Sikkim High Court
Tseten Palzor Bhutia vs State Of Sikkim And Ors on 27 June, 2022
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 27th June, 2022
-------------------------------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
-------------------------------------------------------------------------------------------------------
WP(C) No.10 of 2020
Petitioners : Tseten Palzor Bhutia
versus
Respondents : State of Sikkim and Others
Application under Articles 226
of the Constitution of India
-----------------------------------------------------------------------------------------
Appearance
Mr. Zangpo Sherpa, Advocate for the Petitioner.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Yadev
Sharma, Government Advocate and Mr. Sujan Sunwar, Assistant
Government Advocate for the Respondents No.1 and 3.
Mr. Bhusan Nepal, Advocate for the Respondent No.2.
Mr. J. B. Pradhan, Senior Advocate with Mr. D. K. Siwakoti and
Ms. Prarthana Ghataney, Advocates for the Respondent No.4.
-----------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1(i). The Petitioner, an Additional Superintendent of Police
was initially appointed in the rank of Deputy Superintendent of
Police, in the Police Department, Government of Sikkim by a letter
of appointment dated 09-11-2015. He assails the offer of
appointment made to the Respondent No.4 (hereinafter "R4'),
dated 10-05-2016 (Annexure-P7), and the appointment Order,
dated 25-06-2016, appointing R4 as Deputy Superintendent of
Police and prays that both be set aside. That, the inter se seniority
settled vide Notification bearing No.106/GEN/DOP, dated 02-08-
2016, whereby R4 has been placed at Serial no.69 while he has
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 2
been placed at Serial no.70 also be set aside and he be placed at
Serial no.69 of the seniority list. That, the Respondents be directed
to make necessary corrections in the Office Order, dated 03-09-
2019, (vide which he and R4 were promoted to the post of
Additional Superintendent of Police), by placing him at Serial no.1
instead of R4. That, the Respondents be ordered to refrain from
taking steps on the Order dated 03-09-2019 and a fresh seniority
list be published with the rectifications sought supra.
(ii) The Petitioner's case summarized is that on 12-09-
2012, the Sikkim Public Service Commission (hereinafter "R2"),
issued an advertisement for filling up twenty-five posts of Under
Secretaries and equivalent, in the junior grade of the Sikkim State
Civil Service (hereinafter "SSCS"). On 27-11-2012, by an
addendum to the advertisement, two posts of Deputy
Superintendent of Police (hereinafter "DySP") were also included.
The advertisement made no mention of a Panel List or Waiting List.
The Petitioner along with R4 and other candidates appeared for the
preliminary examination conducted by R2 on 20-07-2014 and the
main examinations from 23-02-2015 to 26-02-2015. R2 published
the names of selected candidates on 09-06-2015. For the post of
DySP, one Ms. Barbara Lama (hereinafter "Candidate No.1"), was
selected in the unreserved category, while the Petitioner was
selected also to the post of DySP, in the reserved category of
Bhutia/Lepcha (BL). Two candidates selected to the post of Under
Secretary (hereinafter "US") declined to take the appointment,
thus the said two posts remained vacant. The Candidate No.1, who
was first in the Merit List for DySP was not appointed in the post on
grounds that she was not entitled to a Certificate of Identification
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 3
(hereinafter "COI"). The Petitioner upon receiving his letter of
appointment, dated 19-11-2015, joined training at the North
Eastern Police Academy (hereinafter "NEPA"), Meghalaya from
January, 2016. His letter of appointment stated that seniority
would be maintained as declared by the R2 vide its Notice bearing
No.93/SPSC/2015, dated 09-06-2015. The Petitioner later came to
learn of the appointment of R4 in the post of DySP vide Order
dated 25-06-2016 and of the Notification dated 02-08-2016,
whereby in the inter se Seniority List of the members of the SSCS,
R4 was placed at Serial no.69, while he was placed at Serial no.70,
thereby making him junior to R4. Being thus aggrieved, he
submitted a representation to R1 the Secretary, Department of
Personnel, Administrative Reforms, Training and Public Grievances
through R3, the Director General of Police, on 24-10-2017. He
apprised R1 that R4 had joined his training centre in July, 2016
while he had joined NEPA in January, 2016 therefore R4 was junior
to him in service. In response R1 informed him that his prayer
could not be considered as the inter se seniority was determined
on merit, based on the exam results declared by R2. Hence, the
instant Writ Petition seeking the prayers reflected hereinabove.
2. R1 disputed the contentions of the Petitioner and by
averments sought to clarify that that as doubts were raised about
the COI submitted by the Candidate No.1 who was selected to the
post of DySP, a Suo Motu investigation was carried out by the
Special Branch, Sikkim Police, meanwhile the process of her
appointment was kept in abeyance till the outcome of the
aforestated investigation, with Government approval. The
Petitioner, in the interregnum was appointed as DySP. Following
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 4
the investigation the COI issued to Candidate No.1 was cancelled
on 21-03-2016, on discovery that it had been obtained by
misrepresentation, as also her selection to the post of DySP.
Pursuant thereto, R1 issued a requisition to R2 vide communication
dated 31-03-2016, providing the Merit List of candidates and
sought their opinion for consideration of appointment of the next
candidate on merit. Vide its letter dated 09-04-2016, R1 was
informed by R2 of the cancellation of the COI of Candidate No.1
and as a consequence her selection to the post of DySP. In the
Merit List forwarded by R2, the name of R4 found place next below
Candidate No.1. In the intervening period R4 filed WP(C)
No.66/2015, on 01-12-2015, before this Court seeking
appointment to the post of either US or DySP which were lying
vacant. With the approval of the State Government R4 was
appointed as DySP on 25-06-2016 as the candidature of the
Candidate No.1 was cancelled. He could not be appointed in the
post of US as the posts were already utilised by the selected
candidates and would be carried on to the next recruitment process
and there was no Panel List. That, the prayer of the Petitioner
seeking rectification of the Seniority List was rejected after the
matter was duly examined by the State Government and the Law
Commission, hence, the Petition deserves a dismissal.
3. R2 while countering and disputing the averments of the
Petitioner emphasized that the candidature of R4 for the post of
DySP was against a post notified for the unreserved category while
the Petitioner was selected in a reserved category. That besides
the Writ Petition filed by R4 being WP(C) No.66/2015 another
WP(C) No.15/2016, was filed by one Tshering Eden Bhutia, on 14-
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 5
05-2016, with a prayer to appoint her in the post of US or
equivalent on grounds that R2 had considered the case of R4
herein and appointed him to the post of DySP. The Commission
contested the Writ Petition on the grounds that R4 was appointed
on the "cancellation" of the candidature of Candidate No.1 and that
the advertisement for the post of US and DySP clearly indicated
that if on verification at any time, before or after the preliminary
Examination, Main(written) Examination and Interview Test, it was
found that the candidates do not fulfill any of the eligibility
conditions, their candidature for the examination/post would be
cancelled by the Commission. The Writ Petition of Tshering Eden
Bhutia was dismissed by this Court vide Judgment dated 03-08-
2017, on grounds that when two seats reserved for Bhutia/Lepcha
(BL) women were filled up by other women candidates from the
said category, the Petitioner could not be permitted to supersede
or by pass the Merit List, as there were two male candidates better
placed in the Merit List than the Petitioner. That, R4 was appointed
on Candidate No.1 not fulfilling the eligibility criteria and the
consequent cancellation of her COI. It was also averred that as per
the combined Merit List, R4 ranked higher in the merit position
than the Petitioner. That, the Writ Petition being untenable in the
eyes of law, be dismissed.
4. R4 in his Counter-Affidavit by and large reiterated the
averments put forth in the Counter-Affidavit of the R1 and R2 and
added that the Select List of candidates is not the Merit List as
erroneously interpreted by the Petitioner, hence the Petition be
dismissed with costs.
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 6
5. Rejoinder was filed by the Petitioner disputing the
averments made in the Returns of the Respondents.
6(i). Opening his arguments for the Petitioner Learned
Counsel contended that the Petitioner was primarily aggrieved by
two issues viz. the appointment of R4 on 25-06-2016, despite
completion of the selection process, in the post of DySP sans a
Panel or Waiting List of selected candidates and secondly by the
inter se Seniority List dated 02-08-2016, in which R4 was placed at
Serial no.69 higher in seniority than the Petitioner who was at
Serial no.70. Leading this Court through the documents and the
correspondence relied on by the Petitioner, it was argued that in
the Provisional Seniority List of DySP in the Sikkim State Police
Service (hereinafter "SSPS"), when the name of the Petitioner
appeared at Serial no.38, R4 was not even appointed then. Vide a
communication of R1 dated 19-03-2016 to all Sikkim Police Service
Officers', a provisional Seniority List was circulated and the
Officers' were to submit their comments, within fifteen days, of the
issuance of the letter, failing which, it would be presumed that they
had consented and seniority would be fixed accordingly. As the
Provisional List and the seniority therein was not set aside, it is
assumed to have been confirmed after fifteen days.
(ii) Inviting the attention of this Court to Annexure-R1-2,
Communication dated 09-04-2016, it was urged that R2 as per its
relevant Rules was to have put forth a recommendation for the
appointment of the R4, which was however given a go by. That, a
copy of the communication dated 09-04-2016 was not made over
to the Petitioner despite him having filed an application under the
Right to Information (RTI). Reliance was placed on Gujarat State Dy.
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 7
Executive Engineers Association vs. State of Gujarat and Others1 where
the provision of Waiting List was explained. It was further urged
that infact the recommendation for appointment of R4 by R2 did
not materialise due to the non-existence of a Waiting List or Panel
List, which would have enabled selection of candidates in the event
of any contingency. That, R2 in its earlier Counter-Affidavit to the
Writ Petition filed by R4 had averred that should vacancies arise
during the said recruitment process they would not be filled but be
carried over to the next recruitment process. That, in contradiction
to that averment the State-Respondents have now taken a stand
that as R4 was already in the Merit List he was selected for
appointment, which is in violation of the Rules. On this point
assistance was drawn from the ratio in Bihar State Electricity Board
vs. Suresh Prasad and Others2, Vallampati Sathish Babu vs. State of
Andhra Pradesh and Others3.
(iii) Emphasizing that the Petitioner had been wrongly
deprived of his seniority it was contended that R4 was not even
borne in the cadre when the Petitioner was appointed and his
appointment letter assured the maintenance of seniority in terms
of the Notice dated 09-06-2015. That, although R4 was appointed
later he was placed higher in seniority despite the settled position
of law that inter se seniority cannot be granted on a retrospective
date. To buttress his submissions reliance was placed on Ganga
Vishan Gujrati and Others vs. State of Rajasthan and Others4. That,
when R4 filed the Writ Petition seeking appointment as US or DySP
in December, 2015 he did not seek a stay of the Provisional
Seniority List which thereby attained finality on 19-03-2016 and
(1994) Supp (2) SCC 951
(2004) 2 SCC 681
(2022) SCC Online SC 470
(2019) 16 SCC 28
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 8
cannot be tampered with. That, there has been violation of the
provisions of Articles 14 and 16 of the Constitution of India by the
appointment of R4 which is thus required to be set aside as it
would otherwise perpetuate an illegality. Learned Counsel for the
Petitioner also urged that the opinion of the Law Commission relied
on by the Respondents, that the appointment and placement in
seniority of R4 was not illegal, is erroneous. To fortify his
submissions that Rules were not adhered to for the recruitment of
R4 reliance was placed on Nagendra Chandra and Others vs. State of
Jharkhand and Others5, State of Bihar and Others vs. Devendra Sharma6
and State of Bihar and Others vs. Arbind Jee and Others7. Contending
that the doctrine of delay and laches is inapplicable to a Writ of
Quo Warranto reliance was placed on Central Electricity Supply Utility
of Odisha vs. Dhobei Sahoo and Others8. Justifying that the Petition
was filed well within time strength was garnered from K. R. Mudgal
and Others vs. R.P. Singh and Others9, hence the Petitioner be
granted the reliefs claimed.
7. Learned Additional Advocate General for R1 and R3
submitted that in the first instance, the question of Panel List or
Waiting List does not arise as the Government by a Notification
dated 16-10-2015, has done away with such requirement. That,
the Petitioner was selected in a reserved category while R4 was
appointed in an unreserved category. That, the appointment of R4
arose after the results of the selected candidates was published
and the Candidate No.1 in the selected list of DySP on verification
was found not entitled to a COI, which was thus cancelled, vide an
(2008) 1 SCC 798
(2020) 15 SCC 466
(2021) SCC Online SC 821
(2014) 1 SCC 161
(1986) 4 SCC 531
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 9
order of the concerned Authority, on 21-03-2016. When the Writ
Petition of R4 was filed on 01-12-2015, no person had been
appointed to the said post of DySP in the unreserved category, in
which the Candidate No.1 had qualified, who in the first instance
was not even eligible to take the examination. Consequently, R4
was selected for appointment on the basis of the Merit List,
wherein he ranked higher than the Petitioner. That, R4 cannot be
faulted for his delayed appointment as it was for reasons beyond
his control or for that matter beyond the control of any of the
Respondents herein. Thus, the selected Candidate No.1 was never
appointed to the post, on account of her disqualification, which
translated into the vacancy never having been filled at any point in
time as distinguished from the cases in the post of Under
Secretaries where two selected candidates were appointed but
declined the appointment, as a result of which the vacancies would
be carried over to the next recruitment process. While addressing
the question of seniority, the Sikkim State Services (Regulation of
Seniority) Rules, 1980 was referred to and reliance placed on Rule
4(c), which governs direct recruits. It was urged that as per the
Rules merit is the criteria for seniority and not the date of joining
office, as erroneously contended by Learned Counsel for the
Petitioner. To fortify his contentions, reliance was placed on Anjan
Kumar Mandal vs. Union of India10. That, the Petition being without
merit deserves to be dismissed.
8(i). Learned Senior Counsel for R4 advanced the
arguments that the contentions put forth for the Petitioner are
fallacious both factually and legally. He asserted that the
2017 SCC Online Del 12028
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 10
appointment of R4 was neither against a Panel List or a future
vacancy but was on that particular advertised vacancy for
recruitment. That, the contention of the Petitioner that the
selection process was completed on publication of the Select List, is
an incorrect proposition as the selection process concludes only on
verification and the consequent filling up of all vacancies. To
buttress this submission reliance was placed on Public Service
Commission, Uttaranchal vs. Mamta Bisht and Others 11. It was next
urged that as per the relevant Rules relied on by R1 seniority is
based on merit and not the Select List of candidates or the date of
joining of service by the appointed candidate, neither is seniority
based on the Provisional List as incorrectly contended by the
Petitioner. That, the appointment of R4 arose on account of the
cancellation of the candidature of Candidate No.1 and steps taken
by R1 on the recommendation of R2, in view of the above
circumstance of cancellation. That, it is unfortunate that R4 despite
being appointed in an unreserved category, on merit, has to defend
his appointment after four years, due to the untenable claims of
the Petitioner, that too when he has already availed of promotion
to a higher post. That, seniority ought not to be disturbed after a
long lapse of time. On this count reliance was placed on K. R.
Mudgal and Others (supra). That, the Seniority List was issued on
02-08-2016, on which date the cause of action arose and does not
get extended by way of belated filing of the Writ Petition on 06-03-
2020. In any event, although, the Writ Petition of R4 was filed on
01-12-2015, the Petitioner did not assail the appointment of R4 as
illegal, his grievance being limited to an alleged erroneous ranking
(2010) 12 SCC 207
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 11
in seniority of the R4. The Petitioner filed his first grievance against
R4 regarding seniority, before R1 on 24-10-2017, sixteen months
after the appointment of R4. The Government rejected his
representation on 07-04-2018. Thereafter, the Petitioner filed the
instant Writ Petition only on 06-03-2020, much after R4 was
promoted to the subsequent senior post of ASP on 03-09-2019.
That, although, the legal Notice dated 11-02-2019 and 11-07-2019
of the Petitioner states that numerous representations were made
by the Petitioner, records reveal that only one representation was
filed by him and came to be rejected.
(ii) In the next leg of his argument Learned Counsel for R4
contended that the Petition was not maintainable on grounds of
delay, laches and acquiescence towards which reliance was placed
on P. S. Sadasivaswamy vs. State of Tamil Nadu12. That, in Prakash K.
and Another vs. State of Karnataka and Others13, where delay of
nineteen months occurred in approaching the Court, delay was not
condoned by the Hon'ble Supreme Court, moreover why the delay
occurred in filing the Writ Petition herein has not been explained. It
was observed by the Hon'ble Supreme Court in Vijay Kumar Kaul
and Others vs. Union of India and Others14, that even when a
fundamental right is involved, the Court has the right to decide on
delay and laches. That, in State of Uttaranchal and Another vs. Shiv
Charan Singh Bhandari and Others15, the Hon'ble Supreme Court has
held that filing of Writ Petition alone does not condone delay.
Pointing to the Office Order dated 09-11-2015 of the Petitioner,
attention was drawn to Paragraph 3 of the said Order wherein it is
(1975) 1 SCC 152
(1996) 11 SCC 563
(2012) 7 SCC 610
(2013) 12 SCC 179
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 12
specified that the inter se seniority will be as per the order of
merit, therefore the Petitioner even on the date of his appointment
was aware that seniority would be on the basis of merit and not
dependant on the date of joining service. To support this stance
reliance was placed on State of Uttaranchal and Another vs. Shiv
Charan Singh Bhandari and Others (supra), State of Tamil Nadu vs.
Seshachalam16 and Vijay Kumar Kaul and Others (supra).
(iii) Pressing home the point pertaining to estoppel and
acquiescence, the observation in P.S. Gopinathan vs. State of Kerala
and Others17 was relied on. It was contended that the Petitioner has
no locus standi to challenge the appointment of R4, besides the
Petitioner's appointment was in a reserved category while that of
R4 is in an unreserved category and he ranked higher in merit and
his seniority after the lapse of time cannot be disturbed. Strength
was drawn from the ratio in M.P. Palanisamy and Others vs. A.
Krishnan and Others18. That, the Hon'ble Supreme Court in Bimlesh
Tanwar vs. State of Haryana and Others19, has clearly propounded that
even in the absence of Rules, merit will be the criteria for
appointment. It was sought to be clarified that the vacancy created
by declining to fill the post is to be distinguished from the vacancy
which arose by the cancellation of candidature of the Candidate
No.1, is as much as, although selected, she could not be
appointed. Hence, in the light of the facts and legal stance placed
before this Court the Petition deserves a dismissal.
9. Learned Counsel for R2 while relying on the averments
made in his Counter-Affidavit and while endorsing the submissions
(2007) 10 SCC 137
(2008) 7 SCC 70
(2009) 6 SCC 428
(2003) 5 SCC 604
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 13
put forth by Learned Additional Advocate General for R1 and R3
and Learned Senior Counsel for R4, invited the attention of this
Court to the letter dated 09-04-2016, written by R2 to R1
regarding the cancellation of the candidature of Candidate No.1
and the resultant vacancy. That, consequently the Merit List was
submitted to R1 who acted upon it, hence no error arises in the
functioning of the R2.
10. In rebuttal, Learned Counsel for the Petitioner relied on
the ratio in Shiba Shankar Mohapatra and Others vs. State of Orissa
and Others20, wherein the Hon'ble Supreme Court while dealing with
the delay and laches held that "reasonable time" is between three
to four years. Reliance was placed on Madan Lal and Others vs. State
of Jammu Kashmir and Others21, to buttress his submissions that
once the vacancies are filled by candidates taken in order of merit
from the Select List, that list will get exhausted having served its
purpose, hence the appointment of R4 is illegal.
11(i). I have duly considered the submissions made at the
Bar, perused the pleadings, all documents on record and citations
relied on by Learned Counsel.
(ii) The questions that fall for determination before this
Court are;
1. Whether the appointment of R4 on account
of the cancelled candidature of a selected
candidate was legal, in the absence of a
Panel list?
2. Whether R4 preceding the Petitioner in
seniority, despite being appointed in
service later in time than him is legally
tenable?
(2010) 12 SCC 471
AIR 1995 SC 1088
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 14
3. Whether the Writ Petition is rendered
nugatory on account of delay, laches and
acquiescence?
12(i). While taking up the first question hereinabove for
consideration, for brevity the facts herein or details of the Writ
Petition filed by R4 WP(C) No.66/2015 seeking appointment to the
posts of US and DySP are not being reiterated. It may relevantly
be clarified here as pointed out by Learned Senior Counsel for R4
and the Additional Advocate General for R1 and R3 that, the post in
which Candidate No.1 was selected was never utilised, in as much
as she was never appointed to the post on account of cancellation
of her candidature, following Police investigation and verification of
her documents. In other words she was disqualified before
appointment. Hence, in contrast to the two posts of US that fell
vacant on the two selected candidates declining to join the post, no
candidate was actually appointed in the post of DySP. The selection
process could not be stated to be completed until all requisite
verification in terms of the condition in the Select List of 09-06-
2015 was carried out. On this aspect I am inclined to agree with
Learned Senior Counsel for R4. As the posts of US fell vacant after
the appointment of the candidates, the posts were to be carried
over to the next recruitment process. Reliance on Madan Lal (supra)
by Learned Counsel for the Petitioner is misplaced. It was observed
therein inter alia that once the requisite vacancies are filled by
candidates taken in order of merit from the Select List, that list
gets exhausted having served its purpose. The case at hand can be
distinguished from the said ratio for the reason that Candidate
No.1 was not even eligible to take the examination, in other words
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 15
as already stated her candidature was disqualified and R4 was
appointed as he appeared next below her on merit.
(ii) Learned Counsel for the Petitioner had also canvassed
the arguments that the appointment of R4 was in violation of
Articles 14 and 16 of the Constitution of India and on this count
reliance was placed on Nagendra Chandra and Others (supra). The
recruitment process therein was found to be in infraction of the
Rules and violation of Articles 14 and 16 of the Constitution. This
judgment too is of no assistance to him as in the instant matter all
eligible candidates had been given equal opportunity and the
vacant posts advertised. Reliance on State of Bihar and Others vs
Arbind Jee and Others (supra) also lends no succour to the case of
the Petitioner, as R4 was not illegally appointed as emanates from
the circumstances placed before this Court and discussed
hereinabove.
13(i). Learned Counsel for the Petitioner also urged that as
the R2 did not issue any Waiting List or Panel List the appointment
of R4 was illegal and relied on State Bihar Electricity Board (supra)
on this facet. Having perused the ratio it has no bearing to the
facts of the instant Writ Petition as the candidates clamouring for
appointment therein were those who were in the Waiting List which
is non-existent in this case. Besides the Hon'ble Supreme Court
also observed that even if the number of vacancies were notified
for appointment and even if the adequate number of candidates
were found fit, the successful candidates do not acquire any
indefeasible right to be appointed against existing vacancies.
Vallampati Sathish Babu (supra) also fails to fortify the case of the
Petitioner as the facts are distinguishable in as much as the
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 16
selected candidate in Vallampati Sathish Babu (supra) had failed to
join the post although selected, while the facts with regard to the
Petitioner's case was not one in which the selected candidate failed
to join.
(ii) At this juncture, it may necessarily be noticed that R1
had done away with the system of maintaining a Panel of selected
candidates for appointment to any vacant post even if a vacancy
arose out of any contingency. In this context, we may a carefully
scrutinise the Notification dated 11-06-2015 bearing
No.16/GEN/DOP and the amending Notification dated 16-10-2015,
bearing No.36/GEN/DOP, the relevant portions of which are
extracted below;
"GOVERNMENT OF SIKKIM
DEPARTMENT OF PERSONNEL, ADMINISTRATIVE
REFORMS, TRAINING AND PUBLIC GRIEVANCES
GANGTOK-SIKKIM
No. 16/GEN/DOP Date: 11/06/2015
NOTIFICATION
..........................................................................................
2. In the Sikkim Government Establishment Rules,
1974, in sub-rule (4) of rule 4, in item D-
(1) after clause (i), the following clause shall be
inserted namely:-
"(ii) Any vacancies under the State
Government Service, arising after initial
direct recruitment on the basis of the results
of open competitive examinations, shall be
filled-up, within a period of 1 (one) year
from the date of declaration of the results of
such examination from the panel of
qualifying candidates which shall be valid for
a period of 1(one) year, on merit basis in
accordance with the reservation rules of the
State Government.";
(2) the existing clauses (ii),(iii) and (iv) shall be
renumbered as clauses (iii), (iv) and (v)
respectively.
BY ORDER AND IN THE NAME OF THE GOVERNOR
Sd/-
JOINT SECRETARY TO THE GOVERNMENT
DEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING
& PUBLIC GRIEVANCES
............................................................................................."
(emphasis supplied)
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 17
On 16-10-2015 a Notification bearing No.36/GEN/DOP was
issued amending Rule 4(4) of the said Rules in item D which is
reproduced below;
"GOVERNMENT OF SIKKIM
DEPARTMENT OF PERSONNEL, ADMINISTRATIVE
REFORMS, TRAINING AND PUBLIC GRIEVANCES
GANGTOK-SIKKIM
No. 36/GEN/DOP Date: 16/10/2015
NOTIFICATION
...............................................................................................
2. In the Sikkim Government Establishment Rules,
1974, in sub-rule (4) of rule 4, in item D-
(1) clause (ii) and the entries relating thereto
shall be omitted;
(2) the existing clauses (iii), (iv) and (v) shall be
renumbered as clauses (ii),(iii) and (iv)
respectively.
BY ORDER AND IN THE NAME OF THE GOVERNOR
Sd/-
(K.K.Basnet)SCS
SPECIAL SECRETARY TO THE GOVERNMENT
DEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING
& PUBLIC GRIEVANCES
.............................................................................................."
(emphasis supplied)
Hence, it is evident that the amending Notification did away
with clause (ii) supra which provided for a Panel of qualifying
candidates, in other words for any vacancies arising in the State
Government Service, upon selection of candidates there would be
no Panel or Waiting List prepared. This position thus lends a
quietus to the din raised by Learned Counsel for the Petitioner with
regard to the absence of the Panel/Waiting List and the
appointment of R4 despite its non-existence.
(iii) Appositely in the context of this Writ Petition, the
observation of the Hon'ble Supreme Court in Purushottam vs.
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 18
Chairman M.S.E.B and Another22, may be considered. In the said
matter the Appellant was selected against a post reserved for the
Scheduled Tribe. The Respondent Board doubted such status of the
Appellant on which a dispute arose, which ultimately stood
resolved in his favour. Before the High Court, which was persuaded
to accept the contention, the Respondent Board contended that no
appointment could be given to the Appellant because during the
pendency of the dispute, some other person had been appointed to
the post, hence there was no vacancy and the term of the Panel
had also expired. In Appeal, the Hon'ble Supreme Court held that
usurpation of the post by someone else was not due to the fault of
the Appellant but on account of the erroneous decision of the Board
and directed the Board to appoint the Appellant. Similarly, in the
instant case at hand, the COI status of the successful candidate
was found to be under suspicion and as providence would have it
the dispute stood resolved against her. The post she could have
been appointed to thus remained vacant. If the COI had not been
tested on the veracity of truth, the circumstances would have
differed, R4 being next in the Merit List was entitled to the post
and appointed thereto.
(iv) In Bedanga Talukdar vs Saifudaullah Khan and Others23
relied on by Learned Counsel for the Petitioner, it was held that all
appointments to public office have to be made in conformity with
Article 14 of the Constitution of India with no arbitrariness resulting
or undue favour to any candidate and the selection process
conducted strictly as per procedure. That, if the Rules provide for
power of relaxation, it must be mentioned in the advertisement.
(1999) 6 SCC 49
(2011) 12 SCC 85
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 19
Reliance on this ratio is veritably an exercise in futility by the
Petitioner as no relaxation clause was ever invoked or exercised by
the State Respondents during the recruitment process. The
relevant vacant posts were advertised with all eligible candidates
extended an equal opportunity an envisioned by Article 14 of the
Constitution as also Article 16, and the circumstances of the
appointment of R4 have been elucidated in the foregoing
paragraphs.
(v) The attention of this Court was drawn by the Petitioner
to the ratio of the Hon'ble Supreme Court in Gujarat State Dy.
Executive Engineers Association (supra), wherein the questions which
were determined were; What is a Waiting List?; Can it be treated
as a source of recruitment from which candidates can be drawn as
and when necessary?; and lastly how long can it operate. In my
considered opinion it is irrelevant to consider the details of this
ratio as the question of "Waiting List" is not even a issue, the
provision pertaining to the Waiting List and Panel List having been
done away by the Government as elucidated, (supra).
(vi) Thus, while determining question no.1, in light of the
foregoing discussions the appointment of R4 cannot by any stretch
of the imagination be held to be illegal.
14(i). Now, taking up the second question formulated (supra)
for consideration; the stand of the Petitioner was that he is senior
to R4 in service having joined service before him. In Ganga Vishan
Gujrati and Others (supra), relied on by the Petitioner, the Supreme
Court has clearly reiterated that retrospective seniority cannot be
granted to an employee from the date when the employee was
"not" appointed in a cadre. Indeed, there can be no deviation from
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 20
this law propounded by the Hon'ble Supreme Court, nevertheless,
no succour can be derived by the Petitioner by reliance on this ratio
as the matter dealt with the appointment and promotion of
Patwaris under the relevant Rules in Rajasthan. The Petitioner and
R4 herein are governed by the Sikkim State Services (Regulation of
Seniority) Rules, 1980, Rule4(c), Seniority is to be governed by the
relevant Rules applicable to the State Service and cannot be
imported by way of reliance on Rules of other States which have no
bearing to the parties herein.
(ii) We may therefore look into the Sikkim State Services
(Regulation of Seniority) Rules, 1980 relied on by the Respondents
wherein it is elucidated at Rule 2 as follows;
"2. Application.- These rules shall apply to persons
appointed to the following Services,-
(a) Sikkim Civil Services;
(b) State Police Services;
(c) State Forest Services;
................................................................................................
4. Determination of seniority.- The seniority of the
members of the Service shall be determined separately in
respect of each Service in the manner specified below,-
.................................................................................................
(c) The seniority of members of the Service who
are recruited on the results of the competitive examination
in any year shall be ranked inter-se in the order of merit in
which their names appear in the result of that competitive
examination; those recorded on the basis of the earlier
examination shall rank senior to those on the basis of later
examination." (emphasis supplied)
The Rule is not only self explanatory but with clarity
elucidates that the criteria for inter se seniority shall be in the
order of merit in which the candidates' names appear in the result
of that competitive examination. Besides, it is essential to consider
Paragraph 3 of the appointment letter of the Petitioner, viz., the
Office Order of the Petitioner bearing no.1599/G/DOP, dated 09-
11-2015, which is reproduced herein below for easy reference;
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 21
"GOVERNMENT OF SIKKIM
DEPARTMENT OF PERSONNEL, ADM. R. & TRAINING & PG
GANGTOK
No.1599/G/DOP Date: 09.11.2015
OFFICE ORDER
On recommendation of the Sikkim Public Service
Commission, the Governor is pleased to appoint Shri Tseten
Palzor Bhutia to the post of Deputy Superintendent of Police in
the Junior Grade of Sikkim State Police Service in the PB-I2I of
Rs.9300-38400 and Grade Pay of Rs.5400/- with effect from the
date of his joining at the Training Institute, National Eastern
Police Academy, Meghalaya.
However, during the period of 1st year of
training/probationship/Apprenticeship, his pay shall be governed
by the Notification No.489/GEN/DOP dated 31.10.2011.
His inter-se-seniority will be maintained as per the order
of merit declared by the Sikkim Public Service Commission vide
Notice No.93/SPSC/2015 dated 09.06.2015.
As usual, he shall be on probation for a period of two
years and other terms and conditions of services will be as laid
down in the Memorandum No.10869/G/DOP dated 06.10.2015.
BY ORDER,
Sd/-
(SUREKHA PRADHAN) MRS.
ADDITIONAL SECRETARY TO THE GOVERNMENT OF SIKKIM
........................................................................................................................................"
(emphasis supplied)
Paragraph 3 extracted hereinabove makes it crystal clear
with no ambiguity whatsoever, that, the inter se seniority of the
Petitioner would be maintained in terms of the order of merit
issued in the Notice dated 09-06-2015 which bears reference
no.93/SPSC/2014. The Notice referred to is extracted below and
reads as follows;
"SIKKIM PUBLIC SERVICE COMMISSION
GANGTOK, SIKKIM
Reference No:93/SPSC/2015 Dated: 09/06/2015
NOTICE
The Sikkim Public Service Commission announces the results on
the basis of the marks obtained in Main (Written) Examination
and Viva-voce for selection to 25 posts of Junior Grade of State
Civil Service as Under Secretary and equivalent and 02 posts of
Deputy Superintendent of Police under Sikkim State Police
Service, the candidates bearing the following Roll Nos. are hereby
declared qualified in order of merit and their names are
recommended for appointment.
DEPUTY SUPERINTENDENT OF POLICE (DSP)
Sl No. Roll No NAME
1 2480 BARBARA LAMA
2 3395 TSETEN PALZOR BHUTIA
....................................................................................
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 22
The candidature of all candidates as shown in the list is
provisional subject to the police verification, medical
fitness and verification of all required documents by the
State Government.
Sd/-(O.P. SAPKOTA)
Controller of Examination
Sikkim Public Service Commission"
(emphasis supplied)
It emanates without a doubt from a bare reading of the
Notice that the list of selected candidates was only provisional and
their selection was subject to the conditions laid down in the last
paragraph extracted above. Hence, if any candidate did not fulfill
any condition mentioned therein viz., if the person's selection did
not withstand Police verification, medical fitness and verification of
all required documents by the State Government, their candidature
would be cancelled. In addition to the above stance the
Memorandum of the offer of appointment to the Petitioner dated
06-10-2015, at Paragraph 2(v) specifies that other conditions of
service will be governed by the relevant Rules and orders enforced
from time to time. At the relevant point in time undisputedly Rule
4(c) governed the aspect of seniority of the Government Servants
and was applicable to the Petitioner and R4. Seniority in no
uncertain terms was to be determined on merit.
(iii) The Provisional Seniority List relied on by the Petitioner
to bolster his position on seniority also fails to come to his rescue,
for the reason that firstly it was, as denoted, only a "Provisional"
Seniority List and R4 was not appointed to the post then. On his
appointment to the post, as merit was the criteria for seniority, R4
took precedence over the Petitioner in the seniority as he stood
higher in the Merit List than the Petitioner, thus there is no error in
the placement of R4 in seniority above the Petitioner. It is apposite
at this juncture to refer to the ratiocination in K. A. Abdul Majeed v.
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 23
State of Maharashtra [(2001) 6 SCC 292], wherein it was observed
that seniority assigned to any employee could not be challenged
after a lapse of seven years on the ground that his initial
appointment had been, though even on merit, incorrectly fixed. In
the case at hand merit is not even incorrectly fixed.
(iv) In view of the foregoing discussions the second
question also stands determined in favour of R4.
15(i). Now to address the third question which pertains to
delay and laches, strength was sought to be drawn by Learned
Counsel for the Petitioner on the judgment of Hon'ble Supreme
Court in Shiba Shankar Mohapatra and Others (supra) the Hon'ble
Supreme Court referred to the ratio in K.R. Mudgal [(1986) 4 SCC
531] wherein it was held that a Seniority List which remains in
existence for 3 to 4 years unchallenged, should not be disturbed.
Learned Counsel for the Petitioner interpreted that to mean that 3-
4 years is a "reasonable period" for challenging the seniority. The
interpretation cannot be twisted out of context. Besides, the
Hon'ble Supreme Court has also referred to a plethora of cases (in
the same ratio) wherein it was held that any claim for seniority at a
belated stage should be rejected inasmuch as it seeks to disturb
the vested rights of other persons regarding the seniority, rank and
promotion which have accrued to them during the intervening
period.
(ii) In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC
110], it was observed that the principle on which the Court
proceeds in refusing relief to the Petitioner on the ground of laches
or delay, is that the rights, which have accrued to other persons by
reason of delay in filing the writ petition should not be allowed to
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 24
be disturbed, unless there is a reasonable explanation for delay.
(iii) In Rabindranath Bose vs. Union of India [(1982) 1 SCC
379], it was observed that it would be unjust to deprive the
respondents of the rights which had accrued to them. Each person
ought to be entitled to sit back and consider that his appointment
and promotion which was effected a long time ago would not be set
aside after the lapse of a number of years.
(iv) In K. R. Mudgal v. R.P.Singh [(1986) 4 SCC 531] it was
held that a government servant who is appointed to any post
ordinarily should at least after a period of 3 or 4 years of his
appointment be allowed to attend to the duties attached to his post
peacefully and without any sense of insecurity.
(v) In P.S.Sadasivaswamy v. State of T.N [(1998) 2 SCC 523]
the Hon'ble Supreme Court while considering the petition which
was filed after a lapse of fourteen years challenging a promotion
inter alia observed that the aggrieved person must approach the
Court expeditiously for relief and it is not permissible to put
forward a stale claim. That, a person aggrieved by an order
promoting a junior over his head should approach the Court at
least within "six months" or at the most a year of such promotion.
Similar views to the extent that grievance ought to be brought for
redressal to Court at the earliest were reiterated in Sudhama Devi v.
Commissioner [(1983) 2 SCC 1], State of U.P v. Raj Bahadur Singh
[(1998) 8 SCC 685] and Northern India Glass Industries v. Jaswant
Singh [(2003) 1 SCC 335], M.P. Palanisamy and Others (supra), State of
Uttaranchal and Another vs. Shiv Charan Singh Bhandari and Others
(supra), State of Tamil Nadu vs. Seshachalam (supra) and Vijay Kumar
Kaul and Others (supra). Law therefore leans in favour of the alert
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 25
and vigilant. It thus stands to reason from an understanding of the
ratiocinations extracted hereinabove that although there can be no
guarantee of security in all walks of employment, it should at least
be possible to ensure that matters like a person's position in the
seniority list after having been settled for once, should not be liable
to be reopened after lapse of many years at the insistence of a
party who has during the intervening period opted to remain silent.
(vi) Although, it was the specific contention of Learned
Counsel for the Petitioner that several representations were made
to the Government as pointed out by Learned Senior Counsel for
R4, only one representation dated 24-10-2017, has been brought
to the notice of this Court. No challenge arose to the appointment
of R4 by the Petitioner at the time of Petitioner's appointment. The
inter se seniority was settled on 02-08-2016 and the Petitioner's
representation voicing his grievance was filed only on 24-10-2017.
After the response of the Government dated 07-04-2018 rejecting
his representation the Petitioner approached this Court only on 06-
03-2020 after a lapse of one year and ten months with no reasons
advanced for the delay. Even when R4 filed his Writ Petition in the
year 2015 the Petitioner did not seek a stay of the appointment of
R4 to the post of DySP. The legal Notice was also issued only in 11-
02-2019, without giving any reasons as to the delay.
(vii) The ultimate argument of Learned Counsel for the
Petitioner that in Central Electricity Supply Utility of Odisha vs. Dhobei
Sahoo and Others (supra), it was held that the doctrine of delay and
laches is inapplicable while adjudicating on the issuance of a Writ
of Quo Warranto, since the incumbent holds the public office as a
WP(C) No.10 of 2020
Tseten Palzor Bhutia vs. State of Sikkim and Others 26
usurper, cannot be countenanced as the facts and circumstances
reveal that the R4 is no usurper to the public office but is infact a
victim of the circumstances that arose at the relevant time when
he qualified in the examination. In light of the foregoing
discussions, the Writ Petition is also rendered nugatory on account
of delay and laches and thereby the assumption of acquiescence,
which thereby answers the third question.
16. Consequently, it concludes that the Petitioner is not
entitled to any of the reliefs claimed.
17. The Petition being without merit deserves to be and is
accordingly dismissed and disposed of.
18. No order as to costs.
( Meenakshi Madan Rai )
Judge
27-06-2022
sdl Approved for reporting : Yes
