Sikkim High Court
Sushil Pradhan & Ors vs State Of Sikkim And Ors on 25 January, 2021
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 25th January, 2021
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.30 of 2016
0
Petitioners : Sushil Pradhan and Others
versus
Respondents : State of Sikkim and Others
Petitioner under Article 226 of the
Constitution of India
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Appearance
Mr. A. Moulik, Senior Advocate with Ms. K.D. Bhutia and Mr. Ranjit
Prasad, Advocates, for the Petitioners.
Dr. (Mrs.) Doma T. Bhutia and Mr. Sudesh Joshi, Additional Advocate
Generals with Mr. S.K. Chettri, Additional Government Advocate and
Mr. Sujan Sunwar, Assistant Government Advocate, for Respondents
No.1 to 3.
Mr. Karma Thinlay, Senior Advocate for Respondents No.4 to 6.
Mr. J.B. Pradhan, Senior Advocate with Mr. T.R. Barfungpa and Ms.
Yangchen Doma Gyatso, Advocates for Respondents No.7 to 17.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The discontentment of the Petitioners arises on account
of their appointment and retention on Officiating basis from
08.05.2008 in the posts of Accounts Officers despite alleged
existing Substantive vacancies, confirming them in the posts only
on 16.03.2013, thus, depriving them of regular Promotion and
Service Seniority, as against the Respondents No.7 to 17 directly
recruited as Accounts Officers in January/February, 2009, who
Sushil Pradhan and Others vs. State of Sikkim and Others
have been ranked higher than the Petitioners in the inter se
Seniority.
1.(a) They are further aggrieved that the Respondents No.4,
5 and 6, who had appeared in the same Departmental Examination
as them in the year 1997, were promoted on 24.12.1997 as Senior
Accountants from the Panel prepared for such Promotion. On
05.02.2005, the same Respondents were further promoted as
Accounts Officers on Officiating capacity while the Petitioners No.1,
2 and 8 despite possessing similar requisite qualifying years of
Service, were excluded citing lack of vacancy. The said
Respondents were promoted on Substantive capacity as Accounts
Officers on 21.01.2009 and as Senior Accounts Officers on
Officiating basis on 11.02.2011. The Petitioners No.1 and 2 were
promoted as Senior Accountants in 1998, the Petitioner No.8 in
1999 and the remaining Petitioners only on 27.06.2000.
1.(b) It is the Petitioners' case that they were, in fact,
eligible for Promotion as Accounts Officers in 2004-2006 itself,
having then put in the requisite years of Service required by the
Rules as Senior Accountants. When the Cadre strength of Accounts
Officers was 77 (seventy-seven), there were adequate vacancies to
accommodate them in Substantive capacity, which would have
made them seniors to the 11 (eleven) Direct Recruits who were
appointed in January/February, 2009, allegedly from the same
Cadre strength of 77 (seventy-seven) and promoted as Officiating
Senior Accounts Officers on 11.01.2013 after only four years of
Service, as against the required number of six years, mandated by
the Rules. In December, 2008, the Cadre strength was increased
from 77 (seventy-seven) to 103 (one hundred and three), resulting
Sushil Pradhan and Others vs. State of Sikkim and Others
in 26 (twenty-six) new vacancies but it was only on 16.03.2013,
that the Petitioners were confirmed in the Substantive posts of
Accounts Officers. The Petitioners No.1, 2 and 8 along with one
M.R. Chettri, were promoted as Senior Accounts Officers on
Officiating capacity on 22.05.2014, leaving out the remaining
Petitioners who possessed the requisite qualification and merit.
1.(c) The Petitioners speculate that had they been promoted
as Accounts Officers in 2004-2006, by 2013, they could well have
been promoted as Senior Accounts Officers in the 12 (twelve)
vacancies in the said posts, but vide a Notification dated
21.06.2013, these 12 (twelve) posts were downgraded to that of
Accounts Officers, allegedly for the purpose of appointing Direct
Recruits as Accounts Officers. Ultimately, no Direct Recruit came to
be appointed to the downgraded posts but were then filled by way
of Promotion. Thus, the policy of Promotions adopted by the State-
Respondents No.1, 2 and 3 has been prejudicial to the Petitioners.
On approaching the Respondent No.3, their prayers were declined,
while steps taken by the Respondent No.1 to mitigate their
grievances on their request led to their confirmation in March,
2013, by which time, the Respondents No.7 to 17 had already
stolen a march against them in terms of Seniority. That, although
Petitioners No.2 and 3 have retired during the pendency of the
instant Writ Petition, they seek enforcement of their legal rights.
1.(d) Hence, the prayers in the Petition, as extracted
hereinbelow;
„(i) A Rule upon the Government respondents to show-
cause as to why the petitioners‟ seniority in the rank
of A.O. and Sr.A.O. shall not be protected and they
be declared as seniors to the directly recruited
respondent nos.7 to 17 with all service benefits in
Sushil Pradhan and Others vs. State of Sikkim and Others
the rank of A.O. and Sr.A.O. and upon hearing the
parties to make the Rule absolute;
(ii) A writ or order or direction or declaration that the
petitioners are seniors to the respondent nos.7 to
17 i.e. directly recruited A.O. and in the seniority list
the petitioners‟ name be incorporated above those
of respondent nos.7 to 17 in the said rank of A.O.;
(iii) A writ or order or direction or declaration that the
three petitioners namely petitioner nos.1, 2 and 8
be deemed to be promoted as Sr.A.O. on the same
date when respondent nos.7 to 17 were promoted
as Sr.A.O. on officiating capacity with all service
benefits;
(iv) A writ or order or direction or declaration that the
petitioners who were promoted as A.O. in
substantive capacity on 16/3/13 be deemed to have
promoted as such on 08/5/2008 when they were
promoted as A.O. in officiating capacity without
service benefits;
(v) A writ or order or direction or declaration that the
12 numbers of posts of Sr.A.O. which were
downgraded vide Office Order dated 21/6/13
(Annexure-P9) shall be set aside, quashed and
cancelled.
(vi) A writ or order or direction or declaration that the
petitioners shall be given all benefits of service in
the respective rank of A.O. and Sr. A.O. and they be
placed senior over the respondent nos.7 to 17 in the
seniority list in the said rank of A.O. and Sr.A.O.
(vii) A writ or order or direction or declaration that the
petitioners shall be given all benefits of service in
the respective rank of A.O. and Sr.A.O. and they be
placed in the seniority list above those of the
respondent nos.7 to 17 in both the ranks.
(viii) A writ or order or direction or declaration that the
remaining seven petitioners namely petitioner nos.3
to 7, 9 and 10 be also promoted in the rank of
Sr.A.O. in substantive capacity before those of
respondent nos.7 to 17;
(ix) A writ or order or direction or declaration to follow
the process of appointment/promotion between the
petitioners and the respondent nos.7 to 17 on 50:50
ratio i.e. 50% for inservice candidates i.e.
petitioners and 50% for direct recruits i.e. the
respondent nos.7 to 17.
(ix)(a) A writ or order or direction or declaration
declaring that the petitioner nos.2 and 3
even after retirement in the service shall be
entitled to get their legal rights pertaining to
their incidental reliefs/service benefits which
they would have got prior to their retirement
in the event the petitioners succeed in the
instant writ petition.
(x)...............
(xi)...............‟
2.(i) While denying and disputing the averments of the
Petitioners, the State-Respondents No.1, 2 and 3, in their joint
Sushil Pradhan and Others vs. State of Sikkim and Others
Counter-Affidavit, sought to explain that on 03.06.2003, the Cadre
strength of the Accounts Officers were increased from 75 (seventy-
five) to 77 (seventy-seven). On the date of Cadre revision in
December, 2008, 31 (thirty-one) persons were occupying the posts
of Accounts Officers while 46 (forty-six) posts were vacant. 23
(twenty-three) posts were to be filled by Direct Recruitment
through Open Competitive Examination and 23 (twenty-three) by
way of Promotion. Therefore, against the 23 (twenty-three) posts
for Promotees, in fact, 55 (fifty-five) Officers were promoted and
all were senior in rank to the Petitioners. No Direct Recruitment to
the post of Accounts Officers in the 23 (twenty-three) vacant posts
meant for Direct Recruits, took place during the said period, the
last Direct Recruitment having been made in May, 2003. It was
only on 16.07.2007 that the Respondent No.3 forwarded a
requisition to the Sikkim Public Service Commission (for short
"SPSC"), for filling up 11 (eleven) posts of Accounts Officers under
the Sikkim Finance and Accounts Service Rules, 1978 (for brevity
"Rules of 1978") by Direct Recruitment. Pending this proposal, 17
(seventeen) Senior Accountants were promoted as Accounts
Officers in Officiating capacity on 08.05.2008, subject to the
conditions that the Officiating Promotion shall not confer any right
for regular Promotion and shall not be counted towards Seniority
and their regular Promotion shall be made on the recommendation
of the SPSC, which were accepted by the Petitioners without
demur. The amendment of the Rules of 1978 on 15.12.2008,
increased the Cadre strength of Accounts Officers from 77
(seventy-seven) to 103 (one hundred and three). On 08.04.2008,
prior to the above amendment, the SPSC invited applications for
Sushil Pradhan and Others vs. State of Sikkim and Others
filling up of 11 (eleven) posts of Accounts Officers, consequently 11
(eleven) Direct Recruits came to be appointed vide Orders dated
31.01.2009, 02.02.2009 and 04.02.2009. Thus, the appointment of
Respondents No.7 to 17 was against the Direct Recruitment Quota
of 50 per cent of the Rules of 1978 and having been appointed in
Substantive capacity, were made senior to the Petitioners who
were promoted on Officiating capacity, as 20 (twenty) Officers
senior to them were already working in Officiating capacity. That,
Rule 24 Sub Clause 5 of the Sikkim Finance Accounts Service
(Amendment) Rules, 1986 (hereinafter "Rules of 1986") provides
for Rota Quota but the Government had considered the Promotion
of Senior Accountants to the post of Accounts Officers from
December, 2003 to June, 2007, duly utilizing Direct Recruitment
Quota either on Officiating basis and then in Substantive capacity,
or against Substantive capacity as and when vacancy existed, or
against anticipated vacancies.
(ii) Countering the allegation of the Petitioners being made
junior to Respondents No.4, 5 and 6, it was explained that they
were placed at Serial Nos.1, 2 and 3 amongst 19 (nineteen)
candidates in the Departmental Examination held for Promotion
which was subject to availability of vacancies, which occurred on
24.12.1997. The validity of the Panel was extended up to
31.12.1999 and the Petitioners No.1, 2 and 3 were promoted as
Senior Accountants on 31.12.1998. Similarly, one D.R. Pradhan
and the Petitioner No.8, were promoted on 22.05.1999. On
14.06.1999, the Petitioners No.3, 4, 6, 7 and 9 submitted a
Petition to the Government seeking extension of the Panel till
finalization of anticipated vacancies of Senior Accountants. On due
Sushil Pradhan and Others vs. State of Sikkim and Others
consideration by the Government, these persons also came to be
promoted as Senior Accountants on 27.06.2000. That, the Petition
deserves a dismissal on grounds of delay and laches, as the Orders
of the Petitioners pertaining to Officiating capacity was issued in
2008 while the Writ Petition was filed only in 2016.
3. The Respondents No.4, 5 and 6 filed their respective
Counter-Affidavits which, in sum and substance, were similar to
each other and substantially reiterated the facts as set out in the
Counter-Affidavit of the Respondents No.1, 2 and 3.
4. Respondents No.7 to 17, while denying and disputing
the allegations made in the Writ Petition, reiterated the position of
Quota and Rota as spelt out by the State-Respondents No.1, 2 and
3 and averred that the prayers in the Petition are misconceived and
liable to be rejected by this Court as also the Writ Petition.
5. In Rejoinder, the Petitioners elucidated that by the time
the Cadre was revised in the month of December 2008, around 14
(fourteen) people had retired/expired which has not been
addressed by the State-Respondents as they were aware that the
Petitioners could well have been accommodated in the said 14
(fourteen) vacancies. The names of the 14 (fourteen) persons who
had retired/expired between 2003 to December 2008, were also
detailed in the Rejoinder.
6.(i) Advancing his arguments for the Petitioners, Learned
Senior Counsel Mr. A. Moulik, while reiterating the averments made
in the Writ Petition and the Rejoinder, contended that the State-
Respondents have attempted to prove that the Promotion of the
Petitioners as Accounts Officers in Officiating capacity was merely a
stop gap arrangement and a fortuitous appointment as such, their
Sushil Pradhan and Others vs. State of Sikkim and Others
past Services could not be counted for the purposes of rendering
them senior to the private Respondents. Relying on the decision in
D.R. Nim vs. Union of India1, it was canvassed that the Petitioners
have worked in the post of Accounts Officers for several years and
have never been reverted, hence they are entitled to Seniority
from 08.05.2008, the date of their Officiating Orders in the posts of
Accounts Officers. It was further contended that the Hon'ble
Supreme Court has held in Rudra Kumar Sain and Others vs. Union of
India and Others2 that if an appointment is made to meet a
particular contingency and for a specific period, then such an
appointment is ad hoc or stop gap. On the other hand, if the post is
created to meet a sudden and temporary situation then the
appointment is fortuitous but these criterion are not attracted in
the Order of the Petitioners, dated 08.05.2008. Drawing support
from the decision in O.P. Singla and Another vs. Union of India and
Others3, Learned Senior Counsel next contended that as per the
said ratio, if a temporary employee works for five to twelve years
continuously and the Appointment Order reads as "Until further
orders" then such appointment cannot be termed as ad hoc or
fortuitous or stop gap, so also is the case of the Petitioners. That,
the two conditions laid out in the Officiating Promotion Order dated
08.05.2008 were mere requirements. The Petitioners had indeed
completed 6 (six) years of Service as Senior Accountants as
required by the relevant Rules, making them eligible for Promotion
as Accounts Officers in 2004/2006 itself. However, the Petitioners
continued as Officiating Accounts Officers for years together due to
AIR 1967 SC 1301
(2000) 8 SCC 25
(1984) 4 SCC 450
Sushil Pradhan and Others vs. State of Sikkim and Others
inaction and negligence of the State-Respondents, thus the
Petitioners have the right to claim Seniority over the private
Respondents. On this count, reliance was placed on Baleshwar Dass
and Others vs. State of U.P. and Others4.
(ii) Canvassing the contention that there were sufficient
vacancies in the Substantive posts in which the Petitioners could
have been promoted on 08.05.2008 itself, Learned Senior Counsel
pointed out that there were 10 (ten) vacancies in the rank of
Accounts Officer when the Petitioners were promoted on Officiating
basis on 08.05.2008, as the State-Respondents have claimed at
Paragraph "5(d)" of their Counter-Affidavit that there were 46
(forty-six) vacancies as on 01.07.2003 in the rank of Accounts
Officer to be filled up, out of which 9 (nine) posts were filled up on
19.12.2003, another 19 (nineteen) posts were filled up on
20.02.2004 and 8 (eight) vacancies were filled up on 08.06.2006.
Thus, up to 08.05.2008, only 36 (thirty-six) vacancies out of 46
(forty-six) were filled up in the Substantive capacity and 10 (ten)
vacancies were yet to be filled. Hence, it was erroneous to state
that when the 10 (ten) Petitioners were promoted as Accounts
Officers (Officiating), there was no vacancy.
(iii) It was further contended that as on 03.06.2003, the
Cadre Strength of Accounts Officers was 77 (seventy-seven) for
which reliance was placed on Annexure R-2. As on 01.07.2003, the
vacancies to be filled up out of 77 (seventy-seven) posts was 46
(forty-six) for which, attention of this Court was invited to
Annexure R-3. That, vide Annexure R-11 dated 15.12.2008, the
Cadre Strength of Accounts Officers was increased from 77
(1980) 4 SCC 226
Sushil Pradhan and Others vs. State of Sikkim and Others
(seventy-seven) to 103 (one hundred and three) thereby creating
26 (twenty-six) new posts. Hence, as on the said date, total
vacancies amounted to 72 (seventy-two) by adding the 46 (forty-
six) existing vacancies and 26 (twenty-six) newly created posts.
That, 9 (nine) Senior Accountants were promoted as Accounts
Officers on Substantive basis of which, 4 (four) retired/died before
the Petitioners were promoted on 08.05.2008. Thereafter on
20.02.2004, 19 (nineteen) Senior Accountants were promoted as
Accounts Officers in Substantive capacity out of which, 8 (eight)
persons retired. Vide Order dated 23.02.2004, 22 (twenty-two)
persons were promoted as Accounts Officers who were later
absorbed in Substantive posts vide different Orders through the
years 2006, 2008 and 2009. Thus, out of the 72 (seventy-two)
vacancies existing till 15.12.2008, 56 (fifty-six) vacancies were
filled by 21.01.2009 and 16 (sixteen) vacancies were yet to be
filled. That, the recruitment of Respondents No.7 to 17 was against
non-existent vacancies. That, the 20 (twenty) senior most
Accounts Officers had to be promoted out of the 26 (twenty-six)
new vacancies of which, 6 (six) vacancies then remained in hand,
in which Respondents No.7 to 17 could not be accommodated
besides, the State-Respondents have not addressed the death or
retirement of 14 (fourteen) Accounts Officers up to the end of
2008, thereby creating vacancies by 2008 in addition to the stated
72 (seventy-two) vacancies.
(iv) That, the delay in approaching the Court is on account
of the absence of any Seniority List and that there is still no
Confirmation List as on date. On the point of delay, reliance was
placed on Ram Nath Sao alias Ram Nath Sahu and Others vs.
Sushil Pradhan and Others vs. State of Sikkim and Others
Gobardhan Sao and Others5. Relying on proposition "(B)" of
Paragraph "47" of the ratio in Direct Recruit Class II Engineering
Officers' Association vs. State of Maharashtra and Others 6, Learned
Senior Counsel for the Petitioners submitted that in terms thereof,
in the instant matter, even assuming that the initial appointment
was not made by following the procedure prescribed, the
Petitioners continued in Service uninterruptedly till regularization in
accordance with the Rules, therefore the period of Officiating
Service ought to be counted towards Seniority vis-à-vis the
Respondents No.7 to 17. The Petitioners could have been
confirmed in 2006 and 2008 in the existing vacancies. The
Petitioners have been deprived of Promotion in their right time and
have been kept on Officiating basis when they are entitled to
Seniority over the Respondents No.7 to 17. Garnering strength
from the ratio of Narender Chadha vs. Union of India7, it was stated
that the Petitioners' case is comparable to the said ratio as the
Petitioners were qualified to fill the posts. To further reinforce his
submissions, reliance was placed on the decisions in S.B.
Patwardhan and Another vs. State of Maharashtra and Others 8, Pran
Krishna Goswami and Others vs. State of West Bengal and Others9, G.K.
Dudani and Others vs. S.D. Sharma and Others10, G.C. Gupta and Others
vs. N.K. Pandey and Others11, M.V. Krishna Rao and Others vs. Union of
India and Others12 and State of W.B. and Others vs. Aghore Nath Dey
and Others13.
AIR 2002 SC 1201
(1990) 2 SCC 715
(1986) 2 SCC 157
(1977) 3 SCC 399
AIR 1985 SC 1605
AIR 1986 SC 1455
(1988) 1 SCC 316
(1994) Supp 3 SCC 553
(1993) 3 SCC 371
Sushil Pradhan and Others vs. State of Sikkim and Others
7. Learned Additional Advocate General, Dr. (Mrs.) Doma
T. Bhutia, for the State-Respondents No.1 to 3, per contra,
contended that once the Petitioners have accepted the Officiating
Promotion along with the conditions therein without demur, it
tantamounts to their acceptance of the conditions and hence, they
have waived their rights pertaining to Seniority as they failed to
raise any issue on this point, at the relevant time. Towards this
point, reliance was placed on P.S. Gopinathan vs. State of Kerala and
Others14. Drawing strength from the ratio in Rajen Kumar Chettri vs.
State of Sikkim and Others15, it was contended that the Petition has
been filed belatedly and for this reason, cannot be sustained. That,
there were no vacancies in the Quota for Promotees when the
Petitioners were promoted on Officiating basis and their claim for
Seniority is unsubstantiated and stale. On this count, reliance was
placed on B.S. Sheshagiri Setty and Others vs. State of Karnataka and
Others16. That, Seniority can be reckoned only from the date that
the Petitioners entered the Service in Substantive posts and not
retrospectively. Contending that the Promotees cannot be
accommodated in the Quota meant for the Direct Recruits, thus
resulting in the Officiating Promotion of the Petitioners, reliance
was placed on Nani Sha and Others vs. State of Arunachal Pradesh and
Others17. That, the Petition is hit by laches and delay, this aspect of
the argument was buttressed by Union of India and Others vs. M.K.
Sarkar18. Relying on the facts and circumstances as detailed in the
(2008) 7 SCC 70
2019 SCC OnLine Sikk 202
(2016) 2 SCC 123
(2007) 15 SCC 406
(2010) 2 SCC 59
Sushil Pradhan and Others vs. State of Sikkim and Others
Counter-Affidavit, it was contended that the Petition deserves a
dismissal.
8. Learned Senior Advocate Mr. Karma Thinlay, for
Respondents No.4, 5 and 6 reiterated and relied on the averments
made in their Return and submitted that they were promoted as
Accounts Officers on Officiating capacity in the year 2005 and were
confirmed in the year 2009. That, should the Petitioners be granted
reliefs in terms of Seniority from 2008, the cascading effect
thereon would be to the benefit of the Respondents No.4, 5 and 6,
who would also then be eligible for Seniority from the year 2005.
That, 46 (forty-six) vacant posts of Accounts Officers existed in
2003 and the Officiating Order of the Respondents No.4, 5 and 6
was issued when the 46 (forty-six) posts were vacant. In fact, out
of the 77 (seventy-seven) posts of Accounts Officers at the
relevant time, 31 (thirty-one) were filled and against the 46 (forty-
six) vacancies, Respondents No.4, 5 and 6 had been appointed on
Officiating basis on 05.02.2005 and confirmed on 21.01.2009.
Respondents No.4, 5 and 6 are therefore senior to the Petitioners.
That, the Petition being devoid of merit ought to be dismissed.
9.(i) Learned Senior Advocate Mr. J.B. Pradhan, on behalf of
Respondents No.7 to 17, building his arguments on the edifice of
Rule 24 (5) of the Rules of 1986, pointed out that the said Rule
provides that the relative Seniority inter se of persons recruited to
the Service through Competitive Examination and by Promotion,
shall be determined according to the rotation of vacancies between
Direct Recruits and Promotees which shall be based on the Quotas
of vacancies reserved for Direct Recruitment and Promotion
respectively. That, the said Rule also provides in the "Explanation"
Sushil Pradhan and Others vs. State of Sikkim and Others
that "a Roster shall be maintained based on the reservation for Direct
Recruitment and Promotion in the Rules, which shall be as follows; (1)
Promotion (2) Direct Recruitment (3) Promotion (4) Direct Recruitment
and so on. Appointment shall be made in accordance with this Roster and
Seniority determined accordingly." Therefore, the Petitioners cannot
be promoted in the Quota of the Direct Recruits, in excess to their
own Quota. That, this position is fortified by Schedule II to the
same Rules, which provides for 50 per cent by Direct Recruitment
through Open Competitive Examination and 50 per cent by
Promotion through Limited Departmental Competitive
Examination/Deputation/Re-employment. Attention was also
invited to Rules 6 and 16 of the Rules supra. That, as per the Office
Note Sheet dated 30.06.2003, out of 77 (seventy-seven) numbers
of Posts of Accounts Officers in the Junior Grade in the year 2003,
46 (forty-six) Posts were vacant. In terms of Schedule II of the
Rules of 1986, 46 (forty-six) Posts were to be equally divided
between Promotees and Direct Recruits, however, between the
years 2003 up to 2008, no appointments by way of Direct
Recruitment were made, whereas the 23 (twenty-three) posts for
Promotees was duly filled up and exceeded as well. Learned Senior
Counsel contended that when the Petitioners were promoted on
Officiating basis on 08.05.2008, there was no Substantive posts
neither were the Rules relaxed then by any executive Order. It was
only on 19.05.2012 that a Notification pertaining to relaxation of
Rules was published. The State-Respondent No.3 sent the Letter of
recommendation for appointment of the Petitioners only on
13.09.2012 to the SPSC, upon which the Departmental Promotion
Committee of the SPSC convened on 24.01.2013 and accepted the
Sushil Pradhan and Others vs. State of Sikkim and Others
recommendations. The Petitioners were then promoted to the
Substantive posts of Accounts Officers only after 24.01.2013,
whereas the Respondents No.7 to 17 were appointed in
Substantive posts between 31.01.2009 to 04.02.2009 thereby
rendering them senior to the Petitioners in terms of Rule 24 supra.
Inviting the attention of this Court to the ratio in State of W.B. and
Others vs. Aghore Nath Dey and Others (supra) wherein the dispute
arose as a result of Promotions being made in excess of the
Promotees Quota in the case of the surplus Promotees, it was
contended that even if it is to be presumed that the Rules were
relaxed, the relaxation can only be effective from the date of
issuance of Notification by the Government in this context, i.e. in
the case of the Petitioners from 19.05.2012, if not from
16.03.2013 which is the correct approach and would still render
them subordinate to Respondents No.7 to 17.
(ii) That, the amendments to the Rules of 1978, notified on
25.02.1987, are relevant which provides at Rule 6 that competitive
examination was to be held by the Commission and the number of
vacancies to be filled up by Promotion, Deputation or Re-
employment in one year, would not exceed 50 per cent of the total
number of vacancies to be filled in that year. Pointing to the
alleged incongruities in the grounds raised by the Petitioners, more
especially in Grounds No.1, 2, 5, 8 and 11, Learned Senior Counsel
contended that the Petitioners have approached the Court
belatedly as they seek to challenge the appointment of
Respondents No.7 to 17 after a period of 8 (eight) years of their
appointment as Accounts Officers and that of Respondents No.4 to
6 after a period of 19 (nineteen) years from the date they were
Sushil Pradhan and Others vs. State of Sikkim and Others
appointed as Senior Accountants. That apart, it was a rather
strange proposition that the Petitioners were claiming Service
Seniority from the date of their Officiating Service despite the clear
conditions specified in their Orders. These Orders were unassailed
before the concerned authorities thereby barring the Petition by the
principles of Waiver, Estoppel and Acquiescence, to buttress this
submission reliance was placed on P.S. Gopinathan (supra) and M.P.
Palanisamy and Others vs. A. Krishnan and Others 19. Besides, the
Petitioners cannot pick and choose parts of the Order favourable to
them and reject the others, as held in M.P. Palanisamy (supra).
That, the Rota Quota Rule was not broken but procedure
prescribed therein was not followed, thus to utilize the Rota Quota
Rule, the Notification pertaining to relaxation of Rules was issued
on 19.05.2012 to enable regularization of the appointment of the
Petitioners. That, in fact, the Rota Quota Rule breaks down only
when efforts are made by the Government through advertisement
inviting candidates for Direct Recruitment but fails to get
candidates making such appointments an impossibility. It is then
that the Government has to derive a method to deviate and see
how the posts can be filled up. The Government is thus under an
obligation to establish by documentary evidence that there were no
suitable candidates for appointment by Direct Recruitment.
Paragraph "5 (e)" of the State-Respondents' Counter-Affidavit
indicates that no such effort was made. On this count, succour was
drawn from the ratio in Suraj Parkash Gupta and Others vs. State of
J&K and Others20 and N.K. Chauhan and Others vs. State of Gujarat and
(2009) 6 SCC 428
(2000) 7 SCC 561
Sushil Pradhan and Others vs. State of Sikkim and Others
Others21. Further, support was garnered from the ratio in Union of
India vs. Dharam Pal and Others22 wherein it was observed that
where the initial appointment is only ad hoc and not according to
Rules and made as a stop gap arrangement, the period of
Officiation in such post cannot be taken into account for
considering the Seniority. That, even assuming that there were
vacancies for the purposes of Promotion, the Petitioners were to
have adhered to the procedure of appearing for Departmental
Examinations and thereafter obtaining the recommendation of the
SPSC, this was not done. Inviting the attention of this Court to
Keshav Chandra Joshi and Others vs. Union of India and Others 23 and
Samdup Tshering Bhutia vs. State of Sikkim and Others24, it was
canvassed that the Officiating Promotion of the Petitioners was
fortuitous appointments and the Direct Recruit Quota on which
they were promoted, has to invariably revert back to the Direct
Recruits for the next appointments. That, the Petitioners have
themselves accepted by averments made in their Rejoinder that
other Accounts Officers similarly circumstanced as them, were
promoted in Substantive Capacity in the vacancies meant for both
Promotees and Direct Recruits. Relying on the ratio of Direct Recruit
Class II Engineering Officers' Association (supra), Learned Senior
Counsel advanced the contention that the case of the Petitioners
falls under the corollary of Proposition "(A)" in Paragraph "47"
therein and not under proposition "(B)", as advanced by Learned
Senior Counsel for the Petitioners. That, in view of the grounds
(1977) 1 SCC 308
(2009) 4 SCC 170
(1992) Supp 1 SCC 272
2017 SCC OnLine Sikk 153
Sushil Pradhan and Others vs. State of Sikkim and Others
canvassed, the Petition being devoid of merit deserves to be
dismissed.
10. In rebuttal, Learned Senior Counsel for the Petitioners,
while agreeing with Learned Senior Counsel for Respondents No.7
to 17 that the Rota Quota Rule had not broken down, submitted
that initially due to filling up of the posts of Direct Recruits by the
Promotees, there was a breakdown of the Rota Quota Rule but
these appointments were subsequently regularized restoring the
Rota Quota. That, no condition in the Officiating Order debarred
the Petitioners from claiming Seniority from the date of Promotion
in their Officiating capacity once they were regularized in the
Substantive posts. That, the settled position of law is as laid down
in Direct Recruit Class II Engineering Officers' Association (supra) by
the Constitution Bench and this is applicable to the Petitioners'
case. That, the ratio in Samdup Tshering Bhutia (supra) relied on by
the Respondents No.7 to 17, is not relevant in the instant matter
as the Court was not informed of the correct factual position and
its conclusion for arriving at the finding that the appointment was
fortuitous, was sans reasons. The question of the Petitioners
accepting the Officiating Promotion without demur does not arise,
they being mere employees and the State-Respondents were
required to look after their welfare. That, the case of M.P.
Palanisamy (supra) relied on by the Respondents No.7 to 17, is
distinguishable from the instant facts and not applicable to the
Petitioners' case as also the ratio in P.S. Gopinathan (supra) and
hence the Petitioners are deserving of the reliefs prayed for.
11. The rival submissions of Learned Counsel for the
parties were heard in extenso by me and given due consideration.
Sushil Pradhan and Others vs. State of Sikkim and Others
The decisions relied on by Learned Counsel for the parties have
also been perused as also the pleadings and all documents on
record.
12. The only question that falls for consideration before
this Court is;
Whether the fitment of Seniority determined by the
Department vis-à-vis the Petitioners and the
Respondents No.7 to 17, was in accordance with the
Rules?
13.(i) To assess with clarity the grievances of the Petitioners,
it is essential to briefly refer to the Rules which govern them. The
Sikkim Subordinate Accounts Service Rules, 1984 was notified on
28.01.1985 and governs the posts of Accounts Clerk, Junior
Accountant, Accountant and Senior Accountant. The Petitioners
were initially appointed in Service under these Rules. The Rules of
1978, notified on 30.04.1979, governs the appointment of
Accounts Officers and Senior Accounts Officers consisting of three
Grades i.e. Junior, Senior and Selection Grades. The said Rules
comprised of thirteen Clauses including Rule 13 which is the
interpretation Clause. Rule 3 provided inter alia for "Constitution of
Service", Rule 4 was for "Appointments and Postings," Rule 5 detailed
"Initial Constitution of the Service," Rule 6 laid down the "Method of
Recruitment to the Service," Rule 7 was concerned with "Qualification
for Appointment," Rule 8 dealt with "Constitution of Selection
Committees." The Committee was to comprise of the Chairman,
Sikkim Public Service Commission or his nominee, the Chief
Secretary to the Government, the Finance Secretary and the
Establishment Secretary to the Government and was entrusted
with the task of grading persons mentioned in Rule 5, for
Sushil Pradhan and Others vs. State of Sikkim and Others
absorption in the various Grades of the Service and under Sub Rule
(4) of Rule 6. The Committee was also to make recommendations
for Direct Recruitments under Clause (i) of Rule 6 or Sub Rule (4)
of Rule 6. Promotion of persons mentioned in Rule 6 (1) (iv) was
also vested on the Committee. The recommendations of the
Committee, as finally approved by the Commission, was to be
forwarded to the Government along with all other papers sent to
the Selection Committee. Rule 9 elucidated the "Training, Probation
and Confirmation" of persons appointed, while Rule 10 laid the
details of how "Seniority" was to be computed and provided that the
persons deemed to have been appointed to the Service under Rule
5 was to rank as senior to all those who may be appointed under
Rule 6 and that, "The inter-se seniority of direct recruits and promotees
shall be in the order in which their names appear in the merit/select list.
As for seniority between promotees and direct recruits, persons promoted
in one year shall rank senior to persons recruited direct in that year."
Schedule I to the Rules detailed the strength and composition and
designation of posts. It indicated 29 (twenty-nine) posts then in
the Junior Grade i.e. that of Accounts Officers.
(ii) The Rules came to be amended several times in the
interregnum and twice in 1986, one vide Notification No.15/Fin.
dated 11.03.1986 and vide Notification No.20/Fin. dated
25.02.1987. Vide the amendment on 25.02.1987, the sanctioned
strength of Accounts Officers was shown to be 43 (forty-three) in
Schedule I. Rules 6 and 16 of the amended Rules are extracted
hereinbelow;
"Amendment of rules In the said rules, for rules 6,
6, 7, 8, 9, 10, 11, 12, 13. 7, 8, 9, 10, 11, 12 and 13,
following rules shall be
substituted, namely:-
Sushil Pradhan and Others vs. State of Sikkim and Others
"6. Method of Recruitment to the Service - (1)
Subject to the provision of rules 5, recruitment to
the Service shall, after the appointed day, be
made by the following methods, namely:-
(i) Competitive Examination to be held by the
Commission.
(ii) Obtaining the services of any employee of the
Central Government or other State Governments.
(iii) Promotion from among persons holding
substantive appointment in Grade I mentioned in
Schedule II to the Sikkim Sub-ordinate Accounts
Service Rules, 1984.
(iv) Re-employment, after retirement of any person,
who in the opinion of the Government is suitable for
such re-employment.
2. (i) Government shall ordinarily decide in each
year the number of vacancies in the Service to be
filled in that year by direct recruitment and
also the number to be filled by promotion or by
any other method mentioned in sub-rule (1).
(ii) The number of vacancies to be filled up by
promotion, deputation or re-employment in any
one year shall not exceed 50 per cent of the
total number of vacancies to be filled in that
year."
................................................................................................
16. RECRUITMENT BY PROMOTION
(1) ................................................................................................
(2) The Government shall, every year for the purpose of
promotion to the Service under Clause (iii) of sub-
rule (1) of rule 6, prepare a list of names of persons
in order of seniority who have, on the first day of
that year, completed not less than six years of
continuous service under the Government in a
post included in Grade I mentioned in the Schedule
II appended to the Sikkim Subordinate Accounts
Service Rules, 1984.
(3) The Government shall forward to the
Commission the list of persons referred to in
sub-rule (2) of this rule together with their
character rolls and service records for the preceding
five years indicating the anticipated number of
vacancies to be filled by promotion in course of
the period of 12 months commencing from the
date of preparation of the list.
(4) The Commission after satisfying themselves
that the records and information complete in all
respects have been received, shall convene a
meeting of the Promotion Committee. The
Committee shall prepare a final list of persons
who are found to be suitable for promotion to
the Service on an overall relative assessment of
their service records and interview.
(5) The number of persons to be included in the list
shall not exceed twice the number of vacancies to
be filled by promotion.
(6) The Commission shall forward the final list
prepared under sub-rule (4) of this rule to the
Government along with all the character rolls
and service records received from the
Government.
Sushil Pradhan and Others vs. State of Sikkim and Others
(7) The list shall ordinarily be in force for a period of
twelve months from the date of the
recommendation of the Commission.
(8) Appointment of persons included in the list to
the service shall be made by the Government in the
order in which the names of persons appear in the
list.
(9) It shall not be ordinarily necessary to consult
the Commission before each appointment is
made unless during the period of 12 months
from the date of recommendation of the
Commission there occurs deterioration in the
work of the person which in the opinion of the
Government, is such as to render him
unsuitable for appointment to the service."
(emphasis supplied)
(iii) Schedule II referred to in Rule 16 (2) supra details the
"Designation of Posts," "Method of Recruitment" and "Eligibility
Conditions" of Selection Grade I, Selection Grade II, Senior Grade
and Junior Grade. So far as the Junior Grade is concerned, it
includes Accounts Officer/Accounts-cum-Administrative Officer/
Audit Officer and the "Method of Recruitment" is shown to be 50 per
cent by Direct Recruitment through Open Competitive Examination
and 50 per cent by Promotion through a Limited Departmental
Competitive Examination/Deputation/Re-employment. The
"Eligibility Conditions" for Promotion is reflected as follows,
"SCHEDULE - II
....................................................................................................
By Promotion: Persons holding posts in Grade-I of
the Sikkim Subordinate Accounts Service with at least 6
years of service in the grade. The promotion shall be made
on the basis of seniority-cum-merit."
(emphasis supplied)
14. From a reading of the above Rules, it emerges that the
posts of Accounts Officers were to be filled by way of Promotion
and Direct Recruitment in the ratio of 50:50 each. The Petitioners
were qualified as per the Rules in 2004-2006 as well as on
08.05.2008, to be considered for Promotion as Accounts Officers.
The Rules extracted supra required the State-Respondents to
decide in each year, the number of vacancies in the Service to be
Sushil Pradhan and Others vs. State of Sikkim and Others
filled in that year by Direct Recruitment and Promotion and to take
steps after assessing the vacancy, viz., including recommending
the names of the Service holders for Promotion to Substantive
Posts. The State-Respondents failed to comply with this
requirement of the Rules nor were Examinations for either criteria
held, as mandated. From the records available before this Court, it
is clear that the procedure prescribed for recruitment was not
adhered to by the State-Respondents which has, in fact, led to the
heartburning amongst the Petitioners and the Direct Recruits
concerning their inter se Seniority. Besides failing to take steps as
enunciated hereinabove, the Government has not prepared a List
of names of persons in order of Seniority (as per Rules) who have,
on the first day of that year, completed not less than 6 (six) years
of continuous Service as Senior Accountants nor was the List of
such persons forwarded to the Commission along with the relevant
documents. The anticipated number of vacancies to be filled by
Promotion in the course of the period of 12 (twelve) months,
commencing from the date of preparation of the List was not
indicated as well. In the absence of necessary steps by the
Government, it is evident that the Commission was not in a
position to take consequential steps and convene a meeting of the
Promotion Committee who had been vested with the responsibility
of preparing a final List of persons found to be suitable for
Promotion to the higher Service on an overall relative assessment
of their Service Records and interview.
15.(i) The State-Respondents have failed to enlighten this
Court on the number of posts filled vide the two channels till 2009.
Clearly, the Rules have been ignored and sidelined by the
Sushil Pradhan and Others vs. State of Sikkim and Others
Government and appointments to the posts of Accounts Officers
made by Promotion only. By their own admission, Direct
Recruitment had been kept in abeyance from December, 2003 to
2007 and the post of Accounts Officer in the Junior Grade was filled
only by Promotion. While considering the conduct of the State-
Respondents, it is apposite to refer to the observations made by
the Hon'ble Supreme Court in Keshav Chandra Joshi (supra),
wherein the Hon'ble Supreme Court while faced with, once again
the proposition of reckoning inter se Seniority, was alive to the
lackadaisical attitude of the Government and inter alia held as
follows;
"22. In a democracy governed by rule of law, it is
necessary for the appropriate governance of the country
that the political executive should have the support of an
efficient bureaucracy. Our Constitution enjoins upon the
executive and charges the legislature to lay down the policy
of administration in the light of the directive principles. The
executive should implement them to establish the
contemplated egalitarian social order envisaged in the
preamble of the Constitution.
................................................................................................
24. It is notorious that confirmation of an employee
in a substantive post would take place long years after the
retirement. An employee is entitled to be considered for
promotion on regular basis to a higher post if he/she is an
approved probationer in the substantive lower post. An
officer appointed by promotion in accordance with Rules
and within quota and on declaration of probation is entitled
to reckon his seniority from the date of promotion and the
entire length of service, though initially temporary, shall be
counted for seniority. Ad hoc or fortuitous appointments on
a temporary or stop gap basis cannot be taken into account
for the purpose of seniority, even if the appointee was
subsequently qualified to hold the post on a regular basis.
To give benefit of such service would be contrary to
equality enshrined in Article 14 read with Article 16(1) of
the Constitution as unequals would be treated as equals.
........."
A similar attitude of the concerned Departments as indicated
above, are reflected even in the facts and circumstances of the
instant case by the nonchalant circumvention of the Rules by the
State-Respondents. Besides, sloth takes away a man's welfare.
Sushil Pradhan and Others vs. State of Sikkim and Others
(ii) Rule 24 of the amended Rules of 1986 provides for
"Seniority" and reads inter alia as follows;
"24. SENIORITY:
(1) The persons deemed to have been appointed to the
Service under rule 5 shall rank as senior to all those who
may be appointed under rule 6:
Provided that........................................................................
(2) .....................
(3) The seniority inter-se of the persons recruited to the
Service through competitive examination shall be in the
same order in which their names appear in the merit list
forwarded by the Commission under sub-rule (4) of rule 7.
(4) The seniority inter-se of the persons appointed to the
Service by promotion shall be in the same order in which
their names appear in the list prepared under sub-rule (4)
of rule 16 and forwarded by the Commission to the
Government.
(5) The relative seniority inter-se of persons recruited to
the Service through competitive examination and
appointed to the Service by promotion shall be determined
according to the rotation of vacancies between direct
recruits and promotees which shall be based on the quotas
of vacancies reserved for direct recruitment and promotion
respectively in these rules.
Explanation:- A roster shall be maintained based on the
reservation for direct recruitment and promotion in these
rules. The roster shall run as follows:-
(1) Promotion, (2) Direct Recruitment, (3) Promotion,
(4) Direct Recruitment and so on.
Appointment shall be made in accordance with this
roster and seniority determined accordingly.
(6) Notwithstanding anything contained in rules 5 and 6,
the seniority of persons mentioned in the third proviso to
rule 5 and in clause (ii) of sub-rule (1) of rule 6, who are
absorbed in the Service shall be such as may be
determined by Government in each case."
(emphasis supplied)
(iii) These Rules, for the first time provided for a Roster
System, for recruitment. Schedule II to the Rules elucidates that
the Junior Grade comprising of Accounts Officers, is to be filled 50
per cent by Direct Recruitment through Open Competitive
Examination and 50 per cent by Promotion through Limited
Departmental Competitive Examination/Deputation/Re-
employment. At this juncture, it is worth noticing that the State-
Respondents have not explained as to how the rotation of the
Quota is fixed, is it to be construed as the Promotees getting the
first, third and fifth of the vacancies that occur or was it by way of
Sushil Pradhan and Others vs. State of Sikkim and Others
entitlement of half the vacancies? The facts placed before this
Court by the State-Respondents in this context, are opaque and do
not reflect the method adopted by them. There is an absence of
data to indicate the Quota Rota adopted up to May, 2003, when
the last Direct Recruitment to the post of Accounts Officer allegedly
took place.
(iv) In 1988, the Rules were further amended and notified
on 11.08.1988. Serial number "2" reads as follows;
"2. Rules 6 Method of recruitment to the Service:
In clause (iii) of sub-rule (i) of this rule add the following
words at the end of the sentence:- "to be held by the
Commission."
(emphasis supplied)
"Schedule I" of the existing Schedule was substituted by a new
Schedule. As already pointed out, the Commission's hands were
evidently tied in the absence of necessary and timely steps by the
Government in terms of Rules 6 and 16 supra. By a Notification
dated 29.06.1996, amending the Rules further, the post of
Accounts Officer was indicated to be 73 (seventy-three). On
26.08.1998, another amendment took place which stated inter alia
as follows;
"Amendment 2. In the Sikkim Finance and Accounts
of Schedule II. Service Rules, 1978, in Schedule-II,
for the post of Accounts Officer/
Assistant Director/Accounts-cum-
Administrative Officer/Audit Officer,
under the heading method of
recruitment, for the figures and words
"66% by direct recruitment and 34% by
promotion", the figures and words
"50% by direct recruitment and "50%
by promotion" shall be substituted
respectively."
(v) Indeed, this amendment is superfluous, as the
amended Rules of 1986, notified on 25.02.1985, at Schedule II,
already indicated 50 per cent by Promotion and 50 percent by
Direct Recruitment, besides, a careful scrutiny of the Rules placed
Sushil Pradhan and Others vs. State of Sikkim and Others
before this Court, nowhere indicates "66 per cent by Direct
Recruitment and 34 per cent by Promotion." On 05.09.2001, vide a
Notification of the same date, further amendment was made to the
Rules which provided that "......in Schedule II, in serial No.4, under the
column eligibility conditions for the figure „8; the figure „6‟ shall be
substituted" which meant that Senior Accountants, would be eligible
for Promotion to the post of Accounts Officers on putting in 6 (six)
years of qualifying service instead of 8 (eight) years, as previously
required. The Petitioners thus were in the zone of consideration for
Promotion having indubitably completed 6 (six) years of Service as
Senior Accountants by 2004/2006. On 03.06.2003, another
amendment came to be made in the Rules vide which the post of
Accounts Officer was increased to 77 (seventy-seven). However, as
already pointed out, the State-Respondents were loath to take
timely steps although the Rules made adequate provisions.
16.(i) Notably, vide Notification dated 09.12.2003, the Rules
of 1978 were further amended whereby "Rule 28," a provision for
relaxation of the Rules, was inserted. The said Rule reads as
follows;
"28. Power to relax:- Where the Government is of
the opinion that it is necessary or expedient so to do, it
may, by order, for reasons to be recorded in writing, relax
any of the provisions of these rules with respect to any
class or category or persons or post."
(ii) The Rules of 1978 (unamended) contained no powers
of relaxation save to the extent that in Rule 9, the Governor was
given the prerogative of extending the period of probation of the
Direct Recruits and the Promotees at his discretion, for any
particular case or cases and was also empowered to exempt for
reasons to be recorded from passing the Examination. On the point
of relaxation and inter se Seniority, we may relevantly refer to the
Sushil Pradhan and Others vs. State of Sikkim and Others
decision in G.S. Lamba and Others vs. Union of India and Others25
decided by a two Judge Bench of the Hon'ble Supreme Court
wherein the relevant Rules provided for recruitment to the Indian
Foreign Service from three different Services viz., (i) Direct
Recruitment by Competitive Examination, (ii) Substantive
appointment of persons included in the select list promoted on the
basis of a Limited Competitive Examination and (iii) Promotion on
the basis of Seniority. One of the Rules provided that a recruitment
should be made from the above sources on the following basis: (i)
One-sixth of the Substantive vacancies to be filled in by Direct
Recruitment, (ii) 33 1/3 per cent of the remaining five-sixth of the
vacancies to be filled on the basis of results of Limited Competitive
Examinations, and (iii) the remaining vacancies to be filled in by
Promotion on the basis of Seniority. The Hon'ble Court found that
the Direct Recruitment had not been made for years, Limited
Competitive Examination had also not been held for years and
Promotions from the select list had been made in excess of the
Quota. Thus, there was enormous departure from the Rules of
recruitment in making appointments over several years. The
Hon'ble Court was of the view that the situation was similar to the
situation in two other earlier cases viz., A. Janardhana vs. Union of
India and Others26 and O.P. Singla (supra). It was opined that in the
circumstances, it should be presumed that the excess appointment
by Promotion had been made in relaxation of the Rules since there
was power to relax the Rules. The Hon'ble Court held inter alia as
follows;
(1985) 2 SCC 604
(1983) 3 SCC 601
Sushil Pradhan and Others vs. State of Sikkim and Others
"27. ........................Therefore assuming there
was failure to consult the Union Public Service
Commission before exercising the power to relax the
mandatory quota rule and further assuming that the
posts in integrated Grade II and III were within the
purview of the Union Public Service Commission and
accepting for the time being that the Commission
was not consulted before the power to relax the rule
was exercised yet the action taken would not be
vitiated nor would it furnish any help to Union of
India which itself cannot take any advantage of its
failure to consult the Commission. Therefore it can
be safely stated that the enormous departure from
the quota rule year to year permits an inference
that the departure was in exercise of the power of
relaxing the quota rule conferred on the controlling
authority. Once there is power to relax the
mandatory quota rule, the appointments made in
excess of the quota from any given source would
not be illegal or invalid but would be valid and legal
as held by this Court in N.K. Chauhan v. State of
Gujarat [(1977) 1 SCC 308 : (1977) 1 SCR 1037 :
1977 SCC (L&S) 127] . Therefore the promotion of
the promotees was regular and legal both on
account of the fact that it was made to meet the
exigencies of service in relaxation of the mandatory
quota rule and the substantive vacancies in
service."
(iii) Similarly, in Narender Chadha (supra) decided by a two
Judge Bench of the Hon'ble Supreme Court, the question therein
was of inter se Seniority between Direct Recruits and Promotees.
Evidently, ad hoc or ex gratia Promotions were made in large
numbers from feeder posts to continuously fill several vacancies
allocated for Direct Recruits while only few Direct Recruitments
were made in deliberate derogation of the Quota Rule. The
Promotees, however, had continued in their ad hoc posts for fifteen
to twenty years without being reverted to their original posts and
without their right to hold the Promotion posts being questioned.
The Departmental Promotion Committee, which was required to
meet annually, in accordance with Rules and instructions, met only
thrice in nineteen years and selected for Promotion only those
Promotees who had four years of regular Service in their feeder
posts, as on a specified date of several years back. The Hon'ble
Supreme Court held that Articles 14 and 16 of the Constitution
Sushil Pradhan and Others vs. State of Sikkim and Others
were violated and all Promotees were entitled to regular Promotion.
The Seniority of the Promotees including those selected by the
Departmental Promotion Committee, was to be reckoned with
effect from the dates of their continuous officiation in the
Promotion posts. It was observed inter alia as follows;
"15. At one stage it was argued before us on behalf
of some of the respondents that the petitioners who have
not been appointed in accordance with Rule 8(1)(a)(ii)
could not be treated as members of the Indian Economic
Service or of the Indian Statistical Service at all and hence
there was no question of determining the question of
seniority as between the petitioners and the direct recruits.
This argument has got to be rejected. It is true that the
petitioners were not promoted by following the actual
procedure prescribed under Rule 8(1)(a)(ii) but the fact
remains that they have been working in posts included in
Grade IV from the date on which they were appointed to
these posts. The appointments are made in the name of the
President by the competent authority. They have been
continuously holding these posts. They are being paid all
along the salary and allowances payable to incumbents of
such posts. They have not been asked to go back to the
posts from which they were promoted at any time since the
dates of their appointment. The order of promotion issued
in some cases show that they are promoted in the direct
line of their promotion. It is expressly admitted that the
petitioners have been allowed to hold posts included in
Grade IV of the aforesaid services, though on an ad hoc
basis. .................................................... But in a case of the kind
before us where persons have been allowed to function in
higher posts for 15 to 20 years with due deliberation it
would be certainly unjust to hold that they have no sort of
claim to such posts and could be reverted unceremoniously
or treated as persons not belonging to the Service at all,
particularly where the Government is endowed with the
power to relax the rules to avoid unjust results. In the
instant case the Government has also not expressed its
unwillingness to continue them in the said posts. The other
contesting respondents have also not urged that the
petitioners should be sent out of the said posts. The only
question agitated before us relates to the seniority as
between the petitioners and the direct recruits and such a
question can arise only where there is no dispute regarding
the entry of the officers concerned into the same grade. In
the instant case there is no impediment even under the
Rules to treat these petitioners and others who are
similarly situated as persons duly appointed to the posts in
Grade IV because of the enabling provision contained in
Rule 16 thereof. ..............................................................................
..............................................................................................................
17. ...................Therefore it can be safely stated that
the enormous departure from the quota rule year to year
permits an inference that the departure was in exercise of
the power of relaxing the quota rule conferred on the
controlling authority. Once there is power to relax the
mandatory quota rule, the appointments made in excess of
the quota from any given source would not be illegal or
invalid but would be valid and legal as held by this Court
in N.K. Chauhan v. State of Gujarat.............."
(emphasis supplied)
Sushil Pradhan and Others vs. State of Sikkim and Others
(iv) On the bedrock of the principle expounded above, while
considering the admitted departure from the Quota Rule and
prescribed procedure of recruitment in the instant matter, it is a
safe assumption that the appointments of the Petitioners if made in
excess of the Service Quota were valid and legal in view of the
existence of the Relaxation Clause at Rule 28 of the amended Rules
of 1986. A presumption thus arises that Rule 28 was invoked
legalizing and validating the Promotion of the Petitioners. I cannot
bring myself to agree with the submissions of Learned Senior
Counsel for Respondents No.7 to 17 that the relaxation would only
come into effect from the date of Notification i.e. 19.05.2012, if not
from 16.03.2013, the date of confirmation, for the reason that the
Notification firstly does not specify the date of such relaxation,
besides, Rule 28 was inserted vide the amendment dated
09.12.2003 and therefore in existence when the Officiating Orders
were issued on 08.05.2008. Thus, the inevitable conclusion is that
the Relaxation Clause was invoked and effective from the date the
Officiating appointment of the Petitioners were made to the posts
of Accounts Officers i.e. from 08.05.2008. Conditions "1" and "2"
inserted in the Officiating Order of the Petitioners are sans reasons,
no Rules make provisions for insertion of such conditions.
17.(i) Relevantly, the impact and purpose of the word
"Officiating" in the case at hand, is to be considered. The
Officiating Order, dated 08.05.2008, states that the Petitioners are
promoted as Accounts Officers in Officiating capacity and the
Officiating Promotion shall be subject to the following conditions:
"1. The officiating promotion shall not confer any right
for regular promotion and shall not be counted
towards seniority.
Sushil Pradhan and Others vs. State of Sikkim and Others
2. Their regular promotion shall be made on the
recommendation of the Sikkim Public Service
Commission."
Since the Rules of 1978 do not define "Officiating," we may refer to
the Sikkim Government Service Rules, 1974 which, in Chapter II,
Rule 13 provides as follows:-
"(13) 'Officiating appointment'.- A Government
Servant is said to be holding an officiating appointment
when he performs the duties of a vacant or newly created
temporary post on which no Government Servant holds a
lien without completing the minimum number of qualifying
years of service as may have been or as may be prescribed
by the Government from time to time."
(ii) Rule 39 of the Sikkim Government Service Rules, 1974
reads inter alia thus;
"39. Officiating appointment.-
(1) A Government Servant may be appointed to
officiate in a post carrying a higher time scale of pay if the
vacancy is for a period exceeding one year
(2) ............
(3) Officiating appointment shall continue till the
Government Servant completes the minimum qualifying
number of years as may have been or may be prescribed
by the Government from time to time."
(iii) Therefore, it is understood that a person appointed on
Officiating basis is essentially a Government servant who has not
completed the minimum number of qualifying years of Service
prescribed by the Government from time to time and in a post
which carries a higher time scale of pay, if the vacancy is for a
period exceeding one year. The qualification necessary for the
Petitioners to be considered for Promotion from Senior Accountant
to Accounts Officer is 6 (six) years of continuous Service in the
rank of Senior Accountant. It is not the case of the State-
Respondents that the Petitioners had not completed the qualifying
years of Service or were lacking in any other field, which would
render them eligible only for Officiating Promotion. That, having
been said, while considering condition number "1." of the
Officiating Order, dated 08.05.2008, it is in the first instance,
Sushil Pradhan and Others vs. State of Sikkim and Others
unfathomable since it states that the Officiating Promotion shall not
confer any right for regular Promotion, in such a circumstance, is it
to be construed that despite the person having put in the required
years of Service, all other qualifications being met and Substantive
vacant posts existing, he would still be deprived of his regular
Promotion and would be sentenced to suffer the whims of the
State-Respondents? The second condition provides that regular
Promotion can be made on the recommendation of the SPSC, this
condition obviously would be contingent upon the action of the
State-Respondents in terms of Rule 16 (extracted supra) of the
amended Rules of 1986, notified on 11.03.1986. The Petitioners
cannot be answerable for the procrastination or indolence of the
State-Respondents, thereby depriving them of timely Promotions,
of course subject to fulfillment of all other requisite conditions. The
uncertainty of confirmation is surely not a reflection of the
inefficiency of the Petitioners.
18. Related to this would be the question of vacancy in the
posts of Accounts Officer. On this aspect, the averments in the
Counter-Affidavit are at best nebulous and fail to address the real
issues pertaining to vacancy as emanates from the discussions
which follow. No reasonable explanation was offered as to why the
Petitioners were promoted only on Officiating capacity, besides
which, a confirmed Seniority List as on date, is not exhibited.
Although the State-Respondents would argue that the 11 (eleven)
Direct Recruits had been appointed in the year 2009 against the 23
(twenty-three) vacancies that existed for Direct Recruits at the
relevant time, however, Annexure R-15 (collectively) provides that
there was a proposal on 30.06.2003 for filling up of 23 (twenty-
Sushil Pradhan and Others vs. State of Sikkim and Others
three) posts by Departmental Competitive Examination via
Promotion. Thereafter, again in 2003, a proposal was placed for
filling up of 18 (eighteen) Posts of Accounts Officers by Direct
Recruitment, however, vide Letter dated 22.11.2003, Annexure R-
15/5 (collectively), it was stated that the Department had already
forwarded the proposal for filling up of 18 (eighteen) Posts of
Accounts Officers by Promotion and a request was made to the
Rule Section to allot the Roster Points. Therefore, the Office Notes
reveal that for the post of 23 (twenty-three) alleged vacancies of
Direct Recruits, 18 (eighteen) posts were also proposed to be filled
by Promotion. The Office Notes further reveal that on 12.10.2004,
the Chief Minister convened a meeting in which he directed that 10
(ten) new posts of Accounts Officers be created. On 19.05.2007,
another Office Note reveals that there were 12 (twelve) posts of
Accounts Officers which were proposed to be filled through Direct
Recruitment against anticipated vacancy. In the light of what has
ensued in the concerned Department, as also the Order of the
Chief Minister, it is evident that the contention of the State-
Respondents that the Direct Recruits in 2009 were being filled from
the 23 (twenty-three) vacant posts of the 46 (forty-six) posts, are
erroneous and not buttressed by documentary evidence. The
vacancies that arose out of the death and retirements and the
allocation of such vacancies to the Quota and Rota, have not been
responded to at all by the State-Respondents.
19.(i) Turning my attention now to the Quota Rota Rule, in
N.K. Chauhan (supra), the question that fell for consideration was
whether the 50:50 ratio as between Direct Recruits and Promoted
hands was subject to the saving clause "as far as practicable." It
Sushil Pradhan and Others vs. State of Sikkim and Others
was observed that the Government must give proof that it was not
practicable for the State to recruit from the open market qualified
persons through the specialized agency of the Public Service
Commission. If it does not succeed despite honest and serious
efforts, it qualifies for departure from the Rule. It was inter alia
held as follows;
"27. ...........................The straightforward answer
seems to us to be that the State, in tune with the mandate
of the rule, must make serious effort to secure hands to fill
half the number of vacancies from the open market. If it
does not succeed, despite honest and serious effort, it
qualifies for departure from the rule. .................................The
short test, therefore, is to find out whether the
government, in the present case, has made effective
efforts, doing all that it reasonably can, to recruit from the
open market necessary numbers of qualified hands. ........."
(ii) In Suraj Parkash Gupta (supra), it was held inter alia as
follows;
"38. That in such situations there can be no
breakdown of the quota rule is clear from the decided
cases. In N.K. Chauhan v. State of Gujarat [(1977) 1 SCC
308 : 1977 SCC (L&S) 127] the rule said that "as far as
practicable", the quota must be followed. Krishna Iyer, J.
said that there must be evidence to show that effort was
made to fill up the direct recruitment quota. It must be
positively proved that it was not feasible, nor practicable to
get direct recruits. The reason should not be
"procrastinatory". In Syed Khalid Rizvi v. Union of
India [1993 Supp (3) SCC 575 : 1994 SCC (L&S) 84 :
(1994) 26 ATC 192] it was held that mere non-preparation
of select list does not amount to collapse of the quota rule.
In M.S.L. Patil v. State of Maharashtra [(1996) 11 SCC
361] it was held that mere omission to prepare lists did not
amount to breakdown of quota rule."
(iii) Therefore, both the ratio of N.K. Chauhan and Suraj
Parkash Gupta (supra), lay down that the Quota Rule is not broken
down until serious efforts are made by the Government to recruit
from the open market. In the instant case, right from the inception
of the Rules and several amendments thereof, the State-
Respondents have not been able to establish before this Court that
the Quota Rule was ever adhered to, however, the Rules do exist
providing for methods of recruitment for Direct Recruits and
Sushil Pradhan and Others vs. State of Sikkim and Others
Promotees but no effort has been shown to have been made by the
Government to recruit from the open market. On the touchstone of
the principles enunciated in N.K. Chauhan and Suraj Parkash Gupta
(supra), the Quota Rule thus cannot be said to have broken down.
In Direct Recruit Class II Engineering Officers' Association (supra), the
Hon'ble Supreme Court was also of the opinion that although the
Rules fixed the Quota of the appointees from two sources and were
meant to be followed but that if it becomes impractical to act upon
it, it is no use insisting that the authorities must continue to give
effect to it. That, on the Quota Rule not being followed, brings
about its natural demise and there is no meaning in pretending
that it is still vibrant with life. In such a situation, if appointments
from one source are made in excess of a Quota, but in a regular
manner and after following the prescribed procedure, there is no
reason to push down the appointees below the recruits from the
other source who are inducted in the Service subsequently. That,
where the Rules permit the authorities to relax the provision
relating to the Quota, ordinarily a presumption should be raised
that there was such Relaxation when there is a deviation from the
Quota Rules. Despite the Quota Rule not having broken down in
the instant case, the safety net of Rule 28 inserted in the Rules on
09.12.2003, has come into play, as already elaborately discussed,
making the appointments of the Petitioners as Accounts Officers
valid and legal.
20.(i) In the light of the above position, it is imperative to
discuss here as to how the inter se Seniority between the
Petitioners and the Respondents No.7 to 17 was to be settled.
Relevant reference may be made to the observation in D.R. Nim
Sushil Pradhan and Others vs. State of Sikkim and Others
(supra), wherein it was held that when an Officer had worked
continuously for a long period (as in that case for nearly fifteen to
twenty years) in a post and had never been reverted, it cannot be
held that the Officer's continuous Officiation was a mere temporary
or local or stop gap arrangement even though the Order of
appointment may state so. In such circumstances, the entire
period of Officiation was to be counted for Seniority, any other
view would be arbitrary and violative of Articles 14 and 16 (1) of
the Constitution because the temporary Service in the post in
question is not for a short period intended to meet some emergent
or unforeseen circumstance. The ratio in S.B. Patwardhan (supra),
may also be referred to. The pivotal question for consideration
before a three Judge Bench of the Hon'ble Supreme Court was
whether Departmental Promotees and Direct Recruits appointed as
Deputy Engineers in the Engineering Services of the Governments
of Maharashtra and Gujarat, belonged to the same Class so that
they may be treated with an even hand or whether they belonged
to different Classes or categories and can justifiably be treated
unequally. The Hon'ble Supreme Court observed that concededly,
they were being treated unequally in the matter of Seniority
because whereas, Promotees rank for Seniority from the date of
their confirmation, the Seniority of Direct Recruits is reckoned from
the date of their initial appointment. That, a Promotee ranks below
the Direct Recruit even if he has officiated continuously as a
Deputy Engineer for years before the appointment of the Direct
Recruit is made and even if he, the Promotee, could have been
confirmed in an available Substantive vacancy before the
appointment of the Direct Recruit. After due consideration of the
Sushil Pradhan and Others vs. State of Sikkim and Others
relevant Rules, the Hon'ble Supreme Court was pleased to opine
inter alia as follows;
"39. If officiating Deputy Engineers belong to
Class II cadre as much as direct recruits do and if
the quota system cannot operate upon their
respective confirmation in that cadre, is there any
valid basis for applying different standards to the
members of the two groups for determining their
seniority? Though drawn from two different sources,
the direct recruits and promotees constitute in the
instant case a single integrated cadre. They
discharge identical functions, bear similar
responsibilities and acquire an equal amount of
experience in their respective assignments. And yet
clause (iii) of Rule 8 provides that probationers
recruited during any year shall in a bunch be treated
as senior to promotees confirmed in that year. The
plain arithmetic of this formula is that a direct
recruit appointed on probation, say in 1966, is to be
regarded as senior to a promotee who was
appointed as an officiating Deputy Engineer, say in
1956, but was confirmed in 1966 after continuous
officiation till then. This formula gives to the direct
recruit even the benefit of his one year's period of
training and another year's period of probation for
the purposes of seniority and denies to promotees
the benefit of their long and valuable experience. If
there was some intelligible ground for this
differentiation bearing nexus with efficiency in public
services, it might perhaps have been possible to
sustain such a classification. .................. It is on the
record of these writ petitions that officiating Deputy
Engineers were not confirmed even though
substantive vacancies were available in which they
could have been confirmed. It shows that
confirmation does not have to conform to any set
rules and whether an employee should be confirmed
or not depends on the sweet will and pleasure of the
government.
.............................................................................................
43. Rule 8(ii) in the instant case adopts the
seniority-cum-merit test for preparing the statewise
Select List of seniority. And yet clause (iii) rejects
the test of merit altogether. The vice of that clause
is that it leaves the valuable right of seniority to
depend upon the mere accident of confirmation.
That, under Articles 14 and 16 of the Constitution, is
impermissible and therefore we must strike down
Rule 8 (iii) as being unconstitutional.
..............................................................................................
48. Rules 33, insofar as it makes seniority
dependent upon the fortuitous circumstance of
confirmation, is open to the same objection as Rule
8(iii) of the 1960 Rules and must be struck down for
identical reasons.
..............................................................................................
51. We are not unmindful of the
administrative difficulties in evolving a code of
seniority which will satisfy all conflicting claims. But
care ought to be taken to avoid a clear
transgression of the equality clauses of the
Constitution. ........................... We however hope that
the Government will bear in mind the basic principle
that if a cadre consists of both permanent and
Sushil Pradhan and Others vs. State of Sikkim and Others
temporary employees, the accident of confirmation
cannot be an intelligible criterion for determining
seniority as between direct recruits and promotees .
All other factors being equal, continuous officiation
in a non-fortuitous vacancy ought to receive due
recognition in determining rules of seniority as
between persons recruited from different sources,
so long as they belong to the same cadre, discharge
similar functions and bear similar responsibilities.
........................"
(emphasis supplied)
(ii) In Direct Recruit Class II Engineering Officers' Association
(supra), a Constitution Bench of the Hon'ble Supreme Court was in
agreement with the Patwardhan case (supra), and held inter alia
therein as follows;
"13. When the cases were taken up for
hearing before us, it was faintly suggested that the
principle laid down in Patwardhan case [(1977) 3
SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775]
was unsound and fit to be overruled, but no attempt
was made to substantiate the plea. We were taken
through the judgment by the learned counsel for the
parties more than once and we are in complete
agreement with the ratio decidendi, that the period
of continuous officiation by a government servant,
after his appointment by following the rules
applicable for substantive appointments, has to be
taken into account for determining his seniority;
and seniority cannot be determined on the sole test
of confirmation, for, as was pointed out,
confirmation is one of the inglorious uncertainties
of government service depending neither on
efficiency of the incumbent nor on the availability of
substantive vacancies. The principle for deciding
inter se seniority has to conform to the principles of
equality spelt out by Articles 14 and 16. If an
appointment is made by way of stop-gap
arrangement, without considering the claims of all
the eligible available persons and without following
the rules of appointment, the experience on such
appointment cannot be equated with the experience
of a regular appointee, because of the qualitative
difference in the appointment. To equate the two
would be to treat two unequals as equal which
would violate the equality clause. But if the
appointment is made after considering the claims of
all eligible candidates and the appointee continues
in the post uninterruptedly till the regularisation of
his service in accordance with the rules made for
regular substantive appointments, there is no
reason to exclude the officiating service for the
purpose of seniority. Same will be the position if the
initial appointment itself is made in accordance with
the rules applicable to substantive appointments as
in the present case. To hold otherwise will be
discriminatory and arbitrary.
........................................................................................
16. .............We are not in a position to agree
with the learned counsel that the rules indicate that
the officiating posts were not included in the cadre
of the Deputy Engineers. It is true that the use of
Sushil Pradhan and Others vs. State of Sikkim and Others
word "promotions" in Rule 8(i) of the 1960 Rules is
not quite appropriate, but that by itself cannot lead
to the conclusion that the officiating Deputy
Engineers formed a class inferior to that of the
permanent Engineers. .............................................
17. This question was considered
in Patwardhan case [(1977) 3 SCC 399: 1977 SCC
(L&S) 391: (1977) 3 SCR 775] at considerable
length, and a categorical finding against the direct
recruits was arrived at, which has been followed for
the last more than a decade, in many cases arising
between members of Maharashtra and Gujarat
Engineering Services. The question is of vital
importance affecting a very large number of officers
in the departments concerned and many disputes
have been settled by following the judgment
in Patwardhan case [(1977) 3 SCC 399: 1977 SCC
(L&S) 391: (1977) 3 SCR 775]. In such a situation it
is not expedient to depart from the decision lightly.
It is highly desirable that a decision, which concerns
a large number of government servants in a
particular Service and which has been given after
careful consideration of the rival contentions, is
respected rather than scrutinised for finding out any
possible error. It is not in the interest of the Service
to unsettle a settled position every now and then.
..................."
(emphasis supplied)
In sum and substance, the Hon'ble Supreme Court summarized the
points as follows;
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a
post according to rule, his seniority has to be
counted from the date of his appointment and not
according to the date of his confirmation.
The corollary of the above rule is that where
the initial appointment is only ad hoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such post cannot be
taken into account for considering the seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules but
the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance
with the rules, the period of officiating service will
be counted.
(C) When appointments are made from more
than one source, it is permissible to fix the ratio for
recruitment from the different sources, and if rules
are framed in this regard they must ordinarily be
followed strictly.
(D) If it becomes impossible to adhere to the
existing quota rule, it should be substituted by an
appropriate rule to meet the needs of the situation.
In case, however, the quota rule is not followed
continuously for a number of years because it was
impossible to do so the inference is irresistible that
the quota rule had broken down.
Sushil Pradhan and Others vs. State of Sikkim and Others
(E) Where the quota rule has broken down
and the appointments are made from one source in
excess of the quota, but are made after following
the procedure prescribed by the rules for the
appointment, the appointees should not be pushed
down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rules permit the authorities to
relax the provisions relating to the quota, ordinarily
a presumption should be raised that there was such
relaxation when there is a deviation from the quota
rule.
(G) The quota for recruitment from the
different sources may be prescribed by executive
instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an
executive instruction, and is not followed
continuously for a number of years, the inference is
that the executive instruction has ceased to remain
operative.
(I) The posts held by the permanent Deputy
Engineers as well as the officiating Deputy
Engineers under the State of Maharashtra belonged
to the single cadre of Deputy Engineers.
(J) The decision dealing with important
questions concerning a particular service given after
careful consideration should be respected rather
than scrutinised for finding out any possible error. It
is not in the interest of Service to unsettle a settled
position.
With respect to Writ Petition No. 1327 of
1982, we further hold:
(K) That a dispute raised by an application
under Article 32 of the Constitution must be held to
be barred by principles of res judicata including the
rule of constructive res judicata if the same has
been earlier decided by a competent court by a
judgment which became final."
(emphasis supplied)
21.(i) Admittedly, the Promotion of the Petitioners was not
made by following the procedure prescribed but they did fulfill the
criteria mandated by the Rules. Being thus eligible under the said
Rules, they could well have been considered for Promotion on
completion of required period in the posts of Senior Accountants
but for the passivity of the State-Respondents. Now, would the
term "ad hoc" as emanates in the corollary of proposition "A" of
the ratio in Direct Recruit Class II Engineering Officers' Association
(supra), be applicable to the case of the Petitioners. In Rudra Kumar
Sain (supra), a Constitution Bench of the Hon'ble Supreme Court
Sushil Pradhan and Others vs. State of Sikkim and Others
was considering the question of inter se Seniority between Direct
Recruits and Promotees in the Delhi Higher Judicial Service and
while examining the term "ad hoc" held inter alia as follows;
"16. ..................In Black's Law Dictionary, the
expression "fortuitous" means "occurring by
chance", "a fortuitous event may be highly
unfortunate". It thus, indicates that it occurs only by
chance or accident, which could not have been
reasonably foreseen. The expression "ad hoc"
in Black's Law Dictionary, means "something which
is formed for a particular purpose". The expression
"stopgap" as per Oxford Dictionary, means "a
temporary way of dealing with a problem or
satisfying a need".
17. In Oxford Dictionary, the word "ad hoc"
means for a particular purpose; specially. In the
same dictionary, the word "fortuitous" means
happening by accident or chance rather than design.
18. In P. Ramanatha Aiyar's Law
Lexicon (2nd Edn.) the word "ad hoc" is described
as: "For particular purpose. Made, established,
acting or concerned with a particular (sic) and or
purpose." The meaning of word "fortuitous event" is
given as "an event which happens by a cause which
we cannot resist; one which is unforeseen and
caused by superior force, which it is impossible to
resist; a term synonymous with Act of God".
19. ........................If the appointment order
itself indicates that the post is created to meet a
particular temporary contingency and for a period
specified in the order, then the appointment to such
a post can be aptly described as "ad hoc" or
"stopgap". If a post is created to meet a situation
which has suddenly arisen on account of happening
of some event of a temporary nature then the
appointment of such a post can aptly be described
as "fortuitous" in nature. ..........................."
(ii) The Officiating Orders of the Petitioners do not indicate
that the posts were created to meet a particular temporary
contingency and for a period specified nor is it the case of the
State-Respondents that the post was created to meet a situation
which had suddenly arisen on account of the happening of some
event of a temporary nature to describe the appointment of the
Petitioners as fortuitous. The Petitioners were in the posts of
Accounts Officers from 08.05.2008 till their confirmation on
16.03.2013 and therefore cannot be said to be for a short period
intended to meet emergent or unforeseen circumstances. In fact,
Sushil Pradhan and Others vs. State of Sikkim and Others
only two whimsical conditions have been inserted in the Officiating
Order, which also do not lay down that they would be reverted to
their posts of Senior Accountants nor are the conditions fortified by
any Rules. No conditions were attached to their Officiating
Promotion regarding obtainment of qualification at a later date or
reversion to the earlier posts, except the two conditions as already
extracted hereinabove sans explanation as to whether there were
Substantive vacancies or not. The appointment does not specify
that it was made in the exigencies of service or on ad hoc or stop
gap to meet a sudden temporary situation requiring en masse
Promotions to define it as fortuitous. It is settled law that where
the initial appointment is only ad hoc and not according to Rules
and made as a stop gap arrangement, the period of Officiation to
the said post cannot be taken into account for considering
Seniority. In the instant case, however, the well-settled principle of
law as propounded by the ratio in Direct Recruit Class II Engineering
Officers' Association (supra) is applicable viz., that an employee
appointed to a post according to Rules would be entitled to get his
Seniority reckoned from the date of his appointment and not from
the date of its confirmation. It is but trite to remark that without
State action in terms of the prescribed procedure, the Petitioners
could not have volunteered to take the Limited Departmental
Competitive Examination.
(iii) In Vireshwar Singh and Others vs. Municipal Corporation of
Delhi and Others27, the Hon'ble Supreme Court observed inter alia as
follows;
(2014) 10 SCC 360
Sushil Pradhan and Others vs. State of Sikkim and Others
"15. It is the view expressed in Narender
Chadha [Narender Chadha v. Union of India, (1986) 2 SCC
157 : 1986 SCC (L&S) 226] which would require a close
look as Keshav Chandra Joshi [1992 Supp (1) SCC 272 :
1993 SCC (L&S) 694 : (1993) 24 ATC 545] is a mere
reiteration of the said view. In Narender Chadha [Narender
Chadha v. Union of India, (1986) 2 SCC 157 : 1986 SCC
(L&S) 226] the lis between the parties was the one relating
to counting of ad hoc service rendered by the promotees
for the purpose of computation of seniority qua the direct
recruits. The basis of the decision to count long years of ad
hoc service for the purpose of seniority is to be found more
in the peculiar facts of the case as noted in para 20 of the
Report than on any principle of law of general application.
However, in paras 15-19 of the Report a deemed relaxation
of the rules of appointment and the wide sweep of the
power to relax the provisions of the rules, as it existed at
the relevant point of time, appears to be the basis for
counting of the ad hoc service for the purpose of seniority.
16. The principle laid down in Narender
Chadha [Narender Chadha v. Union of India, (1986) 2 SCC
157 : 1986 SCC (L&S) 226] was approved by the
Constitution Bench in Direct Recruit Class II [Direct Recruit
Class II Engg. Officers' Assn. v. State of Maharashtra,
(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC
348] as the promotion of the officers on ad hoc basis was
found to be "without following the procedure laid down
under the Rules". That apart, what was approved in Direct
Recruit Class II [Direct Recruit Class II Engg. Officers'
Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990
SCC (L&S) 339 : (1990) 13 ATC 348] is in the following
terms: (SCC p. 726, para 13)
"13. ... We, therefore, confirm the
principle of counting towards seniority the
period of continuous officiation following
an appointment made in accordance with
the rules prescribed for regular
substantive appointments in the service."
..............."
The law on the point of Seniority qua the appointments made in
excess to the Quotas and the principle of computing the Seniority
is thus clearly laid down, further, as expressed in the ratio of Direct
Recruit Class II Engineering Officers' Association (supra), it is not in
the interest of the Service to unsettle a settled position now and
then.
(iv) We may, therefore now look at the propositions put
forth in Direct Recruits case supra. Learned Senior Counsel for
Respondents No.7 to 17 relied on proposition "(A)" while Learned
Senior Counsel for the Petitioners relied on proposition "(B)". From
the discussions made hereinabove, it can be culled out that the
Sushil Pradhan and Others vs. State of Sikkim and Others
Petitioners continued in the posts until regularization of their
Service in accordance with the Rules. Thus, the case of the
Petitioners squarely falls under proposition "(B)" enunciated in
Direct Recruit Class II Engineering Officers' Association supra. At the
same time, it is worth noticing propositions "(D)" and "(F)" of the
same ratio wherein at "(D)" it was held that if it becomes
impossible to adhere to the existing Quota Rule, it should be
substituted by an appropriate Rule to meet the needs of the
situation. In case, however, the Quota Rule is not followed
continuously for a number of years because it was impossible to
do so, the inference is irresistible that the Quota Rule had broken
down. It may be explained here that the word "impossible" has to
be construed in this context in terms of the decision of the Hon'ble
Supreme Court in N.K. Chauhan and Suraj Parkash Gupta (supra). No
effort of the State-Respondents to recruit directly is established
herein as already discussed. Proposition "F" of Direct Recruit Class II
Engineering Officers' Association 1990 (2) SCC 715 supra provides that
where the Rules permit the authorities to relax the provisions
relating to the Quota, ordinarily a presumption should be raised
that there was such relaxation when there is a deviation from the
Quota Rule. The Relaxation Clause at Rule 28 of the Rules is
assumed to have been invoked when deviation from the Quota
Rule was made.
22. In conclusion, it must be remarked that no case fits
with mathematical or clockwork precision to a previously decided
case. The facts of each case are peculiar in their own details. Thus,
it is only reasonable that the Courts apply the principles laid down
by the Hon'ble Supreme Court, similar to those requiring
Sushil Pradhan and Others vs. State of Sikkim and Others
determination before them. It is worth remarking at this juncture
that the Petitioners had also agitated the point that the Direct
Recruits appointed in January, 2009 were promoted on Officiating
basis as Senior Accounts Officers even before completion of the
qualifying years of Service as Accounts Officers, and that 12
(twelve) posts of Senior Accounts Officers to that of Accounts
Officers were downgraded for the alleged purposes of Direct
Recruitments which were subsequently then filled by Promotions.
No light has been shed on these circumstances by the State-
Respondents.
23. So far as the grievance of the Petitioners against the
Respondents No.4, 5 and 6 are concerned, in the first instance,
they had appeared in the Departmental Examination in the year
1997 for Promotion from the posts of Accountants to Senior
Accountants and were ranked in the first, second and third place
amongst 19 (nineteen) candidates in the Panel prepared for such
Promotion. In such circumstances, in my considered opinion,
nothing irregular emanates on their selection and consequent
Promotions.
24. The foregoing detailed discussions thus soundly
answers the question that fell for consideration before this Court.
25. So far as the question of delay is concerned, the
Petitioners are employees of the State-Respondents and bound by
official discipline. In the absence of any Confirmation List
pertaining to Seniority, it was not for the Petitioners to have run to
the Court at the drop of a hat. In my considered opinion, there is
no negligence or inaction on the part of the Petitioners or want of
bona fides. The expectation of the Petitioners was that the State-
Sushil Pradhan and Others vs. State of Sikkim and Others
Respondents would treat them fairly and when such action was not
forthcoming, the Petitioners were constrained to seek redressal
from the Court. The Courts cannot always take a pedantic and
hyper technical view on the point of delay, which ought not to be
an obstacle in the exercise of the Courts' discretion to mete out
even handed justice to all concerned.
26. While on the issue of waiver and acquiescence, I am
inclined to agree with the submissions of Learned Counsel for the
Petitioners that the ratio of P.S. Gopinathan and M.P. Palanisamy
(supra) relied on by Learned Counsel for Respondents No.7 to 17,
are distinguishable from the instant case. In P.S. Gopinathan
(supra), the relief was not granted to the Appellant as the position
therein was that the Appellant was well aware of the
"35..........mistaken belief of the High Court in appointing and posting him
as a temporary employee. ..." to which he raised no objection and did
so only subsequently. In M.P. Palanisamy (supra), the contention of
the Appellants was that they had all the qualifications for holding
the posts of Post Graduate Assistants when they were appointed
under the relevant Rules and there was no break in Service to
which they were ultimately regularized in 1988. They were placed
below in Seniority to those who were selected in 1986. It was
found inter alia as follows;
"29. ...............however, it must be borne in
mind that though the appellants herein had the necessary
qualifications at the time of their initial appointment under
Rule 10(a)(i)(1) and though they were subsequently
regularised also, the regularisation was conditional
regularisation, which was done way back in 1988. The
condition regarding the seniority was explicit in the said
regularisation, which is clear from a mere reading of GOMs
No. 1813. ..............."
Sushil Pradhan and Others vs. State of Sikkim and Others
The Appellants therein raised the issue in 1994 and thereafter
when the Seniority prayed for by them was refused, they bore it in
silence and raised the matter again only in 2003. That apart, it is
worth considering that in N.K. Chauhan (supra), the Hon'ble
Supreme Court had also observed inter alia as follows;
"36. ....................But we should not forget that
seniority is the manifestation of official experience, -- the
process of metabolism of service, over the years, of civil
servants, by the administration -- and, therefore, it is
appropriate that as far as possible he who has actually
served longer benefits better in the future. ............."
27. The Rule of law cannot be anathema to the State-
Respondents, it demands obedience and exists to check arbitrary
exercise of power which otherwise conceives chaos, as exhibited in
the facts and circumstances herein. The fate of the Petitioners have
been left to the vagaries of executive indecisions leading to
violation of Articles 14 and 16 of the Constitution of India.
28. Considering the entirety of the facts and circumstances
and for the reasons discussed supra and in terms of the well
settled position of law in the ratiocinations relied upon, it is hereby
ordered as follows:
(i) The Petitioners shall be accorded Seniority with
effect from the date of their Officiating Promotion
i.e. 08.05.2008 as Accounts Officers with all benefits
of Service;
(ii) The consequent Seniority of the Petitioners in their
subsequent senior posts shall be computed in terms
of the directions supra;
(iii) A Seniority List shall be prepared by the State-
Respondents on the above basis, to rule out
Sushil Pradhan and Others vs. State of Sikkim and Others
prejudice to the Petitioners and ensure equity to all,
thereby, toeing the line of Articles 14 and 16 of the
Constitution and thus satisfying the test of
constitutionality;
(iv) The Petitioners No.2 and 3 who have retired during
the pendency of the instant Writ Petition are entitled
to receive the same benefits as granted to the
Petitioners herein, during their time in Service, for
the purposes of their retirement benefits.
(v) No Orders need be issued with regard to
Respondents No.4, 5 and 6 in view of the foregoing
discussions pertaining to their Promotions, they are
at liberty to approach the State-Respondents for
redressal of any grievances.
29. The Writ Petition stands disposed of with the above
directions.
30. No order as to costs.
( Meenakshi Madan Rai )
Judge
25.01.2021
ml Approved for reporting : Yes
