Sikkim High Court
Garja Man Subba And Others vs State Of Sikkim And Others on 23 September, 2021
Bench: Hon'Ble The Justice
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 23rd September, 2021
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SINGLE BENCH: THE HON'BLE ACTING CHIEF JUSTICE MRS. JUSTICE MEENAKSHI MADAN RAI
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W.P.(C) No.34 of 2018
Petitioners : Garja Man Subba and Others
versus
Respondents : State of Sikkim and Others
Petition under Article 226
of the Constitution of India
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Appearance
Mr. A. Moulik, Senior Advocate with Ms. K.D. Bhutia, Advocate
for the Petitioners.
Dr. (Ms.) Doma T. Bhutia, Additional Advocate General with
Ms. Tamanna Chhetri, Advocate (Standing Counsel), Energy
and Power Department, for the State-Respondents.
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JUDGMENT
Meenakshi Madan Rai, ACJ.
1. The Petitioners are aggrieved by the alleged arbitrary
State action of hand picking Employees for regularization of
Services and granting them Salaries higher than the Petitioners,
despite the Petitioners having performed similar works as the
aforementioned Employees, thereby violating the doctrine of Equal
Pay for Equal Work.
2.(i) The Petitioners' case is that the Services of select
Employees similarly situated with them were illegally and
selectively regularized in the months of March, 2014 and
September, 2014, whereas the Services of the Petitioners were
regularized only in June, 2016, along with that of Employees junior
to them. That, they have been receiving their Salaries in the new
Pay Scale after their regularization from June, 2016 but not the
Arrears of Salary due to them since September, 2014, which
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
Employees whose Services were regularized in September, 2014
have been granted.
(ii) To comprehend the matter in its entirety, it is essential
to retrace the averments in the Writ Petition. The Petitioners' case
is that they were initially employed by the Government of Sikkim
on Muster Roll/Work Charge Basis and after having worked in
various capacities, acquired sufficient experience in their respective
Posts. They had a legitimate expectation that the State-
Respondents would regularize their Services in due course of time.
This was in view of the Notification No.264/GEN/DOP, dated
12.02.2014, (Annexure-P2), according to which regularization was
to be given to Employees who had completed fifteen years or more
of Service on 31.03.2013. However, this was not to be, although
the Services of many Temporary Employees similarly situated and
in some cases, junior to the Petitioners, were arbitrarily regularized
in the months of March, 2014 and September, 2014 vide four
different Office Orders viz. (i) Office Order bearing No.2215/Adm,
dated 01.03.2014 (Annexure-P4); (ii) Office Order bearing
No.96/Adm, dated 20.09.2014 (Annexure-P5); (iii) Office Order
bearing No.200/Adm, dated 20.09.2014 (Annexure-P6); and (iv)
Office Order bearing No.1009/Adm, dated 20.09.2014 (Annexure-
P7). Being thus aggrieved, the Petitioners were before this High
Court in W.P.(C) No.05 of 2016 (Purna Lall Subba and Others vs.
State of Sikkim and Others). During the pendency of the said Writ
Petition, the State-Respondents regularized their Services from
30.06.2016.
3.(i) Learned Senior Counsel for the Petitioners advanced
the contention that this High Court, vide its Order, dated
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
01.07.2016, disposed of the said Writ Petition with liberty to the
Petitioners to take up the matter for their Incidental Reliefs. That,
the names of the Petitioners although included in the List of
Employees whose Services were to be regularized as per the
Notification, dated 12.02.2014 supra, were left out without
assigning any reason.
(ii) It was next urged that eleven digit Contributory
Provident Fund (for short, "CPF") numbers meant only for regular
Government Employees, were issued to the Petitioners from the
month of September, 2014, itself when Services of the other
Employees were regularized thus recognizing the rights of the
Petitioners also to obtain the same Salary as that of the regularized
Employees. Hence, the Petitioners are entitled to Arrears of Salary
from September, 2014 to 30.06.2016. That, although their period
of Probation after regularization in June, 2016 was completed in
June, 2017, they were not paid the said Arrears. That, the State
action is in violation of the provisions of Articles 14, 16 and 21 of
the Constitution of India.
(iii) Learned Senior Counsel further urged that Prayer "A."
of the Writ Petition viz., "A writ or order or direction or declaration that
the services of the Petitioners be treated under regular establishment
with retrospective effect from September, 2014, instead of since
30.06.2016." is not being pressed by the Petitioners. That, the
reliefs being sought for by the Petitioners and which may be
granted by this Court, are extracted hereinbelow;
"B. In the alternative, to pay to the petitioners arrears of salary
as well as service benefits w.e.f. September 2014 like those
who have been regularised in the month of September
2014;
C. Difference of salary from September 2014 till the year 2016
to the petitioners;
D. Cost of the proceedings;
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
E. Any other writ or order or direction or declaration as this
Hon'ble Court may deem fit and proper."
4. The State-Respondents No.1, 2 and 3 filed a Joint
Counter-Affidavit denying and disputing the claims of the
Petitioners. Learned Additional Advocate General, in her
submissions, contended that during the month of March, 2014,
vide Notification No.264/GEN/DOP, dated 12.02.2014, (document
of the Petitioners, Annexure-P2) the Government of Sikkim,
sanctioned and created 4,002 (four thousand and two) Posts in
various Government Departments exclusively for appointment of
Temporary Employees belonging to Groups "C" and "D" category,
who had completed Service of fifteen years and more as on
31.01.2013. Pursuant thereto, Memoranda of the Petitioners and all
others who were entitled to regularization, were issued. On
01.10.2014, vide Office Order bearing No.1060/Adm (Annexure R-
2), all Memoranda of Appointments and Office Orders issued prior
to the Code of Conduct stood cancelled. The said Office Order also
clarified that all persons whose Services were regularized vide
Notification, dated 12.02.2014 (supra) would now be issued fresh
Memorandum and Office Order. The Petitioners were consequently
requested to resubmit documents as per the revised Guidelines
issued by the Department of Personnel, Administrative Reforms,
Training and Public Grievances, vide Circular No.1547/GEN/DOP,
dated 20.08.2014. That, the Petitioners, to their detriment, failed
to submit the required documents within the stipulated period and
hence their Personal Files were not forwarded in the month of
September, 2014 along with the other Employees and their
Services consequently not regularized in the year 2014. That, this
action of the State was challenged by the Petitioners in the
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
previous Writ Petition No.05 of 2016 and during the pendency of
the matter, the Department of Energy and Power, Government of
Sikkim, regularized the Services of 257 (two hundred and fifty
seven) Employees of the Department, with effect from 30.06.2016,
which included the Petitioners in the said Writ Petition supra. The
Petitioners, having obtained regularization of their Services from
30.06.2016, sought to withdraw the Writ Petition which was
accordingly permitted, as reflected in the Order of this Court, dated
01.07.2016. Now, the Petitioners have again raised similar issues
praying for regularization of their Services with retrospective effect
from 2014 instead of 2016 and in the alternative, for Arrears of
Salary. The delayed regularization arose on account of non-action
by the Petitioners, hence no allegation of arbitrary action can be
foisted on the State-Respondents qua the Petitioners. That, the CPF
numbers were allotted to the Petitioners after receiving their
respective Memoranda and Office Orders in the month of March,
2014, which were cancelled due to non-submission of genuine and
proper documents. Moreover, the Petitioners have not been
directed by the State-Respondents to obtain their CPF numbers
without receiving their Office Orders. That, neither can their case
be compared to that of the Employees whose Services were
regularized in the month of September, 2014, nor can they claim
Salaries of Regular Employees from September, 2014, when their
Services were regularized only in 2016 and the Petition also being
barred by res judicata deserves a dismissal. In support of her
contentions, Learned Additional Advocate General sought to garner
strength from the ratio in State of Tamil Nadu through Secretary to
Government, Commercial Taxes and Registration Department,
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
Secretariat and Another vs. A. Singamuthu1, State of Rajasthan and
Others vs. Daya Lal and Others2, Vijay Kumar Kaul and Others vs. Union
of India and Others3 and U.P. State Sugar Corporation Ltd. and Others
vs. Kamal Swaroop Tandon4.
5. In rebuttal, Learned Senior Counsel for the Petitioners
submitted that consequent to the Circular, dated 20.08.2014
(supra), notifying that fresh Memorandum would be issued,
another Addendum Circular bearing No.1567-69/GEN/DOP, dated
21.08.2014, was issued by the Department of Personnel,
explaining the meaning of Citizenship Certificate. That, the
allegations of non-submission of documents is untrue. That, when
the Petitioners' Services were regularized in February, 2014, before
the afore-stated cancellation, the authorities were satisfied that the
Petitioners had submitted their relevant documents, such as Sikkim
Subject Certificate/Certificate of Identification/Indian Citizenship
Certificate, which were already in their Personal Files and hence the
Memoranda had been issued to them in March, 2014. That, the
Orders of regularization were cancelled vide Office Order, dated
01.04.2014, on the ground that the same were issued before
enforcement of the Code of Conduct. That, after cancellation of the
Appointment Memoranda, the State-Respondents did not indicate
that fresh Memorandum and Office Order of regularization of
Service would be issued only upon submission of Sikkim Subject
Certificate or Certificate of Identification or Indian Citizenship
Certificate. That, for this reason the Petitioners cannot be blamed
for alleged non-production of relevant documents. That, it is wrong
(2017) 4 SCC 113
(2011) 2 SCC 429
(2012) 7 SCC 610
(2008) 2 SCC 41
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
to state that the Petitioners had accepted regularization Order
issued by the State-Respondents which, in fact, is not reflected in
the Order of this High Court which had granted liberty to the
Petitioners to take up the matters afresh for their Incidental
Reliefs, if so advised, hence this Petition. To buttress his
arguments, Learned Senior Counsel placed reliance on Surinder
Singh and Another vs. Engineer-in-Chief, C.P.W.D. and Others5,
Bhagwan Dass and Others vs. State of Haryana and Others 6 and
Secretary, Minor Irrigation Department and Rds. vs. Narendra Kumar
Tripathi7.
6. The submissions of Learned Counsel for the parties
were heard at length and all documents on record perused
meticulously as also the citations made at the Bar.
7. The crux of the case which requires determination by
this Court is whether the Petitioners, who allegedly performed
similar duties as Employees whose Services were regularized in
September 2014, are entitled to Salary, Service Benefits and
Arrears of Salary from September 2014, when the Petitioners'
Services were regularized only from 30.06.2016.
8.(i) It needs no reiteration that the Constitution enshrines
equality and equal treatment in matters of Public Employment as
guaranteed under Articles 14 and 16 of the Constitution. Under the
umbrella of Article 16, similarly situated persons are to be treated
equally and afforded equal opportunities in matters of Employment.
The provision, however, does not bar a reasonable classification by
the State for selection of Employees, although I hasten to clarify
that such classification must not produce artificial inequalities. The
(1986) 1 SCC 639
(1987) 4 SCC 634
(2015) 11 SCC 80
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
classification must be founded on a reasonable basis and bear
nexus to the object and purpose sought to be achieved to pass the
scrutiny of Articles 14 and 16. On the bedrock of these principles, it
is necessary to examine whether the Petitioners have been able to
make out a case of Equal Pay for Equal Work.
(ii) That having been said, in the first instance, it is
imperative to refer to the Order of this Court, dated 01.07.2016, in
W.P.(C) No.05 of 2016. The Order is extracted hereinbelow for
easy reference;
"............
The Petitioners, stated to be working under Muster
Roll/Work Charge establishment, have come up with the instant
petition, seeking for a direction of regularization of their
services with retrospective effect and further grant of
consequential benefits, thereon. The petitioners have also
sought for other incidental reliefs of fixation of the date of
regularization and also seniority, accordingly.
The Learned Additional Advocate General, appearing for the
Respondents, would submit that the services of all the
Petitioners have been regularized.
In such view of the matter, no adjudication is required at
this stage, reserving liberty to the petitioners to take up the
matter a fresh (sic) for their incidental reliefs, if so advised.
For the reasons above-stated, no further adjudication is
required at this stage and as such, the petition has become
infructuous and is disposed of accordingly.
..............................."
The Order supra reflects that the Learned Advocate General had
submitted that the Services of all the Petitioners had been
regularized and the Petition being infructuous thereafter was
disposed of with liberty to the Petitioners to approach the Court for
fixation of Incidental Reliefs.
(iii) In the ratio of Dhirendra Chamoli and Another vs. State of
U.P.8, the Hon'ble Supreme Court was considering the case of Equal
Pay for Equal Work. The Writ Petitions were initiated on the basis of
two Letters addressed by Employees of the Nehru Yuvak Kendra,
Dehradun. The Complaint made therein was that a number of
persons were engaged by the Nehru Yuvak Kendra as Casual
(1986) 1 SCC 637
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
Labourers on Daily Wage basis and though they were doing the
same work as performed by Class IV Employees appointed on
Regular basis, they were not being given the same Salary and
Allowances paid to the Class IV Employees. The Hon'ble Court, in
consideration of the facts placed before it, allowed the Writ
Petitions and directed the Central Government to pay the same
Salary and extend the same Conditions of Service as were being
received by the Class IV Employees, to those Employees who were
concededly performing the same duties as the Class IV Employees.
(iv) In Surinder Singh and Another (supra) relied on by
Learned Senior Counsel for the Petitioners, the Petitioners therein
were employed by the Central Public Works Department on a Daily
Wage Basis and had been working for several years and they
demanded that they should be paid the same Wages as permanent
Employees employed to do identical work. The Hon'ble Court made
reference to the decision of Dhirendra Chamoli and Another (supra)
and allowed the reliefs sought by the Petitioners.
(v) In the case of Bhagwan Dass and Others (supra), the
Petitioners were appointed as Supervisors by a competent
Selection Committee constituted by the Education Department of
Haryana from time to time since 02.10.1978. Their grievance was
that they had been given a deliberate break of one day after a
lapse of every six months and thus treated as Temporary
Government Servants, notwithstanding the fact that they had been
continuously working ever since the dates of their respective
appointment, subject to the aforesaid break of one day at intervals
of six months instead of absorbing them as Regular Employees in
Regular Pay Scales. The second grievance was that although the
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
Petitioners worked as Supervisors in the Education Department and
performed the same works as done by their counterparts, the
Respondents absorbed in regular Government Service also as
Supervisors, they were paid less. The Hon'ble Supreme Court,
while allowing the Petition, concluded inter alia that;
"14. .........the petitioners are entitled to be paid on
the same basis of same pay scale as per which respondents
2 to 6 who are discharging similar duties as Supervisors just
like the petitioners, are being paid."
[Emphasis supplied]
9. The facts in this case can be distinguished from those
of Dhirendra Chamoli and Another, Surinder Singh and Another and
Bhagwan Dass and Others (supra) relied on by the Petitioners. The
Petitioners therein had worked with other Employees similarly
situated and continued to do so, at no stage of their Employment
were they afforded the opportunity as extended to the Petitioners
herein, who after having filed the Writ Petition (C) No.05 of 2016,
their Services were regularized and after having accepted
regularization from September, 2016 and working for a whole year
thereafter, they had a sudden disgruntlement about their Salaries
and Benefits. In the instant matter, it is relevant to point out that
vide Notification No.264/GEN/DOP, dated 12.02.2014, 4,002 (four
thousand and two) Posts were created in various Government
Departments for the exclusive purpose of appointing Temporary
Employees belonging to Groups "C" and "D" category, who had
completed fifteen years and more of Temporary Service on
31.01.2013. Pursuant thereto, admittedly, Memoranda of
Appointment were issued to the Petitioners and others who were
entitled for regularization of their Services. The Appointments were
to be effective from 01.04.2014 but on 20.08.2014, a Circular
bearing No.1547/GEN/DOP was issued by the Department of
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
Personnel, Administrative Reforms, Training and Public Grievances
wherein it was informed that a Task Force comprising of Officers of
the rank of Additional Secretary, Secretary and Special Secretary
was constituted. The Task Force was entrusted with the duty of
verification of the details of Temporary Employees for which
Guidelines were provided. The Guidelines therein were inter alia as
under;
"1. Sikkimese Origin of the employee
(a) The Male employee should be in possession of Sikkim
Subject Certificate or Certificate of Identification or Indian
Citizenship Certificate in his/her name.
(b) In case of a married Female employee, both she and her
husband should be in possession of Sikkim Subject
Certificate or Certificate of Identification or Indian
Citizenship Certificate.
(c) In case of an unmarried Female employee, Unmarried
Certificate should also be produced in addition to Sikkim
Subject Certificate or Certificate of Identification or Indian
Citizenship Certificate in her name.
2. Length of Service (15 years or more) as on 31/1/2013
In order to ascertain whether an employee has rendered 15
years or more service as a temporary employee, one of the
following documents available in the official file/records of the
department can be relied upon:
(a) Office Order of Appointment
(b) Salary payment voucher dated on or before 31 st January
(c) Joining Report
(d) Application for job with the endorsement of appointment
with date
(e) Copy of Note Sheet/Process Sheet of appointment
(f) Authentic Seniority List
(g) Application or Order for Quarters Allotment
(h) Application or Order for Transfer
(i) Any other credible evidence available in the official file
(j) For cases not covered by any of the options (a) to (i) given
above any other document dated before 31.1.2013 which in
the view of the Committee can be considered as a credible
evidence of the length of service."
Thus, the Task Force had to verify whether the necessary
documentation was available with the concerned Temporary
Employee. So far as the length of Service of the Employee was
concerned, the Task Force was to examine whether one of the
documents listed in Serial No.2(a) to (j) of the Guidelines supra
were available in the Office File/Records in the Department of the
concerned Temporary Employee. Guidelines for asserting the age
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
of the Employee was also detailed therein. On 21.08.2014, an
Addendum to the above Circular, bearing No.1567-69/GEN/DOP,
dated 21.08.2014, was issued by the Department of Personnel,
pertaining to the Citizenship of the Employees concerned. The
Addendum also detailed inter alia as follows;
"2. Date of Completion:
(a) Completion of verification : 10th September, 2014.
(b) Issuance of Appointment Letters : 15th September, 2014.
(c) Disbursal of regular Salary : 1st October, 2014."
The Guidelines indicate that the criteria for regularization was to be
submission of the relevant documents and a time line for this
purpose was also laid down as detailed supra.
10. Although the Petitioners claim that all relevant
documents were submitted by them as per the requirements, an
alternative argument was also put forth by them that even if they
did not submit the documents as required, the documents were
already included in their respective Files on the basis of which, in
fact, their Services had been found to be eligible for regularization
from 01.04.2014 thus it was only an unnecessary obstacle created
by the State-Respondents. That, after cancellation of the
Memorandum of Appointment vide Office Order, dated 01.10.2014,
the State-Respondents did not indicate that fresh Memorandum
and Office Order of regularization of Service was to be issued
unless Sikkim Subject Certificate, Certificate of Identification or
Indian Citizenship Certificate was submitted. In my considered
opinion, this submission is belied by the very existence of Circular
No.1547/GEN/DOP, dated 20.08.2014 and the subsequent
Addendum bearing No.1567-69/GEN/DOP, dated 21.08.2014.
Further, despite claims of their documents being on record and also
subsequent submission of documents, the Petitioners have not filed
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
such documents for the perusal of the Court to establish that either
the documents were in the File of the Petitioners or that they filed
it along with the other Employees who thus availed of
regularization of Services from September, 2014. The Petitioners
cannot take advantage of their own error and lackadaisical attitude,
as administrative discipline is required to be adhered to.
11. The Petitioners have also failed to fortify their claim of
Equal Pay for Equal Work by any documentary evidence. There are
no Appointment Orders or Office Orders to indicate the equality of
designations or the tasks/works performed by them being similar
or equivalent to those Employees whose Services were regularized
in September, 2014 and who they seek to be placed at par with. A
meticulous examination of the documents do not reveal the Posts
held by them prior to regularization or the Posts held by the
Employees regularized in September, 2014. In the absence of such
documents, this Court is hard pressed to reach a finding of
equality, as insisted upon by the Petitioners. That apart, when the
Petitioners had filed the earlier Writ Petition No.05 of 2016 before
this Court, although specific date of their regularization was not
divulged to the Court by the Learned Additional Advocate General
therein, the Petitioners of their own volition withdrew the Petition
and accepted regularization granted by the State-Respondents
from June, 2016. No issue was raised at all in this context with the
State-Respondents and the contention that they waited for one
year till completion of probation and when Arrears of Salary were
not forthcoming, they have filed the second Writ Petition, is to say
the least incongruous. If regularization was granted from June,
2016, it is beyond comprehension as to why they would expect
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
regular Salary from the month of September, 2014. This Court is
conscious that the Order in the earlier Writ Petition No.05 of 2016,
dated 01.07.2016, permits the Petitioners to approach the Court
for "Incidental Reliefs," if so advised. The doors of the Courts are
definitely not closed for aggrieved persons when they perceive
violation of their rights. Thus, on this aspect, I have to disagree
with the submissions of Learned Additional Advocate General that
the Petition is barred by res judicata as the principle of res judicata
is applicable to subsequent Suits where the same issues by the
same parties have been decided in an earlier proceeding under
Article 226 of the Constitution but in the instant matter, this Court
itself had permitted them to approach it, if so advised, for
Incidental Reliefs. It is also necessary to mention that the doctrine
of res judicata, as envisaged by Section 11 of the Code of Civil
Procedure, 1908 does not stricto sensu apply to the proceedings
under Article 226 of the Constitution. Yet, the Petitioners herein are
reminded that the Order supra merely permitted them to approach
the Court but the reliefs can be obtained by them only on
establishing their case, not only by averments but also by way of
documentary evidence which substantiates their stand, which is
lacking herein. The documents relied on by the Petitioners fail to
lend succour to their case.
12. The Petitioners contend that they do not seek to press
Prayer "A." of the Writ Petition which provides as follows, "A writ or
order or direction or declaration that the services of the Petitioners be
treated under regular establishment with retrospective effect from
September, 2014, instead of since 30.06.2016." However, while
pressing Prayer "B." viz. "In the alternative, to pay to the petitioners
Garja Man Subba & Ors. vs. State of Sikkim & Ors.
arrears of salary as well as service benefits w.e.f. September 2014 like
those who have been regularised in the month of September 2014," an
insidious attempt is being made to press "Prayer A." If they seek
Salary from September, 2014, along with Service Benefits which
would also thereby include yearly Increments, it would, in effect,
tantamount to regularization of their Services from September,
2014. This is unacceptable as the Petitioners, besides having
surrendered their prayer of regularization have failed to make out
their entitlement to the claims put forth.
13. The Petitioners' claim of arbitrary action by the State-
Respondents and hand picking of Employees for regularization of
Services, evidently emanates from the fact that Employees who
acted promptly and submitted the relevant documents required by
the Task Force were regularized immediately. It is worth noticing
that the Petitioners have not assailed Circular No.1547/GEN/DOP,
dated 20.08.2014, or the subsequent Addendum of 21.08.2014, or
Office Order bearing No.1060/Adm, dated 01.10.2014, in any
proceeding.
14. In light of the discussions above, lacking in merits, the
Writ Petition deserves to be and is dismissed and disposed of
accordingly.
15. No order as to costs.
( Meenakshi Madan Rai )
Acting Chief Justice
23.09.2021
ml Approved for reporting : Yes
