Sikkim High Court
Bijay Kumar Pradhan And Ors vs State Of Sikkim And Ors on 7 July, 2023
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 7th July, 2023
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SINGLE BENCH :THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.24 of 2020
Petitioners : Bijay Kumar Pradhan and Others
versus
Respondents : State of Sikkim and Others
Application under Article 226 of the Constitution of India
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Appearance
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad and
Simeon Subba, Advocates for the Petitioners.
Mr. Zangpo Sherpa, Additional Advocate General with Mr. Sujan
Sunwar, Assistant Government Advocate for the Respondents
No.1 and 2.
Mr. Bhusan Nepal, Advocate for the Respondent No.2A.
Mr. N. B. Khatiwada, Senior Advocate with Ms. Gita Bista and Ms.
Pratikcha Gurung, Advocates for the Respondents No.3, 4, 6 to
12, 14 to 18, 20 to 27.
Mr. N. B. Khatiwada and Mr. Karma Thinlay Namgyal, Senior
Advocates with Ms. Gita Bista, Ms. Pratikcha Gurung, Mr. Yashir
Namgyal Tamang and Mr. Chetan Sharma, Advocates for the
Respondents No.13.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Petitioners were ranked above the private
Respondents No.3 to 27 in the provisional inter se seniority list, of
Junior Engineers (Civil) [hereinafter, "JE(C)"], dated 30-08-2010.
Without confirming, altering or finalising the list, the private
Respondents No.3 to 27, who were appointed as JE(C) much later
than the Petitioners, were designated as "Acting Assistant
Engineers" on 14-10-2011 and thereafter their services regularised
as Assistant Engineers (Civil), [hereinafter, "AE(C)"], vide
impugned Office Order, dated 21-09-2016. This was followed by
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
the promotion of private Respondents No.3, 4, 6 and 7 as
Divisional Engineers (Civil) [hereinafter, "DE(C)"], vide impugned
Office Order, dated 20-07-2020, allegedly in clear violation of all
Service Rules. Aggrieved by the State action, the Petitioners are
invoking the Writ Jurisdiction of this Court.
(i) The Petitioners press prayers (a), (b) and (c)(i) of their
Writ Petition, viz; "issue Rule calling upon the Respondents to show
cause as to why a writ of mandamus/certiorari and appropriate writ/order
or direction may not be issued commanding and directing the
Respondents No.1 and 2;
[a] to show cause as to why the Office Orders dated 21-09-
2016 and 20-07-2020 should not be quashed/set aside and
on perusal of the cause shown, if any, to make the Rule
absolute;
[b] to place the Petitioners above Respondents No.3 to 27 in the
final inter-se-seniority and thereafter promote some of the
Petitioners in place of Respondents No.3 to 7;
.............................................................................................
(c)(i) to quash and cancel Notification No.06/GEN/DOP, dated
11/4/2015 (Annexure-P15/Annexure R1/1), whereby the
method of recruitment has been relaxed for regularization of
the services of the Respondents No.3 to 27.
..................................................................................................."
(ii) Affidavits were exchanged between the parties with all
Respondents denying the allegations of the Petitioners
(Respondents No.5 and 19 have since passed during the pendency
of this petition).
2. The Petitioners‟ narrative is briefly traversed below.
The twenty Petitioners are Diploma holders in Engineering and
were appointed as JE(C), between the years 1993 and 1995, on
regular basis in various departments of the Government of Sikkim.
The Respondents No.3 to 27 are Civil Engineering Graduates
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(Degree holders), and were initially appointed as JE(C), on various
dates between February, 2002 and November, 2006.
Consequently, in the provisional inter se seniority list of JEs, dated
30-08-2010, maintained by the Respondent No.2, they were placed
above the private Respondents in the seniority ranking. The list
remained unconfirmed. The Junior Engineer (Civil) Recruitment
Rules, 1993, under which the Petitioners and private Respondents
were recruited does not differentiate between the appointment and
promotions of Diploma holder Engineers and Engineering
Graduates, except to the extent of granting three advance
increments at the lowest rate, to the Engineering Graduates, on
their appointment as JE. That, Promotions are governed by the
Sikkim State Engineering (Civil, Electrical & Mechanical) Services
Rules, 1989 (hereinafter, "Engineering Service Rules, 1989"),
where a JE, on ten years of service is eligible for promotion to the
post of AE. Rule 17(3) therein provides that the Government shall,
every year, under Rule 7(1)(b),i.e., for promotion from JE to AE,
prepare a list of names of persons in order of seniority, who have
on the first day of that year, completed not less than ten years of
continuous service, in the post of JE or equivalent. As the
Government failed to comply with the Rules and prepare the yearly
seniority list, it worked to the disadvantage of the Petitioners, i.e.,
firstly, they could not be directly recruited as AEs as provided in
Rule 7(1)(a), secondly, in the absence of the list, they could not
avail the benefits of promotion, thereby depriving them of
promotions from 2003/2005 through 2016. On the other hand, the
private Respondents, as Degree holders were eligible for promotion
in terms of the Rules (supra), only from 2012-2016, depending on
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
the year of their appointments, however before completion of the
requisite period, the State-Respondents, vide an Office Order dated
14-10-2011, designated the private Respondents as "Acting
AE(C)", with an additional monthly allowance of ₹ 5,000/- (Rupees
five thousand) only, sans Rules, with the caveat that their
appointment on regular basis to the post of AE would be through
the Sikkim Public Service Commission (SPSC) as per the
Engineering Service Rules of 1989.
advertised 33 vacancies of AE(C), requiring the applicants to
appear for an examination and viva-voce. The private
Respondents filed a representation dated 14-09-2012, before the
Hon‟ble Chief Minister, seeking regularisation of their services from
"Acting AEs" to AEs, pleading their inability to prepare for the
examination of the advertised vacancies due to work obligations.
Consequently, the advertisement was kept in abeyance and the
services of the private Respondents were regularised by invoking
Rule 30, the relaxation clause, of the Engineering Service Rules,
1989, vide Notification dated 11-04-2015, specifying twenty-five
posts for regularisation, to accommodate the private Respondents.
(ii) Following the appointment of the private Respondents
as AE in 2015, the Respondents No.1 and 2 on 10-08-2019, put up
the inter se seniority list of Civil Engineers, in which the private
Respondents were ranked above the Petitioners in seniority. The
Petitioners voiced their grievance regarding the inter se seniority
by a representation, dated 10-09-2019, before the Hon‟ble Chief
Minister, which went unaddressed, instead, without finalising the
said list, vide Office Order dated 20-07-2020, the private
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
Respondents No.3, 4, 6 and 7 were promoted as DEs. Hence, the
Writ Petition, with the prayers as extracted hereinabove.
3. The Respondents in their respective Returns denied the
allegations.
4. Learned Senior Counsel for the Petitioners advancing
his arguments alleged that the State-Respondents exhibited a
preference for the Engineering Graduates by promoting them as
"Acting AEs" on 14-10-2011, without the recommendation of
Respondent No.2A, which is illegal and not merely irregular. As the
Service Rules make no provision for the post of "Acting AE", the
private Respondents ceased to be governed by the Engineering
Service Rules, 1989. That, when the Respondents No.1 and 2 on
07-09-2012 advertised 33 (thirty three) vacancies of AE(C), the
private Respondents, successfully circumvented the requirement of
taking the examination by obtaining regularisation of their services.
That, orders of regularisation can be only issued for irregular
appointments, and not illegal appointments as that of the private
Respondents. That, although 33 (thirty three) vacancies of AE(C)
were initially advertised, the Notification for relaxation of the Rules
specified only twenty five posts, to enable accommodation of the
private Respondents, making out a case of fraud. Reliance was
placed on Ajit Kumar Bhuyan and Others vs. Debajit Das and Others1 to
buttress this submission.
(i) Learned Senior Counsel further contended that the
private Respondents could not be categorized as a class. That,
Rule 30 (supra), when invoked requires the Government to record
the expediency for such relaxation, which was not complied with in
(2019) 12 SCC 275
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
the instant case but compassionate employment was resorted to by
the State-Respondents. That, the relaxation provision cannot be
used to render the rules non est. On this aspect, strength was
drawn from State of Orissa and Others vs. Sukanti Mohapatra and
Others . That, in Suraj Parkash Gupta and Others vs. State of J&K and
Others the Supreme Court observed that Rules cannot be made a
hardship.
(ii) Relying on G. P. Doval and Others vs. Chief Secretary,
Govt. of U.P. and Others it was urged that the Supreme Court in the
said matter did not consider the objection of the Respondents
pertaining to delay, laches and acquiescence, as the State-
Respondents had not finalised the seniority list, which worked to
the disadvantage of the Petitioners. That, similarly the provisional
list herein was not confirmed, while the fresh seniority list of 2019
was prejudicial to the Petitioners. That, in R. S. Garg vs. State of
U.P. and Others the Supreme Court has held that an appointment
made without the recommendation of the State Public Service
Commission would be void ab initio and incapable of relaxation.
Reliance was also placed on Secretary, State of Karnataka and Others
vs. Umadevi (3) and Others6 to canvass that regularisation could be
made by the State Government as a onetime measure, to
regularise the services of irregularly appointed personnel, in
sanctioned posts, but not as a licence to relax the Rules at every
opportunity to benefit a chosen few. Hence, the prayers of the
Petitioners be allowed.
(1993) 2 SCC 486
(2000) 7 SCC 561
(1984) 4 SCC 329 : AIR 1984 SC 1527
(2006) 6 SCC 430
(2006) 4 SCC 1
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
5. Repudiating the arguments put forth supra, Mr. Zangpo
Sherpa, Learned Additional Advocate General for the State-
Respondents No.1 and 2, contended that the expediency to appoint
the private Respondents as Acting AEs‟ arose on account of the
earthquake which struck Sikkim on 18-09-2011. The shortage of
AE(C) led to the designating of the private Respondents as "Acting
AE" to enable implementation of urgent restorative works. That,
pursuant to the appointment of the private Respondents as AE(C),
vide Office Order, dated 21-09-2016, a few days later, vide Office
Order dated 01-10-2016, the Petitioners were also appointed as
AEs. That, the appointment of the private Respondents as AEs was
not illegal as alleged, as it was based on the recommendation of
the Respondent No.2A, in due compliance of the Rules, following
their technical evaluation and personality test/interview, which is
revealed in the communication of the Respondent No.2A to the
Commissioner-cum-Secretary of the Respondent No.1, dated 10-
06-2016. That, the Petitioners did not assail the Notification
relaxing the Rules for the purpose of filling up twenty five posts of
AEs. That, the 50% quota meant for direct recruitment was being
utilised for regularisation of the services of the private
Respondents, which in no way impinged on the promotional quota
of the Petitioners. The first cause of action thus arose on 11-04-
2015 but, no steps were taken by the Petitioners. More than a
year later the evaluation test was conducted on 27-28 May, 2016.
Neither during the interregnum nor at the time of the evaluation
test, or the promotion of the private Respondents, did the
Petitioners protest.
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(i) It was next urged that as the Engineering Service
Rules, 1989, do not specifically provide for seniority, for this
purpose Rule 8(c) of the Sikkim Government Establishment Rules,
1974 (hereinafter, the "Establishment Rules, 1974") is to be read
with Rule 9 of the same Rules. In accordance thereof the private
Respondents were ranked above the Petitioners in seniority. That,
in fact, the entire case of the Petitioners is an outcome of their
disgruntlement on the subsequent promotion of a few of the
private Respondents, as DEs on 20-07-2020, who the Petitioners
perceive as their juniors in service. That nonetheless, even the
Petitioners have been duly considered and promoted as DEs on 14-
02-2023, which circumstance was brought to the notice of this
Court by the private Respondents, by filing I.A. No.10 of 2023,
reflected in the Order of this Court dated 28-04-2023. Relying on
Dr. Akshya Bisoi and Another vs. All India Institute of Medical Sciences
and Others it was urged that seniority ought not to be unsettled
after a long period of service rendered by the parties. Reliance was
also placed on the decision of this Court in Tseten Palzor Bhutia vs.
State of Sikkim and others wherein this Court had referred to and
relied on the ratio in P. S. Sadasivaswamy vs. State of Tamil Nadu9
where the Supreme Court held that a person who is aggrieved by
an order promoting a junior over his head should approach the
Court at the earliest. That, as no prejudice was caused to the
Petitioners, the Writ Petition lacking merit and having been filed
belatedly deserves a dismissal.
(2018) 3 SCC 391
2022 SCC OnLine Sikk 67
(1975) 1 SCC 152
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
6. Mr. Bhusan Nepal, Learned Counsel for the Respondent
No.2A, while adopting the arguments put forth by Learned
Additional Advocate General, augmented it by submitting that
recommendation for appointment of the private Respondents was
made to the Government by Respondent No.2A, on completion of
their evaluation test as per the relevant Rules. Hence, as there
was no illegality in the appointments, the petition deserves a
dismissal.
7. Mr. Karma Thinlay Namgyal, Learned Senior Counsel
for the Respondent No.13, while also endorsing the arguments
advanced by Learned Additional Advocate General, canvassed that
the Petitioners were well aware that they have approached the
Court belatedly and their petition is marred by delay, laches and
acquiescence. Consequently, in a bid to conceal this fact, the dates
of knowledge of various events are referred to as "recently learnt"
as apparent from Paragraphs 3, 7 and 9 of the amended Writ
Petition. That, the relaxation clause was invoked by the State
Government for the purposes of promoting the private
Respondents and was confined to the utilisation of 50% of posts
meant for direct recruits. The remaining 50% quota, meant for
promotees, such as the Petitioners was untouched, hence the
Petitioners have no locus standi to agitate this point in the Writ
Petition. Besides, the Petition being filed belatedly on this ground
alone it deserves a dismissal.
8. Ms. Gita Bista, Learned Counsel for the Respondents
No.3, 4, 6 to 12, 14 to 18, 20 to 27, adopted the arguments
advanced by the Learned Additional Advocate General and Learned
Senior Counsel for Respondent No.13 and added that, the petition
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
also suffers from non-joinder of parties, as officers in service likely
be effected by any finding of this Court, unsettling the status quo,
have not been impleaded. That, the seniority settled by the State-
Respondents were unassailed and have reached a finality, thereby
rendering the petition meritless.
9. Having heard Learned Counsel for the parties and
perused the pleadings and all documents on record, the questions
that require determination by this Court are;
(i) Whether the Petitioners have locus standi to agitate the
points as put forth in the Writ Petition?
(ii) Whether the Writ Petition having been filed belatedly
renders it inconsequential?
10. The Petitioners admittedly are Diploma holders in
Engineering, per contra the Respondents No.3 to 27 are Civil
Engineering Graduates. On this facet, it may relevantly be noticed
that the Supreme Court while considering whether educational
qualification can be recognized as a criterion for classification, in
The State of Jammu and Kashmir vs. Shri Triloki Nath Khosa and
Others had held that;
"50. We are therefore of the opinion that
though persons appointed directly and by promotion
were integrated into a common class of Assistant
Engineers, they could, for purposes of promotion to
the cadre of Executive Engineers, be classified on the
basis of educational qualifications. The rule providing
that graduates shall be eligible for such promotion to
the exclusion of diploma-holders does not violate
Arts. 14 and 16 of the Constitution and must be
upheld." (emphasis supplied)
(1974) 1 SCC 19
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(i) In Ashok Kumar and Others vs. State of Jammu and
Kashmir and Others the Supreme Court referred to the
Constitution Bench decision of The State of Mysore and Another vs. P.
Narasinga Rao wherein it was held that Article 16(1) of the
Constitution does not bar a reasonable classification of employees
or reasonable test for their selection. The competing parties who
were before the Court in the said case were employed as Tracers,
carrying out the same duties and responsibilities, the Bench held
that the classification of Tracers, into two types with different
grades of pay, on the basis that one type consisted of matriculates
and the other non-matriculates, is not violative of Articles 14 and
16 of the Constitution of India.
(ii) In Surinder Singh vs. Union of India and Others13 the
Supreme Court observed that;
"16. In our view, in service jurisprudence the
prescription of preferential qualification not only
refers to numeric superiority but is essentially
related to better mental capacity, ability and maturity
to shoulder the responsibilities, which are entrusted
to the candidates after their selection to a particular
post. All the more, it is important for efficient and
effective administration. The basic object of
prescribing a minimum qualification is to put a cut-off
level for a particular job in accordance with the
minimum competency required for the performance of
that job. The object of prescribing preferential
qualification is to select the best amongst the better
candidates who possess more competence than the
others. ..........................................." (emphasis supplied)
(iii) Further, in State of Uttarakhand and Others vs. S.K. Singh
and Others14 the Supreme Court observed as follows;
"27. The spectrum of judicial opinions referred
to aforesaid leaves us with little doubt that though
equality is the very bulwark of the provisions of the
Constitution, in service jurisprudence, classifications
are a matter of necessity and judicial pronouncements
have sought to balance the equality principle with the
principle of classification, dependent on the nexus for
(2021) 15 SCC 650
AIR 1968 SC 349
(2007) 11 SCC 599
(2019) 10 SCC 49
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
making the classification. Higher educational
qualifications have been repeatedly emphasised as
an aspect which can give exclusive promotion, earlier
promotion or for that matter, as in this case, an
accelerated promotion. A higher degree of
qualification intrinsically would bring in certain skills,
though undoubtedly, that should be useful and have
a nexus with the job being performed. As to who
should examine this nexus, that has been left to the
wisdom of the administrative authorities, who are
best equipped to do so [M. Rathinaswami v. State of T.N., (2009)
5 SCC 625]." (emphasis supplied)
Thus, the argument of Learned Senior Counsel for the
Petitioners that the private Respondents could not be categorized
as a class, obtains a quietus, in light of the above extracted
pronouncements and the principle enunciated therein that such
classification on the basis of educational qualification is neither
arbitrary nor violative of the constitutional provisions.
(iv) A perusal of the Schedule to the Junior Engineer (Civil)
Recruitment Rules, 1993, appended to the petition reveals that
both Diploma holders and Degree holders are eligible for
appointment as JEs, with provision for three advance increments
for Degree holders at the time of appointment. There is no dispute
with regard to the method of recruitment prescribed by the Rules.
The provisional inter se seniority list of 2010 admittedly remained
unconfirmed for several years, during which period the Petitioners
did not seek finalisation of the list nor did they seek preparation of
a seniority list in terms of Rule 17(3) supra. Pausing here briefly,
the Petitioners have relied on G. P. Doval (supra), the facts therein
are distinguishable as the Petitioners therein had sought finalisation
of their seniority by consistently filing representations. The
Petitioners herein have not brought any such representation to the
notice of this Court, nor was it averred or argued. Indubitably the
private Respondents were designated as Acting AE(C), with
immediate effect, vide Office Order bearing No.6728/G/DOP, dated
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
14-10-2011, of the Respondent No.1 Department allegedly to
mitigate the circumstances of the earthquake and for commencing
restorative works. At this juncture too, no objection arose from the
Petitioners.
(v) The argument of Learned Senior Counsel for the
Petitioners that in view of the private Respondents being made
"Acting AE", which was not provided in the Rules, thus their
services under the Engineering Service Rules, 1989, ceased to
exist, appears to be a little far-fetched as the State-Respondents
have the prerogative and power to take necessary steps for
placement of employees for specific reasons. In Anil Kumar Vitthal
Shete and Others vs. State of Maharashtra and Another the Supreme
Court 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.
Considering that the legal precedent is that classification on
grounds of education is not violative of the constitutional
provisions, the designation of the private Respondents as "Acting
AE" can neither be said to be arbitrary nor unreasonable.
(vi) While considering and addressing the issue of
relaxation of the Rules to accommodate the Degree holders from
"Acting AE" to AE which, as per Learned Senior Counsel for the
Petitioners, was not irregular, but illegal, necessary reference is
made to Notification No.06/GEN/DOP, dated 11-04-2015, which
inter alia reads as follows;
(2006) 12 SCC 148
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
".......................................................................................
GOVERNMENT OF SIKKIM
DEPARTMENT OF PERSONNEL, ADM.
REFORMS, TRAINING & PUBLIC GRIEVANCES
GANGTOK
No.06/GEN/DOP Dated: 11.4.2015
NOTIFICATION
Whereas the State Government has
deemed it expedient to fill up 25 (twenty
five) posts of Assistant Engineer (Civil) under
the Sikkim State Engineering (Civil, Electrical
and Mechanical) Service Rules, 1989 by way
of regularization of the services of Acting
Assistant Engineer;
And whereas under rule 7 of the
Sikkim State Engineering (Civil, Electrical and
Mechanical) Service Rules, 1989 (hereinafter
referred to as the said rules"), the method of
recruitment to the said post is as under:-
"(1) Subject to rule 6, recruitment to
the service after the appointed day shall be
by the following methods, namely:-
(a) By direct recruitment through a
competitive examination and/or selection by
interview to be held by the Commission.
(b) By Promotion through overall assessment
of Service records and interview to be held
by Commission from among persons holding
the post of Junior Engineer or any other post
or posts declared equivalent thereto by the
Government;
(2) The proportion of vacancies to be filled in
any year in accordance with clauses
(a) and (b) of sub-rule (1) shall be 50-50
respectively subject to review as the
Government may deem fit;
Provided that the number of persons
recruited under clause (b) of sub-rule (1)
shall not at any time exceed 50 percent of
the total strength of the service";
And whereas the State Government
has deemed it expedient to fill up 25 (twenty
five) posts of Assistant Engineer (Civil) by
relaxing the provision relating to the method
of recruitment provided under rule 7 of the
said rules and all other required conditions in
the matter of age, roster point, etc with the
view to utilize the existing provision of 50%
direct recruitment quota by way of
regularization of the services of Acting
Assistant Engineers;
And whereas rule 30 of the Sikkim
said rules provides for relaxation of the rules;
Now, therefore, in exercise of the
powers conferred by rule 30 of the Sikkim
State Engineering (Civil, Electrical and
Mechanical) Services Rules, 1989, the
Governor of Sikkim is hereby pleased to relax
the provision contained in rule 7 and 9 of the
Sikkim State Engineering (Civil, Electrical and
Mechanical) Services Rules, 1989 relating to
the method of recruitment and all other
required conditions in the matter of age,
roster point, etc, to utilize the existing
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
provision of 50% direct recruitment quota
with an view to fill up 25 (twenty five) posts
of Assistant Engineers (Civil) in the Sikkim
State Engineering (Civil, Electrical and
Mechanical) Service by way of regularization
of the services of Acting Assistant Engineers
in consultation with the Sikkim Public Service
Commission as one time relaxation.
BY ORDER AND IN THE NAME OF THE GOVERNOR
Sd/-
(K.K. Basnet)
Additional Secretary to the Government
DEPTT. OF PERSONNEL, ADM. REFORMS,
TRAINING & PUBLIC GRIEVANCES
................................................................................"
The seminal points that can be culled out from the
Notification is that, 25 (twenty five) posts of AEs were to be filled
up by way of regularisation of the services of the "Acting AEs" i.e.,
the private Respondents by relaxing the Rules as provided by Rule
30 of the Engineering Service Rules, 1989. Thus, the Government
by the Notification relaxed the Rules of recruitment as provided
under Rules 7(1)(a) and 7(1)(b) of the Engineering Service Rules,
1989, Rule 9 and other conditions pertaining to age and roster, of
the Engineering Service Rules, 1989, by invoking Rule 30 of the
same Rules.
(vii) Rules 7 and 9 of the Engineering Service Rules, 1989,
provides as follows;
"7. Method of Recruitment.─
(I) Subject to Rule 6,
recruitment to the Service after the
appointed day, shall be by the
following methods, namely,─
(a) By direct recruitment
through a competitive
examination and/or
selection by interview to
be held by the
Commission.
(b) By promotion through
limited departmental
Competitive
Examination to be held
by Commission from
among persons holding
the post of Junior
Engineer or any other
post or posts declared
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
equivalent thereto by
the Government.
(2) The proportion of
vacancies to be filled in any year in
accordance with clauses (a) and (b) of
sub-rule I shall be 66 2/3 : 33 I/3
respectively subject to review as the
Government may deem fit :
Provided that the number of
persons recruited under clause (b) of
sub-rule I shall not at any time
exceed 33 I/3 per cent of the total
strength of the Service.
.....................................................................
9. Conditions of Eligibility for
appearing at the Competitive
Examination.─
In order to be eligible to
appear in the interview or to compete
at the competitive examination, a
candidate must satisfy the following
conditions, namely.─
(a) Minimum Degree in Civil or
educational Electrical or
qualification. Mechanical
Engineering or
equivalent as the case
may be from a
recognized University.
(b) Age Should have attained
the age of 21 years
but should not have
exceeded the age of
30 years (in case of
Sikkim Government
servant, not more
than 40 years) on the
first day of year of
advertisement.
The maximum age
limit may be relaxed
up to 5 years in the
exceptional cases
where the applicant
possesses special/
professional
qualification and past
experience and in
respect of candidates
belonging to
Scheduled castes and
Scheduled Tribes in
accordance with
orders issued by the
Government from
time to time.
(c) Any other conditions
that may be specified by the
Government in consultation with the
Commission.
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(d) Should pay the fees, if
any, specified by the Commission."
The Rules are self explanatory. Thus, after relaxing the
provisions of Rules 7, 9, age and roster requirements of the
Engineering Service Rules, 1989, a technical evaluation and
personality test/interview was conducted by the Respondent No.2A
by a "Selection Committee" and not a "Departmental Promotion
Committee" as suggested in the letter addressed to the Secretary,
Sikkim Public Service Commission (SPSC) by the Additional
Secretary, Department of Personnel, Administrative Reforms,
Training and Public Grievances (DOPART) (Annexure R1-2). The
Selection Committee comprised of the Chairman, SPSC, Member,
SPSC, Principal Chief Engineer-cum-Secretary, Irrigation and Flood
Control Department, Principal Chief Engineer-cum-Secretary, Public
Health Engineering Department, Principal Chief Engineer, Roads
and Bridges Department, Additional Secretary of DOPART and an
Assistant Professor, NIT Rabongla. Pursuant thereto, the private
Respondents were selected and appointed to the post of AEs. It
was clarified in the Notification supra, that the quota utilised for
appointment of the private Respondents would be that which was
meant for direct recruitment. Pausing here briefly, the contention
put forth by Learned Senior Counsel for the Petitioners that the
entire Rules cannot be thrown overboard as done in the instant
case is unsubstantiated as the entire Rules were not relaxed, and it
was only those Rules as discussed above. The arguments of
Learned Senior Counsel that the appointments being illegal cannot
be regularised cannot be countenanced as the appointment of the
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
private Respondents initially and even by relaxation of the Rules
are not in contravention of the statutory rules.
(viii) Appositely, it may be reiterated that the power to relax
the Rules flows from Rule 30 of the Engineering Service Rules,
1989, which is extracted hereinbelow;
"30. 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 the provisions of these rules with
respect to any class or category of persons or post."
(ix) In State of Gujarat and Others vs. Arvindkumar T. Tiwari
and Another the Supreme Court observed 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. This principle was stated earlier in Ashok
Kumar Uppal and Others vs. State of J&K and Others17and State of
Maharashtra vs. Jagannath Achyut Karandikar .
(x) In J. C. Yadav and Others vs. State of Haryana and
Others the Hon‟ble Supreme Court held 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 create a situation where a particular individual or a
(2012) 9 SCC 545
(1998) 4 SCC 179
AIR 1989 SC 1133
AIR 1990 SC 857
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
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.
(xi) In Sandeep Kumar Sharma vs. State of Punjab and
Others , the Hon‟ble Supreme Court observed that 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.
That, arbitrary exercise of such power however must be guarded
against. But a narrow construction is likely to deny benefit to the
really deserving cases.
(xii) The observation of the Supreme Court in the plethora
of cases cited establish the aspect that the power to relax Rules is
the prerogative of the Government for various reasons as
enumerated above. Reliance on Ajit Kumar Bhuyan and Others
(supra) by Learned Senior Counsel for the Petitioner is misplaced
as in the said case an ex-cadre post was specifically created for the
promotion of Respondent No.1 over and above the existing posts
indicating undue favour. In the matter at hand, there were 33
substantive posts of AE (Civil) available for direct recruitment,
which were advertised and subsequently on the representation of
the private Respondents, twenty five posts were utilised for
accommodating the private Respondents after relaxation of Rules.
(xiii) It is not anyone‟s case that the private Respondents
lacked the requisite educational qualification for manning the
advertised posts of AEs. It is relevant to notice that despite
relaxation of the Rules in order to regularise the services of the
(1997) 10 SCC 298
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
private Respondents, they have faced a selection/evaluation test.
The argument of Learned Senior Counsel for the Petitioner that the
appointment of the private Respondents was sans the
recommendation of the Respondent No.2A is erroneous in light of
the documentary evidence furnished before this Court.
(xiv) Turning now to Rule 8 read with Rule 9 of the Sikkim
Government Establishment Rules, 1974, relied on by the State-
Respondents, which provides as follows;
"8. Seniority.-
.....................................................
(c) Where some appointments to a category
of posts are made through promotion and some by
direct recruitment, the order of inter-se seniority
between the promotees and the direct recruits shall
be determined by the date of first appointment
in/promotion to a class, service, category or grade as
the case may be.
.....................................................
9. Once an official is confirmed in a post, his name
shall be included in the seniority last (sic, list) of
permanent officials in the grade at the appropriate
place and his name shall simultaneously be deleted
from the list of officials in the immediate lower
category."
(xv) Rule 4 of the Sikkim State Services (Regulation of
Seniority) Rules, 1980, referred to in Rule 26 of the Engineering
Rules, 1989, prescribing for inter se seniority of members of the
service, are reproduced hereinbelow;
"26. Seniority.─
(I) There shall be drawn separate seniority
list of the three different Services specified under sub-
rule 2 of rule 3.
(2) The inter-seniority of the members in the
Service shall be determined in accordance with the
provisions laid down in the Sikkim State Services
(Regulation of Seniority) Rules, 1980 as amended
from time to time."
Rule 4 of the Sikkim State Services (Regulation of Seniority)
Rules, 1980 reads as follows;
"4. Determination of seniority.- The seniority of
the members of the Service shall be determined
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
separately in respect of each Service in the manner
specified below,-
......................................................................
(e) The relative seniority of direct recruits
and promotees shall be determined according to the
rotation of vacancies between direct recruits and
promotees and shall be determined by the dates of
their substantive appointment to the Service.
......................................................................"
The Rules succinctly speak for themselves regarding the inter
se seniority and the method of its determination and the fixation of
seniority of the Petitioners and the private Respondents are within
the ambit of the Rules, which have been adhered to.
(xvi) During the developments as delineated hereinabove
and consequent selection and appointment of the private
Respondents, the Petitioners were not inclined to put up a
resistance. It also transpires that on relaxation of the Recruitment
Rules on 11-04-2015, it was only after more than a year that the
technical evaluation and personality test/interview of the private
Respondents was conducted by the Selection Committee, which too
went unopposed. Following the above recommendations, on 01-
10-2016, vide Office Order bearing No.1549/G/DOP, the Governor
on the recommendation of the Respondent No.2A appointed the
private Respondents as AE with immediate effect. No objection
came to be raised. Evidently it was only when promotions of a few
officers from the private Respondents in the rank of AE to DE took
place, the Petitioners were disgruntled and petitioned the Chief
Minister, vide representation dated 10-09-2019, informing therein
that vide letter dated 13-08-2019 they had requested the
Respondent No.2 for finalisation of their inter se seniority between
AE‟s promoted on 01-10-2016, by regularisation of their services of
"Acting AE", vide Office Order dated 21-09-2016.
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(xvii) The representation made by the Petitioners to the
Hon‟ble Chief Minister itself reflects that the Petitioners were in the
know of the entire developments pertaining to the relaxation of
Rules and the resultant consequences, if not from 2015 when the
relaxation was made, then definitely from 2016, when the orders of
promotion were issued. The Petitioners by accepting the course of
the events that unfolded as revealed hereinabove, acquiesced to
the circumstances and the ranking of the private Respondents
above them in seniority.
11. Another issue that cannot be blindsided is the fact that
the appointment to the post of AEs for the private Respondents
was by way of utilisation of the posts reserved for the direct
recruits. This position is not assailed by the Petitioners. In the
correct and fair course of events, the State-Respondents ought to
have invited applications from the open market to allow
Engineering Graduates, to compete and be employed. The Rules of
direct recruitment were disregarded by the State-Respondents and
the private Respondents appointed as AEs by relaxing the Rules. It
was for the fresh Engineering Graduates, who had qualified as
such, to have opposed the policy adopted by the State-
Respondents of relaxing the Rules to accommodate the twenty five
Acting AEs to the substantial posts of AEs. That was not to be. Be
that as it may, the appointment of the private Respondents to the
post of AEs, vide Office Order dated 21-09-2016, did not impinge
on the quota of the promotees, i.e., the Petitioners.
(i) In K.R. Mudgal and Others vs. R. P. Singh and Others21 the
Supreme Court held that a seniority list which remains in existence
(1986) 4 SCC 531
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
for 3 to 4 years unchallenged should not be disturbed. The
relevant paragraph of which is as follows;
"2. At the outset it should be stated that it is
distressing to see that cases of this kind where the
validity of the appointments of the officials who had
been appointed more than 32 years ago is questioned
are still being agitated in courts of law. A government
servant who is appointed to any post ordinarily should
at least after a period of 3 or 4 years of his
appointment be allowed to attend to the duties
attached to his post peacefully and without any sense
of insecurity. It is unfortunate that in this case the
officials who are appellants before this Court have
been put to the necessity of defending their
appointments as well as their seniority after nearly
three decades. This kind of fruitless and harmful
litigation should be discouraged."
(ii) As early as in 1969, the Supreme Court while
considering the delay in seeking relief in service matters observed
in M/s. Tilokchand Motichand & Others vs. H.B. Munshi and Another22,
as follows;
"(10) If then there is no period prescribed what
is the standard for this Court to follow? I should say
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. I am not indicating any period
which may be regarded as the ultimate limit of action
for that would be taking upon myself legislative
functions. In England a period of 6 months has been
provided statutorily, but that could be because there
is no guaranteed remedy and the matter is one
entirely of discretion. In India I will only say that each
case will have to be considered on its own facts.
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."
(iii) In Rabindranath Bose and Others vs. The Union of India
and Others , the Supreme Court opined that it would be unjust to
deprive the Respondents of the rights which had accrued to them.
Each person ought to be entitled to sit back and consider that his
appointment and promotion which was effected a long time ago
would not be set aside after the lapse of a number of years.
(1969) 1 SCC 110
(1970) 1 SCC 84
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
(iv) In P. S. Sadasivaswamy (supra), 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. ..................."
(v) This Court in Tseten Palzor Bhutia (supra) had observed
as follows;
"37. .......... Law therefore leans in favour of the alert
and vigilant. It thus stands to reason from an
understanding of the ratiocinations extracted
hereinabove that although there can be no guarantee
of security in all walks of employment, it should at
least be possible to ensure that matters like a
person‟s position in the seniority list after having been
settled for once, should not be liable to be reopened
after lapse of many years at the insistence of a party
who has during the intervening period opted to
remain silent."
12. In the end result, it concludes with no ambiguity that
educational qualification can be the basis of classification for the
purposes of promotion and such classification does not fly in the
face of the constitutional provisions of Article 14 and Article 16.
13. The selection and appointment of the private
Respondents as AEs from Acting AEs was by way of utilisation of
the quota meant for direct recruitment after having faced the
rigours of an evaluation test, conducted by the Respondent No.2A.
Reliance on R. S. Garg (supra) by the Petitioners is also of no avail
as the private Respondents were appointed on the recommendation
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
of the Respondent No.2A, after having taken the test prescribed by
the Respondent No.2A. It is also evident that the Respondent
No.2A has the prerogative in terms of the Rules to either conduct a
written examination or to subject the candidate only to an
interview.
14. The Petitioners had the opportunity of raising
objections if they perceived unfairness in any of the acts of the
State-Respondents as detailed above, but they opted to do so only
on the promotion of Respondents No.3, 4, 6 and 7 as DEs.
15. The foregoing discussions soundly answers the two
questions formulated for determination.
16. It thus concludes that vigilantibus non dormientibus
aequitas subvenit lex, in other words equity aids the vigilant and
not those who sleep over their rights. „Laches‟ derived from the
French language meaning „remissness and slackness‟ involves
unreasonable delay. Acquiescence would mean a tacit or passive
acceptance [See Union of India and Others vs. N. Murugesan and Others
(2022) 2 SCC 25]. The conduct of the private Respondents points to
delay, laches and acquiescence.
17. Before closing the matter, it cannot but be remarked
that the appointment of the private Respondents is said to have
been made by regularising the post of "Acting AE" to AE by relaxing
the Rules. However, the Office Orders of the private Respondents
bear no reference to regularisation of their services. In fact, the
Office Orders appear to be for all intents and purposes fresh
appointments. It is beneficial to notice that the Memorandum
bearing No.11936/G/DOP, dated 17-09-2016 and Office Order
bearing No.1420/G/DOP, dated 21-09-2016 establish that no
Bijay Kumar Pradhan and Others vs. State of Sikkim and Others
reference has been made to regularisation of the services of the
private Respondents.
18. In any event, this is only an observation made by this
Court considering that the State-Respondents appear to be in a
quagmire about the mode of appointment of the Respondents. The
observation of this Court does not take away, in any manner, any
of the rights that may have accrued to the private Respondents in
their service career since inception.
19. Consequently, I am constrained to hold that the
Petitioners are not entitled to any of the reliefs claimed and the
Writ Petition thereby stands dismissed accordingly.
( Meenakshi Madan Rai )
Judge
07-07-2023
Approved for reporting : Yes
ds/sdl
