Surekha N. Satardekar And 254 ORS., v. State Of Goa, Thr. The Chief Secretary, Govt. Of Goa And 27 ORS.,
1 wp779-18 dt. 18-12-19 Santosh
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 779 OF 2018 1.
Surekha N. Satardekar 2.
Velcia R. D'Cruz 3.
Shubhangi Phalgaonkar Shamal Raganata Xete Gauncar
5. Shamal S. Natekar 6.
Sierra Effie De Souza 7.
Sabina C. Pereira 8.
Rajeshree R. Naik 9.
Helena J. Cardozo e Antao 10.
Fatima Henriquetta N. Rodrigues 11.
Maria V. Silveira
2 wp779-18 dt. 18-12-19 12.
Sarita J. Surlakar 13.
Bharati B. Sathaye 14.
Maria M. Luciana Fernandes 15.
Flory B. Cristo 16.
Damiana Fernandes e Dias 17.
Vatsala V. Chari 18.
Monica Effy Pereira 19.
Epifania Fernandes 20.
Conceicao Fernandes 21.
Sandhya Bandkar 22.
Agnela Sequeira 23.
Maria Genoveva F. A. Mascarenhas
3 wp779-18 dt. 18-12-19 24.
Dipti R. Mulgaonkar 25.
Rosario Noronha e Borges 26.
Geeta G. Naik / Raikar 27.
Henrietta Juliana Faria Saldanha 28.
Conceicao D. Carvalho 29.
Josephine Fernandes 30.
Larima L. Samanat 31.
Mangala Borkar Changed to Ankita Anil Vaidya 32.
Della D'Souza 33.
Piedade C'Costa 34.
Bela D' Costa
4 wp779-18 dt. 18-12-19 35.
Angelina A. Rodrigues 36.
Emilia Victoria Picardo 37.
Sarita G. Naik 38.
Neha Kapileshwari 39.
Balbina Botelho 40.
Ida Filomena Telles 41.
Marina P.A. Pereira 42.
Maria Rufina Gurjao e Gracias 43.
Anjani Shetye Changed to Snehal Santosh Naik 44.
Reosan Y. Khan 45.
Rajeshri Y. Surlakar 46.
Ben Bella Sequeira
5 wp779-18 dt. 18-12-19 47.
Sharad S. Dalvi 48.
Maria M. Lourenco Fernandes 49.
Manisha S. Pol Mirio 50.
Syloni Del M.P. Monteiro 51.
Auta Vaz e Mascarenhas 52.
Boadita M. Zena Rica 53.
Maria Augusta D'Souza 54.
Martha Almeida 55.
Velina Sunita Fernandes 56.
Silvina Nilda Fernandes 57.
Rita Sonia Xavier
6 wp779-18 dt. 18-12-19 58.
Natalina Borges 59.
Maria Marcelina Dias 60.
Maria Imaculada D'Costa 61.
Ermina Fizardo 62.
Vijaya Surlakar K. Dhargalkar 63.
Anisha J. Vaigankar 64.
Aurora Vaz 65.
Maria Rosa Fernandes 66.
Gokul Chari Change to Aruna Ratnakar Chari 67.
Greta D'Sa 68.
Quiteria Almeida
7 wp779-18 dt. 18-12-19 69.
Shashwat Naik 70.
Sushma Arondekar 71.
Gautami Hadfadkar 72.
Shobha Madkaikar 73.
Antonette Botelho 74.
Oslinda Fernandes Changed to Oslinda C.
Fernandes Vas 75.
Elvis Fernandes e D'mello 76.
Ulorica Silveira 77.
Prisa M. Rodrigues 78.
Hilda Do Socorro Brito e Baretto 79.
Emelia Dias Pereira
8 wp779-18 dt. 18-12-19 80.
Glenda Rodrigues 81.
Sangeeta S. Shet 82.
Catarina Serrao e Fernandes 83.
Bharati S. N. Borkar 84.
Maria Helena Rego 85.
Anuradha P. Shirgaonkar 86.
Brigida Texeira 87.
Veena Dumiana Pereira e Dias 88.
Alzira Vaz 89.
Shantu Gaonkar Changed to Preeti Babu Raut Dessai 90.
Socorrinha Melba Godinho
9 wp779-18 dt. 18-12-19 91.
Sangeeta S. Naik 92.
Jenifa Afonso 93.
Inacio P.S. Fernande 94.
Felicidade J. Gracias 95.
Maya G. Kulkarni 96.
Nanda R. Tirodkar Changed to Nanda V. Chopdekar 97.
Ana Felicia J. Mascarenhas e Noronha 98.
Sheilaja P. Naik 99.
Medha T. Parab 100.
Ana Ditosa Fernandes 101.
Elcy Fernandes e Raj 102.
Nanda R. Vanskar
10 wp779-18 dt. 18-12-19 103.
Shubhalaxmi Pauskar Changed to Vaishali J. Naik 104.
Raquel Pereira e Barreto 105.
Harsha Narvekar 106.
Maria V. Fernandes 107.
Ratnamala Dalvi Changed to Neha Aroskar 108.
Milan Bhatkurse 109.
Sangeeta Manerkar 110.
Chandrakala Dhawaskar Changed to Kajol Quercar 111.
Sharmila Blanche D'Costa e Vaz 112.
Yogita P. Parab
11 wp779-18 dt. 18-12-19 113.
Quiteria Fernandes 114.
Maria D'Souza e Fernandes 115.
Pratap S. Parab 116.
Ana P. Rodrigues 117.
Medina Naik 118.
Farita Aureline Vaz 119.
Dorinda Boadita 120.
Josefine Cardozo 121.
Usha U. Umarye 122.
P. Vailankani Barreto Goes e Fernandes 123.
Gajanan K. Kalangutkar 124.
Reema Gulhermina Fernandes
12 wp779-18 dt. 18-12-19 125.
Ranjita N. Naik Changed to Abhaya V. Naik 126.
Livia R. Rodrigues e Joao 127.
Jenifa D. Deniz 128.
Sandra Rodrigues 129.
Franky F. Carneiro 130.
Maria Sila C. e Fernandes 131.
Susan Fernandes e Almeida 132.
Pasciencia M. Gonsalves 133.
Viola Flory D'Souza 134.
Cheryl Saldanha 135.
Fernandes Mexcy Domnic
13 wp779-18 dt. 18-12-19 136.
Fernandes Julieth 137.
Prabha Girish
138. Michelle Maria Da Costa Fernandes e Araujo 139.
Frieda Gomes e Mascarenhas 140.
Naik Jayanti Vithal 141.
Gaonkar Ujwala Chandrakant Changed to Siddhi Gajanand Naik 142.
Stella V. Vimalan 143.
Naik Bhavana Purshottam 144.
Feona Texeira e Fernandes 145.
Fernandes Flaciana Caetano 146.
Sumitra L. Malik Changed to Sanisha S. Kercar 147.
Goes Clara Luizinha
14 wp779-18 dt. 18-12-19 148.
Sulaksha V. Dessai 149.
Pawar Brahmanand M.
150.
Narvenkar Ashvini T.
Changed to Ashvini Sushant Bhatikar 151.
Naik Tanuja B 152.
Bernadette B. J. D'Souza 153.
Naik Rajeshri Sujan Changed to Rajeshri Rajesh Pokhare 154.
Joanes Kamiza 155.
Braganza Sintia 156.
Tomacinha Fernandes 157.
D'Souza Antonette 158.
Fernandes Janabi
15 wp779-18 dt. 18-12-19 159.
Aurola Neves Fernandes 160.
Netra V. Lolienkar 161.
Shivaji N. Bhaip 162.
Analuisa D'Mello 163.
Tomacinha S. L. D'Costa 164.
Cardozo Arcanja 165.
Yogita P Naik 166.
Rodrigues Sylvia e D'souza 167.
Fiona Henriquetta Mascarenhas e Gracias 168.
Carvalho Ana Piedade N.
169.
Maria Mita Baylon Coutinho Do Rosario
16 wp779-18 dt. 18-12-19 170.
Gomingos Selma Bosca 171.
Rodrigues Cecilia Angelica 172.
Shirodkar Kalpana K.
Changed to Kalpana Dnyaneshwar Parsekar 173.
Nidhi N. Bandodkar 174.
Majji Sushma S.
Changed to Sushma Chandrakant Amonkar 175.
Gomes Fatima 176.
Mierkar Deepali N.
177.
Gomes Blanche 178.
Socorrina Fernandes e Celho 179.
Dias Savitha Nirmala 180.
Dessai Shubhangi Y.
181.
Malina M. L. e Pereira
17 wp779-18 dt. 18-12-19 182.
Rosalina Silveira
183. Dorothy M Mascarenhas 184.
Bhatikar Sushant S.
185.
Asha S. Naik 186.
Grao Sharon O.D.
187.
Luna D'Souza e Crasto 188.
Fernandes Louriana E.
189.
Rodrigues Rosaria 190.
Viona Loren Fernandes e Rodrigues 191.
Naik Gaonkar Sanjivkumar 192.
Siena V. Fenandes Changed to Siena V. Quadros
18 wp779-18 dt. 18-12-19
193. Naik Sujata S. Uskaikar Changed to Sujata S. Uskaikar
194. Jose Priya 195.
Loretta Lobo e Fernandes 196.
Gawas Deepali T.
Changed to Deepali R. Shet Gaunkar 197.
Manisha M. Shinde
198. Serrao Maria Amelia A.
199.
Parab Mahesh Vasant 200.
Parab Prashilla changed to Varsha Pednekar 201.
Dessai Rupa 202.
Macsimila E. Fernandes 203.
Ujwala V. Manjrekar
19 wp779-18 dt. 18-12-19 204.
Suvidya S. Naik 205.
Priya R. Dhupdale 206.
Queency S. D'Mello e Rodrigues 207.
Elvira Rebello 208.
Samiksha B. Kawlekar 209.
Harsha P. Gaonkar 210.
Deepali B. Pawaskar Changed to Deepali Jitendra Tirodkar 211.
Carneiro Liza Assumption 212.
Kalpita Pawaskar Changed to Deepal P. Lotlikar 213.
Luzilandia Colaco 214.
Trupti Rohidas Naik
20 wp779-18 dt. 18-12-19 215.
Kiran Shrikrishna Sawant Changed to Kiran Shrikrishna Sawant 216.
Maria G. J. R. e Rodrigues 217.
Suhashini S. Pednekar 218.
Vishnudas S. Parab 219.
Rosary Cardozo 220.
Smita Tendulkar 221.
Avita N. Gaonkar Changed to Mrinali M. Mane 222.
Sunita Devdath Sirodcar Changed to Sunita Devdath Sirodcar 223.
Loveleena Fernandes 224.
Lugam M. Ghadi Changed to Siya P. Kavlekar
21 wp779-18 dt. 18-12-19 225.
Alka P. Salgaonkar Changed Alka M. Redkar 226.
Kavita K. Sane Changed to Aarati Ajay Phadte 227.
Rojarita D'Costa Changed to Rojarita D'Costa 228.
Shilpa Malik Changed to Shilpa S. N. Gaunkar 229.
Reshma K. Naik Changed to Reshma K. Naik 230.
Nilima S. Gaonkar Changed to Nilima Vinod Naik 231.
Jayanti Govind Naik 232.
Madhuri Ajay Oak Changed to Madhuri Ajay Oak 233.
Maria Edna Noronha 234.
Geeta R. Naik Changed to Mayuri Milind Onskar
22 wp779-18 dt. 18-12-19 235.
Sulaksha S. Naik 236.
Sarita Venkatesh Dessai 237.
Hazel Rozeta D'Costa 238.
Geeta Fernandes 239.
Ranjana D. Kubji 240.
Voilet Menezes 241.
Sunita T. Bhandari 242.
Simple P. Patil Changed to Prajakta P. Naik 243.
Nilima D. S. alias Miraxi Changed P. Nilima P. Gawas 244.
Prafulla U. Komarpant 245.
Suman M. Dhawaskar
23 wp779-18 dt. 18-12-19 Changed to Suman Sandeep Shetye 246.
Mumraj M. Sakli Changed to Mumtaj M. Ismail 247.
Sweta S. Dessai Changed to Sweta V. Gaonkar Dessai 248.
P. Gizy Jacob Changed to Shradha P. Pawar 249.
Sucorine Dias 250.
Hombal Phalgunidevi Changed to Nagaraju Phalgunidevi Suvarnalata Raju 251.
Sangeeta Kalel Changed to Sangeeta Teju Rathod 252.
Vithobha Mhalkar 253.
Swati H. Sinai Malkarnekar Changed to Swati Suraj Kamat 254.
Zenita Bothelo e Neto 255.
Sushma M. Laad Changed to Sushma Sanju Naik Dessai
24 wp779-18 dt. 18-12-19 All the Petitioners are Indian National, presently working at GMC, Bambolim, Goa, which is their office address. ... Petitioners. V/S 1.
State of Goa, Through the Chief Secretary, Government of Goa, Secretariat, Porvorim, Goa 2.
The Secretary Health, Government of Goa, Secretariat, Porvorim, Goa 3.
The Secretary Social Welfare, Government of Goa, Secretariat, Porvorim, Goa.
4.
The Dean, Goa Medical College, Bambolim , Goa, 403202 5.
The Director, Goa Medical College, Bambolim, Goa, 403202 6.
The Director, Directorate of Social Welfare, Government of Goa, Panaji, Goa.
7.
Mrs. Cruzinha Borges 8.
Smt. Chudu Shirodkar
25 wp779-18 dt. 18-12-19 9.
Smt. Pobrina Colaco 10.
Smt. Raksha Parvatkar 11.
Smt. Lourdina Miranda
12. Smt. Avelina Alvares (Respondents 7 to 12 are presently working as Ward Sisters at GMC, Bambolim, Goa) 13.
Vandana Kowlekar, major of age, service (working as 'Staff Nurse' at Goa Medical College, Bambolim, Goa).
14.
Bharati M. Redkar, major of age, service 15.
Sulbha B. Naik, major of age, service
16. Santana Vaz e Alvares, major of age, service
17. Shanta Gulikar (Dhupdale) major of age, service
18. Socorrina M. Dias, major of age, service 19.
Ciera Soares, ...... ( Deleted as per order dated 30/08/2019)
26 wp779-18 dt. 18-12-19 20.
Veronica Fernandes, ( Deleted as per order dated 30/08/2019) 21.
Sharmila Fernandes, 22.
Pedrinha Monteiro, 23.
Blanca Mascarenhas, 24.
Daksha K. Tendulkar Changed to Suvidha S. Thakur, 25.
Ranjita K. Wagurmekar, 26.
Catarina D'Souza, 27.
Zaira Ali Mohammad, 28.
Gauri J. Bhosle, (Respondent No.14 to 28 are Indian National, working as Staff Nurses at GMC Bambolim-Goa which is their ........ Respondents. Official address.)
27 wp779-18 dt. 18-12-19 Mr. G. R. Sharma with Mr. S. J. Natekar and Mr. Deepak Gaonkar, Advocates for the Petitioners.
Mr. Pravin Faldessai, Additional Government Advocate for Respondent Nos.1 to 6.
Mr. Parikshit Sawant, Advocate for Respondent Nos.7 to 12. Coram : M.S. Sonak & Smt. M.S. Jawalkar, JJ.
Reserved on : 13th December, 2019.
Pronounced on : 18th December, 2019.
JUDGMENT : (Per M.S. Sonak, J.) Heard Learned Counsel for the parties.
2.
Heard Mr. G. R. Sharma, with Mr. S. J. Natekar, and Mr. Deepak Gaonkar, for the Petitioners, Mr. Pravin Faldessai, Additional Govt. Advocate for Respondents No.1 to 6 and Mr. Parikshit Sawant, Advocate for Respondents No.7 to 12.
3.
The Petitioners who are staff nurses at the Goa Medical College by instituting this Petition question the promotions of Respondents No.7 to 13 to the post of Ward Sister vide two separate promotion orders dated 14th September, 2017 and corrigendum dated 6th October, 2017. These orders are placed on record as Exhibit A-colly and are to be found at pages 97 to 101 of the paper book.
28 wp779-18 dt. 18-12-19 4.
Mr. G. R. Sharma, learned Counsel for the Petitioners has challenged the aforesaid impugned promotion orders on the following grounds:
(A) That Respondents No.7 to 13, in their applications seeking direct recruitment to the post of Staff Nurses, had nowhere indicated that they belong to the Scheduled Tribe category or that they were applying against the reserved posts in the Scheduled Tribe category. In this regard, Mr. Sharma took us through the actual applications or rather the extract of the actual applications containing the bio-data of these Respondents, which are found to be at Annexure H-colly, pages 199 to 205 of the paper book. Based upon this, Mr.
Sharma submits that once there was no indication in these applications that these Respondents belong to the Scheduled Tribe category or once it is clear that these Respondents had never applied for recruitment to the Scheduled Tribe category, there was no question of considering the case of these Respondents for promotion to the next higher post of Ward Sisters. He submits that such consideration will be contrary to the law laid down by the Hon'ble Supreme Court in the case of J. and K. Public Service Commission vs. Israr Ahmad and ors.1 and Rajasthan High Court, Jodhpur and ors. vs. Neetu Harsh and ors.2 .
(2005) 12 SCC 498 AIR 2019 SC 4038
29 wp779-18 dt. 18-12-19 (B) Respondents No.7 to 13 are much junior to the Petitioners in the cadre of the Staff Nurses. On this basis, Mr. Sharma submits that it is obvious that Respondents No.7 to 13 are much less efficient than the Petitioners. Relying upon the rulings in M. Nagaraj & ors. vs. Union of India3 and Jarnail Singh and ors. vs. Lachhmi Narain Gupta and ors.4 Mr. Sharma submits that the requirement of efficiency which Respondents No.1 to 6 were duty bound to take into consideration, has not been taken into consideration whilst promoting Respondents No.7 to 12. He, therefore, submits that the impugned promotion orders warrant interference on this ground, as well.
(C) Mr. Sharma submits that from the material on record, it is revealed that reserved vacancies have been carried forward beyond three years period, which is prescribed maximum. He submits that since such carrying forward is not at all appropriate, Respondents No.1 to 6 clearly erred in carrying forward such vacancies and thereafter promoting Respondents No.7 to 12, as against such illegally carried forward vacancies. He submits that this is yet another ground for interfering with the promotion orders in the present case.
(2006) 8 SCC 212 (2018) 10 SCC 396
30 wp779-18 dt. 18-12-19 (D) Finally, Mr. Sharma submits that in the present case, taking into consideration the seniority position of Respondents No.7 to 13, the Respondents fell neither within the original zone of consideration, nor within the extended zone of consideration. He points out that this fact is very specifically recorded in the minutes of the Departmental Promotion Committee which met on 19th January, 2016. He submits that in these circumstances, quite correctly a decision was taken in the said minutes not to recommend the promotion of Respondents No. 7 to 13.
He, however, submits that for no valid reasons hardly 3 months thereafter a review DPC was held on 23rd April, 2016 in which, relying upon Swamy's guidelines, which were not at all applicable for making promotions on regular basis, the review DPC recommended the promotion of Respondent No.7 to 13 only, on ad hoc basis. Mr. Sharma points out that despite such recommendations, the impugned promotion orders purport to promote Respondents No.8 to 12 on officiating basis and Respondent No.7 on regular basis. He points out that in so far as Respondent No.13 is concerned, she has not accepted any promotion and, therefore, the challenge in so far as Respondent No.13 is concerned, really no longer survives. Mr. Sharma submits that there was no basis for holding this review DPC and, in any case, there was no basis for promoting Respondents No.
31 wp779-18 dt. 18-12-19 on officiating basis or on regular basis. For this reason also, he submits that the impugned promotion orders are required to be interfered with and set aside.
5.
Mr. Faldessai and Mr. Sawant, defend the impugned promotion orders by pointing out that at the stage when Respondents No.7 to 13 applied for appointment to the post of Staff Nurse, the caste which they belong, was not even recognized as the Scheduled Tribe. They point out that such recognition came by way of Presidential Order, 2003 and, therefore, there was nothing wrong in the application forms made by Respondents No.7 to 13 at the stage of their initial recruitment as staff nurses. They point out that in the present case, we are not concerned with this initial recruitment, but we are concerned with the issue of promotions to the post of Ward Sister from the post of Staff Nurse. Accordingly, they submit that the decisions relied upon by Mr. Sharma are not at all attracted and there is no infirmity whatsoever in the issuance of the impugned promotion orders.
6.
Mr. Faldessai and Mr. Sawant, point out that there is absolutely no breach of the efficiency test and merely because the Respondents No. 7 to 13 may be junior to the Petitioners, that does not render them any less efficient. They point out that there was absolutely no infirmity in the matter of carrying forward of the
32 wp779-18 dt. 18-12-19 vacancies and impugned promotion orders warrant no interference on this ground as well.
7.
Mr. Faldessai was not quite clear as to whether the impugned promotion orders promote Respondents No.8 to 12 on ad hoc basis to the post of Ward Sister. However, Mr. Sawant, on the basis of the instructions from Respondents No.8 to 12 whom he represents, was quote clear in his submission that the promotions of Respondents No. 8 to 12 were, in fact, on ad hoc basis. 8.
Mr. Faldessai and Mr. Sawant, however, pointed out that in such matters there was no wrong in scouting the eligible candidates in the seniority list, without being bound by any concept of zone of consideration. They pointed out that in such matters a separate seniority list is required to be prepared of the reserved category candidates. They pointed out that this exercise must be deemed to have been carried out in the present case and, therefore, there is no warrant of interference. They also referred to the Office Memorandum dated 11th July, 2002 in this regard. Mr. Faldessai referred to the decision of this Court in the case of Ramdas Yesso Salelkar and ors. vs. State of Goa and ors.5; Ashok Redkar and ors. vs. State of Goa and ors.6 and Smt. Baby Anumanta 2018 (5) All M.R. 366 W.P. No.272 of 1996 decided on 25/9/1998
33 wp779-18 dt. 18-12-19 Chandawa vs. The State of Goa and ors.7 in support of the defence to the impugned promotion orders.
9.
For all the aforesaid reasons, Mr. Faldessai and Mr. Sawant urge that this Petition be dismissed.
10.
Rival contentions now fall for our determination. 11.
In so far as the first ground urged on behalf of the Petitioners is concerned, we see no merit whatsoever in the same. Admittedly, Respondents No.7 to 13, in their applications made much prior to the year 2003, may have not stated that they belong to the Scheduled Tribe category. However, these applications related to direct recruitment to the posts of Staff Nurses. At the stage when such applications were made, the caste to which they belong had not even been notified by the Presidential order to be a Scheduled Tribe caste. The Presidential order came to be issued sometime in the year 2003. Accordingly, the alleged failure on the part of Respondents No. 7 to 13 to indicate in their applications made much prior to 2003, and that too for the purpose of direct recruitment to the post of Staff Nurses that they belonged to Schedule Tribe category, we cannot say that they were precluded from being considered for W.P. No.237 of 2006 decided on 12/6/2013
34 wp779-18 dt. 18-12-19 promotion to the posts of Ward Sister against the reserved category, to which they admittedly belong.
12.
Reliance on Israr Ahmad (supra) is entirely misplaced. In the said case, the Respondents had applied for direct recruitment to certain posts in the State. Such date for submitting the applications for preliminary examination was 16th March, 1999. The First Respondent in his application did not intimate that he was entitled to the benefit of SRO 126 dated 28th June, 1994 in terms of which certain posts were reserved for the residents of the backward area and the line of actual control. This was despite the fact that the First Respondent was actually resident of backward and the line of actual control. After the preliminary examination was concluded and the applications were invited for the main examination, the First Respondent indicated that he was entitled to the benefit of SRO 126 of 1994.
Since such benefit was not granted, the First Respondent instituted a petition before the learned Single Judge of the Jammu & Kashmir High Court. The Petition was dismissed. However, the Division Bench, on appeal, granted the First Respondent relief on the basis that he in fact possessed eligibility for being considered against the reserved post and mere delay in submission of the proof, did not disentitle him to consider against the reserved post.
35 wp779-18 dt. 18-12-19 and the Apex Court reversed the Division Bench and restored the view taken by the learned Single Judge by observing that there were perhaps several candidates who, before such date for application, answered the preliminary examination, who may have been eligible, but had failed to indicate their eligibility in their application forms on or before the last date prescribed. In such circumstances, the Apex Court felt that grant of any relief to the First Respondent was not justified.
13.
Taking into consideration the facts in the case of Israr Ahmad (supra), it is apparent that there can be no comparison between the aforesaid facts and the facts in the present case. In the first place, Respondents No.7 to 13 were not being considered against a post meant for direct recruitment, for which they had to file applications on or before some specified date. Secondly, when the applications were filed prior to 2003 and that too for the direct recruitment to the post of Staff Nurses, the caste to which Respondents No.7 to 13 belong, was not even recognized as the Scheduled Tribe caste. In these circumstances, the ruling in Israr Ahmad (supra) is clearly not attracted.
14.
Secondly, in the case of Neetu Harsh (supra), the applicant Neetu, despite being eligible to apply for appointment under the physically challenged category, chose not to apply in this category,
36 wp779-18 dt. 18-12-19 but applied only in the general category. After she was not selected in general category, she instituted a petition before the High Court, in which, a direction was issued to consider her case against two vacancies reserved for the disabled candidates for the Rajasthan Judicial Service. Upon such relief being granted to her, Rajasthan High Court moved the Hon'ble Supreme Court by pointing out that in absence of the said Nitu seeking appointment to the reserved category, no direction could be issued to consider her case to the reserved category, more particularly after completition of the entire selection process. Disturbance of appointment of candidates who, in the meanwhile, were already appointed against the physically challenged category, would not be justifiable. 15.
The facts in Neetu Harsh (supra) again are not at all comparable to the facts in the present case. In the first place, as noted earlier, we are not considering the case for direct recruitment to any post. Secondly, even in the case of Neetu Harsh (supra), the candidate despite being eligible to be considered for direct recruitment to the physically challenged category, chose not to apply in the said category and at a later stage wished to be considered under the said category. In the present case, we are really not concerned with any direct recruitment and further the caste to which Respondents No.7 to 13 belong, was not even recognized as a
37 wp779-18 dt. 18-12-19 Scheduled Tribe caste until 2003. For these reasons, the ruling in Neetu Harsh (supra) is clearly not attracted. 16.
The second contention of Mr. Sharma, based upon the issue of efficiency, also cannot be accepted in the facts and circumstances of the present case. Secondly, Respondents No.7 to 13 may be junior to the Petitioners, that, by itself, does not render them inefficient or ineligible to be appointed to the promotional post. The reservation policy of the State cannot be frustrated on the basis of such considerations. There is really no breach of the rulings in M. Nagaraj (supra), or Jarnail Singh (supra) made out by the Petitioners. Accordingly, we are unable to accept the second contention raised by Mr. G.R. Sharma on behalf of the Petitioners. 17.
The third contention as regards carrying forward of the vacancies, has also not been made out by the Petitioners. The Petitioners have not demonstrated as to how in the present case there was carrying forward of vacancies beyond permissible limits. The pleadings in the Petition, on this aspect, are far from clear. In these state of pleadings, it is really not possible to accept Mr. Sharma's third contention on the basis of the carrying forward of excess vacancies.
18.
In so far as fourth contention of Mr. Sharma is concerned,
38 wp779-18 dt. 18-12-19 however, the same is required to be at least partly accepted. The reasons for the same are set out hereafter.
19.
The minutes of the DPC held on 19th January, 2016, in terms, record that there were 7 backlog vacancies in so far as reserved ST Category is concerned. Further, as per roster, the points earmarked for ST are point nos. 9, 17, 25, 34, 42, 51 and 59. The minutes, thereafter, proceed to categorically record that there are no ST officials available in the normal zone of consideration/extended zone of consideration. Further, as pointed out at serial Nos. 9, 17, 34 and 51, are already filled by candidates of unreserved category. On this basis, certain recommendations were made to fill up the posts of Ward Sister from out of the candidates belonging to the general category only on ad hoc basis.
20.
The minutes of the review DPC held on 23/4/2016, have also been placed on record. These minutes refer to Swamy's Guidelines on - Reservation and Concession in Government Services. The guidelines quoted, inter alia, provides that since the ad hoc promotions are made on seniority-cum-fitness, all the Scheduled castes/Scheduled Tribes candidates covered in the relevant seniority list from which the total number of such vacancies against which ad hoc promotions are to be made, should be considered in order of their general seniority as per the gradation list, on the principles of
39 wp779-18 dt. 18-12-19 seniority-cum-fitness and if they are not adjudged unfit, they should all be promoted on ad hoc basis. If, however, the number of SC/ST candidates found to be fit within the range of actual vacancies is less than the number of vacancies identified as failing to their shares, if the vacancies were filled on a regular basis vide (2) above, then additional SC/ST candidates to the extent required should be located by going down the seniority list, provided they are eligible and found fit for such ad hoc appointment. This procedure should be adopted on every occasion on which ad hoc appointment is resorted to.
21.
On the basis of the aforesaid guidelines, the review DPC concluded that it was not justified on the previous occasion to restrict the candidates who fell within the zone of consideration or extended zone of consideration. The review DPC also referred to confirmation from the SC/ST Commission, Panaji, Goa that if the number of SC/ST candidates found fit within the range of actual vacancies is less than the number of vacancies identified as failing to their shares, if the vacancies were filled on a regular basis, the additional SC/ST candidates to the extent required should be located by going down the seniority list, provided they are eligible and found fit for such ad hoc appointment.
40 wp779-18 dt. 18-12-19 22.
On the basis of the aforesaid, the review DPC deemed it appropriate to reconsider its earlier decision of promoting general category candidates on ad hoc basis instead of Scheduled Tribe candidates by going down the seniority list. Finally, on such basis, the review DPC recommended Respondents No.7 to 13 for promotion on ad hoc basis to the post of Ward Sister. 23.
From the aforesaid, it is quite clear that the guidelines referred to by the review DPC were in relation to making of appointments on ad hoc basis. The review DPC, by relying upon such guidelines, recommended the promotions of Respondents No.7 to 13 only on ad hoc basis.
24.
Despite the aforesaid, Respondent No.4, vide Order dated 14th September, 2017, has chosen to promote Respondents No.8 to 12 as Ward Sisters on 'officiating basis'. At least in the present case it is not quite clear as to whether such promotions are on regular basis. Mr. Faldessai, learned Additional Govt. Advocate faintly suggests that this is nothing but regular promotions. But Mr. Sawant, learned Counsel for Respondents No. 8 to 12 is quite clear in his submission that even these promotions are on ad ho basis only. The second order which relates to the promotion of Respondent No.7 is quite clear inasmuch as the same refers to the promotion on 'regular basis'.
41 wp779-18 dt. 18-12-19 25.
Mr. Faldessai submits that there are guidelines which discourage promotions on ad hoc basis and, therefore, the impugned promotion orders came to be issued. He submits that the decisions in the case of Ramdas Yesso Salelkar (supra); Ashok Redkar (supra) and and Smt. Baby Anumanta Chandawa (supra) also suggest that separate seniority list has to be prepared of the candidates belonging to the reserved category and promotions to the reserved category are required to be made on the basis of such separate seniority list. He submits that it is for these reasons possibly that Respondents No. 7 to 12 were promoted on regular basis and not merely on ad hoc basis. 26.
As noted earlier, the promotions in the present case are on the basis of the recommendations of the Review DPC which met on 23rd April, 2016. The reason why the review DPC which met, was because on the first occasion the DPC had required guidelines relating to ad hoc promotions. Upon consideration of such guidelines, even the review DPC specifically made recommendations for promotion to Respondents No.7 to 13 only on ad hoc basis. There is nothing in the minutes of the review DPC to indicate that the promotion on regular basis was being considered or that the same was finally made.
27.
In these circumstances, it is not possible to accept the
42 wp779-18 dt. 18-12-19 contention of Mr. Faldessai that Respondent No.4 despite the recommendation of the review DPC was entitled to order the promotions of Respondent No.7 to 13 on regular basis or on 'officiating basis'. At this stage, it will not be appropriate for us to go into the position arising from the decisions referred to by Mr. Faldesai. This is because, there is nothing in the minutes of the review DPC to indicate that these were the parameters taken into consideration by the review DPC which, ultimately, recommended the promotions only on ad hoc basis.
28.
Accordingly, whilst partly accepting the contention of Mr. Sharma, we hereby clarify that the promotions of Respondents No.7 to 12 (since Respondent No.13 was ultimately not promoted), are to be construed as promotions only on ad hoc basis and not either on officiating basis or regular basis, as stated in the impugned orders of promotions. The promotions of Respondents No. 7 to 12 will, therefore, have to be construed as promotions on ad hoc basis only, for all legal purposes and intent. The impugned promotion orders dated 14th September, 2017 in so far as Respondents No.7 to 12 are concerned, to stand modified accordingly.
29.
Further, we agree with the contention of Mr. Sharma, learned Counsel for the Petitioners that necessary directions are liable
43 wp779-18 dt. 18-12-19 to be issued to Respondents No.1 to 6 to take steps to fill in the posts of Ward Sisters on regular basis. Accordingly, we direct Respondents No.1 to 6 to fill in posts of Ward Sisters on regular basis, including, inter alia, by considering the candidature of Respondents No.7 to 13 as against the reserved category, to which they belong. This exercise of making regular promotions should be completed as expeditiously as possible and in any case, within a period of 6 months from today. At that stage, Respondents No.1 to 6 will have to take into consideration necessary rules, regulations, guidelines or decisions of the Courts as may be applicable.
30.
This Petition is, accordingly, disposed of by making the following Order :
(A) The impugned promotion orders dated 14th September, 2017 are hereby modified and it is made clear that promotions of Respondents No.7 to 12 to the post of Ward Sister shall be considered as promotions on ad hoc basis and not on officiating or regular basis;
(B) Respondents No.1 to 6 are directed to make promotion to the post of Ward Sister on regular basis within six months from today, in accordance with the rules, regulations, guidelines, as well as decisions of the Courts as may be applicable (C) In the peculiar facts of the present case, there shall be no
44 wp779-18 dt. 18-12-19 order as to costs.
31.
All concerned to act on the basis of an authenticated copy of this Judgment and Order.
M.S. Jawalkar, J. M.S. Sonak, J.