26 May 2020


High Court of Bombay

Laxmikant D. Kolvekar Vs. The State of Goa and Ors.




Once there is inherent power in Government to grant extension of services, subject to certain limitations in public interest, there cannot be absolute fetter on such power

Controversy in present petition pertains to the post of Chief Electrical Engineer in the Electricity Department of Government of Goa. The Petitioner and Respondent No. 3- are the only two Superintending Engineers in the feeder post for the promotion to the Chief Electrical Engineer. Both of them do not have the requisite experience and are not qualified to be promoted. The Petitioner was appointed on officiating basis to the post of the Chief Electrical Engineer. Thereafter, Respondent No. 3 was appointed on the officiating basis. The Petitioner has challenged this action of the State Government. During the pendency of the present Petition, the Respondent No. 3 superannuated, he was given extensions and the charge of the post of Chief Electrical Engineer was continued. By amending the Petition, the Petitioner has also challenged the orders of extensions.

The principle that one ad hoc appointee in public service should not be replaced by another ad hoc appointee, cannot be straight away applied to all situations in public service, even to include an officiating charge to a higher post, without reference to facts. Generally, need to appoint a person on officiating basis arises due to administrative exigencies. Administrative exigencies can arise in myriad forms and an application of an inflexible principle, such as the one propounded, will be entirely inappropriate. The principle that generally one person on ad hoc basis should not be replaced by another is evolved to check arbitrariness on the part of the State. It will have to be seen in the facts of the present case whether any arbitrariness exists.

The post of the head of a Department entrusted with distribution of electricity in the entire State, is a not a trivial post and requires high dedication. If the State, the Appointing Authority, comes to the opinion that the work of the Petitioner on that particular post on officiating basis was not satisfactory, it is not possible to sit in appeal over the said decision. The post is not a one where the incumbent would expect memos and warnings pointing out lapses in discharge of duties. The expectations and responsibilities for the work of the Chief Electrical Engineer are important and often subjective, the quality of work to be decided by the appointing authority. On both, as far as right of the Petitioner and challenge to the impugned order in his individual capacity, there is no merit in the challenge to the order of 1 June 2017.

The Petitioner can lay no claim to the post of Chief Electrical Engineer, having not qualified to hold the said post. He was given the officiating charge and the later as ad hoc Additional Chief Engineer. The Petition, which the Petitioner has initiated in his own private cause, cannot be converted into a public interest litigation. It is settled that public interest litigations in the matters of service law are generally not to be entertained.

Once there is inherent power in the Government to grant extension of services, subject to certain limitations in public interest, there cannot be absolute fetter on such power as, otherwise, it would prevent the functioning of the State and the State would not be able to overcome the difficult situations faced by the administration, such as the present one where there is no qualified person to man the post. The Petitioner is not entitled to the reliefs prayed for. The petition is dismissed.

Tags : Feeder post Promotion Grant

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