THE STATE OF GOA AND ANR. ETC. ETC.versusSMT. YVETTE PEREIRA A.E. COSTA ETC. ETC.

A               THE STATE OF GOA AND ANR. ETC. ETC.
                                v.
              SMT. YVETTE PEREIRA A.E. COSTA ETC. ETC.

                                 APRIL 12, 1996

B              [K. RAMASWAMY AND G.B. PATTANAIK, .J.T.]

          Se1vice Law :

         Goa, Daman and Diu (Absorbed Employees) Act, 1965/Goa Daman
    and Diu Administration Act, 1962/Goa, Daman and Diu (Absorbed
c   employees) Rules, 1965 :

          S2(a)/s. 5/Rules 2(c), 2(e), 4,7,15-Employee appointed in 1963 under
    Union Tenito1y of Goa, Daman and Diu--Claim for pay scales as admissible
    to 'absorbed employee'-Held, a pmon eligible for benefit of S.5 of ad-
D   ministration act must be an employee existing as on December 20, 1961 on
    the post held under Po1tuguese Administration-In the instant case claimants
    are not eligible to pay of the posts prescribed in the decree granted by the
    Po1tuguese Adniinistration.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7566 of
E   1996 Etc. Etc.

         From the Judgment and Order dated 18.1.95 of the Bombay High
    Court in W.P. No. 474 of 1994.

          Dhruv Mehta, S.K. Mehta, Fazlin Anam, Aman Vachher for the
F Appellants.
          Kailash Vasdev for the Respondents.

          The following Order of the Court was delivered :

G         Delay condoned.

          Leave granted. We have heard learned counsel on both sides.

          N~at question of law raised by Mr. Dhruv Mehta, learned counsel
    for the appellant is whether respondents are absorbed employees within
H   the meaning of Section 2( a) of the Goa, Daman and Diu (Absorbed
                                      298
                   STATE v. YVETTE PEREIRAAE. COSTA                         299

    Employees) Act, 1965 (for short, the 'Act'). The admitted position is that A
    Goa, Daman and din which hitherto under the hold of Portuguese, was
    liberated on December 20, 1961 and integrated as part of Indian territory.
    The posts in the judicial Department were created by a Portuguese decree.
    All the respondents came to be appointed on or after De~ember 20, 1961,
    sometime in the year 1963. The Commissioner (Finance) of Goa, Daman B
    & Diu Administration had issued a circular on September 15, 1962
    prescribing pay-scales to various posts. For the posts in the Judicial
    Department held by the respondents, the pay-scale was Rs. 335-525. Their
    representation lo the Government for fixation of pay-scales prescribed for
    the posts created by the Portuguese Administration, was considered and
    an order came to be passed on September 20, 1989 under which they are C
    made entitled to the pay-scales initially prescribed to the posts under
    Portuguese decree. But, subsequently, the Government, having realised the
    mistake had cancelled the same by proceedings dated December 27, 1990.
    That order came to be challenged in the High Court which has held that
    by operation of Section 5 of the Goa, Daman & Diu Administration Act, D
    the respondents came to be continued on the posts created prior to
    December 20, 1961 and, therefore, they were entitled to the pay--<;cales
    prescribed for those posts. The said order of the High Court was made in
•   Writ Petition No. 77 of 1991, dated August 30, 1993 and followed in other
    cases which are the subject-matter of these appeals.
                                                                                   E
          The Act defines 'absorbed employees' in Section 2( a) thus :

            "2(a). 'absorbed employee's means a person who immediately
            before the 20th day of December, 1961, was holding an absorbed
            post and who on and after that date either served or has been
            serving in that or any other post in connection with the administra-   F
            tion of the Union Territory of Goa, Daman & Diu or in any of the
            Departments of the Centrt1l Government. 11

         "Absorbed post" defined nnder section 2(b) means a civil service or
    post which existed under the former Portuguese Administration in Goa, G
    Daman & Diu immediately before the 20th day of December, 1961.

          Admittedly, after the appointed day, rules have been made on
    December 27, 1965 under which Rule 2(c) defines 'appointed day' to be
    the 1st day of February 1966. Under rule 2(e), "existing pay" means the pay
    admissible to an absorbed employee immediately before the appointed day H
    300                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A by way of basic pay and shall include complementary pay and the charge
    allowance !,,>ranted under Rule 15. "Absorbed Employees" as again defined,
    means an absorbed employee as defined in Clause (a) of Section 2 of the
    Act and who on the appointed day is serving either in connection with the
    administration of the Union Territory or in any department of the Central
    Government. The explanation amplifies as to who are intended to be
B
    absorbed employees. Rule 3 prescribes revision of rates of pay of absorbed
    posts thus :

            "As from the appointed day, every absorbed post shall be brought
            on such revised scale of pay as the Central Government or the
c           Administrator with the prior approval of the Central Government,
            may by order determine."

         Rule 4 deals with the forntion of pay in the revised pay-scale with
    which we are not concerned in this case.

           Thus a reading of these relevant provisions would clearly indicate
D
    that a person eligible for the benefit of Section 5 of the Administration Act
    must be an employee existing as on December 20, 1961 on the post held
    under the Portuguese Administration and was continuing as on the ap-
    pointed day under the rules. Such persons are eligible to the benefit of
    Rule 7 of the Rules. Admittedly, the respondents came to be appointed
E   after the Administrator had issued the circular for the fixation of the scale
    of pay referred to hereinbefore. Under those circumstances, they are not
    eligible to the pay of the post prescribed in the decree granted by the
    Portuguese Administration.

         The appeals are accordingly allowed. However, the amounts paid
F   under the erroneous orders issued by tbe Government may not be
    recovered from the respondents. This order would be worked out for the
    purpose of fixation of their pension. No costs.

    R.P.                                                       Appeals allowed.




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