Prakash Chettri v. The State of Sikkim & Ors.

#10. Mr. 8.1{. Rai, f`s5istant Engineer, R. d 8 (Sub-I)ivigio.i-IV), Gangtok, East §ikkim.

#11. Mr. K. t<. Sharma, A55i5tant Engineer (Planning), Building a Housing I)apartment, Jorethang, South §ikkim. 1Z. Mr. G. P. §hre5tha, Assistant Engineer (Planning}, Building & Housing department, Jorethang, South §ikkim. ®

#13. Mr. M. R. Gurung, Assistant Engineer, Irrigation Department, Gangtok, East §ikkim.

#14. Mr. R. t{. Pradhan, As5i5tant Engineer, Irrigation Depart, meiit, Gyalshing, West §ikkim.

#15. Mr.1<. I(. Pradhan, A5sistant Engineer, Building a Housing I)epartment, Namchi, South §ikkim.

#16. Mr. Damber Chettri, Assistant Engineer (Planning), Building a Housing I}epartment, Gangtok, East §ikkim.

#17. Mr. P. N. Pradhan, As5i5tant Engineer, R.I).D. Kaluk Sub-Division, West Sil<kim. 0

#18. Mr. P.1{. Bt-Iujel, A5si5tant Engineer, R&8' Ravangla, South Sikkim.

#19. Mr. Ilijriitlr.I Pr.+`5.lil, Assistant Engineer, Health Department, Gangtok, East Sikkim. `,T+`+ri ,.

#20. Mr. M. M. Rai, Assistant Engineer {Project), East District Zlla Panchayat, Gangtok, East §ikkim.

#21. Mr. M. R. Marwah, Assistant Engineer (Project), P . H . E . I)e pa r tmen t , Gangtok, East Sil<kim.

#22. Mr. T. P. Karki, A55istant Engineer (Land Use), Forest I}epartment, Gangtok, East §il<I<im.

#23. Mr. M. Ravindran, As5tstant Eligineer, R.I).D. Gangtok Sub-I)ivi5ion, Gangtok, East §ikl<im .... Re5pondent5.

#2. E|±± Petition jJ2+ ±!gJQ p± gQee Devi Pra5ad Gurung Versus State of Sikkim and Others Peti tion No.1 EEE] EEEE Chetraj Mishra Versus / \ 3. qu ... Petitioner ... Respondents -.. Petitioner State of §ikkim and Others ... Respondents.

#4. EE£| Petition J£± ±!gJg g± gQQQ Gozin Lachenpa Versus State of §ikkim a Others

5.EL Peti tion i£`| -N-il3- p± £QLO_Q l{ewal Prasad §harma Versus State of §ikkim a Others -.. Petitioner ... Rpr`pondents. •.. Petitioner ... Respondents. a

#6. Hm Petition Lakpa Sherpa Versus I.' Petitioner State of §ikkim a Others ... Re5pondent5.

#7. !±±±± f'etitio.r`. JJ2| l\Io.15 gf gQQ9 Praveen l{umar Pradhan ®, Petitioner Versus State of §ikkim a Others ... Respondents.

#8. !!j:j± Petition JJ2| No.16 Q± EQQQ Lendup Dorjee Lamiha ..-Petitioner Versus State of §il<kim a Others ... Respondents.

#9. !!±j± Petition {C)Nor JZ Q± ZQQQ Dorjee Dadul Versus . Petitioner State of §ikkim a Others ... Respondents. 1o. !!±=|£ Petitipn JJ2| No.18 g± 2QQQ Asha Gurung Versus I.. Petitioner State of §ikkim a Others ... Respondents.

#11. Writ Petition (C} No. 19 of 2000 C.1{. Das Versus •.. Petitioner §t,ate of Sikkim a Others ... Respondents. q`ct,> .-

#12. !±L±±± Eeti_t_iLj!p Jj2l !!g±Q g± gQQQ

#0. P. Sharma Versus .-. Petitioner State of Sikkim a Others ... Respondent,5. I)i.te I.i Declsit\r. 5 16th August, 2000. Co r aTh = The Hon.ble Mr. Justice Ripusudan Dayal, Chief Justice . The Hon.ble Mr. Justice Anup Deb, Judge. Present : Mr. Bhaskar Raj Pradhan, Advocate for the pe t i t i one r - Mr. S. P. Wangdi, Advocate General with Mr. I<arma Thinlay, Assistant Government Advocate for re5Fiondent Nos. 1 and 2. Mr. t<. T.Bhutia, Advocate for the rogpoi`dei`t Nos.3 t,o 8, 10 t,o 21 and 23. P±J!tl g± Jut)GMENT All these writ petitions t:oncern the fixation of seniority between the direct recruits and the promotee5 holding the posts of Assistant Engineers (Civil) in the Sikkim State Engineering Service constituted under the §ikkim State Engineering (Civil, Electrical a Met:hanical) Services Rules, 1989 (hereiT`after referred as the F!ule5) and are disposed of by this Judgment. Petitioners are the direct recruit-. rllt.I rr.r.|`.Hi.lpiitr. :i to 2:.} clrp I.Iip proiiiotee5.

#2. Rule 7 of t,he Rules provides for the method of recruit- ment and reads as uTider = --I, i ''7. H_ethod gi Recruitment.- (1) Subject to rule 6, recruitment to the Service after the -T`.i^`^ appointed day, shall be by the following methods, namely :- (a) By direct recruitment through a competitive examination and/or Select.ion by ii`terview t,o be held by the Commi55ion. {b) By promotion through limited departmental Competitive Examination to be held by Commission f ron among persons holding the post of Junior Engineer or any other post or posts declared equivalent thereto by the Government. {2) The proportion of vacancies to be filled in any year in accordance with clauses (a) and (b) of sub-rule 15hall be 66 2/3 : 331/3 respectively 5ubje[t to review as the Gov- ernment may deem f it = Provided that the number of persons recruited under clause (b) of Sub-rule 1 shall not at any time exceed 331/3 per cent of the total strength of the Service." Rule 30 relates to the power of relaxation by the Government and F.rovides that where "the Government is of the opinion that it i5 necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persoT`s or post". In e}:ercise of the power conferred by Rule 30, the State Government issued Notif ica- 0 tion No.20/GEN/EST dated 25-6-1990, in order to remove stagnation in promotion of Junior Engineers, to relax the provisions of sub-rule (2) of Rule 7 of the rules and decid- ed tl`al t,lio [`roiiijrtioii (}r t,lir? v,|t_,-`iicies t,o lie filled ln a[cordan[e with Clauses (a) and (b) of sub-rule (I) of Rule 7 in the year .1990-9.1 shall be as follows :- •'(a) in respect, of the post of A5sistant Engineer (Civil) 371/2 = 621/2, re5pe[tively ; rf4dJr-

#3. An advertisement dated5.Z!.199-I was issued I]y tlie Government inviting applicatiDn5 from the Junior Engineers to appear before the Selection Board to appear in an inter- view for preparation of panel of Tiames of Junior Engineers {Civil) to the post of Assistant Engineers (Civil) in the Sikkim State Engineering (Civil) Service on 21st, 22nd and 23rd March, 1991. Af per the minutes of the meeting of the Selection Board lield on loth, llth and 12th April, 1991 (vide Annexure R3), 25 Junior Engineers were 5ele[ted ftir promotion to the posts of A55istant Engineers. It is not disputed that all these 25 perst)ns were [Iromoted with effect from 12th July, 1991. It ic; also not disputed before LJ5 that -15 direct re[ruit5 were appointed on different dates in December, -1990 and January, 1991. A provisional seniori- ty list was prepared in the year 1997 which i5 Anne}{ure D to the writ petition. In that seniority list, -13 direct rE- cruits were placed at Serial nurribers 26 to 38 and all tlie promotees were placed below them, except for §unil PradhaTi, Who was also a diret:t rE[rl[it JJut who was wrongly plated much below the promotees at rjerial number 70. §unil Pradhan filed writ petition bearing No.460 of 1998 (§unil Pradhan versus State of §ikkim). By judgment dated dth May, 1999, §unil Pradhan was held entitled to be placed in the Seniority list in accordance witt` ITierit, he se[iired at the time of his 5ele[tion by the Sikkim Publi[ Service Commis- sion and accordingly a direction was i5supd to do " within oTie month. Thereafter, aTiother provisional seniority list ;yflxr -- R. • =i`R.-- ®+ was prepared in the year .1999 to give ef fe[t to the decision of the Court in the aforesaid writ petition No.460 of 1998. But while doing 5o, almost the entire seniority list pro- pared ln ttie year "t» was changed in such manner that first three direct promotees were plat:ed in the Seniority list al}i]ve the direct recruits and thereafter, two i]Iromotee5 were placed. Ft]r example, at Serial numbers 27, E8 and 29 promotee5 were placed and thereafter, at sel-ial numl]er5 30 and 31 direct recruits were placed. It is this Seniority list which has been challenged by all the petitioners before uS,

#4. Mr. Bha5kar Raj Pradhan, learned Counsel appearing on behalf of the petitioner has made three submi55ions before us=- (i) Tlie High Court had while delivering judgment in writ petition No.460 of 1998 (§unil Pradhan versus State of §ikkim} directed ref ixation of the seniority t}nly of §unil Pradhan and there was no justifit:atic)n for the Government to change the entire seniority list; (ii) direct recruits were appointed prior to the appointment of the promotees and they ought to have been placed above the promotees; (iii} even if seniority had to be fixed in accor- dance with the quotas of vacanciEs available for the direct ret:ruit5 and the prcimotees, the direct recruits should have been placed in the seniority list above the promotee5.

#5. As regards the first point, we see no ITierit at all. There is no dispute that the Senior.ity list of lt797 was provisional. When it came to the notice of the GoverniTient that it needed I:hange, it was open to the Government to do `Jyi- -A I+ ._.}hi,- ~,~ - ,+ 5o. The provisional Seniority list did not confer any right on arlyone a5 regards plat:ement in the Seniority list.

#6. A5 regards the 5e[ond point, there is Tro dispute that the direct recruits were appointed prior to the promotee5. But mere length of 5ervi[e is Tiot the only relevant trite- rion for fixation of senioritywhere the appointment is made in accordance with the quotas of tl-Ie vacancies reserved for two categories of persons. It i5 admitted before u5 that relevant rules regarding f ixation of seniority are contained in the §il<kim State Services (Regulation of gen- iority} Rules, -1980 hereinafter referred a5 Seniority Rules. Rule 4(e) tif these Rules states :- "4(e) the relative seniority of direct re[ruit5 and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees and Shall be determined by the dates of their 5ub5tantive appointment to the Service."

#7. It i5 not disputed before u5 tliat all the appi]intment5 both of direct recruits and the prorriotees were substantive appointments. The quotas f ixed by Notification dated 25th L June, 1990 were 371/2 : 62 .I/2 for the direct recruits and the promotees respectively. Appointment process for both tlie 5our[es was Started and coiTlpleted Substantially in the same financial year, that i5, -1990-91. This was so a5 not only the advertisement was issued in that f inancial year, but the interviews were also held in that year. f]s per Rule 2{m} of the Rules ..year" meaTii5 the f iT`an[ial year commencing on the lst day of April and ending on 31st day of March ne}{t 1 ..~,a ®* 1`.. following. Therefore, the seniority was required to be f ixed in accordance with the quotas f ixed as per the Notif i- cation dated 25th June, 1990 and while doing slh only Sub- stantive appointments were to be taken into Consideration. Since all the appointments were substantive, the later part of sub-rule {e) of Rule 4 is of little relevant:e for the instant cases.

#8. As rEgards the third point, it is submitted on behalf of the petitioners that in accordance with the seniority rule, direct recruits should have been plat:Ed above the promotees in proportion to the vacancies reserved for them. He submits that f i>:ation was done wrongly in the seniority list of the year 1999, inasmuch as, promotees were placed above the direct recruits. For examF.1e, at serial numbers 27, 28 and 29 promotees were plat:ed and it was thereafter t,hat t,wo direct recruits were Fila[ed at serial numbers 30 and 31. The learl`ed Counsel Submits that direct recruits should have I.een placed at serial nuITiber5 27 and 28 and pri]motee5 Should have been placed at Serial numbers 29, 30 and 31. We see no merit in this submission. The expression in Rule 4(e) tliat the relative seniority of direct recruits and promot, Ee5 Shall be determined ac[ordilig to the rt)tation I]f vacancies between direct recruits and promotee5, in the al]5eTice of any rule I.roviding whetl`ier direct recruits Should t}e plat:ed al]ove I)r I]elow the promotee5 implies t.hat the direct recruits should be placed above the promotees. To giv- this extent, the seniority list of .1999. requires to be revised aTid reEa5t. In the result, the writ petitions are allowed partially, and it is diret:ted that the provisional seniority list of the members of the §ikkim State (Civil) Engineering Service prepared in the year .19t79 being Annexure-''E" to the writ petition shall be revised and recast so as to place the two direct ret:ruits at serial numbers 27 and 28 and thereaf- ter, three promotees at Serial nuiTlbers Z9, 30 and 31 and to place the other members of the service in that manner. This be done within a month f ram today. There Shall be T`o order as to costs- The judgment be placed on the ret:ord t}+` Writ Petition No.9/2000 and a certified true copy be placed on the ret:ord5 oHheother:r;;±:;i:# Judge 16.08.2000 ) stl-`.:a" ( R- I)ayal ) Chief Justice •16 . 08 . 2000 Atl/ 11