P P KUMBHARE Vs. GOVERMENT OF GOA

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India takes exception to the order dated 6th March, 1997, passed by the Director of Agriculture and ex officio joint secretary to the Government of Goa and for further direction to respondent nos. 1 and 2 to regularise the petitioner as Deputy Director of Agriculture with effect from 26th March, 1997- the date on which the other eight Deputy directors of Agriculture were regularised. Briefly stated, the petitioner came to be appointed as Assistant Agriculture Officer (Grade I) with effect from 20th March, 1982, and posted at Mapusa, Goa. The petitioner was appointed to the said post as Scheduled Caste candidate in reserved category. It is not in dispute that the petitioner migrated to Goa from Nagpur in 1982, having been selected for the said post which was filled in on All India selection basis. It is also not in dispute that the petitioner belongs to community which was and is notified as Scheduled Caste in the State of Maharashtra as well as in the state of Goa. The petitioner was thereafter promoted in the reserved category to the post of Assistant Director of Agriculture on ad hoc basis sometime on 17th January, 1992. The petitioner was further promoted on ad hoc basis to the post of Deputy Director of Agriculture (Group A') In the meantime, the government of Goa issued office Memorandum dated December, 8, 1994, clarifying the position with regard to the issue as to whether a candidate belonging to Scheduled Caste/scheduled Tribe and migrated from another state could be entitled to be appointed in the Government of Goa against the vacancy reserved for such categories. The State of Goa on consideration of the decision of the Constitution Bench of the Apex Court has issued the office memorandum clearly explaining the position that the Government has decided that the benefits of reservation for Scheduled Caste in the State of Goa shall not be extended to the Scheduled Caste migrated from other States. The government was, thereafter, required to issue certain clarification which was done by office memorandum dated 13th July, 1995. The Government was actively considering the issues, inter alia, as to from what date the decision taken by the Government as reflected in the Office Memorandum dated December 8, 1994, was to be applicable; whether the Scheduled Caste Government employees earlier migrated from other States, who are presently in Government service can be given the benefit of reservation so far as future promotion is concerned; Some Scheduled Caste officers from outside States have been recruited to different posts in this administration by virtue of All India advertisements, are they to be considered as migrants? While considering the above issues, the Government has issued point-wise clarification. Insofar as the first aspect is concerned, the Government took a conscious decision to make the office memorandum effective from the date of issue (i. e. from 8th december, 1994 ). Insofar as the second aspect, the Government has decided that the Scheduled Caste Government employees earlier migrated from other states and who are presently in Government service, should not be granted the benefit of reservation so far as their promotion is concerned and with regard to the last aspect, it has been decided that some Scheduled Caste officers from outside the State recruited to different posts in the administration by virtue of All India Advertisements should be considered as migrated. It is relevant to note that the petitioner's appointment was questioned by one satish S. P. Tendulkar (respondent No. ,9 herein), by 2 way of Writ Petition No. 260 of 1996. The said writ petition came to be disposed of on 7th October, 1996, in view of the statement made on behalf of the Director of Agriculture that the case of the writ petitioner therein would be considered alongwith the case of the petitioner herein by the Review Departmental Promotion Committee. The petitioner thereafter made representation on 4th December, 1996, to the Competent Authority. However, the petitioner was informed by the impugned communication dated 6th March, 1997 that his name was deleted from the Government Order, dated 15th June, 1995 with immediate effect, which decision was taken after the review undertaken by the Departmental promotion Committee. The impugned order further records that the petitioner will be deemed to have continued as Assistant Director of Agriculture on ad hoc basis until further orders. Later on, the petitioner was promoted as As-sistant Director of Agriculture, once again on regular basis, whereas eight other Assistant Directors came to be promoted to the post of Deputy Director of Agriculture on regular basis in March, 1997. The petitioner, thereafter, questioned the said action and has prayed for further direction to give parity alongwith the other eight Deputy Directors of Agriculture, who have been regularized with effect from 26th March, 1997.

(2.) THIS petition is resisted by the respondent Nos. 1 and 2 by filing affidavit of Shri K. G. Sharma, Assistant Director of Agriculture dated 17th June, 1997, whereas the respondent No. 3. Commission, has also resisted this petition by filing affidavit dated 19th June, 1997, sworn by Shri K. M. Nambiar, under Secretary to the Goa Public Service Commission. In this affidavit, it is asserted that the promotion of the petitioner to the post of deputy director of agriculture in July, 1996, was on ad hoc basis and that is not in conformity with the law expounded by the Apex Court. It is further asserted that the commission was never consulted before promoting the petitioner to the post of Assistant director, vide order dated 17th January, 1992. The affidavit then mentions the details as to how the vacancies arose from 1980 to 1993, out of which one vacancy of 1992 was reserved for Scheduled Caste candidate. The departmental Promotion Committee ("d. P. C. " for short), had met on 14th december, 1994 and considered eligible officers coming in the zone of consideration for each year's vacancies. The petitioner did not come in the zone of consideration for 1980, 1981, 1984 and 1987, whereas the petitioner was considered alongwith other eligible officers for each year's vacancies of 1991-1992. The petitioner did not get placing in the select list for the vacancies of 1991. The petitioner was recommended for reserved vacancy (Scheduled Caste)for the year 1992. The affidavit further asserts that the petitioner was the only officer reported by the Government as belonging Scheduled Caste community and, as such, the D. P. C. remommended his name for promotion as assistant Director of Agriculture against the reserved vacancy of Scheduled caste of 1992, assuming that he was of Goan origin. It is stated that the decision taken by the Government vide order dated 15th June, 1995, was on the said assumption. The affidavit then states that the petitioner was promoted to post of Deputy Director of Agriculture on ad hoc basis vide order dated 30th July, 1996. However, the Commission was not a party to this ad hoc appointment as the Commission was never consulted in that regard. The affidavit also asserts that the Commission was not a party in Writ Petition No. 260 of 1996 filed by respondent No. 9 herein and that the petitioner is not entitled to the benefit of reservation as he is not as Gaon origin.

(3.) WE have perused the pleadings and examined the rival submissions canvassed across the Bar. On the basis of the pleadings and submissions canvassed before us, the principal question that arises is: Whether the petitioner, who is originally from Maharashtra and belongs to the community which is notified as Scheduled Caste in the State of Maharashtra, could avail of the reservation of a post in the State of Goa? The argument on behalf of the petitioner is that the petitioner belongs to a community which is not only notified as Scheduled Caste in Maharashtra, but is also notified as Scheduled caste in relation to the State of Goa. On this premises, the learned Counsel contends that the petitioner was entitled to be appointed against the reserved post for Scheduled Caste. This submission, in our view, clearly overlooks the exposition in the decision of the Constitution Bench of the Apex Court in (Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College and others), as reported in 1990 (3) S. C. C. 130. The said decision clearly takes the view that a candidate recognised as a member of the Scheduled Tribe/scheduled Caste in his original State, on his migration to another State, is not entitled to get the benefit of reservation. This decision has been further affirmed and followed by another Constitution Bench of the Apex Court in the case of (Action committee on Issue of Caste Certificate to Scheduled Castes and Scheduled tribes in the State of Maharashtra and another v. Union of India and another), reported in 1994 (5) S. C. C. 244. In this subsequent judgment in paragraphs 15 and 16, the Apex Court has analysed the basis on which the observations made in the earlier decision in Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College and others (supra), will have to be understood. It will be appropriate to advert to the following dictum :-