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 No.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 No.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 or the regular promotions, without supersession by the present juniors, the respondents 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 No.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 No.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 from 23.11.1973. Respondents No.10 to 16 were selected for direct recruitment/appointment to the post of PSI in 1979 batch and respondents No.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 17.1.1983 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.) ACCORDING to the petitioner, the Government could not have readjusted his seniority, ignoring the settled legal principle of date of entry in the service for determining the inter se seniority between the direct recruits and the promotees. It is contended that the decision of the Apex Court at the instance of respondent No.10 herein was of no consequence because the Apex Court order only protects the seniority of respondent No.10 as no general directions have been given which can enure to the benefit of other persons similarly situated. It is also contended that in any case, the decision in the said case was not binding on the petitioner because the petitioner was not a party to the said appeal. More over, contends Mr.Dessai for the petitioner, that the said decision is clearly per incuriam or sub silentio because it has not considered the efficacy of Rule 5 and secondly it wrongly assumes that the 1986 seniority list still subsists. Inasmuch as, 1986 seniority list was already replaced by the seniority list of 1995 dated 15.9.1995 and that seniority list was still operating in law because the decision of this Court in Writ Petition No.103/1996 has only set aside the seniority list dated 21.3.1996. It is also contended that the decision of the Apex Court is inapplicable to the fact situation of the present case because the issue before the Apex Court was with reference to construction of Rule 7 which governs the inter se seniority position between the direct recruits and the promotees; whereas the present contest is essentially between the direct recruits inter se and, therefore, Rule 5 will have to be applied. It was further contended that this Court should decide all contentions available to the petitioner on merits instead of nonsuiting the petitioner on the basis of the decision of the Apex Court. To buttress the above contentions, reliance was placed on several decisions of the Apex Court i.e. 1991(4) SCC 139 (paras 39 to 41); 1994 Supp.(3) SCC 385 (para 24); 1989 (1) SCC 101 (paras 11 & 12); 2000 (5) SCC 488 (para 20); 2001 (6) SCC 356 (paras 19 and 23); 1975 SCC (L&S) 412; 2000(2) SCC 420; 2002 SCC (L&S) 711; AIR 1985 SC 582 (paras 26, 35 and 36); AIR 1990 SC 1607 (paras 44(A) and (B) and of Delhi High Court in 1983 (2) SLR 693.