IN THE HIGH COURT OF SIKKIM AT GANGTOK Writ Petition (C) No. 29 of 2008 1. Dr. Hemta Pradhan, D/o Shri E.K. Pradhan, R/o Soreng Bazar, P.S. Soreng, West Sikkim-737121. 2. Dr. Nitya Nepal, D/o Shri G.S. Sharma, R/o Deorali P.O. and P.S. Deorali, East Sikkim. 3. Dr. Bishal FTadhan, S/o Late K.B. Pradhan, R/o Namchi Bazar, P.O. Nanichi Bazar. P.S. Namchi, South Sikkim. 4. Dr. Mohan Thapa, S/o Shri D.B. Thapa, R/o Sichey Busty, P.O. and P.S. Gangtok, East Sikfro. . . . Petitioners Versus 1. State of Sikkim, Through the Secretary, Department of Personnel Adm. Reforms and Training, Government of Sikkim, Gangtok. 2. The Secretary, Sikkim Public Service Commission, Gangtok, East Sikkim. 3. Dr. Ruchi Chettri, Central Referral I.Iospital, 5th Mile, Tadong East Sikkim. 4. Dr. Tenzing Choden, R/o Kazi Road, Gangtok, East Sikkim. 5. Dr. Ambika Rai, R/ o Balwathani, Gangtok, East Sikkim. 6. Dr. Amrita Manger, Central Referral Hospital, 5th Mile, Tadong, East Sikkim. 7. Dr. Smriti Rat, Central Referral Hospital, 5th Mile, Tadong, East Sikkim. 8. Dr. Tshering Wangchuk, Offlce of Chief Secretariat, Gangtok, East Sikkim. 9. Dr. Chungsang Ongmu, D/o Shri T.T. Bhutia, A.D., A.A.T.I., S.T. LeFcha Marg, Gangtok, East Sikkim. 10. Dr. Shrijana Gurung, R/o District Court Road, Sichey, Gangtok, East Sikkim. 1 1. Dr. Roshni Sharma, Health Care, Human Service and Family Welfare Department, Gangtok, East Sikkim. 12. Dr. Palmu Chukey Rat, R/o Below A.G. Office, Gangtok, East Sikkim. 13. Dr. Srijana Pradhan, R/o Development Area, Gangtok, East Sikkim. 14. Dr. Bhawana Ihadhan, H.R.D. Department, Government of Sik]dm, Gangtok, East Sikkim. 15. Dr. Bhandana Pradhan, R/o Melli Barar, South Sikkim. 16. Dr. Tashi Pegey Chhopel, R/o Kazi Road, Gangtok, East Sikkin. 17. Dr. Chimi Plamu Theengh, R/o Tamang Gumpa, Sichey, East Sikkim. 18. Dr. Manju Shree Thapa, Manager, Development Area, Gangtok, Bast Sikkim. 19. Dr. Manisha Rai, R/o Nam Nang Road, Rai Bas, Gangtok, East Sikkim. 20. Dr. Pesona Grace Lucksom, R/o Pakyong, East Sikkim. 21. Dr. Upashna Gurung, R/o Krishi Bhawan, Tadong, East Sikkin. 22. Dr. Upasana Lungun Rai, R/o Diesel Power House, Gangtok, East Sikkim. 23. Dr. Poonam Shilal, R/o Forest Colony Road, Gangtok, East Sikkim. i\.,r- 24. Dr. Arati Diyali, M.G. Marg, Gangtok, East Sikkim. 25. Dr. Sunu Hangma Subba, R/o Diesel Power House Road, Gangtok, East Sikkin. 26. Dr. Leezum Foning Lepcha, R/o Pani House, Below Shiva Mandir, Gangtok, East Sikkim. 27. Dr. Patrika Rai, West Sikkim. 28. Dr. Deepa Mala Subba, P.O. Daramdin, West Sikfro. 29. Dr. Prabhat Rai, Chumbung Busty. 30. Dr. Dina Sundas, s.T.N.M. HOspital, Gangtok, East Sikkim. ... Respondents For the petitioners : Mr. K.T. Bhutia, Senior Advocate with Ms. Bandana Pradhan, Advocate. For the respondents : Mr. J.B. Pradhan, Additional Advocate General, Sikldm with Mr. Karma Thinlay, Government Advocate, Mr. S.K. Chettri, Assistant Government Advocate and Mr. J.K. Kharka, Advocate for the official respondent Nos. 1 and 2. Date of Hearing : 16.03.2010 Date of Judgment : 17.03.2010 ;`.,.-` Present: HON'BLE THE CHIEF JUSTICE DR. dusTICE AF`TAB H. SAIKIA duDGMENT AND ORDER C.A.V. Iir. Sathia, CW Heard Mr. K.T. Bhutia, learned Senior Counsel assisted by Ms. Bandana Pradhan, learned Counsel for the petitioners. Also heard Mr. J.B. Pradhan, 1eamed Additional Advocate General, Sikkim with ,Mr. Karma Thinlay and Mr. S.K. Chettri, 1eamed State Counsel along with Mr. J.K. Kharka, learned Counsel for official respondent Nos. 1 and 2. None appears on behalf of the private respondents despite notice. By means of this application ffled under Article 226 of the Constitution of India, the 4 (four) writ petitioners herein, alleging gross violation of Model 100 Point Roster System as notified vide Notification dated 15.11.2003 (Annexure P-2 to the writ petition), in selecting 28 candidates for the posts of General Duty Medical Officers (GDMO) have, inter alia, sought for quashment of the entire selection of those 28 Doctors, who have been arrayed as respondent Nos. 3 to 30 in this writ petition, on being selected as GDMOs, by the fmal select list published on 24.11.2008. It is stated that all these four petitioners belong to Other Backward Classes (OBC) as recognised by the Government of Sikkim for the purpose of employment and other entitlements. It is pleaded that the respondent No. 2 Si]ckim Public Service Commission (SPSC) floated an advertisement being No. 2/2008 dated 01.03.2008, published on 06.03.2008 in a weekly Newspaper "Sikkim Herald" printed and circulated from Gangtok, inviting applications from eligible candidates for the posts of GDMO/ Medical Offi.cers (MO) prescribing, inter alia, various conditions of eligibility including number of vacancies as 28 with clear indication of the reserved categories therein. 6. /.--.` In pursuance of such advertisement, 4 (four) petitioners amongst others offered their candidature for those posts. Accordingly, after receipt of.call letters, they appeared in the Written Test and Viva-Voce Test. It is complained that after appearing the whtten test and before holding the Viva- Voce, one Dr. Kalyan Chandra Dahal, the wit petitioner in W.P. (C) No. 28 of 2008 sought for some informations under the Rights of Information Act, 2005 (RTI). Only after receipt of such informations under RTI, the petitioners have come to know that there was flagrant violation of 100 point Roster System in the impugned selection process. 7. Having found those anomalies in the entire selection process, the petitioner No. 4 along with 2 others including Dr. Kalyan Chandra Dahal, the petitioner in W.P. (C) No. 28 of 2008, approached the Secretary, Department of Personnel, Administrative Reforms and Training, Government of Sikkim vide their representation dated 17.11.2008 making request for rectification in the allocation of roster point to 28 vacancies of Medical Officers vide above mentioned advertisement. •.,:`'`..`.- 8. Having falled to get adeq.uate informations, Dr. Kalyan Chandra Dahal, being a disabled person, approached this Court by initiating a writ proceeding through W.P.(C) No. 28 of 2008, alleging that the Government had not kept 3 % reservation for disabled persons, as reflected in the said advertisement itself, as required under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This Court by its order dated 24.11.2008 disposed of the said writ petition at the motion stage itself keeping in view the statement made in the Court by the leaned Advocate General, Sikkim that necessary correction in the advertisement would be made and accordingly the grievance of the petitioner would likely to be met once necessary correction was made in the said advertisement. Be that as it may, the grievance of the petitioners herein is that after being declared successful in the written examination, they have also appeared in the viva-voce. The respondent No. 2 published a final selection list in order of merit on 24.11.2008. ':..,`,,'`..`..- 10. It is to be noted herein that the said select list dated 24.11.2008 of 28 selected candidates for those posts in question has not been enclosed in the pleadings by either of the parties. On being asked, Mr. Bhutia, the learned Senior Counsel for the petitioners has informed that the names of those 28 selected persons i.e. respondent Nos. 3 to 30 have been written from the Notice Board of the respondent No. 2. Even, the leaned Additional Advocate General has also failed to show the specific final select list published on 24.11.2008. On close pemsal of the records, including the Civil Miscellaneous Application No. 6 of 2010 flled on 23.02.2010, it is found that in the above mentioned CMA No. 06 of 2010, a communication dated 25.11.2008 issued by the Joint Controller (Exam), SPSC addressed to the Secretary, Department of Personnel, Adm. Reforms, Training, fublic Grievances, Career Option & Employment Skin Development and Chief Minister's self Employment Scheme, Government of Sikkim, Gangtok has been annexed as Annexure A-3, which has indicated that on the basis of written examination and viva voce, the SPSC recommended the names of 28 candidates, in order of merit, by duly applying the 100 point roster, for appointment to the posts of GDMO. 11. The case of the petitioners is that although they belong to OBC category, respondent No. 2 has not properly and correctly maintained the loo point roster in publishing the final select list of 28 candidates for appointment to the post of GDMO. It has failed to properly follow the loo point roster system rather the respondent No. 2 has violated the loo point roster system and in the upshot the petitioners, being the candidates from OBC category, are deprived of from their legitimate selection in accordance with the loo point roster system. Had the loo point roster system been accurately acted upon, the petitioners ought to have been selected in 1`/ :`.- 10 terms of 14 % reservation kept for OBC in terms of Notification dated 15.11.2003. 12. Since the respondent No. 2 published the final select list dated 24.11.2008 to the exclusion of petitioners from OBC category, this writ petition has been filed with the following prayers: A Writ of or in the nature of Mandamus commanding the respondents to follow and give full effect to the guidelines 3.2.3(2) of the Notification No. 98/GEN/DOP dated 15.11.2003 by allocating 28 advertised posts strictly in accordance with Model 100 Point Roster. ii) A writ of or in the nature of Mandamus commanding the respondents to allocate at least 6 posts out of 28 for UR candidates and 6 posts for OBC candidates including OBC (W) out of 28 advertised posts. iii) A Writ of or in the nature of Mandamus commanding the respondents to cancel/revoke the final result declared on 24.11.2008 by affixing on the notice board of the office of the respondent No. iv) In terms of prayer i) to iv) above, exparte ad interim stay/ injunction restraining the respondents fI-om giving further effect to the final result of the examination conducted in pursuance to the advertisement annexure P-12 and declared on 24.11.2008 or issuing appointment orders. Any order/orders/direction/directions/ relief/ reliefs which are found deem fit and proper in the facts and circumstances of the case." `.i`.`... 1.1 13. This instant petition is contested by the State respondents and refuting all contentions and allegations made therein, the respondent Nos. 1 and 2 have filed their respective counter affidavits. 14. The respondent No. 2 in their affldavit has stated that having received applications from 103 candidates, it issued admission certificates only to 86 eligible applicants to appear in the written examination to be held on 07.07.2008 and 09.07.2008. It is pleaded that only 45 candidates passed the written examination and those 45 candidates were asked to appear in the interview in two dates namely, on 13.11.2008 and on 14.11.2008. Having held the interview, the respondent No. 2 fmalised the merit list on the basis of marks obtained by each candidate in the whtten examination and the viva voce and prepared the combined as wen as separate merit list for each category of candidates, namely, ST, SC, OBC, MBC for whom reservations were made and notified and accordingly a list of 28 candidates who were declared as qualified for appointment as GDMO/MO was published by respondent No. 2 on 24.11.2008. 15. In the said affidavit, the selection list in merit order has also been annexed as Annemre R-3 which contains the ..i..`....... 12 names of 45 candidates in order of merit including the names of the petitioners and in the said select list, au the four petitioners i.e. petitioners No. 1, 2, 3 and 4 have been placed in order of merit at Serial Nos. 28, 22, 34 and 3 respectively, which are as under: "sl. Ron No. No. Name of candidate . Gender categorv 3. 69 Mr.MohanThapa (Chettri) (..Petr.tioner JVo. 4/ M 0BC 22. 57 Kin.NityaNepal (..Petif roner No. 2) F OBC 28. 40 Kin. Hemtapradhan (..Petitioner No.1) F OBC 34. 70 Mr. Bishal pradhan (..PetitionerNo.3) M OBC 16. According to the respondents, particularly, respondent No. 2, the entire selection process with regard to recruitment of 28 posts of GDMOs/MOs was done strictly as per the rules prescribed for selection by duly applying loo point roster. After proper and correct placement of the candidates according to the loo point Roster system in their respective reserved category, the petitioner have not been `.)'..... 13 found eligible for their selection and being unsuccessful candidates, they could not be selected. 17. Both the respondents in their affidavits have also raised preliminary objection as regards the maintainability of the writ petition in the present form alleging that the petitioners having taken the written test as well as viva voce without any demur or protest, cannot be permitted to challenge the selection process of 28 candidates i.e. respondent Nos. 3 to 30. 18. The core question now that needs to be decided in the case in hand is that as to whether the petitioners have any locus to challenge the selection list dated 24.11.2008 on the ground of violation of 100 point roster system as a result of which they, although belong to OBC category, have been deprived illegally for the selection for the post of GDMOs/MOs. 19. Primarily, it would be necessary and essential to look into. the terns and conditions including reservation criteria so mentioned in the advertisement dated 01.03.2008. The relevant portion of the advertisement No. 2/2008 dated 01.03.2008 may be extracted as under: RIEEi 14 " Sikkim public service commission Gangtok ADVERTISEMENT N0 2/08 DATED: 01/03/2008 Applications are invited from the eligible candidates for the posts of GDMO/Medical Officer on temporary regular basis in the pay scale of Rs.7000-225-11500, under Health Care, Human Services and Family Welfare Department. CONI)ITIONS OF` EI.IGIBILITY 5. No. of vacancies Sl. Category No. ST ST nyomen) No. of Post ST (Sports person & Artisan of excellence) 1 MBC6 MBc nyomen) 6 OBC Ovomen) SC SC Women) U.R. Total 3 2 1 1 28" 20. It is manifestly clear from the advertisement itself that no OBC quota for Men' has been reserved in the said advertisement. That being so, the petitioners No. 3 and 4, being the male candidates from OBC did not ha.ve any right to seek selection against reserved quota for men from OBC category. At least they can be considered against Unreserved' quota. However, from the select list (Annexure R-3) it appears J.\...`.... 15 that both the petitioners are not even eligible for selection in unreserved quota also. It is also admitted fact that these two petitioners have never challenged this advertisement dated 01.03.2008 raising the question as regards keeping of reserved category for OBC (Men) candidates before appearing in the written test and viva voce test. 21. Insofar as the case of the petitioner Nos. 1 and 2 who are OBC (Women) candidates, is concerned, a careful perusal of the combined select list (Annexure R-3) containing the names of 45 candidates who took viva-voce, would manifestly indicate that three posts reserved for OBC (Women) candidates have already been given in order of merit to S1. No. 13 Kin. Roshni Sharma, S1. No. 17 Kin. Srijana Pradhan and S1. No. 19 Kin. Bandana Pradhan, when petitioner Nos. 1 and 2 have been placed at S1. No. 22 and 28, much below of above three OBC (Women) candidates. 22. Besides, in view of the above fact situation, it can be well said that having participated in the selection process without any demur and being unsuccessful candidate, the petitioners are, therefore, estopped and precluded from questioning the selection process. <j\`. 16 23. In the premises of above, this court is of the view that the petitioners, having accepted the conditions laid down in the advertisement and having participated in the said selection process, now cannot be permitted to challenge the entire selection process in the guise of violation of loo point roster system. 24. Consequently, this court is of the view that the writ petition itself devoid of any merit and accordingly the same stands dismissed. 25. At this stage, Mr. Pradhan, the leamed Additional Advocate General has submitted that on 23.02.2010 the respondent No. 1/State Government has preferred a Miscellaneous Application registered as Civil Miscellaneous Application No. 06 of 2010 arising out of the instant wit petition with the prayer that the respondent No. 1 may be allowed to appoint 28 doctors during the pendency of this writ petition and the same has been taken up by this Court on 26.02.2010. This Court, on 26.02.2010, has felt it appropriate to take up the instant miscellaneous application also for consideration at the time of hearing along with this wit petition. <.',`,....-`. 17 26. Pertinent to mention here that at the time of hearing of the instant writ petition on 15.09.2009, this Court directed the Government to consider the case of the four petitioners herein by creating posts to appoint them along with 28 other GDMOs. The relevant portion of the order dated 15.09.2009 may be reproduced as under: "10.15.09.2009 In the course of hearing it is felt that the Government should consider the case of the 4 (four) petitioners, being the qualified Medical Officers working in various Government Hospitals on contract basis and probation, for their appointment as prayed for in the writ petition, if necessary by creation of posts, making such consideration strictly applicable only as a special case for the petitioners. Accordingly , we direct the Government to consider such proposal. Sd/- Judge Sd/- Chief Justice " 27. That apart, as already mentioned earlier, the case of one Dr. Kalyan Chandra Dahal, being the disabled candidate, according to the State-respondent, has also been pending before the State Government for consideration. i:.I.......- 18 28. In view of the above, respondent No. 1 State of Sikkim in the Miscellaneous Application No. 06 of 2010 particularly in paragraph 8 has fairly submitted that the Government, in principle, in consideration of the respective orders passed by this High Court, has decided to appoint five persons namely, Dr. Kalyan Chandra Dahal, Dr. Hemta Pradhan, Dr. Nitya Nepal, Dr. Bishal Pradhan and Dr. Mohan Thapa as GDMOs by creating five more posts. 29. For the sake of ready reference, paragraphs 6, 7 and 8 of the Civil Miscellaneous Application may be quoted as under: "6. That on 15.09.2009 during the hearing of this wit petition, .the Honfole Court directed the Government to consider the case of the four petitioners by creating posts to appoint them along with the 28 other doctors as GDMO's. The relevant portion of the order dated 15.09.2009 is extracted herein below: "10.15.09.2009 In the course of hearing it is felt that the Government should consider the case of the 4 (four) petitioners, being the qualified Medical Officers working in various Government Hospitals on contract basis and probation, for their appointment as prayed for in the writ petition, if necessary by creation of posts, making such ``!`.,i.. ---® 19 consideration strictly applicable only as a special case for the petitioners. Accordingly, Government to proposal. Sd/- Judge we direct the consider such Sd/- Chief Justice A copy of the said order dated 15.9.2009 is annexed hereto and marked as Annexure A-5. 7. It is pertinent to submit that earlier one unsuccessful candidate nalnely Dr. Kalyan Chandra Dahal, had filed a writ petition being writ petition No. 28 of 2008, (Dr. Kalyan Chandra Dahal -vs- State of Sikkim) wherein, he had also challenged the selection of the 28 Doctors as GDMOs on the ground that there was no reservation for disabled persons as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & F\ill Participation) Act, 1995 in the advertisement dated 01.03.2008 inviting application for filling up the post of GDMOs. During the admission hearing on 24.11.2008, it was submitted by the then Ld. Advocate General of the State that the grievance of the petitioner is likely to be met once the necessary correction is made in the said advertisement. Accordingly the Honble Court vide order dated 24.11.2008 disposed of the matter in view of the above submissions made by the Ld. Advocate General. A copy of the said order dated 24.11.2008 is annexed hereto and marked as Annexure A-6. 8. In view of the order dated 15.09.2009 passed by the Honble Court in Writ Petition 20 (C) No. 29 of 2008 (Dr. Hemta Pradhan & Ors - vs- State of Sikkim & Ors) and order dated 24.11.2008 in W.P. (C) No. 28 of 2008 (Dr. Kalyan Chandra Dahal -vs-State of Sikkim & Ors) a copy of which has been annexed to this application as Annexure A-5 and Annexure A-6 respectively, the Government in consideration of the above orders have decided in principal to appoint the five (5) petitioners as GDMOs by creating five more posts." 30. Keeping in view the sincerity and gesture expressed by the respondent No. 1 to appoint these five candidates including the petitioners herein as named above, inspite of dismissal of this wit petition for the reasons indicated above, this Court hopes and trusts that the State-respondents shall proceed and act in accordance with their own statement, commitment and submission made in those paragraphs as reproduced hereinabove and take necessary action to appoint these five persons hereinabove including Dr. Kalyan Chandra Dahal, the writ petitioner in W.P.(C) No. 28 of 2008 at an earlier possible date along with other 28 persons/respondent Nos. 3 to 30. 31. Pertinent to notice herein that Article 25 of the Universal Declaration of Human Rights, 1948 provides that: "Everyone has a right to a standard of living adequate for the health and well-being of himself illi 21 and his family, including food, clothing, housing and medical care, and necessary social services, and the right to security in the vent of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control." The applicability of such provision has been envisaged in Article 21 of the Constitution of India, i.e. "No person shall be deprived of his life or personal liberty except according to procedure established by lawl' which has also extended to right to health. That being so, be it mentioned herein that it is the immediate need and urgent necessity to implement the Government policy for "Health for All". Hence Health Care Services in the country in general and in Silckim in particular, have to be taken, expanded and improved on priority basis and the State Government shall take all necessary actions to give more emphasis and importance in the health service sector by creating adequate infrastructure for such purposes including appointment of more Doctors and increase in manpower so that people of Sikkim could get best medical care. Needless to say that our Nation's prosperity, growth and development depend on health of every individual citizen. 32. Accordingly, the civil Miscellaneous Application No. 06 of 2010 arising out of this writ petition also stands per 22 disposed of allowing the State respondent No. 1 to appoint all selected 28 candidates along with the five candidates as mentioned above. jks/ `j'::,,:....,..ii- C Chief Justice