MEGRAJ GURUNG Vs. STATE LEGISLATIVE ASSEMBLY SECRETARIAT

JUDGEMENT

(1.) The Petitioner herein, an aspirant to the post of Joint Secretary in the Sikkim Legislative Assembly Secretariat (for short, the "SLAS"), is disgruntled by the State action of granting promotion to the Respondent No.2 (for short, "R2"), to the post of Joint Secretary, by way of upgradation, duly relaxing the relevant Rules, without considering the Petitioner for promotion to the same post, although he was similarly situated with R2 and held a higher educational qualification. He seeks a declaration that the impugned promotion of R2 is mala fide, arbitrary, illegal and unconstitutional being against the provisions of the Sikkim Legislative Assembly Secretariat (Methods of Recruitment and Qualifications for Appointment) Order, 1984, dtd. 20/5/1985 (hereinafter, "Recruitment Order 1984"). That, a writ of or in the nature of Mandamus be issued commanding the Respondent No.1 (for short, "R1") to cancel the impugned promotion order of the R2 and a writ or order be issued directing R1 to consider the case of the Petitioner for promotion to the post of Joint Secretary.

(2.) (i). Learned Senior Counsel for the Petitioner while walking this Court through the brief facts of the case advanced the arguments that the Petitioner joined service in the SLAS against a regular sanctioned post of Assistant Language Translator vide Office Order dtd. 5/3/1999. In the year 2004, on clearing the Limited Departmental Examination, he was appointed as Nepali Translator vide Office Order dtd. 2/3/2004. Being eligible for promotion in terms of Rule 7 of the Recruitment Order 1984 to the post of Under Secretary in the year 2009, he made representations dtd. 28/5/2008, 16/12/2008, 16/9/2009 to R1 and 25/5/2009 to the Speaker, SLAS. He was promoted as Under Secretary vide Office Order dtd. 30/3/2010 w.e.f. 24/3/2010. On 15-09- 2013, the Petitioner applied for a one time relaxation of Rules for grant of promotion by upgradation to the post of Deputy Secretary after serving for three and half years as Under Secretary on coming to learn that proposals for promotion of other employees of the department with similar years of service in one Grade was also under consideration. However, a few months" later Notification bearing No.285/436/ADMN/SLAS, dtd. 27/11/2013, was issued by the SLAS, notifying that henceforth upgradation of post would be limited to once in the entire service career of each individual employee. That, on consideration of his representations dated 04- 07-2014 and 25/3/2016, he was promoted to a vacant post in the rank of Deputy Secretary, vide Office Order dtd. 16/11/2016 with effect from 2/9/2016.

(3.) (i). Per contra, refuting the arguments of Learned Senior Counsel for the Petitioner, Learned Additional Advocate General pointed out that although great emphasis was laid by Learned Senior Counsel for the Petitioner on Rule 7(1)(c) of the Recruitment Order 1984, which provides that, all officers eligible for promotion to a particular post are to be considered together, Rule 7(3) of the same Order which empowers the appointing authority, in the instant case the Speaker, to "relax" the period of service required for promotion to a higher grade, when considered expedient, was blithely ignored by the Petitioner.