1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No. 77/2004 Mrs. Iva Fernandes, Food Inspector, Directorate of Food and Drugs Administration, Campal,Panaji-Goa. ... PETITIONER V e r s u s 1. State of Goa, through its Chief Secretary, having office at Secretariat, Panaji, Goa. 2. The Secretary (Health), Government of Goa, having office at Secretariat, Panaji, Goa. 3. The Director, Directorate of Food and Drug Administration, D. B. Marg, Old G.M.C. Complex, Campal, Panaji-Goa. 4. Shri Kishor G. K. Aldonkar, Food Inspector, Directorate of Food & Drugs Administration, Panaji-Goa. …RESPONDENTS --------------------------------------------------------------------------------- Mr. M. S. Sonak Advocate with Mr. J. Supekar, Advocate for petitioner Mr. S. Bandodkar, A.G.A. For respondent nos. 1 to 3. CORAM: S. A. BOBDE & F.M. REIS, JJ. DATE : 4 th July, 2011. ORAL JUDGMENT (per S. A. Bobde, J.) 1. By this petition, the petitioner seeks appointment to the post of Assistant Local (Health) Authority, which arose in the 2 year 1990. The petitioner was appointed in the Department as Food Inspector. A vacancy of Assistant Local (Health) Authority arose in the year 1990 in the Food and Drugs Administration Department (FDA). At that time, the post was filled up by direct recruitment and required qualifying service as Food Inspector was five years. The petitioner, pursuant to an advertisement issued by the respondents, made an application for appointment by direct recruitment as an Assistant Local (Health) Authority to the FDA. Her claim was, however, not considered. She, therefore, approached this Court by Writ Petition No. 185/1992. In that writ petition, the appointment of the person, who was selected instead of petitioner i.e Raju Pai Raikar, was set aside. Along with that petition, Writ Petition No. 386/1991, filed by one Madhusudan L. Thakur, was also allowed. In that petition, promotion of one Sudhin R. Karpe, was set aside. With these two writ petitions, Civil Review Application No. 15/1998 filed by the respondents herein was also decided. All these matters were decided on 10.07.1998 by a common judgment. The directions given by this Court assume importance which are as follows: 3 “We consider the State Government to consider the matter of recruitment to the post of assistant Local Health Authority (two posts) afresh, having regard to the Rules as prevailing since 1994. The State Government shall examine the claims of Kum. Iva Fernandes, petitioner in Writ Petition No. 185/92, Shri Madhusudan L. Thakur, petitioner in Writ Petition No. 386/92 and Shri Sudin R. Karpe, repsondent no.4 in Writ Petition No. 386/91. The Government shall also examine the claim of granting deemed date to the officials in the cadre of assistant Local Health Authority. Till that time, the present arrangement which is in vogue shall be continued.” Thereafter, Mr. Sudin Karpe, respondent in W. P. No. 386/1991, approached the Supreme Court of India. The Supreme Court found that his appointment ought to not have been interferred with in the Review Petition. The Supreme Court found that it was not the order regarding Sudin Karpe which was illegal and observed as follows: “That part of the order made by the High Court is plainly wrong and to that extent is set aside. In other respects the order of the High Court shall remain undisputed. The appeal is disposed of accordingly.” 4 2. After this order was passed by the Supreme Court on 06.11.2001, a Departmental Promotion Committee (DPC) was convened in the year 2004 in which the petitioner's case was examined. However, it was examined along with relative merits of those, who had qualified later i.e. in the year 2000. Mr. Sonak, the learned counsel for the petitioner, submits that this was not the intention of this Court while passing the common order dated 10.07.1998. 3. According to Mr. Sonak, the learned counsel for the petitioner, this Court gave a clear direction to the State Government to consider the matter of recruitment to the post of Assistant Local (Health) Authority, afresh having regard to the rules as prevailing in the year 1994. Therefore, the petitioner's eligibility should have been considered as on the date the post was created i.e. in the year 1991 or later when the promotions were made but in no case it was contemplated by this Court that the petitioner's relative merit should be adjudged along with those who have qualified later. 4. Mr. Bandodkar, the learned A.G.A. for the 5 respondents, however, submits that the petitioner's case could not have been considered by the DPC since the petitioner had made an application for direct recruitment in the year 1990. That, under the 1994 Rules, according to which the respondents were bound to consider the petitioner's appointment, there was no provision for appointment by direct recruitment but only by way of promotion. This argument must be rejected in view of the fact that this Court gave a specific direction to the State Government to consider the appointment to the post of Assistant Local (Health) Authority, according to the 1994 Rules. This clearly implies that the petitioner should be considered for appointment by promotion under the 1994 Rules since direct recruitment had, admittedly, been abolished under the said Rules. In any case, respondents have, in fact, considered the petitioner for promotion and the question is only, whether petitioner's relative merit ought to have been adjudged along with those, who qualified later. The answer seems to be, without any doubt, that the petitioner's case had to be considered with reference to the relative merit of those, who were in the zone of consideration when the order was passed by this Court on 10.07.1998 and not with reference to those, who qualified later. 6 5. In the circumstances, we hold that the DPC committed an illegality in this regard. Accordingly, the selection of respondent no.4, who has by now retired must be held to be illegal. However, in view of the fact that respondent no.4, who has worked and retired and neither any illegality nor any misrepresentation or fraud is attributable to him, we direct that he shall not be liable to any action including any action for recovery. 6. In this view of the matter, we direct the respondents- State to hold a review DPC and consider the petitioner's case for promotion under the 1994 Rules, as already directed by the earlier judgment dated 10.07.1998, in accordance with law, along with relative merit of those candidates, who were eligible on the date of judgment of this Court i.e. on 10.07.1998. Rule made absolute in the above terms. No order as to costs. S. A. BOBDE, J. F. M. REIS, J. kahale