Dr. Dilli Ram Dahal v. State of Sikkim & Ors.

Judgment

#1. Whether Respondent No.1 can cancel the offer of appointment made to Petitioner No.1 and Petitioner No.2, on grounds of lack of Notification of vacancies, considering that the offer made was in pursuance to a policy decision of the Government, to regularise their services and whether this Court can exercise judicial review in the realm of policy, are the two questions requiring determination in this petition.

#2. The State-Respondent No.1 issued Memoranda offering appointment to the Petitioners No.1 and 2 in a temporary capacity, in the posts of Assistant Professors, on 05-12-2018. Both WP(C) No.35 of 2019 2 Dr. Dilli Ram Dahal and Another vs. State of Sikkim and Others Petitioners had been working on ad hoc in the same posts since 2016 and 2014 respectively. The offer of appointment is said to be the fructification of a policy decision of the Government, to regularise the services of seventeen Assistant Professors, who had put in less than five years of ad hoc services, in different Government Colleges, which included the Petitioners. On 17-12- 2018 the offer of appointment was revoked by the Respondent No.1, with the reasoning that, the new posts had not been notified. (i) Petitioner No.1 who belongs to the OBC category (State List), was appointed as Assistant Professor in Eastern Himalayan Studies, on ad hoc on 18-07-2016 and was posted in the Sikkim Government College, Rhenock. Petitioner No.2 who belongs to the OBC category (Central List), was appointed as Assistant Professor, Tourism, at the Sikkim Government College, Gyalshing on 14-07- 2014, also on ad hoc. (ii) The Petitioners‟ case is that, on 13-10-2017, the Respondent No.2 published an advertisement in local Newspapers and uploaded it on its website, inviting applications from eligible local candidates, for filling up one hundred posts of Assistant Professors, through direct recruitment, in different Government Colleges, under the Human Resource Development Department, in the Pay Band 3 of Rs.15600-39100, with Grade Pay of Rs.6,000/- per month. The advertisement specified that no applications for review or RTI/correspondence would be entertained by Respondent No.2 until completion of the recruitment process. Both Petitioners having applied for the posts were required to appear in the Class Room demonstrations, on 09-02-2018 for Geography with viva- voce held on 25-04-2018 and on 10-02-2018 for Tourism, with WP(C) No.35 of 2019 3 Dr. Dilli Ram Dahal and Another vs. State of Sikkim and Others viva-voce held on 26-04-2018 (collectively referred to as “interview” hereinafter). Both Petitioners were not selected. Nineteen other candidates who appeared in the same interview and were also unsuccessful like the Petitioners, were however appointed as Assistant Professors on 03-08-2018, in order to regularise their ad hoc services of more than five years as on 11- 05-2018, allegedly based on a policy decision of the Government.

#3. Learned Senior Counsel for the Petitioners while reiterating the facts as delineated above, contended that the Petitioners having appeared in the same selection process as the nineteen candidates, requested the Government for similar treatment. That, pursuant thereto, vide Cabinet Memorandum bearing Memo No.71/ACS/HRDD, dated 24-11-2018, as per a policy decision of the Government, a proposal was put forth before the Cabinet for regularisation of the ad hoc services of seventeen Assistant Professors, to accommodate those who had put in even less than five years of ad hoc services, in different Government Colleges, which included the Petitioners. Eight new posts of Assistant Professors were also proposed to be created. The proposal was said to be concurred by the Finance, Revenue and Expenditure Department, with due relaxation of Roster Points. The Cabinet approved the proposals. On 05-12-2018, seventeen ad hoc Assistant Professors, including the Petitioners, were issued Memoranda offering appointment. However, on 17-12-2018, vide Office Order bearing No.453/DIR(HE)HRDD, the appointments were cancelled on the plea of being infructuous as the new posts had allegedly not been notified. Contrarily in the Counter-Affidavit, the State averred that the Petitioners had not completed five years of WP(C) No.35 of 2019 4 Dr. Dilli Ram Dahal and Another vs. State of Sikkim and Others service and there was a lack of sanctioned posts. It is the stand of the Petitioners that the State-Respondents No.1 and 3 (hereinafter, State-Respondents) cannot now take the plea of lack of Notification, to deny reliefs to the Petitioners after the policy decision and Cabinet approval. That, in fact the regularisation of the services of the other nineteen Assistant Professors was only upon the approval of the Hon‟ble Chief Minister of Sikkim, sans Notification of vacancies, whereas the matter concerning the Petitioners bore the stamp of approval of the Cabinet. Despite these circumstances their appointments were cancelled, without affording them an opportunity of being heard, clearly violating the principles of natural justice. Besides, appointments based on a policy decision which did not prescribe a selection procedure, cannot be cancelled by an Additional Chief Secretary of the Respondent No.1 Department. (i) That, out of the one hundred posts advertised, appointments were made against seventy-seven vacancies, leaving twenty-three clear vacancies, with an additional existing thirty vacancies, as reflected in Annexure P-43, the Department Note Sheet. That, the Petitioners could easily have been accommodated in these vacancies and their services regularised. That, State of Rajasthan and Others vs. Daya Lal and Others1 relied on by the State- Respondents is inapplicable to the present circumstances, the Learned Single Judge therein having directed the Government to frame a „scheme‟ for regularisation which is not so in the instant matter. Hence, the prayers in the petition which are being pressed, be allowed, viz., 1 (2011) 2 SCC 429 WP(C) No.35 of 2019 5 Dr. Dilli Ram Dahal and Another vs. State of Sikkim and Others “……………………………………………………………………….

(iv) A writ or order or direction or declaration that memorandum dated 5/12/18 (Annexure-P38) appointing the petitioner no.1 but cancelled later on vide Annexure-P41; be revived and confirmed as Assistant Professor (Geography) duly quashing Annexure-P41 petitioner no.1 which has illegally cancelled appointment memorandum no.432/DIR(HE)/HRDD dated 5/12/2018. petitioner relating no.1 (v) A writ or order or direction or declaration that memorandum no.433/DIR(HE)/HRDD dated 5/12/2018 issued to petitioner no.2 appointing him as Assistant Professor (Tourism) stand revived and confirmed as Assistant Professor (Tourism) duly quashing and cancelling Office Order dated 17/12/2018 (Annexure-P41) so far as the petitioner no.2 is concerned; (vi) A writ or order or direction or declaration that the employment of the petitioner nos.1 and 2 as Assistant Professor (Geography/EHS) and Assistant Professor (Tourism) on Adhoc basis stand regularized in the regular establishment with all benefits of employment including seniority in service; …………………………………………….” [emphasis supplied] It was submitted that the other prayers enumerated in the petition are not being pursued.

#4. Per contra, Learned Additional Advocate General contended that it is a settled principle of service jurisprudence that the mode of recruitment is to be as per the statutory rules, accordingly, seventy-seven candidates were selected on merit and as per roster points against the one hundred advertised vacancies, in terms of the Sikkim Government College Lecturers Recruitment Rules, 1992 (SGCLR Rules, 1992). That, of the two posts for Assistant Professors in Geography, one post was reserved for OBC (State List) and the second post for Scheduled Tribe, both of which were filled by candidates more meritorious than the Petitioner No.1. For Tourism, the post being unreserved, was filled also on merit by a candidate ranking higher than Petitioner No.2. Inviting the attention of this Court to the ratio in State of Uttar Pradesh and WP(C) No.35 of 2019 6 Dr. Dilli Ram Dahal and Another vs. State of Sikkim and Others Another vs. Ram Adhar2 it was contended that special skills are required to teach such subjects and merit would only be the consideration for selection. That, as the Memoranda of appointment, dated 05-12-2018, were issued illegally, sans Notification, they were cancelled. The Department Note Sheet clarified that appointment orders of eight new posts of Assistant Professors were issued without Notification. While referring to Section 36 of the Sikkim Interpretation and General Clauses Act, 1977, it was contended that the provision mandatorily requires publication of Notification. Relying on B. K. Srinivasan and Others vs. State of Karnataka and Others3 it was next urged that the Supreme Court has explained therein the necessity for publication of subordinate legislation in the Gazette. That, in any event, the Memoranda of appointment dated 05-12-2018, specified that the appointment was to be of a purely temporary nature and could be terminated at any time, with 30 days‟ notice on either side. The termination of service could be effected immediately or before the expiry of the stipulated period of notice, by paying the appointee a sum equivalent to the pay band, academic grade pay and allowances, for the period of notice or the unexpired portion thereof. (i) That, the prayer of the Petitioners for regularisation are illegal as the services of the nineteen ad hoc Assistant Professors were in fact not regularised, but appointments were made, as they had appeared for the interview, conducted by the Respondent No.2, SPSC. That, no joining reports were submitted by the Petitioners pursuant to the offer of appointment and prior to its