JUDGMENT
D.D. Sinha, J.
1. Heard Mr. Lotlikar, learned Counsel for the petitioner and Mr. Rivonkar, the Additional Government Advocate for the respondents 1 and 2.
2. The writ petition is filed challenging the method of direct recruitment for appointment to the post of Sanitary Inspector in the Directorate of Health Services undertaken by the respondents 1 and 2 as well as the promotions made in favour of respondents 3 to 6.
3. The short question which falls for our consideration in the present writ petition is whether the recruitment and appointment sought to be done by the method of direct recruitment without considering the candidate/petitioner of the Department was permissible in law?
4. The petitioner has been working as a Vaccinator in the Department of Directorate of Health Services of the respondent No. 1 pursuant to his appointment order dated 17th October, 1980 by the Director of Health Services. Since then, the petitioner has been continuously working with the Directorate of Health Services.
5. The respondents 3 to 6 are the officers, who were directly recruited and appointed to the post of Sanitary Inspectors.
6. The petitioner states that the Recruitment Rules of 1969 were framed by Government on 19th February, 1969 and were published in the Official Gazette dated 3rd April, 1969. In accordance with the said rules the post of Sanitary Inspector, which was a Class III (Non-Ministerial, Non-Gazetted) post, was to be filled in by direct recruitment.
7. The petitioner further states that these rules were, however, changed by the Government in exercise of its powers under Article 309 of the Constitution of India, pursuant to the Goa Government Directorate of Health Services, Class III (Non-Ministerial, Non-Gazetted) Posts Recruitment (First Amendment) Rules, 1971, by which the existing entry in Column 10 for the words ‘the method of direct recruitment’, the words ‘by promotion failing which by direct recruitment’ was inserted. Similarly for the then existing entry in Column 11, persons who were Inspectors of one or other mass control programme/Basic Health Workers with standing three years in the respective grade, were made eligible for being considered for the post of Sanitary Inspector.
8. The petitioner states that the post of Sanitary Inspector, which is a Group ‘C’ post is in accordance with Column 10 of the Schedule and is required to be filled in by following the method of promotion failing which by direct recruitment. It is further stated that in accordance with Column 7 the educational qualifications applicable in the case of direct recruitment also applied in case of promotes.
9. The petitioner submitted that he, at the relevant time, satisfied the educational and other qualifications required for the promotional post of Sanitary Inspector as the petitioner had all the three essential requirements as also the desirable qualifications and is fully eligible under the Recruitment Rules for being appointed to the post of Sanitary Inspector.
10. It is further stated by the petitioner that having learnt that there were 5 vacancies of Sanitary Inspectors which arose in the month of April 1997, the petitioner by application requested the Directorate of Health Services to consider and promote the petitioner to the post of Sanitary Inspector, as the petitioner was fulfilling all the qualifications and the criteria and was eligible for being considered for promotion to the post of Sanitary Inspector.
11. The petitioner was called for interview to the post of Sanitary Inspector by letter dated 19th June, 1997. The interview was conducted on 30th June, 1997. The Selection Committee rejected the claim of the petitioner for promotion on the ground that he was not eligible for promotion under the Recruitment Rules since he was not holding the necessary qualification of ‘successful completion of Sanitary Inspectors Course from a recognised Institution’.
12. At the relevant time, since nobody from the Department was eligible for the promotional post of Sanitary Inspector and as permitted under the Rules, the Department by direct recruitment appointed respondents 3 to 6 to the post of Sanitary Inspector.
13. Mr. Lotlikar, learned Counsel appearing for the petitioner, further contended that the controversy in question has been concluded by the judgment of this Court in (Writ Petition Nos. 41 and 42 of 1994 dated 5th November, 1998)1. It is contended that it has been held that the candidates shall be considered for the purpose of appointment depending upon the vacancies for the posts of Sanitary Inspector and intake capacity for training course. On appointment, the promoted employees shall be sent for Sanitary Inspector’s Course from a recognised Institution. It is further observed in the said judgment that the promotees shall have to successfully complete Sanitary Inspector’s Course from a recognised Institution as in-service candidates within the duration of the course itself and on failure to complete the said course within its duration, the promotees shall be liable to be reverted to the posts from which they were promoted. This Court in the above referred judgment further observed that the Multi-purpose Health Workers and Gaonsathis who have completed 12 years of service prior to 6th September, 1990, shall be entitled to Time-bound Promotional Scale of Rs. 1200-2040. Similarly they shall be entitled to M.T.A/P.T.A. as per Order dated 21st September, 1993, subject to the fulfilment of all the conditions prescribed therein or under the Rules or Circulars.
14. Mr. Lotlikar, learned advocate appearing for the petitioner, contended that at the relevant time when the vacancy arose in the post of Sanitary Inspector, the petitioner was holding all other educational qualifications except the Certificate of Successful Completion of Sanitary Inspectors Course from a recognised Institution. This condition has been relaxed by this Court in the above referred judgment and the candidates not holding this certificate are also made eligible for consideration to the promotional post of Sanitary Inspector and after such promotion, were directed to acquire the qualification in the prescribed manner. It is contended that in view of the above referred judgment, the petitioner, in fact, became eligible for consideration to the promotional post of Sanitary Inspector and, therefore, the respondents 1 and 2 ought to have promoted the petitioner to the said post of Sanitary Inspector. According to the learned Counsel, the appointments by direct recruitment of Sanitary Inspector is possible and permissible only if there is no eligible candidate available to be promoted to the said post. It is once again reiterated that since the petitioner was eligible for the promotional post of Sanitary Inspector, it was not open for the Department to fill the same by direct recruitment by appointing respondents 3 to 6. The learned Counsel, therefore, contended that the appointment of respondents 3 to 6 be quashed and set aside as the same is bad in law and petitioner be promoted to the post of Sanitary Inspector from the date the vacancy arose.
15. Mr. Rivonkar, the learned Additional Government Advocate appearing for the respondents 1 and 2, supported the action of appointment of respondents 3 to 6 by direct recruitment made by the Department. It is contended that, at the relevant time, as per the relevant rules in order to qualify for the promotional post of Sanitary Inspector, one of the essential requirements was ‘successful completion of Sanitary Inspectors Course from a recognised Institution’. Since the petitioner, admittedly, did not have that essential qualification, at the relevant time, when the vacancy occurred, the Selection Committee did not promote the petitioner to the post of Sanitary Inspector. It is further contended that since there were no eligible candidates available for promotion to the post of Sanitary Inspector, the respondents 1 and 2, under the rules, were entitled to make appointed by direct recruitment and, therefore, respondents 3 to 6 were appointed to the post of Sanitary Inspector. It is further contended that this issue is now concluded by the above referred judgment of this Court dated 5th November, 1998. The Department, as per the ratio laid down by this Court in the above referred judgment, already prepared a seniority list of eligible candidates for promotion to the post of Sanitary Inspector and as and when the petitioner becomes due and eligible, he will be promotion to the post of Sanitary Inspector.
16. We have given our anxious thoughts to the contentions raised by the respective Counsel. We have also perused the relevant Rules as well as the above referred judgment given by this Court. It is not doubt true that in the above referred judgment while interpreting the concerned rule, this Court has given relaxation to the candidate to acquire the essential qualification, that is, successful completion of Sanitary Inspectors course from a recognised institution, after he is promoted to the post of Sanitary Inspector within the parameters mentioned therein. However, it is equally true that, at the relevant time, as per the relevant Rules, this was one of the essential qualifications necessary for eligibility to the promotional post of Sanitary Inspector. The petitioner, admittedly, did not possess the said essential qualification and, therefore, in fact, was not eligible to be considered for the promotional post of Sanitary Inspector. The petitioner was called for an interview by the Selection Committee and the claim of the petitioner was duly considered by the said Committee. However, but for want of the essential qualification referred to hereinabove, the claim of the petitioner was rightly rejected, in our opinion, by the Selection Committee, at the relevant time.
17. The contention raised by the learned Counsel for the petitioner that it was not permissible for the Department to appoint respondents 3 to 6 by direct recruitment is also devoid of substance. As stated hereinabove, since, at the relevant time, petitioner was not eligible and, as stated by the learned Counsel for the respondents 1 and 2, there were no eligible in the Department for the post of Sanitary Inspector, the relevant Rule, in such situation, permits the Department to make appointments by direct recruitment and, therefore, the appointment made by the department of respondents 3 to 6 by direct recruitment, in our opinion, is just, proper, sustainable in law and is in accordance with the rules.
18. The learned Additional Government Advocate, appearing for the respondents 1 and 2, has already submitted that the seniority list has been prepared as per the directions given by this Court in the above referred judgment and the petitioner will be considered for promotion as and when he becomes eligible and due.
19. The Department shall effect the promotions in accordance with the seniority lit prepared and the ratio laid down by this Court in the above referred judgment.
20. For the reasons stated hereinabove, the petition is misconceived and devoid of substance. The writ petition is dismissed with no order as to costs.