WP(C)/2/2002 of J. B. Khatri Vs State Of Sikkim and others on 4 December 2002

JUDGMENT

Dayal, C.J.

The p.etitioner entered into. Go.verrment service as aPrimary School Teacher on 22.-0.&-1973.. He. was transferred to SjkkimNationalised Transp.ort on 2&-02.-1979 as Assistant Auditor having payscale identical to. that of a Primary Teacher. In 1982, the GCIvemmentele.vated many of the local graduates to the p`o`sts` of gazetted officers. The

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petitioner was not successful in getting such an appointment. In 1983., theS,ikkim Civil Service. E3rmination was held. The petitioner competed inthat examination but he secured 30th position in the list of 31 successfulcandidates. Out of the said list only 6 were initially appointed and the 7thsuccesrful candidate was also appointed subsequently from the said panelwhich lasted till a new panel was prepared in 1985. The allegation of thep.etitioner was that many persons were given appointment as garettedofficers ignoring the claim of the petitioner. Hence, he went onrepresenting to higher aHthorities including the Chief Minister for getting achance as a garetted officer. Qn 27-01-19&4 he was offered appointmentas Auditor in Sikkim NatiQnalised Transport, but he did not accept thesame as he wanted nothing less than a gezetted post. Witheffectfrom 23.-04-19&4 he was appointed Assistant Manager in SIMFED, aGo.vemment undertaking in the scale of lo,west gazetted officer for tvayears. He went on persuading the GQvemment for providing a gazettedpost. Ultimately, Memorandum No.1413/GENffisT dated 17-07-1986,Armexure R-2, was issued by the GQvemment to the following effect:- "With reference to his representation dated 22.5.86ad`dressed tQ the Hon'ble Chief Minister, the undersigned isdirected to infon:n him that his request fo.r Gazetted dradefrom the date he joined the SlhffED is accepted by theGo.verrment and that his prQmctiQn in the S.tate GQvt. will beconsidered on the basis of his seniority in the grade ofAccountants/Senior Accountants."

He filed writ petition NQ.5 Qf 1994 before this. High Court which wasdecided on 01-0.6-1995. By that Judgment, the State respcndents were.directed to implement their memorandum dated 17-Q7-19&6 and give allthe benefits to bin in terms thereof. Subsequently., the petitioner filedCivil Misc. Case No.1 of 1996 and Criminal Misc. Case No. 1 Of 1996v . cwvvwl

which were .disp.o`sed Of by this Court on 2.1-0.9-1996. A copy Qf thejudgment is annexed as R-3. In that judgment, the Memorandum dated17-0.7-1996. came in tQ be intexpretated. It was held that the expression"gazetted grade" in the. memorandum did no.t mean gazetted post Qr rankand it only meant gazetted scale Qf pay. It was, therefore, held that thepetitioner wo.uld continue to have gazetted scale with effect from23.-0`4-1984 the date when he joined SIMFED as Assistant Manager withnecessary annual increments and availing of the benefit of revision of thescale, if any, but fir the purpose Qf seniority etc., necessary for subsequentpromotion, his substantive post should be held as that of SeniorAcco.untant. The. decision to the effect that his substantive post forpromotion was to. b.e deemed to be that o.f Senio,r AccQuntaat was neverarmulled Qr modified in any mamer by any subsequent decision on thejudicial side. Leaned counsel for the petitioner admits that no order ofpromo.tion was also ever passed by the` Go`vemment. Even then thepetitio.ner is making his. claim for holding the higher p.Qst in gazettedgrade. By this. unit petition, the petitioner has challenged Qfficeorders/letters Annexures P-1, P-2 and P-3. Armexure P-2 is letterNo`.15909/G/DQP dated 26-Q2-20.Ql issued by the GQvemment Qf Sikkim,Dep.artment of Personnel, A.R+. & Training communicating to thep`etitioner that his claim for his inter-se seniority in the SikkimNationalised Transport had not been supported b.y the relevant gazettenotification. By Amexure. P-1, which is an Qffice order NQ.3.6ffin/SSASdated 17-03.-20,01 issued by the Finance Department, Government ofSikkim, the petitioner was transferred and posted as Senior Accountant atPay & Acco.unts Office, Mangan against the vacant post. Byy - cywl e Amexure P-3, bearing NQ.6948/(G)/BOP dated 14-0&-200.1 the petitionerwas communicated that his seniority had been fixed as Senior Accountantunder the Sikkim Subordinate Accounts Service. The petitioner haschallenged these orders chaining that since he is drawing gazetted scale,he is. entitled to. hold a gazetted post relevant to. that scale. He has alsochained that he should be inducted in the State Civil Service cadre in thesame marmer in which 10. persons were inducted vide NctificatiQn dated20-0.7-2cO1, inexure P-11.

Conclusion

2-` I have. heard sfui B,` Shamra, Advocate. for the petitioner and shriS..P. Wangdi, leaned Advo.Gate General on behalf Qf the State. As regardsthe claim of the petitioner for induction into the State Civil Service, theNo.tification dated 20-0.7-20.01 published in the Sikkim Gazette Qn3.1-0.7-20.0.1-, Armexure P-11-, chows that 10 p`ersoas named therein wereabsorbed in the State Civil Service for the reason that the Governmentconsidered it expedient to absorb them as they did not belong to anyorganized service and they should have been inducted in the State CivilService in 1993` when mass induction took place in the Sikkim State CivilS.ervice and having regard to their ho.Iding analogue posts as held by themembers Of Silckim State Civil Service Officers. It carmot be said that thepetitioner who was held by the judgment dated 21-Q9-1996. tQ be entitledo.uly to. the gazetted scale. and nut to. a gazietted post and who did not holdany analQgus po.st in terms Qf the no.tificatiQn dated 20-7-20.01(AlineRTe P-11) fell in the same class in which the .1Q persons rrmed inthat no.tification fell. Furthermore, this relief is inconsistent with thejndgmentofthis.Co.urtdated21-0.9-,1996ac`cordingtowhichthepetitionerwas. held entitled to the gazetted scale and not a gazetted post.ry^. ctryrJwl

3.. Ireamed counsel for the p.etitioner submits that vide OrderNo.3.0.0/G/D.QP dated 3.0-05-1996, Annexure P-5., the petitioner wastransferred as. Assistant Superintendent Trasport, Sikkim NatiQnalisedTransport, Gangtok which is a gazetted post and as such the petitionersho`uld be held entitled tQ that post. Vide. Order dated 13.-08-2QQ2, theGovernment was required to. clarify as to. how the petitioner wastransferred tQ a gazetted post. Thereafter, an affidavit dated 29.&.20.02 hasbeen filed by Smt. D.L. llama, Additional Secretary, Department ofPersomel, A.R. & Training to the effect that earlier the petitioner washo.1ding the post of Private Secretary to the Adviser of Govt. of Sikkimwhich was a cQ-terminus post and since that post was a gazetted post, theOrder dated 30-5-1996 was issued posting the petitioner as AssistantS.uperintendent TranspQprt, Sikkin NatiQnalised Transport by mistalce andinadvertence. It is manifest that this order was issued earlier to the date OfJudgment dated 21-09-1996 and sQ this office order camQt cloud in anylnanner the judgment of the Court. Once it has been held by this Courtvide judgment dated 21-Q9-1996 that the petitioner is entitled to onlygazetted scale and not a gazetted post and his substantive post is to betaken as Qf Serior Accountant for subsequent prQmQtion, his claim forhigher post witho.ut any order of promotion being passed is to be adjudgedonly as frivo.Ious. As such, there is nQ merit in the petition.

In the result, the petition is dismissed with cost of Rs.10,0.00/-(Rupees.tenthousand).

ry`` cwJrwlh , ' 1,t},,ia. Dayal)Chief Justice04-12-2002.