SUSHIL PRADHAN Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The discontentment of the Petitioners arises on account of their appointment and retention on Officiating basis from 08.05.2008 in the posts of Accounts Officers despite alleged existing Substantive vacancies, confirming them in the posts only on 16.03.2013, thus, depriving them of regular Promotion and Service Seniority, as against the Respondents No.7 to 17 directly recruited as Accounts Officers in January/February, 2009, who have been ranked higher than the Petitioners in the inter se Seniority.

(2.) (i) While denying and disputing the averments of the Petitioners, the State-Respondents No.1, 2 and 3, in their joint Counter-Affidavit, sought to explain that on 03.06.2003, the Cadre strength of the Accounts Officers were increased from 75 (seventy-five) to 77 (seventy-seven). On the date of Cadre revision in December, 2008, 31 (thirty-one) persons were occupying the posts of Accounts Officers while 46 (forty-six) posts were vacant. 23 (twenty-three) posts were to be filled by Direct Recruitment through Open Competitive Examination and 23 (twenty-three) by way of Promotion. Therefore, against the 23 (twenty-three) posts for Promotees, in fact, 55 (fifty-five) Officers were promoted and all were senior in rank to the Petitioners. No Direct Recruitment to the post of Accounts Officers in the 23 (twenty-three) vacant posts meant for Direct Recruits, took place during the said period, the last Direct Recruitment having been made in May, 2003. It was only on 16.07.2007 that the Respondent No.3 forwarded a requisition to the Sikkim Public Service Commission (for short "SPSC"), for filling up 11 (eleven) posts of Accounts Officers under the Sikkim Finance and Accounts Service Rules, 1978 (for brevity "Rules of 1978") by Direct Recruitment. Pending this proposal, 17 (seventeen) Senior Accountants were promoted as Accounts Officers in Officiating capacity on 08.05.2008, subject to the conditions that the Officiating Promotion shall not confer any right for regular Promotion and shall not be counted towards Seniority and their regular Promotion shall be made on the recommendation of the SPSC, which were accepted by the Petitioners without demur. The amendment of the Rules of 1978 on 15.12.2008, increased the Cadre strength of Accounts Officers from 77 (seventy-seven) to 103 (one hundred and three). On 08.04.2008, prior to the above amendment, the SPSC invited applications for filling up of 11 (eleven) posts of Accounts Officers, consequently 11 (eleven) Direct Recruits came to be appointed vide Orders dated 31.01.2009, 02.02.2009 and 04.02.2009. Thus, the appointment of Respondents No.7 to 17 was against the Direct Recruitment Quota of 50 per cent of the Rules of 1978 and having been appointed in Substantive capacity, were made senior to the Petitioners who were promoted on Officiating capacity, as 20 (twenty) Officers senior to them were already working in Officiating capacity. That, Rule 24 Sub Clause 5 of the Sikkim Finance Accounts Service (Amendment) Rules, 1986 (hereinafter "Rules of 1986") provides for Rota Quota but the Government had considered the Promotion of Senior Accountants to the post of Accounts Officers from December, 2003 to June, 2007, duly utilizing Direct Recruitment Quota either on Officiating basis and then in Substantive capacity, or against Substantive capacity as and when vacancy existed, or against anticipated vacancies.

(3.) The Respondents No.4, 5 and 6 filed their respective Counter-Affidavits which, in sum and substance, were similar to each other and substantially reiterated the facts as set out in the Counter-Affidavit of the Respondents No.1, 2 and 3.