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1982 Supreme(Goa) 2
Goa High Court
Dr. GUSTAVO FILIPE COUTO, Ag. J. C.
R.X.A. de Monte Furtado - Appellant
Versus
The Administrator, Goa, Daman and Diu - Respondents
Spl. Civ. Appln. (W.P.) No.23 of 1980
Decided On : 12 May 1982
V.B. Nadkarni, for Petitioner; J. Dias, Govt. Advocate, for Respondents.
The cancellation of an ad hoc appointment to a higher post and the reversion of an employee to his substantive post, if done as a punitive measure and without following the procedural safeguards of Article 311(2) of the Constitution, amounts to reduction in rank and is invalid.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 311 - REDUCTION IN RANK - REVERSION TO SUBSTANTIVE POST - PUNITIVE ACTION - STIGMA - PROCEDURAL SAFEGUARDS - DISCRIMINATION - ARBITRARINESS - WRIT OF MANDAMUS - DEMAND FOR JUSTICE.
Fact of the Case:
Petitioner, an employee of the Goa, Daman and Diu Civil Service, challenged the validity of a notification canceling his ad hoc appointment to a Grade II post, his reversion to his substantive post of Superintendent, and his suspension. The petitioner argued that the impugned actions were punitive in nature, visited him with penal consequences, and cast a stigma on his character and integrity, thereby violating his rights under Articles 14, 16, and 311 of the Constitution.
Finding of the Court:
The court found that the impugned actions were indeed punitive in nature and had visited the petitioner with penal consequences, casting a stigma on his character and integrity. The court held that the cancellation of the petitioner's appointment to the Grade II post amounted to reduction in rank within the meaning of Article 311 of the Constitution and that this reduction was done without the procedural safeguards of Article 311(2) being followed.
Issues: 1. Whether the impugned actions were punitive in nature and visited the petitioner with penal consequences, casting a stigma on his character and integrity. 2. Whether the cancellation of the petitioner's appointment to the Grade II post amounted to reduction in rank within the meaning of Article 311 of the Constitution. 3. Whether the reduction in rank was done without the procedural safeguards of Article 311(2) being followed.
Ratio Decidendi: 1. The court relied on the entirety of circumstances preceding or attendant on the impugned actions, including the preliminary investigation conducted against the petitioner for alleged breach of the Conduct Rules, to conclude that the actions were punitive in nature and had visited the petitioner with penal consequences, casting a stigma on his character and integrity. 2. The court held that the cancellation of the petitioner's appointment to the Grade II post amounted to reduction in rank within the meaning of Article 311 of the Constitution, as it resulted in the petitioner being reverted to his substantive post of Superintendent, a lower-ranking position. 3. The court found that the reduction in rank was done without the procedural safeguards of Article 311(2) being followed, as the petitioner was not given a reasonable opportunity to defend himself against the allegations of misconduct.
Final Decision: The court allowed the petition in part, quashing the impugned notification and orders canceling the petitioner's appointment to the Grade II post and reverting him to his substantive post. However, the court declined to issue a writ of mandamus directing the respondents to deem that the petitioner still continues to hold a Grade II post, as the petitioner had failed to make a demand for justice and its refusal.
ORDER :- In this petition under Art.226 of the Constitution of India, petitioner R.X.A. de Monte Furtado challenges the validity of the Notification No.6-6-78-Div.1, , the Order No. COL/CONF/EST/passed by the Collector of Goa and two orders both bearing the No. -2-78-Div. 1 (Part) passed by the Joint Secretary, Government of Goa, Daman and Diu, all dated 5th Nov., 1979.
2. The admitted facts are as under :-
By Notification No.3.16-76-Div. 1 (Part file), dated 17th April, 1978, petitioner was appointed to the Grade II Post of the Goa, Daman and Diu Civil Service on ad hoc basis and posted, as Addl. Deputy Collector, North Goa Division. Immediately before the said appointment, he was holding the post of Superintendent (outside Secretariat) in the Public Works Department in substantial capacity. On account of his appointment to the post of Addl. Deputy Collector he was also appointed Additional Rent Controller. He officiated in addition to his duties of Addl. Deputy Collector as Administrative Officer. Directorate of Health Services from 24-7-78 to 8-8-78, as Under Secretary (Revenue) from 27-10-1978 to 25-11-1978 and as Addl. Director of Municipal Administration from 30-4-1979 to 31-5-1979. On 5-11-1979, the Collector of Goa, by his Order No. COL/CONF/EST/79, relieved the petitioner from his duties as Addl. Deputy Collector with effect from 5-11-1979, afternoon. Petitioner was served on the same day with the Order No.7-2-78-Div. 1 (Part) dated 5-11-1979 and was posted as Superintendent in the Public Works Department consequent upon the cancellation of his appointment to Grade II post. Petitioner was also served with another order bearing the same number and date, whereby he was placed under suspension with immediate effect, as a case against him was under investigation. A news item under the caption L.T.C. : Officer suspended was published in the issue dated 6-11-1979 of the local newspaper Navhind Times, stating that a Goa Government Press release said that petitioner had been suspended from his substantive post of Superintendent after cancellation of his ad hoc appointment to the post of Addl. Deputy Collector on account of prima facie finding of his involvement in certain acts causing breach of the conduct rules during the preliminary investigations conducted by the Directorate of Vigilance including false claim of L.T.C. Petitioner had claimed L.T.C. for his family members, excluding himself, for their journey from Goa to Kashmir. By the aforesaid Notification, dated 17-4-1978, two other employees besides the petitioner holding the post of Superintendent, viz. Shri S.M. Naik and Shri Mateua O.B.V. de Jesus Mascarenhas were appointed to Grade II posts on the Goa, Daman and Diu Civil Service, all on ad hoc basis. Shri Mascarenhas is junior to the petitioner in the substantive post of superintendent, but he continues to hold the post of Grade II although the appointment of the petitioner was cancelled.
3. The case of the petitioner is that the impugned Notification was issued by way of punishment and amounts to reduction in rank within the meaning of Art.311 of the Constitution made without satisfying the procedural safeguards contemplated in Art.31 (2). The appointment of the petitioner to Grade II post was not for any special or particular purpose and has therefore to be considered for all legal purposes as a "temporary appointment" and not "ad hoc appointment". The impugned notification has visited the petitioner with penal consequences and casts aspersions on his character and integrity, having been passed mala fide with a view to circumvent the provisions of Article 311 of the Constitution. The Goa Government Press release will inevitably lead the public to believe that the petitioners services as Addl. Deputy Collector have been cancelled on account of misconduct and hence, it casts a stigma on the character of the petitioner, who was arbitrarily picked up for purposeful discrimination, as Shri Mateus O.B.V. Masc
