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1990 Supreme(Bom) 487
BOMBAY HIGH COURT AT PANAJI, GOA
MRS. SUJATA MANOHAR AND S.S. DA SILVA, JJ.
Shri Mohan Mahadev Kambli and others - Petitioners
Versus
Government of Goa and others – Respondents
Writ Petition No. 201 of 1988
Alongwith
Shri Dattaguru L. Amonkar – Petitioner
Versus
Government of Goa and others - Respondents
Writ Petition No. 1 of 1990
Decided On : 30th November, 1990/5th December, 1990
Advocate Appeared:
Writ Petition No. 201 of 1988
Mr. S.D. Lotilikar, Advocate, for the petitioners.
Mr. B.U. Bhobe, Government Advocate, for the respondent Nos. 1 and 2.
Mrs. S. Albuquerque Advocate, for the respondent No. 3.
Mr. A.F. Diniz, for the respondent No. 4.
Writ Petition No. 1 of 1990
Mr. S.D. Lotilikar, Advocate, for the petitioners.
Mr. B.U. Bhobe, Government Advocate, for the respondent Nos. 1 to 3.
Mr. P.A. Kholkar, for the respondent Nos. 4 to 7, 9, 10, 13 and 14.
Mr. K.S. Janwal, for the respondent Nos. 8 and 11.
Mr. M.S. Sonaic, for the intervener.
The court held that the Recruitment Rules of 1986 were violative of Articles 14 and 16 of the Constitution, as they denied Upper Division Clerks a channel of promotion to the post of Excise Inspectors and limited the posts of Excise Inspectors available to departmental promotees to only 12-1/2%.
Headnote:
RECRUITMENT RULES - PROMOTION - EXCISE INSPECTORS - UPPER DIVISION CLERKS - SUB-INSPECTORS OF EXCISE - VALIDITY - REASONABLENESS - FAIRNESS - ADMINISTRATIVE ACTION - SCREENING TEST - SELECTION PROCEDURE - ARBITRARINESS - INTERVENTION - BAD LUCK.
Fact of the Case:
Upper Division Clerks in the office of the Commissioner of Excise, Government of Goa, challenged the Recruitment Rules of 1986, which excluded them from promotion to the post of Excise Inspectors, and the promotion of respondents 3 to 6 to the same post. They argued that the rules were unreasonable and arbitrary, and that they had been denied a promotional avenue available to them for decades.
Finding of the Court:
The court found that the Recruitment Rules of 1986 were unfair and unreasonable, as they denied a large body of Upper Division Clerks the existing channel of promotion to the post of Excise Inspectors and confined their channel of promotion to only two posts of Head Clerks. The court also found that the denial of promotional channel to the Upper Division Clerks was arbitrary and unreasonable, as there were no administrative reasons for making such a drastic change in the Recruitment Rules.
Issues: 1. Whether the Recruitment Rules of 1986, which excluded Upper Division Clerks from promotion to the post of Excise Inspectors, were valid, reasonable, and fair. 2. Whether the promotion of respondents 3 to 6 to the post of Excise Inspectors was valid.
Ratio Decidendi: 1. The court held that the Recruitment Rules of 1986 were violative of Articles 14 and 16 of the Constitution, as they denied Upper Division Clerks a channel of promotion to the post of Excise Inspectors and limited the posts of Excise Inspectors available to departmental promotees to only 12-1/2%. 2. The court held that the promotion of respondents 3 and 4, who were Upper Division Clerks, to the post of Excise Inspectors on an ad hoc basis, was valid, as they were the only candidates in their respective categories. The court also held that the promotion of respondents 5 and 6, who were Sub-Inspectors of Excise, to the post of Excise Inspectors on an ad hoc basis, was valid, as they were the senior most candidates in their category.
Final Decision: The court set aside the Recruitment Rules of 1986, insofar as they denied Upper Division Clerks promotion to the post of Excise Inspectors and limited the posts of Excise Inspectors available to departmental promotees to only 12-1/2%. The court also directed the respondents to frame appropriate Recruitment Rules for the posts of Excise Inspector, granting Upper Division Clerks a channel of promotion to the post of Excise Inspectors and to fix an appropriate quota between direct recruits to the post of Excise Inspectors and promotees to the post of Excise Inspectors.
Mrs. Sujata Manohar, J.
Writ Petition No. 201 of 1988 has been filed by the Upper Division Clerks in the office of the Commissioner of Excise, Government of Goa. The petitioners in this petition are posted as Upper Division Clerks at various Excise Stations situate at Taluka level and also in the office of the Commissioner of Excise at Panaji. Petitioners Nos. 1 to 7 and 14 are graduates while the remaining, are under-graduates.
2. In this writ petition the petitioners have challenged, inter alia, the Recruitment Rules of 1986, in so far as they deal with the posts of Excise Inspectors, which were the next promotional posts available to the petitioners prior to the Recruitment Rules, 1986. They have also challenged in this writ petition the promotion of respondents Nos. 3 to 6 to the post of Excise Inspectors.
3. The Administrator of Union Territory of Goa, Daman and Diu as it then was, pleased to make recruitment rules for recruitment to Class III (Non-Ministerial, Non-Gazetted) posts in the department of Excise and the post of Superintendent of State Excise and Excise Officer, by a notification dated 16th June, 1966 (hereinafter referred to as the Recruitment Rules of 1966). Under these Rules the recruitment to the post of Excise Inspector was both by direct recruitment and by promotion. The Upper Division Clerks and the Sub-Inspectors of Excise having at least 3 years standing in their respective grades were eligible, for promotion to the post of Excise Inspector, provided they had qualified for such promotion by passing a departmental examination. Under these Recruitment Rules of 1966, therefore the petitioners were eligible for promotion to the posts of Excise Inspectors provided they had passed the qualifying departmental examination and had 3 years standing in their grade. As per these rules 50 per cent of the posts of Excise Inspectors were to be filled in by direct recruitment and 50 per cent were to be filled in by promotion.
4. By a notification dated 31st May, 1969 Rules were framed for conducting departmental examination in the Department of Excise. These Examination Rules prescribed the syllabus for the departmental examination, the number of chances which a candidate was to be given for passing the examination qualifying marks for passing the examination and other relevant matters. Rule 7 of these Rules relating to the qualifying marks is as follows :
(i) A candidate will be declared to have passed the examination by the highest standard if he secures a minimum of 45% of the marks in each of the papers as prescribed under Rule 4 and also secures 55% of the marks in aggregate;
(ii) A candidate will be declared to have passed the examination by lower standard if he secures 40% of the marks in each paper as prescribed under Rule 4, and also secures 50% of the marks in aggregate.
There were also certain rules for exemption from appearing in certain papers with which we are not concerned.
5. After the publication of these Examination Rules, the Excise Department conducted a departmental examination in August 1969, inter alia for upper Division Clerks to enable them to qualify for promotion to the post of Excise Inspectors. Ten upper Division clerks appeared for this examination. Only two were declared successful. None of the petitioners could appear for the examination as they had not completed 3 years in their grade of upper division clerks and were not eligible to appear for the examination. The next examination which was announced thereafter was only in February 1981 for which a circular was issued on 27th December, 1980. However, for reasons which we need not examine in this writ petition, none of the upper division clerks appeared for this examination. Thereafter although examination were announced in August, 1985 as well as in September, 1986, the examinations were in fact postponed or not held.
6. It is an accepted position that prior to the Recruitment Rules of 1986 both Upper Division Clerks as well as S
