence. The rules are to be framed by the Central Government. Thus, the Government, in any case, would have the powers to frame such rules or to pass such orders as may be called for in the facts and circumstances of a given case but certainly not contrary to the provisions of the Act or the Rules framed thereunder. The residuary powers vested to meet extraordinary situations which have not been specifically provided for in the Rules cannot be circumvented or limited and it must be left to the authorities to exercise their powers objectively and in consonance 21 with the spirit of the Rules. Besides the power to extend, power to relax the rule in its absolute term to a given case and to remove hardship or otherwise is clear indication of the powers of the rule framing authority and there should not be unnecessary embargoes upon the exercise of such powers. We may refer to the language of Rule 3 which clearly says that the Rule could be relaxed to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner (emphasis supplied by us). The expression "just and equitable manner" is a well known expression in the Administrative law and within the domain of service jurisprudence. The decision will have to be left to the discretion of the authority concerned and the Court would not sit as an appellate authority to