R.V. Gaitonde (Dr.) Vs. State of Goa and ors. - Court Judgment

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service - annual confidential reports - articles 14, 16 and 226 of constitution of india - petitioner seeking direction for his appointment as principal and expunging adverse remarks recorded in his annual confidential reports - nothing on record to doubt integrity and character of petitioner - remarks in the acrs communicated to petitioner are unsustainable and are expunged. - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves and the said classification between part time lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. - the government of goa framed recruitment rules in 1988 for the post of professor as well as principal and in the meanwhile, the petitioner obtained his ph. 5 retired from the post of principal on 31-1-1997 and, therefore, on 14.2.1997, an advertisement was released for appointment to the post by the goa public service commission (hereinafter referred to as 'the commission'). interviews were held for the said post and this advertisement was released on the basis of the recruitment rules which were amended with effect from 16-1-1997. as a result of the interview process, the commission by its communication dated 18-6-1997 informed the petitioner that his name has been recommended to the state government by the commission for appointment to the post of principal. 8 clearly stipulated that the said appointment would be subject to the outcome of this petition and, it was under these circumstances, that respondent no. if, however, the vacancy is to be filled up, the government has to make appointment strictly adhering to the order of merit as recommended by the public service commission. it cannot disturb the order of merit according to its own sweet will except for other good reasons, viz. , bad conduct or character. (e) where the government is satisfied after due inquiry that the selection has been vitiated on account of violation of rules or for the reason that its smacks of corruption, favouritism, nepotism or the like, it may refuse to approve the list in which case it must record the reasons for its action and produce the same in court, if and when called upon, besides placing the same before the legislature as required by article 323 of the constitution. in a petition filed under article 226 of the constitution, the relief of appointment which has been sought may be an incidental relief and though it is well settled that such a right is not vested in favour of the petitioner, there is no case to reject the petition on the preliminary points, as the decision of the government is justiciable, as is well established. out of 17 failure students, the ten were given benefit of revision in marks; the special committee's report as well as the recommendations of the commission and arrived at a decision not to accept the recommendations of the commission on the basis of the report of the special committee as well as the other material available on record, which we have persued. mukherjee (supra) squarely applies in the instant case as well. , dated 30th january, 1978, as well as the subsequent orders issued by the government of india dated 2nd january, 1986 wherein it has been stated that when the reporting officer retires or otherwise demits office, he may be allowed to give the report on his subordinates within a month of his retirement or demission of office. the confirming authority failed to take note of this reality and has, obviously, confirmed these acrs without application of mind. no doubt, the main complainant's original assessment was found to be erroneous by the experts committee and the variation in the original marks as well as revised, was considerably high, that by itself would not be a reason to castigate the petitioner on his integrity and character. davis 55 alr 171: (a) the right to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and necessary to human society, as stated in libel and slander section 4, and this right is within the constitutional guarantee of personal security as stated in constitutional law section 205 and a person may not be deprived of this right through falsehood and violence without liability for the injury as stated in libel and slander section 4. detraction from a man's reputation is an injury to his personality, and thus an injury to reputation is a personal injury that is, an injury to an absolute personal right. a good reputation is an element of personal security, and is protected by the constitution equally within the right to the enjoyment of life, liberty, and property. there is nothing on record to doubt the character and integrity of the petitioner and we are more than satisfied that there was no such record even before respondent no.b.h. marlapalle, j.1. the petitioner before us is seeking direction for his appointment to the post of principal of the goa pharmacy college and expunging adverse remarks recorded in his annual confidential reports and consequently confirmed, for the academic year 1996-97. the brief facts leading to this petition may be stated as under:after obtaining his bachelor's degree in pharmacy in 1967 the petitioner completed his master's degree in pharmacy in 1971 and came to be appointed initially as demonstrator with effect from 5-7-1967 on temporary basis and he was regularised in the said post on 15-7-1969. on his obtaining the master's degree in pharmacy, he was appointed as a lecturer on ad hoc basis with effect from 12-11-973 and he came to be regularised in the said post in july, 1981. he was also a teacher for the post graduate classes and was taken as an examiner under the bombay university. however, in the year 1986, it appears that respondent no. 5 who was then officiating principal, orally informed him that he would not be an examiner for sometime. the affiliation committee of the university which visited sometime in the year 1986, submitted a report which resulted in the reversion of the petitioner by order dated 24-6-1987 to the post of lecturer. it needs to be noted at this stage that sometime in 1984 itself, the petitioner was appointed to the post of professor on ad hoc basis. he, therefore, filed writ petition no. 113/1987, challenging his reversion from the post of professor ad hoc. this petition was allowed by order dated 24-8-1993 with a direction either to regularise the petitioner or to fill up the said post of professor by direct recruitment. the government of goa framed recruitment rules in 1988 for the post of professor as well as principal and in the meanwhile, the petitioner obtained his ph.d. degree. his examiner ship came to be restored in january, 1990. on 15-9-1992, an advertisement was released for appointment to the post of principal by direct recruitment. the petitioner was one of the candidates who was interviewed. however, the present respondent no. 5 challenged the said advertisement in writ petition no. 15/93. directions were issued by this court to fill up the post of principal by direct recruitment and accordingly, the petition filed by respondent no. 5 came to be disposed of . consequently, respondent no. 5 came to be regularised in the post of principal in 1994 retrospectively from 1981. the petitioner came to be appointed to the post of professor on regular basis on 19-5-1995 and in that capacity, he was also the head of the department. respondent no. 5 retired from the post of principal on 31-1-1997 and, therefore, on 14.2.1997, an advertisement was released for appointment to the post by the goa public service commission (hereinafter referred to as 'the commission'). interviews were held for the said post and this advertisement was released on the basis of the recruitment rules which were amended with effect from 16-1-1997. as a result of the interview process, the commission by its communication dated 18-6-1997 informed the petitioner that his name has been recommended to the state government by the commission for appointment to the post of principal. while the government decision was awaited, the petitioner was served with adverse remarks in his annual confidential reports ('acrs' for short) by communication dated 4-7-1997 for the year 1996-97 which were replied by him on 10-7-1997. by order dated 5.8.97, the government rejected the recommendations of the commission regarding selection of the petitioner for the post of principal and, therefore, the petitioner approached this court.2. during the pendency of this petition, the petitioner had also submitted a representation against the acrs and the said representation came to be decided by respondent no. 2 vide his order dated 14-4-1998. as per the said order, the acrs were confirmed. the petitioner, accordingly, amended the petition and prayed for quashing of the said order passed by respondent no. 2. in the meanwhile, fresh advertisement was released for the post of principal on 12-9-1997 by respondent no. 4. in response to the said advertisement, selection process went through and respondent no. 8 came to be selected. however, the offer made to respondent no. 8 clearly stipulated that the said appointment would be subject to the outcome of this petition and, it was under these circumstances, that respondent no. 8 did not join. the post has thus remained vacant as at present. the government has once again approached the commission for initiating fresh action for the appointment to the post of principal.3. learned counsel for the petitioner submitted before us that the whole action has been engineered with an intention to ensure that the petitioner is not appointed to the post of principal by respondent no. 2 and the acrs were communicated belatedly after the commission had intimated the petitioner regarding his selection and recommendation to that effect having been submitted to the state government. he also urged before us that the principal had retired on 31-1-1997 and he had no authority to write acrs, in case he had done so and at the same time, respondent no. 3 who was continued as principal on ad hoc basis has taken a stand that he did not write acrs and his role was limited merely to communicate the said acrs to the petitioner on 4-7-1997. the petitioner also contends that inspite of bright academic record and fulfilling the requirements for the post of principal, respondents no. 3 and 5 have taken steps in collusion and with the assistance of the authorities concerned to deprive him the higher post of principal and this is mainly because of the academic rivalry or hatred. it is also contended that respondent no. 5 was not at all eligible for being appointed as principal and, even in the year 1995, the petitioner ought to have been appointed to the post of principal on regular basis instead of respondent no. 5. learned counsel for the petitioner has also submitted before us that the decision of the government in rejecting recommendations made by the commission is illegal, unconstitutional and is vitiated on all counts inasmuch as there was no material before the state government in respect of adverse acrs to reject the recommendations made by the commission. he has also contended that the vigilance inquiries which were initiated against the petitioner have been closed which would indicate that there was nothing adverse against the character or integrity of the petitioner.4. shri nadkarni, the learned advocate general on behalf of the state government has taken a preliminary objection to the maintainability of this petition on the ground that mere recommendation made by the state public service commission does not vest any right in favour of the petitioner to seek mandamus against the state government under article 226 of the constitution. in support of this argument, shri nadkarni has relied upon the following observations of the apex court in the case of jatinder kumar and others v. state of punjab and others, : air1984sc1850 :'this, however, does not clothe the appellants with any such right. they cannot claim as of right that the government must accept the recommendation of the commission. if, however, the vacancy is to be filled up, the government has to make appointment strictly adhering to the order of merit as recommended by the public service commission. it cannot disturb the order of merit according to its own sweet will except for other good reasons, viz., bad conduct or character. the government also cannot appoint a person whose name does not appear in the list. but it is open to the government to decide how many appointments will be made. the process for selection and selection for the purpose of recruitment, against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus.'5. coming to the challenge on merits, shri nadkarni submitted that twofold reliefs sought in the petition must be examined separately and so long as the government had some material to record its dissent with the recommendation of the commission, it would not be proper for this court to sit in appeal over the judgment of the state government and the issue of acrs which have been confirmed by respondent by order dated 14-4-1998 would have to be separately examined by this court. even if the state government had some tangible material before it to defer with the recommendation made by the commission, that material itself will be sufficient to uphold the decision of the government and there would not be any occasion to disturb the decision of the government by invoking powers under article 226 of the constitution. in support of these arguments, shri nadkarni has relied upon a judgment of the supreme court in the case of jatinder kumar (supra) and dr. h. mukherjee v. union of india and others : air1994sc495 .6. on the issue of acrs, shri nadkarni, the learned advocate general submitted before us that the author of the acrs has applied his mind, made an objective assessment, based upon his personal knowledge regarding the academic capabilities, integrity and character of the petitioner, and these acrs cannot be, by any stretch of imagination, called as extraneous or capricious or written on account of personal hatred on the part of respondent no. 5. these acrs have been confirmed by the confirming authority, after application of mind and, therefore, there is no reason to expunge the said reports. the competent authority, after hearing the petitioner has confirmed its remarks by order dated 14-4-1998 and has also referred to the report of the experts' committee consisting of professors from the bombay university. on the basis of this material, there is no case made out by the petitioner to expunge these acrs, urged the learned advocate general.7. at the first instance, it has also been submitted on behalf of the state government that when fresh advertisement will be issued by the commission, the petitioner is at liberty to respond, if he so desires, and in case the age factor comes in his way, the government is willing to relax the age factor for all such candidates. under such circumstances, the petitioner's case could be considered along with others by the commission as per the criteria for the selection to the post of principal pursuant to the rule of 1977. to this suggestion, the learned counsel for the petitioner has expressed his apprehension and more particularly the fact that acrs for the academic year 1996-97 may come in the way of the petitioner in case they remain on record and there is no guarantee that either the commission or the statement government would not be swayed by these acrs.8. to deal with the preliminary point raised by shri nadkarni, the learned advocate general, regarding the maintainability of this petition, we may refer usefully to the subsequent judgment of the supreme court in the case of asha kaul (mrs.) and another v. state of jammu and kashmir, and others, reported in : (1993)2scc573 and more particularly the following observations in para 8 of the said judgment:'it is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment state of haryana v. subhash chander marwaha; (mani subrat jain v. state of haryana; state of kerala v. a. lakshmikutty, but that is only one aspect of the matter. the other aspect is the obligation of the government to act fairly. the whole exercise cannot be reduced to a farce. having sent a requisition/request to the commission to select a particular number of candidates for a particular category, in pursuance of which the commission issues a notification, holds a written test, conducts interviews, prepare a select list and then communicates to the government-the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. we do not think that any government can adopt such a stand with any justification today. this aspect has been dealt with by a constitution bench of this court in shankarsan dash v. union of india, where the earlier decisions of this court are also noted.'at the same time, we may also reefer to the decision of the supreme court in the case of dr. h. mukherjee (supra) as relied upon by shri nadkarni. on referring to its earlier judgment in the case of jatinder kumar (supra) the apex court, inter alia, observed:(a) the selection made by the commission was only recommendatory in nature and the government may or may not accept the same, but if it chooses not to accept the same, article 323 enjoins it to place on the table of the legislature its reasons or report for not accepting the recommendation;(b) on plain reading of the article it is, therefore, clear that the reasons have to be assigned in a memorandum to be placed along with a copy of the report of the commission before the legislature concerned.(c) there is nothing in that article or in the rules to suggest that the government cannot take into consideration the developments subsequent to the selection made by the upsc. such a view would not be in public interest and may lead to serious complications if the government is enjoined to make the appointment notwithstanding certain serious matters having come to its notice subsequent to the recommendation made by the commission.(d) assuming the decision taken by the acc is justiciable, there can be no doubt that it can be challenged only on the ground that it smacks of mala fides or arbitrariness.(e) where the government is satisfied after due inquiry that the selection has been vitiated on account of violation of rules or for the reason that its smacks of corruption, favouritism, nepotism or the like, it may refuse to approve the list in which case it must record the reasons for its action and produce the same in court, if and when called upon, besides placing the same before the legislature as required by article 323 of the constitution.(f) it seems well settled that the function of the public service commission being advisory, the government may for valid reasons to be recorded on the file, disapprove of the advice or recommendation tendered by the commission, which decision can, if at all, be tested on the limited ground of it being thoroughly arbitrary, mala fide or capricious.9. in the instant case, the petitioner has challenged the decision of the state government in rejecting the recommendation made by the commission and the said decision is certainly justiciable. in a petition filed under article 226 of the constitution, the relief of appointment which has been sought may be an incidental relief and though it is well settled that such a right is not vested in favour of the petitioner, there is no case to reject the petition on the preliminary points, as the decision of the government is justiciable, as is well established.10. learned advocate general produced before us original files. these files as : (a) submissions before the cabinet and the cabinet decisions ; (b) the complaints and subsequent deliberations in regard to such complaints made by the students regarding wrong assessment of the examination papers of april, 1996. these complaints pertain to victimisation of students, deliberately; and (c) the assessment of papers made by experts.from these files, it is apparent that two students had submitted written complaints sometime in june, 1996 regarding their most unexpected results of the examination held in april, 1996 and more particularly, the assessment in the paper of pharmacognosy. these complaints were taken cognizance of by the board of technical education who, in turn, directed thorough investigation. the secretary was made aware that there was no provision for reassessment of papers under the rules and, therefore, it was decided to constitute a committee of three experts (preferably from outside the state of goa) and get all 37 papers reassessed/reviewed by such a committee. the experts' committee of dr. jadhav, dr. (mrs.) kelkar and dr. kabnoorkar. except dr. (mrs.) kelkar, the other two experts are from bombay as stated before us and dr. kelkar is from the dhempe college, panaji. as per the decision of the committee, the marks were averaged and accordingly, as per new assessment, in the case of the complainant by name kurade, his original marks of 17 out of 80, came to be revised to 52 out of 80. in respect of 10 students who had already passed, the committee did not see any reason to vary the assessment and the other cases of remaining 10 students, the committee revised the assessment upward. out of 17 failure students, the ten were given benefit of revision in marks; whereas the remaining seven were not given such a benefit, notwithstanding the fact that all these 17 failures had reappeared for the supplementary examination held in july, 1996. this report was placed before the special committee, constituted by the state government. the committee accepted the experts committee's report and went further to take a decision to debar this petitioner as an examiner for three years. the director of technical education, accordingly, communicated the decision to the petitioner on 14-3-1997, without assigning any reasons. based on the special committee's report, a submission was put up before the cabinet and this was made available to the cabinet after the recommendations regarding the selection of the petitioner were submitted by the commission. the note to the cabinet stated that the special committee's report is required to be considered while taking a decision on the commission's recommendations. the cabinet has deliberated on both the issues, viz. the special committee's report as well as the recommendations of the commission and arrived at a decision not to accept the recommendations of the commission on the basis of the report of the special committee as well as the other material available on record, which we have persued.11. the record before the cabinet did make out a case for consideration for the cabinet and on the basis of the tangible record available, the cabinet decided not to accept the recommendations of the commission regarding the selection of the petitioner. in such a situation, there was an alternative available to the state government to refer the material available before it to the commission for reconsideration of its recommendations, however, the cabinet in its wisdom decided to take a final decision and, accordingly proceeded to reject the recommendations of the commission with a direction to the commission to advertise the post afresh. we do not find any material irregularity or constitutional impropriety in the action of the state government. in fact the state government has acted strictly within four corners of law and in public interest, it has taken a decision. when an appointment to the post of principal is being considered by the cabinet, which has the mandate of people, it is incumbent upon it to examine the recommendations for such an appointment thoroughly and satisfy itself that the recommendations, if accepted, would not only serve the academic interests, but also would be viewed fair, proper and in he public interest. as observed earlier from the record, it is evident that there was some material before the cabinet in arriving at a decision in not accepting the recommendations made by the commission and, therefore, the ratio laid down by the apex court in the case of dr. h. mukherjee (supra) squarely applies in the instant case as well.12. coming to the issue of the acrs for the academic year 1996-97 the learned advocate general submitted the files before us and it is noted that the respondent no. 5 has written these acrs on 30-5-1997. he had vacated the post of principal on 31-1-1997. we have been shown the guidelines issued by the government of india vide o.m. no. 21011/1/77-est., dated 30th january, 1978, as well as the subsequent orders issued by the government of india dated 2nd january, 1986 wherein it has been stated that when the reporting officer retires or otherwise demits office, he may be allowed to give the report on his subordinates within a month of his retirement or demission of office. even, otherwise, admittedly, there are no such rules formulated by the state of goa for its employees and, even, if, we take the instructions of the government of india as guidelines, it is clear that respondent no. 5 had no authority to write the acrs on 30-5-1997. we must also note at this stage that on his retirement from the post of principal on 31-1-97, respondent no. 5 was continued on contract basis in the post of professor from february, 1997 onwards and the petitioner also was holding the equivalent post at the relevant time. undoubtedly, the acrs have been written by the officer who had no authority to write them. the confirming authority failed to take note of this reality and has, obviously, confirmed these acrs without application of mind. the order dated 14-4-1998, passed by respondent no. 2 rejecting the representation of the petitioner against these acrs, refers to the reassessment of 37 papers by the experts' committees. as noted earlier, the experts' committee itself had a difference of opinion inasmuch as, one member was of the view that the assessment done by the petitioner was proper whereas the other two members did not agree with the assessment made by the petitioner. the results of 20 successful students were retained as it is inasmuch as first 10 students' assessment was found to be in order and the assessment of other 10 students was revised upward. in all these 37 papers, there is not one single instance where the experts' committee held that any of the examinee was given unjustifiably high marks and that the examiner had resorted to very liberal attitude in giving the marks. on the contrary, the report of the experts' committee indicated that the original examiner, viz. the petitioner was strict and conservative in his approach while assessing the papers of the examination held in april, 1996 in the subject of pharmacognosy. no doubt, the main complainant's original assessment was found to be erroneous by the experts committee and the variation in the original marks as well as revised, was considerably high, that by itself would not be a reason to castigate the petitioner on his integrity and character. this aspect has escaped the attention of respondent no. 2 while passing the impugned order dated 14-4-1998.13. the character and the reputation of an individual is of paramount importance for his standing in the society and for an academician, an attack on his character and integrity must be resisted by all the concerned in academic interest. in the case of smt. kiran bedi and jinder singh v. the committee of inquiry and another, reported in : 1989crilj903 , venkataramiah, j., speaking for three judges bench, referred to words of caution uttered by the lord to arjun in bhagwad gita with regard to dishonour or loss of reputation and the observations made in corpus juries secundum, vol. 77 at page 268 and held that a person's reputation is part of life and personal liberty within the meaning of article 21 of the constitution. from the same judgment, we may reproduce some of the observations in corpus juries secundum and in the case of d.f. marion v. davis 55 alr 171:(a) the right to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and necessary to human society, as stated in libel and slander section 4, and this right is within the constitutional guarantee of personal security as stated in constitutional law section 205 and a person may not be deprived of this right through falsehood and violence without liability for the injury as stated in libel and slander section 4.detraction from a man's reputation is an injury to his personality, and thus an injury to reputation is a personal injury that is, an injury to an absolute personal right.(b) the right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. a good reputation is an element of personal security, and is protected by the constitution equally within the right to the enjoyment of life, liberty, and property.14. the record made available before us squarely shows that the acrs written by respondent no. 5 are not only without authority in law but indeed they are unsustainable and more so, regarding the integrity and character of the petitioner. there is nothing on record to doubt the character and integrity of the petitioner and we are more than satisfied that there was no such record even before respondent no. 5 or respondent no. 2 when he confirmed the acrs by order dated 14-4-98.15. we have noted down the statement made on behalf of the state government that if the petitioner applies in response to the fresh advertisement for the post of principal, the age factor will not come in his way inasmuch as the state government desires to relax the age for similarly situated candidates and, therefore, the commission would be free to consider the petitioner's candidature for the said post on it own merit and keeping in view of the recruitment rules of 1997.16. in the result, the petition is partly allowed and the order dated 14-4-1998 is hereby quashed and set aside. we hold that remarks in the acrs, communicated to the petitioner vide letter dated 4-7-1997 are unsustainable and, therefore, they are hereby expugned. in case the petitioner responds to the fresh advertisement released by the commission for appointment to the post of principal, his case shall be considered on its own merits and as per the recruitment rules of 1977, along with others and the state government would take appropriate steps to grant relaxation in age for all similarly situated candidates. rules made partly absolute in terms of the above directions. costs in cause.