WP(C)/11/2000 of Chetraj Mishra Vs State Of Sikkim and others on 16 August 2000

1. Writ Petition JJ2| No.9 Q± 2000

Prakash Chettri

Versus

1. The State of §ikkimThrough the Chief Secretary,Government of §ikkim,Ta5h i 1 ing ,Gan9tok .

•.. Petitioner

2. The Commi55ioner-Gum-Secretary,Department cif Personnel,AR a Training,Government of §ikkim,Tashiling Secretariat.Gan9t0k-

3. Mr. T. R. Khanal,Assistant Engineer,Education I)epartment,Ta5hiling, Gangtok.

4. Mr. N. L. Chettri,Assistant Engineer (Civil),Gangtok Sub-Division,Power Department, Gangtol<.

5. |vlr. P. t<. §harma,A55i5tant Engineer, F{.D.D.Rongli Sub-Division,East SikL'im.

6. Mr. Homnath §harma,Assistant Engineer,Building a Housing I}epartment,Singtam Sub-Division,East §ikkim.

7. Mr. K. El. Chettri,Assistant Engineer,Education Department,Tashiling, Gangt,ok.

8. Ivlr. P. V. I(uruvilla,Assi5taiit Engineer,url}an I}ev.a Housing Departnrient,Gangtok.

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9. Ivlr. t<. J. Cherian,Assistant Engineer,F{.I).I). Namchi,South §ikkim®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.018. 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.

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.

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0. P. Sharma.-. Petitioner

Versus

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 thepe t i t i one r - Mr. S. P. Wangdi, Advocate General withMr. I<arma Thinlay, Assistant GovernmentAdvocate for re5Fiondent Nos. 1 and 2.

Mr. t<. T.Bhutia, Advocate for therogpoi`dei`t Nos.3 t,o 8, 10 t,o 21 and 23.

Jut)GMENT

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All these writ petitions t:oncern the fixation ofseniority between the direct recruits and the promotee5holding the posts of Assistant Engineers (Civil) in theSikkim 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 thedirect 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 =

''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 examinationand/or Select.ion by ii`terview t,o be held by the Commi55ion.

{b) By promotion through limited departmental CompetitiveExamination to be held by Commission f ron among personsholding the post of Junior Engineer or any other post orposts declared equivalent thereto by the Government.

{2) The proportion of vacancies to be filled in any year inaccordance with clauses (a) and (b) of sub-rule 15hall be66 2/3 : 331/3 respectively 5ubje[t to review as the Gov-ernment may deem f it =

Provided that the number of persons recruited underclause (b) of Sub-rule 1 shall not at any time exceed 331/3per 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 opinionthat it i5 necessary or expedient to do so, it may, byorder, for reasons to be recorded in writing, relax any ofthe provisions of these rules with respect to any class orcategory of persoT`s or post". In e}:ercise of the powerconferred by Rule 30, the State Government issued Notif ica-tion No.20/GEN/EST dated 25-6-1990, in order to removestagnation in promotion of Junior Engineers, to relax theprovisions 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 lna[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 ;

3. An advertisement dated5.Z!.199-I was issued I]y tlieGovernment inviting applicatiDn5 from the Junior Engineersto 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 theSikkim State Engineering (Civil) Service on 21st, 22nd and23rd March, 1991. Af per the minutes of the meeting of theSelection Board lield on loth,llth and 12th April, 1991(vide Annexure R3), 25 Junior Engineers were 5ele[ted ftirpromotion to the posts of A55istant Engineers. It is notdisputed that all these 25 perst)ns were [Iromoted witheffect from 12th July, 1991. It ic; also not disputed beforeLJ5 that -15 direct re[ruit5 were appointed on different datesin December, -1990 and January, 1991. A provisional seniori-ty list was prepared in the year 1997 which i5 Anne}{ure D tothe writ petition. In that seniority list, -13 direct rE-cruits were placed at Serial nurribers 26 to 38 and all tliepromotees were placed below them, except for §unilPradhaTi, Who was also a diret:t rE[rl[it JJut who was wronglyplated much below the promotees at rjerial number 70. §unilPradhan filed writ petition bearing No.460 of 1998 (§unilPradhan versus State of §ikkim). By judgment dated dth May,1999, §unil Pradhan was held entitled to be placed in theSeniority list in accordance witt` ITierit, he se[iired at thetime of his 5ele[tion by the Sikkim Publi[ Service Commis-sion and accordingly a direction was i5supd to do " withinoTie month. Thereafter, aTiother provisional seniority list •

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was prepared in the year .1999 to give ef fe[t to the decisionof 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 thatfirst three direct promotees were plat:ed in the Senioritylist al}i]ve the direct recruits and thereafter, two i]Iromotee5were placed. Ft]r example, at Serial numbers 27, E8 and 29promotee5 were placed and thereafter, at sel-ial numl]er5 30and 31 direct recruits were placed. It is this Senioritylist which has been challenged by all the petitioners beforeuS,

4. Mr. Bha5kar Raj Pradhan, learned Counsel appearing onbehalf of the petitioner has made three submi55ions beforeus=-

(i) Tlie High Court had while delivering judgment inwrit petition No.460 of 1998 (§unil Pradhan versusState of §ikkim} directed ref ixation of theseniority t}nly of §unil Pradhan and there was nojustifit:atic)n for the Government to change theentire seniority list;

(ii) direct recruits were appointed prior to theappointment of the promotees and they ought tohave been placed above the promotees;

(iii} even if seniority had to be fixed in accor-dance with the quotas of vacanciEs availablefor the direct ret:ruit5 and the prcimotees, thedirect recruits should have been placed in theseniority 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 wasprovisional. When it came to the notice of the GoverniTientthat it needed I:hange, it was open to the Government to do ._.}hi,-~,~ - ,+

5o. The provisional Seniority list did not confer any righton arlyone a5 regards plat:ement in the Seniority list.

6. A5 regards the 5e[ond point, there is Tro dispute thatthe 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 ismade in accordance with the quotas of tl-Ie vacancies reservedfor two categories of persons. It i5 admitted before u5that relevant rules regarding f ixation of seniority arecontained 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 andpromotees shall be determined according to therotation of vacancies between direct recruits andpromotees and Shall be determined by the dates oftheir 5ub5tantive appointment to the Service."

7. It i5 not disputed before u5 tliat all the appi]intment5both of direct recruits and the prorriotees were substantiveappointments. The quotas f ixed by Notification dated 25thJune, 1990 were 371/2 : 62 .I/2 for the direct recruits andthe promotees respectively. Appointment process for bothtlie 5our[es was Started and coiTlpleted Substantially in thesame financial year, that i5, -1990-91. This was so a5 notonly the advertisement was issued in that f inancial year,but the interviews were also held in that year. f]s per Rule2{m} of the Rules ..year" meaTii5 the f iT`an[ial year commencingon the lst day of April and ending on 31st day of March ne}{t

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following. Therefore, the seniority was required to bef 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 partof sub-rule {e) of Rule 4 is of little relevant:e for theinstant cases.

8. As rEgards the third point, it is submitted on behalfof the petitioners that in accordance with the seniorityrule, direct recruits should have been plat:Ed above thepromotees in proportion to the vacancies reserved for them.He submits that f i>:ation was done wrongly in the senioritylist of the year 1999, inasmuch as, promotees were placedabove the direct recruits. For examF.1e, at serial numbers27, 28 and 29 promotees were plat:ed and it was thereaftert,hat t,wo direct recruits were Fila[ed at serial numbers 30and 31. The learl`ed Counsel Submits that direct recruitsshould have I.een placed at serial nuITiber5 27 and 28 andpri]motee5 Should have been placed at Serial numbers 29, 30and 31. We see no merit in this submission. The expressionin Rule 4(e) tliat the relative seniority of direct recruitsand promot,Ee5 Shall be determined ac[ordilig to the rt)tationI]f vacancies between direct recruits and promotee5, in theal]5eTice of any rule I.roviding whetl`ier direct recruits Shouldt}e plat:ed al]ove I)r I]elow the promotee5 implies t.hat thedirect recruits should be placed above the promotees. To this extent, the seniority list of .1999. requires to berevised aTid reEa5t.

In the result, the writ petitions are allowedpartially, and it is diret:ted that the provisional senioritylist of the members of the §ikkim State (Civil) EngineeringService prepared in the year .19t79 being Annexure-''E" to thewrit petition shall be revised and recast so as to place thetwo direct ret:ruits at serial numbers 27 and 28 and thereaf-ter, three promotees at Serial nuiTlbers Z9, 30 and 31 and toplace the other members of the service in that manner. Thisbe done within a month f ram today. There Shall be T`o orderas to costs- The judgment be placed on the ret:ord t}+` Writ PetitionNo.9/2000 and a certified true copy be placed on the ret:ord5oHheother:r;;±:;i:#

) stl-`.:a"

( R- I)ayal )Chief Justice•16 . 08 . 2000

Judge16.08.2000

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