1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 701 OF 2008 AND WRIT PETITION NO. 512 OF 2009 WRIT PETITION NO. 701 OF 2008 Shri Luis Fernandes, son of late Rosario Fernandes, of major age, Indian National, presently working as Head of the Department in Training & Placement, Government Polytechnic, Altinho, Panaji-Goa, resident of E2/2 Government Polytehcnic Quarters, Altinho, Panaji, Goa. ... Petitioner versus (1) State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez-Goa. (2) Goa Public Service Commission, through its Secretary, having office at EDC House, Panaji-Goa. (3) Shri Aleixo Francisco D'Costa, presently working as State Director of Craftsman & Training, Altinho, Panaji-Goa. ... Respondents 2 WRIT PETITION NO. 512 OF 2009 Shri Atmaram V. Gaonkar, r/o Shantadurga Apts., 2nd Floor, Bordem, Bicholim, Goa. ... Petitioner versus 1. State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez, Goa. 2. Goa Public Service Commission, through its Secretary, having office at EDC House, Panaji, Goa. 3. Shri Aleixo Francisco D'Costa, presently working as State Director of Craftsman & Training, Altinho, Panaji, Goa. ... Respondents Shri M. S. Sonak, Advocate for the Petitioners. Shri P. Talaulikar, Additional Government Advocate for Respondent No.1. Shri A. N. S. Nadkarni, Senior Advocate with Shri H. D. Naik, Advocate for Respondent No.2. Shri C. A. Ferreira, Advocate for Respondent No.3. CORAM : NARESH H. PATIL & N. A. BRITTO, JJ. DATE : 10TH FEBRUARY, 2010. 3 ORDER(Per N. A. BRITTO, J.) The Petitioners in these two petitions are working as Heads of Departments, of different Departments, in the Government Polytechnic run by the Directorate of Technical Education in the State of Goa, in the pay scale of Rs.12000-420-18300, and, by the present Writ Petitions, they challenge the appointment of Respondent No.3 to the post of State Director of Craftsmen Training by Government Order dated 5-7-2006 in the pay scale of Rs.10,000- 325-15,200. The Petitioners have sought a writ of quo warranto to quash and set aside the said appointment on various grounds including that the Petitioners ought to have been first considered to be appointed on deputation for the said post. We therefore propose to deal with these petitions by this common Judgment. 2. There is no dispute that Respondent No.3 was holding a Group 'A' post under the Government of Goa in the Government Polytechnic initially as a Lecturer in Industrial Electronics w.e.f. 15-12-1992, and later was appointed as Assistant Director(Training) Group 'A' in the State Directorate of Craftsmen Training on ad hoc basis from 20-10-2003, and was subsequently regularized to the said post w.e.f. 7-1-2004, and worked on the said post as Assistant Director on regular basis for about 2 ½ years, prior to his appointment as the Director on 5-7-2006. 4 3. The said Directorate of Craftsmen Training, appears to have been created as a separate Department of the Government in the year 1991 or thereabout, and, the Minister in charge on or about 13-3-2006 felt that till then there was no person appointed to hold the post of the Director and therefore by a note dated 13-3-2006 desired that the post of Director be filled in on regular basis by promotion with a view to carry forward the various schemes taken up by the said Directorate, and opined that the appointment could be done by relaxing the provisions of the Recruitment Rules. The Hon'ble Chief Minister agreed with the said proposal. Then a D.P.C. was held on or about 21-6-2006 which recommended the name of Respondent No.3 for promotion to the post as a State Director for Craftsmen Training. The Goa Public Service Commission recommended his appointment to the said post by letter dated 22-6-2006 and that was after the Government itself on or about 24-5-2006 had relaxed the qualifying service of five years in favour of Respondent No.3 in order to make him eligible for the post of the said Director of Craftsmen Training. 4. At the time of appointment of Respondent No.3, as Assistant Director, presumably there were no Recruitment Rules and the Recruitment Rules came in force for the first time on or about 14-2-2006, the same having been published on Government of Goa Gazette dated 23-2-2006. The Rules 5 provide for filling of the vacancy of State Director of Craftsmen Training by promotion failing which by transfer on deputation. The promotion to be made is from Officers holding the post of the Assistant Director(Training) or the post of Principal Grade 'A', with five years regular service in Group 'A' post, and possessing Bachelor of Engineering in Automobile/Electronics and Telecommunications/Mechanical/Electrical from a recognized University. The transfer on deputation is from Officers holding analogous posts on regular basis in other Government Departments of the State, PSUs/Autonomous Bodies or Officers of Goa Civil Service holding senior scale and above posts. The Rules also provide for relaxation. Rule 5 states that where the Government is of the opinion that it is necessary or expedient so to do, it may, by Order, for reasons to be recorded in consultation with the Goa Public Service Commission relax any of the provisions of these Rules in respect of any class or category of persons. The relaxation vide Order dated 24-5-2006 was granted to Respondent No.3 in terms of the said power under Rule 5 of the said Rules. 5. The Writ Petition No.701 of 2008 came to be filed on 10-11-2008. In the affidavits in reply filed by Respondent Nos.2 and 3, it was contended that the Petitioner in the said writ petition did not hold any analogous post to be appointed by transfer on deputation, and, it was, inter 6 alia, stated that the pay scales of the post held by the Petitioner and Respondent No.3 were different. It was stated that the basic pay of the Petitioner at the relevant time was Rs.15,780/- which was higher than the maximum of the scale for the said post. Their nature of duties were also stated to be different. The duties of the Petitioners were set out in para 11 and those of Respondent No.3 in para 12 of the affidavit in reply dated 18-12-2008. It was also pointed out that the duties of the Petitioner were not in any way comparable to the duty of the State Director of Craftsmen Training and it was further stated that the duties of the Petitioner were educational in nature while those required for the purpose of State Director of Craftsmen Training were administrative and financial in nature. It was stated that the level of responsibility and duties of the two posts were not comparable. It was also stated that Clause 6.5 of the O.M. dated 12-2-1999 of the Government of Goa would also come in the way of the Petitioner since in terms thereof no employee whose basic pay at the time of his proposed deputation exceeded the maximum of the pay scale of the ex-cadre post or the fixed pay of the ex-cadre post as the case may be, should be deputed to such a post. According to the Petitioner Shri Fernandes also, the post of the State Director of Craftsmen Training affords opportunity to head entire institution in contrast to a single department(as headed by the Petitioner). 7 6. Analogous means,(as per Concise Oxford Dictionary) partially similar or parallel, performing a similar function. It also means(as per Black's Law Dictionary) bearing some resemblance or likeness that permits one to draw analogy. 7. The writ Petitioner Shri Fernandes having realized that he was not holding an analogous post as contemplated by the Recruitment Rules wanted to romp in the writ Petitioner Shri Gaonkar as Petitioner No.2 in his Writ Petition(Writ Petition No.701 of 2008) and for that purpose filed an application before this Court being Miscellaneous Civil Application No.237 of 2009 which was objected to, and, as such the application itself was withdrawn and the proposed Petitioner was given leave to file a separate petition and that is how Writ Petition No.512 of 2009 came to be filed by Shri Gaonkar, on 18-7-2009, and it is now sought to be contended by both the Petitioners that after the extension of the benefits of the Sixth Pay Commission the posts held by the Petitioners as well as by Respondent No.3 carry the same pay scale without even specifying what that common pay scale is. In such a situation, the only inescapable prim facie conclusion is that both the Petitioners were not eligible to be appointed to the post of the Director, presently held by Respondent No.3, by way of transfer on deputation, in case Respondent No.3 8 was otherwise not eligible to be promoted for want of qualifying service of five years. 8. Shri M. S. Sonak, learned Counsel appearing on behalf of the Petitioners submits that Respondent No.3 did not have qualifying service of five years to be promoted to the post of State Director of Craftsmen Training. Referring to the Order of relaxation dated 24-5-2006, learned Counsel submits that relaxation could not be granted to a single individual when Rule 5 provided that relaxation could be given to a class or category of employees. Learned Counsel further submits that the power of relaxation was exercised even before trying to find out whether there were persons to be appointed on deputation, as provided by the Recruitment Rules. Referring to another communication of the Goa Public Service Commission dated 3-3-2008, learned Counsel submits that the G.P.S.C., in similar circumstances, had withdrawn the relaxation earlier given. It is further submitted that there are no reasons recorded for exercising the power of relaxation. It is also submitted that delay and laches cannot come in the way of a petition for a writ of quo warranto. Reliance is placed on Calcutta Gas Company v. State of West Bengal(AIR 1962 SC 1044), Baij Nath Singh v. The State of Uttar Pradesh(AIR 1965 Allahabad 151), Dr. Kashinath G. Jalmi and another v. The Speaker and others((1993) 2 SCC 703), Harpal Kaur Chahal v. 9 Director, Punjab Instructions, Punjab and another(1995 Supp(4) SCC 706), Ashok Kumar Sharma and others v. Chander Shekhar and another((`1997) 4 SCC 18), Mr. Ghulam Hussan and others v. The Union of India and others((1973) 4 SCC 135), P. Venugopal v. Union of India((2008) 5 SCC 1) and S. S. Sodhi v. State of Punjab and others(1990 LAB.I.C. 774). 9. On the other hand, Shri S. S. Kantak, learned Advocate General submits that none of the Petitioners held an analogous post and that both the Petitioners were aware that Respondent No.3 was promoted on 5-11-2004. Learned Advocate General further submits that the Petitioners have filed the present petition at the behest of Francis Braz who has an axe to grind against Respondent No.3 and who had obtained lot of information under the Right of Information Act and the information given to him has now been used by the Petitioners to belatedly file the present petitions and in such a situation the present petitions ought not to be entertained by the Court. Learned Advocate General has placed reliance on B. Srinivasa Reddy v. Karnataka Urban Water Suuply & Drainage Board Employees' Association and others(AIR 2006 SC 3106). 10. Shri A. N. S. Nadkarni, learned Senior Counsel appearing on 10 behalf of G.P.S.C. has submitted that Respondent No.3 formed a class by himself as there was no other person who was entitled to be promoted to the post. Learned Senior Counsel further submits that the reasons for relaxation could also be found recorded in the file. According to the learned Senior Counsel, if qualifying service could be relaxed, then promotion could be given on the basis of such a relaxation without first trying to find out if there were persons to be promoted on deputation. Learned Senior Counsel further submits that the revocation done by G.P.S.C. on 3-3-2008(at page 43) was done under entirely different circumstances and that is only after it was brought to the notice of the Commission that there were two candidates available in the feeder grade and that is not the case herein. Learned Senior Counsel also submits that the Petitioners had no right to be considered for transfer on deputation and moreover such a transfer is not a matter of right and in any event the Departments under which the Petitioners served had also to agree. 11. Shri Ferreira has submitted that the requirement for the post of Director was five years in Grade 'A' and Respondent No.3 had worked in that Grade for more than seven years. 12. Shri Kantak, the learned Advocate General as well as Shri Nadkarni, learned Senior Counsel have also submitted that Respondent 11 No.3 has now completed five years as on 5-2-2009 and there is no other qualifying candidate to be appointed to the said post of Director and the issue raised is now only academic and need not be adjudicated in this writ petition. They further submit that allowing the petition would be an exercise in futility. Shri Nadkarni has relied upon a Full Bench Judgment of the Delhi High Court reported in P. L.Lakhanpal v. Ajit Nath Ray(AIR 1975 Delhi 66). 13. In the case of Calcutta Gas Company v. State of West Bengal and others(supra) the Constitution Bench of the Apex Court has stated that Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose and that it is clear that persons other than those claiming fundamental rights can also approach the High Court seeking a relief and it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the legal right is the foundation of exercise of jurisdiction of the High Court under Article 226 and such a right must ordinarily be the right of the Petitioner himself who complains of infraction of such right and approaches the Court for relief and such right should ordinarily be the personal or individual right of the Petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to 12 be relaxed or modified. In the case of Dr. Kashinath G. Jalmi and another v. The Speaker and others(supra) the Apex Court has held that a writ of quo warranto cannot be dismissed merely on the ground of laches and the motive or conduct of the Petitioner can be relevant for denying them the costs. 14. Petitions therefore could be considered only for a writ of quo warranto as a petition for quo warranto can be filed at the instance of any person and it is also well settled that quo warranto is a discretionary remedy which the Court may grant or refuse according to the facts and circumstances of each case. It is a remedy to control executive action in making appointments to public offices and also to protect the public from usurpers of public offices. It is also a remedy to a citizen from being deprived of a public office to which he may have a legal right, but as already stated, the petitioners in these cases are bad relators, as they did not hold any analogous posts. 15. We are not inclined to entertain these petitions for reasons more than one. 16. Firstly, it is an admitted position that Respondent No.3 has now completed the qualifying service of five years, as on 7-1-2009. He had completed service of about 2 ½ years at the time of his promotion and he got relaxation of another 2 ½ years by virtue of the Order dated 24-5-2009. He 13 was and he is the only Assistant Director who can be promoted to the post of Director and in case his appointment is set aside it is only he who is qualified to be re-appointed to the said post of State Director and in such a situation allowing the writ petitions would be an exercise in futility. There appears to be preponderance of judicial opinion to support the view held by us. In P. L. Lakhanpal v. Ajit Nath Ray(supra) five Judges of the Delhi High Court held that a writ of quo warranto could not be issued where owing to changed circumstances, the defect in the alleged appointment can be cured by immediate re-appointment. That was a case where the appointment of Chief Justice A. N. ray was challenged but by the time the writ petition was heard, three other learned Judges who were senior to him had resigned and Chief Justice Ray remained the only person available for re-appointment and as such the writ petition was dismissed. Likewise, in M. V. Sarma v. Y. S. Prasad(AIR 1961 A.P. 250) it was held that though the Respondents were not qualified to be elected on the date of the disputed election, they were, at the date of hearing of the petition, had become eligible so that there was no bar to their election. The learned Division Bench also referred to the observations of Lush J, in the following words: “Under those circumstances the Court would not make an order ousting them from their office, as the existing defect if there is one, could be cured, and they could be re-appointed.” 14 The learned Division Bench also referred to AIR 1955 SC 425 wherein the Apex Court observed as follows: “That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Art.226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision, to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no Legislature can impose limitations on these constitutional powers, it is a sound exercise of discretion to bear in mind the policy of the Legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.” 17. In the circumstances, therefore, we are not inclined to exercise the extraordinary discretionary jurisdiction at the behest of the Petitioners who have nothing to loose in the matter. 15 17. Secondly, a writ of quo warranto will not be issued when the motive of the Petitioners is suspicious or the Petitioners are actuated by extraneous considerations which are not in public interest. Respondent No.3 in his affidavit in reply has stated that in his capacity as Chairman of Human Resources Foundation Development Society owned and controlled by the State Government, he had noticed several illegalities/irregularities in the functioning of the institute named “TAME” run by Francis Braz and due to action initiated by him in that regard the said Francis Braz had started a smear campaign against him even by issuing advertisements in the local newspapers and even publishing replies which are part of this petition and also press releases from time to time and even had led a morcha to his residence with a view to get him out of the way to enable the said Francis Braz to continue with the illegal acts. According to him, the campaign by the said Braz with large advertisements and press releases, inter alia questioning his appointment as State Director first appeared in August, 2007 on Herald dated 16-8-2007 and thereafter in October, 2007 and that being so the Petitioners ought to have been aware of his appointment in July, 2006 and the petition is a back door petition, apparently at the behest of the said Shri Braz from whom most of the documents annexed have been obtained and annexed. The Petitioner Shri Luis Fernandes has not contested the said allegations made by Respondent No.3 in his petition by filing a rejoinder nor the Petitioner Shri Gaonkar has 16 specifically denied the said allegations and it has also been stated by Respondent No.3 that the Petitioner Shri Gaonkar has filed the petition in collusion with the Petitioner Shri Luis Fernandes. According to Respondent No.3 in his capacity as the State Director he had appointed the Petitioner Shri Gaonkar to be an external examiner for conducting the practical examination in Electrical and Wireman Trades in July, 2006 and he had accepted the appointment and performed the duties assigned to him, and, therefore the Petitioner Shri Gaonkar had the knowledge of his appointment in July, 2006 itself but has approached the Court belatedly without furnishing any explanation for the gross laches. We fail to understand as to why the Petitioners who are in the pay scale of Rs.12000-420-18300 should aspire to hold a post in the pay scale of Rs.10,000-325-15,200. The delay in approaching the Court coupled with the letters produced by the Petitioners addressed to the said Francis Braz and the allegations made by Respondent No.3 which are unrebutted, in our view, are sufficient to prima facie substantiate the claim of Respondent No.3 that the first petition was filed at the behest of the said Braz and the second petition at the behest of the first Petitioner Shri Fernandes. The writ petitions are therefore motivated. 18. The Apex Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and 17 others(supra) has held that:- “A petition praying for a Writ of Quo Warranto being in the nature of public interest litigation, it is not maintainable at the instance of a person who is not unbiased. The proceedings are not meant to settle personal scores by an employee of the department. The High Court, in our view, ought to have dismissed the writ petition filed by Respondent No.1 at the threshold”. 19. Following the ratio of the said Judgment, this Court in Mr. Allan S. F. Faleiro v. State of Goa and another in Writ Petition No.392 of 2009 by Judgment dated 27-11-2009 stated as follows:- “That the issuance of a writ of Quo Warranto is a discretionary remedy is also a principle which is reiterated in N. Kannadasan v. Ajay Khose(2009(7) SCC 1). The fact that the Petitioner took a keen interest only after 30-4-2007 regarding the technical qualifications of Respondent No.2 and that too after the Petitioner was informed by three letters to comply with the formalities regarding the permission sought by the Petitioner, shows that the Petitioner has an axe to grind against the Respondent No.2, for not giving him the permission sought by him and the petition has been filed with that oblique motive. We are therefore not inclined to exercise our discretionary 18 jurisdiction in favour of such a petitioner”. “Following the Judgment of the Apex Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others(supra) and N. Kannadasan v. Ajay Khose(supra) we are inclined to dismiss the Writ Petition on the second preliminary objection”. 20. The above said decision is also applicable to the facts of the case at hand. 21. Considering the facts and circumstances of the case and for reasons stated herein above, we are not inclined to entertain these petitions and accordingly proceed to dismiss the same. The Petitioners to pay costs of Rs.5000/- to the Respondent No.3. NARESH H. PATIL, J. N. A. BRITTO, J. RD