1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 125/2002 1) Goa Tourism Development Corporation Employees Union, through its President, having office at Tourist Hostel, GTDC, Panaji-Goa. 2) Filipinho L. Gomes, resident of House No. 1021, Belbatt, Chorao, Ilhas-Goa. 3) Greta I. Pires, resident of House No. 68, Carambolim, Post Corlim, Ilhas-Goa. 4) Shri Rajendra Govind Vadyekar, resident of House No. 792, Qerem Vada, Near Gopalkrishna Temple, Chorao, Ilhas-Goa. 5) Shri Santosh Bhikaji Raut, resident of Duler, Mapusa, Bardez-Goa. ............ Petitioners. Versus 1) Goa Tourism Development Corporation Limited, through its Managing Director, having office at Trionora Apartments, Near Municipal Market, Panaji-Goa. 2) Shri G. R. Khanolkar, General, Manager (Administration), Goa Tourism Development Corporation Ltd. Having its office at Trionora Apartments, Near Municipal Market, Panaji-Goa. (Deleted as per Order dated 10-07-2008) 2 3) Kum. Sonal G. Khandolkar, daughter of Shri G. R. Khandolkar, resident of Fontainhas (Next to J.B. Bakery), Mala, Panaji-Goa. 4) Miss Sonal G. Khandolkar, Receptionist; (Deleted as per Order dated 08-07-2008) 5) Ms. Sonia Coutts, Housekeeper Co-ordinator; 6) Shri Rajendra Mhapsekar Plumber; 7) Shri Santano Fernandes Room Attendant; 8) Shri Baburao Gaonkar, Room Attendant; 9) Shri Ganesh Mhalshekar, Room Attendant; 10) Shri Shivram Gawas, Room Attendant; 11) Shri Kanta Korgaonkar, Room Attendant; 12) Shri Shamba Namdeo Mapsekar, Room Attendants; 13) Shri Dasharath Gaonkar, Electrician; 14) Shri Satya Nagwekar, Marketing Manager; 15) Shri Vilas Shripad Dessai, Receptionist; 3 16) Shri Anand T. Gawas, Receptionist; 17) Shri Ram R. Gawas, Room Attendant; 18) Miss Shobha Mulvi, Receptionist, All C/o the Managing Director, Goa Tourism Development Corporation Limited, Trionora Apartments, Near Municipal Market, Panaji-Goa. ............. Respondents. Mr. M. S. Sonak and Mr. D. Pangam, Advocates for the petitioners. Mr. A. N. S. Nadkarni, and Mr. H. D. Naik, Advocates for respondent No.1. Mr. S. Singbal, Advocate for respondents No.5 to 18. Mr. D. B. Ambekar, Advocate for respondent No.3. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date of reserving the Judgment : 5th August, 2008. Date of pronouncing the Judgment : 29th August, 2008. J U D G M E N T : (Per DHARMADHIKARI, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioners claim the following reliefs : 4 “A) for a writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction, commanding the respondent No.1 to do the following : (I) To withdraw the Resolution dated 7/3/2002, creating the posts of House Keeping Coordinator and Marketing Manager; (II)To refrain from making any appointments to the post of House Keeping Coordinator, Marketing Manager, Receptionist, Electrician, Plumber and Room Attendant in terms of Advertisements dated 9/3/2002 and the Interviews held on 26/3/2002 and/or 27/3/2002; (III) To refrain from giving any appointment order to Respondent No.3 to the post of Receptionist in pursuance of Interview held on 26/3/2002; and/or 27/3/2002; (AA) To quash and set aside the appointment orders issued to the respondents No.3 to 18 by the respondent No.1. (B) That pending the hearing and final disposal of this Petition, Respondent No.1 be restrained from appointing any person to the posts of House Keeping Coordinator, Marketing Manager, Receptionist, Electrician, Plumber and Room Attendant in terms of the Advertisements dated 9/3/2002 and the Interviews held on 26/3/2002 and/or 27/3/2002; and in the alternative, if any appointment orders have been issued, the same be stayed; (C) For ad-interim ex parte Relief in terms of Prayer Clause (B) hereinabove. (D) For such other and further Reliefs that this Hon'ble 5 Court deems fit and proper.” 2. Petitioner No.2 is a Trade Union, registered under the Trade Unions Act, 1926. The Union is established to espouse the cause of employees of the first respondent-Corporation. The said Corporation is established by the Goa Government. It is undisputedly an instrumentality or agency of the same. It is, therefore covered by Article 12 of the constitution of India. 3. Petitioner No.1 contends that it is vitally interested in ensuring that the first respondent/Corporation effects appointment to various posts in accordance with the Recruitment Rules by adopting a procedure which is fair and reasonable. Ultimately, public funds are involved and, therefore, they should not be frittered away by creation of posts and by offering employment by surreptitious means. 4. It is then contended that Petitioners No.2 to 5 are Indian Nationals. They fulfill qualifications prescribed by respondent No.1 for the posts of Marketing Manager, Housing Keeping Coordinator, Receptionist, Room Attendant; Plumber/Electrician respectively. However, for the reasons set out in the affidavit, they have been deprived effective opportunity of being considered for appointment to these posts. Consequently, with 6 petitioner No.1, they are entitled to maintain this petition. 5. It is contended that although respondent No.1 is set up as a company, it is a Government Company under Section 617 of the Companies Act, 1956. It is fully controlled by the Government of Goa and has been incorporated for planned and optimum development of Tourism in the State. Respondent No.2 is the General Manager (Administration). Respondents No.3 to 18 are the employees who have been appointed to the aforementioned posts, pursuant to the advertisements, details of which are set out in the petition. They have been impleaded as parties as they are directly affected by the controversy. 6. It is alleged that the First Respondent/Corporation has on its roll surplus employees. The staff far exceeds the requirement of personnel to manage and administer the Corporation and its units/establishment. The Administrative Reforms Department (ARD) Report observed that the financial position of the first respondent Corporation is not sound and various steps and measures were suggested, so as to prevent losses. It is alleged that the Corporation is creating posts of Housing Keeping Coordinator and Marketing Manager without wide publicity and without inviting applications from the Regional Employment Exchange and in breach of Recruitment Rules. Further, the posts are filled in by awarding 100 % marks for oral 7 interviews. It is alleged that there is nepotism and favouritism in appointments inasmuch as respondent No.3 was appointed to the post of Receptionist on the basis of the recommendation of the Selection Committee comprising of her own father (Respondent No.2). In other words, her father was a Member of the Selection Committee. It is lastly alleged that there is abuse of power in matters of employment to public posts and the State having not taken any steps to prevent the same, the present petition has been filed. 7. The cause of action that is set out is that in a meeting held of Board of Directors on 7/3/2002, it was resolved to create posts of House Keeping Coordinator and Marketing Manager. It is stated that the First Respondent has established and manages 11 hotels/resorts in the State of Goa. Each of such establishments have posts of House Keepers and Managers who discharge house keeping and marketing functions. Besides this, there are posts of Deputy General Manager (Marketing) and Deputy General Manager (Hotel Establishment) who exercise overall control in matters of house keeping and marketing. There are 3 General Managers, who are directly concerned with the above aspects. Yet, the posts of House Keeping Coordinator and Marketing Manager in the pay scale of Rs.6500-200-10500 and Rs.6500-175-9000 have been created solely with a view to give 8 employment to favourites. 8. It is alleged that whenever Union submits any legitimate demands, they are not met on the grounds that there is resource crunch and fund problems. The ARD recommended downsizing of staff for reduction of losses, yet, these posts are created which is patently arbitrary, highhanded and illegal act. The ARD report indicates that expenditure on payment of salary is more than 52 % of the total earnings of the Corporation and the said percentage should be brought down to 25 to 30 %. A copy of ARD report is annexed as Annexure “A” to the petition and it is contended that the decision to create posts taken as above is `wholly' vitiated. 9. It is alleged that immediately after the decision was taken, an advertisement is inserted in the daily “Gomantak Times” dated 9.3.02 at page 2 in the extreme right down corner, inviting applications for the post of Housing Keeping Coordinator. The advertisement has been published in such a manner and without the logo of the Corporation so that very few apply and chosen few can be appointed. Thereafter, a similar advertisement is published in daily “Gomantak Times” for the post of Marketing Manager. The advertisements have been published for the two posts distinctly and the name and logo of the Corporation is conspicuous by its absence in the 9 advertisements and that the Corporation is not acting fairly and reasonably. Our attention is invited to the fact that whenever tenders are invited by the Corporation, advertisement is published in the daily “Navhind Times” which has largest circulation in the State. The advertisements inviting applications for the post of Receptionist and Junior Engineer were published in this daily. In such circumstances, there is no justification for departing with this practice and publishing the advertisement in the instant case in “Gomantak Times” which does not enjoy such circulation. 10. It is alleged that no intimation was sent to the Regional Employment Exchange, nor where any names invited from the Employment Exchange in so far as the posts of Housing Keeping Coordinator and Marketing Managers are concerned. It is further alleged that not only creation of the posts of House Keeping Coordinator and Marketing Manager is arbitrary and illegal, but the process of hurriedly inviting applications for the said two posts is illegal and best possible talent available in Goa is excluded and kept out. Further, requirement of knowledge of Konkani which is otherwise an essential qualification does not find any reference in the advertisements which are published. 11. With regard to the posts of Receptionist, Electrician, Plumber and 10 Room Attendant, selfsame allegations are made and it is then alleged that for the post of Electrician although Recruitment Rules prescribe basic pay sale as being Rs.3050, the advertisement prescribes Rs.4000. This vitiates the advertisement and if such is the manner in which the same has been issued, then, it is apparent that the funds are being frittered away. The interviews for appointments were scheduled for 26th March, 2002 and 27th March, 2002. Normally, letters are issued to candidates. But, in the instant case, only telegrams were sent. The process is, thus, secret and nontransparent. Petitioners No.2 to 5 though eligible to apply for the post of House Keeping Coordinator and Marketing Manager and other posts, they could not even make applications for being considered to these posts. There is no publicity, much less wide publicity to the notices inviting applications. This is public employment and public funds are being utilized for filling up public posts. Members of public are entitled to apply and candidates from open market are also liable to be considered. In such circumstances, respondents No.1 and 2 have violated the mandate of Articles 14 and 16 of the Constitution of India. 12. Another ground on which the appointment and selection is challenged is that respondents No.1 and 2 gave 100 % emphasis on the marks awarded on oral interviews. When there is appointments to the posts, more specifically referred to above, there is no question of dispensing with written 11 tests and conducting oral interviews and assigning them excessive marks. This is also violative of the mandate of Articles 14 and 16 of the Constitution of India. The selection is wholly arbitrary. In paras 19 and 20 of the petition, this is what alleged : “ (19) The Petitioners have reasons to believe that Respondent No.3 has been recommended for appointment to the post of Receptionist. Respondent No.3 is the daughter of Respondent No.2, who was one of the Members of Selection Committee. The Petitioners state that selection of Respondent No.3 patently violates the principles of natural justice, which reiterates that no person can be a Judge of his own cause. The Doctrine of Bias is entirely attracted in a situation where the father is an essential constituent of Selection Committee where as daughter appears as a candidate. For this reason itself, apart from other infirmities, the proposed appointment of Respondent No.3 is illegal, invalid and unconstitutional. (20) The Petitioners state that to the best of their knowledge no intimation was sent to the Regional Employment Exchange with regard to the vacancies to aforesaid posts and the proposed recruitment thereto. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, provides that after commencement of said Act, in any State, employer in 12 every establishment in Public Sector in that State, before filling up any vacancy in any employment in that establishment, notify vacancy to such Employment Exchanges as may be prescribed. The purpose of this enactment is obviously to ensure fairness in selection process and at the same time prevent nepotism and favouritism at the cost of educated unemployed who have been waiting in cue for long many years. In the present case, the proposed appointments are invalid, as being in breach of the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.” It is finally alleged that the posts are filled up hurriedly at the instance of politicians and to draw political mileage. The process cannot be initiated and completed in such a manner. 13. On all these allegations, the petition was filed and it appears that during the pendency of the same, appointment letters were issued and that is how the affected employees are impleaded as respondents. 14. Shri Sonak, learned Counsel appearing for the petitioners contends before us that the petitioners are entitled to maintain the petition. There is no question of they having no locus standi to maintain the same. The 13 Union and those interested in seeking public employment are before the Court. Specific contentions are raised with regard to the obligations of State Government undertaking to fulfill the mandate of Article 14 of the Constitution of India. Further, there are Recruitment Rules in place and Shri Sonak contended that each of the Recruitment Rules prescribing qualifications have been given go-by. Once creation of posts itself is arbitrary and violative of Articles 14 and 16, then, filling them contrary to the Recruitment Rules further violates the said mandate. In such circumstances, it is clear that the process of recruitment and appointment is vitiated. The same be quashed and set aside. The Union had approached the First Respondent with legitimate demands, but no heed has been paid to the same. 15. Shri Sonak has contended that the petitioners have made good their case with regard to each of the allegations and for illustration he pointed out that the advertisements to the posts of Electrician, Plumber and Receptionist are at complete variance with the Recruitment Rules. In such circumstances, the advertisement itself was bad in law. The appointment in pursuance of such advertisement which relaxes or tends to do away with the eligibility criteria, cannot be sustained. 16. Inviting our attention to the affidavit-in-reply filed on behalf of 14 the respondents, it is contended that the mistake therein with regard to the some of the advertisements has been admitted and para 16 of the affidavit makes this aspect clear. If the recruitment is not in accordance with the Recruitment Rules and there is no power to relax or depart from the Rules, then, the mandate of Articles 14 and 16 is violated. These averments in the petition are not even denied. There is no question of substantial compliance in such cases. For all these reasons, the petition be allowed and the reliefs prayed be granted. 17. Shri Sonak relies upon the following decisions in support of his contentions : (1) Ashok Kumar Yadav and ors. vs. State of Haryana and ors., ((1985) 4 SCC 417; (2) Vikram Singh and anr. vs. Subordinate Services Selection Board, Haryana and ors., ((1991) 1 SCC 686; (3) Mohinder Sain Garg vs. State of Punjab and ors., ((1991) 1 SCC 662; (4) Madhukar Bakru Pingal vs. Rajendra D. Gaikwad and ors., ((1995) 6 SCC 2 . 18. On the other hand, Shri A.N.S. Nadkarni, learned Counsel appearing for respondent No.1 contended before us that the writ petition is not maintainable at the instance of the petitioners. The Union is not filing the 15 petition either in representative capacity or for and on behalf of the Member- Employees of respondent No.1 or espousing public interest. The Union is an entity of its own and it only represents to the first respondent/Corporation. The employees have not approached this Court. It is not the case of the petitioners that they were desirous of applying and could not so apply because of lack of publicity and transparency. That is not even the case pleaded. Petitioners No.2 to 5 are outsiders and claim to be allegedly qualified. However, they did not even forward any application form. They do not urge that their applications could not be submitted in time or because there was undue haste in filling up the posts that their applications were rejected as beyond time. If they had come up with a case that they noticed the advertisement later and that is what prevented them from applying within the stipulated time, then, different consideration coming into play and depending upon other allegations, this Court can entertain a petition challenging the recruitment process. However, petitioners No.2 to 5 do not seek participation in the recruitment process and once they do not seek such a participation in recruitment, then, they are not aggrieved parties. Therefore, they have no locus to maintain the petition and it must be dismissed on that ground alone. 19. Without prejudice to the above, on merits, it is contended by him 16 that there is no substance in any of the allegations or contentions raised. Averments in the petition are hopelessly vague. They are an afterthought inasmuch as none can dispute that the advertisements were duly published and applications were invited. Sizable number of candidates applied for the posts and participated in the process. None of them have come forward to urge that the process is vitiated on account of lack of transparency or the same is contrary to the Recruitment Rules. Their consideration is not in issue in this petition. Further, there was an objective assessment of the merits of the candidates by a duly constituted Recruitment Committee and Senior Officials of the Corporation were part of the same. They have ensured that the process is transparent and non-arbitrary. 20. Shri Nadkarni submits that when written tests and interviews are both part of the criteria for recruitment, then, undue or sole emphasis on oral interviews and assigning them excessive marks could be said to be a breach of the mandate of Article 14. However, there is no rule in the instant case which prescribes holding of a written test. On the other hand, the law is clear. Recruitment can be by holding interviews only. If such is the position in law, then, an oral interview being held by a high powered committee, and objective assessment of the candidate is undertaken that is reason enough to dismiss the petition. The averments in the petition are false. There are no 17 particulars and in any event they are vague. 21. Inviting our attention to para 17 of the petition, Shri Nardkarni submits that the petitioners were fully aware of the advertisements and commencement of the interviews on 26.3.02. They deliberately waited till the recruitment process is complete and when the appointment letters were only to be issued, that, they filed the petition. In such circumstances, the petition deserves to be dismissed. 22. Mr. Nadkarni submits that there is no substance in the allegation of favouritism inasmuch as respondent No.2 recused himself from the recruitment process as far as post of Receptionist to which his daughter was seeking appointment, is concerned. He was not part of the Committee when recruitment was undertaken for this post. In such circumstances and there being no Rule which prohibits his participation in the recruitment process qua other posts, the allegations of the petitioners cannot be sustained. 23. In all fairness Shri Nadkarni has handed over to us file in respect of recruitment of the said posts. Further he relies upon the following decision to support his contentions. Dr. Meera Massey (Mrs.), Dr. Abha Malhotra, Dr. S.C. Bhadwal and ors vs. Dr. S.R. Mehrotra and ors. ((1998) 18 3 SCC 88. 24. Learned Counsel appearing for respondent No.3 and other respondents, adopt Shri Nadkarni’s arguments and additionally submit that the petition is really infructuous because the candidates who have been appointed as Marketing Manager and the House Keeping Coordinator have resigned. These posts, if at all are to be filled in, would be filled in afresh. In these circumstances, it is not as if the petitioners are deprived of seeking employment to those posts. Further, other candidates have already taken charge and has started working. In these circumstances, the petition should not be allowed. 25. With the assistance of the learned Counsel appearing for parties, we have perused the petition and the annexures thereto. We are of the view from perusal of the affidavits filed in reply that there is no substance in the contention of the petitioners in so far as creation of the posts is concerned. The creation cannot be said to be abrupt and sudden. Respondent No.1 has filed an affidavit of its Managing Director who has explained as to how there was necessity of filling up the posts. It was pointed out to us that the Government of Goa wanted the First Respondent/Corporation to take over two guests houses hitherto managed by the Government and Management was to be taken over with effect from April, 2002. The First Respondent was 19 running 13 Hotels and Restaurants. But when it came to taking over the Government run Circuit House and the State Guest House at Altinho, Panaji where VVIPs and other dignitaries are accommodated, it was discovered that some posts would be needed for taking over the Management of the said guests houses. A separate Marketing Manager with a background of marketing management was required. The Corporation had no qualified persons and, therefore, that post was being created. Further, a proper house keeping system as per the standards laid down while managing the guests houses and resorts had to be maintained. That needed some coordinating experts. Such a coordinator would coordinate house keeping work and monitor the activities of attendants. Ultimately, there must be somebody to look after and monitor the activities of house keeping, so that the guests are not inconvenienced. The matter was placed for discussion before the Board of Directors of the First Respondent. Government approval was also sought for creation and filling up of the posts and other vacancies. It is, thereafter, that the decision came to be made. The decision is on account of administrative exigencies. It is a policy matter and it is well settled that the Courts have to be kept out of such issues. Creation of posts and filling up of vacancies is a matter which is best left to the employer and unless the exercise of discretion in that behalf is demonstrated to be ex facie arbitrary, illegal and contrary to public interest, the Courts cannot interfere. We are satisfied from the 20 contents of paras 4 and 5 of the affidavit in reply that the creation of posts by the First Respondent cannot be termed to be such as could be said to be arbitrary and violative of the constitutional mandate. 26. From a perusal of para 6 of the affidavit in reply, we are further satisfied that wide publicity was given to the posts. The applications were invited by issuing advertisements in 3 newspapers, details of which are set out in affidavits. It is not as if only “Gomantak Times” and “Gomantak” were chosen. The advertisements were also published in 3 newspapers, names of which are set out