VISHNU YESHWANT PARAB Vs. STATE OF GOA

JUDGEMENT

(1.) BY this writ petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the seniority list dated 22-12-2000 (Exhibit-P-1) of the Police Inspectors; Review Promotion Orders (Exhibit P-2), seniority list dated 17-2-2001 (Exhibit-P-3) being the consequent re-adjusted tentative seniority list of Police Inspectors and the Deputy Superintendents' Promotion Order (Exhibit-P-4) dated 22-2-2001 being the consequent ad hoc promotions. The petitioner by way of amendment prayed for further relief of quashing and setting aside the tentative seniority list of Police inspector (Exhibit-P-3/a) dated 6-6-2003 and the second final seniority list of police Inspectors (Exhibit-P/b ). The petitioner has also prayed for direction against the respondents Nos. 1, 2 and 3 to maintain the petitioner's finalised ranking as regular junior scale officer in the Goa Police Service and to refrain from down ranking the petitioner qua the direct recruit respondents in the petition and further commanding the respondents Nos. 1, 2 and 3 to consider the petitioner from time to time for further promotions in the Goa Police Service based on the present finalised regular ranking, both for the ad hoc the regular promotions, without suppression by the present juniors, the respondent no. 8 onwards in this petition. The petitioner prayed for interim relief during the pendency of the writ petition. It is not necessary for us to advert to all the events stated it the writ petition. Suffice it to mention that the petitioner and the private respondents were recruited/appointed to the post of "police Sub-Inspector". The petitioner and the respondents Nos. 4 to 7 were selected for direct recruitment/appointment to the post of Police Sub-Inspector in the 1971 batch and underwent training; whereas, respondents Nos. 8 and 9 were selected for direct recruitment/appointment to the post of Police Sub-Inspector (PSI) in 1974 batch. Respondent No. 19 who has now retired after attaining superannuation, was promoted to the post of PSI form 23-11-1973. Respondents Nos. 10 to 16 were selected for direct recruitment/appointment to the post of PSI in 1979 batch and respondent Nos. 17, 18, 20 to 23 in 1981 batch. The relevant Seniority Rules were notified and brought into effect from the date of notification known as "the Goa Government (Seniority) Rules, 1967". For determining the relative seniority of direct recruits and promotees, rule 7 of the said Rules is relevant, which reads thus:

(2.) THE first seniority list in relation to the petitioner and the private respondents in this petition was issued on 6-10-1979, the second seniority list was issued on 17-10-1983 and the third seniority list was issued on 5-6-1985. The fourth seniority list was issued on 21-1-1986. The seniority list as prepared in 1986, was pursuant to the decision of the High Court dated 1-9-1984. Applying the principles stated by the High Court in the said decision, in this seniority list of 21-1-1986 the petitioner was placed at Serial No. 55, although he was from 1971 batch; whereas his juniors who were appointed in 1974, 1979 and 1981 batch were shown senior to him. That was done on the basis of date of confirmation of the incumbent. Later on proviso to Rule 7 was inserted on 5-1-1987. The relevant extract of the said proviso, which is relevant for our purposes, reads thus:

(3.) IN other words, the seniority list of 21-1-1986 prepared on the basis of the relevant rules as it existed, and interpreted by this Court in its decision dated 1-9-1984, was to become final and not to be reopened. On the basis of the said seniority list of 1986, respondent No. 14 was promoted to the post of "police Inspector" on 16-10-1987; whereas respondent No. 10 came to be promoted as "police Inspector" on 25-5-1987. The promotion of respondents nos. 10 and 14 to the post of "police Inspector" on the basis of the seniority list of 1986 was, admittedly, not questioned by the petitioner. In fact, their promotion was challenged before the Central Administrative Tribunal (CAT), which was rejected on 8-3-1990. Later on the final seniority list of "police inspectors" was published on 12-3-1990, in which, the name of the petitioner does not figure. This is so because the petitioner came to be appointed on ad hoc basis as Police Inspector only on 6-8-1993. Later on, fifth seniority list in respect of the post of "police Sub-Inspector" came to be published on 15-9-1995. In this seniority list, however, the petitioner was shown at the proper place, on the basis of the date of his entry in service and not the date of confirmation, on which basis he was placed at Sr. No. 55 in the fourth seniority list dated 21-1-1986. Soon thereafter, sixth seniority list dated 21-3-1996 was issued. This seniority list was, more or less, on the same pattern of the fifth seniority list, which was on the basis of the date of entry in service and not the date of confirmation. However, this seniority list was challenged before the High Court by way of Writ Petition No. 103/96 filed by one Shashikant r. Dessai and others. This Court, by its judgment and order dated July 8, 1998 was pleased to quash the seniority list of 1996 and directed the Government to rearrange the seniority of the persons from the cadre of "psis" in accordance with the actual date of their entry in the cadre. This Court further directed the Government that if recruitment is made from both source at the same time, then inter se seniority be fixed amongst them by following the principle of rota quota. It was also directed that after fixing the seniority accordingly, the Government to regulate all promotions higher to the post of sub-Inspectors. This petition was filed by the promotees of 1984 batch. Indeed, the petitioner was not a party to the said writ petition. Similarly, respondent No. 10 Shri Mangaldas K. N. Dessai, was not a party to the said writ petition. However, respondent No. 10 who is from 1979 batch questioned the correctness of the decisions of this Court in Writ Petition No. 103/1996, decided on 8-7-1998, before the Apex Court by way of Special Leave Petition (Civil) No. 12871/1999. In the meantime, after the decision of the High Court, seventh seniority list of PSIs, dated 28-10-98 was released. Again in this seniority list, placement of the petitioner was shown at proper place on the basis of the date of entry in service and not the date of confirmation. The appeal preferred by respondent No. 10 before the Apex Court was disposed of by judgment and order dated February 28, 2000 as reported in (2000 S. C. C. (Land S) 763)'. The Apex Court has noted that the respondent No. 10 herein was not a party to the (Writ Petition No. 103/1996), decided by this Court on 8-7-1998. The Apex Court has also noted the specific and the only grievance of the respondent No. 10 in the said appeal, contending that the Rules issued on 29-5-1987, published in Gazette Notification No. 2/33/76-PER dated 5-2-1987 contained a saving clause which was introduced in the form of proviso to rule 7, which is extracted in paragraph (2) above. On the basis of that proviso, respondent No. 10 contended before the Apex Court that his seniority in the cadre of "sub-Inspector" was finalised on 21-1-1986 in which list, his name was shown at Serial No. 22 and that position cannot be interfered with in view of the abovesaid saving clause. The Apex Court in para 6 of the reported judgment has plainly accepted the grievance of the respondent No. 10 by observing that the contention was well-founded in view of the express language of the saving clause. On that reasoning, the apex Court modified the directions issued by the High Court in the decision dated July 7, 1998 to the effect that so far as seniority of the respondent No. 10 herein, as per the seniority list dated 21-1-1986 is concerned, the same cannot be disturbed. It is relevant to note that respondent No. 14 herein had also filed a writ petition in this Court challenging the seniority list of 1996. In that writ petition, the contention of respondent No. 10 which received approval of the Apex Court in the light of the saving clause referred to above, was specifically raised in the form of Ground (f ). However, in view of the dictum of the Apex Court in the case of respondent No. 10 herein, the respondent No. 14 chose to withdrew his writ petition. It is relevant to not that the petitioner was party in the said writ petition, preferred by the respondent No. 14 After the above decision of the Apex Court the State Government was obliged to re-examine the position and restore the status of the parties as obtained in the seniority list dated 21-1-1986, having regard to the saving clause inserted in 1987. Accordingly, eighth final seniority list came to be issued on 22-12-2000. This seniority list, as mentioned earlier, applying the dictum of the Apex Court was finalised, in which the petitioner was placed at Serial No. 55 on the basis of the date of confirmation and not the date of his entry in service, as was the principle applied while preparing the seniority list dated 21-1-1986, which had been saved by the saving clause. This seniority list, is essentially the subject-matter of challenge in the present writ petition, being Exhibit P-1. After the issuance of this seniority list dated 22-12-2000, consequential review promotion orders were issued readjusting retrospectively promotions of the concerned persons a "psis". Later on tentative senior-ity list was issued on 17-2-2001 (Exhibit-PS) which had maintained the position as reflected in the impugned seniority list date 22-12-2000 being the readjusted tentative seniority list of PIs. On the basis of the seniority position, ad hoc promotions to the post of Dy. Superintendent of Police have been made and while this writ petition was pending, tentative seniority list dated 6-6-2003 and final seniority list dated 14-8-2003 have been issued. All these steps on and from the issuance of seniority list dated 22-12-2000 are subject-matter of challenge in this writ petition.