WP(C)/43/2010 of Mingma Sherpa and Ors. Vs State of Sikkim and Ors. on 11 November 2010

JUDGEMENT

DINAKARAN, CJ

The petitioners are working as Assistant Engineersunder respondent No. 3, Department of Energy and Power,Government of Sikkim. They are challenging the promotion ofrespondents No. 6 to 18 to the post of Divisional Engineer in thesame Department, on officiating capacity, by Office Order dated23.06.2010 based on the seniority fixed by proceedings dated02.02.2007 of the respondent No. 2, Department of Personnel,Administrative Reforms and Training, Government of Sikkim.

Concededly the said seniority list dated 02.02.2007 ofthe respondent No. 2, was challenged before this Court inW.P.(C) No. 40 of 2009 by similarly placed petitioners; and thisCourt by Order dated 16.06.2010 dismissed the said writ petitionupholding the seniority list dated 02.02.2007 placing reliance onthe power of the Government under Rule 7 (1) (a) of Sikkim Gjb.....

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State Engineering (Civil, Electrical and Mechanical) ServicesRules, 1989, (for short, `the Service Rules'), which provides thepower of relaxation to the Government. The relevant portion ofthe said Order dated 16.06.2010 reads as hereunder: - "6. Petitioners do not dispute that power ofrelaxation was, in fact, exercised by Government inrelation to direct recruitment quota for regularisation ofpetitioners, but they contend, as was the requirement ofClause (a) of Sub-rule 1 of Rule 7 of the Service Rules,they were selected by Commission after holdinginterview and accordingly, they should be deemed to bedlrect recruits. In other words, petltioners contend thatrelaxation was to avoid offering of the direct recriiitquota to people other than petitioners. It was submittedthat, therefore, it should be deemed in law thatpetitioners were direct recruits and, therefore, inter-se-seniority between them and private respondents isrequired to be determined in accordance with Clause (e)of Rule 4 of the Seniority Rules.

7. It is true that petitioners were Interviewed byCommission before they were recruited. It is also truethat petitioners were recommended by Commission forbeing recruited, which suggests they were selected. Atthe same time, acceptance of the recommendation ofCommission resulted in recruitment of petitioners. Thequestion, however, is, taklng those into account, can ibe said that petitioners were direct recruits in terms oClause (e) of Rule 4 of the Seniority Rules? Factremains, while exercising power under Rule 30 of theService Rules, Government relaxed the whole provisionrelating to method of recruitment contained in Rule 7 ofthe Service Rules, and not only Clause (a) of Sub-Rule 1thereof, with a view to regularise petitioners, who werethen work-charged Assistant Engineers, as AssistantEngineers in the service in consultation with SikkimPublic Service Commission. Therefore, the wholemethod prescribed jn Rule 7 of the Service Rules wasrelaxed and altered for the purpose of utilizing the quotaavailable for direct recruits to regularise petitioners inconsultation with Sikkim Public Service Commission.Accordingly, interview of petitioners by Sikkim PublicService Commission should be deemed to facilitate suchconsultation and not selection. At the same time,recruitment pursuant to recommendatlon of SikkimPublic Service Commlssion should be deemed to be theoutcome of such consultation and cannot be treated asappointment pursuant to selection by Sikkim PublicService Commission. Furthermore, all the existing work-charged Assistant Engineers were recommended incourse of such consultation. Petitioners were, thus, not r.._--,.It

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recruited as direct recruits in terms of Clause (a) of Sub-rule 1 of Rule 7 of the Service Rules and accordingly,they cannot be treated as direct recruits ln terms ofClause (e) of Rule 4 of the Seniority Rules. In thecircumstances, Clause (f) of Rule 4 of the SeniorityRules applied to the case of petitioners, which providesthat senionty of persons, who are appointed to theservice by a method other than by selectlon or byexamination shall be determined ad-hoc by the StateGovernment by a speclal order and admittedly such anorder was passed finally by the State Government uponacceptance of the report of the One man Commission.There is, therefore, nothing further to be done in theWrit Petition."

However, Mr. Bhaskar Raj Pradhan, learned Senior Counsel appearing for the petitioners contends that -

(i) the present petitioners are not parties to the saidwrit petition;

(ii) the respondent No. 2, Department of Personnel,Administrative Reforms and Training, Government ofSikkim whHe fixing the seniority by proceedings dated02.02.2007 has not assigned any special reason bypassing a special order as required under the ServiceRules; and

(iii) in any event, the earlier Order dated 16.06.2010of this Court is not binding on this Court to entertainthe present writ petition.

4. Per contra, Mr. Karma .Thinlay Namgyal, learnedGovernment Counsel and Mr. Jorgay Namka, learned Counselappearing for the contesting respondents No. 6, 7, 11 to 24invited my attention to the fact that even though, the petitionersare not party to the earlier writ petition i.e. W.P.(C) No. 40 of I:`ir-.`.

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2009, the similarly placed petitioners who filed the said writpetition have already preferred a SLP before the Apex Court,namely, SLP No. 26597/2010, in which the Apex Court waspleased to issue notice to the contesting respondents, namely,respondents No. 6 to 18 herein.

In that view of the matter, I am of the consideredopinion that the judicial discipline requires to permit thepetitioners to move the Apex Court and raise all the submissionsincluding that are raised here in and also to challenge thereasons that weighed by the learned Judge in the Order dated16.06.2010, if they are so pleased. Therefore, suffice it to,without expressing any opinion on the rival contention of theparties to dispose of the present writ petition, giving liberty tothe petitioners as well as the contesting respondents to agitatetheir respective claims before the Apex Court either impleadingthemselves in the said SLP No. 26597/2010 or work out theirremedy in the manner known to law.

The writ petition is disposed of accordingly. However, nocosts.

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