THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 25th August, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.40 of 2022
Petitioner : Chewang Namgyal Bhutia
versus
Respondents : State of Sikkim and Others
Application under Article 226 of the Constitution of India
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Appearance
Mr. B. Sharma, Senior Advocate with Mr. Safal Sharma, Ms.
Shreya Sharma and Ms. Puja Kumari Singh, Advocates for the
Petitioner.
Mr. Zangpo Sherpa, Additional Advocate General with Ms. Pema
Bhutia, Assistant Government Advocate for the State-
Respondent Nos.1, 2 and 3.
Mr. Karma Thinlay Bhutia, Senior Advocate with Mr. Yashir N.
Tamang, Advocate for Respondent Nos.4 and 5.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Petitioner is aggrieved by his placement in the
seniority ranking as against the Respondent Nos.4 and 5, in the
Respondent No.3 Department and in the Writ Petition seeks the
following reliefs;
(a) to quash the seniority list prepared vide Notification No.180/GEN/DOP, dated 02-08-2005 (Annexure P12) [sic, Notification No.266/GEN/DOP, dated 04-10-2005], and Notification bearing No.118/Gen/DOP, dated 07-09- 2016 fixing the inter se seniority of members of the Sikkim State Technology Information Service (hereinafter, "TI Service");
(b) to disqualify the Respondent Nos.4 and 5 from the TI Service as they lack qualification required vide Notification No.266/GEN/DOP, dated 04-10-2005 WP(C) No.40 of 2022 2
Chewang Namgyal Bhutia vs. State of Sikkim and Others
(Annexure P13) [sic, Notification No.12/GEN/DOP, dated 17-04-2001], to be inducted into the TI Service;
(c) to direct the Respondent Nos.1 and 2 to prepare a fresh seniority list considering the legal stand of the Petitioner and the educational qualifications of all other incumbents at the time of induction in the cadre posts; and
(d) writ or order quashing the Office Order bearing No.68/ DIT/2021, dated 02-12-2021 (Annexure P27).
2. The seminal facts as can be gauged from the pleadings
is that, the Petitioner, holding a degree in Bachelor of Technology
in Electronics and Communication Engineering, presently working
as the Additional Director of the Respondent No.3 Department was
initially employed as a Computer Instructor at the Centre for
Computers & Communication Technology (CCT), an autonomous
body in the Department of Science & Technology, Government of
Sikkim, from 17-08-1999 (Annexure P4). On 10-01-2001, he was
appointed as a Technical Assistant, Community Information Centre
(hereinafter, "CIC"), Namchi, under the Respondent No.3
Department, which post he joined on 11-01-2001. Vide a
Notification of the Home Department dated 16-02-2000 (Annexure
P6), the Respondent No.3 Department was created and the
Petitioner was inducted to the regular establishment thereof as a
Technical Assistant, vide Order dated 24-05-2002 (Annexure P8).
(i) The private Respondent No.4 commenced his career as
a Lecturer in Aptech Computer Centre during the year 1997 to
1999. He was appointed as Technical Assistant on temporary basis
at the CIC Project on 24-10-2000, under the Respondent No.3
Department. This was extended vide Office Order No.176/(G)/
DOP, dated 22-12-2000 [Annexure R1 (colly)]. He was regularized
in the post of Technical Assistant under Respondent No.2, on 24- WP(C) No.40 of 2022 3
Chewang Namgyal Bhutia vs. State of Sikkim and Others
05-2002 (Annexure R2), vide Office Order of the same date. The
Respondent No.4 holds a Bachelor's degree in Electrical
Engineering.
(ii) The Respondent No.5 who began his career as a
Medical Equipment Engineer at Namchi Hospital in 1998-99 was
appointed as a Technical Assistant at the CIC Project at Gangtok on
24-10-2000, a Pilot Project of the Central Government,
implemented by the Respondent No.3 Department on the creation
of the Respondent No.3 Department in 2000. He was regularised
in the post of Technical Assistant on 24-05-2002 vide Office Order
of the same date which stood extended. The Respondent No.5
holds a Bachelor's degree in Engineering in Medical Electronics.
(iii) A Notification of the Respondent No.2 Department
dated 23-06-2003 (Annexure P9) upgraded the then existing four
posts of Technical Assistants in the Respondent No.3 Department
to that of Senior Technical Assistants with equivalent increase in
pay scale. Vide Office Order dated 20-02-2004 of the Respondent
No.2 (Annexure P10), the Petitioner and the Respondent Nos.4 and
5 were promoted on substantive basis to the said posts, on the
recommendation of the Sikkim Public Service Commission
(hereinafter, "SPSC"). Their names in the said Office Order were
placed in the following seriatim;
(i) Sonam Tashi Wangdi (Respondent No.4);
(ii) Prem Vijay Basnet (Respondent No.5); and
(iii) Tsewang Namgyal Bhutia (Petitioner).
(iv) On 22-07-2005, by a Notification bearing
No.174/GEN/DOP (Annexure P11), the nomenclature of Senior
Technical Assistant was changed to that of Assistant Director, while
retaining the same scale of pay. Following such change, on 02-08- WP(C) No.40 of 2022 4
Chewang Namgyal Bhutia vs. State of Sikkim and Others
2005, the private Respondents and the Petitioner were re-
designated as Assistant Directors, thereby increasing the cadre
posts of Assistant Directors in the IT Service from the existing five
to nine. The Respondent Nos.4, 5 and the Petitioner were deemed
to have been members of the TI Service with effect from 20-02-
2004 as per Notification dated 02-08-2005.
(v) The festering aggrievement of the Petitioner arises
from the provisional order of seniority, allegedly circulated by
Respondent No.2 on 21-09-2005, amongst the stakeholders which
he claims to have not received and thereby remained oblivious to
the requirement to submit objections, if any, within five days of the
date of the list. In the absence of objections, the seniority as per
the provisional list was confirmed vide Notification
No.266/GEN/DOP, dated 04-10-2005, wherein the Respondent
Nos.4 and 5 were placed above him. The relevant Notification
reads as follows;
"GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL, A.R. & TRAINING, PUBLIC GRIEVANCES, CAREER OPTION, EMPLOYMENT SKILL DEVELOPMENT AND CHIEF MINISTER'S SELF EMPLOYMENT SCHEME GANGTOK NO.266/GEN/DOP DATED: 04.10.2005 NOTIFICATION In accordance with the Sikkim Services Regulation of Seniority Rules, 1980 the Inter se seniority of the following Assistant Director of the Sikkim State Information Technology Service is fixed as under:-
POSITION IN THE SENIORITY NAME
1 Shri Tshering Samdup Bhutia
2 Shri Sonam Tashi Wangdi
3 Shri Prem Vijay Basnet
4 Shri Chewang Namgyal
NB : Shri Prem Singh Rai, Assistant Director (Officiating) whose
seniority appears at Sl. No.2 shall be subject to the result of the Vigilance Case Pending against him and out come of the sealed cover procedure adopted in SPSC.
BY ORDER ........................................................................" [emphasis supplied]
(vi) By an Office Order dated 02-03-2009 (Annexure P14),
the Petitioner along with the Respondent Nos.4 and 5 were WP(C) No.40 of 2022 5
Chewang Namgyal Bhutia vs. State of Sikkim and Others
promoted to the post of Deputy Director on officiating capacity and
thereafter in substantive capacity on 05-07-2011 (Annexure P15)
on the recommendation of the SPSC. On 07-06-2013, they were
appointed as Joint Directors and thereafter as Additional Directors
on 07-03-2019. All orders of promotion of the Petitioner and
Respondent Nos.4 and 5 (supra) appear to have been issued in one
common order, bearing the same seriatim as was seen in the
Notification dated 04-10-2005 (supra), thereby indicating their
ranking in seniority.
(vii) Learned Senior Counsel for the Petitioner submits that
in the first instance the Petitioner did not receive the provisional
seniority list allegedly circulated on 21-09-2005 and therefore
could not file his objection, consequently the settlement of inter se
seniority vide Notification dated 04-10-2005 took him by surprise.
The existence of the provisional seniority list came to light only on
account to an application filed by the Petitioner under the Right to
Information Act (RTI), before the SPIO of the Respondent No.2
Department (Annexure P24), on 14-02-2022. Despite his
disgruntlement regarding the inter se seniority, he did not take any
remedial measures. It was the further contention of Learned
Senior Counsel that the essential qualification for holding the post
of Assistant Director is a Graduate with a PG Diploma in Computer
Application from a recognized University, with one year experience
in Information Technology or an Electronics Graduate or Computer
Science Graduate with one year experience in Information
Technology, or Masters in Computer Application, as prescribed in
the Schedule to the Sikkim State Information Technology Service
Recruitment Rules, 2001 (hereinafter, "SSITSR Rules, 2001"). The WP(C) No.40 of 2022 6
Chewang Namgyal Bhutia vs. State of Sikkim and Others
Petitioner, it is urged, was qualified accordingly while the
Respondent Nos.4 and 5 although lacking such qualification were
illegally retained in the posts of Assistant Director by the
Respondent Nos.1 and 2.
(viii) It was next argued that the educational qualification of
the Petitioner was overlooked by the Respondent Nos.1 and 2 while
determining the seniority. That, his higher educational qualification
ought to have ensured his placement as the senior most officer
amongst the three of them. That, the Supreme Court in Central
Electricity Supply Utility of Odisha vs. Dhobei Sahoo and Others1
(Paragraphs 21 and 22) has clearly laid down that persons without
the requisite qualification cannot hold a post. Learned Senior
Counsel further buttressed this argument by relying on Girish
Kanjibhai Patel and Others vs. State of Gujarat and Others2 of the
Gujarat High Court. That, in view of the settled legal position, the
retention of Respondent Nos.4 and 5 in the Respondent No.3
Department would be perpetuating the illegality of their
appointment. That, admittedly the posts held by the Petitioner and
Respondent Nos.4 and 5 as Senior Technical Assistants were re-
designated as Assistant Directors in 2005. All three were promoted
as Deputy Directors in 2011, Joint Directors in 2013 and as
Additional Directors in 2019 and Respondent Nos.4 and 5 were
continuously ranked above the Petitioner in seniority, despite their
lack of requisite educational qualification. That, in the year 2014,
the Respondent Nos.1 and 2 inducted one Rajendra Chettri and
Latta Sharma in the same service by way of parallel induction, duly
relaxing the provisions of recruitment prescribed in the SSITSR
1 (2014) 1 SCC 161 2 MANU/GJ/0103/1995 : Special Civil Application Nos.9792, 11114, etc. of 1995 decided on 21-04-1995 WP(C) No.40 of 2022 7
Chewang Namgyal Bhutia vs. State of Sikkim and Others
Rules, 2001. The two officials were placed above the Petitioner
and the private Respondents in seniority. It was contended by
Learned Senior Counsel that although the Petitioner raised
objection to the seniority ranking "right from the beginning itself"
on the basis of his higher educational qualification, having made
representations to Respondent Nos.2 and 3 from the year 2011
onwards, his grievances remained unredressed. That, the
Petitioner had filed representation on 25-06-2011 seeking seniority
above Respondent Nos.4 and 5, by virtue of his educational
qualification and representation dated 09-08-2014 protesting the
induction of Rajendra Chettri and Latta Sharma as the decision
taken by the Authority was arbitrary followed by representations
dated 21-08-2014 and 16-12-2014 requiring the authorities to
prepare the seniority list strictly in accordance with Rules. That,
although another provisional list was prepared in 2013 however on
its confirmation vide Notification dated 07-09-2016, despite the
Petitioner's protests he was still placed below the Respondent
Nos.4 and 5 in the seniority ranking. That, the Petitioner is further
aggrieved by the Office Order dated 02-12-2021 whereby he is
required to report to the Respondent No.4 who is designated as
Additional Director I, although the Petitioner himself also holds the
post of Additional Director. That, this has led to his humiliation on
a day to day basis as the Respondent No.4 does not even possess
the requisite educational qualification. That, on 01-02-2022 the
Petitioner sought information from the SPIO of Respondent No.2
Department, which was responded vide letter dated 14-02-2022.
Due to incomplete information, he again filed another RTI on 18-
02-2022 stating that the act of Respondent Nos.1 and 2 was de WP(C) No.40 of 2022 8
Chewang Namgyal Bhutia vs. State of Sikkim and Others
hors the SSITSR Rules, 2001, and amounts to breach of Articles 14
and 16 of the Constitution of India, hence the reliefs extracted
(supra) were sought.
3. Learned Additional Advocate General stridently
repelling the contentions of the Petitioner canvassed that the Writ
Petition is, in the first instance, liable to be dismissed on grounds of
delay and laches. That, in the year 2005, when the seniority list of
Assistant Directors under the IT Service/cadre was fixed and
notified vide Notification No.266/GEN/DOP, dated 04-10-2005
(Annexure P13), the Petitioner did not raise any objection and by
his actions waived any right that may have accrued to him, having
acquiesced to the circumstances. That, the SSITSR Rules, 2001,
does not provide for the post of Technical Assistant. When the
Petitioner along with the private Respondents were inducted into
the regular establishment under the Respondent No.3 Department
as Technical Assistants, there was no specific Rule or educational
qualifications governing their recruitment to the said posts. That,
the appointments of all three were based on technical manpower
requirement in the Respondent No.3 Department at the relevant
time. That, it was only on 24-08-2002, that a Notification bearing
No.69/GEN/DOP (Annexure R1) was issued by the Respondent
No.2 Department, creating fifteen posts of Assistant/Junior
Programmer in the Respondent No.3 Department, to be filled by
direct recruitment, with candidates having requisite educational
qualifications. That, this Notification has no bearing with the post
of Technical Assistant, which had no prescribed educational
qualification when the Petitioner and the private Respondents were
appointed. The Respondent No.2 in the year 2003 upgraded the WP(C) No.40 of 2022 9
Chewang Namgyal Bhutia vs. State of Sikkim and Others
four posts of Technical Assistants as Senior Technical Assistants,
pursuant to which, the Petitioner and the private Respondents were
allowed to officiate as Senior Technical Assistants. In the Office
Order bearing No.547/(G)/DOP, dated 23-06-2003 (Annexure R2),
the name of the Petitioner was reflected at Sl. No.4 with the names
of the Respondent Nos.4 and 5 preceding him. That, subsequent
thereto on the recommendation of the SPSC they were promoted
as Senior Technical Assistants. Thereafter, in order to streamline
the IT Service the State-Respondents re-designated the post of
Senior Technical Assistants as Assistant Directors with both posts
carrying the same scale of pay. The redesignation brought the
Petitioner and the private Respondents under the cadre of the IT
Service retrospectively with effect from 20-02-2004, vide
Notification No.180/GEN/DOP, dated 02-08-2005. That, personnel
directly recruited to the post of Assistant Director require the
educational qualification prescribed in the Schedule to the SSITSR
Rules, 2001, however the Petitioner and the private Respondents
were promotees to the post, having been recruited as Technical
Assistants and promoted to higher posts, on the recommendation
of the SPSC, the authority vested with such powers. That,
pertinently the seniority of the Assistant Director was fixed in
accordance with the provisions of the Sikkim Services Regulation of
Seniority Rules, 1980 (hereinafter, "Seniority Rules, 1980") and as
per the order in which the names of the parties appeared in the
Office Order No.1978/(G)/DOP, dated 20-02-2004. As no objection
was raised at that time the State-Respondents notified the final
seniority list of Assistant Directors on 04-10-2005 and the seniority
having been thus fixed, has continued on the same lines, till date. WP(C) No.40 of 2022 10
Chewang Namgyal Bhutia vs. State of Sikkim and Others
All through the promotions of the Petitioner and the private
Respondents from Assistant Directors to Additional Directors, the
Petitioner did not raise any objection regarding his seniority.
(i) That, two officers Rajendra Chettri and Latta Sharma,
who had previously been left out, although eligible, were also
inducted by way of parallel induction into the IT Service vide Office
Order, dated 10-10-2014 duly relaxing the Recruitment Rules.
That, to determine the inter se seniority of the two inducted
members, provisional inter se seniority list was circulated amongst
the members of the IT Service inviting objections upon which one
Prem Singh Rai, Latta Sharma and the Petitioner raised objections,
but their representations being untenable were rejected. That,
consequently in the year 2016 the inter se seniority list of the
members of the IT Service was notified vide Notification dated 07-
09-2016, placing the two inducted officers at Sl. No.1 and Sl. No.3
in the inter se seniority list, without disturbing the then existing
seniority list. That, rather belatedly the Petitioner has raised his
objection claiming seniority over the private Respondents, only in
the year 2014, on grounds that he possesses the requisite
educational qualification. Hence, the Petition is not maintainable
either in law or on facts and being mis-conceived is liable to be
dismissed on grounds of delay, laches, waiver, estoppel and
acquiescence.
4. Learned Senior Counsel for the Respondent Nos.4 and
5 while reiterating the facts and circumstances, already reflected
hereinabove, elucidated that in fact the private Respondents were
appointed to the posts of Technical Assistant prior in time to the
Petitioner. That, promotions to the various posts followed, as WP(C) No.40 of 2022 11
Chewang Namgyal Bhutia vs. State of Sikkim and Others
delineated by the Learned Additional Advocate General clearly
reveals that the promotions were based on the recommendations
of the SPSC and were not arbitrary or whimsical. That, all Office
Orders pertaining to promotions have been issued in one order
since inception, i.e., the order dated 23-06-2003. The subsequent
Office Orders also were issued in the joint names of the Petitioner
and the private Respondents, in the same order of seniority.
Throughout the period from 2005 when the first seniority list was
notified up to 2019 the Petitioner chose not to protest the order of
seniority and has belatedly put forth grounds of lack of educational
qualification of the private Respondents, which is not tenable.
That, in fact, the private Respondents as also the Petitioner were
appointed to the posts of Technical Assistant and the educational
qualification for Assistant Director as prescribed in the Schedule, is
for incumbents who are direct recruits to the post. That, the
Petitioner and the private Respondents have reached the posts of
Additional Director by virtue of promotions, based on the
recommendation of the SPSC and the question of lack of
educational qualification of the private Respondents for the posts of
Assistant Director does not arise, as all three had faced the
requisite interview/test conducted by the SPSC at various stages
and on being found eligible were recruited and promoted together
to the next post. Relying on the decision of this Court in Swarna
Smrity Pradhan and Others vs. State of Sikkim and Others3, Tseten 4 Palzor Bhutia vs. State of Sikkim and Others and Bijay Kumar Pradhan 5 and Others vs. State of Sikkim and Others it was contended that the
issue of educational qualification cannot be raised as the Petitioner
3 4 MANU/SI/0026/2022 : WP(C) No.14 of 2008 decided on 10-05-2022 2022 SCC OnLine Sikk 67 : MANU/SI/0040/2022 : WP(C) No.10 of 2020 decided on 27-06-2022 5 MANU/SI/0049/2023 : WP(C) No. 24 of 2020 decided on 07-07-2023 WP(C) No.40 of 2022 12
Chewang Namgyal Bhutia vs. State of Sikkim and Others
has slept over his rights thus the rights that have accrued to the
private Respondents cannot be disturbed. The Petition accordingly
be dismissed.
5. The rival submissions of Learned Counsel for the
parties were heard at length. Pleadings and documents have been
duly perused and citations made at the Bar considered.
6. While addressing first, the issue of educational
qualification, it is evident that the Petitioner and the private
Respondents hold Degrees in Engineering in different fields, as
already reflected hereinabove. The Petitioner was initially appointed
on 11-01-2001 in Namchi, while Respondent Nos.3 and 4 were
initially appointed on 24-10-2000 at Gangtok, to the posts of
Technical Assistant in the Pilot Project of the CIC. They were
inducted into the regular establishment of the Respondent No.3
Department as Technical Assistants in the pay scale of ₹ 5500-175-
9000 with effect from 24-05-2002, vide Office Order No.74/GEN/
DOP for the Petitioner, vide Office Order No.73/GEN/DOP for the
Respondent No.4 and vide Office Order No.72/GEN/DOP for the
Respondent No.5. Thereafter, their services were absorbed under
the Respondent No.3 Department where they were firstly promoted
as Senior Technical Assistants on officiating capacity and confirmed
in the said post on 20-02-2004 pursuant to a recommendation of
the departmental promotion committee of the SPSC held on 18-02-
2004, with seniority fixed on merit. Although the Petitioner claims
that he did not receive the provisional seniority list of 2005
circulated on 21-09-2005 requiring the recipient thereof to furnish
their objection, if any, by five days, it is evident that the
permanent seniority list of the Assistant Directors to which post the WP(C) No.40 of 2022 13
Chewang Namgyal Bhutia vs. State of Sikkim and Others
Petitioner and the private Respondents had been promoted by that
time, was notified in the Government Gazette on 04-10-2005.
Under Section 3(39) of the General Clauses Act, 1897, "Official
Gazette" or "Gazette" shall mean the Gazette of India or the Official
Gazette of a State. Under Section 81 of the Indian Evidence Act,
1872, the Court shall presume genuineness of every document
purporting to be in the Official Gazette, read with Section 114 of
the said Act and Illustration (e) thereto, the Court can presume
that the Official Gazette was notified on the date as appearing in
the Official Gazette [See State of Andhra Pradesh (Now State of
Telengana) vs. A. P. State Wakf Board and Others6]. Suffice it
however to remark here that the presumption is rebuttable by
production of evidence to the contrary. It is settled law that once it
has been notified in the Government Gazette no person can claim
ignorance of the contents of such Notification. Thus, from the
documents that have been furnished before this Court it is seen
that the public were notified of the settlement of seniority vide
Notification in the Government Gazette (supra) and no evidence to
the contrary has been furnished by the Petitioner. Thus, the
decision of the Government qua the seniority of the Petitioner and
the private Respondents became valid and effective as a
consequence.
7. Vide Office Order No.1978/(G)/DOP, dated 20-02-2004,
on the basis of the recommendation of the SPSC vide their letter
No.SPSC/3/(403)02/7889, dated 18-02-2004, the Governor
promoted the Petitioner and private Respondents as Senior
Technical Assistants on substantive basis in the pay scale of ₹
7000-225-11500 with immediate effect and with the name of 6 2022 SCC OnLine SC 159 WP(C) No.40 of 2022 14
Chewang Namgyal Bhutia vs. State of Sikkim and Others
Respondent No.4 at Sl. No.1, Respondent No.5 at Sl. No.2 and that
of the Petitioner at Sl. No.3.
(i) On 22-07-2005, a Notification re-designated the post of
Senior Technical Assistants held by the parties to Assistant
Directors with the same pay scale of ₹ 7000-225-11500.
(ii) On the recommendation of the SPSC, the Petitioner,
Respondent Nos.4 and 5 on 02-08-2005 were appointed as Senior
Technical Assistants which had been re-designated as Assistant
Directors, the promotion effective retrospectively from 20-02-2004.
(iii) On 04-10-2005, vide Notification No.266/GEN/DOP, the
Respondent No.2 in accordance with the Seniority Rules, 1980,
settled the inter se seniority of the Petitioner and the Respondent
Nos.4 and 5 in the following order;
1. Shri Tshering Samdup Bhutia
2. Shri Sonam Tashi Wangdi
3. Shri Prem Vijay Basnet
4. Shri Chewang Namgyal
As admitted by all parties, there was no objection to the
Notification dated 04-10-2005 and the ranking in seniority.
(iv) On 02-03-2009, vide Office Order bearing
No.2021/G/DOP, the Petitioner and the private Respondents were
promoted to the post of Deputy Directors in the pay scale of ₹
9000-300-13800 in officiating capacity showing the same order of
seniority.
(v) On 05-07-2011, vide Office Order No.5954/G/DOP, on
the recommendation of the SPSC, the Petitioner and the
Respondent Nos.4 and 5 were promoted from their post of Deputy
Director (officiating) to substantive capacity in the PB-3 ₹ 15600- WP(C) No.40 of 2022 15
Chewang Namgyal Bhutia vs. State of Sikkim and Others
39100 and GP ₹ 6200 with the order of seniority remaining as
earlier indicated.
(vi) This was followed by Office Order No.630/G/DOP, dated
07-06-2013, whereby the Petitioner and the private Respondents
were promoted to the post of Joint Director in Selection Grade II in
the PB-3 of ₹ 15600-39100 and GP ₹ 7200 on officiating capacity.
The seriatim of seniority continued in the same order as settled on
04-10-2005. On 18-12-2017, vide Office Order No.4332/G/DOP,
the Petitioner and the private Respondents were promoted in the
substantive capacity of Joint Directors with the existing seniority.
(vii) Office Order No.6202/G/DOP, dated 07-03-2019, the
Petitioner and the private Respondents were promoted on
officiating capacity to the post of Additional Directors in Level 20 of
the Pay Matrix. Ultimately, on 02-05-2022, it is seen that by an
Office Order bearing No.1337/G/DOP the private Respondent No.4
and the Petitioner were promoted to the substantive capacity of
Additional Directors with the Respondent No.4 at Sl. No.2,
Petitioner in Sl. No.3 while one Prem Singh Rai is found at Sl. No.1.
(viii) Relevantly, it may be noticed that vide Notification
bearing No.20/GEN/DOP, dated 09-08-2014, the Government
deemed it expedient to induct one Rajendra Chettri, Joint Director,
Human Resource Development Department and one Latta Sharma,
Deputy Director, Excise (Abkari) Department, respectively, in the
SSITSR Rules, 2001. The recruitment, as already seen, was by
promotion and parallel induction by relaxing the provisions of the
"Method of recruitment" prescribed under Rule 7 of the Sikkim
State Information Technology Service Rules, 2013, read with the
Schedule to the said Rules. The inter se seniority of these two WP(C) No.40 of 2022 16
Chewang Namgyal Bhutia vs. State of Sikkim and Others
officers was to be from 01-05-2010 and 13-06-2011 respectively.
Admittedly they were placed above the Petitioner and private
Respondents in terms of seniority.
8. The entire exercise hereinabove of reflecting the dates
of promotions to various posts of the Petitioner and the private
Respondents is for the purpose of showcasing the fact that the
Petitioner opted to remain in a state of rip van winkleism and to
justify his lackadaisical manner of not approaching the relevant
authorities with his grievances pertaining to seniority, he rather
incongruously stated that he was awaiting the decision in Writ
Petition, WP(C) No.20 of 2013 filed by Rajendra Chettri and
Another against the State of Sikkim (subsequently withdrawn by
him on 14-08-2014). It was also urged that he had sought
information under the RTI Act, a copy of which relevantly is not
filed along with the Writ Petition. Vide communication dated 14-02-
2022, addressed to the SPIO of the Respondent No.2 Department,
one Bindhya Gurung, SCS, Under Secretary to the Government of
Sikkim, informed that two Notifications dated 04-10-2005 and 22-
08-2007 pertaining to inter se seniority list of Assistant Directors
was enclosed. Dissatisfied with the information, he filed another
application under the RTI Act requesting information of the fact
that the inter se seniority of Rajendra Chettri and Latta Shama was
circulated amongst the members of the IT Service on 02-12-2014.
The File notings of the Respondent No.2 Department (Annexure P-
26), reveal that on 22-07-2016 a seniority list of members of IT
Service with details as discussed was prepared and the File was
resubmitted. The Petitioner has failed to enlighten this Court as to
the outcome of the File notings or whether he continued to pursue WP(C) No.40 of 2022 17
Chewang Namgyal Bhutia vs. State of Sikkim and Others
the concerned Department with regard to the settlement of inter se
seniority.
9. What ultimately emerges from the entire gamut of facts
and circumstances is that the Petitioner has chosen to slumber
over his rights. It is a settled legal proposition that vigilantibus
non dormientibus aequitas subvenit lex, in other words equity aids
the vigilant and not those who sleep over their rights.
10. The argument that the appointment of the Respondent
Nos.4 and 5 were de hors the Rules without relaxing the relevant
Rules appears to be initially impressive, however it is to be noted
that the parties rose to the rank of Additional Directors from that of
Technical Assistants. For the post of Technical Assistant, none of
the parties have placed before this Court the prescribed
educational qualification. Secondly, vide the Office Orders reflected
hereinabove, the promotions of the Petitioner and the private
Respondents have been made on the basis of the recommendation
of the SPSC, the concerned authority, who after examining their
competence evidently made the recommendations. The Petitioner
cannot belatedly claim ignorance and aggrievement after having
acquiesced through the years to the decision of the SPSC and
acceptance of the settled seniority as seen from the foregoing
submissions.
(i) The Supreme Court in Union of India and Others vs. N. 7 Murugesan and Others has discussed the meaning of delay, laches
and acquiescence and held as follows;
"21. The word "laches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on
7 (2022) 2 SCC 25 WP(C) No.40 of 2022 18
Chewang Namgyal Bhutia vs. State of Sikkim and Others
the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.
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.
23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence.
.....................................................................
25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to- case basis."
On careful consideration of the observations supra and on
examining the conduct of the Petitioner, it cannot but be held that
the Petitioner was guilty of delay, laches and acquiescence. WP(C) No.40 of 2022 19
Chewang Namgyal Bhutia vs. State of Sikkim and Others
11. In Anil Kumar Vitthal Shete and Others vs. State of 8 Maharashtra and Another it was observed by the Supreme Court
that the employer has the option to adopt a policy for fixing service
conditions of its employees. Such policy must however be in
consonance with the Constitution and not arbitrary, unreasonable
or otherwise objectionable. On the anvil of the above settled
positions of law, I am of the considered opinion that the argument
pertaining to educational qualification is irrelevant in the facts and
circumstances of the case.
(i) That apart, the Supreme Court has also observed in
M/s. Tilokchand Motichand & Others vs. H.B. Munshi and Another9,
while considering the delay in seeking relief in service matters that
if there is no period prescribed what is the standard for the Court
to follow in matters of delay, it was opined that utmost expedition
is the sine qua non for such claims. The party aggrieved must
move the Court at the earliest possible time and explain
satisfactorily all semblance of delay. That, where there is
appearance of avoidable delay and this delay affects the merits of
the claim, this Court will consider it and in a proper case hold the
party disentitled to invoke the extraordinary jurisdiction.
(ii) The Petitioner has failed to take steps right from his
inception to the service and settlement of seniority on 04-10-2005.
During the interregnum, the parties have risen from the post of
Assistant Director to that of Deputy Director to Joint Directors and
ultimately as Additional Director as already discussed supra. By his
consistent inaction the Petitioner has exhibited not only
acquiescence and waiver to the above circumstances but also is
8 (2006) 12 SCC 148 9 (1969) 1 SCC 110 WP(C) No.40 of 2022 20
Chewang Namgyal Bhutia vs. State of Sikkim and Others
guilty of delay and laches. He cannot in the year 2022 wake up
from his deep slumber, flex his muscles and claim his rights. It
would be unjust at this juncture to deprive the Respondents of the
rights which had accrued to them over a long period of time. They
ought to be entitled to sit back and consider that the appointments
and promotions effected long time ago would not be set aside after
the lapse of a number of years. [see Rabindranath Bose and Others
vs. The Union of India and Others10].
(iii) It is also relevant to notice that in P. S. Sadasivaswamy
vs. State of Tamil Nadu11, the Supreme Court while considering the
petition which was filed after a lapse of fourteen years challenging
a promotion, observed as follows;
"2. ................ A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. ..................."
12. In light of the foregoing discussions, the Writ Petition
lacking in merit deserves to be and is accordingly dismissed.
13. Parties to bear their own costs.
( Meenakshi Madan Rai ) Judge 25-08-2023
Approved for reporting : Yes ds
10 (1970) 1 SCC 84 11 (1975) 1 SCC 152
