Sikkim High Court
Tseten Palzor Bhutia vs State Of Sikkim And Ors on 7 August, 2025
Author: Bhaskar Raj Pradhan
Bench: Chief Justice, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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DIVISION BENCH: THE HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.A. No. 9 OF 2022
Tseten Palzor Bhutia,
S/o Mr. Tseten Tashi Bhutia,
R/o Shyari,
Gangtok,
Sikkim - 737101. ..... Appellant
Versus
1. State of Sikkim,
Through the Secretary-cum-Commissioner,
Department of Personnel, ADM. Reforms,
Training and Public Grievances,
Government of Sikkim,
Gangtok, Sikkim - 737101.
2. Sikkim Public Service Commission,
Through the Secretary,
Old Tourism Complex,
Gangtok, Sikkim - 737101.
3. Director General of Police,
State Police Headquarters,
NH 10,
Gangtok, Sikkim - 737101.
4. Rinzing Chopel Rai,
Son of Shri Santa Bir Rai,
Resident of Shiv Mandir Road,
Chandmari,
Gangtok, Sikkim - 737101. ..... Respondents
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Appeal under Chapter V Rule 148 of the Sikkim High Court
(Practice and Procedure) Rules, 2011
[against the impugned judgment dated 27th June, 2022 passed by the learned Single
Judge in WP(C) No. 10 of 2020 (Tseten Palzor Bhutia vs. State of Sikkim & Others]
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2
WA. No. 09 of 2022
Tseten Palzor Bhutia vs. State of Sikkim & Others
Appearance:
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad, Ms Neha
Kumari Gupta and Ms Laxmi Khawas, Advocates for the Appellant.
Mr. Aarohi Bhalla, Additional Advocate General with Mr. Thinlay
Dorjee Bhutia, Government Advocate for the Respondents no.1 and 3.
Mr. Bhusan Nepal, Advocate for the Respondent No.2.
Mr. D.K. Siwakoti, Advocate for the Respondent No.4.
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JUDGMENT
( 7th August, 2025 )
Bhaskar Raj Pradhan, J.
The present writ appeal challenges the impugned
judgment dated 27.06.2022 passed by the learned single
Judge of this Court in Writ Petition (C) No. 10 of 2020.
2. The appellant had preferred the writ petition
assailing the offer of appointment dated 10.05.2016 made to
the respondent No. 4 and the appointment order dated
25.06.2016 appointing the respondent no.4 as Deputy
Superintendent of Police.
3. The appellant further prayed for setting aside
notification no. 106/Gen/DOP dated 02.08.2016 by which
the respondent no.4 had been placed at serial no.69 while
he was placed at serial no.70 in the inter-se seniority list.
The appellant prayed that necessary corrections be made in
Tseten Palzor Bhutia vs. State of Sikkim & Others
the Office Order dated 03.09.2019, by which the appellant
and the respondent no.4 were promoted to the posts of
Additional Superintendent of Police by placing the
respondent no.4 at serial no.1 instead of the appellant. The
appellant further prayed that the respondents be refrained
from taking steps on the Office4 Order dated 03.09.2019
and a fresh seniority list be published with necessary
rectification.
4. The relevant facts necessary for deciding the
present writ appeal are: on 12.09.2012, the respondent no.2
- the Sikkim Public Service Commission (for short, the
SPSC), issued an advertisement for filling up 25 posts of
Under Secretaries and equivalent, in the Junior Grade of the
Sikkim State Civil Service (for short, the SSCS). On
27.11.2012, by an addendum thereto, two posts of Deputy
Superintendent of Police were also included. There was no
mention of either a panel list or waiting list. The appellant as
well as the respondent no.4 along with other candidates
appeared for the preliminary examination conducted by the
SPSC on 20.07.2014 and the main examinations from
23.02.2015 to 26.02.2015. A combined merit list was
prepared thereafter on the marks obtained in the written
examination and viva-voce for the posts of Under Secretary
Tseten Palzor Bhutia vs. State of Sikkim & Others
as well as Deputy Superintendent of Police for the year
2015. In the merit list, one Barbara Lama with total marks
of 475 featured just before the respondent no.4 whose total
marks was 474. The appellant with 467 marks was 7(seven)
places below the respondent no.4. The SPSC published the
names of selected candidates vide notice dated 09.06.2015.
For the posts of Deputy Superintendent of Police, Ms
Barbara Lama, was selected in the unreserved category
while the appellant was selected in the reserved category of
Bhutia/Lepcha (for short, BL) as per the reservation policy.
The notice dated 09.06.2015 issued to the candidates who
were recommended for appointment specified that their
candidature was provisional subject to police verification,
medical fitness and verification of all required documents by
the State Government. Barbara Lama, however, was not
appointed to the post on the ground that she was not
entitled to the Certificate of Identification. The appellant
upon receipt of his appointment vide Office Order dated
09.11.2015 joined training at the North Eastern Police
Academy, Meghalaya from January 2016. His appointment
vide Office Order dated 09.11.2025 stated that his inter-se
seniority would be maintained as per the order of merit
declared by the SPSC vide its notice no. 93/SPSC/2015
dated 09.06.2015. According to the appellant, he later came
Tseten Palzor Bhutia vs. State of Sikkim & Others
to learn of the appointment of the respondent No.4 in the
post of Deputy Superintendent of Police vide Office Order
dated 25.06.2016 and of the notification dated 02.08.2016,
whereby in the inter-se seniority list of the Sikkim State
Police Service (for short, the SSPS), respondent no.4 was
placed at serial no.69 while he was placed at serial no.70,
thereby making him junior to respondent no.4. The
appellant then submitted a representation to the respondent
no.1 on 24.10.2017. However, in response, the respondent
no.1 informed him vide memorandum dated 07.04.2018 that
his prayer could not be considered as the inter-se seniority
was determined on merit based on the exam result declared
by the SPSC. Unsatisfied, the appellant filed the writ petition
on 06.03.2020.
5. The SPSC and the respondent no.4, filed their
respective counter-affidavits disputing the averments in the
writ petition. The respondent no.2 contended that the
candidature of respondent no.4 for the post of Deputy
Superintendent of Police was against the post notified for the
unreserved category while the appellant was selected in a
reserved category. It is contended that the petitioner had no
locus standi to challenge the appointment of respondent
no.4. The respondent no.2 in addition also clarified that the
Tseten Palzor Bhutia vs. State of Sikkim & Others
select list of candidates is not the merit list as erroneously
interpreted by the appellant.
6. On examination of the pleadings exchanged by
the parties as well as oral hearing, the learned Single Judge
concluded that the appointment of the respondent no.4 on
account of the cancelled candidature of Barbara Lama was
legal even in the absence of any panel list. The learned
Single Judge also opined that the inter-se seniority between
the appellant and the respondent no.4 was required to be
determined under Rule 4(c) of the Sikkim State Services
(Regulation of Seniority) Rules, 1980 under which the
seniority of members of the service who are recruited on the
result of the competitive examination in any year shall be
ranked inter-se in the order of merit in which their names
appear in the result of that competitive examination; those
recorded on the basis of the earlier examination shall rank
senior to those on the basis of later examination. The
learned Single Judge was of the considered view that the
bare reading of the notice dated 09.06.2015 issued by the
SPSC makes it clear that the list of selected candidates was
only provisional and their selection was subject to the
conditions laid down in the last paragraph thereto. Hence, if
any candidates did not fulfil any of the conditions their
Tseten Palzor Bhutia vs. State of Sikkim & Others
candidature would be cancelled. The learned Single Judge
also held that although the inter-se seniority was settled on
02.08.2016, the appellant made a representation only on
24.10.2017 which was rejected by the Government
respondent vide memorandum dated 07.04.2018 and
approached the Court on 06.03.2020 after a lapse of one
year and ten months with no reasons advanced for the
delay.
7. The writ appeal reiterates all the grounds taken in
the writ petition. It is contended that the appellant was
offered appointment to the post of Deputy Superintendent of
Police vide memorandum dated 06.10.2015 while the
respondent no.4 was appointed vide Office Order dated
25.06.2016. As such, the appellant ought to be senior to the
respondent no.4. It is also reiterated that the respondent
no.4 had made a representation before the respondent no.1
to appoint him to any of the two vacant posts as Barbara
Lama had been disqualified and Mega Nidhi Dahal did not
accept the offer of appointment. This representation was not
entertained by the respondent no.1 as there was no panel
list in the notice dated 09.06.2015. It was only when the
respondent no.4 preferred a writ petition before this Court
that the respondent no.1 issued the appointment order in
Tseten Palzor Bhutia vs. State of Sikkim & Others
his favour. The learned Senior Counsel for the appellant
submits that as Barbara Lama had been recommended for
appointment as per the merit list, the merit list would have
no relevance thereafter. Any appointment made for the post
due to the vacancy created by non-appointment of Barbara
Lama ought to be through a new recruitment process as
there was no provision for a waiting list or a panel list. As
the merit list had exhausted itself, the seniority of the
respondent no.4 could not be reckoned from a retrospective
date when he was not even born in the cadre. The appellant
contends that the learned Single Judge has failed to follow
the dicta of the Hon'ble Supreme Court in Vallampati Sathish
Babu vs. State of Andhra Pradesh and Ors.1. Relying upon the
judgment of the Hon'ble Supreme Court in Official Liquidator
vs. Dayanand & Ors.2, the appellant contends that the law
laid down by the Hon'ble Supreme Court is binding on all
Courts. He also relied upon the judgment of the Hon'ble
Supreme Court in Bihar State Electricity Board vs. Suresh
Prasad3. The learned Senior Counsel also contends that
when arguable points of fact and law are involved, hyper
technical view of delay and laches should not be taken.
(2022) 13 SCC 193
(2008) 10 SCC 1
(2004) 2 SCC 681
Tseten Palzor Bhutia vs. State of Sikkim & Others
8. In Dayanand (supra), the Hon'ble Supreme Court
held that by virtue of Article 141, the judgment of the
Constitutional Bench is binding on all Courts including the
Supreme Court till the same is overruled.
9. In Vallampati (supra), the appellant therein had
participated in the selection process for recruitment of
teachers when 33 posts were notified and recruitment
process initiated. The appointments were governed by the
Andhra Pradesh Direct Recruitment for the post of Teachers
(Scheme of Selection) Rules, 2012 (2012 Rules). Rule 16
thereof provided for preparation of selection list; sub-rule 5
of Rule 16 provided that number of candidates selected shall
not be more than number of vacancies notified. It also
provided that there shall be no waiting list and posts, if any,
unfilled for any reason whatsoever shall be carried forward
for future recruitment. The appellant participated in the
selection process and was placed at 34th position. The
respondents declared that candidates upto serial no.33, i.e.,
notified vacancies in the merit list are being selected and
invited them for counselling. One candidate who secured
18th rank did not turn up for counselling on the scheduled
date. Consequently, one post in general category remained
unfilled due to non-participation of the candidate who
Tseten Palzor Bhutia vs. State of Sikkim & Others
secured 18th rank. The appellant made a representation
seeking consideration of his candidature relying upon
guidelines issued. He was not offered employment.
Ultimately, the matter travelled to the Hon'ble Supreme
Court. The question decided was whether the appellant was
entitled to be appointed to the post which remained unfilled
due to one selected candidate not appearing for counselling.
On consideration of Rule 16 of the 2012 Rules read with the
guidelines it was held that once the final selection list is
prepared, there shall be no waiting list and posts, if any, are
unfilled for any reason whatsoever shall be carried forward
for further recruitment as per sub-rule (5) of rule 16 of the
2012 Rules.
10. In Suresh Prasad (supra), by an advertisement the
board (the appellant) notified 100 vacant posts of operators.
Written test and interviews were held. However, due to
certain reasons, the board issued a fresh advertisement
cancelling the previous advertisement and calling for
applications for filling up 50 posts of operators. This
advertisement was challenged in a writ petition. The High
Court directed the board to fill up 50% of the vacancies from
amongst the candidates who had applied pursuant to the
first advertisement and the remaining vacancies from the
Tseten Palzor Bhutia vs. State of Sikkim & Others
candidates who had applied pursuant to the subsequent
advertisement. The board notified the selection of 22
candidates pursuant to the first advertisement and 25
candidates pursuant to the subsequent advertisement.
However, out of the 22 candidates only 4 joined and 18 did
not turn up. The 18 vacancies remained unfilled. Thereafter,
7 respondents who had applied pursuant to the first
advertisement and had qualified in the written test and oral
interviews and were on the merit list at serial number 23
and downwards approached High Court contending that
since 18 out of 22 selected had not joined, the 7
respondents should be given appointment. The High Court
granted the relief. The board filed an appeal which was
allowed by the Division Bench of the Hon'ble Supreme
Court. A review petition was thereafter allowed and the order
of the Division Bench was recalled. The appeal came up
again before the Hon'ble Supreme Court. The Hon'ble
Supreme Court opined that in the case a panel of 22
candidates were prepared for appointment under the first
advertisement and the 7 respondents fell beyond the cut off
number. There are no statutory recruitment rules which
required the board to prepare the waiting list in addition to
the panel. No rule was shown in support of the respondents'
arguments that when 18 candidates failed to turn up, the
Tseten Palzor Bhutia vs. State of Sikkim & Others
appellant was bound to offer the posts to candidates in the
waiting list. It was held that there was no infirmity in the
judgment sought to be reviewed and there was no need to
recall the same.
11. The facts of the present case and the relevant law
considered are different from the facts and law decided in
Vallampati (supra) and Suresh Prasad (supra), and therefore,
the ratio therein, inapplicable.
12. The advertisement for the posts was issued on
12.09.2012. Invitation was made for 25 posts in the Sikkim
State Civil Service. On 27.12.2012, by an addendum to the
advertisement issued on 12.09.2012, two posts of Deputy
Superintendent of Police were included for combined
examination. It was specified that roster point 01 was for
unreserved category and roster point 02 was for BL category.
Pursuant to the advertisement, the candidates appeared for
written examination and viva-voce for the posts of Under
Secretary as well as the posts of Deputy Superintendent of
Police. Thereafter, the SPSC prepared the merit list in which
Barbara Lama topped the merit list in the unreserved
category for the post of Deputy Superintendent of Police. The
respondent no.4 featured next only to Barbara Lama in the
merit list but as there was only one post advertised for
Tseten Palzor Bhutia vs. State of Sikkim & Others
unreserved category Barbara Lama was recommended for
appointment subject to verification. The appellant on the
other hand was selected for the singular post reserved for
the BL category. Barbara Lama and the appellant were
recommended for appointment to the two posts of Deputy
Superintendent of Police as unreserved candidate and BL
candidate respectively vide notice dated 09.06.2015. This
notice specified that their candidature was provisional
subject to police verification, medical fitness and verification
of required documents by the State Government. During the
process of verification of the candidates recommended for
appointment, Barbara Lama was found unfit and the
recommendation withdrawn. In the meanwhile, the
appellant was issued memorandum dated 06.10.2015
offering appointment to the post of Deputy Superintendent
of Police. Thereafter, Office Order dated 09.11.2015 was
issued to the appellant appointing him as Deputy
Superintendent of Police.
13. The appointment of the respondent No.4 was not
an easy one. In the year 2015, the respondent no.4 had to
approach this Court by filing a writ petition for his non-
appointment seeking a direction to recommend his name as
per the merit list prepared by the SPSC. The State
Tseten Palzor Bhutia vs. State of Sikkim & Others
respondents initially resisted the writ petition. However, on
12.05.2016, this Court held the writ petition to be
infructuous as the State respondents issued memorandum
dated 10.05.2016 offering him appointment to the post of
Deputy Superintendent of Police.
14. It is, therefore, clear that the process of
recruitment which was initiated in the year 2012 had not
been completed when respondent no.4 was appointed in the
year 2016. The appellant as well as respondent no.4 had
appeared in the same written examination and viva-voce
pursuant to which the combined merit list prepared by the
SPSC reflected that the respondent no.4 was above the
appellant on merits. The appointment of the respondent
no.4 as Deputy Superintendent of Police in the unreserved
category cannot be questioned as he had successfully
appeared in the written examination and viva-voce and
featured in the merit list prepared by the SPSC. More so by
the Petitioner who belonged to the BL category. Rule 4(c) of
the Sikkim State Services (Regulation of Seniority) Rules,
1980, mandates that the inter-se seniority between the
appellant and the respondent no.4 would be determined as
per the order of merit in the merit list. As respondent no.4
featured above the appellant in the merit list, the seniority
Tseten Palzor Bhutia vs. State of Sikkim & Others
list dated 02.08.2016 in which the appellant is placed at
serial no.69 followed by the appellant at serial no.70 cannot
also be questioned. The lack of a panel list makes no
difference as the process of recruitment had not been
completed when the respondent no.4 was appointed. As
both the appellant and the respondent no.4 were selected
through the same selection process, the issuance of the
appointment order of the appellant before the respondent
no.4 makes no difference as Rule 4(c) of the Sikkim State
Services (Regulation of Seniority) Rules, 1980 required their
inter-se seniority to be determined as per the order of merit
and not from their date of appointment. This is not a case of
the respondent no.4 having been granted backdated
notional seniority. It is also not a case of retrospective
seniority given to the respondent no.4 from a date when he
was not born in the cadre. Contrary to the submission of the
appellant, the merit list in which the respondent no.4
featured above the appellant was as per the
recommendation of the SPSC. It is also not a case of
irregular appointment of the respondent no.4 as suggested.
The various judgments cited by the learned Senior Counsel
to support the above submissions have been examined and
found irrelevant as the facts of the present case are
completely different.
Tseten Palzor Bhutia vs. State of Sikkim & Others
15. The writ petition was filed on 06.03.2020. It
sought setting aside of memorandum dated 10.05.2016;
Office Order dated 25.06.2016; inter-se seniority list dated
02.08.2016 and correction of Office Order dated 03.09.2019.
The writ petition did not give any explanation to the delay in
filing the writ petition by making a statement that it did not
suffer from delay and laches. By memorandum dated
10.05.2016, the respondent no.4 was recommended for
appointment as Deputy Superintendent of Police and he was
appointed vide Office Order dated 25.06.2016. The inter-se
seniority between the appellant and the respondent no.4
was also determined vide notification dated 02.08.2016. The
Office Order dated 03.09.2019, was an order promoting both
the appellant as well as the respondent no.4 as Additional
Superintendent of Police in officiating capacity which would
not confer any right for regular promotion. Therefore, the
main grievance of the appellant stems from orders passed in
the year 2016 which was challenged in the year 2020. The
learned Single Judge has examined this question of delay
and laches at length by examining various judgments of the
Hon'ble Supreme Court. It has been held that 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
Tseten Palzor Bhutia vs. State of Sikkim & Others
intervening period opted to remain silent. The inter-se
seniority list which was settled on 02.08.2016 was
represented against only on 24.10.2017 by the appellant
and although the Government respondent vide
memorandum dated 07.04.2018 rejected the representation,
the appellant approached this Court only on 06.03.2020.
Even when the respondent no.4 filed his writ petition in the
year 2015, the appellant did not seek a stay of the
appointment of the respondent no.4 to the post of Deputy
Superintendent of Police and the legal notice was issued
only on 11.02.2019, without giving any reasons as to the
delay. It has been held that the respondent no.4 was not a
usurper to a public office but in fact, a victim of
circumstances and therefore, the argument that the doctrine
of delay and laches is inapplicable while adjudicating on the
issuance of a writ of quo warranto is of no relevance. In the
circumstances, we do not differ from the view taken by the
learned Single Judge that the writ petition is also rendered
nugatory on account of delay and laches.
16. In an intra-Court writ appeal, the Appellate Court
must restrain itself and the interference into the judgment
passed by the learned Single Judge is permissible only if the
judgment of the learned Single Judge is palpably perverse or
Tseten Palzor Bhutia vs. State of Sikkim & Others
suffers from an error apparent in law. We find no such
palpable perversity or error apparent in law.
17. Accordingly, the writ appeal stands dismissed.
(Bhaskar Raj Pradhan) (Biswanath Somadder)
Judge Chief Justice
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Internet: Yes
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