-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 83 OF 2005 Dr. Gokuldas Hulo Gaude Major in age, married, Working in Goa Medical College Panaji Goa, at present r/o. Marcaim, Ponda Goa. (Registered Address) …... Appellants V e r s u s 1. The Chief Secretary Government of Goa Secretariat, Panaji, Goa. 2. The Dean, Goa Medical College, Bambolim Goa. 3. The Goa Public Service Commission through its Secretary having office at E.D.C. House Panaji, Goa. (Registered Addressess) …... Respondent Mr. D. Pangam, Advocate for the Appellants. Mr. S. Vahidulla, Addl. Government Advocate for Respondent nos. 1 and 2. Mr. H. D. Naik, Advocate for Respondent no.3. Coram :- F. M. REIS, J Date : 14 th July, 2011. JUDGMENT Heard Shri Pangam, learned Counsel appearing for the Appellant, Shri S. Vahidulla, Government Advocate appearing for Respondent nos. 1 and 2 and Mr. Naik, learned Counsel appearing for Respondent no.3. 2. The above Appeal challenges the Judgment and Decree dated -2- 16.12.2004, in Civil Suit no. 218/2004 (new). The Appellant filed the suit against the Respondents on the ground that he is a Doctor and had passed M.B.B.S. Graduation through Bombay University in October, 1990 and that an advertisement dated 08.04.1994, inviting applications for the post of demonstrators in P.S.M. The said advertisement clearly stipulated that the post was reserved for the candidates of Other Backward Class (O.B.C.) and in the event, no O.B.C. candidates were available, the same would be reverted to general category. It is further his case that as the Appellant belonged to O.B.C. Category, he applied for the said post and was called to attend an interview held by the Respondent no.3 on 13.06.1994. He further stated that on the date of the interview, though he was the only candidate from O.B.C. Category, the other candidates from general categories were also being interviewed. He further states that by letter dated 13.02.1995, he was informed that Ms. Nadia Rangel was selected and was also appointed for the post of demonstrator in P.S.M. though according to him she did not belong to O.B.C. Category. He further stated that the process of selection as such was totally illegal and that he came to know that the said Dr. Rangel was holding a post graduate degree whereas the Appellant did not possess such degree but only an M.B.B.S. degree. He further contended that only the desirable qualification mentioned in the Recruitment Rules was of a post graduate and, accordingly, the Appellant registered himself for the post graduate and thus he possessed both the qualifications. He further contended that there was no question of interviewing the general category candidates when the post was reserved for O.B.C. Category. He further stated that he made a representation about the said procedure and as no reply was given to him to the said representation, a legal notice was served and, ultimately, a Writ Petition no. 144 of 1995 was filed before this Court against the -3- Respondents and the said Dr. Nadia Rangel. The said Writ Petition was filed and disposed of on 22.06.1998 with a direction to the Respondent no.3 to hold an interview afresh of the Appellant for the post earmarked for O.B.C. and evaluate it suitability independently having regard to the terms and conditions as prevailing on 08.04.1994. Accordingly, the Appellant answered the said interview and he was selected for the post of P.S.M. under the O,B.C. Category and is working as such. He further contended that on account of the faulty, wrong and biased act of the Respondent no.3, he was not selected and appointed to the post of demonstrator for a period of four and half years which deprived him of his salary. He further stated that he suffered mental torture and that all the Respondents are jointly and severally solely responsible for the loss that occasioned to him for such delay. He accordingly claimed a sum of Rs.9,00,000/- for such loss being loss of salary for four years and five months Rs.4,50,000/-, loss of seniority Rs.2,50,000/- and mental torture Rs.2,00,000/-. Accordingly, the suit came to be filed for a Decree of Rs.9,00,000/- with interest therein. 3. The Respondent no.3 filed their written statement and claimed that the suit is misconceived and not tenable in law and that mere selection of the Appellant in the year 1999 does not give any right to claim compensation for non- selection in the year 1994. They further pointed out that there is no cause of action for the Appellant to filed the said suit. He has further pointed out that even assuming any cause of action exists, the same arose on 31.02.1995 when he was so informed of his non-selection and as such the suit is barred by law of limitation. They further pointed out that the Appellant had not claimed any compensation before this Court nor any such damages were awarded to the Appellant. They have -4- further contended that merely applying for the post even though eligible does not confer any right of such candidate to be appointed. They further pointed out that the Respondent no.3 had applied to the Respondent no.1 for the de-reservation of the reserved post for Demonstrator P.S.M. as there were no candidates and that by letter dated 09.06.1992, the said post was de-reserved. They further contended that the post was not at all reserved for O.B.C. at the relevant time and justified their action. They further pointed out that the Recruiting Committee did not find the Appellant suitable for the post and that his suitability was separately assessed and considered. It is further their case that the Appellant did not fulfill the desirable qualification. It was further submitted that Dr. Nadia Rangel was holding a post graduate degree whereas the Appellant possessed a M.B.B.S. Degree at the relevant time. The said Respondent further stated that the directions of this Court were given on the basis of what is recorded in para 3 of the Judgment and at the time of interview on 10.09.1998, he was found to be suitable. The claim of the Appellant that the said Respondents are liable to pay damages, has been seriously disputed at para 17 of the written statement and for other reasons stated in the written statement, the said Respondents submitted that the suit deserves to be rejected. 4. The Respondent nos. 1 and 2 have filed their written statement disputing the claim put forward by the Appellant and also raised similar contentions as pleaded by the Respondent no.3. For the other reasons stated in the written statement whereby the claim of the Appellant was disputed by the said Respondents, it was prayed that the suit deserves to be rejected. -5- 5. The learned Judge after framing the issues and recording of evidence by the impugned Judgment dated 16.12.2004, dismissed the suit filed by the Appellant. 6. Being aggrieved by the said Judgment, the Appellant has preferred the present Appeal. 7. Shri D. Pangam, the learned Counsel, appearing for the Appellant has assailed the impugned Judgment and pointed out that the learned Judge has misdirected himself to come to the conclusion that the Appellant has failed to prove that he is entitled to any compensation. The learned Counsel further submitted that in view of the fact that the Appellant was not considered in the year 1994 by the Higher committee, he was deprived of his right of being appointed as Demonstrator for a period of four and half years for which the Appellant is entitled to claim compensation from the Respondents. The learned Counsel further submitted that the learned Judge has erroneously come to the conclusion that the Appellant has failed to establish that he is entitled to a sum of Rs.9,00,000/- as compensation for loss sustained by him on account of the fault on the part of the Respondent no.3. The learned Counsel further submitted that the learned Judge has erroneously come to the conclusion that the suit filed by the Appellant is barred by the law of limitation. The learned Counsel further took me through the impugned Judgment as well as evidence on record and pointed out that on account of the default committed by the Respondents, the Appellant was deprived of being considered for selection in the year 1994 and, as such, considering that the Appellant was selected pursuant to directions of this Court, the Appellant is entitled to -6- compensation as claimed in the suit. The learned Counsel as such pointed out that the impugned Judgment deserves to be quashed and set aside. 8. On the other hand, Shri Vahidulla, the learned Government Advocate appearing for the Respondent nos. 1 and 2, has supported the impugned Judgment. The learned Counsel has submitted that merely because he was called for interview, does not by itself entitle him from being appointed for the post. The learned Counsel further submitted that merely because the Appellant was qualified to be appointed, it does not automatically mean that he could be appointed for any such post as advertised by the Respondents. The learned Counsel further submitted that in the Writ Petition filed before this Court, no grievance to that effect was raised by the Appellant and as such the suit filed by the Appellant is barred by provision of resjudicata. The learned Counsel further submitted that the learned Judge has correctly come to the conclusion that the suit is barred by limitation and as such no interference is called for in the impugned Judgment. 9. Shri H. D. Naik, the learned Counsel appearing for the Respondent no.3, has submitted that the Appellant was found not suitable for the post at the time of his interview in the year 1994 and as such merely because he was having the requisite qualifications, would not by itself give him a right of appointment to such post. The learned Counsel further submitted that the suit filed by the Appellant besides being barred by limitation is also barred by resjudicata, as admittedly, in the Writ Petition filed before this Court, no grievance to that effect was raised by the Appellant. The learned Counsel further submitted that no leave was sought by the Appellant from this Court for claiming any relief for filing this suit -7- and, as such, the suit deserves to be dismissed as the learned Judge has rightly assessed the evidence on record and has dismissed the suit of the Appellant. 10. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present Appeal : 1. Whether the Appellant is entitled for the claim of Rs.9,00,000/- together with interest as claimed in the suit on account of the fact that he was not selected to the post in the year of 1994 ? 2. Whether the learned Judge was justified to come to the conclusion that the suit is barred by limitation ? 11. Whilst passing the impugned Judgment, the learned Judge has noted that it is an admitted fact that the Respondent no.3 had invited applications for the post of a Demonstrator vide advertisement no. 4/1994 dated 08.04.1994. The learned Judge further found that the advertisement indicated that the post was reserved for O.B.C. category failing which it would be filled by the candidate of the general category. The learned Judge found that the Appellant was the only O.B.C. candidate who had responded to the said advertisement and that there were nine other candidates from the general category. The learned Judge further found that Dr. Nadia Rangel was the candidate from general category who was appointed for the said post. The learned Judge further found that the Appellant filed the Writ Petition before this Court and the same was disposed of with a direction to the Respondent no.3 to consider the suitability of the Appellant afresh. The learned Judge whilst assessing issue no.1 has come to the conclusion that allegations of bias against Respondent no.3 has not been established by the Appellant. The -8- learned Judge further found that the process of selection made by the Respondent no.3 was found faulted by this Court while disposing of the said Writ Petition and, as such, the issued no.1 was partly answered in favour of the Appellant to that extent. On perusal of the Judgment of this Court in the said Writ Petition, the suitability of the Appellant appears to have been assessed alongwith the other candidates of general category. This procedure is not in accordance with law. Apart from that, Respondent no.3 has not produced the evidence to substantiate their contention that the procedure adopted by the Respondent was not faulted. The learned Judge has rightly come to the conclusion that such documents have been suppressed from the Court. I find no reason to interfere with the said findings of the learned Judge while deciding issue no.1. 12. The learned Judge while considering issue no.2 as to whether the Appellant had established his claim for the compensation of Rs.9,00,000/-, has found that a person who makes an application pursuant to an advertisement, does not have a vested right of being appointed. The learned Judge has further found that mere selection of a candidate does not confer him a right to get an appointment for the post advertised. I find no infirmity in the said findings of the learned Judge. The Apex Court in the Judgments relied upon by the learned Judge in the impugned Judgment has categorically held that the candidate on making the application for the post pursuant to an advertisement does not acquire any vested right of selection. Hence, the Appellant merely because he was qualified cannot have a vested right that he would be appointed for the said post. The learned Judge further found that neither in the pleadings nor in the evidence the Appellant stated that he was suitable candidate and, therefore, ought to have been -9- appointed. The learned Judge also noted from the evidence of Dw.1 and Dw.2 that they had made categorical statement that the interview Committee had considered the suitability of the Appellant and found him to be not suitable for the post. Hence, considering the said statement of the witnesses of the Respondents, which have not been disputed by the Appellant by any evidence, I find no reason to disbelieve the fact that the Appellant was found to be not suitable at the relevant time for the said post. Merely because the Appellant was found suitable in the subsequent interview in the year 1999 pursuant to the directions of this Court by itself would not be a ground to assume that the Appellant was suitable for the said post in the year 1994. The learned Judge whilst deciding the said issue has rightly relief upon the Judgments of the Apex Court and further found that no work no pay is well accepted and, consequently, refused to grant the claim for compensation put forward by the Appellant. Apart from that it is also to be noted that whilst filing the Writ Petition, no case of any loss was put-forth before this Court by the Appellant. The Appellant if at all so entitled could have very well filed his claim for compensation in the said Writ Petition and in case such relief could not be adjudicated in such Petition, leave could have been obtained for filing a suit to recover such amounts. Having chosen not to do so, the Appellant was also not entitled to file a suit to claim the said amount on the basis of the same cause of action as in the said Writ Petition. Considering the elaborate discussion in the impugned Judgment whilst deciding issue no.2 and on the basis of the material on record, I find that the learned Judge has rightly decided the issue no.2 against the Appellant. There is nothing on record to suggest that the Appellant was entitled to claim any compensation on the grounds as pleaded in the plaint. The learned Judge has minutely examined the evidence on record and has come to the -10- conclusion that the Appellant is not entitled for any such compensation. The contention of the learned Counsel for the Appellant that the learned Judge has mis- appreciated the evidence on record cannot be accepted. 13. In the present case, the Appellants have chosen to file a suit only after his selection as a Demonstrator pursuant to a direction of this Court. The cause of action, if any, for the Appellant would arise not on the ground that he was selected pursuant to a direction of this Court but because of his contention that he was wrongfully not considered in the year 1994. Considering the said aspect, the suit filed by the Appellant is barred by law of limitation as it was not filed within the time prescribed. Both the points for determination are answered accordingly. 14. In view of the above, considering the overall evidence on record, I find no merit in the above Appeal. The learned Judge has rightly appreciated the evidence on record and has come to the conclusion that the Appellant is not entitled for any reliefs in the suit. Consequently, the Appeal stands dismissed with no Orders as to costs. F .M. REIS, J. arp/*