Sikkim High Court

Aakash Gurung And Ors vs State Of Sikkim And Ors on 22 September, 2025

Author: Meenakshi Madan Rai

Bench: Meenakshi Madan Rai

THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 22nd September, 2025
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.34 of 2023
Petitioners : Aakash Gurung and Others

versus

Respondents : State of Sikkim and Others

Application under Article 226 of the Constitution of India
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Appearance
Mr. Karma Thinlay, Senior Advocate with Mr. Yashir N. Tamang and
Mr. Zamyang N. Bhutia, Advocates for the Petitioners.
Mr. Zangpo Sherpa, Additional Advocate General with Mr. Sujan
Sunwar, Assistant Government Advocate for the Respondents No.1 to
3.
Mr. Bhusan Nepal, Advocate for the Respondent No.4.
None present for the Respondents No.5, 6, 7, 10, 17, 21, 22 and 23.
Ms. Gita Bista and Ms. Pratikcha Gurung, Advocates for the
Respondents No.8, 9, 11, 12, 14, 18, 19, 24, 25 and 26.
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad, Ms. Laxmi
Khawas and Ms. Neha Kumari Gupta, Advocates for the Respondents
No.13, 15, 16, 27 and 28.
Mr. Nirmal Thapa, Advocate for the Respondent No.20.
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JUDGMENT

Meenakshi Madan Rai, J.

1. The origins of the conflict, in this Petition, stem from a

correspondence, dated 14-09-2018 [Annexure P-13], of the

Controller of Examinations, Sikkim Public Service Commission

(Respondent No.4), addressed to the Commissioner-cum-Secretary of

the Department of Personnel, Administrative Reforms and Training

(Respondent No.2 herein, DOPART), informing that, the Interview

Committee had recommended Acting Assistant Engineers (Civil)

[hereinafter, ―AAEs (Civil)‖] for appointment to the post of Assistant

Engineers (Civil) [hereinafter, ―AEs (Civil)‖] ―through direct

Aakash Gurung and Others vs. State of Sikkim and Others

recruitment by way of regularisation‖. In terms of this

correspondence, Office Order bearing No.1717/G/DOP, dated 01-10-

2018 [Annexure P-10], was issued, which became the source of

disgruntlement amongst the Petitioners as instead of their names

being at the top of the list of selected AEs (Civil) as expected by

them, they were dispersed at various serial numbers of the list,

whereas some of the private Respondents' names were placed above

them, although the Petitioners were appointed as AAEs (Civil) much

earlier in time than the private Respondents, who were thereby junior

to them in service. The Petitioners perceive the act of the State-

Respondents as illegal, unjust and arbitrary, depriving them of their

legitimate rights and the creation of an erroneous inter se seniority

list.

(i) The Petitioners' narrative is that, the Petitioner No.1, a

degree holder, was appointed as Junior Engineer (Civil) [hereinafter,

―JEs (Civil)‖], vide Office Order dated 15-09-2004 [Annexure P-1

(colly)]. The rest of the Petitioners, also degree holders, were

appointed as JEs (Civil) on 05-05-2008 [Annexure P-1 (colly)].

(ii) On 21-05-2011, Notification No.391/GEN/DOP, was

issued by Respondent No.2 (DOPART) to fill up the posts of AEs

(Civil), by relaxing the method of recruitment and utilising the direct

recruitment quota of 50% [Annexure P-2]. This Notification was

rescinded on 17-06-2011 vide Notification No.401/GEN/DOP

[Annexure R-1].

(iii) Following this circumstance, vide Office Order dated 14-

10-2011, the Petitioner No.1 was appointed as AAE (Civil) and vide

Office Order dated 04-07-2012, Petitioners No.2, 3, 4, 5, 6 and 7

were also appointed as AAEs (Civil) while vide Office Order dated 17-

Aakash Gurung and Others vs. State of Sikkim and Others

09-2012, the Petitioners No.8, 9 and 10, were appointed as AAEs

(Civil), as their services were deemed essential in the wake of the

damage caused by the major earthquake that struck Sikkim in

September, 2011 [Annexure P-3 (colly)].

(iv) On 07-09-2012, the Respondent No.4 (SPSC) issued an

Advertisement inviting applications for filling up thirty-three posts of

AEs (Civil), by open competitive examination [Annexure P-4 (colly)].

The Petitioners submitted a representation to the Hon'ble Chief

Minister of the State inter alia expressing their reluctance to compete

with fresh Graduates by taking written examinations with them as the

Petitioners were engaged in important projects for the Government,

divesting them of time for preparations. On such representation, the

advertisement was abandoned by the State-Respondents.

(v) In the year 2013, Respondent No.2 (DOPART), vide

Notification No.80/GEN/DOP, dated 22-01-2013, upgraded thirty-six

posts of JEs (Civil), presently held by AAEs (Civil), to that of AEs

(Civil). The Notification reflected that such upgradation was subject

to the recommendation of the Respondent No.4 (SPSC) [Annexure P-

5 (colly)]. The Petitioners aver that, their names were amongst the

thirty-six AAEs (Civil) selected for upgradation to the post of AEs

(Civil) and reflected in the relevant list dated 22-01-2013, with the

name of the Petitioner No.1 at Sl. No.12 and the other Petitioners

from Sl. No.27 to 34 and at Sl. No.36 (Petitioners No.2 to 10)

[Annexure P-5 (colly)]. However, only twenty-five candidates were

appointed as AEs (Civil), vide Office Order No.1420/G/DOP, dated 21-

09-2016 [Annexure P-7], after relaxing the rules and utilising the

direct recruitment quota of 50%. The nine Petitioners herein (of

whom Petitioner No.10 is since deceased), were informed that, their

Aakash Gurung and Others vs. State of Sikkim and Others

non-selection was based on their lack of requisite years of

experience, while one Saroj Adhikari, a 2005 appointee, was selected

instead of Petitioner No.1, who was a 2004 appointee. The Petitioner

No.1 objected to this circumstance, vide letter dated 05-05-2015

addressed to the Respondent No.2 [Annexure P-8], to no avail. The

Petitioners aver that, thereafter, they were assured priority in

regularisation and seniority, over the rest of the JEs (Civil), by the

Respondent No.2 (DOPART). In the interim, it is alleged that the

State Respondents continued to create posts of AAEs (Civil) till June,

2017, to handpick their candidates.

(vi) It is further averred that, in 2018, thirty-five posts of AEs

(Civil) were notified, vide Notification No.79/GEN/DOP, dated 16-08-

2018, for ―regularisation of the services of the AAEs‖, by again

relaxing the rules and utilising the direct recruitment quota of 50%

[Annexure P-9]. An interview was accordingly conducted by the

Respondent No.4 (SPSC) on 08-09-2018, which gave rise to the

impugned communication dated 14-09-2018 [Annexure P-13] and the

impugned Office Order with list, dated 01-10-2018 [Annexure P-10].

Objecting to such arbitrariness, as surmised by the Petitioners in the

placement of seniority, they seek the following reliefs;

(A) Admit the petition, call for records and issue notice 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 State Respondents.

(B) Quash the Office Order No.1717/G/DOP, dated 01-10-2018, that placed the Petitioners and private Respondents in the same inter se seniority list, despite the Petitioners being appointed as Acting Assistant Engineers (Civil) much earlier than the private Respondents.

Aakash Gurung and Others vs. State of Sikkim and Others

(C) Quash the letter dated 14-09-2018 sent from Sikkim Public Service Commission to Department of Personnel, Government of Sikkim.

(D) Fix the inter se seniority of the Petitioners above the private Respondents and in the order of their appointment as Acting Assistant Engineers (Civil).

(E) To stay any and all promotions of the private Respondents to the post of the Divisional Engineer (Civil) till the conclusion of the present petition.

(F) To modify the recommendation from the SPSC dated 14-09- 2018 to the extent of placing the Petitioners as seniors to the private Respondents in the same order of merit.

(G) Quash the appointment of the private Respondents as Acting Assistant Engineers vide Order dated 04-03-2014, Order dated 01-07-2015, Order dated 07-07-2015 and Order dated 27-06-2017 passed by the Department of Personnel.

(H) To modify the Office Order No.1420/G/DOP dated 21-09- 2016 to the extent of placing the Petitioner No.1 in the same Office Order in any order of seniority as the earlier appointee.

(I) Pass any order or direction as the Hon'ble Court may deem fit to grant in the interest of justice, equity and fair conscience.

2. Records reveal that private Respondents No.5, 6, 7, 10,

17, 21, 22 and 23 failed to enter appearance despite due service of

Notice and continued to remain unrepresented even till the date of

hearing of final arguments and its conclusion.

3. Affidavits were exchanged, viz; Joint Counter-Affidavit

was filed on behalf of the State-Respondents No.1 and 2.

(i) A separate Counter-Affidavit each was filed by the State-

Respondent No.3, Roads and Bridges Department, Government of

Sikkim and Respondent No.4, Sikkim Public Service Commission.

Aakash Gurung and Others vs. State of Sikkim and Others

(ii) Private Respondents No.8, 9, 11, 12, 14, 18, 19, 24, 25,

26 filed their joint Counter-Affidavit, while Private Respondents

No.13, 15, 16, 27, 28 also filed their joint Counter-Affidavit.

(iii) Private Respondent No.20 filed a separate Counter-

Affidavit.

(iv) By filing Rejoinder to the Counter-Affidavits of the

Respondents, the Petitioners reiterated the averments in their Petition

and urged that their only prayer is to place them higher in seniority

than the private Respondents who were appointed in the year 2018,

as they being degree holders have lost their seniority to diploma

holders, while other Engineers in the same seniority list were

regularised in the year 2016 itself.

4. Learned Senior Counsel for the Petitioners drawing the

attention of this Court to the various dates in the Writ Petition and

emphasising on the ―Doctrine of Legitimate Expectation‖, urged that,

injustice was meted out to the Petitioners as they were Graduate

Engineers, appointed as JEs (Civil) much ahead in time than the

private Respondents. The Petitioners were earlier not considered

against the vacancy of thirty-six posts, although the list dated 22-01-

2013 bore their names and specified that their posts were upgraded,

which was confirmation that the posts held by the Petitioners were

deemed to have been upgraded to that of AEs (Civil) and was only

awaiting recommendation of the Respondent No.4 (SPSC). This can

also be culled out from the fact that, their names had already been

removed from the list of JEs (Civil) in the year 2013. Reiterating the

averments detailed in the Petition, it was urged that in Army Welfare

Education Society New Delhi vs. Sunil Kumar Sharma and Others1 the

2024 SCC OnLine SC 1683 (Paragraphs 47 and 48)

Aakash Gurung and Others vs. State of Sikkim and Others

Supreme Court laid down that legitimate expectation is a device to

maintain a check on State arbitrariness, as in the instant case, where

seniority of the Petitioners has been ignored and the private

Respondents given preference in such placement. Strength on this

count was also drawn from the decision in Confederation of Ex-

Servicemen Associations and Others vs. Union of India and Others .

(i) It was urged that vide a communication dated 15-02-

2013, the Respondent No.3, issued a Provisional Seniority List of

Graduate JEs (Civil) dated 31-01-2013 and sought objections from

the Petitioner No.3 [Annexure P-6]. No objection was raised by them

as they were probationers at the relevant time and the Sikkim State

Engineering (Civil, Electrical & Mechanical) Services Rules, 1989

(hereinafter, ―Engineering Service Rules of 1989‖), at Rule 23, are

harsh and could well have deprived the Petitioners of their

employment, hence, the silence, on apprehension of losing their

employment.

(ii) It was reiterated by Learned Senior Counsel that,

Notification bearing No.79/GEN/DOP, dated 16-08-2018, was issued

for recruitment in thirty-five posts of AEs (Civil), by relaxation of the

rules, indicating the provision for mandatory written examinations,

but instead an interview was conducted by the Respondent No.4

(SPSC), who by the impugned letter dated 14-09-2018, intimated to

the Respondent No.2 (DOPART) that, the merit list was based on

marks obtained by the candidates in the interview and seniority was

arranged in order of merit [Annexure P-13]. To their disappointment,

the Petitioners discovered that, they were placed in the same inter se

seniority list (supra), with most of the private Respondents being

(2006) 8 SCC 399

Aakash Gurung and Others vs. State of Sikkim and Others

placed above the Petitioners despite their seniority. The Petitioners

were under the impression that post the interview the seniority would

only be reshuffled amongst themselves, on account of their initial

dates of appointment. That, the seniority of the previous JEs (Civil)

regularised on 21-09-2016 had been affected without any change in

their seniority list, while a different criteria was applied to the

Petitioners, with junior candidates handpicked, under the pretext of

arranging the seniority on merit.

(iii) Relying on the ratio in Babita Rani vs. Punjabi University,

Patiala and Others , Learned Senior Counsel contended that, the

interview was arbitrarily conducted the criteria for assessment or

marks of the interview have not been disclosed to the Petitioners till

date. On this facet, Learned Senior Counsel also placed reliance on

R. Chitralekha and Another vs. State of Mysore and Others . Persisting

on the unfairness of the interview in his submissions, strength was

drawn from Ajay Hasia and Others etc. vs. Khalid Mujib Sehravardi and

Others etc. wherein it was held that, oral interview was not

satisfactory and should not be relied upon as an exclusive test.

(iv) While bolstering his arguments with strength drawn from

Ajay Kumar Shukla and Others vs. Arvind Rai and Others , Learned Senior

Counsel raised the contention that, although it is settled law that

challenges to seniority in service jurisprudence should be made within

three to four years of such grievance, however no bar exists in

assailing the seniority if it is found to be prima facie illegal or unjust,

provided that the delay is explained. Making efforts to explain the

delay, it was reiterated that, during the years 2019 and 2020 the

2011 SCC OnLine P&H 15349

AIR 1964 SC 1823

AIR 1981 SC 487

(2022) 12 SCC 579

Aakash Gurung and Others vs. State of Sikkim and Others

Petitioners were under the probationary period of service and did not

seek to antagonise the Government as already contended (supra).

Thereafter, the COVID-19 Pandemic in 2020 and 2021 made it

difficult for the Petitioners to pursue their legal rights, besides, the

Supreme Court has by a judicial order, directed the Courts to

condone the delay from 15-03-2020 to 28-02-2022. Numerous

representations emphasising the grievances of the Petitioners were

also filed before the State Government in the years 2022 and 2023

with no result. Ultimately, the Petitioners issued a legal notice dated

20-07-2023 to the Respondents No.1 to 4, seeking redressal of their

grievances [Annexure P-14] again to which no heed was paid. That

this Court can mould the relief where it is so warranted, this

argument was advanced garnering strength from J. Ganapatha and

Others vs. M/s. N. Selvarajalou Chetty Trust Rep. by its Trustees and

Others . The Petitioners having exhausted the alternatives were

constrained to file the instant Writ Petition, their fundamental rights

enshrined under Articles 14, 19 and 21 of the Constitution of India

having been violated for the foregoing detailed reasons. That, the

Petitioners being entitled to the reliefs, may be granted the same.

5. Learned Additional Advocate General appearing for the

State-Respondents No.1 to 3, repudiated the submissions of Learned

Senior Counsel for the Petitioners and canvassed the contention that,

reliefs sought at prayer (H) of the Writ Petition seeks modification of

the Office Order No.1420/GEN/DOP, dated 21-09-2016 [Annexure P-

7] and to place Petitioner No.1 in the same Office Order and order of

seniority. The persons listed in the said Office Order have not been

made parties to the Writ Petition, on this ground alone the Writ

2025 Live Law (SC) 353 : 2025 SCC OnLine SC 633

Aakash Gurung and Others vs. State of Sikkim and Others

Petition deserves a dismissal, this submission was fortified by reliance

on Ranjan Kumar and Others vs. State of Bihar and Others8. That, the

Petitioners were well aware of the steps being taken by the

concerned Department, so far as regularisation and seniority were

concerned, which is reflected in the representation of the Petitioner

No.1, dated 05-05-2015, addressed to the Respondent No.2

(DOPART) [Annexure P-8]. The Writ Petition was however filed

belatedly, only in the year 2023. Notification No.80/GEN/DOP, dated

22-01-2013 [Annexure P-5 (colly)], nowhere envisaged or declared

specifically that, the posts of the Petitioners were being upgraded or

regularised, by mention of their names. This is an incorrect

assumption of the Petitioners. Relying on the decision of Tajvir Singh

Sodhi and Others vs. State of Jammu and Kashmir and Others it was

contended that the Petitioners having submitted to the interview

process without demur, cannot raise objections belatedly now, nor

can they claim seniority over candidates who obtained better marks

and were placed higher in merit. Reliance was also placed on Om

Prakash Shukla vs. Akhilesh Kumar Shukla and Others and Madan Lal

and Others vs. State of J&K and Others on this facet. That, the Writ

Petition ought to be dismissed on this ground alone.

(i) The next point raised was that, the appointment of the

Petitioners in the year 2018 was made by way of relaxation of rules,

utilising the direct recruitment quota and selection based on merit.

The Petitioners cannot claim seniority merely on having been given

charge as AAEs (Civil) temporarily, when they were not even born in

the cadre of AEs (Civil) and were holding lien to the posts of JEs

(2014) 16 SCC 187

(2023) 17 SCC 147

1986 (Supp) SCC 285

(1995) 3 SCC 486

Aakash Gurung and Others vs. State of Sikkim and Others

(Civil). Their seniority would therefore be reckoned only from the

date of their substantive appointment as AEs (Civil), in the year

2018. That, the Petitioner No.1 was well aware of his seniority from

2013 on issuance of Notification No. No.80/GEN/DOP, dated 22-01-

2013 [Annexure P-5 (colly)]. Moreover, issues raised by the

Petitioners in the instant Writ Petition have already been decided by

this Court in Bijay Kumar Pradhan and Others vs. State of Sikkim and

Others . Learned Counsel also clarified and reiterated the stance of

the State-Respondents as averred in their Counter-Affidavit in the

context of seniority, relaxation of the recruitment rules and the

consequent direct recruitment of the Petitioners. The Petition, for the

foregoing reasons, deserves a dismissal.

6. Learned Senior Counsel for the Respondents No.13, 15,

16, 27 and 28 while also agreeing with and adopting the submissions

advanced by Learned Additional Advocate General, reiterated the

facts as detailed in the Counter-Affidavit of the aforementioned

Respondents. It was argued that the order of merit suffers from no

illegality. The Petitioners cannot now claim seniority on grounds of

appointment as ―AAEs (Civil)‖ prior to the Respondents, as the word

―Acting‖ is unknown to the service rules governing the parties and the

Petitioners' appointment as AAEs (Civil) confers no right on them to

claim confirmation as AEs (Civil) or to claim seniority over the

Respondents. The post of AAEs (Civil) is not a promotional post from

JEs (Civil), their lien being to the post of JEs (Civil) as evident from

their Office Orders of AAEs (Civil) [Annexure P-3 (colly)]. Mere

removal of the names of the Petitioners from the list of JEs (Civil) did

not suggest confirmation of their promotions. Promotion to the post

2023 SCC OnLine Sikk 65

Aakash Gurung and Others vs. State of Sikkim and Others

of AEs (Civil) from that of JE was based on the recommendation of

the Respondent No.4 as seen in Notification No.80/GEN/DOP, dated

22-01-2013 [Annexure P-5 (colly)]. The Petitioners having

participated in the interview conducted by Respondent No.4, cannot

seek discarding of the order of merit. Seeking to distinguish between

promotion and upgradation and urging that the Petitioners were

promoted on the recommendation of Respondent No.4 (SPSC),

reliance was placed on B. Thirumal vs. Ananda Sivakumar and Others13.

The Petitioners' contention that, assurances were given to them by

the Government to prioritise their regularisation and seniority cannot

be countenanced, in the absence of documents to bolster this

submission. As the Petitioners claimed reliefs against persons

appointed in 2016, but they have not been impleaded as parties,

including one Saroj Adhikari, hence this Petition is not maintainable.

The Petitioners having knowingly participated in the interview, they

cannot raise an objection after more than five years of the

appointments and having joined their respective postings. This

submission was fortified by the observation of this Court in Tseten

Plazor Bhutia vs. State of Sikkim and Others which held that the law

leans in favour of the alert and on K. R. Mudgal and Others vs. R. P.

Singh and Others to substantiate the argument that seniority list

which remains in existence unchallenged for three to four years

should not be disturbed. It was also pointed out that the Supreme

Court in M/s. Tilokchand Motichand and Others vs. H. B. Munshi and

Another observed that delay will hold the party disentitled to invoke

the extraordinary jurisdiction. Strength was also drawn from

(2014) 16 SCC 593

2022 SCC OnLine Sikk 67

(1986) 4 SCC 531

(1969) 1 SCC 110

Aakash Gurung and Others vs. State of Sikkim and Others

Rabindranath Bose and Others vs. The Union of India and Others , where

it was exposited that appointment and promotion which was effected

a long time ago would not be set aside after a lapse of a number of

years. Similarly in P. S. Sadasivaswamy vs. State of Tamil Nadu18 the

Supreme Court observed that, a person aggrieved by an order of

promotion of a junior over his head, should approach the Court at

least within six months or a year of such promotion and not after a

lapse of fourteen years. It was next contended that this Court has

already dealt with inter se seniority and merit list involving the

Petitioners in Bijay Kumar Pradhan (supra) and the matter given a

quietus therein. That, delay and laches ails the Writ Petition and

directions of the Supreme Court pertaining to extension of limitation

in Suo Motu Writ Petition (C) No.03 of 2020 relied on by the

Petitioners is inapplicable to their case, the cause of action herein

having arisen prior in time to the said orders, hence no benefit

thereto accrues to them.

7. Learned Counsel for the Respondents No.8, 9, 11, 12, 14,

18, 19, 24, 25 and 26, while endorsing the submissions advanced by

the Learned Additional Advocate General and Learned Senior Counsel

for the Respondents No.13, 15, 16, 27 and 28, added that, when the

names of only twenty-five candidates were incorporated and

appointments made on 21-09-2016 as reflected in the Judgment of

Bijay Kumar Pradhan (supra), the Petitioners although evidently

aggrieved with their non-appointment opted not to raise objections.

Individuals selected and appointed vide the Order dated 21-09-2016

are not parties to the present proceedings, thereby rendering the Writ

Petition as not maintainable. The Petitioners have also not impugned

(1970) 1 SCC 84

(1975) 1 SCC 152

Aakash Gurung and Others vs. State of Sikkim and Others

the Notification dated 16-08-2018 [Annexure P-9] in the present

proceedings, when it forms the very foundation of the selection

process as it relaxes the rules of direct recruitment. The

Memorandum of appointment was served upon the Petitioners and

the private Respondents on 14-09-2018, which was accepted by all

without protest, although there was no bar to any candidate from

assailing the legality of the appointments. The sole grievance of the

Petitioners seeking placement above the private Respondents is

untenable, the Petitioners having participated in the viva-voce, the

appointments made on merit and the objections raised rather

belatedly. Hence, the Petition deserves to be dismissed. Learned

Counsel buttressed her submission with reliance on the same

Judgments cited by Learned Senior Counsel for the Respondents

No.13, 15, 16, 27 and 28.

8. Learned Counsel for the Respondent No.20 endorsed the

submissions made by the preceding Counsel for other Respondents.

9. Due consideration has been afforded to the rival

contentions advanced by Learned Counsel for the parties. I have also

carefully perused all averments and documents relied upon and the

citations made at the Bar.

10. The questions that fall for consideration of this Court are;

(i) Whether the Doctrine of Legitimate Expectation is applicable to the facts and circumstances of the Petitioners' case?

(ii) Whether the services of the Petitioners, by the impugned Order, fall within the ambit of upgradation, promotion or direct recruitment?

(iii) Whether the Writ Petition has been filed belatedly and is hit by the Doctrine of Delay and Laches?

Aakash Gurung and Others vs. State of Sikkim and Others

(iv) Whether the reliefs sought for by the Petitioners can be moulded?

(v) Whether the Petitioners can challenge the process of examination having appeared in it?

(vi) Whether the Writ Petition was defective for non-

impleadment of necessary parties?

11. While determining Question no.1 hereinabove, on doctrine

of legitimate expectation, it is relevant to notice that the Doctrine of

Legitimate Expectation has its genesis in the English Law, which

extended judicial review in administrative actions, to protect

procedural and substantive interest, when a public authority rescinds

from a representation made to a person. It has its foundation on the

principles of natural justice and fairness and seeks to prevent

authorities from abusing powers. In Sivanandan C. T. and Others vs.

High Court of Kerala and Others the Supreme Court went on to explain

the principle as follows;

"18. The basis of the doctrine of legitimate expectation in public law is founded on the principles of fairness and non-arbitrariness in Government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. The doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure. [Salemi v. MacKeller (No. 2), 1977 HCA 26 : (1977) 137 CLR 396] ..................................................................

24. By the 1990s, the Indian courts incorporated the doctrine of legitimate expectation in the context of procedural fairness and non-arbitrariness under Article 14 of the Constitution. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71], this Court held that public authorities have a duty to use their powers for the purposes of public good . This duty raises a legitimate expectation on the part of the citizens to be treated in a fair and non-arbitrary manner in their interactions with the State and its instrumentalities. This Court held that a decision taken by an executive authority without considering the legitimate expectation of an affected person may amount to an abuse of power: (SCC p. 76, para 7)

(2024) 3 SCC 799

Aakash Gurung and Others vs. State of Sikkim and Others

―7. ... To satisfy this requirement of non-

arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.‖ The Court held that whether the expectation of a claimant is legitimate or not is a question of fact which has to be decided after weighing the claimant's expectation against the larger public interest. Thus, while dealing with the claims of legitimate expectations, the court has to necessarily balance the legitimate expectation of a claimant against the larger public interest." [emphasis supplied]

The doctrine of legitimate expectation has thus been soundly

elucidated hereinabove.

(i) In Jitendra Kumar and Others vs. State of Haryana and

Another it was observed that the doctrine is grounded in the rule of

law as requiring regularity, predictability and certainty in the

Government's dealings with the public. It was observed that while

differentiating between legitimate expectation on the one hand and

anticipation, wishes and desire on the other, legitimate expectation is

not the same thing as an anticipation. It is distinct and different from

desire and hope. In Army Welfare Education Society (supra) the

Supreme Court elucidated exhaustively the doctrine of legitimate

expectation and propounded that it was jurisprudentially a device

created in order to maintain a check on arbitrariness in state action.

In Confederation of Ex-Servicemen Associations (supra) it was held as

follows;

"35. In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted

(2008) 2 SCC 161

Aakash Gurung and Others vs. State of Sikkim and Others

a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised." [emphasis supplied]

(ii) On 22-01-2013, Notification No.80/GEN/DOP, was issued

by Respondent No.2 for upgradation of thirty-six posts of JEs (Civil).

These upgraded posts, were to be filled up through promotion on the

recommendation of the Respondent No.4. This Notification does not

refer to the Petitioners by name. It is no more res integra that any

Statute, Order, etc., is to be read and understood as it appears

without reading any specific interpretation or desired interpretation

into them. Thus, the argument that the upgraded posts were

specifically for those persons mentioned in the list of thirty-six degree

holder JEs (Civil) cannot be countenanced, besides as required by the

Notification, Respondent No.4 had not yet recommended their names

to the said upgraded posts.

(iii) Consequently it emerges that, the Petitioners have failed

to establish as to how they had legitimate expectation or how the

State-Respondents rescinded from a representation made to them.

The act of the State-Respondents in the previous selection and

appointment of twenty-five Engineers, was by way of relaxation of

the recruitment rules and utilisation of the direct recruitment quota of

50%. The selection of AEs (Civil) was then made by an interview,

similar to the process of appointment adopted for the Petitioners.

Mere removal of their names from list of JEs (Civil) cannot be said to

be the foundation for legitimate expectation as the order of AAEs

unequivocally mentions that their lien shall be to the post of JEs. The

conduct of the State-Respondents towards aspirants in 2016 and in

2018 has been consistent. Besides, the Petitioners cannot interpret

the Notification No.80/GEN/DOP, dated 22-01-2013 [Annexure P-5

Aakash Gurung and Others vs. State of Sikkim and Others

(colly)], to suit their interest as it is mentioned in no uncertain terms

that the promotions would be based on the recommendation of

Respondent No.4 (SPSC). No promises with regard to seniority have

been held out by the State-Respondents to the Petitioners by the said

Notification nor has any document been furnished in this context.

The wishes and desires of the Petitioners cannot translate to

legitimate expectation in the absence of any express or implied

promise made by the State-Respondents to them more especially

when it is sans inconsistencies with previous modes of recruitment.

The appointments with which the Petitioners are aggrieved, having

gone unchallenged cannot be assailed now. Hence, the invocation of

the doctrine by the Petitioners lends no fortification to their case and

is thereby inapplicable.

12. While discussing Question no.2; ―Whether the services of

the Petitioners, by the impugned Order, fall within the ambit of

upgradation, promotion or direct recruitment?‖, the Supreme Court in

Union of India and Others vs. S. D. Gupta and Others observed that the

object of direct recruitment is to blend talent and experience to

augment efficiency when direct recruits, though came from green

pastures, were imbued with dedication and honesty. It was also

explained that the recruitment by direct mode is to substantive

vacancies though their initial appointment is temporary and on

completion of period of probation they become substantive

appointees.

(i) In this thread, it would be worthwhile to notice that in

Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy and Others

(1996) 8 SCC 14

(2011) 9 SCC 510

Aakash Gurung and Others vs. State of Sikkim and Others

the Supreme Court distinguished between promotion and upgradation

and held as follows;

"29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity.

Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both--that is, advancement to a higher position and advancement to a higher pay scale--are described by the common term ―promotion‖, does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.

(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.

(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two.

Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense, that is, advancement to a higher pay scale.

(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service.

Upgradation can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records

Aakash Gurung and Others vs. State of Sikkim and Others

may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.

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

(ii) On the bedrock of this pronouncement, it is apparent that

the Petitioners cannot be said to be ‗upgraded' as there was a

selection process. The fact that, there was relaxation of the direct

recruitment rules and the quota of direct recruitment of 50% of AEs

(Civil) was to be filled by JEs, is reflective of the fact that the

Petitioners were promoted to the post of AEs. Hence, the argument

of the Learned Additional Advocate General that their appointments

were direct recruitment cannot sustain, as rules pertaining to

appointments for direct recruitment were relaxed and such quota was

used for promotion of the Petitioners who were already in service,

having been appointed as JEs initially.

(iii) The Petitioners have harped on their seniority and

deprivation of their rights thereto by the State-Respondents by

placing the private Respondents above them. As can be seen from

Bharat Sanchar Nigam Limited (supra) the advancement to a higher pay

scale with a process of selection it will be a promotion. The selection

is based on merit. The law regarding seniority is no more res integra

and on this facet we may carefully refer to the following decisions;

(a) In Ajay Kumar Shukla (supra), the Supreme Court therein

was dealing with the case of Junior Engineers in the Department of

Minor Irrigation, State of Uttar Pradesh (Irrigation Department), who

were aggrieved by the final seniority list dated 05-03-2010 and

challenged the same in the High Court. In the said matter, after

Aakash Gurung and Others vs. State of Sikkim and Others

selection of the Junior Engineers in the posts of Agricultural

Engineering, Mechanical Engineering and Civil Engineering, the three

separate lists of selected candidates were forwarded by the U.P.

Public Service Commission to the Irrigation Department. The selected

list of candidates for Agricultural Engineering was forwarded on 28-

09-1999, for Mechanical Engineering on 06-01-2000 and for Civil

Engineering on 07-11-2000. Based on the three selection lists,

appointment letters were issued on 08-10-2001. On 17-03-2006, a

tentative seniority list was published, followed by a final seniority list

on 05-09-2006. The Office Order inter alia reflected that, the

seniority of the selected candidates had been kept in order of merit.

In 2009, a fresh seniority list was prepared. On 29-12-2009,

objections were invited to the provisional seniority list, which were

accordingly received. On 05-03-2010, a final seniority list was

published. It came to light that the mode of preparation of the

seniority list was as hereunder; if there were thirty candidates in the

agricultural stream, all those candidates were placed from Sl. No.1 to

30, in the order as it was received. If 20 candidates were in the

Mechanical List, they were placed en bloc in the following serial

numbers as received from the Commission, i.e., from Sl. No.31 to 50

and if there were 50 in the Civil stream they were placed below the

Mechanical List with Sl. No.51 to 100 in the same sequence as

forwarded by the Commission. It is this en bloc placement of seniority

without consideration of merit that was challenged. The facts in the

instant case are distinguishable as it is no one's case that the

Petitioners were placed en bloc below the private Respondents,

without consideration of individual marks and merit. It is not denied

that Respondent No.4 (SPSC) conducted an interview to assess the

Aakash Gurung and Others vs. State of Sikkim and Others

merit of the candidates, upon which, the list was prepared and the

Petitioners have been interspersed with the private Respondents in

terms of seniority, based on merit.

(b) In State of Tamil Nadu and Another vs. E. Paripoornam and

Others it was laid down that, when temporary appointments in

public interest are made by the Government owing to an emergency,

once they are appointed in accordance with the rules they are not entitled

to count their temporary service for seniority . The Supreme Court

observed that;

"14. Apart from that, Rule 10(a)(i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules. In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count their temporary service for seniority. In A.P.M. Mayankutty v. Secretary, Public Service Department [(1977) 2 SCC 360] this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop-gap, emergency or fortuitous arrangement. The present case cannot be an exception to this principle even though their temporary services have been regularised, since regularisation was only for limited purposes." [emphasis supplied]

(iv) Similarly, although the same rules supra cited in the

Judgment (supra) do not apply to the instant matter, it is the

principles enunciated therein that are being culled out for

consideration. The Petitioners' promotion being based on the

Engineering Service Rules of 1989 and relaxation of the rules of direct

recruitment, they cannot base their seniority on the circumstances of

having been appointed as AAEs (Civil) temporarily, as their lien to the

post of JEs (Civil) is categorical and expressed in their order of

appointment as AAEs (Civil). They were appointed in place of direct

1992 Supp (1) SCC 420

Aakash Gurung and Others vs. State of Sikkim and Others

recruitees on the basis of an interview. Their seniority is

unequivocally dependent on the assessment of the interview

conducted by the Committee constituted by Respondent No.4 (SPSC)

as clearly mentioned in Notification No.80/GEN/DOP, dated 22-01-

2013 [Annexure P-5 (colly)]. In view of the foregoing discussions,

Question No.2 stands determined accordingly.

13. Now, addressing Question No.3 - Whether the Writ

Petition has been filed belatedly and is hit by the doctrine of Delay

and Laches? It is imperative to realise that the doctrine of laches is

based upon equitable consideration but imports passivity as well. It

is a flexible doctrine being dependent upon the specific facts and

circumstances of each case, unlike the Statute of limitations which

imposes strict deadlines. While approaching the Court with a belated

Petition, the reasons furnished for such delay must satisfy the Court,

as it is settled law that the Court will not help those who sleep over

their rights. It thus concludes that vigilantibus non dormientibus

aequitas subvenit, 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 ]. The conduct

of the Petitioners points to delay, laches and acquiescence. The

Petitioners urged that the delay was on account of the period of

probation immediately on appointment and the severity of Rule 23 of

the Engineering Service Rules of 1989. The intervening COVID-19

Pandemic was another ground. It was urged that the Supreme Court

(2022) 2 SCC 25

Aakash Gurung and Others vs. State of Sikkim and Others

correctly taking cognizance of the Pandemic issued guidelines for

extension of limitation in Suo Motu Writ Petition (C) No.03 of 2020.

(i) While examining Rule 23 of the Engineering Service Rules

of 1989 it provides inter alia for discharge of a probationer from

service if he is found lacking in qualities of mind and character

needed for the Service or in the constructive outlook and human

sympathy needed in the public services generally.

(ii) While emphathising with the circumstance of the

Petitioners and their apprehension for being dismissed from service,

this Court cannot overlook the requirement of law which mandates

immediate steps by aggrieved persons for redressal of their

grievances by a Court of law. On this count in K. R. Mudgal (supra),

validity of appointment was raised after more than thirty-two years.

The Supreme Court was of the view as extracted below;

"9. We may also refer here to the weighty observations made by a Constitution Bench of this Court in Malcom Lawrence Cecil D'Souza v. Union of India [(1976) 1 SCC 599] at pp. 413-14 of the Reports which are as follows: (SCC p. 602, para 9) Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one'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 instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time." [emphasis supplied]

(iii) In Tseten Plazor Bhutia (supra) this Court had observed

that the inter se seniority was settled on 02-08-2016, the Petitioner's

representation voicing his grievance was filed on 24-10-2017 and the

Aakash Gurung and Others vs. State of Sikkim and Others

Government rejected his representation on 07-04-2018. The

Petitioner approached the Court only on 06-03-2020, without

furnishing adequate grounds for the delay. The relief could not be

granted. In the instant case although the State-Respondents were

mute after the Petitioner No.1 filed his representation in 2015, he did

not take further steps. The Petitioners were unable to place before

this Court their grievances submitted before the Government

allegedly in 2022 and 2023.

(iv) In M/s. Tilokchand Motichand (supra) it was inter alia held

that where there is delay, there cannot be any relief. The Supreme

Court propounded 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." [emphasis supplied]

(v) On the point of the COVID-19 Pandemic being the reason

for delay, reference is made to, Cognizance for Extension of Limitation,

In Re where it has been clearly held that;

"2. On 23-3-2020, this Court directed [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10] extension of the period of limitation in all proceedings before courts/tribunals including this Court w.e.f. 15-3-2020 till further orders. On 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452], the order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10] was brought to an end, permitting the relaxation of period of limitation between 15-3-2020 and 14-3-2021. While doing so, it was made clear that the period of limitation would start from 15-3-2021.

(2022) 3 SCC 117

Aakash Gurung and Others vs. State of Sikkim and Others

3. Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates-on-Record Association (SCAORA) intervened in the suo motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23-3-

2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10] relaxing limitation. The aforesaid Miscellaneous Application No. 665 of 2021 was disposed of by this Court vide order dated 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947], wherein this Court extended the period of limitation in all proceedings before the courts/tribunals including this Court w.e.f. 15-3-2020 till 2-10-2021.

................................................................................. 5.1. The order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10] is restored and in continuation of the subsequent orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452], 27-4- 2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231] and 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947], it is directed that the period from 15-3- 2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings."

(vi) It is trite to notice from a perusal of the order that it

pertains to the COVID-19 Pandemic of December, 2019, upon which

National lockdowns were issued from March, 2020. In this backdrop it

becomes essential to remark that the list of selected candidates, in

order of seniority, which included the Petitioners and the private

Respondents, were issued in 2018 consequently, this translates into

the Judgment providing the Petitioners with no sustenance, the

results which they impugn being of 14-09-2018 [Annexure P-13] and

01-10-2018 [Annexure P-10].

(vii) In the wake of the circumstances of the Petitioners' case

it is evident from the facts cited that, in September, 2012, they

voluntarily did not seek to compete in the direct recruitment quota of

50%. In 22-01-2013, thirty-six posts were sought to be upgraded of

which twenty-five were selected and appointed on 21-09-2016. The

Petitioners' claim to have been aggrieved by their non-selection but

remained silent. In 2018, thirty-five posts were notified to be

Aakash Gurung and Others vs. State of Sikkim and Others

―regularised‖, and all private Respondents along with the Petitioners

faced the interview board on 08-09-2018 constituted by Respondent

No.4 (SPSC). This led to the impugned correspondence dated 14-09-

2018 and Office Order dated 01-10-2018. The Petitioners chose not

to articulate their grievances, even though dissatisfied with the

impugned correspondence and order and ultimately approached this

Court by way of the instant Writ Petition only on 28-08-2023. As

seen from the foregoing Judgments, disturbance of seniority settled

over an extended period of time or of persons who have been in their

positions for three or four years is not encouraged to be tampered

with. The grounds raised by the Petitioners for the delay, in my

considered view, does not withstand the legal test. Whatever

explanation has been put forth for the delay is not to the satisfaction

of the conscience of this Court. The Petition being belated, in no

uncertain terms is hit by delay and laches.

14. While determining Question no.(iv), Whether the reliefs

sought for by the Petitioners can be moulded, the Supreme Court in

Om Prakash Gupta vs. Ranbir B. Goyal observed that the Court has the

power to take note of subsequent events and mould the relief subject to

the following conditions being satisfied;

"11. .................................... (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. ......................................." [emphasis supplied]

(2002) 2 SCC 256

Aakash Gurung and Others vs. State of Sikkim and Others

(i) The principle of moulding of reliefs was expounded at

length in Pasupuleti Venkateswarlu vs. Motor & General Traders27 and it

was observed that;

"4. ........................ It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

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


(ii)                  In Ramesh Kumar vs. Kesho Ram28 the Supreme Court

observed that;

"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‗cautious cognizance' of the subsequent changes of fact and law to mould the relief. ........................"

(iii) In my considered view, the Petition has been filed seeking

specific reliefs, there are no subsequent changes of fact or law

brought to the notice of this Court which would alter the entitlement

(1975) 1 SCC 770

1992 Supp (2) SCC 623

Aakash Gurung and Others vs. State of Sikkim and Others

of the Petitioners on the anvil of which the reliefs can be moulded by

this Court. Hence, this prayer of the Petitioners fails.

15. While determining the fifth question settled for

determination (supra), whether the Petitioners can challenge the

process of examination having appeared in it, in Babita Rani (ibid) it

was observed inter alia that, the process of selection conducted by

the Respondent University for the purposes of appointment to the

post of Lecturers in Physics, was based solely on the performance in

the interview. No criteria was followed and no grading of candidates

was done, the basis of the inter se merit of the candidates and

determination was not discernable. Upholding the Judgment of the

Learned Single Judge, the Division Bench observed that, it was

incumbent upon the Interview Committee to have assessed and

adjudged all the candidates appearing before it, in terms of

reasonable and relevant parameters, in the nature of qualifications

possessed, work experience, research, etc., which was ignored by the

Interview Committee. The selection was found not sustainable. In

the present case, in the first instance it is to be remarked that no

objections was raised with regard to the interview that was held on

08-09-2018, after it was conducted. In fact, on earlier occasion the

Petitioners by filing a representation had expressed their reluctance

to take the written examination and compete with fresh Graduates as

they were engaged in important works of the Government. The

objection to the interview of 08-09-2018 was rather belatedly raised

in the year 2023, whereas in Babita Kumari (ibid), the advertisement

for the concerned post was issued on 04-08-2008, interview

conducted on 22-10-2009 and letters of appointment issued by the

Respondent University on 30-10-2009. It is apparent that the Writ

Aakash Gurung and Others vs. State of Sikkim and Others

Petition was filed in the year 2009 (Civil Writ Petition No.18735 of

2009). Thus, the challenge was immediate and relief thereby

granted. This is not the situation in the instant case, rendering

nugatory the objection raised by the Petitioners on this count.

Besides, from the litany of Judgments relied on hereinbelow it

emanates with clarity that once the candidates have participated in

the examination/interview, they cannot assail the procedure or other

parameters adopted when they emerge unsuccessful.

(i) In Dr. Sunil Kumar and Others vs. Punjabi University and

Others reference was made to the decision of R. Chitralekha (supra),

where it was observed that if there is dishonesty in allotting marks to

a candidate in interview, there could be some flaw in awarding marks

in written examination. There has been no claim of dishonesty

alleged by the Petitioners in the allotment of marks. In Ajay Hasia

(supra) it was observed that, oral interview was not satisfactory and

should not be relied upon as an exclusive test and also on D. V. Bakshi

and Others vs. Union of India and Others . Those matters pertained to

direct recruitments and is not relevant for matters where the

Petitioners were already in service and had themselves requested the

Government by way of a representation not to hold written

examination, but to relax the rules upon which, only an interview was

conducted by Respondent No.4.

(ii) In Om Prakash Shukla (supra) a three Judge Bench of the

Supreme Court taking note of the fact that the Petitioner in the Writ

Petition had appeared for the examination, without protest and filed

the Writ Petition only after he realised that he could not succeed in

the examination, it was held that, the Writ Petitioner should not have

CWP No.18735 of 2009 decided on 23-08-2011 of the High Court of Punjab and Haryana

AIR 1993 SC 2374

Aakash Gurung and Others vs. State of Sikkim and Others

been granted any relief by the High Court. In Madan Lal (supra) it

was observed that it is now well settled that, if a candidate takes a

calculated chance and appears at the interview, then, only because

the result of the interview is not palatable to him, he cannot turn

round and subsequently contend that the process of interview was

unfair or the Selection Committee was not properly constituted. In

Chandra Prakash Tiwari and Others vs. Shakuntala Shukla and Others

the Court observed as follows;

"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process." [emphasis supplied]

(iii) In Union of India and Others vs. S. Vinodh Kumar and

Others the Court reiterated that those candidates who had taken

part in the selection process knowing fully well the procedure laid

down there they were not entitled to question the same.

(iv) In Tajvir Singh Sodhi (supra) the Supreme Court

reiterating the well-settled principle that once the candidate has

appeared for the examination he cannot challenge the process when

he is unsuccessful, observed at Paragraph 58 as follows;

"58. The criteria for evaluation of a candidate's performance in an interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate's personal evaluation of his performance was higher than the marks awarded by the panel. ..............."

[emphasis supplied]

(v) This principle was also recognised in D. Sarojakumari vs. R.

Helen Thilakom and Others , wherein the main ground urged on behalf

of the Appellants was that, the Respondent No.1 having taken part in

(2002) 6 SCC 127

(2007) 8 SCC 100

(2017) 9 SCC 478

Aakash Gurung and Others vs. State of Sikkim and Others

the process could not be permitted to challenge the same after she

was unsuccessful in getting selected. It was held that the law is well-

settled that once a person takes part in the process of selection and

is not found fit for appointment the said person is estopped from

challenging the process of selection. Reference was made by the

Supreme Court to a plethora of Judgments on the same point and it

was concluded as follows;

"11. As far as the present case is concerned, an advertisement was issued by Respondent 6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this, we need not go into the other issues raised." [emphasis supplied]

(vi) It was also observed inter alia that competitive

examination may be based exclusively on written examination or it may be

based exclusively on oral interview or it may be a mixture of both and it is

entirely for the Government to decide what kind of competitive

examination would be appropriate in a given case.

(vii) In Ashok Kumar Yadav and Others vs. State of Haryana and

Others it was expounded that the Government is the competent

authority to decide the mode of selection examination. It was held as

follows;

"23. This Court speaking through Chinnappa Reddy, J. pointed out in Lila Dhar v. State of Rajasthan [(1981) 4 SCC 159] that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted

(1985) 4 SCC 417

Aakash Gurung and Others vs. State of Sikkim and Others

almost universally as the gateway to public services. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy, J. ―In the very nature of things it would not be within the province or even the competence of the Court and the Court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left‖ to the wisdom of the experts. It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. .........................................."

(viii) The principles settled by the afore-extracted Judgments

are appositely applicable to the Petitioners who having taken part in

the examination, sans demur, are now doing a somersault and

impugning the procedure and the results without any valid grounds.

This posturing of the Petitioners is not legally permissible.

16. While addressing the sixth Question, Whether the Writ

Petition was defective for non-impleadment of necessary parties, the

Supreme Court in Ranjan Kumar (supra) inter alia held that where all

appointees were not impleaded the Writ Petition was defective and no

relief could have been granted to the Writ Petitioners.

(i) In KM. Rashmi Mishra vs. M. P. Public Service Commission and

Others the question in appeal before the Supreme Court was the

validity/legality of the selection process involved in selecting Assistant

Registrars, Class II gazetted post. The Supreme Court observed that;

"30. In the instant case, however, as all the selected candidates were not impleaded as parties in the writ petition, no relief can be granted to the appellant."

(ii) In Prabodh Verma and Others vs. State of Uttar Pradesh and

Others the Supreme Court was of the view that;

"28. ................................ The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of

(2006) 12 SCC 724

(1984) 4 SCC 251

Aakash Gurung and Others vs. State of Sikkim and Others

Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties -- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."

[emphasis supplied]

(iii) Prayer (H) of the Writ Petition is specific in its details.

The Petitioners seek modification of Office Order No.1420/G/DOP,

dated 21-09-2016, to the extent of placing Petitioner No.1 in any

order of senior as the earlier appointee. Assuming that the relief was

to be extended to the Petitioner No.1 his placement in the list with

the twenty-five Engineers selected would affect them, as the

Petitioner seeks placement in any order of seniority. Thus, the

persons who may be affected are not a party to the Petition, which

therefore must fail for non-joinder of necessary parties.

(iv) While thus parting with the matter, it may be remarked

that the State-Respondents appear to be in a conundrum regarding