Bijay Kumar Pradhan v. State of Sikkim & Ors.

Judgment

#1. The Petitioners were ranked above the private Respondents No.3 to 27 in the provisional inter se seniority list, of Junior Engineers (Civil) [hereinafter, “JE(C)”], dated 30-08-2010. Without confirming, altering or finalising the list, the private Respondents No.3 to 27, who were appointed as JE(C) much later than the Petitioners, were designated as “Acting Assistant Engineers” on 14-10-2011 and thereafter their services regularised as Assistant Engineers (Civil), [hereinafter, “AE(C)”], vide impugned Office Order, dated 21-09-2016. This was followed by WP(C) No.24 of 2020 2 Bijay Kumar Pradhan and Others vs. State of Sikkim and Others the promotion of private Respondents No.3, 4, 6 and 7 as Divisional Engineers (Civil) [hereinafter, “DE(C)”], vide impugned Office Order, dated 20-07-2020, allegedly in clear violation of all Service Rules. Aggrieved by the State action, the Petitioners are invoking the Writ Jurisdiction of this Court. (i) The Petitioners press prayers (a), (b) and (c)(i) of their Writ Petition, viz; “issue Rule calling upon the Respondents to show cause as to why a writ of mandamus/certiorari and appropriate writ/order or direction may not be issued commanding and directing the Respondents No.1 and 2; [a] to show cause as to why the Office Orders dated 21-09- 2016 and 20-07-2020 should not be quashed/set aside and on perusal of the cause shown, if any, to make the Rule absolute; [b] to place the Petitioners above Respondents No.3 to 27 in the final inter-se-seniority and thereafter promote some of the Petitioners in place of Respondents No.3 to 7; ………………….…………………………………………………………….. (c)(i) to quash and cancel Notification No.06/GEN/DOP, dated 11/4/2015 (Annexure-P15/Annexure R1/1), whereby the method of recruitment has been relaxed for regularization of the services of the Respondents No.3 to 27. ………………………………………………………………………………………” (ii) Affidavits were exchanged between the parties with all Respondents denying the allegations of the Petitioners (Respondents No.5 and 19 have since passed during the pendency of this petition).

#2. The Petitioners‟ narrative is briefly traversed below. The twenty Petitioners are Diploma holders in Engineering and were appointed as JE(C), between the years 1993 and 1995, on regular basis in various departments of the Government of Sikkim. The Respondents No.3 to 27 are Civil Engineering Graduates WP(C) No.24 of 2020 3 Bijay Kumar Pradhan and Others vs. State of Sikkim and Others (Degree holders), and were initially appointed as JE(C), on various between February, 2002 and November, 2006. Consequently, in the provisional inter se seniority list of JEs, dated 30-08-2010, maintained by the Respondent No.2, they were placed above the private Respondents in the seniority ranking. The list

remained unconfirmed. The Junior Engineer (Civil) Recruitment Rules, 1993, under which the Petitioners and private Respondents were recruited does not differentiate between the appointment and promotions of Diploma holder Engineers and Engineering Graduates, except to the extent of granting three advance increments at the lowest rate, to the Engineering Graduates, on their appointment as JE. That, Promotions are governed by the Sikkim State Engineering (Civil, Electrical & Mechanical) Services Rules, 1989 (hereinafter, “Engineering Service Rules, 1989”), where a JE, on ten years of service is eligible for promotion to the post of AE. Rule 17(3) therein provides that the Government shall, every year, under Rule 7(1)(b),i.e., for promotion from JE to AE, prepare a list of names of persons in order of seniority, who have on the first day of that year, completed not less than ten years of continuous service, in the post of JE or equivalent. As the Government failed to comply with the Rules and prepare the yearly seniority list, it worked to the disadvantage of the Petitioners, i.e., firstly, they could not be directly recruited as AEs as provided in Rule 7(1)(a), secondly, in the absence of the list, they could not avail the benefits of promotion, thereby depriving them of promotions from 2003/2005 through 2016. On the other hand, the private Respondents, as Degree holders were eligible for promotion in terms of the Rules (supra), only from 2012-2016, depending on WP(C) No.24 of 2020 4 Bijay Kumar Pradhan and Others vs. State of Sikkim and Others the year of their appointments, however before completion of the requisite period, the State-Respondents, vide an Office Order dated 14-10-2011, designated the private Respondents as “Acting AE(C)”, with an additional monthly allowance of ₹ 5,000/- (Rupees five thousand) only, sans Rules, with the caveat that their appointment on regular basis to the post of AE would be through the Sikkim Public Service Commission (SPSC) as per the Engineering Service Rules of 1989. (i) On 07-09-2012, the Respondents No.1 and 2 advertised 33 vacancies of AE(C), requiring the applicants to appear for an examination and viva-voce. The private Respondents filed a representation dated 14-09-2012, before the Hon‟ble Chief Minister, seeking regularisation of their services from “Acting AEs” to AEs, pleading their inability to prepare for the examination of the advertised vacancies due to work obligations. Consequently, the advertisement was kept in abeyance and the services of the private Respondents were regularised by invoking Rule 30, the relaxation clause, of the Engineering Service Rules, 1989, vide Notification dated 11-04-2015, specifying twenty-five posts for regularisation, to accommodate the private Respondents. (ii) Following the appointment of the private Respondents as AE in 2015, the Respondents No.1 and 2 on 10-08-2019, put up the inter se seniority list of Civil Engineers, in which the private Respondents were ranked above the Petitioners in seniority. The Petitioners voiced their grievance regarding the inter se seniority by a representation, dated 10-09-2019, before the Hon‟ble Chief Minister, which went unaddressed, instead, without finalising the said list, vide Office Order dated 20-07-2020, the private WP(C) No.24 of 2020 5 Bijay Kumar Pradhan and Others vs. State of Sikkim and Others Respondents No.3, 4, 6 and 7 were promoted as DEs. Hence, the Writ Petition, with the prayers as extracted hereinabove.

#3. The Respondents in their respective Returns denied the allegations.

#4. Learned Senior Counsel for the Petitioners advancing his arguments alleged that the State-Respondents exhibited a preference for the Engineering Graduates by promoting them as “Acting AEs” on 14-10-2011, without the recommendation of Respondent No.2A, which is illegal and not merely irregular. As the Service Rules make no provision for the post of “Acting AE”, the private Respondents ceased to be governed by the Engineering Service Rules, 1989. That, when the Respondents No.1 and 2 on 07-09-2012 advertised 33 (thirty three) vacancies of AE(C), the private Respondents, successfully circumvented the requirement of taking the examination by obtaining regularisation of their services. That, orders of regularisation can be only issued for irregular appointments, and not illegal appointments as that of the private Respondents. That, although 33 (thirty three) vacancies of AE(C) were initially advertised, the Notification for relaxation of the Rules specified only twenty five posts, to enable accommodation of the private Respondents, making out a case of fraud. Reliance was placed on Ajit Kumar Bhuyan and Others vs. Debajit Das and Others1 to buttress this submission. (i) Learned Senior Counsel further contended that the private Respondents could not be categorized as a class. That, Rule 30 (supra), when invoked requires the Government to record the expediency for such relaxation, which was not complied with in 1 (2019) 12 SCC 275 WP(C) No.24 of 2020 6 Bijay Kumar Pradhan and Others vs. State of Sikkim and Others the instant case but compassionate employment was resorted to by the State-Respondents. That, the relaxation provision cannot be used to render the rules non est. On this aspect, strength was drawn from State of Orissa and Others vs. Sukanti Mohapatra and Others2. That, in Suraj Parkash Gupta and Others vs. State of J&K and Others3 the Supreme Court observed that Rules cannot be made a hardship. (ii) Relying on G. P. Doval and Others vs. Chief Secretary, Govt. of U.P. and Others4 it was urged that the Supreme Court in the said matter did not consider the objection of the Respondents pertaining to delay, laches and acquiescence, as the State- Respondents had not finalised the seniority list, which worked to the disadvantage of the Petitioners. That, similarly the provisional list herein was not confirmed, while the fresh seniority list of 2019 was prejudicial to the Petitioners. That, in R. S. Garg vs. State of U.P. and Others5 the Supreme Court has held that an appointment made without the recommendation of the State Public Service Commission would be void ab initio and incapable of relaxation. Reliance was also placed on Secretary, State of Karnataka and Others vs. Umadevi (3) and Others6 to canvass that regularisation could be made by the State Government as a onetime measure, to regularise the services of irregularly appointed personnel, in sanctioned posts, but not as a licence to relax the Rules at every opportunity to benefit a chosen few. Hence, the prayers of the Petitioners be allowed.