THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 01 of 2022
1. Tshering Samdup Bhutia,
S/o Mr. Karma Bhutia,
R/o Marchak, Ranipool,
East Sikkim - 737135.
2. Man Kumari Subba,
D/o Birkha Bahadur Subba,
R/o Rangpo IBM,
East Sikkim - 737132.
3. Krishna Prasad Sharma,
S/o Late Bhim Lall Sharma,
R/o Lungchok, Salangdang, Soreng,
West Sikkim, 737121.
4. Usha Karki,
D/o Late Tek Bir Karki,
R/o Namthang, Nagi,
South Sikkim-737126.
..... Petitioners
Versus
1. State of Sikkim, through
The Chief Secretary,
Government of Sikkim,
Gangtok
East Sikkim-737101.
2. Department of Personnel, Administrative Reforms,
Training and Public Grievances,
Through the Secretary,
Government of Sikkim,
Gangtok- 737101
3. Sikkim Public Service Commission (SPSC),
Through the Secretary,
Government of Sikkim,
Old Tourism Complex,
M.G. Marg, Gangtok-737101.
2
W.P. (C) No. 01 of 2022
Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
4. Animal Husbandry & Veterinary Service Department
Through the Secretary,
Government of Sikkim,
NH-31A, Gangtok
Pin: 737102.
..... Respondents
Writ petition under Article 226 of the Constitution of India.
(Writ of mandamus and/or other appropriate writs, orders and /or
directions against respondents for quashing of the Notification
No.34/GEN/DOP dated 22.07.2019, consequent of which, subsequent
employment advertisement for the post of Fisheries Block Officer under
the provisions of the impugned Rules, 2019 to be declared as null and
void.)
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Appearance:
Mr. Yam Kumar Subba, Advocate for the Petitioners.
Dr. Doma T. Bhutia, Additional Advocate General, Mr.
S.K. Chettri, Government Advocate for the Respondent
Nos. 1, 2 and 4.
Mr. Bhusan Nepal, Advocate for Respondent No.3.
Date of hearing : 23.06.2022 & 27.06.2022.
Date of judgment : 05.07.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The present writ petition has been filed by four
petitioners. All of them were aspiring to join the Sikkim
State Sub-ordinate Fisheries Service as Fisheries Block
Officer.
2. On 01.05.2008 the Government of Sikkim framed and
notified the Sikkim State Subordinate Fisheries Service
Rules, 2008 (Fisheries Rules, 2008). It came into force on 3 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
03.05.2008 on which date the Fisheries Rules, 2008 was
published in the official gazette.
3. The controversy in the present case relates to the
eligibility condition for the Fisheries Block Officer. In the
Fisheries Rules, 2008 the eligibility condition provided that,
insofar as the age is concerned, the incumbent should have
been of the age between 18 years to 30 years. However, for
Scheduled Caste (SC) and Scheduled Tribe (ST) candidates
their age was relaxable by five years. In case of most
backward classes (MBC) and Other Backward Classes
(OBC) candidates the age was relaxable by 3 years. The
petitioner nos. 1 and 2 were ST candidates and petitioner
nos. 3 and 4 were OBC candidates.
4. On 22.07.2019 the Sikkim State Subordinate
Fisheries Service (Amendment) Rules, 2019 (the
Amendment Rules, 2019) was notified for the post of
Fisheries Block Officer. The amended schedule which
substituted the previous schedule of the Fisheries Rules,
2008 specified that the candidates should have attained the
age of 21 years and should not have exceeded 30 years for
all communities. What in effect this amendment did was to
do away with the age relaxation given to the ST, SC, MBC
and OBC candidates by the Fisheries Rules, 2008. 4
W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
5. On 26.08.2021 the Sikkim Public Service Commission
(SPSC) issued an advertisement for filling up 11 posts of
Fisheries Block Officer. In the advertisement it was
specified that the candidate should have attained the age of
21 years but should not have exceeded 30 years as on
31.07.2021.
6. It is the petitioner's case that the petitioners made
representations to the State Government against this
advertisement. The petitioners have not filed their
representations. The petitioners however, annexed certain
departmental note sheets in the writ petition which does
reflects that such representations had been made by the
petitioners. The note sheet dated 01.09.2021 annexed as
annexure P-12 to the writ petition indicate that their
representation were made prior to 01.09.2021. It transpires
that on 03.09.2021 pursuant to the representation made
the SPSC kept the process of recruitment in abeyance on
instruction from the State Government. However, on
14.12.2021 the SPSC issued a notice stating that the
recruitment process shall be resumed with immediate
effect.
7. On 25.12.2021 the petitioner no.2, on 27.12.2021 the
petitioner no.4, on 30.12.2021 the petitioner no.3 and on
31.12.2021 the petitioner no.1, all applied online for the 5 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
post of Fisheries Block Officer, as 31.12.2021 was the last
date of submissions of the applications. On the same date
the petitioners preferred the present writ petition before
this court. Admittedly, they did not mention the fact that
they had also applied for the post of Fisheries Block Officer
in the writ petition. This fact was however, subsequently
placed by the petitioner through I.A. No.2 of 2022 filed on
28.01.2022.
8. On 12.01.2022 the SPSC published the rejected list of
96 candidates in which the petitioners featured at serial
numbers 5, 10, 74 and 94. According to the rejection list
the petitioners were rejected as they were overage. Besides
the petitioners there were also other candidates who were
also rejected being overage. As the notice dated 14.12.2021
had specified that the rejected candidates could submit
their grievances with justifications to the office of the
Controller of Examination, SPSC with effect from
17.01.2022 to 21.01.2022, the petitioners on 20.01.2022,
19.01.2022, 19.01.2022 and 21.01.2022 sent
representations against the rejection of their candidature.
In all their representations the petitioners candidly
admitted that they were all over aged. The petitioners
however, also informed that they had the necessarily
educational qualification which is not in issue. On 6 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
consideration of the representations the SPSC re-published
the rejection list on 28.01.2022 which reflects that the
representations of the petitioners were not favorably
considered.
9. The learned counsel for the petitioners submitted that
the impugned Amendment Rules, 2019 insofar as it sought
to do away with the age relaxation to ST, SC and OBC are
concerned is in violation of Article 14, 16 and 335 of the
Constitution of India. To buttress the argument, the
learned counsel referred to the judgment of the Supreme
Court in State of M.P. vs. Mahalaxmi Fabric Mills Ltd.1 in
which it referred to its earlier decision in Indian Express
Newspapers (Bombay) Pvt. Ltd. vs. Union of India2 in which a
Bench of three Judges Bench held:
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary."
1
AIR 1995 SC 2213 2 AIR 1986 SC 515 7 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
10. The learned counsel submitted that although Article
335 of the Constitution of India is not enforceable however,
it is the paramount duty of the welfare state to ensure that
it achieves its purpose.
11. The learned counsel also referred to the decision of
the High Court of Jharkhand in Bholanath Rajak vs. The
State of Jharkhand3. The petitioner's in that case had
sought for a direction upon the respondents to fix the cut
off upper age limit to be 31.01.2009 by substituting the
same in the advertisement dated 10.12.2013, inviting
applications for the post of Civil Judge (Junior Division)
and to extend the time for submission of their applications
and that backward category candidates be given relaxation
of three years in the maximum age limit. The High Court on
perusal of the rules opined that there is no provision for
fixing the cut off date for determining the age prescribed for
the post of Civil Judge (Junior Division). The High Court
also noted that it was conscious of the fact that normally
decision fixing cut off date is not interfered with by the
courts. It noted that however, huge backlog of undecided
cases, large number of vacancies which have accumulated
since 2008 which has also affected the ratio of judges
compared to the population of State, are also
3 MANU/JH/0202/2014/ 2014 SCC OnLine Jhar 73. 8
W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
considerations which had to be kept in mind. It also noted
that no examination for filling up of posts of Civil Judge
(Junior Division) was held after 2008 and in the absence of
regular examination for recruitment of judicial officers in
the cadre of Civil Judge (Junior Division) the petitioners
could not appear for the examination and in the meanwhile
the writ petition as well as the other similarly placed
candidates had completed the maximum age of 35 years.
The High Court was of the view that by the reason of delay
in holding the examination, the writ petitioners should not
be disqualified from appearing in the examination.
12. The writ petition challenges the Amendment Rules,
2019, the advertisement dated 26.08.2021 and seeks their
quashing.
13. The respondent no.1, 2 and 4 have filed their common
counter affidavits contesting the grounds in the writ
petition. The facts stated hereinabove are not in dispute. It
is the case of the learned Additional Advocate General that
standardization the age of all categories of candidates was
a policy decision of the government which cannot be
challenged by the writ petitioner more so when they
themselves have participated in the selection process by
making their online applications which were rejected. It is
argued that the petitioners have failed to display how their 9 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
rights under Article 14 or 16 have been violated and in fact
there is no such violation. It is argued that out of 106
applicants for 11 posts 96 including the petitioners were
rejected. Nine candidates including the four petitioners had
been rejected on the ground that they were over aged. They
have not been made parties in the writ petition even though
they were necessary parties. It is submitted that at this
juncture if the writ petition was to be allowed and a
direction issued to give age relaxation as done by the
Fisheries Rules, 2008 then all those ST, SC and OBC
candidates above the age of 30 and below 35 inspiring for
the post would also be eligible for the post which would
open a flood gate. The learned Additional Advocate General
also submits that in the same department other posts were
also advertised which had the same standardized age limit
for all communities and therefore it is quite clear that it is
not only the Fisheries Block Officer post which had such
provision. Importantly, it is pointed out that the policy
decision of the State Government which is reflected in the
Notification dated 03.07.2017 issued by the Department of
Personnel, Administrative Reforms, Training and Public
Grievances has not been challenged by the petitioners. The
notification reads as under:
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W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
" NOTIFICATION
The State Government is hereby pleased to prescribe a uniform upper age limit of 40 (forty) years for all communities of the State in the services /posts to be filled up by direct recruitment under the Government of Sikkim and in the State Public Sector Undertakings of Sikkim with immediate effect.
However, the posts and services for recruitment in Sikkim Police, Indian Reserve Battalion, Sikkim Armed Forces, Forest Services, Fire Services and any other posts and services which have specifically prescribed upper age limit lower than 30 (thirty) years in their recruitment rules are kept outside the purview of this notification.
....................................
Sd/-
(Surekha Pradhan) Mrs.
ADDITIONAL SECRETARY TO THE
GOVERNMENT DEPARTMENT OF
PERSONNEL, ADMINISTRATIVE
REFORMS, TRAINING AND PUBLIC
GRIEVANCES"
14. To buttress the argument she cited the judgment of
the Supreme Court in Union of India & Ors. Vs. Shivbachan
Rai4. The Supreme Court held that it is open for the
government while framing rules under the proviso to Article
309 of the Constitution to prescribe such age limits or to
prescribe the extent to which any relaxation can be given.
Prescription of such limit or the extent of relaxation to be
given cannot be termed as arbitrary or unreasonable.
4 (2001) 9 SCC 356.
11
W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
15. It is pointed out by the learned Additional Advocate
General that the petitioners have failed to challenge the
rejection list as well. It is argued that although the
Amendment Rules came into force on 22.07.2019 the
petitioners failed to challenge the same until 31.12.2021
and therefore, the writ petition also suffers from delay and
latches.
16. The learned counsel also argued that Article 335 of
the Constitution of India must be read in consonance with
Article 16 (4) of the Constitution of India.
17. Mr. Bhusan Nepal, learned counsel for the SPSC in
support of the various arguments made by the learned
Additional Advocate General cites a judgment of the
Supreme Court in A.P. Public Service Commission, Hyderabad
and Anr. vs. B. Sarat Chandra & Ors.5. It was held by the
Supreme Court that the process of selection consists of
various steps like inviting applications, scrutiny of
applications, rejection of defective applications or
elimination of in eligible candidates, conducting
examinations, calling for interview or viva voce and
preparations of list of successful candidates for
appointment. It was held that when such are the different
5 (1990) 2 SCC 669 12 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
steps in the process of selection, the minimum or
maximum age for suitability of a candidate for appointment
cannot be allowed to depend upon any fluctuating or
uncertain date. If the final stage of selection is delayed and
more often it happens for various reasons, the candidates
who are eligible on the date of application may find
themselves eliminated at the final stage for no fault of
theirs. The date to attain the minimum or maximum age
must, therefore, be specific and determinate as on a
particular date for candidates to apply and for recruiting
agency to scrutinise applications. It would be, therefore,
unreasonable to construe the word selection only as the
factum of preparation of the select list. Nothing so bad
would have been intended by the rule making authority.
18. The issue whether the State has the power to frame
rules under the proviso to Article 309 of the Constitution of
India to prescribe age limits or the extent of relaxation to be
given has been lucidly explained by the Supreme Court
holding inter alia that it is open for the government while
framing rules under the proviso to Article 309 of the
Constitution of India to prescribe such age limits or to
prescribe the extent to which any relaxation can be given.
The Supreme Court further held that prescription of such
limit or the extent of relaxation to be given cannot be 13 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
termed as arbitrary or unreasonable. Thus, the challenge to
the Amendment Rules, 2019 is rejected.
19. The writ petition avers that the petitioner no.1
obtained Degree of Bachelors of Fisheries Science (BFSc.) in
the year 2017; the petitioner no.2 in the year 2014 and
Masters in Fisheries Science in the year 2016 and further
that she was working as a Block Officer (Fisheries) on
Muster Roll since 23.02.2018; the petitioner no.3 in the
year 2014 and he was working as a Range Officer (fisheries)
on ad-hoc basis since 30.06.2017; and the petitioner no.4
in the year 2013 and has been appointed as Multi Task
Office Staff under the Agriculture Department since
31.12.2018. Thus, it is clear that the petitioners all had
desired minimum educational qualification of Degree of
BSc by the year 2017. The petitioner no.2 and petitioner
no.3 had also been working in the Fisheries Department.
The petitioners however, did not challenge the Amendment
Rules, 2019 when it was notified on 22.07.2019. The facts
revealed that they challenged it after they made their online
applications. Their representations were not favorably
considered. It is seen that the Amendment Rules, 2019 was
pursuant to a policy decision reflected in the notification
dated 03.07.2017 quoted above. This notification has not
been challenged by the petitioners. There is a presumption 14 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
that the notification was validly made by the government
unless proved that it was not. The burden laid down by
Section 101 and 102 of the Indian Evidence Act, 1872 has
not substituted by the petitioners. Neither in the pleadings
in the writ petition nor during arguments by the learned
counsel for the petitioners it was shown that the
Amendment Rules, 2019 was ultra vires the Constitution of
India or any other law. The notification dated 03.07.2017
does reflect that the State Government had taken a policy
decision to prescribe a uniform upper age limit of 40 years
for all communities of the State in the services/post to be
filled up by direct recruitment. It was further decided that
the posts and services for recruitment in specific
departments including any other posts and services which
have specifically prescribed upper age limit lower than 30
years in their recruitment rules are kept outside the
purview of the notification. Although this notification dated
03.07.2017 is silent on age relaxation for SC, ST, MBC and
OBC candidates evidently the State Government had
considered prescribing age limit for all communities of the
State in the services/posts to be filled by direct
recruitment. Thus the Amendment Rules, 2019 which
amended the schedule seems to be in line with the policy
decision of the Government when it prescribed that the 15 W.P. (C) No. 01 of 2022 Tshering Samdup Bhutia & Ors. vs. State of Sikkim & Ors.
incumbent should have attained the age of 21 years and
should not have exceeded 30 years for all communities.
The prayer of the petitioners for a direction upon the State
respondents to relax the age prescribed in the Amendment
Rules, 2019 with the strength of the judgment passed by
the Jharkhand High Court cannot also be accepted as the
circumstances prevailing in the State of Jharkhand when
the judgment was passed cannot be equated with what has
been pleaded in the present proceedings. The scope of
judicial review of policy decision of the government is very
narrow and the present writ petition does not qualify as the
exceptional one calling for interference.
20. In the circumstances, the writ petition fails and
accordingly dismissed. The pending application is disposed
off as well.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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