:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO . 312 OF 2003 1. Shri D. S. Gaude, 2. Smt. Pramila Kalangutkar, 3. Smt. Shubal Naik, 4. Smt. Sharad Shirodkar, 5. Smt. Nita Naik, 6. Smt. Kumud Gaude, 7. Smt. Sneha Naik, 8. Shri Vaman Saperker, 9. Shri Chandranath Dessai, 10. Shri Krishna Diukar, 11. Shri Nilesh Naik, 12. Shri Rajesh Naik, 13. Shri Anand Parab, 14. Shri Sydel Gonsalves, 15. Shri Prashant Poinguinker, 16. Smt. Sheetal Raikar, 17. Shri Vishwas Kandolkar, 18. Smt. Shanti Asulkar, 19. Shri Robert Rodrigues, 20. Shri Antonio Pereira, 21. Shri Ajit Naik, Presently all employed as Upper Division Clerks, Office of the Commissioner of Excise, Government of Goa, Panaji Goa. ... Petitioners V e r s u s 1. Commissioner of Excise, Government of Goa, having office at Panaji Goa. 2. State of Goa, through its Chief Secretary, having office at Secretariat, Panaji Goa. 3. Smt. Rashmi Azgaonkar, Head Clerk ( presently re-designated as Excise Inspector ), Office of the Commissioner of Excise, Panaji Goa. ... Respondents :2: Mr. M. S. Sonak with Mr. J. Supekar, Advocates for the Petitioners. Mr. A. Kamat, Additional Government Advocate for Respondent Nos. 1 and 2. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the Respondent No.3. CORAM : S. B. DESHMUKH & F. M. REIS, JJ. DATE : 18 th NOVEMBER, 2010. ORAL JUDGMENT ( Per S. B. Deshmukh, J) Heard learned Counsel for the respective parties. Mr. Sonak who appears for the Petitioners took us through the prayers made in the present Petition. These prayers are amended with the leave of this Court. We have reproduced all these prayers herein below : (A) This Hon'ble Court be pleased to issue a writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction for striking down the Recruitment Rules of 2001, to the extent they provide for reduction in the promotees quota from 75% to 50% and for consequential directions to restore the promotees quota at 75% of the total number of available post of Excise Inspectors; (B) This Hon'ble Court be pleased to issue a further writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent Nos. 1 and 2 to withdraw the impugned order dated 23/10/2002 ( Exhibit 'H' to this Petition ) :3: forthwith; (BB) This Hon’ble Court be pleased to declare that the Recruitment Rules dated 30/9/2003 to the post of Excise Inspectors are ultra vires and unconstitutional; (BBB)During the pendency and final hearing of this Petition, this Hon’ble Court be pleased to restrain the Respondent Nos. 1 and 2 to fill the post of Excise Inspectors on the basis of the Recruitment Rules dated 30/9/2003 ( Exhibit ‘J’ to the Petition ). (C) That pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to stay the impugned order dated 23/10/2002 ( Exhibit 'H' to this Petition ), and consequently, the Respondent No. 3 be restrained from discharging duties as Excise Inspector; (D) For ad-interim ex-parte relief in terms of prayer clause herein above. 2. This Petition appears to have been filed on 8th April, 2003 by 21 Petitioners. Shri A. Kamat, learned Additional Government Advocate makes a list of the Petitioners who have been benefited of the promotion in view of the Rules concerned. It is marked 'X' for identification and taken on record. The photo copy of the same has been :4: served to the Advocates for the respective parties. Learned Additional Government Advocate on the basis of this document i.e. letter 'X' list of the Petitioners who have been allegedly promoted during the pendency of the Writ Petition, submitted, that around 18 Petitioners have been promoted as Excise Inspectors. Petitioner Nos. 19 and 20 have been promoted as Upper Division Clerks and the Petitioner No.21, has been promoted as Head Clerk. These promotions according to the learned Additional Government Advocate are in accordance with the Rules concerned i.e. Rules of 2001 i.e. Government of Goa, Office of Commissioner of Excise, Group 'C', Non-Ministerial, Non-Gazetted posts, Recruitment Rules, 1992 ( hereinafter referred to as the Rules 1992 for short ). The submission of the learned Additional Government Advocate, is not seriously opposed by the learned Counsel Shri Sonak on behalf of the Petitioners. 3. The grievance of the Petitioners, principally, is against the Respondent No.3. It is contended on behalf of the Petitioners that Respondent No.3, an individual person has been promoted as Excise Inspector. According to the Petitioners, Respondent No.3 is not eligible for such promotion. The Junior Stenographers working with the State of Goa and who were specifically in the Excise Department, for number of years were representing for the avenues of the promotion i.e. Excise Inspector. According to their contention, such representations, were not :5: favourably considered. Not only this, the learned Counsel appearing for the Petitioners points out a communication dated 17th July, 1996. This communication is at page 82 which has been signed by the Under Secretary ( Finance – Expenditure ). The communication is addressed to the Commissioner of Excise, Panaji. This communication is conveyed to the addressee the Commissioner of Excise, in respect of change of Recruitment Rules of the staff of Excise Department. In short the communication states that this change of Recruitment Rules of staff of Excise Department, was examined in consultation with the Personnel Department, Secretariat, State of Goa and it has been decided considering the duties performed by Junior Stenographers for the avenues of promotion to the post of Excise Inspector cannot be agreed to. According to Shri Sonak, learned Counsel for the Petitioners, this long standing demand of the Junior Stenographers, thus has been turn down by the Respondent – State. Despite this fact according to the learned Counsel for the Petitioners the State has passed impugned order favouring Respondent No.3. According to the Petitioners, this favouritism is on account of relationship of Respondent No.3 with one of the learned Cabinet Ministers at the relevant time. We have seen the order impugned dated 23rd October, 2002 at Exhibit H at page 83. This order seems to have been signed by the Commissioner of Excise. This order communicates that sanction has been accorded for re-designation of the post of Head Clerk in the Excise Department in the Pay Scale of :6: Rs.4500-125-7000 as Excise Inspector in the same pay scale. From this communication, it is not in dispute that the Respondent No.3 on the date of impugned order was holding the post of Head Clerk in the Excise Department and by virtue of this order, Respondent No.3 has been promoted to the post of Excise Inspector with immediate effect. It has been further clarified in this order that one of the Excise Inspectors shall handle the establishment/administrative matters in the Excise Department. Re-designation of the Respondent No.3 has been further noticed from this order. The post of Head Clerk, nomenclature of the Excise Inspector looking after the establishment/administration matter has been ordered to be looked by the Excise Inspector (Establishment/Administration ). 4. Shri Sonak, learned Counsel for the Petitioners fairly conceded that the concerned learned Cabinet Minister of the State of Goa is not joined as a party Respondent. 5. It is further contended on behalf of the Petitioners that the Rules concerned does not permit such promotion, in favour of person holding the post as Head Clerk as that of the Excise Inspector. In support of his submission, the learned Counsel Shri Sonak took us through page 73 i.e. the copy of the Government Gazette at Exhibit D. The reverse side of page 73 has been pointed out to us. The point is not in dispute that at the relevant time there were 33 posts of Excise Inspectors i.e. somewhere :7: in the year 1992. Our attention has been drawn to Column No.7 i.e. the Educational and other qualifications required for direct recruits. Shri Sonak submits that he is not concerned with the direct recruitment and therefore he straight away points out column no.11 of these Rules. According to him, so far as promotion to the post of Excise Inspector is concerned, the ratio has been given in this column no.11. We have seen the details of the ratio which reflects in column no.11. 6. Shri Sonak also points out earlier judgment of this Court in Writ Petition No. 201 of 1980 with other Petitions. It is seen that many Writ Petitions were filed before this Court and by a common judgment delivered by the Division Bench of this Court dated 5th December, 1990, Petitions were disposed of. Learned Counsel for the parties present before the Court has seen the judgment of this Court in group of these Writ Petitions dated 5th December, 1990. 7. On behalf of the State, our attention has been drawn to the affidavit in reply filed. It has been affirmed by Shri Rajeev Verma, Commissioner of Excise. The learned Additional Government Advocate took us through para no.5 of the affidavit in reply. It has been stated that somewhere in the year 1996 the proposal was moved by the Department to create a common cadre in respect of posts of Excise Inspectors and Head Clerks existing in the Department. It has been further stated that :8: U.D.Cs i.e. Upper Division Clerks and Junior Stenographers were not in favour of accepting the post of Head Clerk on promotion and therefore it had become difficult to fill up the post of Head Clerk in the Department. Having considered this difficulty, the proposal was moved to the Government by the Department by a letter in the month of June, 1996. Copy of the same is also placed on record at 'Annexure R-1'. We have seen the para no.9 of affidavit in reply. The meeting dated 3.7.1998 in the office of the Chief Secretary is being referred to. Subject was for the proposal of clubbing of posts of Excise Inspectors and Head Clerks in the Excise Department and in the said meeting the proposal was discussed amongst the officers attended the meeting. It was the outcome of the meeting that the posts of Head Clerks may be designated to that of Excise Inspectors and these posts were to be at the Head Quarters. The officers who were parties to the meeting arrived at conclusion to include the Junior Stenographers along with U.D.Cs as the feeder posts for Excise Inspector. Para 10 of the affidavit in reply shows the consent or agreement given by the Department of Finance (Revenue and Control ) of the Government of Goa. Annexure R4 is the letter of the Department concerned which we have noticed. In para 11 it has been stated that in view of the meeting, sanctioned by the Finance Department, approval letter dated 3rd April, 2002 was issued and accordingly the then Commissioner of Excise issued the order dated 23rd October, 2002 re-designating the Respondent No.3. :9: 8. Learned Additional Government Advocate has also pointed out para 15 of the affidavit in reply filed by the Respondent No.1 – State Government. It has been stated that the order impugned dated 23rd October, 2002 has been issued at the behest of the learned Cabinet Minister Mr. Azgaonkar. Learned Additional Government Advocate submits that the allegations made by the Petitioners alleging malafides against the Cabinet Minister are baseless and without any substance. He further submits that the proposal of common cadre was moved way back in the year 1996 and was under the Government's consideration much before Shri Azgaonkar become the Member of Legislative Assembly/Minister in the Council of Ministers, State of Goa. 9. On behalf of the Respondent No.3, affidavit in reply has not been filed. Learned Senior Counsel Shri Lotlikar, submitted, that the Petition is devoid of substance. For malafides he submitted that the learned Cabinet Minister Shri Azgaonkar is not joined as a party Respondent. He rely upon the affidavit in reply filed on behalf of the State Government – Shri Rajeev Varma. He submitted that all the Petitioners have availed promotions, and benefit of Rules concerned. These Rules are operating in the field for long time. The Petitioners have resorted to these Rules and are the beneficiaries. :10: 10. We have given careful consideration to the submissions made by the learned Counsel on behalf of the respective parties. In our opinion, the Petitioners major change, virtually, has become infructuous. This position is clear from the records which is not seriously disputed by the learned Counsel Shri Sonak. It is the matter on record that Rules of 1992 have been replaced by Rules of 2003. The promotion of some of the Petitioners have been governed by these Rules of 2003. We are satisfied based on the material placed on record by the learned Additional Government Advocate i.e. Annexure X, that major part of the grievance of the Petitioners in view of the promotion to them has become infructuous. So far as challenge to re-designation and order impugned in favour of Respondent No.3, in our opinion the Petition is devoid of substance. No interference, in our opinion is necessary in relation to order impugned dated 23rd October, 2002. 11. The Writ Petition therefore stands dismissed. Rule discharged. Parties shall bear their own costs. S. B. DESHMUKH,J F. M. REIS, J. at*