Shri Keshav Shanu Gawde, Senior Auditor vs State of Goa and Shri C.D. Gawde

F.M. Reis, J. 1. The above Petitioner prays inter-alia for a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, to quash and set aside the order of selection dated 30.01.2004 to the extent the Petitioner has been shown junior to the Respondent No. 3 and further for an appropriate direction that the Petitioner should be shown at Sr. No. 4 instead of Sr. No. 10 in the said order of selection.

It is the case of the Petitioner that he came to be appointed on 10th May, 1984 as junior auditor by direct recruitment in the general category. At the relevant time, the Petitioner''s community was not categorised under the reserved category and as such the Petitioner was appointed on officiating basis. The Petitioner subsequently by an order dated 6th October, 1989 and on the recommendation of the DPC, was regularised w.e.f. 14th April, 1984. It is further his case that the community to which the Petitioner and the Respondent No. 3 belong was declared as Schedule Tribes in the State of Goa and the benefits of the reservation were conferred on the Petitioner. It is further his case that tentative seniority list dated 8th August, 2000 was prepared and the Petitioner was shown at Sr. No. 28 while the Respondent No. 3 was shown at Sr. No. 55. It is further his case that the Respondent Nos. 1 and 2 have considered the promotion to the higher post of the candidates in the said seniority list as if the said seniority list is the final seniority list. It is further his case that the Respondent No. 1 has issued guidelines to the DPC providing therein the manner in which DPC shall carry its business. It is further his contention that as per the said guidelines apart from considering C Rs, the DPC has to consider overall positive merits by using C Rs as basic input. It is further his case that even while considering C Rs, the DPC is duty bound not to go by the overall assessment as noted in the C Rs. It is further his contention that the circular issued on 16th September, 1993 gives details amongst others how C Rs are to be written and by whom the same should be written. The said provisions have been made based on the principles of natural justice, fairness with an object of good governance and administration. He has further stated that Rules have been framed known as the Goa Government ( Seniority ) Rules, 1997 and the same were amended from time to time.

It is further his case that there were 11 vacancies as on 1st January, 2004 to the post of senior auditor/senior inspector/special recovery officer, out of which three were reserved vacancies, two being for Schedule Tribe and one for Schedule Caste. The DPC was held for considering the promotions to the said post. It is further his case that the Petitioner is shown as Sr. No. 10 while Respondent No. 3 as Sr. No. 4. It is further his case that Respondent No. 3 was a junior to him and as such he made inquiries as to how he was shown higher to the Petitioner. He further requested for the correction in terms of the seniority. He was informed that the seniority of the Respondent No. 3 was finalised by the DPC in accordance with the Office Memorandum dated 20th December, 2000. The Petitioner further states that he had excellent record in the entire service career of 20 years and he has never been intimated any adverse remarks. He further states that he has reasons to believe that the Petitioner''s C Rs are bound to disclose as excellent/outstanding. It is further his case that the Respondent No. 3 does not have good performance through out his career as civil servant. The Petitioner further contends that the Respondent No. 3 cannot have remarks which can be either good, very good or outstanding. It is further his case that at the relevant time, the Respondent No. 4 was the Reporting Officer for the Petitioner and the Respondent No. 3. It is his contention that the Respondent No. 4 is a very close relative of the Respondent No. 3 and that in terms of circular No. 6/2/92-PER dated 16th September, 1993, the Respondent No. 4 ought to have refrained himself from writing C Rs of the Respondent No. 3. It is further his case that in violation of the said circular and the principles of fairness the C Rs came to be written by the Respondent No. 4. It is further his case that DPC has to treat the C Rs as basic input only and had to see for itself various other positive aspects in the candidate before recommending promotions. He accordingly filed the present

An affidavit came to be filed by Shri Praveen Kumar Patidar on behalf of the Respondent Nos. 1 and 2. He has stated that the Departmental promotion committee after considering all the relevant facts including inter-se-merit and ability of the candidates prepared the selection list and selected the Respondent No. 3 on merit and placed him at serial No. 4 whereas the Petitioner was selected as per the seniority and placed at serial No. 10 on the said list. He has further stated that though the Petitioner was a senior, the Respondent No. 3 was selected on merit by applying the principle of merit-cum-seniority. He has further stated that DPC has assessed the C Rs of the Junior Auditor/Inspector for the last five years for the period from 1998-99, 1999-2000, 2000-2001, 2001-2002, 2002-2003 on merit-cum-seniority basis in response to the DPC guidelines contained in O.M. No. 12/14/89-PER dated 26th September, 1990 and 14th December, 1995. He has further denied that the Respondent No. 4 was the Reporting Officer of the Respondent No. 3 and that he was Reviewing Officer for those years and both the Petitioner and the Respondent No. 3 got remark as ''Very Good''. He has also denied that the Respondent No. 4 was a relative of the Respondent No. 3.

An affidavit was also filed by the Respondent No. 4 wherein he has stated that neither the Petitioner nor Respondent No. 3 are his close relatives. The Respondent No. 3 has also filed his affidavit disputing the contentions raised by the Petitioner.

Shri Sardessai, learned Counsel appearing for the Petitioner has submitted that the Petitioner do not press their contention that the Respondent No. 3 was a close relative of the Respondent No. 4 as there is no evidence to that effect. He further submitted that DPC was supposed to consider the promotion not only on the basis of the C Rs but also on the basis of overall merits. He took us through the guidelines referred to by the Petitioner as well as other circulars and pointed out that DPC has not performed its function in accordance with the Rules and guidelines framed by the Government. Learned Counsel further submitted that grave prejudice would occasion to the Petitioner in case he was not given higher seniority to that of the Respondent No. 3 as it would affect the future prospects.

On the other hand, Mr. M. Sonak, learned Counsel appearing for Respondent No. 3 disputed the contention of the learned Counsel for the Petitioner. He took us through the affidavit filed in support of the Petition and pointed out that he has clearly stated on oath that the facts with regard to the contention to the effect that the Respondent No. 4 was a close relative of the Respondent No. 3 has been stated to his own knowledge in the verification clause. As the Petitioner is giving up the said contention, no relief can be granted to the Petitioner under Article 226 of the Constitution of India. The learned Counsel further submitted that the whole petition is based on the contention that the C Rs of the Petitioner have been manipulated at the instance of the Respondent No. 4 and as the Petitioner has failed to substantiate the said contention, the question of granting any relief to the Petitioner on such count would not arise. With regard to the contention of the learned Counsel for the Petitioner that the DPC has solely relied upon the C Rs, the learned Counsel pointed out that the affidavit filed on behalf of the Respondent Nos. 1 and 2 clearly shows that the exercise of the DPC has been done in accordance with the guidelines and Rules framed by the Government and as such there is no merit in such contention. Learned Counsel further pointed out that in case any relief is granted to the Petitioner, it would affect other employees who have been promoted and the Petitioner has chosen not to make them as parties to the present Petition and on this sole ground, the Petition deserves to be rejected. He has relied upon the judgment of the Apex Court reported in M.V. Thimmaiah and Others Vs. Union Public Service Commission and Others, .

Learned Counsel Shri Sardessai in response to the submissions made by the learned Counsel Shri Sonak appearing for the Respondent No. 3 has pointed out that only the Petitioner and the Respondent No. 3 are Schedule Tribes candidates and in case of further promotion, only two of them would be considered for the promotion in reserved category. Learned Counsel further submitted that other employees who have been promoted are not necessary parties to the present Petition. Learned Counsel for the Respondent No. 3 however submitted that in further promotion, the reserved candidates can also compete with general category candidates and as such the contention of learned Counsel for the Petitioner cannot hold good. The learned Counsel for the Respondent Nos. 1 and 2 has supported the submission that DPC has performed the function in accordance with law and the Petitioner is not entitled for any relief in the present Petition.

Having heard the learned Counsel for the Petitioner and the Respondents and on perusal of records, we find that the main ground of challenge in the present Petition is that the promotion recommended by the DPC is on the ground of C Rs of the Petitioner which have been manipulated at the instance of the Respondent No. 4. The said challenge has been now given by the Petitioner. The Petitioner has failed to establish any close relationship between Respondent No. 4 and Respondent No. 3. Hence the basis on which:9: the promotion was sought to be challenged does not survive.

Mr. Sonak, learned Counsel appearing for the Respondent No. 3 is justified to contend that the reserved candidates are entitled to compete for the higher post with the candidates in general category. Admittedly, the Petitioner has chosen not to make other employees who have been promoted as parties to the present Petition. Any order passed in the present Petition could result in changes in the said list which would naturally affect the rights of the other employees who have been promoted along with the Petitioner and Respondent No. 3. When an uniform criteria has been adopted by the DPC in recommending the promotion to all the employees in the present case, the question of carving an exception to such criteria only with regard to the candidates of Schedule Tribes would not be justified. Recommendations cannot be challenged only to the extent it would affect the Schedule Tribes candidates when it would affect the other employees who have also been recommended and have not been made parties to the present Petition. As the said employees are not made parties to the present Petition, the Petitioner is not entitled for any relief in their absence as they are necessary parties to the petition as their rights would be affected. On such ground alone, the Petition deserves to be dismissed.

In view of the above, we find no merit in the above Petition and as such the Petition stands dismissed with no order as to costs. Rule stands discharged.