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PETITIONER: THE STATE OF GOA & ANR.

       Vs.

RESPONDENT: SMT. YVETTE PEREIRA A.E. COSTA.

DATE OF JUDGMENT:       12/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)   413        1996 SCALE  (4)231

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CIVIL 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 E R      Delay condoned.      Leave granted.  We have  heard learned  counsel on both sides .      Neat 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. But,  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

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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.      The Act  defines ’absorbed  employees’ in  Section 2(a) thus:      "2(a). ’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.      Admittedly ,  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:      "As 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.      Thus a  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.      The  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 costs.