JUDGMENT
N.A. Britto, J.
1. Rule. By consent heard forthwith.
2. Th petitioner, in this petition filed under Article 226 and 227 of the Constitution, inter alia, seeks a direction for restoration of the TBPS (Time Bound Promotional Scale) granted to the petitioner vide order dated 4/12/1989.
3. Some facts are required to be stated to dispose of the present petition. The petitioner was appointed as an LDC with respondent No. 2 on 19/08/1968 and was promoted as UDC on 1/12/1973. There is no dispute that she completed 12 years of service on 1/02/1985. She was offered a promotion to the post of Head Clerk, first, in the year 1986 and then in the year 1989 which the petitioner declined. Subsequently, she accepted the post of Head Clerk on 21/03/1990 and we are told that eventually she retired as ‘Superintendent’.
4. By virtue of memorandum dated 5/07/1989, the respondents brought in force what is known as “Time Bound Promotional Scale Scheme” meant for group ‘C’ and ‘D’ employees and in order to have the benefit of the said scheme, an employee was required to put in at least 12 years of service in the existing post. The other requirement was that the employee ought to be recommended for the grant of the said Time Bound Promotional Scale by the Departmental Promotion Committee. By another memorandum dated 22/12/1989, certain clarifications were issued by the personnel department of respondent No. 1. One of the clarifications sought was whether TBPS could be granted to those Officials who declined promotion, and it was clarified stating that the TBPS was intended to give the benefit to those employees who could not get higher pay scales due to lack of promotional avenues. Apparently, employees who had declined promotion shall not be eligible for TBPS. Another clarification was given to the memorandum dated 22/12/1989 by office memorandum dated 29/01/1991 and with reference to the same, it was further made clear that the clarification was applicable only to those who had declined promotions prior to the grant of TBPS i.e. prior to the completion of 12 years service in the grade. Consequently, the Time Bound Promotional Scale granted to the Officials, after completion of 12 years period in the grade, could not be revoked in case they declined promotion subsequently.
5. The petitioner was granted TBPS vide order dated 4/12/1989, after the same was recommended by the Departmental Promotion Committee, after assessing her performance based on confidential reports and integrity certificate, but the said order came to be revoked by order dated 16/01/2001 and, apparently, without hearing the petitioner. Thereafter, the representations made by the petitioner from time to time were not considered by the respondents. Subsequently, another representation dated 29/09/2004 was referred to the Ombudsman, Government of Goa which is an Authority constituted by the Government of Goa vide notification dated 4/06/2001, under the Government of Goa Employees (Redressal of Grievances Forums) Scheme, 2001, and, the Ombudsman by his recommendatory report dated 17/06/2005 was pleased to recommend the restoration of the TBPS granted to the petitioner vide order dated 5/07/1989. In making the said representation the Ombudsman referred to point No. 4 of office memorandum dated 21/01/1991 and observed that in case the incumbent had not accepted promotion after being in a grade for 12 years or more, he or she was entitled for TBPS in the said grade and this clarification appeared to be logical as it kept in view the spirit of introduction of the scheme of TBPS. The main intention behind introduction of the said scheme, as clarified in the first para read with condition No. 2 of OM dated 5/07/1989, was to ensure that in case the employee had put in 12 years of service in the existing post, he or she was entitled for TBPS and since the petitioner was in the grade of UDC for more than 12 years, before she was offered the post of Head Clerk twice, which she had not accepted, she was entitled for the grant of TBPS as clarified by the Government vide its OM dated 21/01/1991.
6. As per Clause 12 of the scheme of the Goa Government Employees (Redressal of Grievances Forums) Scheme, 2001, the recommendations of the Ombudsman ordinarily bind the Government, unless otherwise, directed by the Chief Minister on the advice tendered by the Council of Ministers supported by reasons for not giving effect to such recommendations. The cabinet note prepared by Special Secretary (Personnel) placed before us for our perusal, shows that it was not accepted by the Hon’ble Chief Minister. Although, reasons are required to be given in order not to accept the recommendations of the Ombudsman, we find no reasons forthcoming as to why the said recommendations of the Ombudsman were not accepted by the Hon’ble Chief Minister on the advice tendered by the Council of Ministers. It is nobody’s case that the TBPS scheme is prospective in nature. In fact, as already stated, it was made applicable to all the employees who had put in at least 12 years of service on the existing post. Twelve years are to be reckoned prior to the date from which the scheme came into force. The petitioner had put in 12 years of service as on 1/02/1985 and, therefore, the petitioner was entitled to have the benefits of the said TBPS, after completion of 12 years. That the petitioner had declined promotions later in the year 1986 or in the year 1988 was wholly inconsequential. What would be of consequence was whether she had declined promotion within those 12 years. Likewise, the fact that she was eventually promoted to the post of Head Clerk on 21/03/1990 was again of no consequence. Since the petitioner had continued to stagnate in the post of UDC for 12 years and within that period she had not declined any promotion, in our view, the petitioner was certainly entitled to have the benefits of the said TBPS given to her and which were rightly given to her by virtue of the order dated 4/12/1989, after the petitioners’ case was duly considered by the Departmental Promotion Committee. We are entirely in agreement with the view expressed by the Ombudsman. We find no reasons forthcoming for the Hon’ble Chief Minister not to have accepted the said recommendation of the Ombudsman. Consequently, the petitioner would be entitled to have the benefits of TBPS as was granted to her by order dated 4/12/1989. As a result, the orders dated 16/01/2001 of respondent No. 2 and that of the Hon’ble Chief Minister deserve to be set aside.
7. Rule is made absolute on the above terms with costs in favour of the Petitioner, in the sum of Rs. 5,000/- to be paid by the Respondents.