Sikkim High Court

Sonam Thendup Bhutia And Anr vs State Of Sikkim And Anr on 14 November, 2022

Bench: Meenakshi Madan Rai

           THE HIGH COURT OF SIKKIM : GANGTOK
                           (Civil Extraordinary Jurisdiction)
                          DATED : 14th November, 2022
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 SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                             WP(C) No.25 of 2020
            Petitioners              :       Sonam Thendup Bhutia and Another

                                                         versus
            Respondents              :       State of Sikkim and Another

     Application under Articles 226/227 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. Yadev
           Sharma, Additional Government Advocate for the State-
           Respondents.
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                               JUDGMENT

Meenakshi Madan Rai, J.

1(i) The issue in this Writ Petition concerns the alleged

indifference of the State-Respondents to the plea of the Petitioners

appointed on ad hoc as Assistant Professors to regularise their

services on parity with 28 (twenty eight) others, who were

absorbed as regular employees in the post of Assistant Professors.

(ii) The Petitioner No.1 was appointed as Assistant

Professor (Zoology) vide Office Order No.2063/DIR(HE)/HRDD,

dated 02-02-2013, on ad hoc basis in the Namchi Government

College, South Sikkim, while the Petitioner No.2 was appointed in

the same College also on ad hoc as Assistant Professor (Botany)

vide Office Order No.2380/DIR(HE)/HRDD, dated 13-09-2013.

They both continue to serve in the Namchi Government College.

2. Learned Counsel for the Petitioner relying on

Notification bearing No.F(85)/17/GEN/DOP, dated 27-04-2018,

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

canvassed that the contents of the Notification assured all eligible

temporary employees serving in the State on Workcharge, Muster

Roll, ad hoc and Consolidated pay, continuously for five years or

more as on 31-12-2018, under various Departments, that they

would be considered for regularisation. That, pursuant thereto,

vide Office Order No.348/DIR(HE)/HRDD, dated 22-09-2018, 8

(eight) persons were appointed to the post of Assistant Professors

in Bhutia, Limboo and Lepcha respectively, sans interview, in the

Pay Band of Rs.15600-39100 with Academic Grade Pay of

Rs.6,000/- per month, plus admissible allowances, with effect from

the date of their joining. The Petitioners who were also equally

eligible were excluded from such appointment. That, aggrieved by

the exclusion, the Petitioner No.1 filed an application before the

Respondent No.2 under the Right to Information Act seeking

information on the number of ad hoc Assistant Professors whose

services had been regularised. The concerned authority informed

that 28 (twenty eight) ad hoc Assistant Professors in Humanities,

Commerce and Language subject were regularised/absorbed as

‗regular' to the post of Assistant Professors. It was contended that

the inequity meted out to the Petitioners is apparent as the

services of one Tshering Chopel Bhutia whose name appears at

Serial No.22 in the response provided by the Respondent No.2

(Annexure P8 dated 13-01-2020) had also been regularised,

although, he had been initially appointed on ad hoc along with the

Petitioner No.1 vide Office Order dated 02-02-2013. That, a legal

notice was issued to the Respondent Nos. 1 and 2 (Annexure P9)

by the Petitioners requesting regularisation of their services and

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

thereby parity with the other Assistant Professors, to no avail.

Hence, the prayers inter alia in the Writ Petition;

(i) To direct the official Respondents to regularised (sic) the services of the Petitioners as per the Notification dated 27-04-2018, since they are duly qualified and have the same qualification as of the regular Assistant Professors and after perusal of the records, causes shown, if any and upon hearing the parties, may be pleased to make the Rule absolute and/or pass any other order/orders/directions as Your Lordship deem fit and proper for the ends of justice.

3. Learned Additional Advocate General, for the State-

Respondents, repudiated the Petitioners' claim contending that

regularisation of service in terms of Notification dated 27-04-2018

supra was in fact issued by the State-Respondent No.1 for the

purpose of regularisation of services of temporary employees

serving in the Grade Pay of ₹ 1400, ₹ 1800 and ₹ 2300

respectively, falling under Group ‗C' and ‗D' categories. That,

undisputedly the pay scales prescribed for the post of Assistant

Professors being higher than the scales prescribed in the

Notification excluded the Petitioners from the ambit of the

Notification. This has also been clarified by the Respondent No.1

on enquiry by the Respondent No.2 as to the applicability of the

Notification for the post of Assistant Professors. Besides,

regularisation for the Petitioners was not possible the reason being

that there were and are no vacant substantive posts of Assistant

Professors for the subjects taught by the Petitioners. That, in any

event, neither the appointment of the persons with whom

the Petitioners claim parity nor their subsequent regularisation

have been assailed by the Petitioners. Drawing strength from

R. Muthukumar and Others vs. Chairman and Managing Director

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

TANGEDCO and Others it was canvassed that no negative equality

can be claimed. Hence, the Petition deserves a dismissal.

4. Having heard Learned Counsel for the parties and

perused all documents, the question which presents itself to this

Court is; Whether the Petitioners are entitled to regularisation of

services on parity with the other Assistant Professors as claimed?

5(i). Notification dated 27-04-2018 bearing No.F(85)/17/

GEN/DOP is extracted hereinbelow for convenient reference;

".....................................................................

GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL, ADMINISTRATIVE REFORMS, TRAINING AND PUBLIC GRIEVANCES GANGTOK-737101

No. F(85)/17/GEN/DOP Dated: 27/04/2018 NOTIFICATION The State Government is hereby pleased to decide the following:-

1. Services of all eligible temporary who are continuously serving in the State on Workcharged/ Muster Roll/ Adhoc and on Consolidated pay for 5 (five) years or more as on 31/12/2018 under various departments shall be considered for regularisation.

2. Male Home Guards who have rendered cumulative service of 15 (fifteen) years and above on 31/12/2018 shall be considered for regularisation as Security Guards under Health Care, Human Services and Family Welfare Department.

3. Women Home Guards who have rendered cumulative service of 15 (fifteen) years and above as on 31/12/2018 shall be considered for regularisation as Office Attendants under various departments.

4. The temporary employees whose services would be regularized as above shall be placed in the pay scale corresponding to the existing Grade Pay of ₹ 1400, ₹ 1800 and ₹ 2300 respectively as required.

By order.

Sd/-

(Tenzing Gelek) IAS COMMISSIONER-CUM-SECRETARY DEPARTMENT OF PERSONNEL, ADMINISTRATIVE REFORMS, TRAINING AND PUBLIC GRIEVANCES ..........................................................."

2022 SCC OnLine SC 151

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

(ii) A bare reading of the Notification, specifically

Paragraph 4, reveals that it applies to employees in Group ‗C' and

‗D' of the Government of Sikkim in the pay scales indicated which

surely does not include in its scheme the post of Assistant

Professor, whose consolidated pay is apparently higher as seen in

Annexure P3, the Order of ad hoc appointment of the Petitioner

No.1 and Annexure P4 of the Petitioner No.2, than that reflected in

the Notification supra. The Petitioners have contended that

Tshering Chopel Bhutia whose name appears in Sl. No.3 of the

Office Order dated 22-09-2018 and at Sl. No.22 of Annexure P-8)

the list of ad hoc Assistant Professors whose services were

regularised, was appointed along with the Petitioner No.1 as ad hoc

Assistant Professor, vide Office Order No.2063/Dir(HE)/HRDD,

dated 02-02-2013. In this context, the submissions of Learned

Additional Advocate General that there were and are no vacant

substantive posts of Assistant Professors for the subject of

‗Zoology' and ‗Botany' cannot be brushed aside. Besides, it is also

worth noting that in State of Gujarat and Others vs. R. J. Pathan and

Others the Supreme Court observed that the High Court cannot

issue orders for creating supernumerary posts.

6(i). This Court is alive to the constitutional scheme which

envisages employment by the Government and its instrumentalities

on the basis of a procedure established for the purpose. Any public

employment must be in terms of the constitutional scheme

exhibiting inter alia Justice, Equity and Fair Play. Article 16 of the

Constitution of India emphasises that there shall be equality of

opportunity for all citizens in matters relating to employment or

(2022) 5 SCC 394

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

appointment to any office under the State and there shall be no

discrimination to any citizen on grounds only of religion, race,

caste, sex, descent, place of birth, residence or any of them.

Article 14 of the Constitution is a positive concept and cannot be

invoked if by some error or illegality an appointment is issued and

the employee has obtained a benefit. This concept has been

elucidated in R. Muthukumar (supra) wherein the Supreme Court

observed as follows;

"28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer [(2013) 14 SCC 81], this court ruled that:

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated." .......................................................................................

30. In view of the foregoing, it is held that the aggrieved appellants, and the respondent applicants (in TANGEDCO's appeal) could not claim the benefit of parity; their writ petitions were founded on the compromise order, which cannot be justified in law. The appeals of the aggrieved appellants, against the judgment and order of the Division Bench of the Madras High Court dated 02.08.2018, has to fail; it is accordingly dismissed. ......................"

(ii) It is a settled position that appointment to any post

under the State can only be made after issuance of an

advertisement inviting applications from eligible candidates and

selecting such candidates on merit through written examination or

interview. Having said that, it is essential to note that the

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

Petitioners have no grievance against the method of appointment

and regularisation of the services of the persons with whom they

claim parity. This is not the challenge in this Writ Petition. They

are merely discontented that they have been left out of the process

of regularisation by the State-Respondents. It is now no more res

integra that regularisation in fact cannot be a mode of

appointment. A post must be created or sanctioned before filling it

up. Regularisation has to be done in accordance with Rules and

not dehors the Rules. Therefore, any order for absorption and

regularisation of a person not appointed in accordance with Rules

would fly in the face of the mandate of law as it would result in

denial of equal opportunity in the matter of employment to other

eligible and competent candidates. It is appropriate to recapitulate

that in University of Delhi vs. Delhi University Contract Employees

Union and Others the Court made reference to the ratiocination in

Secretary, State of Karnataka and Others vs. Uma Devi (3) and Others

wherein it was observed as follows;

"3. .............................................................................. E) ..........................................................................

―2. All the issues which have been urged in the present petition stand settled against the petitioners by the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1.

The Supreme Court in the case of Umadevi (supra) has laid down the following ratio:--

―(I) The questions to be asked before regularization are:--

(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and

(iv) are the appointments through regular recruitment process of calling

2021 SCC OnLine SC 256

(2006) 4 SCC 1

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

all possible persons and which process involves inter-se competition among the candidates.

(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc. is violated.

(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality (except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/ regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed.

Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.

(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

stoppage of recruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi [(2006) 4 SCC 1] is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution."

(iii) The ratio supra therefore lays down that wherever

there are sanctioned posts with vacancies and qualified persons

were appointed without a regular recruitment process then such

persons who had worked for over 10 (ten) years when the

Judgment of Uma Devi (supra) was pronounced, be regularised on

the scheme to be framed by the concerned organisation, as a

onetime measure. The Judgment further specifically directs that

Courts should refrain from issuing orders preventing regular

selection or recruitment at the instance of persons who have not

secured regular appointments as per procedure established.

Pertinently, in Paragraph 46 to Paragraph 48 (ibid) the Supreme

Court observed that temporary, contractual, casual or daily wage

ad hoc employees appointed dehors the constitutional scheme to

public employment have no legitimate expectation to be absorbed

or regularised or granted permanent continuation in service on the

ground that they have continued for a long time in service.

(iv) On the same lines apposite reference may be made to

Union of India and Others vs. Ilmo Devi and Another5 where the

2021 SCC OnLine SC 899

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

Supreme Court while referring to the decision of State of Rajasthan

vs. Daya Lal6 held as follows;

"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

.............................................." [emphasis supplied]

(v) In Union of India and Another vs. Kartick Chandra Mondal

and Another , the Supreme Court observed that;

"25. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in State of Bihar v. Upendra Narayan Singh [(2009) 5 SCC 65], the relevant portion of which is extracted hereinbelow: (SCC p. 102, para 67) ―67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been

(2011) 2 SCC 429

(2010) 2 SCC 422

Sonam Thendup Bhutia and Another vs. State of Sikkim and Another

committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. ....‖ ..............................................." [emphasis supplied]

7. Thus, while examining the merits of the case and the

contentions raised, evidently the Petitioners are not aggrieved with

the method of appointment and regularisation of services of the

Assistant Professors. They merely seek parity with them. The

plethora of Judgments referred to hereinabove and the ensuing

discussions reveal with clarity the position and the inequivocal

conclusion that there can be no relief for the Petitioners on the

anvil of negative equality.