Vithal
V Gaitonde Vs. Union of India & Anr [2003] Insc 648 (16 December 2003)
S. Rajendra
Babu & Ruma Pal Rajendra Babu, J. :
The
appellant before us claims to have been appointed on 11.6.1962 as an Operator
[Temporary] in the Government of Goa. The said country became liberated on
19.12.1961 and was annexed to the territory of India. The appellant challenged an order
dated 6.10.1993/6.1.1994 by which he was informed that he would attain the age
of superannuation on 31.1.1994. He has since retired on 31.1.1994.
The
contention put forth by the appellant is that he had been appointed in terms of
Article 63 read with Article 26A of the Statute of the Overseas Functionaries
and, therefore, his age of retirement should be considered in accordance with
clause 430 [Chapter VII] of the ESTATUTO DO FUNCTIONALISMO ULTRAMARINO, which
fixed the age of retirement as 60 years. The appellant claims that he having
been appointed in terms of the Portuguese law, he should be allowed to retire
only at the age of 60 years and his representation made to the respondents
having been rejected on more than one occasion, he approached the tribunal.
The
tribunal did not agree with the appellant that he is governed by the Portuguese
Statute of the Overseas Functionaries and he is governed by the Central
Government Rules. The respondents contended that the appellant is not an
absorbed employee and hence his request to retire him at the age of 60 years
would not arise.
The
tribunal found that the appellant himself had stated in the application before
the tribunal that he had never claimed to be an absorbed employee but that he
is entitled to work till the age of 60 years in view of clause 430 of the
Portuguese Rules. The tribunal gave a finding on examination of the service
record of the appellant that the decision had been taken to attach an Indian
pay scale to the post and, therefore, the question of protection of the
benefits arising from the E.F.U. Portuguese Rules would not arise at all. It
was noticed that immediately after liberation of Goa from the Portuguese Rules,
20.12.1961 all the employees employed from the said date were being governed by
the Government of India as per the regulations and orders issued from time to
time which include the policy of retirement of an employee and, therefore, the
appellant cannot be isolated from the scheme of things since the appellant is
appointed subsequent to the liberation with a specific pay scale. The clear and
categorical finding of the tribunal is as follows :
"After
the liberation of Goa, all the Government servants thus appointed were being
governed by various rules and regulations framed by the Government of India
regulating the service conditions of Central Government servants and therefore
the applicant cannot take any benefit of the said notification published on 1st
November 1962 by virtue of which service privileges were saved. Needless to say
that the applicant was not appointed by virtue of the said regulations and thus
he cannot claim the benefits of clause 430 dealing with the age of
superannuation. Nowhere the service book discloses that the applicant was
appointed under clause 430 and at no point of time the applicant had ever
raised any objection in this behalf." The tribunal also considered that
the case of the appellant with reference to Petro Cassiano Mendes vs. Union of
India in O.A. No.155/93 dated 1.7.1994, which petition was rejected on the
basis of laches. On that basis, the tribunal dismissed the claim of the
appellant. The review petition preferred against the said order having been
unsuccessful, the appellant filed this appeal by special leave.
The
contention urged by the appellant is that under Section 5 of the Goa, Daman
& Diu Administrative Act, 1962 provides that all previous posts under the
Portuguese Administration would continue and Section 4 thereof provides that
all laws in force immediately prior to the appointed day in Goa, Daman and Diu
or any part thereof shall continue to be in force therein until amended or
repealed by a competent legislature or other competent authority.
However,
what is to be noticed is that the appellant was appointed on 11.6.1962 in the
Department of Posts & Telegraphs under the Goa, Daman & Diu [Repeal of
Posts and Telegraphs Laws] Regulation, 1962, which came into force on 1.9.1962
and while repealing the various decrees saved the rights, privileges,
obligations and liabilities acquired, accrued or incurred under such law.
Between the date of liberation of Goa,
i.e., 19.12.1961, and 1.9.1962, the Military Government of Goa, Daman & Diu
had passed certain orders to the following effect:
"The
following powers hereuntofore vested in the erstwhile Secretary-General of Goa
in respect of CTT Administration are hereby delegated to the Director of CTT
and shall henceforth be exercised by him.
(1)
Temporary appointments, Full powers for staff appointments on daily wages,
other than those provisional appointments, whose appointment extension and
confirmation was vested in the erstwhile Overseas Minister." The said
orders empowered the Director of CTT to make appointments on daily wages,
provisional appointments, extension and confirmation. He had been conferred
powers for appointment of staff other than those whose appointment was vested
in the erstwhile Overseas Minister. It is in terms of this order that the
appellant was appointed on temporary basis and no material was available to
show that the Director of CTT did not possess the powers to make appointment to
the post of Operator with a particular scale.
Heavy
reliance has been placed before us by the learned counsel for the appellant on
Sections 6 and 24 of the General Clauses Act, which have no bearing on the
question to be decided in the present case. The appellant had retired with
effect from 31.01.1994.
Our
attention was drawn to the Goa, Daman & Diu [Absorbed Employees] Act, 1965
but the appellant had not been appointed prior to 20.12.1961 and, therefore,
the said Act would not be applicable to him. In the Goa, Daman & Diu
[Absorbed Employees] Act, 'absorbed employee' has been defined to mean a
person, who held the post prior to 20.12.1961 and continued to serve in
connection with the administration of the Union territory of Goa, Daman & Diu
or in any of the Department of the Central Government while 'absorbed post' is
defined to mean a civil service or post which existed under the former
Portuguese Administration in Goa, Daman & Diu immediately before
20.12.1961. Section 3 thereto empowers the Central Government to make rules
regulating recruitment and conditions of service of absorbed employees. The
said Act also empowers the Government to issue orders for removal of
difficulty.
Since
the case of the appellant is that he is not an absorbed employee, we need not
examine the scope of the said enactment or the effect of the decision in 212]
On 27.8.1962, the Ministry of External Affairs, Government of India conveyed a
memorandum to the Ministry of Transport and Communication on the subject of
integration of ex-Goa P&T system with that of the Indian Union Continuance
of ex-Goa P&T Staff on their existing terms and conditions of services. It
was made clear therein by the order issued by the President of India that
pending assessment of the strength of the cadre in each Department of P&T
services, all the existing posts on the Goa P&T system shall be deemed to
have been created in the respective wing of the P&T Department by the
competent authority on the existing terms and conditions, unless in any
particular case specified orders are issued abolishing the post or revising the
terms and pending further orders, the existing personnel shall be deemed to
have been appointed under proper authority, unless in any particular case the
services of any person are dispensed with in accordance with the procedure that
may be laid down in that regard. Even this order does not come to the aid of
the appellant inasmuch as he was not an existing employee from ex-Goa P&T
staff.
Appellant
had been appointed in pursuance of the order made by the Military Government of
Goa, Daman & Diu on temporary basis on a fixed pay scale and he could not
make any claim for the benefit of the relevant rules which stood in force prior
to the coming into force of the new Rules.
Hence
the view taken by the tribunal cannot be interfered with and this appeal,
therefore, stands dismissed.
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