SANTOSH DONG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Petitioner is aggrieved by the non-absorption of his services in the Motor Vehicles Division of the Transport Department, Government of Sikkim (hereinafter, 'MV Division'), having been transferred therein on deputation on 10/9/2014, from the Human Resource Development Department (Education Department), Government of Sikkim, where he was initially appointed as a Primary School Teacher. He is further aggrieved by the Order dtd. 25/7/2019, issued by the Office of the Respondent No.2 repatriating him to his parent Department. The Petitioner seeks issuance of directions to the Respondents to induct him in the MV Division from 21/3/2015, the date on which the Sikkim State Subordinate Motor Vehicles Service Rules, 2015 (hereinafter, the 'Service Rules'), was brought into force. He also seeks issuance of a direction to the Respondents to grant him all pay, allowances and promotions that may have accrued to him since 21/3/2015 and for withdrawal of the repatriation Office Order bearing No.116/GEN/DOP, dtd. 25/7/2019.

(2.) Learned Senior Counsel for the Petitioner advanced the argument that by virtue of Rule 4(1) of the Service Rules it is evident that the Petitioner is entitled to be absorbed into the MV Division as at the time of framing of the Service Rules the Petitioner was already holding the post of Assistant Motor Vehicles Inspector (AMVI). That, the Rule specifies that persons holding posts as included in Schedule I shall be deemed to have been appointed to the service from the appointed day. It was next contended that one Roshan Gurung, Computer Technician in the Home Department joined the MV Division on 4/3/2014 as AMVI also on deputation. That, on the Service Rules (supra) being enforced he was not only inducted formally to the post of AMVI, but later promoted to the post of Motor Vehicles Inspector (MVI). The attention of this Court was drawn to the Office Order bearing No.3016/G/DOP, dtd. 19/9/2017, whereby five persons were inducted into the Sikkim State Motor Vehicles Service in terms of Rule 4(1) of the Service Rules and it was contended that the procedure laid down by the Service Rules were not complied with in the case of the Petitioner. That, non-induction of the Petitioner in the MV Division despite multiple representations made by him amounts to violation of Articles 14 and 16 of the Constitution of India. Consequent upon the order of repatriation, viz; Office Order dtd. 25/7/2019 the Petitioner joined duty in his parent Department on 23/12/2019, but was retransferred on deputation to the Transport Department on 10/6/2022 vide Order No.290/GEN/DOP indicating his suitability for manning the post. That, in fact as the Petitioner was deemed to have been appointed as AMVI in terms of Rule 4(1) of the Service Rules there was no room for repatriating him to his parent Department reasoning that he did not fulfil the minimum requirement stipulated by the Rules for the post of AMVI. Learned Senior Counsel further contended that executive orders cannot prevail over Rules framed, in the instant case being the Service Rules (supra), towards which reliance was placed on State of Madhya Pradesh and Others vs.Yogendra Shrivastava (2010) 12 SCC 538. That, when the terms and conditions of the services of an employee are governed by the Rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, no order under Article 162 of the Constitution can be made by way of alterations or amendments of the said Rules. On this aspect, reliance was placed on Punjab State Warehousing Corpn., Chandigarh vs. Manmohan Singh and Another (2007) 9 SCC 337 and A. K. Bhatnagar and Others vs. Union of India and Others (1991) 1 SCC 544. Hence, the Petitioner be granted the reliefs sought.

(3.) Learned Government Advocate refuted the contentions raised by the Petitioner and submitted that in the first instance the Petitioner has failed to establish as to who exactly were the persons similarly situated with him and how they were treated differently in terms of their services being inducted into the MV Division while excluding the Petitioner, sans documents. That, Roshan Gurung referred to by the Petitioner was a Mechanical Assistant in the Home Department and was in fact already on deputation to the post of AMVI prior to 4/3/2014, much before the enforcement of the Service Rules of 2015 and subsequently, vide Office Order bearing No.160/MV/T, dtd. 4/3/2014 (Annexure R9), his services were absorbed in the post of AMVI under the MV Division. That, in the circumstances, the Petitioner cannot claim to be similarly circumstanced as him. That, reliance on Rule 4(1) of the Service Rules renders no assistance to the Petitioner"s case as on the date of enforcement of the Rules he was not holding the post of AMVI, but was merely on deputation to the said post making the Rules inapplicable to him. It was next contended that the Writ Petition is in fact infructuous for the reason that the Petitioner was repatriated in 2019 to his parent Department and brought on deputation to the MV Division again in 2022, while his grievance relates to the year 2019. That apart, the Petition suffers from delay and laches having been filed in 2019, four years and two months after the Service Rules came into force in 2015. That, it is now settled law that a deputationist cannot assert and succeed in any claim for absorption in the Department where he works on deputation. This submission was buttressed by the ratio in Kunal Nanda vs. Union of India and Another (2000) 5 SCC 362. Hence, the Writ Petition deserves a dismissal for the aforestated circumstances.