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CASE NO.: Appeal (civil)  2636 of 1999

PETITIONER: Vithal V Gaitonde                                        

RESPONDENT: Union of India & Anr.                        

DATE OF JUDGMENT: 16/12/2003

BENCH: S. RAJENDRA BABU & RUMA PAL

JUDGMENT: J U D G M E N T

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

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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."

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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  State of Goa Vs. Yvette Periera [1996 (9) SCC  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 \026 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

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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.