- (1.) - This appeal, by certificate, is directed against the order dated 30th April, 1973, of the Judicial Commissioner, Goa, Daman and Diu dismissing Special Civil Application No. 43 of 1972 by which appellant sought a mandamus directing the respondents to absorb him in a equivalent to that of Treasurer of a financial institution of the former Portuguese Government in Goa, after its take-over by the Indian Government.
(2.) The appellant was in the service of "Caixa Economica De Goa" as instrumentality of the then Portuguese Government. The petitioner joined the service as "Aspirante" said to correspond to the post of an Upper Division Clerk but he was acting in the higher post of Grade III Officer in the said Caixa Economica. On 30-8-1963 the post of Treasurer in the establishment of Caixa Economica having fallen vacant upon the death of the person who then held that post, appellant was asked to perform the duties of the treasurer on the stipulation that he would draw, besides the monthly salary of his own post as acting Grade III Officer which he then was, an allowance of Rs. 100/- per month. After the liberation of the territories in the Portuguese occupation, a question arose as to the equivalent post to which appellant would be entitled in the corresponding service in India. This was regulated by the Goa, Daman and Diu (Absorbed Employees) Act, 1965 (Act) read with the Goa, Daman and Diu (Absorbed Employees Conditions of Service) Rules, 1965. Having regard to the substantive post of aspirante held by the appellant, his post was not equated to that of the Treasurer but to a post lower in rank in the corresponding service under the Indian Government. Appellant assailed this determination of equivalence, before the learned Judicial Commissioner, who by his order dated 30-4-1973 rejected appellant's claim. In so dismissing the learned Judicial Commissioner held: ".............. Shri Usgaonkar's argument is that all these facts taken together and the order dated 30-8-1963 read as a whole, leave no doubt that the said order was in substance an order appointing the petitioner to hold the post of officiating treasurer. 7. The other important point is that the words "will perform" the duties of Treasurer are not isolated. They get strong support from the words "will draw the monthly salary of his post as acting Third Grade Officer", which occur in para 2 of the order. These words clearly indicate that the order does not purport in any way to promote the petitioner to the post of Treasurer but quite on the contrary specifically provide that he shall remain in his post of Third Grade Officer. ................................... 10. The post against which an employee was to be absorbed (is) not determined purely by its designation. The designations of posts under the Portuguese regime very often differ from those under the Indian regime and there are many cases in which no designation is found.............. In these circumstances, a correspondence based on designation would not be correct........" The Judicial Commissioner however certified the case fit for appeal.
(3.) Shri Dhruv Mehta, learned counsel for the appellant, formulates three contentions in support of the appeal. The first is that the appellant's appointment on 30-8-1963 as Treasurer was a promotion though an officiating one and that, therefore, the determination of equivalence on the basis of the lower substantive post was illegal besides working serious injustice. The second contention urged with particular emphasis is that whatever might have been the substantive post held by the appellant, having regard to the width and expansive scope of the statutory definition of "Absorbed employee" in the Act even an arrangement of the kind under which the appellant was asked to perform the duties of the post of "Treasurer" would fall within it and appellant would be entitled to a higher equation. It was accordingly urged that the post of the 'Treasurer' would, in relation to the appellant, become the "Absorbed post" and appellant an "Absorbed employee" in relation thereto. The third contention is that, at all events, appellant having been allowed to function in the higher post for seven years, it would be wholly arbitrary to reduce him to a lower post.;