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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
P.S. Patankar R.K. Batta, JJ.
Sudin M. Sangodcar....Petitioner.
Versus
State of Goa, through the Chief Secretary and another... Respondents.
Writ Petitions Nos. 4, 6 7 of 1996, decided on 3/9-4-1996.
Section 5-Goa, Daman and Diu Civil Services (Judicial Branch) Rules, 1992, Rule 17(a) and (b) Constitution of India. Articles 233 and 234-Words-use of, as for as possible showing that there is no rigid quota-Ordinarily ratio of 67:33 to be maintained.-Rule 17 does not provide for rigid quota of 67% by promotion and 33% by nomination. If proper and suitable candidates by promotion are not available then it may exceed 33% if suitable candidates by nomination are available or vice versa the case. This would also sub-serve the object of promotional chances of proper and suitable candidates are not hampered. Judicial administration is important because Judge perform vital and difficult function of deciding case only and in public under the rule of law. They do not decide according to the spin of the coin. That requires proper and suitable candidates to shoulder the responsibility. Hence flexibility. However the rule means that ordinarily 67% should be promotee candidates and 33% by nomination.
Section 5-Goa. Daman and Diu Civil Services (Judicial Branch) Rules. 1992, Rule 17(a) and (b)Constitution of India, Articles 233 and 239-Posts-Modes of filling of-What is ?-Held.-The Counsel appearing for the petitioners first submitted that it is necessary to read Rule 17 as a whole and if it so read it would mean that it is authority first to exhaust the possibility or right candidates being available for promotion under Rule 17(a) and then only one can go to Rule 17(b) i.e. direct resentment. In other words first there should be a report from the High Court that eligible candidates having service of four veals from Grade II, Junior Branch are not available. Then High Court should relax the conditions of minimum service in view of proviso to Rule 17{a) and even then eligible candidates are not available then mode under Rule 17(b) can be resorted to. As this has not happened, there can be no direct recruitment. It is not possible to accept this. In Court opinion. Rules 17(a) and 17(b) provide for two distinct and separate modes one by promotion and the other by direct recruitment. It is not necessary that the mode of promotion under Rule 17(a) should be first exhausted. The Division Bench of this Court in writ petition No. 334 of 1993. dated 20th June. 1995 (Goa Judicial Officers Association v. State) has also observed that Rule 17 provides for two methods or modes of recruitment to Grade II. Senior Branch. If so provides for two modes or methods so that the best and the most Suitable talent from both avenues become available. If gives added power to High Court in the form of proviso to Rule l7(a) to relax service conditions if right type of candidates for promotion having four years service for direct recruitment are not available. It is with a view to see that posts do not remain vacant and judicial work and cor . quently litigating public does not suffer Rule 17(a) It does not Put any embargo on the embaling power. Therefore, Rule 17 provinces for 2 separate modes of recruitment
Section 5-Goa, Daman and Diu Civil Services (Judicial Branch) Rules, 1992. Rules 17 and 10Rules prospection in effect-They cover only posts vacant on date of amendment and that may arise thereafter,-Rule 10 of the 1992 Rules deals with initial appointment of person in the senile. It says that the holder of any post in the service, as on the date of these rules come into force shall continue to hold such post and shall be subject to the terms and conditions prescribed for completion of probation according to the Rules of 1985 but in all other respects the said incumbent is to be governed by these Rules. The Rules of 1992 are introduced superseding the earlier and now govern the services. But they cannot affect or alter what has taken place earlier. When there was no provision in earlier Rules by appointment by nomination to Grade II Senior Division and such a provision came to be included for the first time by these rules, we have to find out posts vacant on the date of the introduction of these Rules and to make these Rules applicable in that respect. It was not necessary that there should have been any saving clause in Rules of 1992 to protect the rights created under the Rules of 1985. When the Rules were prospective they cannot affect retrospectively. Here in all respects the" are unforeseeable prospectively.
Articles 233 and 234-See Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981, Section 5.
2.In these petitions under Article 226 of the Constitution of India three questions arise for our consideration :---(i) Whether Rule 17 of the Goa Civil Service (Judicial Branch) Rules, 1992 (hereafter referred to as the Rules of 1992) provides for two separate modes of recruitment or whether direct recruitment under Rule 17(b) is to be resorted to only after exhausting the avenue of promotion contemplated under Rule 17(a); (ii) Whether Rules 17(a) and 17(b) provide for quota i.e. 67% by promotion and 33% by direct the recruitment; and (iii) What is the meaning of 'post' contained in Rule 17(b)?
3.For the sake of convenience we shall give the averments made in one petition being Writ Petition No. 4 of 1996 and the affidavits filed on behalf of respondents.
4.The petitioner was appointed as Civil Judge, Junior Division under Order dated 18-10-1991. The Goa, Daman and Diu Civil Service (Judicial Branch) Rules of 1985 came to be superseded by the 1992 Rules. In the cadre of Civil Judge, S.D. there were 9 posts prior to 1993. Seven posts were already filed and there were two vacancies. The Government created two more posts of Civil Judge, S.D. in 1993. Thereafter in 1994 three posts of Civil Judge, S.D. fell vacant. Thus after the Rules of 1992 seven posts were available for filling. But in February, 1995 two were filled by promotion. The petitioner is praying that the respondents be prohibited from appointing more than two Judges in Grade II (Senior Branch) in the Goa Civil Service (Judicial Branch) out of the present five vacant posts. Affidavit-in-reply has been filed on behalf of respondent No. 3 (i.e. High Court by N. Dabolkar Addl. Registrar (Legal) dated 6th February, 1996. He has pointed out that the sanctioned strength of Civil Judges, S.D. was 10 as against working strength of seven. Thus there were three vacancies. The High Court had asked the Government to create four more posts of Senior Branch i.e. Civil Judge, Senior Division. Therefore, the strength would be 10 + 4. Considering the quota laid down in Rule 17, it was felt that five posts can be filled by nomination and nine posts by promotion. It was thereafter decided to select five candidates from the Bar for direct appointment as Civil Judge, S.D. He has also referred that the Government created only two posts of Civil Judge, S.D. by Order dated 30th April, 1993. He has pointed out that while computing the number of posts to be filled in by nomination, the total strength of Grade II, Senior Branch is required to be considered. According to him it should be taken as 14 and therefore five candidates can be appointed by direct recruitment in view of Rule 17(b) proviso. He has mentioned that even considering the present strength, there can be 4 candidates appointed directly under the said Rule. There is an affidavit filed on behalf of the State of Goa by Mr. P.V. Kadnekar, Joint Secretary, Department of Law and Judiciary dated 13th February, 1996. He has pointed out that the strength of the cadre of Civil Judge, Senior Division was 9 and not 10. Now it is admitted by all that the strength was 9. He has pointed out that 7 posts were filled in prior to the Rules of 1992 came into force. After the Rules of 1992 came into force three vacancies arose because of the promotions. By order dated 18th April, 1993 two additional posts were created of Grade II, Senior Branch. Therefore, there were seven vacant posts of Grade II, Senior Branch. He has made reference to the letter dated 7th September, 1993 addressed to the Registrar, High Court (Appellate Side) pointing out that Rules of 1992 can be given only prospective effect and only one post of Civil Judge, S.D. can be filled in by nomination. He has also pointed out that letter dated 12th December, 1995 was received by him pointing out that Select List of 5 candidates was
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