Tshering Samdup Bhutia & Ors. v. State of Sikkim, through The Chief Secretary, Government of Sik

Judgment

:

23.06.2022 & 27.06.2022. 05.07.2022 J U D G M E N T Bhaskar Raj Pradhan, J.

#1. The present writ petition has been filed by four petitioners. All of them were aspiring to join the Sikkim State Sub-ordinate Fisheries Service as Fisheries Block Officer.

#2. On 01.05.2008 the Government of Sikkim framed and notified the Sikkim State Subordinate Fisheries Service Rules, 2008 (Fisheries Rules, 2008). It came into force on W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors. 3

03.05.2008 on which date the Fisheries Rules, 2008 was published in the official gazette.

#3. The controversy in the present case relates to the eligibility condition for the Fisheries Block Officer. In the Fisheries Rules, 2008 the eligibility condition provided that, insofar as the age is concerned, the incumbent should have been of the age between 18 years to 30 years. However, for Scheduled Caste (SC) and Scheduled Tribe (ST) candidates their age was relaxable by five years. In case of most backward classes (MBC) and Other Backward Classes (OBC) candidates the age was relaxable by 3 years. The petitioner nos. 1 and 2 were ST candidates and petitioner nos. 3 and 4 were OBC candidates.

#4. On 22.07.2019 the Sikkim State Subordinate Fisheries Service (Amendment) Rules, 2019 (the Amendment Rules, 2019) was notified for the post of Fisheries Block Officer. The amended schedule which substituted the previous schedule of the Fisheries Rules, 2008 specified that the candidates should have attained the age of 21 years and should not have exceeded 30 years for all communities. What in effect this amendment did was to do away with the age relaxation given to the ST, SC, MBC and OBC candidates by the Fisheries Rules, 2008. W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors. 4

#5. On 26.08.2021 the Sikkim Public Service Commission (SPSC) issued an advertisement for filling up 11 posts of Fisheries Block Officer. In the advertisement it was specified that the candidate should have attained the age of 21 years but should not have exceeded 30 years as on

31.07.2021.

#6. It is the petitioner’s case that the petitioners made representations to the State Government against this advertisement. The petitioners have not representations. The petitioners however, annexed certain departmental note sheets in the writ petition which does reflects that such representations had been made by the petitioners. The note sheet dated 01.09.2021 annexed as annexure P-12 to the writ petition indicate that their representation were made prior to 01.09.2021. It transpires that on 03.09.2021 pursuant to the representation made the SPSC kept the process of recruitment in abeyance on instruction from the State Government. However, on

14.12.2021 the SPSC issued a notice stating that the recruitment process shall be resumed with immediate effect.

#7. On 25.12.2021 the petitioner no.2, on 27.12.2021 the petitioner no.4, on 30.12.2021 the petitioner no.3 and on

31.12.2021 the petitioner no.1, all applied online for the W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors. 5 post of Fisheries Block Officer, as 31.12.2021 was the last date of submissions of the applications. On the same date the petitioners preferred the present writ petition before this court. Admittedly, they did not mention the fact that they had also applied for the post of Fisheries Block Officer in the writ petition. This fact was however, subsequently placed by the petitioner through I.A. No.2 of 2022 filed on

28.01.2022.

#8. On 12.01.2022 the SPSC published the rejected list of 96 candidates in which the petitioners featured at serial numbers 5, 10, 74 and 94. According to the rejection list the petitioners were rejected as they were overage. Besides the petitioners there were also other candidates who were also rejected being overage. As the notice dated 14.12.2021 had specified that the rejected candidates could submit their grievances with justifications to the office of the Controller of Examination, SPSC with effect

17.01.2022 to 21.01.2022, the petitioners on 20.01.2022,

19.01.2022,

19.01.2022

21.01.2022 representations against the rejection of their candidature. In all their representations the petitioners candidly admitted that they were all over aged. The petitioners however, also informed that they had the necessarily educational qualification which is not in issue. On W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors. 6 consideration of the representations the SPSC re-published the rejection list on 28.01.2022 which reflects that the representations of the petitioners were not favorably considered.

The learned counsel for the petitioners submitted that the impugned Amendment Rules, 2019 insofar as it sought to do away with the age relaxation to ST, SC and OBC are concerned is in violation of Article 14, 16 and 335 of the Constitution of India. To buttress the argument, the learned counsel referred to the judgment of the Supreme Court in State of M.P. vs. Mahalaxmi Fabric Mills Ltd.1 in which it referred to its earlier decision in Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Union of India2 in which a Bench of three Judges Bench held: legislation “A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not the sense of not being reasonable but in the sense that it is manifestly arbitrary.”