YOGEN GHATANI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Petitioners No.1 to 15 are the grandchildren of Government Servants to the Government of Sikkim prior to 31.12.1969. The Petitioners No.16 to 21 are the children of Government Servants to the Government of Sikkim on or before 31.12.1969. The Petitioners are aggrieved by the state action, by which an insertion was made in Notification No.66/Home/95, dated 22.11.1995 (for brevity, 'Notification of 1995'), in Item No.5 therein, qualifying the issuance of Certificate of Identification (for short, 'COI'), to persons whose father/husband has or had been in the Sikkim Government Service on or before 31.12.1969, 'for the purpose of employment only', by superseding Memorandum No.5(92)5/GEN/EST., dated 09.04.1981 (for short, 'Memorandum of 1981') . They also assail Item No.5 appearing in Notification No.57/Home/96, dated 27.09.1996 (for short, 'Notification of 1996'), which further qualified the sentence supra by insertion of the words 'and for no other purpose' causing the sentence to read as follows;

(2.) The facts may be briefly traversed to comprehend the dispute with clarity. By the Constitution (Thirty-Sixth) Amendment Act, 1975, on 26.04.1975 (Appointed day), Sikkim became a State in the Indian Union. Article 371F was inserted in the Constitution of India (for short 'Constitution') as a special provision for the State of Sikkim. Clause (l) of Article 371F inter alia provides that the President may extend any law to the State or repeal any law existing in the State, within two years from the appointed day. Prior to Sikkim joining the Indian Union, the Monarch (Chogyal) of the erstwhile Kingdom of Sikkim promulgated the Sikkim Subjects Regulation, 1961 (for brevity 'Regulation of 1961') enumerating criteria for persons to become Sikkim Subjects inter alia by virtue of birth in Sikkim immediately preceding the Regulation and by ordinarily being a resident of Sikkim for not less than fifteen years prior to the Regulation of 1961. In addition to the above, under Regulation 8(iii)(a), a person could become a naturalized Subject if he was in the service of the Government of Sikkim for a period of not less than ten years immediately preceding the date of his application, and under Regulation 8(iii)(b) if he had rendered meritorious service to the State and Certificate thereof was granted to him. The Sikkim Government Establishment Rules, 1974 (hereinafter, 'Establishment Rules, 1974') also came to be promulgated by the Chogyal to govern recruitment and conditions of service for persons appointed in Government service then. Under these Rules preference was given to Sikkim Subjects for recruitment in Government service. Only in the absence of requisite qualified 'Sikkimese' personnel appointments were offered to non-Sikkimese. Post merger the Establishment Rules, 1974 came to be adopted by the State of Sikkim under Article 309 of the Constitution. The validity of those Rules were upheld by the Hon'ble Supreme Court in the ratiocination of State of Sikkim vs. Surendra Prasad Sharma and Others, (1994) 5 SCC 282.

(3.) Thereafter, vide the Extraordinary Gazette No.41, dated 16.05.1975, of the Home Department 'The Adaptation of Sikkim Laws (Number I) Order, 1975' (for short, 'Adaptation Laws, 1975') was published for general information, whereby, the Regulation of 1961 stood repealed from the appointed day. The Home Department, Government of Sikkim, vide Notification No.995/H/75, dated Gangtok 21.06.1975, re-published Notifications of the Government of India, Ministry of Home Affairs, bearing various numbers, dated 16.05.1975, for general information. It was notified therein inter alia that the Citizenship Act, 1955 (57 of 1955) was extended and enforced in the State of Sikkim w.e.f. 16.05.1975. Vide an Order called 'The Sikkim (Citizenship) Order, 1975' of 16.05.1975 every person who immediately before 26.04.1975 (Appointed day) was a Sikkim Subject under the Regulation of 1961, was deemed to have become a citizen of India on that day.