•J,t a _J,&t`,,; \ THE HIGH COURT OF SIKKIM : GANGTOK I ~ WRIT PETITION (C) NO. 28 0F 2004 '.`> In the matter of an application under Article 226 of the Constit:ution of India and in the matter of Shri Sonam Palden Bhutia, S/o P.W. Bhutia, R/o Upper Sichey, P.O. & P.S. Gangtok, East Sikkim. 2. Shri Kunga Tashi Bhutia, S/o Pema Bhutia, R/o Near T.N.A. Compound, P.O. & P.S. Gangtok, East Sikkim. Shri Prashant Lamichaney, S/o A. K. Lamichaney, R/o Tadong, Dara Goan, P.O. Tadong, P.S. Gangtok, East Sikkim. 4. Shri Hem Kumar pradhan, S/o Shri C. K. Pradhan, Dara Gaon, P.O. Tadong, P.S. Gangtok, East Sikkim. 5. Shri Sonam Gyaltsen Bhutia, S/o Dorjee Tshering Bhiitia, R/o Upper Sichey, P.O. & P.S. Gangtok, East Sikkim. versus State of Sikkim, through the Chief Secretary, Government of Sikkim, Gangtok. „„„ Petitioners EEi= 2. The Director General of police, Police Headquarters, Gangtok. C> '¥ Shri S. D. Negi, Ips DIG/Range & HQ, Gangtok. 4. The secretary, Department of Personnel A.R. and Training, Government of Sikkim, Gangtok. Ms. Chezum Lepcha Mr. Milan Kanta Sharma Ms. Rinku Wongmu Bhutia Mr. Bikash Basnett 9. Mr. Chewang Dorjee Bhutia 10. Mr. Chandan chett:ri 11. Mr. BikashRai 12. Ms. Sudha Basnett 13. Mr.TulsiThapa 14. Mr. BijendraThapa 15. Mr. KingaTharchen 16. Mr. NovinRai 17. Mr. BimalGurung 18. Mr. CholeyTshering Bhutia 19. Mr. Tashi chopel Bhutia BEE 20. Mr. MingurTempo Nadik 21. Mr. ThendupTseten 22. Mr.SanjayRai 23. Mr. RoshanRai 24. Mr. Bikash subba 25. Ms. Dawa Lhamu pakhrin 26. Ms. Pema Rana (Manger) 27. Ms. Karma Eden Kaleon 28. Ms. Karma Doma Bhutia 29. Ms. Paru Ruchal 30. Ms. SonamYankeela 31. Ms. Renuka chettri 32. Ms. Durga singh cintury All are undergoing trainees at North Eastern Police Academy, Shillong, Megha]aya ....... Etespondehl a ds> For the petitioners : Shri 8. Sharma assist:ed by Shri 8. Pokhrel, Advocates. For the respondent nos.1 to 4 : Shri J. 8. Pradhan, Government Advocate and Karma Thinley, Assistant Government Advocate. For the respondent nos.5 to 32: Memo. PRESENT=Tl]E FION'BLE MR. JUSTICE N.. S. SINGIl, CtllEF JuSTICE {ACTING). TFIE I]ON'BLE MR. JUST.ICE A. P. SuBBAv JUDGE. Last date of t\earing -- 1ZT Ma¥±_2±Q95i DATE OF JUDGMENT = 23ro JUNE, 2005. JUDGMENT A. P. Subba, I. By this writ petition filed under Article 226 of the Constitution of India, the petitione.rs challenge the selections made by the respondents for filling up 28 vacancies of the Sub- Inspectors in the Police Department, Government of Sikkim. The 28 candidates who were select:ed and appointed against the said vacancies are the pri\/ate respondent nos.5 to 32 herein. 2. The case of the writ petitioners is that the Director General of Police, Police Department, Government of Sikkim issued an advertisement inviting applications from male and female candidates to fill lip 28 posts Of Sub-Inspector of Police in the police department in the year 2004. The advertisement was published in the Sikkim Herald' dated 8th January, 2004. Even though the advertisement did not contain any specific syllabus and the marks allocated to each subject and similar other relevant information the petitioners having full faith jn the IVJ- a `5i impartiality of the concerned authority applied for the same and sat for the written examination along with other candidates and qualified for viva-voce test. Thereaft:er, they also appeare.d at the viva-voce test. However, after the viva-voce test was over the results were not at all published by the department. Frequent visits made by the writ petitioners to the Office of the respondent-department to enquire about the results were all in vain, It was only from a newspaper report published in daily paper the `NOW' dated 8th July, 2004 that they came to know of the results published by the department. According to the petitioners, they were shocked t:o notice that their names did not figure in the results published therein. .Thereafter, they sought for detailed information regarding copy of the marks allotted for physical fit:ness test, written test, viva-voce test along with the roster point that was followed, particulars of the members of the Selection Board etc. However, the information was not supplied to them. Finding no alternative, the petitioners made representation to the Chief Secretary and also to the Office of the Director General of Police, Police Headquarters, Gangtok seeking requisite information. Since no information was furnished to them as per the request made t:o the said authorities, the petitioners issued lawyer's notice demanding justice. It was only to this lawyer's notice that a reply was ultimately given by the Office of the respondent no.2 but the reply so given was not a comprehensive one dealing with the details of information sought for. In the meantime, NL- a 5= the petitioners came across an official document dated 5th July, 2004 relating to medical fitness examination of the selected candidates. According to this document only the names of the 28 selected candidates were forwarded to the medical authorities for medical examination. This, according to the petitioners, strengt:hened their suspicion that the selection process was not fair in so far as it was not clear to them as to how the department was sure that all the 28 selected candidates will get through the medical examination and will be appointed against the 28 number of vacancies which were advertised. Further, it is stated that the marks allocated for the viva- voce test, being 100 marks was excessive as it could make it open to the authorities to select anyone as per their choice by awarding maximi]m marks in the viva-voce test. It was also contended that the standard of physical fitness test prescribed for female candidates were different from that of the male candidates in so far as the test prescribed for female candidates was more lenient/relaxed. Furthermore, the number of candidates appointed by the department was more than the number of posts that were advert:ised. There was also non- compliance of the reservation quota and the 100 point roster in the process of selection and as a result the reservation in respect of the scheduled tribes, scheduled castes and other backward classes exceeded 50% of the total' seats. a A..,---- Accordingly, it was contended that the process of selection adopted and followed by the respondent no.2 was not fair and in accordance with law and as a result the selection made by the respondent no.2 of the 28 candidates was liable to be set aside. 3. The' State-respondents jn their counter-affidavit denied all the material allegations made in the writ petition. It was contended that in pursLiance to the advertisement, applications were received from many applicants including the present writ petitioners. The Director General of Police constituted a Selection Board on 8th Janilary, 2004 for the purpose of conducting recruitment of the Sub-Inspectors. The Selection Board so constitut:ed conducted physical efficiency test of 1730 candidates in all at Tashi Namgyal Academy play Ground, Gangtok from 15th Janilary, 2004 to 19th Janiiary, 2004. Out of the total 1730 candidates, 585 male candidates and 132 female candidates qualified in the physical efficiency test. After the physical efficiency test was over, the department conduct:ed written test at Tashi Namgyal Senior Secondary School, Gangtok on 22nd February, 2004. All the above 585 male candidates and 132 female candidates appeared at the written test. Out of the 585 male candidates 132 candidates qualified for viva-voce test and similarly out of 132 female candidates who had appeared for the written t:est 21 candidates qualified for the viva-voce test. The viva-voce test was conducted from 9th June, 2004 to llth June, 2004. On e T& completion of the test, the selection Board recommended the names of 28 selected candidates to the State Government for approval. The Government approved the names of all the 28 selected candidates on 4th July, 2004. On approval of the merit list by the State Government, the department issued appointment orders on 6th July, 2004 and deputed all the 28 candidates so appointed for undergoing training at North Eastern Policy Academy, Meghalaya. It was accordingly denied that the results of the selection test conducted by the department were not announced and that such result was not displayed in the notice board of the Police Headquarters. It was stated that the results were declared by the Office of the D.I.G. Headquarters and the same was displayed in the notice board of the Police Headquarters aft:er which the same was published in local dailies. [t was denied that 100 marks were allocated for viva-voce test. It was also denied that there was non-compliance of the norms fixed for reservation quota and 100 point roster in the process of selection. According to,>them, the Civil Police, Vigilance, Indian Reserve Battalion and Sikkim Armed Police were amalgamated into one cadre and t:he 28 vacancies that were filled up were taken from roster point no.1 to 28 after amalgamation and as such, there was no violation of the reservation quota or t:he roster point. It was also denied that any candidates were appointed after the results were announced by the department. As regards separate norms for physical fitness of female illE= a L ccandidates in respect of the advertised posts, it was cont:ended that such a norm was necessary as per the prescribed rules in order to ensure gender justice. 4. It was further contended that the cadre strength of Sub-Inspectors in Sikkim Police at the time of issue of the advertisement was 168 and these vacancies were required to be filled up by direct recruitment and promotion at the rate of 50:50. On the basis of such ratio the 50% of the total number of posts both for direct recruitment and for promotion comes to 84 posts each. The vacancy position at the time of inviting the applications to fill ilp the posts was as follows:- Sanctioned Post filled uD Available vacancy 1. Direct Recruitment 84 56 28 2. Promotion 84 48 36 The 28 vacant posts of Sub-Inspectors in the direct: recruitment quota were thus required to be filled lip through competitive examination and accordingly necessary process for recruitment was initiated in t:erms of the relevant rules and other Standing Orders. It is contended that the provision of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 notified vide notification no.27/Gen/DOP dated 8th September, 2000 and the provision of the St:anding Orders issued vide memo no.1/DGP/PHQ dated 28th January, 1993 by the Director General of Police which govern the recruitment of Sub- Inspectors in Sikkim Police were strictly adhered to by the Recruitment Board in the recriiitment process. e .*. It was also contended that the writ petitioners having appeared and participated in the selection and having failed to be selected were precluded from challenging the process of selection, at this stage. It was, therefore, contended that there was neither any non-compliance with the recrLlitment rules or Standing orders nor violation of any fundamental rights of the writ petitioners. The writ petition was, therefore, liable to be dismissed i.n limine' Shri 8. Sharma, assisted by Shri 8. Pokhrel, learned counsel for the petitioners and Shri J. 8. Pradhan, learned Government Advocate assisted by Shri Karma Thinley, learned Assistant Government Advocate for the Staterrespondents' 1 to 4 were heard. Out of 32 respondents the name of the respondent at serial no.32 was deleted following the resignation tendered by him. The other private respondents (5 to 31) remained absent. 6. The submission of shri B. Sharma is that the whole selection was vitiated /-nasmuch as the respondent Police Department failed to comply with the procedure prescribed for the selection of the candidates under t:he relevant rules. It is his further submission that the se[ectjon was vitiated on account of the following:- (i) That the Selection Board constituted by the department was contrary to the relevant rules and therefore nan eat in law; 11 concerned. Hence it was denied tha.t any case was made out by the writ petitioners for setting aside the selection already made by the department. 7. Shri Sharl`1na's submission with regard to the first issue of non-compliance of the relevant rules which prescribe procedure to be followed in the matter of recruitment of Sub- Inspectors in Police is that the Sikkim Government Establishment Rules, 1974 are the relevant rules which govern the recruitment for the post of Sub-Inspect.ors in the police department and according to these rules the examination for such recruitment is required to be conducted by the Establishment Department of the Government and not by the Police Department. According to further submission made by Shri Sharma, the Selection Committee to be constituted for the purpose of conducting the examination under these rules should comprise of the Commissioner, the Secretary, Establishment Depart:ment and other members whereas the Recruitment Board constituted by the Director General of Police in the present case consisted of the officers of that department only. It was therefore submitted that neither the relevant Recruitment Rules were followed nor the Selection Board was constituted in accordance with the rules. 8. The submission made by the learned Government Advocate in reply to the above is that the Sikkim Government Establishment Rules, 1974 cited and relied on by the petitioners in support of the above contention no longer apply to RAE 12 recruitment to police service after the promulgation of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 and the relevant Standing Orders issued by the Director General of Police in this regard. It was his submission that on and after the publication of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000, the recruitment to the police service shall be governed by these rules and the Standing Order issued by the Director General of Police. Thus, it was submitted that the Recruitment Rules which were followed were relevant and the Selection Board constituted under the provision of the said rules was valid. The above would therefore show that the very first controversy between the parties relates to the question of applicability of the relevant Recruitment Rules and Standing Orders, if any on t:he subject. No doubt, the Sikkim government Establishment Rules, 1974 referred to by the writ petitioners contains a cliapter which deals with recruitment. An extract of Chapter 11 of the said rules filed by the writ petitioners and marked as Annexure 7 shows that it prescribes norms for recrLiitment such as method of selection, subject for written test and total marks to be allotted to each subject, marks for viva-voce etc. It however appears that these provisions have been superseded and they no longer apply to recruitment of post including that the Sub-Inspectors in the Police Department. L 13 'ng± 0 A perusal of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 shows that the p,rovision of the rules were to come int:o force from the date of their publication in the official`gazette. The copy of the Government Gazette filed by the respondent-department along with the counter-affidavit and marked as Annexure R-1 shows that these rules were published on llth Sept:ember, 2000. Hence, there is no doubt that on and from .the date of their publication i.e. llth September, 2000 the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 came into force and the same regulates the recruitment, promotion and seniority of the members of the service holding the posts upto and including Inspectors in Sikkim Police Force, Sikkim Vigilance Police Force, Indian Reserve Battalion and Sikkim Armed Police. It is. clear that the Standing Order dated 28th January, 2003 issued by the Director General of Police also deals with advertisement of the vacancy, method of selection, constitution of the Selection Board etc. and thus supplements the above rules. 9. In view of the above position, it is necessary to notice the relevant provisions of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 and the Standing Orders issued by the department for a proper appreciation of the various issues raised by the parties. Rules 4 and 5 of the above rules which provide for Constitution of the Force and the Method of recruitment, age, qualification and eligibility conditions are as follows:- •L 14 "4. Constitul:ion of the Force: The Force shall corrsist of the following, namdy:- (a) Persons holding the posts upto and including Inspectors under Schedule I of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 1981. (b) Persons holding the posts of constable, Head Constable, Assistant Sub- Inspector, Sub-Inspector and Inspector under the Sikkim Vigilance Police Force (Recruitment, Promotion and Seniority) Rules,1981. (c) Persons holding the posts of Sub- Inspectors and Inspector under the Sikkim Armed Police (Recruitment, Promotion and Seniority) Rules, 1989. (d) Persons recruited to the Force in accordance with the provision of these rules. 5. Mcthod of recruitment, age, aualification and eliaibilit`r conditions-. The method of recruitment, eligibility conditions and other matters connected therewith shall be as specified in the Schedules. Relaxation in the upper age limit shall be 2 years in case of Home Guards." 10. Of the two Schedules appended to these rules Schedule I deals with method of recruitment of Constable, Head Constable and Assistant: Sub-Inspector while Schedule 11 deals, with recruitment of Sub-Inspector and Inspector. Since in the present case we are concerned with the recruitment of Sub- Inspectors, it is sufficient to extract the relevant part of the Schedule H as follows:- SCHEDULE 11 A.).-.-- Name of Pay scale Age Mode of Probation Physical Post Recrilitrnent Period Meas(Ireneilt Eligibility Condition class xll Sub-Inspector 5000-150-800018-25 yrs. D 50%I)y direct recruitment 2 yrs. a) lleiglit -5.5- b) Ctiest -3.3- with min, expan- sion of 2- c) Weigtit - 5o Kgs. 15 0 `::`.`-`t li) 50% by 2 yrs. n/a promotion a) Qualifying length of service must be 5 years as Asstt. Sub- Inspector of Schedule I of these mules and as Major Havildar of Slkkim Armed Police. b) M Pst pass the Pre- promotlonal examination if not a class XII pass. The relevant portioris of the Standing Order bearing no.1/DGP/PHQ dated 28th January,1993 are as follows:- "2. As and when assessment of the sufficient number of vacancies accumulate in the Sikkim Police (including Sikkim Armed Police), direct recruitment in the laid down proportion of the vacancies will be made in accordance with this Standing Order by the Selection Board constituted by the DGP/IGP as per Sikkim Police Force (Recruitment, Promotion and Seniority) Rules 1988 (Schedule - I) which was issued vide Government Notification No.126 dated 8.9.88. RI= ADVERTISEMENT On receipt of instructions for recruitment to the post of Sub-Inspectors, vacancies will be advertised in the Sikkim Herald and other local newsDaDers in Sikkim. Special care should be taken I:o publish the advertisement at least 12 to 15 days notice in advance of the last.day of receipt of the applications in the Police Headquart:ers. Wide publicity should be given so that information is available to candidates from all parts of Sikkim State. The dates of Dhvsical examination and efficiency test as well as date of written examination shoilld also be mentioned. Other aeneral cond iti ons aDDlicable to candidates for aDDointment in the Govt. aenerallv. as determined and directed bv Government from time to time will also be incorDorated in the advertisement. 16 a `..,;``` 7. METHOD OF SELECTION The following method of selection will be adopted by the Selection Board : i) All original documents of all the eligible candidates appearing before selection board will be scrutinised by the pre[jminary selection board to determine eligibility. ii) The board will then conduct Dhvsical check of the candidates as Der Drescribed Dhvsical standards as Dara rat above. iii) Those candidates who meet the above standards will be put through a physical efficiency test as prescribed below. 13. CONSTITUTION OFTHE SELECTION BOARD The Board will be constituted bv the DGP in terms of Government Notification No.126. The maximum marks for the interview is 50." 11. As can be seen from the above extract of the rules and the Standing Order, the contention of the writ petitioners that the recruitment of Sub-Inspectors in the police department would be governed by the Sikkim Government Establishment Rules, 1974 is totally incorrect and equally baseless is the further contention that the constitution of the Selection Board is contrary to the rules. It is obvious that the writ petitioners lacked information about the relevant rules applicable to the recruitment of Sub-Inspectors to the police department. It has been clearly laid down that: a direct recruitment in the laid down proportion of the vacancies will be made in accordance with the standing order by the Selection Board constituted by the DGP/IGP in terms of the Sikkim Police (Recruitment, Promotion and Seniority) Rules, 1988. As per the procedure contained in clause 3 of the Standing Orders, the RI= 17 vacancies have to- be advertised in the Sikkim Herald and other local newspaper at least 12-15 days in advance of the last day of the receipt of the application in the Police Headquarters mentioning the date of physical examination, efficiency test as well as the date of writt:en examination and other general conditions as applicable to candidates for appointment in the Government generally. As per clause 7 which provides for method of selection the original documents of the candidates found eligible are required to be scrutinised by the Preliminary Selection Board to determine eligibility and thereafter the Board will conduct physical check of the candidates as per prescribed physical standards and only those candidates who are found to meet the standard will be put through physical efficiency test as prescribed in para 8(a). It is borne oiit by records produced before us that the vacancies in the present case were duly advertised and the written examination and the viva-voce test were duly conducted by the concerned autliorities after going through the procedure laid down in the relevant rules and the St:anding Orders. Therefore, the contention raised by the writ petitioners t:hat the respondent-department failed to comply with the procedure laid down for recruitment of Sub-Inspectors seems to us to be devoid of merit. As regards validity of the Selection Board constituted it may be noted that clause 13 of the Standing Orders already quoted above c]ear]y lays down as to how the Board shall be A;L- 18 constituted. It provides that the Board shall be constituted by DGP in terms of Government Notification no.126 i.e. Sikkim Police Force (Recruitment, Promot:ion and Seniority) rules, 1988. Schedule I appended to these rules provides that he Com.mittee shall be as nominated by IGP which shall consist of not less than 5 and not more than 5 Gazetted Officer. The \ Recruitment Board constituted by the Director General of Police on 8th Janilary, 2004 consist of the following:- 1. Mr. A. C. Negi, lps, IGP/Crime -Chairman 2. Mr. S. D. Negi, IPS, DIGP/Range, Crime and HQ - Member Secretary 3. Mr. M. S. Tuli, Ips, C.0./SAP -Member 4. Mr. Sonam Tenzing Bhutia, SPS, SP/SG -Member 5, Ms. Sarda Rani Lepcha, SPS, CO/IRB -Member 6. Mr. D. B. Giri, SPS, SPITrg. -Member It is stated that out of the above 6 members, Shri M. S. Tuli, IPS, Commandant, Sikkim Armed Police at serial no.3 was deleted on his transfer to South Distri'ct as Superintendent of Police and accordingly 5 of the remaining members constituted the Recruitment Board and conducted the examination. The above Selection Board constituted by the Director General of Police in terms of Standing Orders issued vide memo no.1/DGP/PHQ dated 28th January,1993 thus appears to be in conformity with the Standing Orders. Tlierefore, the contention of the writ petitioners that the constitution of the Selection Board was improper cannot also be accepted. L 19 13. We may next take up the issue regarding marks allocated for viva-voce test. The contention of the writ petitioners in this regard is that the marks allocated for the conversational ability being 25 marks, personality 25 marks and general impression 50 marks the total marks for viva-voce test was 100. It however appears that the submission is without basis. Clause 10 of the Standing Order provides that the total marks allocated for the