THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 10th May, 2022
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SINGLE BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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W.P.(C) No.14 of 2018
Petitioners : Swarna Smriti Pradhan & Others
versus
Respondents : State of Sikkim & Others
Application under Article 226
of the Constitution of India
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Appearance
Mr. A.K. Upadhyaya, Senior Advocate with Ms. Rachhitta Rai,
Advocate for the Petitioners.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Thinlay
Dorjee Bhutia, Government Advocate and Mr. Hissey Gyaltsen,
Assistant Government Advocate for State-Respondents No.1, 3
and 4.
Mr. Bhusan Nepal, Advocate for the Sikkim Public Service
Commission-Respondent No.2.
Mr. A. Moulik, Senior Advocate with Ms. K.D. Bhutia, Mr. Ranjit
Prasad and Mr. Ateendra Raj Bagdas, Advocates for Respondents
No.5 to 15.
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JUDGMENT
Meenakshi Madan Rai, J.
1.(i) The Petitioners herein are Labour Inspectors holding
LL.B. Degrees and were appointed on 27.01.2015 in the
Respondent No.3-Department, vide Reference No.74/SPSC/2015.
They are aggrieved by the appointment of Respondents No.5 to 15
in the same Department, in February, 2013, in 11(eleven) vacant,
sanctioned, Cadre posts of Labour Inspectors, sans LL.B. Degree
required for appointment to the posts. They are also aggrieved by
the promotion of Respondents No.7 and 14 on 22.09.2017 to the
posts of Assistant Labour Commissioners in the Department by the
State-Respondent No.4, vide Office Order No.3065/G/DOP,
(Annexure P-3) without acquiring the requisite LL.B. Degree in the W.P.(C) No.14 of 2018 2 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
interregnum, as recommended by Respondent No.2-Sikkim Public
Service Commission, vide its Recommendation dated 31.12.2012
(Annexure P-1).
(ii) Respondents No.5 to 11 were appointed initially as
Labour Sub Inspectors on contractual basis in the year 2005.
Respondents No.12 and 13 were appointed on ad hoc basis as
Labour Inspectors in the year 2008 and Respondents No.14 and 15
also as Labour Inspectors in the year 2009.
(iii) The Respondents No.5 to 15 then came to be appointed
as Labour Inspectors on "temporary regular basis" in the
Respondent No.3-Department, vide the impugned Office Order
No.74/LD, dated 19.02.2013, based on the Order of
Recommendation, of the Respondent No.2, dated 31.12.2012
(Annexure P-1). The appointments were made by relaxing the
Roster Points and Educational Qualification, vide the impugned
Notification No. No.54/GEN/DOP, dated 03.07.2012.
2.(i) The Petitioners allege that the appointments were
made by the State-Respondents No.1, 3 and 4 by invoking the
relaxation clauses in the Sikkim State Labour Service Rules, 2006,
(for short, the "Service Rules of 2006") and the Sikkim State Direct
Recruitment (Special Provisions) Rules, 2008, (for short, the
"Recruitment Rules of 2008") illegally and arbitrarily, in violation of
Rule 12(a) of the Service Rules of 2006, which prescribes the
minimum Educational Qualification of a Degree in Law viz. LL.B.,
for appointment to the said posts, which Respondents No.5 to 15
did not possess. That, the Recruitment Rules of 2008, notified vide
impugned Notification No.137/GEN/DOP, dated 08.07.2008, at Rule
3(3) inter alia, provides for relaxation in the eligibility criteria for W.P.(C) No.14 of 2018 3 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Temporary Employees, which is also ultra vires Articles 14, 16 and
Article 309 of the Constitution of India (for short, the
"Constitution"). That, due to non-advertisement of the posts of
Labour Inspectors since the year 2000, the Petitioners were
deprived of an opportunity to apply for it, adversely affecting their
future prospects and promotion to higher grades.
(ii) The Petitioners claim to have been appointed as Labour
Inspectors on merit, with due adherence to the recruitment
procedure laid down by the Service Rules of 2006. That, although
the Petitioners objected to the regularization of Respondents No.5
to 15 by a Representation dated, 12.10.2015, (Annexure P-7), on
grounds that one statutory Act cannot supersede another and that
the act of the State-Respondents was arbitrary, it was ignored.
Hence, the prayers in the Writ Petition seeking amongst others, to
set aside the appointment of Respondents No.5 to 15 from the
Cadre posts of Labour Inspectors and quash the impugned Office
Order (of Appointment) No.74/LD, dated 19.02.2013 as illegal; to
declare the Recruitment Rules of 2008 and the Notification, dated
03.07.2012, as ultra vires and quash both; and to direct the State-
Respondents No.1, 2 and 3 not to supersede the Seniority of the
Petitioners in future promotions.
3. In response, the State-Respondents No.1, 3 and 4,
while denying inter alia the allegations of arbitrariness and
illegality, sought to explain that through the years 1977 to 2005,
altogether ten posts of Labour Inspectors were created by the
State Government, through various Notifications. On 10.10.2011
by Notification No.908/GEN/DOP, (Annexure R-5), 15(fifteen) more
posts of Labour Inspectors were created in the Respondent No.3- W.P.(C) No.14 of 2018 4
Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Department, adding the number of posts of Labour Inspectors to
25(twenty-five). In the year 1992, vide Notification bearing
No.50/GEN/ESTT, dated 29.10.1992, (Annexure R-2), the Method
of and qualification for Recruitment to the post of Labour Inspector
and Labour Enforcement Officer in the Respondent No.3-
Department were prescribed but did not require an LL.B. Degree as
qualification for the post. That, for the first time, the Service Rules
of 2006, notified on 28.07.2006, at Rule 12, mandated the
minimum qualification of a Law Degree from a recognized
University for appointment to the post of Labour Inspector. Rule 31
of the Service Rules of 2006, however, empowered the
Government to relax any of the provisions regarding class,
category of persons or Cadre posts where it was considered
necessary or expedient to do so, for reasons to be recorded. That,
the Recruitment Rules of 2008 in Proviso 1 to Rule 3(2) provides
for consideration of Temporary Employees in 50% of the total
number of vacant posts. Rule 2(e) of the Recruitment Rules of
2008 also provides for relaxation in Roster Points, Age,
Qualification or Experience, to such extent as may be feasible. The
State-Respondents, vide the impugned Notification, dated
03.07.2012, invoked the relaxation provisions under Rule 31 of the
Service Rules of 2006 and Rule 3(2) of the Recruitment Rules of
2008, thereby relaxing the Educational Qualification and Roster
Points of the Temporary Employees. Pursuant thereto, the
Respondent No.2 conducted a Written Examination for Respondents
No.5 to 15 on 20.10.2012, followed by Viva Voce on 29.11.2012.
As per the Merit List submitted by Respondent No.2, the Services
of Respondents No.5 to 15 were regularized on 19.02.2013. W.P.(C) No.14 of 2018 5
Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Written Examinations were also conducted by Respondent No.2 for
the remaining posts of Labour Inspectors, followed by Viva Voce
and the seven Petitioners, were appointed on 27.01.2015 as
Labour Inspectors. That, the promotion of Respondents No.7 and
14 vide Office Order No.3065/G/DOP, dated 22.09.2017 (Annexure
P-3, document of the Petitioners), from Labour Inspectors to
Assistant Labour Commissioners, is only on Officiating capacity.
That, the Writ Petition, therefore, deserves to be dismissed on
grounds that regularization of the Respondents No.5 to 15 took
place in 2013 and has been challenged in the year 2018 when the
Respondents No.5 to 15 were appointed after compliance of all
relevant procedures, hence, the Petitioners are barred by the
principles of Delay, Laches and Acquiescence.
4. The Respondent No.2, in its Return, averred that the
State-Respondents No.1, 3 and 4 had forwarded a proposal to the
Respondent No.2 for filling up of 11(eleven) posts of Labour
Inspectors through Direct Recruitment in terms of the Recruitment
Rules of 2008, after the Respondent No.4-Department had relaxed
the provisions of Roster Points and Educational Qualification in
exercise of the powers conferred by Rule 31 of the Service Rules of
2006 and Rule 3 of the Recruitment Rules of 2008 as a one-time
relaxation. Examinations and Viva Voce of the candidates were
conducted by Respondent No.2 and the Merit List forwarded to
State-Respondent No.3 vide Letter, dated 31.12.2012, with a clear
advice to the Administrative Department to send the selected
Candidates for appropriate Training and obtaining a Degree in Law,
for those who lacked it.
W.P.(C) No.14 of 2018 6
Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
5. Respondents No.5 to 15 reiterated the facts as averred
by the State-Respondents No.1, 3 and 4 and clarified that the
initial appointments of Respondents No.5 to 11, before 2006, was
on Contractual Basis in the exigencies of Service, by Executive
instructions, while the other Respondents were appointed on ad
hoc basis. The Respondents No.12, 13 and 15 are Law Graduates,
Respondent No.14 is a Post Graduate and the other Respondents
are Graduates. That, as per the decision taken in the Cabinet
Meeting held on 25.08.2011, the Petitioners were appointed in
50% of the Direct Recruitment Quota. By 2012, Respondents No.5
to 11 had completed six years of Service and acquired extensive
experience, hence, the Seniority of the Petitioners cannot be
retrospective and is to be determined from the date of their
appointment. The Petitioners chose to sleep over the matter and
acquiesced their rights, leaving the delay and laches unexplained.
That, the grounds stated by the Petitioners are not tenable in law
and the same is liable to be rejected.
6. Learned Senior Counsel Mr. A.K. Upadhyaya, advancing
his arguments for the Petitioners, contended that the Notifications
which created posts of Labour Inspectors, dated 09.08.1977,
09.05.1980, 12.09.1990 and 29.10.2005 did not envisage the
posts of ad hoc Labour Sub Inspectors, to which posts Respondents
No.5 to 11 were initially appointed, hence, their appointment is
illegal ab initio. Respondents No.12 to 15 came to be appointed as
ad hoc Labour Inspectors in the year 2008. The appointments of
2008, are contrary to the Service Rules of 2006 and that of
Respondents No.5 to 11, in contravention to the Notification of
1992 as well, since it provides that recruitment is to be 100% by W.P.(C) No.14 of 2018 7 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Direct Recruitment through advertisement and Open Competitive
Examinations, which was not complied with by the State-
Respondents while appointing Respondents No.5 to 15, in direct
violation of Articles 14 and 16 of the Constitution. That, the
impugned Recommendation of Respondent No.2 to appoint
Respondents No.5 to 15 in the posts of Labour Inspectors
contravening the Rules, was consequently illegal. That, the State-
Respondent No.4 is to be held equally liable for violation of the
provisions of the Statute by issuing the impugned Notification,
dated 03.07.2012, relaxing the Roster Points and Educational
Qualification for the 11(eleven) posts of Labour Inspectors, merely
for the purpose of facilitating the appointment of Respondents No.5
to 15. Admitting that prior to 2006, a Degree in Law was not
compulsory for appointment to the post of Labour Inspector, it was
urged by Learned Senior Counsel for the Petitioners that
Respondents No.5 to 15, however, were appointed by
regularization of their Services only in the year 2013, when the
Service Rules of 2006, which provided for a Degree in Law, was
already in existence but was overlooked by the State-Respondents
No.1, 3 and 4, to extend the benefit of employment to the
Respondents No.5 to 15. Relying on the ratio of Secretary, State of
Karnataka and Others vs. Umadevi (3) and Others 1, it was contended
that the Recruitment Rules of 2008 is in violation to the directions
of the Hon‟ble Supreme Court in the said ratio, which propounded
that if Rules have been made under Article 309 of the Constitution,
then the Government can make appointments only in accordance
thereof. That, no Government Order, Notification or Circular can be
substituted for the Statutory Rules framed under the Law. Further, 1 (2006) 4 SCC 1 W.P.(C) No.14 of 2018 8 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
strength was also sought to be garnered from the decision of the
Hon‟ble Supreme Court in M.P. State Cooperation Bank Limited,
Bhopal vs. Nanuram Yadav and Others2 where it was held that in
matters of public appointments, the appropriate procedure
prescribed, have to be followed, violation of which would amount to
breach of Articles 14 and 16 of the Constitution. That, the
Petitioners were appointed on 27.01.2015 (Annexure P-5), with a
Probation Period of one year to be completed on 27.01.2016, in the
intervening period on 12.10.2015, the Petitioners submitted a
written Representation (Annexure P-7), to the State-Respondents
laying forth their grievances with regard to the violation of the
Service Rules of 2006, which the State-Respondents ignored. The
appointments of Respondents No.5 to 15 having been made
illegally, their claim to Seniority does not arise neither are they
entitled to promotion, having entered through the back door. While
relying on the decision in N. Balakrishnan vs. M. Krishnamurthy3 with
regard to the question of delay and laches, it was contended that
when substantial justice is at stake, the technicality of limitation is
irrelevant. Hence, the prayers be granted.
7.(i) Mr. A. Moulik, Learned Senior Counsel for Respondents
No.5 to 15, rebutting the submissions supra, contended that some
of the Respondents were appointed in the year 2005, others in the
year 2008 and two more in the year 2009. Two Respondents were
promoted on Officiating capacity as Assistant Labour
Commissioners on 22.09.2017 but the instant Writ Petition was
filed belatedly in May, 2018. That apart, the Service Rules of 2006,
the Recruitment Rules of 2008, the Recommendation of the
2 (2007) 8 SCC 264 3 (1998) 7 SCC 123 W.P.(C) No.14 of 2018 9 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Respondent No.2, dated 31.12.2012, and the Cabinet Decision of
25.08.2011, have also not been assailed, neither have the other
Assistant Labour Commissioners, who would be affected by the
instant Judgment been impleaded as parties in the instant matter.
In light of the above enumerated circumstances, the appointment
of Respondents No.5 to 15 cannot now be challenged. On this
aspect, attention was drawn to the ratio in Amarjeet Singh and
Others vs. Devi Ratan and Others4 and M.P. Palanisamy and Others vs.
A. Krishnan and Others5.
(ii) While contending that the Petitioners chose to sleep
over their rights for more than three years, Learned Senior Counsel
buttressed his submissions by relying on the ratio of University of
Delhi vs. Union of India and Others (2020) 6 wherein it was held that
the Court is to consider sufficient cause for condonation of delay
and the delay of the Petitioners cannot be held lightly when they
approach the Court after certain rights have accrued to the other
parties. Reliance was also placed on the decision of N. Balakrishnan
(supra) wherein the Court observed that length of delay is not the
criterion but the acceptability of the explanation is. That,
sometimes delay of the shortest range may be uncondonable due
to a want of acceptable explanation, whereas in certain other
cases, delay of a very long range can be condoned, if the
explanation thereof is satisfactory. That, no satisfactory
explanation for the delay was advanced by the Petitioners.
(iii) It was further contended that promotion is a normal
incidence of Service and had the Respondents No.7 and 14 not
been promoted, they would have stagnated in the posts, in which
4 (2010) 1 SCC 417 5 (2009) 6 SCC 428 6 (2020) 13 SCC 745 W.P.(C) No.14 of 2018 10 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
situation the Court is empowered to issue necessary directions. On
this point, reliance was placed on Food Corporation of India and
Others vs. Parashotam Das Bansal and Others7. It was also urged that
the Service Rules of 2006 do not require advertisement to the
posts and both the Service Rules of 2006 and the Recruitment
Rules of 2008 allow relaxation of Age, Category and Educational
Qualification. That, in fact, the appointments have been made in
consonance with the Rules, as the Respondents No.5 to 15 took the
Written Examinations and faced the Viva Voce Tests and therefore
ought not to be made to suffer. The ratio of Amarjeet Singh and
Others (supra) was invoked to buttress this submission. That, the
Rules have been relaxed for one-time to accommodate the
Respondents No.5 to 15 without any arbitrariness, as the State is a
Model Employer and no illegality emerges therein. Hence, the Writ
Petition deserves a dismissal.
8. Mr. Sudesh Joshi, Learned Additional Advocate General
for State-Respondents No.1, 3 and 4, while adopting the
arguments (supra) forwarded by Learned Senior Counsel for
Respondents No.5 to 15, contended that a Writ of Quo Warranto
will apply only if eligibility conditions for the requisite post are non-
existent. In the instant case, the eligibility conditions have been
duly relaxed by the Government as per the Rules. That, the case of
the Petitioners is also hit by delay and laches, which has gone
unexplained. Towards this point, reliance was placed on Union of
India and Others vs. N. Murugesan and Others 8. Learned Additional
Advocate General contended that a litigant who invokes the
jurisdiction of a Court claiming Seniority, should approach the
7 (2008) 5 SCC 100 8 (2022) 2 SCC 25 W.P.(C) No.14 of 2018 11 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Court at the earliest or at least within a reasonable span of time.
That, a belated approach is impermissible as in the meantime,
interest of third parties gets ripened and further interference after
enormous delay is likely to usher in a state of anarchy. Reliance
was placed on Vijay Kumar Kaul and Others vs. Union of India and
Others9.
9. Learned Counsel Mr. Bhusan Nepal, for Respondent
No.2, adopted the arguments supra and chose not to augment the
arguments.
10. The rival submissions put forth by Learned Counsel
were heard at length. I have carefully perused and considered the
pleadings, the entire documents appended, as well as the citations
made at the Bar.
11. The question that arises for consideration before this
Court is whether any illegality besmirches the appointments and
regularization of the Services of Respondents No.5 to 15 in the
posts of Labour Inspectors?
12.(i) Article 309 of the Constitution of India deals with
Recruitment and Conditions of Service of persons serving the Union
or a State. Recruitment is a comprehensive term and includes any
method provided for inducting a person in Public Service,
Appointment, Selection, Promotion, Deputation, which are all well
known Methods of Recruitment. Appointment by transfer is also not
unknown (See K. Narayanan and Others vs. State of Karnataka and
Others10). The Constitution does not aim at providing detailed Rules
for Recruitment or Conditions of Services of the Union or of the
States. It merely lays down certain general provisions. The power
9 (2012) 7 SCC 610 10 AIR 1994 SC 55 W.P.(C) No.14 of 2018 12 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
of appointment belonging to the Executive is subject to Legislative
control. Article 309 does not stand in the way of the appropriate
Legislature laying down necessary Conditions of Service.
(ii) In the instant matter, the Service Rules of 2006 and
the Recruitment Rules of 2008 have both been framed under
Article 309 of the Constitution which, as already stated, does not
stand in the way of the Legislature laying down necessary
Conditions of Service. Consequently, a relaxation clause has also
been inserted in the Rules, both of 2006 and 2008, which have
been invoked by the State-Respondents No.1, 3 and 4, where it
deemed it necessary to do so in the exigencies of Service. The fact
that Respondents No.5 to 15 had been in Service for several years
and had gained sufficient experience in their field to man the
concerned posts, was duly taken into consideration by the
Government while invoking the relaxation clause to afford an
opportunity to Temporary Employees in due consideration of Rule
3(2) of the Recruitment Rules of 2008 which provides that;
"3. (1).......................................................................................
(2) Temporary employees in a Department, if any, subject to their having qualified in the test/interview, will be considered for selection to such number of posts in the concerned department as may be found suitable having regard to their performance in test or in interview including their overall assessment and proficiency:....."
It is worthwhile noticing that despite such relaxation viz. of
Educational Qualification and Roster Points, the said Respondents
did face the rigours of a Written Examination and Viva Voce. It was
only on qualifying in the Written Examinations and Viva Voce that
the Respondent No.2, prepared the Merit List and recommended
their appointments. The act of the State, in such circumstances,
cannot be termed arbitrary.
(iii) It was the argument of Learned Senior Counsel for the
Petitioners that there were no posts of Sub Inspectors at the time W.P.(C) No.14 of 2018 13 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
of the appointment of Respondents No.5 to 11. That is indeed
correct, however, at the relevant time, the appointment of the said
Respondents were made on Executive instructions evidently in the
exigencies of Service and no objection was raised from any quarter
on such appointments having taken place.
(iv) It would be apposite at this juncture, to refer to the
relaxation clause in the Rules invoked by the State-Respondents to
accommodate Respondents No.5 to 15.
(v) Rule 31 of the Service Rules of 2006, provides that;
"31. Power to relax:-
Where the Government is of the opinion that it is necessary or expedient to do so, it may by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons or cadre posts."
(vi) Rule 3(1) of the Recruitment Rules of 2008 reads as
follows;
"3.(1) Notwithstanding anything contained in any other rule for the time being in force, in direct recruitment to posts under different categories of services in the State Government, there may be allowed such relaxation in matters of eligibility criteria for temporary employees, if any, in the Government Department as may be considered expedient.
Provided that such relaxation may not be granted as a matter of rule but only to allow candidates with experience and expertise gained during such temporary employment in a job to be able to complete, subject to their being found fit in all other respects:
Provided further that relaxation may be allowed only in those cases wherever it is found feasible and it shall not be allowed or resorted to in respect of posts requiring specific technical qualification or physical standard."
(vii) Rule 2.(e) of the Recruitment Rules of 2008 defines the
term "Relaxation" as under;
"2. In these rules, unless the context otherwise requires:-
(a).........
(b).........
(c).........
(d).........
(e) "Relaxation", means such relaxation in matters of direct recruitment for such category of posts as may be specified in any notification for recruitment and includes W.P.(C) No.14 of 2018 14 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
relaxation in roster points, age, qualification or experience, etc. to such extent as may be feasible;
............."
13.(i) It is worth noticing that Rule 31 of the Service Rules of
2006 provides for relaxation of any of the provisions of the rules
with respect to any class or category of persons or Cadre posts,
while Rule 3(1) of the Recruitment Rules of 2008 provides that
relaxation in eligibility criteria may be made for temporary
employees, if any, in the Government Department, as may be
considered expedient. The Second Proviso to Rule 3(1) of the
Recruitment Rules of 2008 inter alia lays down that relaxation will
not be resorted to for posts requiring specific technical
qualification.
(ii) While noticing the non obstante clause which occurs in
Rule 3(1) of the Recruitment Rules of 2008, read with the Second
Proviso therein (supra), pertinent reference may be made to the
ratio in State of Bihar and Others vs. Bihar Rajya M.S.E.S.K.K.
Mahasangh and Others11 wherein it was explained that non
obstante clause is generally appended to a Section with a view to
give the enacting part of a Section, in case of a conflict, an
overriding effect, over the provision in the same or other Act
mentioned in the non obstante clause.
(iii) In Municipal Council Palai Through the Commissioner of
Municipal Counsel, Palai vs. T.J. Joseph and Others12 the Hon‟ble
Supreme Court observed that there is a presumption against a
repeal by implication and the reason for this Rule is based on the
theory that the legislature, while enacting a law has a complete
knowledge of the existing law on the same subject and, therefore,
11 (2005) 9 SCC 129 12 AIR 1963 SC 1561 W.P.(C) No.14 of 2018 15 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
when it does not provide a repealing provision, it indicates the
intention not to repeal the existing legislation. That, such a
presumption can be rebutted and repealed by necessary implication
and can be inferred only when the provisions of the new Act are so
inconsistent with or repugnant to the provisions of the earlier Act
and the two cannot stand together.
(iv) In R.S. Raghunath vs. State of Karnataka and Others13 the
principle question involved was whether Rule 3(2) of the Karnataka
Civil Services (General Recruitment) Rules, 1997, had an overriding
effect over the Karnataka General Service (Motor Vehicles Branch)
(Recruitment) Rules, 1976. After examining the statutes, the
Hon‟ble Supreme Court elucidated that a special Enactment or Rule
cannot be held to be overridden by a later general Enactment
simply because the latter opens up with a non obstante clause.
There should be a clear inconsistency between the two before
giving an overriding effect to the non obstante clause.
(v) In State (NCT) of Delhi vs. Sanjay14 the Hon‟ble Supreme
Court observed that a non obstante clause is a legislative device
which is usually employed to give overriding effect to certain
provisions over some contrary provisions that may be found either
in the same enactment or some other enactment, that is to say, to
avoid the operation and effect of all contrary provisions. In the
same ratio, the observations made in Liverpool Borough
Bank vs. Turner15 was considered wherein Lord Campbell, CJ, held
that no universal rule can be laid down for the construction of
statutes, as to whether mandatory enactments shall be considered
directory only or obligatory, with an implied nullification for 13 AIR 1992 SC 81 14 (2014) 9 SCC 772 15 (1860) 30 LJ Ch 379 W.P.(C) No.14 of 2018 16 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
disobedience. It is the duty of Courts of justice to try to get at the
real intention of the Legislature by carefully attending to the whole
scope of the statute to be construed. It was further observed that
the question as to whether a statute is mandatory or directory
depends upon the intent of the Legislature and not upon the
language in which the intent is clothed. The meaning and intention
of the Legislature must govern, and these are to be ascertained,
not only from the phraseology of the provision, but also by
considering its nature, its design, and the consequences which
would follow from construing it the one way or the other. The
pronouncements supra clear the air on the effect of non obstante
clauses appearing in Statutes.
(vi) While considering the Second Proviso supra, in
Maxwell's Interpretation of Statutes, 10th Edition, Page 162, while
dealing with the cardinal rule of construction of the provisions of a
section with proviso, it was elucidated as under;
"The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail."
In Tahsildar Singh vs. State of U.P.16 while relying on the aforesaid
extract, it was held as follows;
"14. ..................Unless the words are clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two."
(vii) It is to be presumed that the State Legislature, while
enacting the provisions of the Recruitment Rules of 2008, was well
16 AIR 1959 SC 1012 W.P.(C) No.14 of 2018 17 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
aware of and had complete knowledge of the Service Rules of 2006
and the relaxation clause embedded in Rule 31 of the said Rules.
The Service Rules of 2006 allow relaxation with no contingency
contrary to that as found in the Second Proviso of the Recruitment
Rules of 2008. The Recruitment Rules of 2008, however, nowhere
states that the Service Rules of 2006 which are specific to the
Respondent No.3-Department, have been repealed. The
interpretation of the non obstante clause and the Second Proviso in
the Recruitment Rules of 2008 would have to be interpreted in this
background. On the edifice of the Judgments cited hereinabove, it
is clear that the Recruitment Rules of 2008 and the Service Rules
of 2006 are to be construed harmoniously and there cannot be too
much concentration on one Rule and no attention paid to another.
The intention of the Legislature is to be culled out from the
enactments. Thus, in the case of Respondents No.5 to 15, the
relaxation clause devoid of any contingency, being Rule 31 in the
Service Rules of 2006, continued to hold sway. That having been
said, the Respondents No.5 to 15 cannot be faulted for their earlier
temporary appointments as Labour Sub Inspectors or Labour
Inspectors on ad hoc and some on contract. It would undoubtedly
be unreasonable, unjust and arbitrary to penalize Respondents
No.5 to 15 for the failure of the State-Respondents to invite
applications from the Open Market and follow the procedure
prescribed by the Rules. It would also be incongruous to apply the
Educational Qualification required by the Service Rules of 2006 to
persons appointed prior to the Rules, foist the new qualifications on
them and thereby set aside their appointments on grounds of lack
of qualification.
W.P.(C) No.14 of 2018 18
Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
14.(i) Reverting back to the Rules supra and the relaxation
clauses therein, the Hon‟ble Supreme Court in Anil Kumar Vitthal
Shete and Others vs. State of Maharashtra and Another 17 held that it is
always open to an Employer to adopt a Policy for fixing Service
Conditions of his Employees. Such Policy, however, must be in
consonance with the Constitution and should not be arbitrary,
unreasonable or otherwise objectionable. In State of Gujarat and
Others vs. Arvindkumar T. Tiwari and Others 18 it was held that the
power to relax the recruitment rules or any other rule made by the
State Government/authority is conferred upon the Government/
authority to meet any emergent situation where injustice might
have been caused or, is likely to be caused to any person or class
of persons or, where the working of the said Rules might have
become impossible. In Ashok Kumar Uppal and Others vs. State of
Jammu and Kashmir and Others19 the Hon‟ble Supreme Court taking
into consideration a case of relaxation of Recruitment Rules,
observed that it was a case in which the Government had not acted
arbitrarily or capriciously but had proceeded to relax the Rules to
obviate genuine hardship caused to a class of employees, namely,
the Appellants and directed their promotion in relaxation of the
Rules. That, the power to relax the Recruitment Rules or any other
Rule made by the State Government, under Article 309 of the
Constitution, is conferred upon the Government to meet any
emergent situation where injustice might have been caused or is
likely to be caused to any individual employee or class of
employees or where the working of the Rule might have become
impossible. That, under Service Jurisprudence as also the
17 (2006) 12 SCC 148 18 (2012) 9 SCC 545 19 (1998) 4 SCC 179 W.P.(C) No.14 of 2018 19 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
Administrative Law, such a power has necessarily to be conceded
to the Employer particularly the State Government or the Central
Government, who have to deal with hundreds of Employees
working under them in different Departments. In State of
Maharashtra vs. Jagannath Achyut Karandikar20 it was held that the
power to relax the conditions of the rules to avoid undue hardship
in any case or class of cases cannot now be gainsaid. In J.C. Yadav
and Others vs. State of Haryana and Others 21 the Hon‟ble Supreme
Court laid down that the relaxation of the Rules may be to the
extent the State Government may consider necessary for dealing
with a particular situation in a just and equitable manner. That, the
power of relaxation is generally contained in the Rules with a view
to mitigate undue hardship or to meet a particular situation. That,
many a times strict application of Service Rules creates a situation
where a particular individual or a set of individuals may suffer
undue hardship and further there may be a situation where
requisite qualified persons may not be available for appointment to
the service. In such a situation, the Government has the power to
relax requirement of the Rules. The State Government may, in
exercise of its powers, issue a general order relaxing any particular
Rule with a view to avail the services of requisite Officers.
(ii) In Sandeep Kumar Sharma vs. State of Punjab and Others 22
the Hon‟ble Supreme Court observed inter alia as follows;
"14. .........The power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. Such rule must be construed liberally, according to the learned Judges. Of course arbitrary exercise of such power must be guarded against. But a narrow construction is likely to deny benefit to the really deserving cases. We too are of the view that the rule of relaxation must get a 20 AIR 1989 SC 1133 21 AIR 1990 SC 857 22 (1997) 10 SC298 W.P.(C) No.14 of 2018 20 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
pragmatic construction so as to achieve effective implementation of a good policy of the Government."
(iii) In light of these pronouncements supra, it is clear that
the Government is clothed with adequate powers to relax the Rules
and Conditions affecting the Conditions of Service of an Employee
or Class of Employees, to prevent undue hardship to any case or
class of cases and ensure that injustice is not meted out to any
Employee or class of Employees. It goes without saying that the
relaxation clause, when invoked, must be just and equitable.
(iv) While on this point, it is pertinent to point out that the
Petitioners were not even borne in the Cadre when Respondents
No.5 to 15 were appointed in 2005, 2008 and 2009 as disclosed
supra and subsequently their Services regularized on 19.02.2013.
The Petitioners were appointed on 27.01.2015 and filed the Writ
Petition in May, 2018. In this context, in Nani Sha and Others vs.
State of Arunachal Pradesh and Others23 the Hon‟ble Supreme Court
held inter alia as under;
„16. Lastly, the High Court has specifically rejected the claim of the appellants on another ground, namely, that the appellants were not borne in the cadre of ACF on the date from which they had been given the seniority. We are in complete agreement with the High Court, particularly in view of the decision of this Court in State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334:1991 SCC (L&S) 1070:(1991) 16 ATC 936] which decision was reiterated in State of Bihar v. Bateshwar Sharma [(1997) 4 SCC 424:1997 SCC (L&S) 975] . We do not want to burden this judgment with further reported decisions. However, the same view has been taken in another reported decision of this Court in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P. [(2006) 10 SCC 346:(2007) 1 SCC (L&S) 116:JT (2006) 12 SC 513] where at para 18, this Court has taken a view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely affecting those who were appointed validly in the meantime.‟ [Emphasis supplied]
23 (2007) 15 SCC 406 W.P.(C) No.14 of 2018 21 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
(v) On the same aspect, in Sunaina Sharma and Others vs.
State of Jammu and Kashmir and Others 24 the Hon‟ble Supreme Court,
while considering retrospective promotion and consequent
seniority, opined inter alia as follows;
‟18. In our view the Rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. ...............
19. It is well settled that retrospective promotion to a particular group can violate Articles 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad hoc basis, .........‟
15.(i) While addressing the issue of delay in approaching the
Court, the Hon‟ble Supreme Court in N. Murugesan and Others
observed inter alia that;
"22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the court . Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy."
[Emphasis supplied]
(ii) In Vijay Kumar Kaul (supra), relied on by the Learned
Additional Advocate General, the Hon‟ble Supreme Court laid down
inter alia as under;
"25. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168 : AIR 2009 SC 571] this Court has opined that:(SCC p. 174, para 26) "26. ...One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming
24 (2018) 11 SCC 413 W.P.(C) No.14 of 2018 22 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
matters where the rights of third parties may have accrued in the interregnum."
26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy."
No reasons have been enumerated by the Petitioners as to why
they approached the Court only in 2018 when they themselves
were appointed in 2015. When the delay is unexplained, the relief
will not be forthcoming.
(iii) Resort had been taken by Learned Senior Counsel for
the Petitioners to the ratio of M.P. Palanisamy (supra). The said
matter pertained to appointment of Post Graduate Teachers who
were appointed on ad hoc basis in terms of Rule 10(a)(i)1) of the
General Rules of the Tamil Nadu Public Service Commission, 1981.
Subsequently, in 1984, steps were taken to make regular
appointments through the Public Service Commission. The ad hoc
appointees were given an opportunity to compete with other
candidates but they did not do so and claimed regularization
without being subjected to Examination conducted by the Public
Service Commission. The candidates selected by the Public Service
Commission were appointed in 1986. The Hon‟ble Supreme Court
inter alia held that all the T.N. PSC PG Assistants were already in
Service, when the question of regularisation of the PG Assistants
appointed under Rule 10(a)(i)(1) came for consideration. Till then,
the Government had steadfastly refused the regularisation and
ultimately, chose to regularise them only in 1988. Therefore, the
stance of the Government in providing the second condition was
absolutely correct and by mere subsequent regularisation, that too
without taking any examination under T.N. PSC or undergoing any W.P.(C) No.14 of 2018 23 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
recruitment process and facing general competition from the other
candidates, the ad hoc PG Assistants could not be held senior to
those, who were already in service. The facts therein are thus
distinguishable from the present case inasmuch, as the
Respondents No.5 to 15 on relaxation of Educational Qualification
and Roster Points have taken the Written Examination and
Interview in 2013 and were recommended by the Respondent No.2
for appointments in the vacancies that existed for Labour
Inspectors prior in time to the appointment of the Petitioners.
16. A careful consideration of the facts and circumstances
indicate that the State Government, in exercise of its powers, has
taken reasonable steps to prevent injustice to Respondents No.5 to
15, who were appointed in the exigencies of Service by Executive
instructions. The extract of the Cabinet Meeting held on
25.08.2011 inter alia reads thus;
"176.18 The proposal seeking approval to create 15 posts of Inspectors in the Pay Band of-Rs:9300-34800 with grade pay of Rs.3800. It is mentioned that there are 9 posts of Inspector lying vacant and as many as 12 Inspectors are appointed on Adhoc basis. With the creation of 15 new posts, the total strength of Inspectors will be 25 and 50% of the sanctioned strength will be filled up by regularizing the service of Inspectors working on Adhoc basis immediately. In order to minimize the financial burden, the 12 posts under direct recruitment quota will be filled up in three phases commencing from 2013-14 only, as detailed in the Cabinet Memo.No.6/DL Dated 24.08.2011.
CABINET DECISION: The Cabinet approved the
above proposal.
..............."
[Emphasis supplied]
When this proposal was processed, the Petitioners had not even
been appointed and although they claim that they were deprived of
future benefits, this is mere speculation as no details are
forthcoming before the Court to assess whether, in the first
instance, they were eligible for appointment to the coveted posts in
the years 1977; 1980; 1990 and 2005, when the concerned posts W.P.(C) No.14 of 2018 24 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
were created or for that matter in 2013 when Respondents No.5 to
15 were appointed vide Order, dated 19.02.2013. Subsequently, in
the year 2014, the State-Respondents advertised the posts to
which, the Petitioners were then duly appointed. It is now no more
res integra that there can be no retrospective promotion or
seniority, which rings clear as a bell from the precedents supra.
The Correspondence by the Petitioners to the State Government,
dated 12.10.2015, appears to be a faux document as no Office or
Department has been addressed therein nor is there an
endorsement of receipt by any concerned Authority and is thus
disregarded by this Court. In any event, detailed discussions have
already taken place supra with regard to the Service Rules of 2006
and the Recruitment Rules of 2008. Pertinently, the observation of
the Hon‟ble Supreme Court in Umadevi supra, may be noticed when
dealing with the appointment of Temporary Employees or
Employees who came in through the back door. The Hon‟ble
Supreme Court observed therein as follows;
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128:AIR 1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409:(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507:1980 SCC (L&S) 4:(1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. ............"
W.P.(C) No.14 of 2018 25
Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
In the instant case, the lack of qualification of the Respondents
No.5 to 15, on pain of repetition, was relaxed by the State-
Respondents.
17. While disagreeing with the argument of Learned Senior
Counsel for Respondents No.5 to 15 contending that the Service
Rules of 2006 and the Recruitment Rules of 2008 do not envisage
for advertisement to the posts concerned, it may relevantly be
pointed out that the Rules appear to be unhappily drafted since it
provides for Method of Recruitment but has omitted Rules
pertaining to advertisement of the posts, nevertheless there can be
no assumption that appointments can be made without inviting
applications by way of advertisements in the Open Market. Such a
circumstance would undoubtedly be arbitrary and unreasonable
and violate the Constitutional provisions.
18. So far as the question of the promotion of Respondents
No.7 and 14 is concerned, it is worth remarking that they are not
LL.B. Degree holders, their promotions on Officiating capacity were
made vide Office Order No.3065/G/DOP, dated 22.09.2017
(Annexure P-3) and after the Service Rules of 2006 were enforced.
The said Rules require the qualification of a Degree in Law from a
recognized University for appearing in Competitive Examination for
promotion (Annexure R-2, collectively). However, as they have
been promoted only on officiating capacity vide Office Order, dated
22.09.2017 (supra), when steps are being taken for promotion, it
is expected that the State-Respondents will refer to the
Correspondence of Respondent No.2 to the Respondent No.3
bearing No.SPSC/25(1)NG(D)12/412, dated 31.12.2012,
(Annexure R-6, document of Respondent No.2) (notwithstanding W.P.(C) No.14 of 2018 26 Swarna Smriti Pradhan & Ors. vs. State of Sikkim & Ors.
the relaxation clause), wherein it has been specifically
recommended that while selecting Respondents No.5 to 15 to the
posts of Labour Inspectors, the selected candidates who do not
possess LL.B. Degree shall acquire it prior to their promotion to the
next higher post (Annexure P-1, document of the Petitioners).
19. In conclusion, it is essential to observe that the object
of a proceeding for Quo Warranto is to protect the public from
usurpation of a public Office by a person who is not legally entitled
to hold it. In the backdrop of the foregoing detailed discussions, it
is clear that the Petitioners have failed to establish contravention of
the binding rule of law and thereby failed to make out a case for
this Court to exercise its Writ jurisdiction for issuance of a Writ of
Quo Warranto. The State Government cannot be faulted for
invoking its power to relax the Rules and regularizing the Services
of Respondents No.5 to 15. There is nothing unreasonable or
deprivatory of the rights of any other person by invocation of the
powers vested with the State-Respondents. Resultantly, the
appointment and regularization of Services of Respondents No.5 to
15 cannot be said to be besmirched by any illegality. Consequently,
I find that the Petitioners are not entitled to any of the reliefs
claimed.
20. Writ Petition stands dismissed and disposed of
accordingly.
21. No order as to costs.
( Meenakshi Madan Rai ) Judge 10.05.2022
ml Approved for reporting : Yes
