R.X.A De Monte Furtado v. Administrator, Goa, Daman And Diu, And Others

1. 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 No. 7-2-78-Div. 1(Part) passed by the Joint Secretary, Government of Goa, Daman and Diu, all dated 5 November 1979.

2. The admitted facts are as under: By Notification No. 3-1-76-Div. 1 (Part file), dated 17 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 Additional 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 substantive capacity. On account of his appointment to the post of Additional Deputy Collector he was also appointed Additional Rent Controller. He officiated in addition to his duties of Additional Deputy Collector as Administrative Officer, Directorate of Health Services from 24 July to 8 August 1978, as Under Secretary (Revenue) from 27 October to 25 November 1978 and as Additional Director of Municipal Administration from 30 April to 31 May 1979. On 5 November 1979, the Collector of Goa, by his Order No. COL/CONF/EST/79, relieved the petitioner from his duties as Additional Deputy Collector with effect from 5 November 1979, afternoon. Petitioner was served on the same day with the Order No. 7-2-1978-Div. I (Part), dated 5 November 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 November 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 Additional Deputy Collector on account of the 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 April 1978, two other employees besides the petitioner holding the post of superintendent, tit., S??? S.M Naik and Sri Mateus 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. Sri 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 purpose 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 Art. 31 i of the Constitution. The Goa Government Press release will inevitably lead the public to believe that the petitioner's services as Additional 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 Sri Mateus O.B.V Mascarenhas, who was junior to the petitioner in the substantive post of superintendent, continued in grade II post. The impugned notification and the subsequent orders are, therefore, without the authority of law and without jurisdiction, invalid and inoperative.

4. It was argued before me by Sri V.B Nadkarni, learned advocate for the petitioner, that the impugned notification is invalid as it offends the provisions of Arts. 14 and 16 of the Constitution. Indeed, by notification, dated 17 April 1978 (exhibit P1), two other employees besides the petitioner, namely, Sri S.M Naik and Sri Mateus O.B.V De Jesus Mascarenhas, were also appointed to the grade II post of the Goa, Daman and Diu Civil Service. The three appointments were purported to be on ad hoc basis. Sri Mascarenhas is admittedly junior to the petitioner in the substantive post of superintendent. Despite this, the appointment of the petitioner to grade II post was cancelled, whereas Sri Mascarenhas, though junior to the petitioner, continued to hold on ad hoc basis a post of grade II. This shows that petitioner was picked up for purposeful discrimination and hostile treatment and, therefore, there is violation of Arts. 14 and 16 of the Constitution. It was further submitted that petitioner could have been reverted to his original post only for valid reasons which are absent in this case. Reliance was placed in support of the above submissions in C.B Dubey v. Union of India [(1975) 1 S.L.R 580], Government Branch Press v. D.B Belliappa [1979 — I L.L.N 324], Rupinder Kaur v. Secretary to Government Punjab [(1980) 1 S.L.R 710], Savitri Devi v. M.C Delhi [(1979) 2 S.L.R 543] and A. Mohanty v. Union of India [(1981) I S.L.R 785], It was, however, contended by Sri Joachim Dias, learned Government Advocate, that when a person is appointed to a post on ad hoc basis on account of exigencies of the service without following any procedure of selection for such appointment as prescribed under the rules, the question of any infringement of the principle of equality before the law and equality of opportunity in the matter of public employment does not arise. The Goa, Daman and Diu Civil Services Rules, 1967, provide for two methods of recruitment to such posts, namely, by direct recruitment and by promotion on basis of selections. Petitioner is neither a direct recruit nor he has been selected as per the prescribed method of selection laid down in the rules and as he has not acquired any right to the appointment to the said post, his reversion from his ad hoc post does not amount to reduction in rank. It was further argued that the appointment of Sri Mascarenhas was on ad hoc basis due to administrative exigency and his retention in the said post does not affect the petitioner.

5. I do not find much force in the last submission of Sri Nadkarni. In fact, as rightly submitted by the learned Government Advocate, when a person is appointed to a post on ad hoc basis on account of the exigencies of the service without the procedure of selection as laid down in the rules being followed, the question of infringement of the principle of equality before the law and equality of opportunity in the matter of public employment enshrined in Arts. 14 and 16 of the Constitution does not arise. Petitioner did not disclose in the petition if he was appointed to grade II post after having been selected for promotion as per the prescribed method of selection under the prevailing rules, nor he denied the specific averment made in the affidavit-in-reply that he is neither a direct recruit nor he has been selected for promotion in accordance with the method prescribed in the rules. It is, therefore, to be concluded that the appointment of the petitioner to grade II post has been made without observance of the procedure of selection laid down in the prevailing rules and that the said appointment, was a stop-gap arrangement dictated by the exigencies of the service, as otherwise Para. 2 of the notification, dated 17 April 1978, appears to corroborate. In the circumstances, I am satisfied that petitioner has not acquired any right of appointment to the said post. No doubt, in the cases of C.D Dubey [(1975) 1 S.L.R 580] (vide supra) and Savitri Devi [(1979) 2 S.L.R 543] (vide supra), it was held that an officiating or ad hoc or a temporary appointee who does not have a right to hold a post can be reverted only for valid reasons. However, this was held in the context that, though the expression ad hoc in its true meaning would mean “stop-gap,” the ad hoc appointment has teen made after consideration of the claims of all in accordance with the basis of selection provided by the rules, a conditionalism that is absent in the case before us. Hence, the said authorities do not help the case of the petitioner.

6. The other ground on which petitioner alleges discrimination is that Sri Mateus Mascarenhas, who is junior to him continues to hold a post of grade II to which he had been appointed on ad hoc basis along with the petitioner and Sri S.M Naik, whereas his appointment has been cancelled. Before addressing myself to the above submission, I feel it expedient to refer to some judicial pronouncements on the subject. In Rupinder Kaur v. Secretary to Punjab Government [(1980) 1 S.L.R 710] (vide supra), the services of the petitioner therein had been terminated to accommodate a regular candidate while juniors to her had been retained. Their Lordships of the Punjab and Haryana High Court held that the order of termination of her services was clearly arbitrary and illegal, as there was no material on record prior to the passing of the said order that her work and conduct was unsatisfactory and on the contrary there was material to show that it was satisfactory and further that, she being senior to two other steno-typists, she could not have been made to make way for the regular candidate. Similarly, in A. Mohanty v. Union of India [1981 L. & I.C 729] (vide supra), the Orissa High Court held that the termination of the services of the petitioner therein has been made in the exercise of arbitrary discrimination as there was no material to show that the said petitioner stood as a class by himself and that persons junior to him had a better record of service and, therefore, the provisions of Arts. 14 and 16 of the Constitution had been violated. And in the case of Government Branch Press v. D.B Belliappa [1979 — I L.L.N 324] (vide supra), their Lordships of the Supreme Court held that, where the services of a temporary Government servant was terminated without giving any reason while some other employees junior to him were retained and though a show-cause notice questioning his integrity and fidelity had been served on him but found that there was no nexus between the notice and the termination of service, such termination of service was made arbitrarily. Sri Joachim Dias argued, however, that the above authorities are not attracted to the facts of the present case as all of them deal with cases of termination of service, a situation which is quite different from the one of the present petitioner. In fact, petitioner's services were not terminated, but he was reverted to his substantive post of superintendent, a reversion which having been made for reasons of unsatisfactory work or unsuitability, would not amount to reduction in rank. Further an appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his services may be terminated. Reliance was placed in the cases of Southern Railways, Mysore v. Raghavendrachar [A.I.R 1966 S.C 1529] and P.L Dhingra v. Union of India [A.I.R 1958 S.C 36] I, am, however, unable to agree with Sri Dias when he submits that the authorities of Rupinder Kaur case, A. Mahanty case and Government Branch Press case (vide supra), are not attracted to the facts of the case before us, only because in all the said authorities the cases of the petitioners were that their services had been terminated for one or other reasons, but the services of persons junior to them had been retained, whereas the case of the petitioner is that he was reverted to his substantive post of superintendent on account of the cancellation of his appointment to the grade II post. In fact, the guiding principle of the above authorities is that the action of retaining the service of a junior while terminating the services of a senior, when it is not shown that the services of the latter worse than those of the junior, amounts to discrimination and is arbitrary. There is no sound reason, in fact, for ignoring the said principle in case of reversion. No doubt that, as observed by the Supreme Court in Dhingra case (vide supra), except in the two cases mentioned by their Lordships, the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to tne servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. But as held in Government Branch Press v. D.B Belliappa [1979-1 L.L.N 324] (vide supra), a termination of service without giving any reason while other employee junior to the employee whose services were terminated are continued in service, is arbitrary. In the case before us no reasons were assigned for the cancellation of the appointment of the petitioner to the grade II post and, therefore, it would appear that the said order is arbitrary and discriminatory, violating, as such, Arts. 14 and 16 of the Constitution, for they strike at arbitrariness and discrimination.

7. The next contention of Sri Nadkarai was that the impugned notification was issued by way of punishment and amounts to reduction in rank. He further argued that the Goa Government. Press release will inevitably lead the public to believe that petitioner's services as Additional Deputy Collector had been cancelled on account of misconduct and, therefore, the petitioner was visited with penal consequences on account of the impugned notification which further casts a stigma on his character and integrity. Reliance was placed in the cases of State of Bihar v. S.B Mishra [(1970) 2 SCC 871 : A.I.R 1971 S.C 1011], Madan Mohan v. State of Bihar [(1973) 4 SCC 166 : A.I.R 1973 S.C 1133] and State of Maharashtra v. Veerapa R. Saboji [1980 — I L.L.N 17], Sri Dias, however, contended that the Goa Government Press release cannot be construed as a punishment given to the petitioner and further, such press re/ease cannot obviously be the foundation of the very news reported therein. He next contended that the impugned notification did not cast any kind of stigma on the petitioner nor has it visited him with penal consequences. Petitioner had no right to the post, being a fact, that, therefore, it cannot be said that his reversion to the substantive post of superintendent amounts to reduction in rank. Reliance was placed on State of Punjab v. Sukh Raj [A.I.R 1968 S.C 1089], I.N Sexena v. State of Madhya Pradesh [A.I.R 1967 S.C 126], State of Uttar Pradesh v. Shyam Lal [(1971) 2 SCC 514 : A.I.R 1971 S.C 2151], State of Bihar v. S.B Mishra [A.I.R 1971 S.C 1011], State of Uttar Pradesh v. Ram Chandra Trivedi [1977 — I L.L.N 37], State of Uttar Pradesh v. Bhoop Singh [1979 — I L.L.N 513] (vide supra), State of Uttar Pradesh v. Sughar Singh 1974 — I L.L.N 49], Vasudeva (S.P) v. State of Haryana [1975 — II L.L.N 495] (vide supra), Southern Railways, Mysore v. Raghavendrachar [A.I.R 1986 S.C 1529] and Union of India v. Gajinder Singh ((1973) 3 SCC 797 : A.I.R 1972 S.C 1329]. It was also argued by Sri Dias that the investigation carried on by the Government was not the foundation of the impugned order, though it may have been its motive.

8. The impugned notification is simpliciter in its language. It reads as follows:

“The Administrator of Goa, Daman and Diu is pleased to cancel the ad hoc appointment of Sri R.X.A De Monte Furtado as grade II officer of Goa, Daman and Diu Civil Service, now officiating as Additional Deputy Collector, North Goa Division, Panaji, issued vide notification cited above, and post him as superintendent against his substantive post of superintendent (outside the secretariat) with immediate effect.”

The notification has, however, to be read with the order exhibit P9 whereby the petitioner was put under suspension, because “a case against Sri R.X.A De Monte Furtado, Superintendent (outside the Secretariat) posted in P.W.D, Panaji, is under investigation” and with the exhibit P11, which is an extract of the news item published in the newspaper Navhind Times, issue of 6 November 1979, and reads:

“Panjim, 5 Novembr Sri Roque Xavier Antonio De Monte Furtado has been suspended from his substantive post of superintendent after cancellation of his ad hoc appointment to the post of Additional Deputy Collector on account of his prima facie involvement in certain acts causing breach of the Conduct Rules during the preliminary investigation conducted by the Directorate of Vigilance including false claim of L.T.C, says a Goa Government Press release.”

It becomes apparent, therefore, that the cancellation of the appointment of the petitioner to the grade II post, his subsequent reversion to his substantive post of superintendent and his suspension were on account of the preliminary investigation conducted against him for certain acts allegedly constituting breach of the Conduct Rules. No doubt that the aforesaid news item is not, and could never have been, the foundation of the impugned notification and orders, but nevertheless the said item gives support to the contention of the petitioner that the investigation conducted against him is the foundation of the said notification and orders. The relevant records were produced by the respondent for the perusal of the Court and on going through them, I am fully satisfied that, in fact, the said records corroborate the contention of the petitioner and fully warrant the inference that the aforesaid impugned notification and orders were made on account of the findings arrived at the preliminary inquiry conducted by the Vigilance Department against the petitioner. In the circumstances I have no hesitation in holding that the said notification and orders are punitive in nature and had visited the petitioner with penal consequences, casting also a stigma on his character and integrity. In State of Bihar v. S.B Mishra [(1970) 2 SCC 871 : A.I.R 1971 S.C 1011] (vide supra), it was observed that for applicability of Art. 311 of the Constitution it is not necessary that there should be express words of stigma attributable to the conduct of the Government servant in the impugned order and that the entirety of circumstances preceding or attendant on the impugned order must be examined, the overriding test being always whether misconduct is a mere motive or is the very foundation of the order. In Madan Mohan case [1973 L & I.C 918] (vide supra), it was held that simple termination of service of a Government servant holding a permanent post, though temporally, without any enquiry against him is violative of Art. 311(2) and as such illegal. It was further held that such termination of service in the background of the Chief Minister's statement in the Assembly about his services being unsatisfactory and the Government's intention to serve him a show-cause notice, does carry with it stigma of inefficiency and misconduct. And in State of Maharashtra v. Veerappa R. Saboji [1980 — I L.L.N 17] (vide supra), it was similarly observed that an order may be simpliciter in its frame, but the material on record may disclose that the order was passed in fact by way of punishment and in such a case, the innocence of the language will not protect it if the procedural safeguards as contemplated in Art. 311(2) of the Constitution have not been satisfied. Sri Joachim Dias submitted, however, that as held by the Supreme Court in State of Punjab v. Sukh Raj [1968 L. & I.C 1286] (vide supra), reversion by itself does not amount to punishment and as held in State of Uttar Pradesh v. Bhoop Singh [1979 L. & I.C 473] (vide supra), an order terminating temporary services cannot be construed as one made by way of punishment. He further argued that in a case of reversion for reason of unsatisfactory work of a Government employee who had been appointed to a higher post, the Court cannot look beyond the order, as held in Vasudeva (S.P) v. State of Haryana [1975 — II L.L.N 495]. The above authorities do nut help, however, the case of the respondents for, on one hand, as held in State of Bihar v. S.B Mishra [(1970) 2 SCC 871 : A.I.R 1971 S.C 1011], the entirety of circumstances preceding or attendant on the impugned order have to be examined and in the present case they show that the impugned order was by way of punishment and on the other, there is nothing on record brought by the respondents as to show that the cancellation of the appointment of the petitioner was due to his unsatisfactory work. On the contrary, his appointments to officiate on oiher posts in addition to his post of Additional Deputy Collector warrant the inference that the work of the petitioner was found to be satisfactory. Sri Dras next contended that in the absence of words casting stigma, the order cannot be construed as of removal within the meaning of Art. 311 of the Constitution, as observed by the Supreme Court in I.N Saxena v. State of Madhya Pradesh [A.I.R 1967 S.C 1264]. This ruling of the Supreme Court appears, however, to have been overruled by the subsequent ruling of the same Court in the case of Sate of Bihar v. S.B Mishra (vide supra), wherein it was held that there is no need that there should be express words casting stigma and that the entirety of the circumstances have to be examined, and also by the ruling in the case of State of Maharashtra v. Veerappa R. Suboji (vide supra). It was also argued that if the order does not cast any stigma by itself, the Court cannot go beyond the order as to find the motive in passing tae same order, reliance having been placed in this connexion in the case of State of Uttar Pradesh v. Ram Chandra Trivedi [1977 — I L.L.N 37] (vide supra). This ruling does not appear to me to have any relevance for our case, where irrespective of motive that caused the Government to make the impugned notification and orders, the circumstances preceding and attendant on them clearly show that the alleged misconduct was the foundation of the said notification and orders.

9. In State of Uttar Pradesh v. Sughar Singh [1974 — I L.L.N 149) (vide supra), their Lordships of the Supreme Court held that where the petitioner alone is reverted from his officiating post to his substantive post allowing others who were juniors to him to retain their officiating posts and the basis of such reversion is admitted to be an adverse entry in his character roll, the order of reversion is by way of punishment and amounts to reduction in rank, being also violative of the Arts. 14 and 16 of the Constitution. In the case before us, it is an admitted position that Sri Mateus Mascarenhas who was appointed to grade II post is junior to the petitioner and that he continues to hold the said grade II post. The reversion of the petitioner appears to have been ordered on account of the investigation conducted against him for acts alleged to amount to breach of the Conduct Rules. In the circumstances it would appear that the cancellation appointment of the petitioner to grade II post amounts to reduction in rank within the of the meaning of Art. 311 of the Constitution. This reduction was done without the procedural safeguards of Art, 311(2) of the Constitution having been followed and is, as such, invalid.

10. Petitioner prays, inter alia, for a writ of mandamus or a writ in nature of mandamus, commanding the respondents to deem that he still continues to hold a grade II post, that the impugned notification and orders shall not affect his services in any manner and that he be paid all the arrears of his salary from the date of the cancellation of his appointment to grade It post, it appears, however, that petitioner did not make, as he ought to nave made, a demand for justice and that such a demand had been refused. Not even an assertion exists in the petition that a representation against the alleged violation of rights has been made and hence, petitioner having failed to make such a demand is not entitled to any writ of mandamus. In fact as observed by the Karnataka High Court in A. Prbahacora Reddy v. State:

“as a matter of rule, no High Court will issue a writ of mandamus unless the aggrieved person has made a written demand on the authorities concerned to enforce what he claims to be his legal right”

the position having been made clear by the Supreme Court in the case of Amrit Lal v. Collector [(1975) 4 SCC 714 : A.I.R 1975 S.C 538] wherein their Lordships, once again, affirmed the rule, recognized by them in Kamini Kumar v. State of West Bengal [(1972) 2 SCC 420 : A.I.R 1972 S.C 2060], that a demand for justice and its refusal must precede the filing of a petition asking for a direction or writ of mandamus.

11. The petition, therefore, succeeds partly. Consequently, the rule is made absolute only in respect of prayer (a) of Para. 22 of the petition. There will be no order as to costs in the circumstances of the case.