O.P. PRADHAN Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Writ petitioners were Assistant Engineers or work charged establishment in the Department of Energy and Power. On 18th of Feb., 2004, they were appointed in the regular establishment. Private respondents, who were Junior Engineers in the regular establishment were promoted to the posts of Assistant Engineers in the regular department in or about Dec., 2003. In the writ petition, it is being contended that in view of rules governing the subject, petitioners or some of them should be deemed to be senior to private respondents or some of them.

(2.) It is the contention of petitioners that in terms of Sikkim State Engineering (Civil, Electrical and Mechanical) Service Rules, 1989, method of recruitment to the service is (a) by direct recruitment, through a competitive examination and or selection by interview to be held by the Commission, to the extent of 50% of the vacancies to be filled in any year and (b) by promotion to the remaining 50% through limited departmental competitive examination to be held by the Commission from among persons holding the post of Junior Engineers or any other post declared equivalent thereto by Government. It was contended that in terms of the said Service Rules, year means the financial year commencing from the 1st day of April and ending on 31st day of March of the next following year. It was contended that whereas the petitioners were directly recruited through selection by interview held by the commission, the private respondents were promoted in the same financial year, i.e. the financial year commencing from 1st April, 2003 and ending on 31st March, 2004. It was contended that after such recruitment, inter-se seniority between petitioners and private respondents was to be governed by Sikkim State Services (Regulation of Seniority) Rules, 1980 and in particular Clause (e) of Rule 4 thereof. It was contended that in terms of Clause (e) of Rule 4 of the Seniority Rules, relative seniority between petitioners and private respondents was required to be determined according to rotation of vacancies between direct recruits and promotees and the date of their substantive appointment to the service. Learned Counsel for petitioners cited a Division Bench judgment of this Court rendered on 16th Aug., 2000 in writ Petition (C) No. 9 of 2000 and other connected writ petitions for the proposition that seniority is required to be fixed in accordance with quota fixed and when all the appointments are substantive, later part of Clause (e) of Rule 4 is of little relevance. It was contended that after the said judgment was rendered, an explanation was inserted in Clause (e) of Rule 4 to make the matter further clear by providing format of a roaster, which suggests that the first place should be occupied by promotee, while the second by direct recruit and again the third by pronotee and the further by direct recruit and so on. It was contended that if the said quota rule is applied, all the petitioners cannot be treated as juniors to private respondents, for petitioners were appointed and respondents were promoted in the same year.

(3.) Official respondents as well as private respondents contended that petitioners were not direct recruits and accordingly, clause (e) of Rule 4 of the Seniority Rules had no application. It was contended that Clause (f) of Rule 4 of the Seniority Rules was applicable and the said rule has been applied by Government after acceptance of the report of One Man Commission. Therefore, the dispute in the instant case is whether petitioners were direct recruits or not. If petitioners were direct recruits, clause (e) of Rule 4 of the Seniority Rules will apply and accordingly, it would be a requirement to ascertain whether seniority, as has been Red, is in accordance with Clause (e) of Rule 4 of the Seniority Rules.