DATTATRAYA LAXMAN KAMAT Vs. STATE OF GOA

JUDGEMENT

(1.) RULE, by consent, returnable forthwith.

(2.) THE petitioner who is a retired Nazir of the Civil Judge, Senior Division and Chief Judicial Magistrate, Panaji, is challenging under Article 226 of the Constitution of India the Order of the Government dated 27th December, 1990 purporting to revoke the earlier order of the Government dated 20th September, 1989. Therefore a prayer for a writ of certiorari or any appropriate writ, order or direction to quash and set aside the said order is made along with an additional prayer for a writ of mandamus commanding the respondents to restore the Order dated 20th September, 1989.

(3.) IT is the case of the petitioner that he was appointed to the post of Ajudante do Escrivao after the liberation of Goa in the Court of Civil Judge, Senior Division, Margao, by Order dated 28th February, 1963 against the pre-liberation post. The said post was a post which was existing under the former Portuguese regime immediately before 20th December, 1961. During the Portuguese regime the conditions of service including the designation of the posts and pay scales were regulated by the law known as "estatuto do Funcionalism Ultramarino". According to this all the posts along with scales carried by the said posts were classified under various alphabets from A to Z and each alphabet had corresponding pay assigned to the corresponding post. According to the category assigned to the post of "ajudante do Escrivao" the petitioner was appointed and grouped under alphabet O and the pay assigned to the said alphabet was 220000 Escudos equivalent to Rs. 366. 66. After liberation of Goa there was no specific law regulating the conditions of service and the existing laws were not saved nor other laws extended. During the said period the administration of Goa, Daman and Diu was run by the Administrator under Article 239 of the Constitution. In exercise of his administrative powers the Administrator issued instructions fixing same pay scale for the same posts which were notified on 15th September, 1962 which covered the cases of persons who had joined Government services from 10th May, 1962. Though the petitioner was entitled to receive the pay which was assigned to his post equivalent to Rs. 366. 66 the petitioner was however sanctioned only a pay of Rs. 290/- in the scale of Rs. 290-320 as ad-hoc salary. Thereupon a law was enacted by Parliament known as the Goa, Daman and Diu (Absorbed Employees) Act, 1965, (hereinafter called "the Absorbed Employees Act") which was brought into force from 1st February, 1966. Under the said Act absorbed post was defined as Civil Service of the post which existed under the former Portuguese administration in Goa, Daman and Diu immediately before 30th December, 1961. Section 3 of the Act enabled the Central Government to make rules for regulation of recruitment to the absorbed posts and the conditions of service of the absorbed employees. In exercise of those powers the Central Government made rules known as Goa, Daman and Diu (Absorbed Employees) Rules, 1965 (hereinafter called "the Rules" ). The petitioner stated that the post of "ajudante do Escrivao" in which the petitioner was initially appointed by Order dated 28th February, 1963 is an absorbed post as it satisfies the requirements specified in section 2 of the Absorbed Employees Act and the post was equated to the post of U. D. C. and was brought on the revised Central Government scale of pay of Rs. 130-300 with effect from 1st February, 1966. By the reason that the Constitution of India was applicable to the territory of Goa, Daman and Diu with effect from the 5th March, 1962 and the territory was declared to be a Union Territory, the Goa, Daman and Diu Administration Act, 1962 was also deemed to have come into force from 5th March, 1962. As per section 5 of the said Act all the laws in force before the appointed day in the territory of Goa, Daman and Diu continued to be in force until amended by the competent registering or other competent authority. The petitioner stated that the "estatuto do Funcionalism Ultramarino" (E. F. U.) was one of such laws which was in force immediately before the appointed day relating to the recruitment and conditions of service of the Government Servants including the salaries payable to the respective posts. Thus any amendment or revision in the salaries of the absorbed employees in the absorbed posts could only be effected either by a Competent registration or by a Competent Authority. Thus and since the territory of Goa, Daman and Diu was declared as Union Territory conditions of service of the employees could only be regulated either by law made by the Parliament or under the rules made by the President of India in exercise of powers vested in him under the proviso to Article 309 of the Constitution. These powers were delegated by the President to the Administrator of Goa, Daman and Diu under letter dated 25th July, 1963 of the Government of India, Ministry of External Affairs. Prior to this date of 25th July, 1963 neither the Administrator nor the Government of Goa, Daman and Diu had legal authority to exercise powers under the proviso to Article 309 of the Constitution including the powers to amend or revise any pay scale assigned to any post including the absorbed post. It was therefore stated that the revised pay scales fixed by order dated 23rd August, 1962 are without any legal authority and as such null and void. In the meantime, several persons serving in the administration of the Union Territory and similarly placed as the petitioner who had been appointed after the liberation of Goa represented to the Government regarding the fixation of pay scale under the provisions of the E. F. U. By Order dated 20th September, 1989 the Government in its wisdom and consequent upon these representations chose to protect the pre-liberation pay of the absorbed posts and as such sanctioned the protection of pay of the absorbed posts held by the petitioner from the date of appointment. As a result the petitioner was given the pay corresponding to his post of "ajudante do Escrivao" which was fixed at Rs. 366. 66 with effect from 28th February, 1963. However, by a subsequent order dated 27th December, 1990, the Government revoked the said Order and revised the scale of the petitioner based on the provisional scale of pay. At that time several petitions were filed and by judgment dated 30th August, 1993 in Writ Petitions No. 77/91 and 79/91 Government was directed to refix the payment of the petitioners according to the order dated 20th December, 1961. It was therefore contended that the pay of the petitioner ought to have been also the same as per the said pre-liberation post to which the petitioner was appointed irrespective of the date.