J M FERNANDES Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioners were working as Head Surveyors/classers in the pay scale of Rs. 1400-2300 in the Land Survey Department, where they were declared surplus. The petitioners along with other surplus Head Surveyors, were given option to either work in a lower post in the said Department, that is the Land Survey Department or to opt for deployment in some other Government Departments. The petitioners opted for deployment in Irrigation Department to the posts of Field Surveyor, which posts were in the pay scale of Rs. 1200-2040. Thus the said posts were in lower scale than the scales in which the petitioners were working prior to being declared as surplus. However, in terms of Rule 4 of the Redeployment of Surplus Staff Rules (hereinafter called as "the said Rules"), the pay scales of the petitioners were protected. This protection of pay was denied to the Surplus Head Surveyors who were absorbed in the lower posts in the Land Survey Department, as a result of which, the said Head Surveyors filed a Writ Petition 231/1988 and in this writ petition, it was held that the Head Surveyors who were absorbed in the Land Survey Department, were also entitled to protection of pay in terms of the said Rules. Some of the Head Surveyors who had been declared surplus in the Land Survey Department, were deployed in the Forest Department and some of them to the P. W. D. The Head Surveyors who were absorbed in the Forest Department were given pay scale of Rs. 1400-2300, but the Head Surveyors who were absorbed in the P. W. D. were given pay scale of Rs. 1200-2040 like the present petitioners.

(2.) THE Government of Goa had introduced a Time Bound Promotional Scale Scheme with effect from 1-6-1989 and those employees who were stagnating for 12 years in a post and had not secured promotion, were entitled to the Time Bound Promotional Scale of the next promotional post. The petitioners claim that they had completed more than 12 years of service as on 1-6-1989 and represented to the Government for Time Bound Promotional Scale, but the request was turned down. However, the Head Surveyors who had been deployed in the Forest Department, were granted the Time Bound Promotional Scale vide order dated 27-7-1990. The petitioners again represented to the Government of Goa on 29-10-1990 for the arbitrary denial of Time Bound Promotional Scale to them, but the representation of the petitioners was, once again, turned down vide communication dated 5-11-1990 in view of the Clarification No. 17 contained in the O. M. dated 22-12-1989. Thereafter, the petitioners also continued to represent their claim for the Time Bound Promotional Scale and ultimately, after giving legal notice, this writ petition was filed. In the meantime, the Head Surveyors who had been absorbed in the P. W. D. were also granted the Time Bound Promotional Scale vide order dated 7-3-1991. The petitioners claim that their case and those Head Surveyors who had been absorbed in the P. W. D. is, in no way, different since both the categories had been absorbed in lower pay scale of Rs. 1200-2040, but the Head Surveyors who were absorbed in P. W. D. have been given Time Bound Promotional Scale with effect from 7-3-1991 which had been denied to the petitioners. The petitioners, therefore, claim that the action of the Government in denying the Time Bound Promotional Scale is violative of Article 14 of the Constitution of India being discriminatory, arbitrary and unconstitutional. The petitioners, thus, seek directions for grant of Time Bound Promotional Scale with effect from 1-6-1989 along with other consequential benefits and for a declaration that Clause 17 of O. M. dated 22-12-1989 is arbitrary, unconstitutional, ultra-vires and that the respondents be refrained from denying the Time Bound Promotional Scale to the petitioners on the basis of Clause 17 of the O. M. dated 22-12-1989.

(3.) LEARNED Advocate Shri M. S. Sonak placed before us the facts which we have already enumerated and urged that the pay protection which is granted to the petitioners is under Rule 4 of the said Rules, which are framed under Article 309 of the Constitution of India and have statutory force and the Office Memorandums are executive instructions which cannot be read or interpreted to render pay protection granted under the statutory rules as illusory, which has been done in the case under consideration. He also pointed out that it is only in the fortuitous circumstance that some of the Head Surveyors who had been declared surplus from the Land Survey Department along with the petitioners had been deployed in the P. W. D. in the lower pay scale of Rs. 1200-2040 like the present petitioners, but the said Head Surveyors deployed in the P. W. D. have been granted the benefit of Time Bound Promotional Scale and as such, there is no reason or justification to deny the said scale to the petitioners and denial of the same is arbitrary, unreasonable and unconstitutional. He further pointed out that in fact Clause 17 of the O. M. dated 22-12-1989 itself is directory and advisory in nature and that the Government has to examine the cases of the employees falling under Clause 17 on its own merits.