WP(C)/38/2007 of Shraddha Vs State of Sikkim Through the Chief Secretary and Ors on 24 November 2009

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Mr. A.K. Upadhyaya, Senior Advocatewith Mr. Ashim Chhetri and Mr. D.Tewari, Advocates for RespondentNo. 2.

Dcite Of IIearing25.08.2009, 15.09.2009 cnd24.11.2009

24.11.2009

Dcite Of dudgmerit

PRESENT: HON'BLE THE CHIEF JUSTICEMR. dusTICE AF`TAB H. SAIKIAHON'BLE MR. JUSTICE A.P. SUBBA, +UDGE

JruDGMENT AND ORDER loRALl

Satklab C|

Heard Mr. a. Sharma, leaned Senior Counsel assisted by Mr.J.K. Kharka, learned Counsel for the petitioner. Also heard Mr.J.B. Pradhan, learned Additional Advocate General, Sikkim withMr. S.K. Chettri, leaned State Counsel representing officialrespondents as well as Mr. A.K. Upadhyaya, learned SeniorCounsel assisted by Mr. D. Tewari, learned Counsel appearing onbehalf of respondent No. 2/High Court of Sikkim.

2. The two fundalnental questions which ha.ve been agitated inthis writ petition filed by the petitioner under Article 226 of theConstitution of India are as to (i) whether the reasons and groundsput forward by the State Government/respondents in expressing its inability to accept the recommendation of the Full Court of theHigh Court of Sikkim (hereinafter referred to as `High Court) for theappointment of one Judicial Officer under Sikkim LJudicial Service(for short, `SIJS') are correct, reasonable, justified and tenable inlaw; and (ii) whether the concurrence given by the Honble the thenChief Justice of the High Court alone instead of the High Courtwith the views of the State Government/respondents not to acceptthe recommendation of the Full Court of the High Court, ispermissible under the law.

3. In order to resolve the issues raised herein, it would beappropriate to underline the relevant facts of the case in brief asrevealed from a close perusal of the pleadings exchanged by andbetween the parties, being placed on record.

4. The High Court through its Registrar General published anadvertisement on 14.09.2006 in a local English Dally Newspaper"Sikkim Express" inviting applications to fill up one post of CivilJudge-cum-Judicial Magistrate (1st Class) in the cadre of SJS in the(Grade Ill) so as to reach the Office of the Registrar General notlater than 26.09.2006 by 4.00 PM. The advertisement is extractedhereunder:

" EMPLOYMENT NOTICE

Applications are invited to fill up one post of CivilJudge-cum-Judicial Magistrate (1st Class) in the cadreof Sikkim Judicial Service in the (Grade Ill) scale of pay of Rs.9000-250-10750-300-13150-350-14550 fromcandidates who are citizens of India; not more than 35years of age as on 26.09.2006 and a holder of a degreein law granted by a University established by la.w inIndia.

2. Recruitment shall be made on the basis of acompetitive written examination followed up by VivaVoce test, if found suitable for the same, to be held bythe High Court.

3. (i) The written examination shall consist of:- er-I. Procedural Law (a) Code of Civil Procedure, (b) Code of Criminal Procedure,

(c) Indian Evidence Act and

(d) Limitation Act.

er-II. Substantive Law

(a) Hindu Law

(b) Indian Contract Act

(c) Sale of Goods Act

(d) Partnership Act

(e) Specific Relief Act

(I) Transfer of Property Act

(g) General Clauses Act and

(h) Indian Penal Code.

Note: Each paper shall be of two and half hoursduration and shall cqrry 200 marks each.

(ii) Viva-voce: This will carry loo marks.

(A) Only those candidates shall be called for Viva-vocewho shall obtain the highest marks in aggregate of boththe papers in the written examination upto the extent offive times of the number of posts as specified in theadvertisement inviting applications.

(8) Selection of candidates shall be made on the basis ofthe aggregate marks obtained in the writtenexamination and Viva-voce.

3. (i) No person who Ji.as rTfore than one wife living andno female candidate who is married to a person, whoalready has a wife living, shall be eligible for appointment to the service unless the Governor, forspecial reasons, exempts such persons from theoperation of the rule.

4. Application furnishing all the particulars of eligibilityaccompanied by attested copies of the followingtestimonials and three passport size photographsshould be sent by `Registered post acknowledgment due'so as to reach the undersigned not later than September26, 2006 by 4.00 P.M.

(i) Educational Qualifications,

(ii) Enrolment certificate under the Advocates.Act,1961

(iii) Certificate of Experience at the Bar,

(iv) Certificate of bate of Birth,

5. Applications which are not accompanied by therelevant documents shall be rejected.

6. The candidates found eligible on preliminary scrutinyshall be called for written examination by the HighCourt.

7. No TA/DA will be paid for appearing in theexamination and for the Viva-voce.

8. The Registry of the High Court of Sikkim reserves theright to accept or reject any application with or withoutany reason.

*VERY IMPORTANT NOTE:n

Candidates are required to note that the High Court hasproposed to the State Government the amendment ofRules for inclusion of Local Laws in Paper I andConstitutional Laws of India in Paper 11. If the proposedamendments made in the regard are accepted by theState Government and notified in the mean time, thenthe above subjects will also be included in the writtenexaminations the duration of which shall be three hoursinstead of 2 1/2 hours.

Local Laws: -

(a) Property Law,

(b) Registration Law,

(c) House Rent & Eviction Laws,

(d) Land Law,

(e) Court Fee & Stamp Laws,

(I) Adoption Law,

a

(g) Civil Courts Act,

(h) Municipal Law,

(i) Interpretation and General Clauses Act,0) Notification on Issuance of Certificate ofIdentification, (k) Debt Law ap.d

(I) Rural Indebtedness Act.

Substantive Law:-

(a) Constitutional Laws of India.

Meenakshi M RatRegistrar General (0)High Court of Sikkimat Gangtok "

5. The petitioner, a Master Degree holder in Law (LL.M), beingeligible for appointment to the said post, responding to the abovequoted advertisement took the written test as well as the viva. vocetest along with other candidates.

6. The High court in terms of the sikkim Judicial service Rules,1975, as amended uptodate (for short, the Service Rules) on thebasis of the written test and viva-voce conducted for such purposeprepared on 16.12.2006 a Select List of six candidates mentioningits validity for one year including the petitioner in order of merit.Since the petitioner had been placed in first position, her name wasrecommended by the Full Court to the State Government forappointment as Civil Judge-cum-Judicial Magistrate of SJS.

`,\:.:.-

7. The select List dated 16.12.2006 along with the informationsregarding total marks obtained by all the six candidates includingthe petitioner, as put on record, is reproduced hereinbelow:

" HIGH COURT OF SIKKIMGANGTOK

NOTICE

As directed, I notify the following informations regardingthe total marks obtained by the following candidates inthe Written Examinations and in the interview held bythe Full Court today:- [2] The following Select List [valid for one year] hasbeen prepared by the Full Court: -

1. Smt. Shraddha

2. Shri Ajay Kumar srivastava

3. MissYousaLachenpa

4. Miss KessangDiki Bhutia.

[3] The Full Court has recommended the name ofSmt. Shraddha to the State Government for herappointment as Civil Judge Gum Judicial Magistrate ofthe Sikkim Judicial Service.

By order.

Sd/-(Harish Kumar Sharma)Registrar General In-Charge16-12-2006 "

.:i

8. However, the respondents did not take any action to appointthe petitioner to the post so advertised by the High Court.Accordingly, the petitioner approached the competent authorityunder the Right to Information Act, 2005 (for short, `the Act')seeking certain informations as regards her appointment. Inresponse to the application, the concerned officer under the Actinformed the petitioner on 25.06.2007 that the informations soughtfor by her could not be provided in terms of section 8(1)(e) of theAct. Thereafter, the petitioner issued a Legal Notice dated14.11.2007 to the respondents requesting the competent authorityto issue appointment order within 15 days.

9. Situated thus, since no action was taken within the periodspecified in the notice by the official respondents, the petitioner hasinitiated this writ proceeding by filing the instant writ petition on07.12.2007 just couple of days ahead of the expiry of the Select Listdated 16.12.2007 within a period of one year.

10. Later on, the petitioner has sought for amendment of the writpetition for incorporation of certain informations which has beenpermitted by this Court and accordingly an amended writ petitionhas been filed.

11. In the amended writ petition, the petitioner has prayed forfollowing reliefs:

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I

"Under the facts and circumstances it is most humblyprayed that the Honble Court may be pleased enough toissue; RELIEFS

1. Writ, order or direction to the Respondent No.1, 3and 4 to act on the recommendation of the Honble theHigh Court and to appoint the petitioner in the post ofCivil Judge-Gum-LJudicial Magistrate.

2. Writ, order or direction in the nature ofMandamus directing the Respondent No. 1, 3 and 4and/or each of the respondents to act as per therecommendation of the Honfole High Court.

3. Writ, order or direction to the Respondent No.1, 3and 4 and/or each of the respondents to keep therecommendation of the Honble High Court valid till thepetitioner is appointed in the post of Civil Judge-cum-Judicial Magistrate.

4. Writ, order or direction to the Responder`.t.No.1, 3and 4 and/or each of the respondents restraining themfrom making arty advertisement for the post for whichthe petitioner is entitled to be appointed.

5. Writ, order or direction to the Respondent No.1, 3and 4 and/or each of the respondents to furnish all filespertaining to the appointment to the post of Civil Judge-cum-Judicial Magistrate from the date when the postwas advertised till date.

6. Writ, order or direction to the Respondent No.1, 3and 4 and/or each of the respondents to affectappointment to the petitioner from appropriate date asYour Lordship may deem fit and proper.

6-A. Writ, order or direction to the Respondent No. 2 towithdraw the Annexure P-12 and stay of entire follow upaction by virtue of Annexure P-12 .

7. Any other relief or reliefs for which the petitioneris entitled to."

12. After the recommendation was being forwarded by the HighCourt, the Respondent No. 3 responding to the High Court'srecommendation, by seeking certain information regarding the number of cases filed during the preceding one year in the Court ofCivil Judge-Gum-LJudicial Magistrate, North District at Mangan,made a communication dated 19.04.2007 (Annexure R-3 appendedto the amended additional counter affidavit filed by the Staterespondents through one Joint Secretary to the Government ofSikkim, Department of Personnel, Administrative Reforms &Training, etc.) quoting the subject "Direct recruitment of one postin the cadre of Sikkim Judicial Service" to the High Court Registry.The communication dated 19.04.2007 runs as under: - "GOVERNMENT OF SIKKIMDEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING,PUBLIC GRIEVANCES, CAREER OFTIONS aEMPLOYMENT, SKILL DEVELOPMENT AND CHIEFMINISTBR'S SELF EMPLOYMENT SCHEMEGANGTOK-737101

No. 858/G/DOP

Dated: 19.04.2007

To,

The Registrar General,High Court of Sikkim,Gangtok.

Subject: Direct recruitment of one post in thecadre of Sikkim .udicial Service Sir'

With reference to your letter No. V(13)Confdl/HCS/6683 dated 16.12.2006, I am directed torequest you to kindly arrange to send the informationon the number of cases filed during the preceding oneyear in the Court of Civil Judge-cum-JudicialMagistrate, North District at Mangan.

Sd/-

JOINT SECRETARY TO THE GOVT. OF SIKKIMDEPTT. OF PERSONNEL.. ADM. REFORMS, TRAINING,PUBLIC GRIEVANCES, CAREER OPTIONS &EMPLOYMENT, SKILL DEVELOPMENT AND CHIEFMINISTER'S SELF EMPLOYMENT SCHEME"

13. In reply to such communication, the Registry vide itscommunication dated 04.09.2007 informed that the number of civilcases filed during the preceding year 2006-2007 in the Court ofJudge (North) is nil. The said communication dated04.09.2007 reads as under:

"HIGH COURT OF SIKKIMGANGTOK

Ref. No. 4(15)Confdl/HCS/2277Da:i yf 3.. 4|9/Or To, The Joint Secretary-I,Department of Personnel, Adm. Reforms,Government of Sikkim,Gangtok-737101.

Ref: Your letter No. 3923

DOP dated 01.09.2007.

With reference to your above cited letter, I amdirected to inform you that the number of Civil casesfiled during the preceding year 2006-2007 in the Courtof Civil LJudge (North) is nil.

Sd/-(Rudra Bhutia)OFFICER 0N SPECIAL DUTY(CONFIDENTIAL)"

14. Nonetheless, in the meantime, no action has been taken bythe Government as regards appointment of the petitioner in termsof the recommendation of the High Court. The records also do notdisclose the rejection of the recommendation made by the HighCourt.

15. On the other hand, it transpires from the records that theState Government through its Joint Secretary wrote to the HighCourt again on 21.12.2007, immediately after the initiation of thispresent writ proceeding, seeking information on the number of civilsuits filed during the period of January, 2007 to December, 2007 inthe Courts of Civil LJudge-Gum-LJudicial Magistrate, West District,South District and East District.

16. On 28.1.2008, the Joint Secretary issued a reminder to thisCourt requesting for making the information sought earlieravailable at the earliest as the matter was of an urgent nature andof utmost importance.

17. In reply to the above communication, the High Court Registryinformed the Government vide letter bearing No. 4(15) Confdl/HCS/'4783/HCS dated 05.02.2008 that there were total 32 casespending in all Courts of Civil Judge in the State showing the breakup as 17 cases in the. Court of Civil iJudge-cum-|Judicial Magistrate,East at Gangtok, 15 cases in the Court of Civil Judge, South at 1; Namchi and no pendency in the Courts of Civil Judge at Gyalshing,1, i West and at Mangan, North. The following is the extract of theI communication dated 05.02.2008: - "HIGH COURT OF SIKKIMGANGTOK

No. 4(15)Confdl/HCS/4873/HCSDate: 5/02/08

To,

The Joint Secretary,Department of Personnel, Adm. Reforms,Government of Sikldm,Gangtok-737101.

Ref: Your letter No. 4904

DOP dated 21.12.2007.

Sir'

With reference to your above cited letter, I amdirected to inform you that the number of Civil casesfiled during the period of LJanuary, 2007 to December,2007 in the Court of Civil Judge-cum-LJudicialMagistrate East District, West District, North Districtand South District are as follows:

Civil Judge-cum-Judicial Magistrate(East) at Gangtok17Civil Judge-cum-Judicial MagistrateOvest) at Gyalshing00Civil Judge-cum-Judicial Magistrate(North) at Mangan00Civil Judge-cum-Judicial Magistrate'(South) at Namchi15

Total :32

Sd/-5.2.08(Tshering Dolkar)ADDL. REG.(I&E)-CUM-P.P.S. T0THE HONBLB CHIEF JUSTICE."

18. Surprisingly, it is only after a lapse of nearly one and halfyears from the date of publication of Select List 16.12.2006 that theState Government/respondent has again sent a communicationvide letter dated 06.03.2008 issued under the signature of theC ommis sioner-cum-S e cretary, D epartment of Pers onnel ,Administrative Reforms and Training addressed to the RegistrarGeneral, High Court whereby referring to Section 3 of Sikkim CivilCourt Act, 1978 (for short, `Civil Act') it is informed that since nocivil cases are filed and are pending either in the Court of the CivilJudge-cum-iJudicial Magistrate (West ) or in the Court of CivilJudge-cum-Judicial Magistrate (North), and the requirement of thefilling up of the post of Civil LJudge-cum-Judicial Magistrate beingnon-existent, the State Government is unable to consider andaccept the recommendation made by the High Court for the fillingup the post of Civil Judge. It is also requested that the High Courtmay take the entire matter in its. proper prospective in keeping withthe principle accepted by the Honble Supreme Court of India andaccept the position as elaborated and concur with the view of theState Government.

19. The communication dated 06.03.2008 is quoted hereunder:

"GOVERNMENT OF SIKKIMDEPIT. OF PERSONNEL, ADM. REFORMS, TRG.PUBLIC GRIEVANCES, CAREER OFTIONS &EMPLOYMENT, SKILL DEVELOPMENT ANDCHIEF MINISTER'S SELF EMPLOYMENT SCHEMEGANGTOK.

.,.i.,...,-.:

No. 9129/G/DOP. DATED: 6/03/2008

To'

The Registrar General,High Court of Sikfro,Gan8tok.

Sub: Direct recruitment of one Dost in the cadre ofSikkim Judicial Service.

Madam'

Ple ase refer to your letter No.V(13)Confdl./HCS/6683 dated 16.12.2007. In thisregard I am directed to inform you that therecommendation made by the High Court of Sikkim forfilling up of the post in the cadre of Sikkim JudicialService was duly exalnined and considered by the StateGovernment. While examining the matter it has beenfound that: -

1. The Supreme Court has exempted the State fromthe requirement of filling up of any vacant post inthe judiciary due to peculiar condition in the Statei.e. limited cadre of Judiciary and low pendency ofcases (in Civil appeal no.1867 of 2006 order dated4.1.07) .

The Honble High Court of Sikkim too has in itsearlier decision concurred with the view of theSupreme Court. in view of limited cadre and lowpendency of cases vide its letter no.7351/HCSdated 11.01.07.

3. The basic requiremerit of provisions of section 3 ofSikkim Civil Court Act, 1978 being non-existentthe State Government has no option but toexpress its views that the recommendation of theHigh Court could not meet the legal requirementand as such the State Government is unable toconsider it. As per the provisions of Section 3 of

Sikkim Civil Court Act, 1978 it is provided that thepost of Civil Judge-Gum-LJudicial Magistrate shallnot be filled up unless at least 30 civil suits havebeen filed within the preceding one year in respectof places where there is no Court of Chief JudicialMagistrate and the post of Civil Judge-Gum-Judicial Magistrate is lying vacant at such places.Sin-ce, as per the letter of the High Court vide no.4(15)Confdl./HCS/4873/HCS dated 5.2.008 it hasbeen clearly indicated that no Civil cases havebeen filed either in the Court of Civil Judge-cum-Judicial Magistrate, West or in the case of CivilLJudge-cum-Judicial Magistrate, North it hastherefore been found that requirement for fillingup the post being non-existent, the StateGovernment is unable to consider it and acceptthe recommendation made by the High Court ofSikkim for the filling up the post of Civil iJudge.This is also in keeping with the principle acceptedby the Honble Supreme Court of India in its orderreferred above.

It is accordingly requested that Honble High Courtof Sikkim will take the entire matter in its properprospective and accept the position as elaborated hereinabove and also concur with the view of the StateGovernment.

Yours Sincerely,Sd/-( N. Tshering )Commissioner-cum-SecretaDOP"

Significantly in response .i:o tlrie said communication dated06.03.2008, the Registrar GeneraJ. of this Court on 10.03.2008 hasinformed the State Government that the Honble Chief Justice ofthe High Court is pleased to accept the stand of the StateGovernment on the subject mentioned above, which is quoted asbelow:

•. .t`

REGISTRAR GENERALHIGH COURT OF SIKKIMGANGTOK

Ref. No.V(13)Confdl./HCS/5848Date 10/03/2008

To,

Shri N. Tshering,Commissioner-Gum-Secretary,Department of Personnel & Admin. Reforms,Government of Sikkim,Gangtok.

Sub: Direct recruitment of one post in the cadre ofSikkiln Judicial Service.Sikkiln Judicial Service.

Ref.: Your letter No.9129/G/DOP, dated 6.3.2008.

Sir'

With reference to the above cited letter, I alndirected to inform you that Honble the Chief Justicehas been pleased to accept the stand of the StateGovernment on the above mentioned subject.

Yours faithfully,Sd/-Lf) I 3 / 08(Meenakehi M. Raf)REGI STRAR GENERAL"

21. On 28.03.2008, again the Government referring to its earlierletter dated 06.03.2008, has written to the Registrar General of theHigh Court stating that the communication dated 06.03.2008 doescontaj.n cert:ain incorrect informations made inadvertently thereinwith reference to the provisions of Section 3 of the Civil Act, which `i`\'...`-.`..`

had already been amended and expressing sincere regret a requesthas been made to treat the said letter ;s withdrawn and deleted.The communication has clearly stated that the State Governmenthas duly examined the matter regarding filling up the post in thecadre of Sikkim Judicial Service and as such keeping in view theorder dated 04.01.2007 passed by the Supreme Court in CivilAppeal No. 1867 of 2006 exempting the State of Sikkim from therequirement of filling up of any post in the judiciary due to peculiarcondition in the State i.e. limited cadre of Judiciary and lowpendency of cases, and also the fact that no cases have been filedeither in the Court of Civil Judge-cum-Judicial Magistrate, West orNorth, the State Government is of the view that the requirement ofthe filling of the post as recommended by the High Court of Sikkimdoes not exist. Accordingly once ag¥n a request, although c`n ananother pretext, has been made to the High Court to take the entirematter in the proper perspective and accept the position aselaborated therein and accordingly to concur with the views of theState Government.

22. F`or the sake of convenience, the communication dated28.03.2008 may be extracted as under:

" DEPARTMENT OF PERSONNEL A.R. & TRAINING,PUBLIC GRIEVANCES, CAREER OPTIONS,EMPLOYMENT SKILL DEVELOPMENT AND CHIEFMINISTER'S SELF EMPLOYMENT SCHEME

No. 1888/G/DOP

DATED: 28.3.2008

To,

The Registrar General,High Court of Sikkim,Gangtok.

Sub: Direct recruitment of oneost in the cadre ofSikkim LJudicial Service.

Reference letter No. 9129/G/DOP dated 6.03.2008.

Madan,

Please refer to your letter No. V(13)Confdl./HCS/6683 dated 16.12.2007 and the reply given videour letter cited under reference above, I am directed todraw your kind attention that in the said letter vide No.9129/G/DOP dated 6.3.2008 at serial No. 3 referencewere made to the provisions of section 3 of the SikkimCivil Court Act, 1978 which were made due toinadvertence for which we express our sincere regretand the reference to the said provision of the law whichhas already been amended may kindly be treated aswithdrawn and deleted.

However, on the issue of the recommendationmade by the High Court of Sikkim for filling up of thepost in the cadre of Sikkim JudiciaJ. Service, the matterwas duly examined by the State Government. Whileexamining the matter it has been found that:- The Honble Supreme Court has exempted theState of Sikkim from the requirement of filling upof any vacant post in the judiciary due to peculiarcondition in the State i.e. limited cadre ofJudiciary and low pendency of cases (in Civilappeal no.1867 of 2006 order dated 4.1.07).State of Sikkim from the requirement of filling upof any vacant post in the judiciary due to peculiarcondition in the State i.e. limited cadre ofJudiciary and low pendency of cases (in Civilappeal no.1867 of 2006 order dated 4.1.07).

The Honble High Court of Sikkim too has in itsearlier decision concurred with the view of theHonfole Supreme Court in view of limited cadreand low pendency of cases as communicated videits letter no. 7351/HCS dated 11.01.07.earlier decision concurred with the view of theHonfole Supreme Court in view of limited cadreand low pendency of cases as communicated videits letter no. 7351/HCS dated 11.01.07.

I

3. F\irther, as per the letter of the Honble HighCourt of Sikkim vide no. 4(15)Confdl/HCS/4873/HCS dated 5.2.08 it has been clearlyindicated that no Civil cases have been filed eitherin the Court of Civil Judge-cum-JudicialMagistrate, West or in the Court of Civil Judge-cum-Judicial Magistrate, North. It has thereforebeen found that since no civil cases have beenfiled in either of the two Courts, the requirementfor filling up the post does not exist. Therefore,the State Government is of the view that againstsuch back drop it rna.y not be necessary to fill upthe post and therefore the recommendation madeby the High Court of Sikkim for the filling up thepost was examined and found that therequirement for filling up of the post does notexist. This is also in keeping with the principleaccepted by the Honble Supreme Court of India inits order referred above and in conformity with theprinciple accepted by the Honble High Court ofSikkim as communicated in its earlier decisionrefeITed above.

The inconvenience caused by the inadvertent erroris sincerely regretted.

It is accordingly requested that Honble High Courtof Silckim will take the entire matter in its properperspective and accept the position as elaborated hereinabove and also concur with the views of the StateGovernment.

Yours sincerely,

Sd/-(N. Tshering)Commissioner-cum-SecretDOP„

23. Against this communication dated 28.03.2008, the RegistrarGeneral of this Court by communication dated 09.04.2008conveyed the conculTence of the Honble the then Chief Justice of the High Court with the views of the State Government under thesubject mentioned above which speaks as below:

REGISTRAR GENERALHIGH COURT OF` SIKKIMGANGTOK

Ref. No. V(13)Confdl/HCS/ 197Date 09.04.2008

TO'Shri N. Tshering,Commissioner-Gum-Secretary,Department of Personnel, Admin. & Reforms,Government of Sikkim,Gangtok.

Sub: Direct recruitment of one post in the cadre ofSikkim LJudicial Service.

Ref: Your letter No. 1888/Gen/DOP dated 28.3.2008.

Sir,

With reference to the above cited letter, I amdirected to convey the conculTence of Honfole the ChiefJustice of this High Court with the views of the StateGovernment on the above mentioned subject.

Sd/-(Meenakshi M. Rai)REGISTRAR GENERAL "

24. In the backdrop of the above fact situation, the entire matternow rests on the determination of the two questions as alreadyrecorded hereinabove.

25. It is the admitted position that the Full Court initiallyrecommended the name of the petitioner for her appointment, butI : the Government was not willing to accept such recommendatiori forthe reasons reflected in the Government's communications dated06.03.2008 and 28.03.2008 as already referred to above.

The stand of the State Government against the acceptance oftherecommendation for the appointment of the petitioner isprimarily reflected in the amended additional affidavit filed ont behalf of the state Government on 29.11.2008. It would manifestlyI) show that the Government has taken a decision not to appoint anyI; officer due to non-pendency of any cases in the North District ofI , Sikkim. The relevant portion of paragraph 26 of the said affidavitII may be noticed which states as under: - „26.

It is submitted that justification given by theanswering respondent here-in-above for not filling upthe post of Civil Judge-cum-Judicial Magistrate appliesfor both the North and West Districts as tile saiddecision was taken based on a letter No.4(15)/Confdl/HCS/4873 dated 5/2/2008 received fromthe Additional Registrar (I&E)-Gum-P.P.S to the HonfoleChief Justice which clearly shows the number of civilcases pending during the preceding one year at Manganand Gyalshing were nil. After a consultative process,the High Court has accepted the contention of the StateGovernment that there was no justification in filling upthe post of Civil Judge-Gum-Judicial Magistrate at Northand West Sikkim. Since the High Court has alreadyaccepted the contention of the State Government thematter has acquired finality and stands settled.

In any case the selection process for which thepetitioner had taken part was exclusively meant for thepost of Civil Judge-cum-Judicial Magistrate for NorthSikkim notwithstanding the fact that filling up on thepost was not found to be justified in view of the pendingposition by virtue of which the impugned decision wastaken. No right accrues in favour of the petitioner evenif a vacancy of the post arises for another district. Evenin that case for the reasons already stated it wasdeemed not necessary to fill up the post, a decision wastaken on the strength of the rules relevant for thepurpose by the authorities competent to take suchdecision."

27. Amazingly, from a close perusal of the advertisement sofloated as quoted above, it transpires that there is no whisper tothe effect that the post is basically meant for North sikkim. Whatappears to us is that the advertisement/employment notice sopublished on 14.09.2006 in "Sikkim Express" clearly, specificallyand candidly mentioned that "Applications are invited to fill up onepost of Civil Judge-cum-Judicial Magistrate (1st Class) in the cadreof Sikkim Judicial Service in the (Grade Ill) in the scale of ......... "and no mention has been made about any specific place for whichthe advertisement is made or where the appointee is to be postedI on appointment. It is, therefore, seen that the reason or groundsI|} , put forward for not approving the Full Court's recommendation, isI, not good and weighty reason and the same is palpably I

I

I( unreasonable, unjustified and not founded on administrativefairness.

I

I

I( unreasonable, unjustified and not founded on administrativefairness.

28. It would also clear from the scrutiny of records that therecommendation conveyed to the State Government vide letterdated 16.12.2006 was a decision of the Full Court which norlnallytakes a decision for appointment of judicial officers under SJS.However, it is seen that the concuITence to the views expressed bythe State Government in the matter in question, was given by thethen Chief Justice alone and not by the Full Court.

29. Mr. Sharma, learned senior counsel appearing for thepetitioner, harping on the point as regal-ds the power of Honble theChief Justice to give concurrence to the views of the Government,has drawn our attention to Rules 231, 232 and 234 of the SikkimHigh Court (Practice and Procedure) Rules, 1991, (for short, theRules) which read as under:

"231. Matters which shall be disposed of at a Judgesmeeting:- Notwithstanding anything contained in thepreceding Rules, the following matters shall invariablybe taken up and disposed of at a meeting of the Honble|Jud8es: -

(i) AIl matters involving questions of principle andpolicy;policy;

(ii) All cases relating to amendments to be made toexisting la.ws or to the st.atutory rules of the Court;existing la.ws or to the st.atutory rules of the Court;(iii) All matters concerning the High Court as such orall the Honourable Judges;all the Honourable Judges;

(iv) AIl matters on which the opinion of all the HonbleJudges is invited by the Government;Judges is invited by the Government;

(v) The suspension of Judges of the subordinatejudiciary;judiciary;

(vi) The promotion of Judges of the subordinatejudiciary;judiciary;

(vii) Recommendation for the grant of pensions to theJudges of the Subordinate Judiciary where it isproposed to recommend that the full pensionearned be not allowed;Judges of the Subordinate Judiciary where it isproposed to recommend that the full pensionearned be not allowed;

(viii) Annual Confidential remarks on the work of theJudges of the Subordinate Judiciary;Judges of the Subordinate Judiciary;

(ix) All matters relating to entitlement of the sittingand retired Judges including the sitting andretired Chief Justices;and retired Judges including the sitting andretired Chief Justices;

(x) Audit objections;

(xi) Any other matter which may be referred by theHonourable the Chief Justice to a meeting of theHonourable Judges.Honourable the Chief Justice to a meeting of theHonourable Judges.

232. Referring a matter to Judges meeting: - TheHonourable Judge placed in charge of any branch of theexecutive or administrative business of the Court mayrefer any matter relating to that branch to a meeting ofthe Honble Judges.

234. Quoram of Judges meeting:- At all meetings ofHonourable Judges, two Judges shall form a quorum ifthe actual strength of the High Court consists of two ormore Judges. In case the actual strength at any timeconsists of only the Chief Justice or Acting Justice, healone shall constitute the quoram."

I 30. On the basis of the above Rules, it is the submission of Mr.i Sharma, the learned senior counsel, that once a decision has beentaken by a Full Court, any deletion, modification or cancellation ofsuch decision lnust be made by the subsequent Full Court whichonly has the power to take such action. However, the same did notexactly happen in the instant case. Indeed, it was the Full Courtalone which ought to have taken a decision regarding concurrencewith the view expressed by the State Government in such matterand not Honble the then Chief Justice alone.

31. We have meticulously scrutinized the entire records placedbefore us including the concurrence given by the then Honfole thethen Chief Justice of the High Court to the views of the StateGovernment as the issue in question.

32. Before delving upon the basic issue as already referred toabove, it would be necessary and appropriate to ha.ve a look at therelevant provisions of the Service Rules.

33. The Rules 3, 4 and 5 of Service Rules would be relevant forsuch purpose and the same are quoted as under:

"3. For the purpose of recruitment of the Service, thereshall be a Selection Committee consisting 6f thefollowing:

(i) Appointment to the post of Civil Judge-cum-Judicial Magistrate (Grade-III) shall be made bythe Governor on the basis of the selection made bythe High Court in accordance with these Rules.(ii) Promotion to the posts of civil Judge-cum-JudicialMagistrate (Grade-II); Civil Judge-cum-JudicialMagistrate (Grade-I), Chief Judicial Magistrate-cum-Civil Judge (Grade-Ill), Chief JudicialMagistrate-cum-Civil Judge (Grade-II), ChiefJudicial Magistrate-cum-Civil Judge (Grade-I)shall be made by the High Court.

A candidate shall be eligible to be recruited if he (a) acitizen of lndia.

(b) Not more than 35 years of age as on the lastdate rixed for receipt of applications.

(C) :i:v:r°s[£d;re:tfa:h€igdeebyiaLaTn¥n=::d by a(d) able to communicate in Nepali or any otherlanguages of the State.

5. Recruitment to the post of Civil Judge-cum-Judicial Magistrate (Grade Ill) shall be made on the a `.`(.``..:.. `

basis of a competitive examination to be held by theHigh Court at such intervals as the High Court maydetermine. The date on which and the place at whichthe examination is to be held, shall be fixed by the HighCourt.

(a) The competitive examination shall consist of:-(i) Written e7cam:haklonPaper-I Procedural La.w -Code of civil procedure,Code of Criminal Procedure, Local Laws,Indian Evidence Act and. Limitation Act.Local La.ws.aws.(1) Notice dated 2nd January 1897 relating to transferof land by Bhutias and Lepchas.(2) Revenue orderNo.1 dated l7th May,1917(a) Notice No.660/G dated 21st May,1931(b) Notice No.669/G dated 21st Ma.y,1931

(3) Silckim Darbar Gazette vol. XVIII No.11 dated 21stApril, 1969 Right of a woman to purchase or sellland after her marriage vis-a-vis Revenue OrderNo.1 of 1917.(4) O.O. No.105/L.R. dated25thFebruary,1961.stration Laws.(1) Notification No.385/G dated llth April, 1928peegarding Registration of Documents)(2) Notification No. 2947/G dated 22nd November,1946 (Regarding Registration of Documents)(3) Sikkim State Rules Registration of Documents1930.

/C\ House Rent & Eviction Laws.

(1) Notification No. 6326-600/H&W-B dated14.04.1949 Regulating and Letting and Sub-letting of Premises etc. (Health & Works Deptt.)(2) Gangtok Rent Control & Eviction Act 1 of 1956dated 31st Ma.y,1956.(3) The Sikkim Public Premises (Eviction ofUnauthori2red Occupants and Rent Recovery) Act,1980.(4) The Sikkim Public Premises (Eviction ofUnauthorized Occupants and Rent Recovery)REes, 1980.0\ Land Laws.(1) The sikhim cultivators protection Act,1985.(2) The Sikkim Land peequisition & Acquisition) Act,1977 (1 of 1978)

(il) Vivc.Voce..

It will cany loo marks.

(b) Only such number of candidates shall be calledfor viva-voce as shall obtain the highest number ofmarks in aggregate of both the papers in the writtenexamination up to the extent of five times of the numberof posts as specified in the advertisement invitingapplications.

(c) Selection of candidates shall be made on the basisof the aggregate marks obtained in the writtenexamination and viva voce.

(d) The list prepared on the basis of the selectionmade shall be operative for one year and shall beeffective for the filling of the vacancies then existing andthose arising within a period of one year."

34. Article 234 of the Constitution of India would also be relevantfor ready reference. It provides for recruitment of persons otherthan district judges to the judicial service which contemplates asunder:

"234. Recruitment of persons other thandistrict judges to the judicial service.- Appointmentsof persons other than district judges to the judicialservice of a State shall be made by the Governor of theState in accordance with rules made by him in thatbehalf after consultation with the State Public ServiceCommission and with the High Court exercisingjurisdiction in relation to such State."

35. A fair reading of those provisions above referred to wouldexplicitly go to indicate that the appointment of the Civil Judge-cum-Judicial Magistrate (Grade-Ill) under SJS shall be made by theGovernor of the State on the basis of competitive examination held

by the High Court. Such process is duly indicative of theconsultation process as indicated in Article 234 of the Constitutionof India. In the instant case, in terms of the Service Rules, onepost of Civil Judge-cum-Judicial Magistrate was advertised andcompetitive exalnination both written examination and viva vocewere conducted and the petitioner was selected in order of meritand placed in Sl. No. 1 and the Full Court recommended her namefor appointment in terms of Rule 3 (1). Therearier, it is for theState Government to appoint her in the respective post. However,the State Government has expressed its inability to accept therecommendation basically showing the reason that since there isno pendency of cases in the Court of Civil Judge, North at Mangan,there is no necessity for such appointment, although, a closeinspection of the advertisement as already indicated above did notmention that the post was specifically advertised for North Sikkimat Mangan. Apparently, ex-facie, the advertisement belies thestand taken by the State Government and as such the reason fornot accepting the recommendation, in our firm opinion, deserves noapproval.

36. Coming to the question of concurrence given by the thenChief Justice of the High Court alone to the view expressed by theState Government regarding its inability to accept therecommendation sent by the Flill Court, it is seen that Rule 231 of the Rules referred to by Mr. Sharma, in our considered view,basically indicates that all the important matters including thematters of Full Court and any variation from earlier decision of theFull Court must be adopted, resolved or nullified by a subsequentFull Court. Such an interpretation of the Rule, in our view, wouldbe in line with the meaning assigned to the High Court' underArticle 216 of the Constitution of India. As per the interpretationplaced on Article 216 of the Constitution of India, the High Courtmeans the entire body of Judges appointed to the High Court: Assuch the High Court consists of a Chief Justice and such otherJudges as the President may from time to time deem it necessary toappoint. We are supported to take this view by the decision of theA[rlex Court in State Of Utter Prcidesh us. Bctfuk Deo Pcifi 'm.pathi cmdA7io€her reported in (1978) 2 SCC 102 wherein in paragraph 10 ithas been clarified that the High Court under Article 216 means theentire body of judges appointed who together constitute the HighCourt. The relevant portion of paragraph 10 runs as under:

«10.

............................... Since Article 216 provides thatevery High Court shall consist of a Chief Justice andsuch other Judges as the President may from time totime deem it necessary to appoint, Article 235 has to beconstrued to mean that the control over District Courtsand courts subordinate thereto is vested in the entirebody of Judges who together constitute the High Courtand not in the Chief Justice as representing the HighCourt or an Administrative LJudge or a smaller body ofJudges acting as an Administrative Committee."

-i 0 --

37. On the basis of the constitutional and legal position asindicated above and also bearing in mind the spirit reflected in Rule231 of the Rules, we are of the view that the competent authority toconcur with the views of the State Government in the matter is andmust have been the Full Count and not the Chief |Justice alone.Thus, it follows that if tile initial recommendation was made by theFull Court, the concuITence ought to have been rendered by theFull Court. In other words, the concurrence ought to have beengiven by the Full Court i.e. the Chief iJustice and other PusineJudges which constitute the quorum/strength of the High Courtfand not by the Chief Justice alone. It is pertinent to mention herethat on the relevant period i.e. during the months of March, Apriland May, 2008 during which the concurrence was given by thethen Chief Justice, the Higb Court was having the strength of twojudges including the Chief Justice. It appears that the ChiefJustice alone, not being authorized, ought not to have exercisedsuch power of concurrence without referring the matter to the FullCourt.

38. In view of what has been discussed, observed and statedabove and even otherwise given the facts and circumstances of thecase, we have no hesitation to hold that the concurrence to theviews expressed by the State Government having been given by theChief Justice alone and not by the Full Court is not the ;f,£` :a concurrence given by the High Court and the same lacks legalpermissibility. In view of the same, it can be well opined that theGovernment has to act in terms of Rule 3 (1) of the Service Rules toappoint the petitioner on the basis of the selection made by theHigh Court which was done in accordance with the Rules.

39. We are thus of the considered view that the petitioner hasmade out a case for issue of a direction for consideration of herappointment pursuant to the recommendation given by the HighCourt.

40. Accordingly, we hereby direct the respondents to consider thecase of the petitioner in terms of the recommendation made by theFull Cciurt and also in compliance of the Service Rules.

41. Be it made clear that the entire process as directed aboveshall .be undertaken and completed within a period of three monthsfrom toda.y.

42. In the result, this writ petition stands allowed with thedirections and observations as indicated above. However,considering the facts and circumstances of the case there shall beno order as to costs.

`..(`.`.\\.\`....:-.--...-`Chief Justice rsr/jks