1 wp.239/2010 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 239 OF 2010. Smt. Harsha Narayan Naik, resident of House No.A/53, Ambekhand, Verem, Bardez, Goa. ........ Petitioner. V/s (1) The Director of Civil Supplies and Consumer Affairs, Government of Goa, Department of Civil Supplies and Consumer Affairs, 1st Lift, 2nd Floor, Junta House, Panaji, Goa. (2) State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Goa. ........ Respondents. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the petitioner. Mr. V. Rodrigues, Addl. Govt. Advocate for the respondents. CORAM :- S.B. DESHMUKH & F.M. REIS, JJ. Date of reserving Judgment : 20/01/2011 Date of pronouncing Judgment : 21/02/2011 2 wp.239/2010 J U D G M E N T : (Per S.B. DESHMUKH, J.) Heard learned Counsel for respective parties. 2. The facts, in brief which are mostly undisputed, may be listed herein below : (A) The petitioner is a Law Graduate from Goa University. The petitioner claims that she is also a Graduate in Journalism. (B) The petitioner has been registered as an Advocate with Bar Council of Maharashtra and Goa. According to the petitioner, since September 16, 2000 she was practising as an Advocate. According to the petitioner, she has practised as an Advocate for more than 8 years. (C) The date of birth given by the petitioner in this writ petition is August 18, 1977. (D) The respondents had published an advertisement dated 8th January, 2009, inviting applications for appointment to the post of President of the Consumer Disputes Redressal Forum for North Goa District. Petitioner, on 2nd February, 2009 had applied for the 3 wp.239/2010 post, advertised by the respondents. She claims that on that date she had completed 8 years of practice as an Advocate. (E) The petitioner alleged that she was selected by the Selection Committee, consisting of the President of the State Consumer Disputes Redressal Commission, (Hon'ble Shri Justice D.G. Deshpande, Secretary of the Consumer Department; and the then Law Secretary. On 14.12.2009, the petitioner was selected for the post of President of the Consumer Disputes Redressal Forum for North Goa District and took charge. (F) According to the petitioner, from 14th December, 2009 she was discharging her duties as the President of the Consumer Disputes Redressal Forum for North Goa. The services of the petitioner have been terminated on 18th March, 2010 by the respondents on the ground that the petitioner was not 35 years old on the date of appointment. This was considered as disqualification by the respondents and thus, as stated above, the services of the petitioner have been terminated. On 26th March, 2010, the present petition was filed by the petitioner. (G) By this petition, the petitioner challenges the order of 4 wp.239/2010 termination dated 18th March, 2010-Annexaure “E” and seeks quashing of the said order. This relief is the principal relief in the writ petition, along with some interim reliefs. (H) This petition was listed for admission before this Court on 1st July, 2010. This Court, after hearing the Counsel for the parties, had issued Rule, however, declined to grant any interim relief. This Court, in paragraph 4, though declined to grant interim relief, however, expedited the hearing of the writ petition and further observed that any appointment to the post shall be subject to the outcome of this writ petition. The respondents were directed to file reply, if any, on or before 14th June, 2010. 3. Learned Senior Counsel Mr. Lotlikar, appearing for the petitioner, took us to the advertisement Annexure “A”, by which applications were invited on behalf of the respondents for various vacancies on part-time basis. Learned Counsel appearing for the petitioner drew our attention to the category of post at Sr. No.1 of the advertisement. The post notified was the President of the Consumer Disputes Redressal Forum and the number of vacancies shown in the 5 wp.239/2010 advertisement was two. According to the learned Senior Counsel appearing for the petitioner, the only qualification mentioned in this advertisement was that a person who is qualified to be a District Judge. Age limit mentioned in this advertisement was not exceeding 65 years. Learned Counsel appearing for the petitioner laid emphasis on the age limit which is 65 years. According to him, minimum age requirement was not mentioned in this advertisement. Our attention also has been invited to Memorandum dated 23.10.09 (page 32). By this memorandum, the petitioner was informed to appear for interview on 16th November, 2009 at 2.30 a.m. in the chamber of the President, State Commission, 1st lift, 4th floor, Junta House, Panaji, Goa. This memorandum was addressed to the present petitioner. In other words, the petitioner was called upon to remain present for the interview on 16.11.2009 at 2.30 p.m. at the venue mentioned in the memorandum. Learned Counsel for the petitioner submitted that accordingly, the petitioner was interviewed on that day. The petitioner was selected for the said post and was appointed vide Order dated 14th December, 2009, Annexure “D” (page 33). This order makes it clear that on recommendation of the selection committee, the petitioner was 6 wp.239/2010 appointed as the President of the Consumer Disputes Redressal Forum for North Goa on part-time basis with immediate effect. Other terms and conditions of appointment are detailed in this order. Learned Counsel for the petitioner submitted that the petitioner was appointed as the President of the Consumer Disputes Redressal Forum for North Goa and as per this order, she was entitled to hold the office for a period of 5 years or upto the age of 65 years, whichever is earlier. 4. Learned Counsel appearing for the petitioner took us to Annexure “E” (page 34). This is an order dated 18th March, 2010 under the signature of Director of Civil Supplies & Consumer Affairs, Ex-Officio, Joint Secretary, Panaji, Goa. This order states that on unanimous recommendation of the Selection Committee to the State Government, services of the petitioner have been terminated with immediate effect for the reasons contained in that order dated 18th March, 2010. The reason mentioned in this order for termination of the services of the petitioner is receipt of representation regarding appointment of the petitioner as the President of the Consumer Disputes Redressal Forum, North Goa. Since the petitioner was below the age 7 wp.239/2010 of 35 years, the respondents were of the opinion that the appointment of the petitioner as the President of of the Consumer Disputes Redressal Forum, North Goa was not in accordance with the provisions of Goa Judicial Service Rules, 2005. 5. Learned Senior Advocate for the petitioner commented upon the order impugned in the writ petition dated 18th March, 2010, terminating services of the petitioner as President of of the Consumer Disputes Redressal Forum, North Goa. 6. On behalf of the respondents, an affidavit-in-reply is filed, which is marked “A”. This Affidavit-in-Reply is sworn in by one Mr. Gurudas P. Pilarnekar. It has been stated in para 2 of the affidavit that the case of the petitioner has been considered by the Selection Committee detailed therein. In para 3 of the affidavit, it has been stated that the powers of appointment, includes the power to remove and such power has been exercised by the Selection Committee which leads to cancellation of the appointment of the petitioner as the President. In para 6 of the affidavit, it is stated that “advertisement specifies that a 8 wp.239/2010 person who is qualified to be a District Judge will be eligible for the post.” It is also stated that vide Notification dated 30/06/2005, Goa Judicial Service Rules, 2005 have been made enforceable, after consultation with the Goa Public Service Commission and the High Court of Bombay at Goa. According to the affiant, as per Chapter III, the minimum age for the appointment of the District Judge is 35 years. Eligibility of the petitioner, on the date of appointment has been disputed by the respondents. According to them, the petitioner did not complete age of 35 years as on 2nd February, 2009 i.e. the date of application in response to the advertisement. 7. In para 8 of the affidavit, it is contended that the Judicial Service Rules, 2005 have been formulated in exercise of the power conferred under Articles 233 and 234 of the Constitution of India. 8. In para 10 of the affidavit, it has been contended that it was subsequently realised that the appointment of the petitioner had not been done in terms of the Rules and, therefore, the matter was placed before the Selection Committee to review the selection of the petitioner. 9 wp.239/2010 Reference is made to the meeting of the Selection Committee dated 23.3.2010. 9. In para 13, it is contended by the affiant that the petitioner did not deny that her age was below 35 years as on the date of appointment. 10. In para 16, the affiant states that the unanimous decision of the Selection Committee to terminate the services of the petitioner has been accepted by the State Government and accordingly, the Director of Civil Supplies has issued the order of termination dated 18.3.2010. Thus, the affidavit supports the order of termination of services of the petitioner. 11. We have heard learned Counsel for the respective parties, at length. Indisputably, the petitioner was not heard by the respondents before issuance of termination order dated 18th March, 2010 impugned in this writ petition, as the President of the Consumer Disputes Redressal Forum, North Goa. 10 wp.239/2010 12. Having heard learned Counsel for the parties at length, in our opinion, this petition can be favourably considered only on the ground that the impugned order is in breach of principles of natural justice. On or before the date of termination order dated 18.3.2010, the petitioner was not heard by the respondents even though she was holding the position of the President of the Consumer Disputes Redressal Forum, North Goa. On this short ground alone, we are inclined to allow the petition. We have not expressed any opinion on the merits of the petition. Even though we are considering the petition favourably, we are keeping it open for the respondents to hear the petitioner and pass appropriate orders. 13. We are inclined to allow the petition in terms of prayer clause (A). However, liberty in favour of the respondents to hear the petitioner and pass appropriate orders 14. The writ petition is, accordingly, allowed in terms of prayer clause (A). No order as to costs. 11 wp.239/2010 This order shall not be construed to mean that we have directed reappointment or reinstatement of the petitioner. The respondents-State may hear the petitioner and pass appropriate orders. S.B. DESHMUKH, J. F.M. REIS, J. ssm.