-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 423 OF 2004 1. Shri Socorro D'Souza, aged major, Assistant Manager, Miramar Residency, Goa Tourism Development Corporation Limited, Panaji, Goa, resident of Guirim, Bardez, Goa. 2. Shri Shagun Gunulo Parsekar, aged 49, assistant manager, Panaji Residency GTDC, Panaji-Goa. (Registered Address) …... Petitioners V e r s u s Goa Tourism Development Corporation Limited, a Government Company under Section 617 of the Companies Act, 1956 (Act 1 of 1956), having office at Trionora Apartments, Dr. Alvares Costa Road, Panaji – Goa. (Registered Address) …... Respondent Mr. M. S. Sonak, Advocate for the Petitioners. Mr. S. D. Lotlikar, Senior Advocate for the Respondent. CORAM : S. B. DESHMUKH & U. D. SALVI, JJ. DATE OF RESERVING : 27 th August, 2009 . DATE OF PRONOUNCEMENT : 4 th September, 2009. -2- JUDGMENT (Per S. B. Deshmukh, J.) The Petitioners have prayed for issuance of writ of mandamus against the sole respondent for awarding petitioners TBPS (Time Bound Promotional Scale) w.e.f. 21.03.2000 instead of 06/08/2003 and 27/06/2003 with all consequential benefits including the arrears. 2. This Petition was filed by these two petitioners on 16.09.2004. State of Goa is not joined as a party-Respondent. Goa Tourism Development Corporation Ltd., (hereinafter referred to as GTDC Ltd. for short), is the sole respondent. Petitioners have alleged that respondent-sole is “State” within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction of this Court. According to petitioners, both of them were appointed as Lower Division Clerks (LDC) in the pay scale of Rs.260-400 plus usual allowances. Services of the petitioners were placed at the disposal of Respondent- GTDC for the period of one year on deputation. This deputation was by Order dated 18.12.1986. From 21.03.1988, both the petitioners were promoted as Upper Division Clerks/Asst. Managers/House Keeper/Tour Supervisor/Transport Supervisor in the pay scale of Rs.1200-2040 with immediate effect. Tentative Seniority List was circulated somewhere in the month of August 1989. Petitioner no.1 was shown at serial no.19 -3- and petitioner no.2 was shown at serial no. 23. According to the petitioners, final seniority list was circulated in the month of September 1989. Name of the petitioner no.1 was shown at serial no. 19 and name of the petitioner no.2 was shown at serial no.23 in the respective categories. According to them, by Order dated 06.08.1991, they were permanently absorbed with the respondent-GTDC. On 20.08.1991, petitioner no.1's absorption was confirmed by the respondent. Such confirmation was also accorded by the respondent in relation to absorption of the petitioner no.2 on 08.05.1991. Petitioner no.1 opted for receipt of the “lump sum amount in lieu of monthly pension”. The petitioner no.2 did not receive such little sum amount as he had not completed ten years service. Petitioner no.1 received terminal benefits of Rs.49,560/- by the Order issued by the Government of Goa on 10.07.1992. On 11.03.1994, finalized Seniority List was again circulated. Name of petitioner no.1 was shown at serial no. 20 and petitioner no.2's name was mentioned at serial no. 24. On 13.09.1994, the petitioners were confirmed in the category of UDCs/Assistant Managers/House Keepers/Tour Supervisors/Transport Supervisors with immediate effect. Petitioner no.1 raised some grievances regarding pay fixation in the month of 16.01.1998. State of Goa introduced Time Bound Promotional Scale (TBPS) for the employees. The petitioners have raised their grievance by the representations right from 2000 -4- onwards. It is also contended in the Petition that 12 years period contemplated under TBPS should have been counted from the date of absorption of the petitioners with respect to GTDC. It is also contended that the juniors were given higher pay scales and petitioners have been discriminated. According to them, TBPS made effective from 06.08.2003 and 27.06.2003, is illegal and discriminatory. 3. The learned Counsel Mr. M. S. Sonak for the petitioners, submitted that both the petitioners are entitled and eligible for the benefits of TBPS w.e.f. 21st March, 2000. He emphasized the Circular of the Seniority List and status of the petitioners shown in that list. According to him, this list is prepared and maintained by the respondent- GTDC. He further submitted that even if the petitioners are considered to be Government employees, they are entitled for benefits of the TBPS. According to him, service of the petitioners with the State Government before their absorption with GTDC needs to be counted and considered. He has also pointed out from the paper book such circular and/or instructions issued by the State Government. Advocate for the Petitioners submitted that absorption annexure 'F' (page 34) is the communication dated 06.08.1991. This absorption was to take immediate effect meaning thereby from 06.08.1991. -5- 4. Per Contra, learned Counsel for the respondent-GTDC submitted that petitioners have been awarded benefits of TBPS. Petitioner no.1 has received terminal benefits amounting to Rs.49,560/-. Petitioner no.2 was not entitled for such terminal benefits since he did not complete ten years service. He submitted that petitioners are not entitled for the relief which they have prayed. 5. There is no dispute that petitioner no.1 was appointed as LDC by appointment Order dated 06.05.1981 and petitioner no.2 was appointed as LDC from 12.12.1982. It is also not in dispute that the petitioners were on deputation to the respondent from 1988. Order of deputation is annexure 'B' (page 27). This Order pertains to deputation of petitioner no.1 Mr. Socorro D' Souza. Order of deputation in relation to petitioner no.2, Mr. Parsekar, is annexure 'B' (page 28). The promotion of the petitioners, is also not in dispute. Annexure 'C; (page 29) is the Order dated 21.03.1988. Both of them have been promoted as UDCs/Assistant Managers/House Keepers/Tour Supervisors/Transport Supervisors in the pay scale of Rs.1200-30-1560- EB-40-2040. This promotion was with immediate effect. Name of the petitioner no.1 is at serial no.1 in this Order and name of petitioner no.2 is at serial no.5. -6- 6. We have seen the Tentative Seniority List dated 10.08.1989 annexure 'D' (page 30). Name of petitioner no.1 is at serial no. 19, wherein date of absorption with the respondent is shown as 21.03.1988. Name of petitioner no.2 is at serial no. 23 and date of absorption is shown as 21.03.1988. Annexure 'E' (page 32) is the Circular issued by the respondent-GTDC, circulating final Seniority List of various categories. We are concerned with the petitioners. Name of the petitioner no.1 is shown at serial no.19 and date of appointment shown as 21.03.1988. Petitioner no.2's name is mentioned at serial no. 23 and date of absorption is shown as March 21.03.1988. The Counsel for the petitioners resorting to this final Seniority List submitted that petitioners have been absorbed and are entitled for TBPS benefit. It is not possible for us to accede to the submissions of the Counsel for the petitioners on this count. On our querry, learned Counsel for the petitioner fairly concedes that State of Goa is not joined as party-respondent in this Petition since relief is being sought against the GTDC alone. He does not dispute that the petitioners were appointed initially by the State of Goa. In other words and from the date of appointments, petitioners were Government employees. Their absorption Order is on record at annexure 'F' (page 34). This Order is important. This Order is under the signature of Under Secretary, Government of Goa, Tourism Department. This annexure 'F' is addressed to the Director of Tourism. It has been -7- conveyed by this Order that the issue of permanent absorption of the employees of the Directorate of Tourism in the GTDC was under consideration of the Government and on the terms and conditions mentioned in annexure 'F', final absorption of the employees including the present petitioners have been made. Annexure 'F' Item no. 2 specifically makes a reference of date of effect of permanent absorption. It is mentioned that permanent absorption shall take immediate effect. In our opinion, 06.08.1991 is the date of permanent absorption of the present petitioners with GTDC, the sole respondent in this Writ Petition. The benefit, if any, under the TBPS in relation to the present petitioners and against the respondent-GTDC, needs to be considered and awarded from this basic date of permanent absorption of the petitioners with the respondent-GTDC. 7. We have seen annexure 'G'. This annexure bears the date as 08.05.1991. It is reflected from this communication that there was correspondence amongst the Director of Tourism and the State of Goa on account of permanent absorption of the employees of Directorate of Tourism in the Goa Tourism Development Corporation Ltd. i.e. GTDC. It is clarified in this communication that employees of the respondent- GTDC, have been permanently absorbed in public interest with immediate effect on the terms and conditions envisaged in the -8- communication of the Government of India, Ministry of Finance (Department of Expenditure) dated 08.04.1976, as amended from time to time. The principle terms and conditions are reproduced in this communication annexure 'G' Item no. I - Pension/Gratuity is referred, in item no. II – Calculation of pro-rata retirement benefits is referred. In item no. IV – Option to be exercised by the employees, limitation of six month for that purpose and alternative made available have been indicated. In the case on hand, there is no dispute that option was exercised by the petitioners. Counsel for the petitioners has invited our attention to item no. xiii i.e. interpretation clause. According to him, in case of doubt or difference of opinion regarding the interpretation of terms and conditions set out in that communication, reference to the Finance Department is contemplated and decision of the Finance Department is made final. 8. The Time Bound Promotional Scales (TBPS for short), is material in the case on hand. Both the learned Counsel took us to annexure 'N' (page 68) Office Memorandum pertaining to TBPS for Group 'C' and 'D' employees and implementation thereof. This Memorandum annexure 'N' is dated 05.07.1989. It has been clarified in this Memorandum that grant of TBPS to the Government employees in State of Goa was under consideration. The State Government after -9- careful consideration sanctioned TBPS to Group 'C' and 'D' employees of the State Government with effect from 01.06.1989 on the terms and conditions embodied in this communication annexure 'N'. The scheme shall be applicable only to Group 'C' and 'D' of Government employees including those Group 'C' employees who are eligible to be promoted to Group 'B' posts. It is further mentioned in item no. II that employees should have put atleast 12 years of service in the existing post. They must possess the requisite qualifications prescribed for the next higher post; Grant of TBPS should be recommended by the Departmental Promotion Committee. There are other terms and conditions which we are not reproducing in this Judgment. One more communication annexxure 'N' collectively (page 63) is also pointed out to us. It is Office Memorandum pertaining to same subject, however, dated 22.12.1989. Reason for this Office Memorandum is for clarification on the points raised for implementation of the TBPS to Group 'C' and 'D' employees. In this communication, queries raised and clarification given is mentioned in detail. From these two communications broadly speaking, it appears that the State of Goa has considered the grant of TBPS for the reason that employees are stagnated on particular post for years together. The reasons for not promoting the employees, even if they are eligible for next higher promotion may be various. It was the grievance of the employees that they were losing the opportunity of receiving -10- higher pay scale and for monetary benefits on account of not promoting them to next higher post. The State of Goa, therefore, has issued this Office Memorandum of TBPS with terms and conditions mentioned therein. The period of such TBPS is 12 years, eligibility of such employee for promotion to next higher position and recommendation by the Departmental Committee are conditions along with other conditions. One of the important condition is that such TBPS shall be granted only once in the entire service. Such condition reflects from Office Memorandum annexure 'N' (page 68) and serial no.1 thereof. This aspect is not seriously disputed on behalf of the petitioners also. There is also no dispute that while computing 12 years period, the service rendered if any by the employee concerned in Government Department is to be counted for the purpose of TBPS. This can be seen from the annexure 'O' (page 70), communication dated 17.11.1999. This communication is signed by the Under Secretary (Personnel) and addressed to the Managing Director of respondent- GTDC. In the facts and circumstances of the case, now, repatriation of the petitioners to the State of Goa is out of question. Petitioners have been permanently absorbed. They had exercised the option and now their absorption with GTDC has been finalised from 06.08.1991. Objective behind the TBPS is to give the monetary benefit and/or benefit -11- of higher pay scale of the next higher post to which employee is eligible. The process of absorption, took the substantial period of time. It appears from the record that there is exchange of correspondence amongst the State of Goa and respondent-GTDC. From the record, it appears that such correspondence was in between the period from 1985 till 1991. During this process, respondent-Corporation had also passed a resolution of its Board of Directors held on 08.11.1985. Sanction from the State Government was the important issue which has been accorded by the State Government on 06.08.1991 with immediate effect. Absorption of the petitioner no.1 before this date i.e. 06.08.1991, cannot be accepted. We cannot ignore the fact that petitioner no.1 had received terminal benefits in the terms of sum of Rs.49,560/-. It is true that petitioner no.2 did not receive such terminal benefit, but then he was not eligible. He did not complete the period of ten years in service. Petitioner no.1 joined the Government service on 06.08.1981 and petitioner no.2 resumed Government service on 12.12.1982. Both of them were holding status/position as Lower Division Clerks on their appointment with respective pay scale at the relevant time and as per Rules. Both of them have been placed in higher pay scale by the respondent-GTDC from 21.03.1988. As per the option exercised by both of them, they have been permanently absorbed -12- as LDC/Receptionists from 06.08.1991 with protection of their pay scale which, according to them, they were getting on alleged promotion of the year 1988. We have accepted the contention of respondent/GTDC that their permanent absorption had not been sanctioned by the Government on 21.03.1988. That permanent absorption of the petitioners with respondent is dated 06.08.1991. 9. The respondent in its reply/affidavit has clarified that there is no discrimination extended to the petitioners by the Corporation i.e. GTDC. In reply/affidavit at para 13, the case of Mr. Verenkar and Mr. Almeida and other employees for which grievance was raised by the petitioners has been clarified. We are satisfied that there is no substance in the contention of the petitioners regarding the alleged discrimination. From para 14 of the reply/affidavit, it seems that petitioner no.1 got higher pay scale on absorption i.e. 06.08.1991. The contention of the respondent that the petitioners got still higher pay scale within a period of seven years of his resuming Government service i.e. in the year 1988, seems to be justifiable. Said benefits were enjoyed by the petitioner no.1. Even though he was absorbed as LDC/Receptionists within a period of five years of his absorption and seven years of his being placed in the scale of UDC. While calculating the period of 12 years provided under TBPS, though it is mentioned that -13- service in Government Department to be counted, we are satisfied that in the case on hand, respondent-GTDC is justified in its contention that petitioners who were appointed as LDC were already given a higher pay scale at the time of their absorption and factually before their absorption. In our opinion, contention of the respondent-GTDC that petitioner no.1 is eligible for TBPS since 06.08.2003 and petitioner no.2 from 27.06.2003, is legal and proper. Such Order of the respondent-GTDC annexure 'T' (page 78) is, in fact, on record. 10. On behalf of the petitioners, learned Counsel relied on the Judgment of the Division Bench of this Court in the matter of B. S. Hanchinal & Ors. vs. State of Goa & Ors. Reported in 2008(6) Bom. C.R. 258. There, in that case, TBPS, was denied by the State of Goa to the Physical Education Teachers in different Government Schools on the ground that petitioners have not completed 12 years of regular service. This Court, considering the facts therein, held that word 'regular' does not appear in the scheme. On this background, ignoring 14 years service from the date of appointment of petitioners in that case for benefit of scheme, was held ex-facie, erroneous and illegal. In our view, facts in the case on hand are distinguishable. The Judgment of this Court in the case of Hanchinal & Ors. vs. State of Goa & Ors. (supra), therefore, does not help the petitioners. -14- 11. Mr. Sonak, the learned Counsel for the petitioners also relied on Judgment of the Supreme Court in the matter of Dwijen Chandra Sarkar & anr. vs. Union of India & Ors. reported in (1999) 2 S.C.C. 119. The issue before the Court was whether service rendered by an employee prior to his transfer to P & T (Post & Telegraph Department) to be accounted. Service rendered by the employees in the P & T Department, was required to be accounted. The contention raised by the petitioners therein has been accepted by the Hon'ble Supreme Court on the facts obtained in that case. There the Hon'ble Supreme Court held that transfer was in public interest, was not on request of the employees and those two employees could not be put into worse position then those who have been transferred on request. Clear facts in the case on hand are different. We reiterate that petitioners, LDCs, on their appointment were getting their salary permissible for LDC and have been paid higher salary within a period of five to 7 years of their appointment. They further came to be absorbed in the year 1991 with protection to their higher pay scale. Ratio of this Judgment, in our view, does not help the petitioners on the case on hand. Mr. Sonak, learned Counsel for the petitioners has drawn our attention to Judgment of Division of this Court (Unreported) in Writ Petition no. 65/1996 (Shri J. M. Fernandes & ors. vs. State of Goa & -15- anr.) dated 10.11.1998. Here, in this case, TBPS scheme was introduced from 01.06.1989. The petitioners were working as Head Surveyors in the Land Survey Department in the pay scale of Rs.1400- 2300 prior to their being declared surplus. Petitioners opted deployment outside the Department and were absorbed against lower posts in the Irrigation Department. Pay scale for that post was Rs.1200-2040. On the background of these and other facts, it was held by this Court that the petitioners in that case were entitled to TBPS at Rs.1600-2660 w.e.f. 01.06.1989 with all consequential benefits. We have considered the facts of the case on hand. It is not possible for us to accept the submission of Counsel for the petitioners that the ratio of this Judgment applies to the case on hand. 12. Counsel for the petitioners relied on a Judgment of the Supreme Court in the matter of State of Punjab and Ors. v. Inder Since & Ors. reported in AIR 1998 S.C. 7. With the assistance of learned Counsel Mr. Sonak, we have considered the facts obtained in the matter and ratio of this Judgment. Here in this case, Para 19 is material, wherein the Hon'ble Supreme Court has considered the concept “deputation”. At the end of para 19, the Hon'ble Supreme Court held on the background, facts of that case that there is no escape for the respondents now to go back to their Parent Department and working -16- there as Constable or Head Constable as the case may be. In our case, it is nobody's case that petitioners can repatriate. Their absorption with GTDC is on exercise of their option, permanent and has attained finality. Ratio of this Judgment, in the facts and circumstances of the present case, does not help the petitioners. 13. In view of the view which we have taken, we proceed to dismiss the Petition. 14. Writ Petition stands dismissed. However, with no Order as to costs. 15. Rule discharged. S. B. DESHMUKH, J. U. D. SALVI J. arp/*