RUI FALCAO Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioner was promoted to the post of Demonstrator in the Goa College of Pharmacy on 14th October, 1987. A vacancy of the post of Lecturer arose on 1st July, 1990. THE Rules, governing the appointment or promotion to the post of Lecturer, what is called Goa College of Pharmacy, Group 'a' Gazetted Post, Recruitment Rules, 1988, provide that a post of Lecturer can be filled up either by promotion, and failing which by direct recruitment. THE feeder category of the Lecturer's post is Demonstrator having five years experience in the service in the grade. Column 10 of the Rules lays down the method of promotion/selection to the post of Lecturer which shows that the direct recruitment to the post of Lecturer could be resorted to only when the method of promotion fails. A Note has been incorporated in Column 10 which reads as follows : - " NOTE: THE method of promotion provided in Col. 10 will remain in operation till the regular holders of the post of Demonstrator on the date of publication of these rules are promoted to the post of Lecturer on regular basis. " On the basis of the said Note Mr. Diniz, learned counsel for the petitioner, submitted that advertisement was published for the filling up of the post by direct recruitment of Lecturer on 30th July, 1992 and the interview was held on 18th February, 1993. THE petitioner's counsel submits that on the date of interview the petitioner had completed five years experience in the post of Demonstrator and had become eligible for promotion to the post of Lecturer and he should have been promoted instead of resorting to filling of the post by direct recruitment. It is disclosed across the Bar that as a result of the interview held on that day no appointment has been made. Counsel for the petitioner further submits that even today the post has not been filled up and he therefore, requested that a direction may be issued to select the petitioner.

(2.) WHAT happened to the post or whether any candidate has been selected by direct recruitment or had been appointed is not material for the decision in this case. In examining the right of the petitioner to be promoted to the post of Lecturer, the most important point to be considered is whether on the date on which the vacancy arose he was eligible to be promoted under the Rules. Admittedly, the vacancy arose on 1st July, 1990. The Rules provide that Demonstrator who is having five years experience alone would be entitled for promotion. Therefore, on the date when the vacancy arose, the petitioner was not having sufficient number of years experience as laid down under the Rules and he was not eligible for promotion. Therefore, the petitioner cannot have a complaint against the Department, because on the date when the vacancy arose, having no eligible candidate to be promoted, it resorted to direct recruitment. The learned counsel has cited a decision of the Supreme Court in support of his argument, in the case of 'ashok Kumar Sharma & Anr. vs. Chander Shekhar & Ant. 'reported in 1993 Supp (3) S. C. C. 611. The principle laid down in that decision is not applicable to the case in hand. The Supreme Court in that case was dealing with the matter concerning direct recruitment. In a direct recruitment a candidate whose result was awaited at the time of making application was denied the selection merely because on the date of sending the application his result had not been declared and that therefore, he was not qualified. In that context the Supreme Court said that if on the date of interview any such candidate appeared and said that he was qualified on that date, the authority should consider him for interview eventhough on the date of application his result had not been declared. Taking analogy from this decision, Mr. Diniz, learned counsel for the petitioner, argues that on the date of interview the petitioner was eligible to be selected and therefore he should have been promoted. We cannot agree with this contention. As we pointed out earlier the Supreme Court was dealing with entirely a different gamut of the problem vis-a-vis direct recruitment. We are considering here a case of promotion. Principles laid down for direct recruitment cannot be made applicable in the case of promotion. Promotion should be viewed in the circumstances when the vacancy arose and not at the time of making selection. On the date of occurence of vacancy, admittedly, the petitioner did not have five years experience and therefore, he was not entitled for promotion. In view of this, we do not find any merit in the Writ Petition.