State of Goa & Anr Vs. Smt. Yvette Pereira
A.E. Costa  INSC 530 (12 April 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (5) 413 1996 SCALE (4)231
APPEAL NOS. 7567-7590 OF 1996 (Arising out of SLP (C) Nos.10042-43, 10045,
14318, 14320, 14322-23, 16953, 17079, 17355-57, 17359, 17361, 17365, 17374-76,
17378-82 snd 8574 of 1995.
O R D
have heard learned counsel on both sides .
question of law raised by Mr. Dhruv Mehta, learned counsel for the appellant is
whether respondents are absorbed employees within the meaning of Section 2(a)
of the Goa, Daman and Diu (Absorbed Employees) Act, 1965 (for short, the
'Act'). The admitted position is that Goa, Daman and Diu which hitherto under
the hold of Portuguese, was liberated on December 20, 1961 and integrated as
part of Indian territory. The posts in the Judicial Department were created by
a Portuguese decree. All the respondents came to be appointed on or after December 20, 1961, sometime in the year 1963. The
Commissioner (Finance) of Goa, Daman
& Diu Administration had issued a circular on September 15, 1962 prescribing pay-scales to various posts. For the posts in
the Judicial Department held by the respondents, the pay- scale was
Rs.335-525/-. Their representation to the Government for fixation of pay-scales
prescribed for the posts created by the Portuguese Administration, was
considered and an order came to be passed on September 20, 1989 under which they are made entitled to the payscales
initially prescribed to the posts under Portuguese decree.
subsequently, the Government, having realised the mistake had cancelled the
same by proceedings dated December 27, 1990.
That order came to be challenged in the High Court which has held that by
operation of Section 5 of the Goa, Daman
& Diu Administration Act, the respondents came to be continued on the posts
created prior to December
20, 1961 and,
therefore, they were entitled to the payscales prescribed for those posts. The
said order of the High Court was made in Writ Petition No.77 of 1991, dated August 30, 1993 and followed in other cases which
are the subject- matter of these appeals.
Act defines 'absorbed employees' in Section 2(a) thus:
'absorbed employees' means a person who immediately before the 20th day of
December, 1961, was holding an absorbed post and who on and after that date
either served or has been serving in that or any other post in connection with
the administration of the Union Territory of Goa, Daman, & Diu or in any of
the Departments of the Central Government." "Absorbed post"
defined under section 2(b) means a civil service or post which existed under
the former Portuguese Administration in Goa, Daman & Diu immidiately before
the 20th day of December, 1961.
, after the appointed day, rules have been made on December 27, 1965 under which Rule 2(c) defines 'appointed day' to be the Ist
day of February, 1966. Under rule 2(e), "existing pay" means the pay
admissible to an absorbed employees' immediately before the appointed day by
way of basic pay and shall include complementary pay and the charge allowance
granted under rule 15. "Absorbed Employees" as again defined means an
absorbed employee as defined in clause (a) of Section 2 of the Act and who on
the appointed day is serving either in connection with the administration of
the union territory or in any department of the Central Government. The
explanation amplifies as to who are intended to be absorbed employees. Rule 3 precribes
revision of rates of pay of absorbed posts thus:
from the appointed day, every absorbed post shall be brought on such revised
scale of pay as the Central Government or the Administrator with the prior
approval of the Central Government, may by order determine." Rule 4 deals
with the fixation of pay in the revised pay-scale with which we are not
concerned in this case.
reading of these relevant provisions would clearly indicate that a person
eligible for the benefit of Section 5 of the Administration Act must be an
employee existing as on December
20, 1961 on the post
held under the Portuguese Administration and was continuing as on the appointed
day under the rules. Such persons are eligible to the benefit of Rule 7 of the
Rules. Admittedly, the respondents came to be appointed after the Administrator
had issued the circular for the fixation of the scale of pay referred to
hereinbefore. Under those circumstances, they are not eligible to the pay of
the posts prescribed in the decree granted by the Portuguese Administration.
appeals are accordingly allowed. However, the amounts paid under the erroneous
orders issued by the Government may not be recovered from the respondents. This
order would be worked out for the purpose of fixation of their pension. No