VITHAL Y. GALTONDEversusUNION OF INDIA AND ANR.

A                          VITHAL Y. GALTONDE
                                    v.
                         UNION OF INDIA AND ANR.

                             DECEMBER 16, 2003

B               [S. RAJENDRA BABU AND RUMA PAL, JJ.]

         Service Law :

         Goa, Daman & Diu [Repeal of Posts and Telegraphs Law$] Regu-
,C lation, 1962-Appointment-Retirement Age-Liberation of Goa ji-om
   Portuguese rule and annexation to India-Subsequent appointment of
   claimant .to Goa Post and Telegraphs services-Claim that appointment
   being in terms ofPortuguese Rules retirement age to be 60 years-Tribunal
   dismissing the claim-On appeal, held : Claimant being appointed under
   1962 Regulation;:n temporary basis on a fixed pay scale and not being
·D an absorbed employee, .cannot claim benefit of retirement at the age of 60
   years under the Portuguese Rules-Goa, Daman and Diu Administrative
   Act, 1962-Sections .4 and 5. ·

       Goa .was .liberated ,from the ·Portuguese .rule .on 19.12.1961 .and
E was annexed to the territory of ·India. ~II the Government servants
  appointed after the liberation were ,being governed ,by various mies
  and regulations framed by the Government of India -regulating the
  service conditions of the•Central :Government servants. On 11.6.1962
  the appellant was appointed -to ·the·Goa ~Post and Telegraph Services
F under Goa, ·oaman & ·Diu (Repeal .of ·Post~ and Telegraphs ·Laws)
  Regulaton, 1962 as .a temporary operator. Thereafter, he attained
  superannuation on 31.1.94 and-was to'.retire with effect from 31;1.-1994.
  The appellant challenged the order -on the ground that as he was
  appointed in-terms ofthe•Portuguese·law his retirement age should•be
  60 years. Tribunal held ·that the appellant .was ·not an absorbed
G employee and as.the appellant was-not appointed-undei" the•Portuguese
  law he cannot claim the retirement age to be of60 years. Aggrieved
  appellant tiled review petition ·which ·was also dismissed. ·Hence the
  present appeal.

H        Dismissing the appeal, the Court
                                       952
             V.V. GAITONDE v. U.O.I. [RAJENDRA BABU, J.]                 953

       HELD : 1.1. The appellant was appointed on 11.6.1962 in the A
Department of Posts & Telegraphs under the Goa, Daman & Diu [Repeal
of Posts and Telegraphs Law] 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 B
1.9.1962 the Military Government of Goa, Daman & Diu had passed
certain orders empowering the Director ofCTT 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 C
 in terms of this order that the appellant was 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 cannot claim the benefit
 of the relevant rules which stood in force prior to the coming into force
.of the new Rules. (955-D-F; 956-A-B; 957-C]

        .State of Goa v. Yvette Periera, [1998) 9 SCC 112, referred to.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2636 of
1999

     From the Judgment and Order dated 24.3.95 in R.P.31.95/in O.A. No.         E
407/94 of the Central Administrative Tribunal Bombay.

    R.K. Maheshwari, Dr. Kanwal Sapra and Rishi Maheshwari for the
Appellant.
                                                                                F
        P.P. Malhotra, Rajiv Nanda and P. Parmeswaran for the Respond-
ents.

        The Judgment of the Court was delivered by

        RAJENDRA BABU, J. : The appellant before us claims to have been G
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. l 993/6.l.l 991f by whi~,h.he was informed that he would attain the age
of superannuation· on 31.1.1994. He has since retired on 3 l. l .1994.          H
    954                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A         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 EST ATUTO
    DO FUNCTIONALISMO UL TRAMARINO, which fixed the age of
B   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 of60 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
C 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
D 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 Portugµese Rules. The tribunal gave a finding on
                         I
    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
E   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. I 961 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
F   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
G            appointed were being governed by various rules and regulations
             framed by the Government of India regulating the service condi-
             tions 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.
H            Needless to say that the applicant was not appointed by virtue of
                                                              ..
          V.V. GAITONDE v. U.0.1. [RAJENDRA BABU,'J.]                  955

        the said regulations and thus he cannot claim the benefits of clause A
        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 B
reference to Petro Cassiano Mendes v. Union of India in O.A. No.155/93
dated I. 7.1994, which petition was rejected on the basis of Iaches. 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.                                           C
     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 D
day in Goa, Daman and Diu or any pan 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 l I .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 E
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 Mi!itary Government
of Goa, Daman & Diu had passed certain orders to the following effect:
                                                                             F
         "The following powers hereuntofore vested in the erstwhile
         Secretary-General of Goa in respect of CTT Administrati0n are
         hereby delegated to the Director of CTT and shall hencefo1th be
         exercised by him.

         (1)     Temporary appointments,     Full powers for staff           G
                appointments on daily wages, other than those
               . provisional appointments,   whose appointment
                extension and confirmation   was vested in the
                                              erstwhile Overseas
                                              Minister."                     H
    956                SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A          The said orders empowered the Director of CTT to make appoint-
    ments on daily wages, provisional appointments, extension and confirma-
    tion. 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
B   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
C   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
D   20.12.1961 and, therefore, the said Act would not be applicable to him.
    In the Goa, Daman & Diu [Absorbed Employees] Act, 'absorbed .;m-
    ployee' 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
E   0fthe 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
F   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 v. Yvette Periera, [1996] 9 SCC 212.

          On 27.8.1962, the Ministry of External Affairs, Government of India
G   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
H   in each Depaitment of P&T services, all the existing posts on the Goa P&T
          V.V. GAITONDE v. U.O.I. [RAJENDRA BABU, J.]               957

system shall be deemed to have been created in the respective wing of the A
P&T Departme!lt 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 pa1ticular case the services of any person are B
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 C
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.
                                                                           D
NJ.                                                    Appeal dismissed.




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