H.B.RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India is filed by the petitioner Mr. H.B. Rai on 16.01.2012 arraying the State of Sikkim and the Secretary, Finance, Revenue and Expenditure Department, Government of Sikkim as respondents No. 1 and 2. The reliefs claimed in this writ petition as instituted originally are, inter alia, quashment of Annexure P-1 Order dated 28.11.2011 served on the petitioner and an order of stay/injunction restraining the respondents from giving effect to Annexure P-1, Transfer Order. According to the petitioner, he was inducted into the State Revenue Service while serving in the Civil Service of the respondent-State as an Additional Commissioner in the year 2007 and subsequently, he was promoted in the year 2009 to the rank of Special Commissioner of Commercial Taxes Division, Finance, Revenue and Expenditure Department, Government of Sikkim and has been holding the said post till he was served with Annexure P-1 Order. According to him, the post of Special Commissioner held by him is equivalent to the post of Special Secretary in State Civil Service and the post of Commissioner is the highest post in the Revenue Service of the State and the post held by him, i.e. the Special Commissioner is the next grade below the Commissioner, in Revenue Service. Petitioner claims that since his induction into State Revenue Service due to his hard work, dedication and performance the collection of revenue in the Commercial Tax Division, Finance, Revenue and Expenditure Department (hereinafter referred to as 'FRED') all along crossed the target for collection of revenue. In this context he has given the statistics relating to the four Financial Years he served in the Revenue Service. According to the petitioner, this regular increase in the matter of revenue collection during the past four years has been due to his efficiency in the matter of discharging his duties. He also claimed that his official career in Revenue Service has been unblemished and he goes to the extent of claiming himself an efficient officer in the department of FRED in Commercial Tax Division. He points out that presently there is acute shortage of officers in Commercial Tax Division (FRED) due to transfer and retirement of five officers in the rank of Joint Commissioner and Deputy Commissioner during past few years. According to him the increase in the revenue collection notwithstanding the dearth of officers in the Department has been the result of excessive burden he has taken upon his shoulders. His complaint is that notwithstanding that, Annexure P-1 Order was slapped on him by the first respondent on 28.11.2011. He points out that under Annexure P-1 Order, his name is mentioned at Sl. No. 4 amongst the 15 officers mentioned therein and he is transferred and posted as Registrar, Sikkim Manipal University on deputation. The petitioner aggrieved by Annexure P-1 order, challenges Annexure P-1 on various reasons such as: -

(2.) After availing several opportunities, counter affidavit was filed to the writ petition by the respondents No. 1 and 2 which was taken on record on 02.07.2012. On that day two weeks time was granted to the petitioner for filing rejoinder. The case was accordingly adjourned to 19.07.2012. On that day the writ petitioner filed an application under Order 16 Rule 17 CPC for amendment of the writ petition so as to incorporate a fresh table showing pay band and grade pay of Joint Secretary/Joint Commissioner, Additional Secretary/ Additional Commissioner, Special Secretary/Special Commissioner by replacing the table showing pay band and grade pay of Group III and IV categories of employees inadvertently shown in paragraph 10 of the writ petition. Another prayer in the amendment application was Annexure-6, Notification No. 22/GEN/DOP dated 21.06.2012 issued by the Government giving retrospective effect of Sikkim Revenue Services Rules, 2007 inserting Rule 24A, reading as follows: -

(3.) This Court by order dated 19.07.2012 allowed the above C.M. Application No. 75/2012 as prayed for. Accordingly, amended writ petition was filed by the writ petitioner on 30.07.2012. To the amended writ petition, counter affidavit was filed by respondents No. 1 and 2 on 29.08.2012. To the above counter-affidavit, petitioner filed rejoinder affidavit on 03.10.2012. The writ petition was, thereafter, taken up for hearing on 22.11.2012, and on 22.11.2012 hearing started and during the course of argument the learned senior counsel for the petitioner referred to Section 12 of the Sikkim Manipal University of Heath, Medical and Technological Sciences Act, 1995 which, inter alia, deals with the appointment of the Registrar, a post to which the petitioner was transferred/deputed by the State Government. The Court felt that as Section 12 of the Sikkim Manipal University of Heath, Medical and Technological Sciences Act, 1995 speaks only appointment and does not envisage source of appointment like deputation/ transfer, the Sikkim Manipal University of Health, Medical and Technological Science, Gangtok should be impleaded as a party respondent. Accordingly, the petitioner was permitted to implead the Sikkim Manipal University as a party respondent No. 3 to the writ petition and the petitioner was directed to file the amended writ petition. On that day notice was ordered to the newly added respondent and it was also orderly that the newly added respondent shall file their counter affidavit within 4 (four) weeks with a further direction that the petitioner shall file rejoinder, if any, within two weeks thereafter. Even then the notice was sent to the 3rd respondent, University, and the same was acknowledged by the University. The University did not enter appearance before this Court. The University was accordingly set aside ex-parte.