Back
2017 Supreme(Bom) 134
IN THE HIGH COURT OF BOMBAY AT GOA
F.M. REIS, NUTAN D. SARDESSAI, JJ.
Maya M. Pednekar & Ors. - Petitioners
Versus
State of Goa through the Chief Secretary & Ors. - Respondents
Writ Petition No. 847 of 2015
Decided On : 02-02-2017
For the Petitioners: Mr. N.N. Sardesai, Mr. L. Raghunandan
For the Respondents: Mr. D. Lawande, Mr. P. Dangui, Mr. A.F. Diniz, Mr. Ryan Menezes, Mr. V.A. Lawande
Important Point: The concept of 'catch-up' rule and 'consequential seniority' are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc.
Headnote:Constitution of India, 1950-Article 16-Concept of `catch-up` rule.-Concept of `catch up` rule and "consequential seniority" are not constitutional limitations and applied at time of promotion of candidates.
The concept of `catch-up` rule and `consequential seniority` are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of `consequential seniority` the structure of Article 16(1) stands destroyed or abrogated.
It cannot be said that `equality code` under Article 14, 15 and 16 is violated by deletion of the `catch-up` rule. These concepts are based on practices. However, such practices cannot be elevated to the status of constitutional principle. The concept of `catch-up` rule and `consequential seniority` are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence and normally applied at the time of promotion of the candidates.
Constitution of India, 1950-Article 226-Select list.-Only notified vacancies can be filled up in accordance with select list and not future vacancies.
A waiting list prepared in service matters by a competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. The recommendation by the respondent No. 2 become effective after the vacant posts are available and consequently a requisition is made by the State Government. In such circumstances, in terms of Rule 5 of the Goa Government (Seniority) Rules, the inter se seniority of the candidates recommended by the respondent No. 2 in each batch as and when the vacancy arise would be in the order of merit in the select list prepared by the respondent No. 2. In such circumstances, the seniority of the respondent Nos. 3 and 4 would have to be reckoned from the date of their appointment and they cannot claim it with retrospective date when admittedly they were not entitled to be appointed nor recommendations sought to such posts as there were no vacancies then available.
Constitution of India, 1950-Article 226-Seniority.-Seniority is to be determined from date of actual appointment of candidate.
Seniority is to be determined from the date of appointment. It is sequitur that a person becomes a member of the service only on appointment and not before the event happens by the methods prescribed. A right to appointment of a member of the service can accrue against a vacancy and, as such, it does not create a right to seniority unless a person is declared in terms of the Rules to be a Member of the Service.
This is for the reason that a member of the Service has to run and be reckoned from the date of appointment. As such, a right to seniority can accrue only from the actual appointment. Hence, the question of seniority has to be determined on appointment of a candidate. The question becomes moot and in operation only when recruitment cycle is completed and appointments are made.
Constitution of India, 1950-Article 226-Seniority.-When vacancy arise would be in order of merit in select list prepared by competent authority.
Goa Government (Seniority) Rules, 1967-Rule 5-Seniority.-Seniority, in terms of Rule 5 of Rules would be governed by order of merit in which candidates are selected for appointment.
The Rule 5 of the Goa Government (Seniority) Rules, clearly provides that seniority would be governed by the order of merit in which they are selected for such appointment on the recommendation of the Commission. As pointed out herein above, the initial advertisement invited applications for 11 posts and 11 vacancies likely to occur in future. The seniority of the 11 posts which were appointed on the basis of the recommendation of the respondent No. 2 no doubt would be governed by the merit in which they have been selected. It is not in dispute that there were no vacant posts after the 11 appointments were filled up. All other 19 candidates at the request of the respondent No. 1 as such were asked to be placed in the waiting list.
In the present case, it is not in dispute that when the petitioners were appointed, there were no substantive posts available to appoint the respondent Nos. 3 and 4. In such circumstances, without being borne in the cadre as there were no substantive posts available at the relevant time, it would be grossly unjust to accept that persons who are already in service would be deprived of their seniority on the basis of the subsequent appointment which would have an effect of a retrospective date of availability of the substantive posts.
F.M. Reis, J.
Heard Shri N.N. Sardesai, learned Senior Advocate appearing for the Petitioners, Shri P. Dangui, learned Additional Government Advocate appearing for the Respondent no. 1, Shri D. Lawande, learned Additional Advocate General appearing for Respondent no. 2, Shri A.F. Diniz, learned Counsel appearing for Respondent no. 3 and Shri V.A. Lawande, learned Counsel appearing for Respondent no. 4.
2. The above petition inter alia prays for a Writ or direction to quash and set aside the report dated 16.02.2015 prepared by the learned Ombudsman and the impugned order dated 09.09.2015 and restore the final seniority list dated 16.07.2008.
3. Briefly, it is the case of the Petitioner that the Respondent no. 2 published an advertisement in the local newspaper dated 31.08.2001 for inviting applications for 11 posts and 11 vacancies likely to occur in future. The Respondent no. 1 informed the Respondent no. 2 on 30.11.2011 to prepare a waiting list of 19 candidates and as such, the total vacancies were 30 out of which 11 existing and 19 were to be in the waiting list. It is further contended that the Respondent no. 2 on 21.11.2.001 made recommendations of 11 candidates to the existing 11 posts and the remaining 21 posts were reserved under waiting list for the said posts. Among the 11 posts, 7 were in General category and 3 were in OBC and one was CFF. The Petitioner no.1 was appointed on 15.02.2002 as a Mamlatdar by the Respondent no. 1. As per the requisition by the Respondent no. 1 on 26.02.2002 the Respondent no. 2 further recommended 8 candidates from the above waiting list to the said post which included five posts from General category and 3 were in OBC. Thereafter, by letter dated 24.05.2002, the Respondent no. 2 recommended two candidates one belonging to the general category and one from OBC category. The Petitioner no. 4 was recommended in this batch and was appointed to the post of Mamlatdar. On 27.11.2002 as per the requirements the Respondent no. 2 made recommendations for two more candidates for the said post out of which one belonging to General category and one from OBC category. The Petitioner no. 5 and 6 were recommended and appointed for the post of Mamlatdar on 14.01.2003. On 03.06.2003, the final batch of recommendations consisted of 7 candidates for the said post from the waiting list from which 6 were from General category and one from OBC category were recommended. On 22.01.2007 the Respondent no. 2 submitted a common merit list to the Respondent no. 1 which was prepared based on the marks secured by each candidate in the viva voce. Thereafter, the Respondent no. 1 announced that there was some anomaly in the common merit list given by the Respondent no. 2 and, therefore, sought clarification on the said anomaly as the same was required to finalise the common seniority list. Thereafter, on 24.10.2007 the Respondent no. 2 observed that while recommending the name of the candidate to the Respondent no. 1 from time to time, apparently wherever the candidates had secured equal marks, their date of birth was not taken into consideration for determining their inter se seniority. Hence, the discrepancy occurred as observed by the Respondent no. 1 in his letter dated 20.08.2007. The tentative seniority list was thereafter prepared on 06.11.2007 by the Respondent no. 1 based on the letter dated 22.11.2007 and ultimately a final seniority list was prepared on 16.07.2008 as per the appointment orders. The Respondent no. 3 and 4 being aggrieved by the final seniority list made representations to the Respondent no. 1 in 2008 and 2009 and, thereafter, a Writ Petition was filed by the Respondent no. 3 before this Court challenging the final seniority list. This Court by order dated 08.10.2009 disposed of the writ petition on the statement made by the learned Advocate General upon instructions that the representation would be considered and decided in accordance with law. The Respondent no. 1, thereafter, by an o
