IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NOS. 668 OF 1993, 389 OF 1998 AND 81 OF 1998. WRIT PETITION NO. 668 OF 1993. The Goa Education Officers Association, a Society registered under No. 11/Goa/83, Societies Registration Act, 1860, through its Secretary, Shri R.N. Naik, r/at M-81, Housing Board Colony, Alto Porvorim, Goa. ... Petitioner. Versus 1. The State of Goa, through the Secretary (Education), Secretariat, Panaji. 2. The Goa Public Service Commission, EDC House, Dada Vaidya Road, Panaji, through its Secretary. 3. Dr. Celsa Pinto, Parvatibai Chowgule Higher Secondary School, Margao. 4. Shri K.K. Nadkarni, c/o Goa University, Bambolim. ... Respondents. Mr. M.S. Sonak, Advocate for the Petitioner. Mr. A.N.S. Nadkarni, Advocate General with Mr. H.R. Bharne, Govt. Advocate and Mr. H.D. Naik, Addl. Govt. Advocate for the Respondent No. 1. Mr. A.N.S. Nadkarni, Advocate General with Mr. H.D. Naik, Addl. Govt. Advocate for the Respondent No. 2. Mrs. A.A. Agni, Advocate for the Respondent No. 3. Mr. R.G. Ramani, Advocate for the Respondent No. 4. WRIT PETITION NO. 389 OF 1998. Shri G.G. Karandikar, Assistant Director of Education, Directorate of Education, Govt. of Goa, Panaji. ... Petitioner. Versus 1. State of Goa through its Secretary (Education), Secretariat, Panaji. 2. The Goa Public Service Commission, through its Secretary, EDC - 2 - House, Panaji. 3. Dr. Celsa Pinto, Assistant Director of Education, Directorate of Education, Panaji. 4. Shri K.K. Nadkarni, Principal, Govt. Higher Secondary School, Canacona. Mr. M.S. Sonak, Advocate for the Petitioner. Mr. A.N.S. Nadkarni, Advocate General with Mr. A.P. Lawande, Govt. Advocate and Mr. H.D. Naik, Addl. Govt. Advocate for the Respondents 1 and 2. Mrs. A.A. Agni, Advocate for the Respondent No. 3. Mr. R.G. Ramani, Advocate for the Respondent No. 4. WRIT PETITION NO. 81 OF 1998. Smt. Maria Imelda Liana de Menezes, Principal, Dr. T.B. Cunha Government Higher Secondary School, Altinho, Panaji. ... Petitioner. Versus 1. The Director of Education, Directorate of Education, Govt. of Goa, Panaji. 2. State of Goa through its Chief Secretary, Secretariat, Panaji. 3. The Goa Public Service Commission, through its Secretary, EDC House, Dr. Atmaram Borkar Road, Panaji. 4. Smt. Sushama Bumb, Vocational Education Officer, Goa Board of Secondary and Higher Secondary Education, Porvorim, Goa. 5. Smt. Meera Deo, Dy. Education Officer, Office of South Education Zone, Margao. 6. Kum. Neela Kerkar, Dy. Education Officer, Office of North Education Zone, Mapusa. 7. Shri Diogo da Costa, Vocational Education Officer, Directorate of Education, Panaji. 8. Smt. Graceamma Verghese, Principal, Govt. Higher Secondary School, Khandola. - 3 - 9. Smt. Vanita P. Vernekar, Principal, Govt. Higher Secondary School, Baina, Vasco-da-Gama. 10.Shri K.B. Marathe, Environmental Education Officer, Directorate of Education, Panaji. 11.Shri S.K. Rajmane, Assistant Director of Education, Directorate of Education, Panaji. 12.Dr. Celsa Pinto, Dy. Director of State Institute of Education, Porvorim. 13.Dr. K.K. Nadkarni, Principal, Govt. Higher Secondary School, Canacona. 14.Shri G.G. Karandikar, Assistant Director of Education, Directorate of Education, Panaji. 15.Shri G.L. Jadhav, Principal, Govt. Higher Secondary School, Valpoi. ... Respondents. Mr. M.S. Sonak, Advocate for the Petitioner. Mr. A.N.S. Nadkarni, Advocate General with Ms. W. Coutinho, Govt. Advocate for the Respondents 1 and 2. Mr. A.N.S. Nadkarni, Advocate General with Mr. H.D. Naik, Addl. Govt. Advocate for the Respondent No. 3. Mr. S.G. Bhobe, Advocate for the Respondent No. 4. Mrs. A.A. Agni, Advocate for the Respondent No. 12. Mr. R.G. Ramani, Advocate for the Respondent No. 13. Coram: S. RADHAKRISHNAN AND P.V. HARDAS, JJ. Date: 20th August 2002. ORAL JUDGMENT (PER HARDAS, J.) All the above petitions are disposed of by a common Judgment as the petitions have been tagged together for hearing. - 4 - Facts in Writ Petition No. 668 of 1993:- 2. In this petition, the petitioner, a society of Goa Education Officers Association, has challenged the non-regularisation of 22 Officers of the Directorate of Education, who have been continued on adhoc basis for 5 to 8 years and the appointment of respondents 3 and 4, which is said to be in breach of the Recruitment Rules 1993. The petitioner states that it is a Society registered under the Societies Registration Act, 1860 bearing Registration Number II/Goa/83. The members of the petitioner Society include the Directorate of Education, Group ‘A’ and Group ‘B’ Gazetted Officers working in the Directorate of Education. 3. In paragraph 3 of the petition, it is stated that the present petition concerns the non-regularisation of service of almost 22 Officers of the Directorate of Education, who have been posted and continued on adhoc basis in the post of Assistant Director and Deputy Education Officer/Principal for periods ranging between 5 to 8 years. In the said paragraph, it is further stated that the petitioner Society takes an exception to the proposal to appoint respondents 3 and 4 to the post of Deputy Education Officer/Principal by direct recruitment in breach of the Recruitment Rules framed in 1993 and, thereby, adversely - 5 - affecting the rightful position of the said 22 Officers in their seniority as also their prospects of promotion. 4. The promotion to the post of Deputy Education Officer/Principal is governed by the Government of Goa, Daman and Diu, Directorate of Education, Group ‘A’ and Group ‘B’, Gazetted Posts Recruitment Rules, 1977, hereinafter referred to as ‘the 1997 Recruitment Rules’ for the sake of brevity. In terms of the 1977 Recruitment Rules, the recruitment to the post of Deputy Education Officer/Principal was specified as 50% by promotion and 50% by direct recruitment. In the case of recruitment by promotion, the qualifications prescribed were that a candidate should have been Vice-Principal, Teachers Training College, Headmaster of Government Multipurpose High School or Headmaster of Government High School, having 5 years service in the respective grades after appointment thereto on regular basis, besides possessing Master’s Degree and Degree/Diploma in teaching/education as prescribed in the Secondary School Teachers. 5. In response to a long standing demand, the respondent no. 1, the State of Goa, in supersession of the old rules framed new rules known as "the Government of Goa, Directorate of Education, Group ‘A, Gazetted Posts Recruitment Rules, 1993", hereinafter referred to - 6 - as ‘the new Recruitment Rules’. The said Rules are dated 2nd July 1993 and were notified in the Official Gazette of the Government of Goa, dated 5th August 1993. As per the new Recruitment Rules, the method of recruitment to the post of Deputy Education Officer/Principal is prescribed. The age limit, the qualifications and other matters connected therewith are specified in Columns 5 to 13 of the Schedule appended to the new Recruitment Rules. Under Column 13, which provides for the method of recruitment, it has been specified that the post of Deputy Education Officer/Principal is required to be filled in by promotion, failing which, by direct recruitment. The educational and other qualifications have also been suitably amended by prescribing at least Second Class Master’s Degree of a recognised University or equivalent, Degree in Teaching Education of a recognised University or equivalent, 12 years teaching experience in a High School or a Teachers Training Institution including at least 5 years experience in a responsible administrative capacity. 6. The respondent no. 2, the Goa Public Service Commission, issued an advertisement, dated 11th June 1993, inviting applications for direct recruitment to the two vacancies in the post of Deputy Education Officer/Principal. Pursuant to the issuance of the said - 7 - advertisement, interview calls were sent on 18th August 1993 and interviews were held by the respondent no. 2 on 27th August 1993. The petitioner has stated, in paragraph 13 of the petition, that such interviews could not have been held nor such interview calls could have been sent as, in the meantime, that is, on 5th August 1993, the new Recruitment Rules, that is the 1993 Rules came into force. Be that as it may, the respondent no. 2 selected respondents 3 and 4 for the post of Deputy Education Officer/Principal. The recommendation of respondent no. 2 was accepted by the respondent no. 1. However, before any appointment Order could be issued, an interim Order of stay was given by this Court in Writ Petition No. 583 of 1993 filed by one Shri Sadashiv Krishna Rajmane. The said Writ Petition No. 583 of 1993 ultimately came to be disposed off on 6th December 1993 and, although in the said petition the appointment of respondents 3 and 4 was challenged, the said challenge was not pressed, in view of certain other reliefs which had been granted to the said petitioner Shri Sadashiv Krishna Rajmane. 7. The respondents 3 and 4 ultimately came to be appointed by the Order, dated 3rd January 1994, which was published in the Official Gazette, dated 30th June 1994. The challenge in the petition to the appointment of respondents 3 and 4 is that the appointment is in - 8 - breach of the new Recruitment Rules of 1993 and in addition the respondent no. 4 does not possess a Degree in Teaching/Education. Thus, respondent no. 4 was, according to the petitioner, not eligible for being appointed. 8. The Government has filed its affidavit and in the affidavit it is stated that as per the 1977 Recruitment Rules, 50% were to be filled by promotion, failing which by direct recruitment, and 50% by direct recruitment. A requisition had been sent to the Goa Public Service Commission vide letter, dated 16th April 1993, for the purpose of selecting two candidates by direct recruitment. The respondent no. 2, Goa Public Service Commission, advertised the said posts of Principal on 10th June 1993 and the Goa Public Service Commission selected and recommended the names of respondents 3 and 4. The recommendation of the Goa Public Service Commission was accepted by the Government and an Order of appointment, dated 3rd January 1994, came to be issued appointing respondents 3 and 4. In paragraph 5 of the affidavit, it is stated that one Shri Sadashiv K. Rajmane had filed Writ Petition No. 583 of 1993 for quashing the selection made by the Goa Public Service Commission and had also prayed for the issuance of writ of mandamus for filling up the post of Principal/Deputy Education officer as per the new - 9 - Recruitment Rules. The petition was ultimately disposed off and, thereafter, the respondents 3 and 4 came to be appointed. It is further stated that in exercise of the powers conferred under Article 309 of the Constitution of India, the then Administration of Goa, Daman and Diu had framed the Recruitment Rules of 1977. The new Recruitment Rules were framed in the year 1993 and were published in the Official Gazette, dated 5th August 1993. In paragraph 6(a) of the affidavit the yearwise vacancies, which arose prior to the coming into force of the new Recruitment Rules, have been given. Thus, according to respondent no. 1, seven posts were to be filled by direct recruitment and seven by promotion. It is further stated that though a large number of vacancies were available for appointment by direct recruitment, only one vacancy was filled in the year 1986 by the appointment of one Smt. Sudha Lawande, which vacancy was of prior to 1982. As a stop-gap arrangement, the vacancies which arose were given to eligible candidates, who were holding feeder posts, on adhoc basis. It was also stated that if the vacancies were to be filled by direct recruitment, some of the candidates, who were promoted on adhoc basis, would have to be reverted to their substantive post, which was to be avoided. In order to avoid such a situation, two of the vacancies to be filled by direct recruitment were referred to the Goa Public Service Commission for - 10 - selection vide letter, dated 16th April 1993. The Goa Public Service Commission in turn advertised the said posts on 10th June 1993 and recommended the names of respondents 3 and 4 and they were, accordingly, appointed. It is categorically stated in the affidavit that the selection was itself held as per the old Recruitment Rules and the new Recruitment Rules, which came into force on 5th August 1993, were not at all applicable to the selection made in respect of the respondents. It is also submitted that since the vacancies had existed prior to the coming into force of the new Recruitment Rules, the same would be governed by the old Recruitment Rules of 1977. In the supplementary affidavit which is filed, the respondent no. 1 in paragraph 5 has stated that the respondent no. 3 is holding Ph.D., M.A. (First Class), B.Ed. (First Class) and having the requisite experience. The respondent no. 3 was recommended by respondent no. 2 and, accepting the recommendation, the respondent no. 3 came to be appointed. In respect of respondent no. 4, it is stated that he is holding Ph.D., M.Sc., Diploma in Higher Education and Diploma in Pharmacy. In paragraph 10, it is stated that as far as the grievance made of the regularisation of 22 Officers is concerned, two of them have already retired from service in the year 1996-1997, 19 Officers have already been regularised in service and one Officer, namely, Shri Angelo Pimenta, - 11 - could not be regularised as he did not have the requisite qualification as per the new Recruitment Rules of 1993. Facts in Writ Petition No. 389 of 1998:- 9. The petitioner in this case was appointed as Deputy Education Officer, Directorate of Education, on adhoc basis, with effect from 13th August 1979. It is stated that the petitioner has been promoted on regular basis to the post of Deputy Education Officer, Directorate of Education, with effect from 11th November 1994. In the seniority list, the name of the petitioner appears at Serial No. 6 whereas the names of respondents 3 and 4 appear at Serial Nos. 4 and 5. On 10th October 1991, the petitioner was promoted to the post of Assistant Director, Directorate of Education, on adhoc basis. Thereafter, by Order, dated 14th April 1998, the petitioner and the respondent no. 3 have been promoted on regular basis to the post of Assistant Director, Directorate of Education. In the said Order, the name of the respondent no. 3 appears at Serial No. 4 whereas the name of the petitioner appears at Serial No. 9. In respect of the appointment of respondent no. 3, it is stated that her appointment Order is dated 3rd January 1994, by which time, the new Recruitment Rules of 1993 had already come into force. It was also stated - 12 - that respondent no. 3 was over-age at the time of her appointment. In respect of respondent no. 4, it is stated that at the time of his appointment, vide Order dated 3rd January 1994, the Recruitment Rules of 1993 were applicable as they had come into force. It is further stated that the Recruitment Rules of 1993 prescribe a Degree in Teaching/Education as essential qualification, which the respondent no. 4 did not possess. It is further stated that the respondent no. 4 does not possess a Degree/Diploma in Teaching/Education from a recognised University or equivalent and the respondent no. 4 only possesses a Diploma in Higher Education. Thus, affecting his eligibility. It is also stated that during the pendency of the petition, the respondent no. 3 has been promoted to the post of Deputy Director of Education, which is a further promotional post. 10. In the affidavit filed on behalf of the State, it is stated that as per the Recruitment Rules of 1977, the post of Deputy Inspector of Schools and other four posts mentioned in column 1 of the said Rules were to be filled 50% by promotion, failing which, by direct recruitment and 50% by direct recruitment. By Order, dated 26th June 1979, the post of Deputy Inspector of Schools was redesignated as Deputy Education Officer and, thus, the petitioner was appointed as Deputy - 13 - Education Officer on 13th August 1979 on adhoc basis. It is further stated that during the period 1982 to 1993, fourteen vacancies arose in the post of Deputy Education Officer and in paragraph 3 of the affidavit, the yearwise number of vacancies and the mode of filling is stated. Thus, in terms of the Recruitment Rules of 1977, seven posts were to be filled by direct recruitment and seven by promotion. During the said period, twelve Officers were appointed as Deputy Education Officers on adhoc basis by promotion and three vacancies had been filled in by direct recruitment and, therefore, the quota of promotees was exceeding the quota laid down by the Recruitment Rules of 1977. Therefore, in the year 1993, it was decided to fill up two posts of Deputy Education Officers by direct recruitment and, accordingly, the requisition was sent to the Goa Public Service Commission for selecting the candidates. The Goa Public Service Commission after holding inquiries, recommended the respondents 3 and 4, who, ultimately, came to be appointed. It is further submitted that vacancies existing in a Grade at a particular time, are to be filled in, in accordance with the Recruitment Rules then prevailing. 11. In paragraph 8 of the affidavit, it is stated that the respondent no. 3 is a Ph.D., M.A. (First Class), B.Ed. (First Class). The respondent no. 4 is - 14 - a Ph.D., M.Sc., Diploma in Higher Education and Diploma in Pharmacy. It is stated that the respondents 3 and 4 had the requisite qualification in terms of the 1977 Recruitment Rules and the Goa Public Service Commission had the discretion to relax the qualification in case of deserving candidates. 12. The respondent no. 2, the Goa Public Service Commission, has also filed its affidavit. In paragraph 6 it is stated that the qualifications prescribed for the post were as per the Recruitment Rules of 1977. The age limit prescribed in the said Recruitment Rules is 45 years. It is further stated that in the new Recruitment Rules of 1993 a degree in teaching/education was prescribed and not a diploma. It is stated that the age of the respondent no. 3 was 41 years and 7 months at the time she applied for the post and the age limit prescribed by the Recruitment Rules of 1977 was 45 years. Thus, it is denied that the respondent no. 3 had crossed the age limit when she was considered for the post. In paragraph 8, it is stated that as per the Recruitment Rules of 1977, possessing a diploma in teaching/education was necessary and not a degree. The respondent no. 4 had passed the Diploma in Higher Education in the year 1983 from the Bombay University and, as such, he had the requisite qualification prescribed in the Recruitment Rules of 1977. - 15 - 13. In the present two petitions, therefore, the controversy is whether the Recruitment Rules of 1977 would govern the selection of respondents 3 and 4 or whether the Recruitment Rules of 1993 would govern their selection? 14. A reference may usefully be made to the decision of the Apex Court in Gopal Krushna Rath v. Gopal Krushna Rath v. Gopal Krushna Rath v. M.A.A. Baig (dead) by L.Rs. and others M.A.A. Baig (dead) by L.Rs. and others M.A.A. Baig (dead) by L.Rs. and others, 1999 AIR SCW 1819. In paragraph 6 of the report the Hon’ble Supreme Court has held thus:- "6. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirement regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. P. P. Mahendran Mahendran Mahendran v. State of Karnataka v. State of Karnataka v. State of Karnataka (1990) 1 SCC 411 at 416 : (AIR 1990 SC 405 at pp. 408 and 409) this Court has observed: "It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect." The Court further observed that: "Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover, as the process - 16 - of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment." 15. The Hon’ble Apex Court in Dr. P.N. Dubey and Dr. P.N. Dubey and Dr. P.N. Dubey and others v. State of M.P. others v. State of M.P. others v. State of M.P., (1997) 3 S.C.C. 497 has held that the Modes/Sources of Recruitment Rules in force on the date of advertisement would apply. 16. The Recruitment Rules of 1977 required as essential qualification a Degree/Diploma in Teaching/Education from a recognised University or equivalent. Thus, the respondent no. 4, who is holding a Diploma in Teaching was qualified. The respondent no. 3, as per the old Recruitment Rules of 1977 was not beyond the age specified therein. In our considered opinion and in view of the Judgments of the Hon’ble Apex Court referred to above, since the selection process had already commenced by the issuance of the advertisement, which required a candidate to obtain certain qualifications, the new Recruitment Rules, which came into force subsequent to the advertisement, would not govern the selection. Moreover, the posts to be filled in were of the year prior to the coming into force of the Recruitment Rules of 1993. The selection to these posts would be governed by the Recruitment Rules of 1977. As per the Recruitment Rules of 1977, the - 17 - respondents 3 and 4 had the requisite qualifications and, therefore, their selection cannot be faulted with on the ground that they did not possess the requisite qualification under the Recruitment Rules of 1993. These petitions, therefore, have no force and merit. Facts in Writ Petition No. 81 of 1998. 17. The petitioner, by Memo, dated 18th February 1971, was appointed as Headmistress of Government Middle School, Directorate of Education, Government of Goa and, thereafter, by Order, dated 1st December 1983, was promoted as Headmistress, Government High School on officiating basis. This appointment was declared to be on regular basis and the petitioner held the post substantively with effect from 23rd February 1984. According to the petitioner, at the time of the petitioner’s promotion to the post of Headmistress, the petitioner was B.A. and ‘Curso de Escola Normal’, which is equivalent to diploma in teaching for Secondary School Teachers/Diploma in Education. The said equivalence is confirmed by the letter, dated 3rd April 1968. According to the petitioner, in the seniority list in the cadre of Headmistress, Government High School, as also other equivalent posts, the name of the petitioner appears at Serial No. 20 and the names of respondents 4, 5 and 6 appear at Serial Nos. 13, 25 and - 18 - 26 respectively. 18. According to the petitioner, in May 1986, the petitioner obtained the qualification of M.A. with Second Class from the University of Bombay. The promotion to the post of Deputy Inspector of Schools/Principal, Teachers College/Principal, Higher Secondary School/Social Education Officer/Education Officer was governed by the Government of Goa, Daman and Diu, Directorate of Education, Group ‘A’ and Group ‘B’ Gazetted Posts Recruitment Rules, 1977, hereinafter referred to as ‘the Recruitment Rules of 1977’ for the sake of brevity. As per the Rules, the promotions to the aforesaid posts are to be effected from amongst the feeder category comprising Vice Principal, Teachers Training College; Headmaster, Government Multi-purpose High School and Headmaster, Government High School possessing Master’s Degree and Degree/Diploma in Teaching/Education prescribed for the Secondary School Teachers/Teacher Educator and having five years service in the respective grade after appointment thereto on regular basis. Thereafter the Recruitment Rules