==T-_ _ --- f,Lil IIN THE HIGH COURT OF SIKKIM AT GA"GTOK (WRIT junsDlcTION) Writ Petition (C) No. 38 of 2007 Smt. Shraddha, Wife of Shri Dhiraj Subedi Resident of West Pendam, SaThu, East Sikkim. . . . Petitioner -Versus- 1. State of Sikkim, Througb the Chief Secretary, Government of Sikkim, Gangtok- 2. The High Court of Sikkim, Through the Registrar General, High Court of Sikkim, Gangtok, East Sikkim. 3. State of Sikkim Through the Secretary, Department of Personnel, Government of Sikkim, Gangtok, East Sikkim. 4. State of sikkim, Through the Secretary, Department of Law, Government of Sikkim, Gangtok, East Sikkim. ...Respondents. For the petitioner: 4 Mr. B. Sharma, Sr. Advocate with Mr. |J.K. Kharka, Advocate. \ For the respondents: Mr. J.B. Pradhan, Additional Advocate r General, Sikkim with Mr. Karma Thinlay, Government Advocate and Mr. S`.K.-`Chettri, Assistant Government Advocate `for Respondents No. 1, 3 I and 4. ii Eii= Mr. A.K. Upadhyaya, Senior Advocate with Mr. Ashim Chhetri and Mr. D. Tewari, Advocates for Respondent No. 2. Dcite Of IIearing Dcite Of dudgmerit 25.08.2009, 15.09.2009 cnd 24.11.2009 24.11.2009 PRESENT: HON'BLE THE CHIEF JUSTICE MR. dusTICE AF`TAB H. SAIKIA HON'BLE MR. JUSTICE A.P. SUBBA, +UDGE JruDGMENT AND ORDER loRALl Satklab C| Heard Mr. a. Sharma, leaned Senior Counsel assisted by Mr. J.K. Kharka, learned Counsel for the petitioner. Also heard Mr. J.B. Pradhan, learned Additional Advocate General, Sikkim with Mr. S.K. Chettri, leaned State Counsel representing official respondents as well as Mr. A.K. Upadhyaya, learned Senior Counsel assisted by Mr. D. Tewari, learned Counsel appearing on behalf of respondent No. 2/High Court of Sikkim. 2. The two fundalnental questions which ha.ve been agitated in this writ petition filed by the petitioner under Article 226 of the Constitution of India are as to (i) whether the reasons and grounds put forward by the State Government/respondents in expressing its { b`. 00 - inability to accept the recommendation of the Full Court of the High Court of Sikkim (hereinafter referred to as `High Court) for the appointment of one Judicial Officer under Sikkim LJudicial Service (for short, `SIJS') are correct, reasonable, justified and tenable in law; and (ii) whether the concurrence given by the Honble the then Chief Justice of the High Court alone instead of the High Court with the views of the State Government/respondents not to accept the recommendation of the Full Court of the High Court, is permissible under the law. 3. In order to resolve the issues raised herein, it would be appropriate to underline the relevant facts of the case in brief as revealed from a close perusal of the pleadings exchanged by and between the parties, being placed on record. 4. The High Court through its Registrar General published an advertisement on 14.09.2006 in a local English Dally Newspaper "Sikkim Express" inviting applications to fill up one post of Civil Judge-cum-Judicial Magistrate (1st Class) in the cadre of SJS in the (Grade Ill) so as to reach the Office of the Registrar General not later than 26.09.2006 by 4.00 PM. The advertisement is extracted hereunder: " EMPLOYMENT NOTICE Applications are invited to fill up one post of Civil Judge-cum-Judicial Magistrate (1st Class) in the cadre of Sikkim Judicial Service in the (Grade Ill) scale of pay _ __|F_ of Rs.9000-250-10750-300-13150-350-14550 from candidates who are citizens of India; not more than 35 years of age as on 26.09.2006 and a holder of a degree in law granted by a University established by la.w in India. 2. Recruitment shall be made on the basis of a competitive written examination followed up by Viva Voce test, if found suitable for the same, to be held by the High Court. 3.(i) The written examination shall consist of:- er-I. Procedural Law (a) Code of Civil Procedure, (b) Code of Criminal Procedure, (c) Indian Evidence Act and (d) Limitation Act. er-II. Substantive Law (a) Hindu Law (b) Indian Contract Act (c) Sale of Goods Act (d) Partnership Act (e) Specific Relief Act (I) Transfer of Property Act (g) General Clauses Act and (h) Indian Penal Code. Note: Each paper shall be of two and half hours duration and shall cqrry 200 marks each. (ii) Viva-voce: This will carry loo marks. (A) Only those candidates shall be called for Viva-voce who shall obtain the highest marks in aggregate of both the papers in the written examination upto the extent of five times of the number of posts as specified in the advertisement inviting applications. (8) Selection of candidates shall be made on the basis of the aggregate marks obtained in the written examination and Viva-voce. 3.(i) No person who Ji.as rTfore than one wife living and no female candidate who is married to a person, who already has a wife living, shall be eligible for appointment to the service unless the Governor, for special reasons, exempts such persons from the operation of the rule. 4. Application furnishing all the particulars of eligibility accompanied by attested copies of the following testimonials and three passport size photographs should be sent by `Registered post acknowledgment due' so as to reach the undersigned not later than September 26, 2006 by 4.00 P.M. (i) Educational Qualifications, (ii) Enrolment certificate under the Advocates. Act,1961 (iii) Certificate of Experience at the Bar, (iv) Certificate of bate of Birth, 5. Applications which are not accompanied by the relevant documents shall be rejected. 6. The candidates found eligible on preliminary scrutiny shall be called for written examination by the High Court. 7. No TA/DA will be paid for appearing in the examination and for the Viva-voce. 8. The Registry of the High Court of Sikkim reserves the right to accept or reject any application with or without any reason. *VERY IMPORTANT NOTE:n Candidates are required to note that the High Court has proposed to the State Government the amendment of Rules for inclusion of Local Laws in Paper I and Constitutional Laws of India in Paper 11. If the proposed amendments made in the regard are accepted by the State Government and notified in the mean time, then the above subjects will also be included in the written examinations the duration of which shall be three hours instead of 2 1/2 hours. Local Laws: - (a) Property Law, (b) Registration Law, (c) House Rent & Eviction Laws, (d) Land Law, (e) Court Fee & Stamp Laws, (I) Adoption Law, _ tt5 a (g) Civil Courts Act, (h) Municipal Law, (i) Interpretation and General Clauses Act, 0) Notification on Issuance of Certificate of Identification, (k) Debt Law ap.d (I) Rural Indebtedness Act. Substantive Law:- (a) Constitutional Laws of India. Meenakshi M Rat Registrar General (0) High Court of Sikkim at Gangtok " 5. The petitioner, a Master Degree holder in Law (LL.M), being eligible for appointment to the said post, responding to the above quoted advertisement took the written test as well as the viva. voce test along with other candidates. 6. The High court in terms of the sikkim Judicial service Rules, 1975, as amended uptodate (for short, the Service Rules) on the basis of the written test and viva-voce conducted for such purpose prepared on 16.12.2006 a Select List of six candidates mentioning its validity for one year including the petitioner in order of merit. Since the petitioner had been placed in first position, her name was recommended by the Full Court to the State Government for appointment as Civil Judge-cum-Judicial Magistrate of SJS. `,\:.:.- 7. The select List dated 16.12.2006 along with the informations regarding total marks obtained by all the six candidates including the petitioner, as put on record, is reproduced hereinbelow: " HIGH COURT OF SIKKIM GANGTOK NOTICE As directed, I notify the following informations regarding the total marks obtained by the following candidates in the Written Examinations and in the interview held by the Full Court today:- S1 Nane Roll Paper I Paper 11 Vava Total No. No. Total Total Voce Marks Marks Total 200. 200. Marks Marks Marks 100 obtained obtained Marksobtained 1. Shri Ajay KumarShrivastava 38 106 93 43 242 2. Miss You saLachenpa 37 81 97 42 220 3. Smt. Shraddha 19 84 89 72 245 4. Miss Pema Lahmu 15 89 82 40 211 5. Shri Dhirai Subedi 04 89 79 41 209 6. Miss Kessang DikiBhutia. 07 97 70 45 212 [2] The following Select List [valid for one year] has been prepared by the Full Court: - 1. Smt. Shraddha 2. Shri Ajay Kumar srivastava 3. MissYousaLachenpa 4. Miss KessangDiki Bhutia. [3] The Full Court has recommended the name of Smt. Shraddha to the State Government for her appointment as Civil Judge Gum Judicial Magistrate of the Sikkim Judicial Service. By order. Sd/- (Harish Kumar Sharma) Registrar General In-Charge 16-12-2006 " .:i 8. However, the respondents did not take any action to appoint the petitioner to the post so advertised by the High Court. Accordingly, the petitioner approached the competent authority under the Right to Information Act, 2005 (for short, `the Act') seeking certain informations as regards her appointment. In response to the application, the concerned officer under the Act informed the petitioner on 25.06.2007 that the informations sought for by her could not be provided in terms of section 8(1)(e) of the Act. Thereafter, the petitioner issued a Legal Notice dated 14.11.2007 to the respondents requesting the competent authority to issue appointment order within 15 days. 9. Situated thus, since no action was taken within the period specified in the notice by the official respondents, the petitioner has initiated this writ proceeding by filing the instant writ petition on 07.12.2007 just couple of days ahead of the expiry of the Select List dated 16.12.2007 within a period of one year. 10. Later on, the petitioner has sought for amendment of the writ petition for incorporation of certain informations which has been permitted by this Court and accordingly an amended writ petition has been filed. 11. In the amended writ petition, the petitioner has prayed for following reliefs: 11 I "Under the facts and circumstances it is most humbly prayed that the Honble Court may be pleased enough to issue; RELIEFS '1___ _I 1. Writ, order or direction to the Respondent No.1, 3 and 4 to act on the recommendation of the Honble the High Court and to appoint the petitioner in the post of Civil Judge-Gum-LJudicial Magistrate. 2. Writ, order or direction in the nature of Mandamus directing the Respondent No. 1, 3 and 4 and/or each of the respondents to act as per the recommendation of the Honfole High Court. 3. Writ, order or direction to the Respondent No.1, 3 and 4 and/or each of the respondents to keep the recommendation of the Honble High Court valid till the petitioner is appointed in the post of Civil Judge-cum- Judicial Magistrate. 4. Writ, order or direction to the Responder`.t.No.1, 3 and 4 and/or each of the respondents restraining them from making arty advertisement for the post for which the petitioner is entitled to be appointed. 5. Writ, order or direction to the Respondent No.1, 3 and 4 and/or each of the respondents to furnish all files pertaining to the appointment to the post of Civil Judge- cum-Judicial Magistrate from the date when the post was advertised till date. 6. Writ, order or direction to the Respondent No.1, 3 and 4 and/or each of the respondents to affect appointment to the petitioner from appropriate date as Your Lordship may deem fit and proper. 6-A. Writ, order or direction to the Respondent No. 2 to withdraw the Annexure P-12 and stay of entire follow up action by virtue of Annexure P-12 . 7. Any other relief or reliefs for which the petitioner is entitled to." 12. After the recommendation was being forwarded by the High Court, the Respondent No. 3 responding to the High Court's recommendation, by seeking certain information regarding the 10 number of cases filed during the preceding one year in the Court of Civil Judge-Gum-LJudicial Magistrate, North District at Mangan, made a communication dated 19.04.2007 (Annexure R-3 appended to the amended additional counter affidavit filed by the State respondents through one Joint Secretary to the Government of Sikkim, Department of Personnel, Administrative Reforms & Training, etc.) quoting the subject "Direct recruitment of one post in the cadre of Sikkim Judicial Service" to the High Court Registry. The communication dated 19.04.2007 runs as under: - "GOVERNMENT OF SIKKIM DEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING, PUBLIC GRIEVANCES, CAREER OFTIONS a EMPLOYMENT, SKILL DEVELOPMENT AND CHIEF MINISTBR'S SELF EMPLOYMENT SCHEME GANGTOK-737101 No. 858/G/DOP Dated: 19.04.2007 To, The Registrar General, High Court of Sikkim, Gangtok. Subject: Direct recruitment of one post in the cadre of Sikkim .udicial Service Sir' With reference to your letter No. V(13) Confdl/HCS/6683 dated 16.12.2006, I am directed to request you to kindly arrange to send the information on the number of cases filed during the preceding one year in the Court of Civil Judge-cum-Judicial Magistrate, North District at Mangan. Yours faithfully, Sd/- 11 JOINT SECRETARY TO THE GOVT. OF SIKKIM DEPTT. OF PERSONNEL.. ADM. REFORMS, TRAINING, PUBLIC GRIEVANCES, CAREER OPTIONS & EMPLOYMENT, SKILL DEVELOPMENT AND CHIEF MINISTER'S SELF EMPLOYMENT SCHEME" 13. In reply to such communication, the Registry vide its communication dated 04.09.2007 informed that the number of civil cases filed during the preceding year 2006-2007 in the Court of Judge (North) is nil. The said communication dated 04.09.2007 reads as under: "HIGH COURT OF SIKKIM GANGTOK Ref. No. 4(15)Confdl/HCS/2277 Da:i yf 3.. 4|9/Or To, The Joint Secretary-I, Department of Personnel, Adm. Reforms, Government of Sikkim, Gangtok-737101. Ref: Your letter No. 3923 DOP dated 01.09.2007. With reference to your above cited letter, I am directed to inform you that the number of Civil cases filed during the preceding year 2006-2007 in the Court of Civil LJudge (North) is nil. Yours faithfully, Sd/- (Rudra Bhutia) OFFICER 0N SPECIAL DUTY (CONFIDENTIAL)" \1 12 14. Nonetheless, in the meantime, no action has been taken by the Government as regards appointment of the petitioner in terms of the recommendation of the High Court. The records also do not disclose the rejection of the recommendation made by the High Court. 15. On the other hand, it transpires from the records that the State Government through its Joint Secretary wrote to the High Court again on 21.12.2007, immediately after the initiation of this present writ proceeding, seeking information on the number of civil suits filed during the period of January, 2007 to December, 2007 in the Courts of Civil LJudge-Gum-LJudicial Magistrate, West District, South District and East District. 16. On 28.1.2008, the Joint Secretary issued a reminder to this Court requesting for making the information sought earlier available at the earliest as the matter was of an urgent nature and of utmost importance. 17. In reply to the above communication, the High Court Registry informed the Government vide letter bearing No. 4(15) Confdl/ HCS/'4783/HCS dated 05.02.2008 that there were total 32 cases pending in all Courts of Civil Judge in the State showing the break up as 17 cases in the. Court of Civil iJudge-cum-|Judicial Magistrate, East at Gangtok, 15 cases in the Court of Civil Judge, South at 13 1; Namchi and no pendency in the Courts of Civil Judge at Gyalshing, 1, i West and at Mangan, North. The following is the extract of the I communication dated 05.02.2008: - "HIGH COURT OF SIKKIM GANGTOK No. 4(15)Confdl/HCS/4873/HCS Date: 5/02/08 To, The Joint Secretary, Department of Personnel, Adm. Reforms, Government of Sikldm, Gangtok-737101. Ref: Your letter No. 4904 DOP dated 21.12.2007. Sir' With reference to your above cited letter, I am directed to inform you that the number of Civil cases filed during the period of LJanuary, 2007 to December, 2007 in the Court of Civil Judge-cum-LJudicial Magistrate East District, West District, North District and South District are as follows: Civil Judge-cum-Judicial Magistrate (East) at Gangtok Civil Judge-cum-Judicial Magistrate Ovest) at Gyalshing Civil Judge-cum-Judicial Magistrate (North) at Mangan Civil Judge-cum-Judicial Magistrate '(South) at Namchi Total : 17 00 00 15 32 Yours faithfully, Sd/- 5.2.08 (Tshering Dolkar) ADDL. REG.(I&E)-CUM-P.P.S. T0 THE HONBLB CHIEF JUSTICE." 14 18. Surprisingly, it is only after a lapse of nearly one and half years from the date of publication of Select List 16.12.2006 that the State Government/respondent has again sent a communication vide letter dated 06.03.2008 issued under the signature of the C ommis sioner-cum-S e cretary, D epartment of Pers onnel , Administrative Reforms and Training addressed to the Registrar General, High Court whereby referring to Section 3 of Sikkim Civil Court Act, 1978 (for short, `Civil Act') it is informed that since no civil cases are filed and are pending either in the Court of the Civil Judge-cum-iJudicial Magistrate (West ) or in the Court of Civil Judge-cum-Judicial Magistrate (North), and the requirement of the filling up of the post of Civil LJudge-cum-Judicial Magistrate being non-existent, the State Government is unable to consider and accept the recommendation made by the High Court for the filling up the post of Civil Judge. It is also requested that the High Court may take the entire matter in its. proper prospective in keeping with the principle accepted by the Honble Supreme Court of India and accept the position as elaborated and concur with the view of the State Government. 19. The communication dated 06.03.2008 is quoted hereunder: "GOVERNMENT OF SIKKIM DEPIT. OF PERSONNEL, ADM. REFORMS, TRG. PUBLIC GRIEVANCES, CAREER OFTIONS & EMPLOYMENT, SKILL DEVELOPMENT AND CHIEF MINISTER'S SELF EMPLOYMENT SCHEME GANGTOK. .,.i.,...,-.: 15 No. 9129/G/DOP. DATED: 6/03/2008 To' The Registrar General, High Court of Sikfro, Gan8tok. Sub: Direct recruitment of one Dost in the cadre of Sikkim Judicial Service. Madam' Ple ase refer to your letter No. V(13)Confdl./HCS/6683 dated 16.12.2007. In this regard I am directed to inform you that the recommendation made by the High Court of Sikkim for filling up of the post in the cadre of Sikkim Judicial Service was duly exalnined and considered by the State Government. While examining the matter it has been found that: - 1. The Supreme Court has exempted the State from the requirement of filling up of any vacant post in the judiciary due to peculiar condition in the State i.e. limited cadre of Judiciary and low pendency of cases (in Civil appeal no.1867 of 2006 order dated 4.1.07) . The Honble High Court of Sikkim too has in its earlier decision concurred with the view of the Supreme Court. in view of limited cadre and low pendency of cases vide its letter no.7351/HCS dated 11.01.07. 3. The basic requiremerit of provisions of section 3 of Sikkim Civil Court Act, 1978 being non-existent the State Government has no option but to express its views that the recommendation of the High Court could not meet the legal requirement and as such the State Government is unable to consider it. As per the provisions of Section 3 of 16 Sikkim Civil Court Act, 1978 it is provided that the post of Civil Judge-Gum-LJudicial Magistrate shall not be filled up unless at least 30 civil suits have been filed within the preceding one year in respect of places where there is no Court of Chief Judicial Magistrate and the post of Civil Judge-Gum- Judicial Magistrate is lying vacant at such places. Sin-ce, as per the letter of the High Court vide no. 4(15)Confdl./HCS/4873/HCS dated 5.2.008 it has been clearly indicated that no Civil cases have been filed either in the Court of Civil Judge-cum- Judicial Magistrate, West or in the case of Civil LJudge-cum-Judicial Magistrate, North it has therefore been found that requirement for filling up the post being non-existent, the State Government is unable to consider it and accept the recommendation made by the High Court of Sikkim for the filling up the post of Civil iJudge. This is also in keeping with the principle accepted by the Honble Supreme Court of India in its order referred above. It is accordingly requested that Honble High Court of Sikkim will take the entire matter in its proper prospective and accept the position as elaborated herein above and also concur with the view of the State Government. Yours Sincerely, Sd/- ( N. Tshering ) Commissioner-cum-Secreta DOP" Significantly in response .i:o tlrie said communication dated 06.03.2008, the Registrar GeneraJ. of this Court on 10.03.2008 has informed the State Government that the Honble Chief Justice of the High Court is pleased to accept the stand of the State Government on the subject mentioned above, which is quoted as below: •. .t` 17 REGISTRAR GENERAL HIGH COURT OF SIKKIM GANGTOK Ref. No.V(13)Confdl./HCS/5848 Date 10/03/2008 To, Shri N. Tshering, Commissioner-Gum-Secretary, Department of Personnel & Admin. Reforms, Government of Sikkim, Gangtok. Sub: Direct recruitment of one post in the cadre of Sikkiln Judicial Service. Ref.: Your letter No.9129/G/DOP, dated 6.3.2008. Sir' With reference to the above cited letter, I aln directed to inform you that Honble the Chief Justice has been pleased to accept the stand of the State Government on the above mentioned subject. Yours faithfully, Sd/- Lf) I 3 / 08 (Meenakehi M. Raf) REGI STRAR GENERAL" 21. On 28.03.2008, again the Government referring to its earlier letter dated 06.03.2008, has written to the Registrar General of the High Court stating that the communication dated 06.03.2008 does contaj.n cert:ain incorrect informations made inadvertently therein with reference to the provisions of Section 3 of the Civil Act, which `i`\'...`-.`..` 18 had already been amended and expressing sincere regret a request has been made to treat the said letter ;s withdrawn and deleted. The communication has clearly stated that the State Government has duly examined the matter regarding filling up the post in the cadre of Sikkim Judicial Service and as such keeping in view the order dated 04.01.2007 passed by the Supreme Court in Civil Appeal No. 1867 of 2006 exempting the State of Sikkim from the requirement of filling up of any post in the judiciary due to peculiar condition in the State i.e. limited cadre of Judiciary and low pendency of cases, and also the fact that no cases have been filed either in the Court of Civil Judge-cum-Judicial Magistrate, West or North, the State Government is of the view that the requirement of the filling of the post as recommended by the High Court of Sikkim does not exist. Accordingly once ag¥n a request, although c`n an another pretext, has been made to the High Court to take the entire matter in the proper perspective and accept the position as elaborated therein and accordingly to concur with the views of the State Government. 22. F`or the sake of convenience, the communication dated 28.03.2008 may be extracted as under: " DEPARTMENT OF PERSONNEL A.R. & TRAINING, PUBLIC GRIEVANCES, CAREER OPTIONS, EMPLOYMENT SKILL DEVELOPMENT AND CHIEF MINISTER'S SELF EMPLOYMENT SCHEME No. 1888/G/DOP 19 To, The Registrar General, High Court of Sikkim, Gangtok. Sub: Direct recruitment of one DATED: 28.3.2008 ost in the cadre of Sikkim LJudicial Service. Reference letter No. 9129/G/DOP dated 6.03.2008. Madan, Please refer to your letter No. V(13)Confdl./ HCS/6683 dated 16.12.2007 and the reply given vide our letter cited under reference above, I am directed to draw your kind attention that in the said letter vide No. 9129/G/DOP dated 6.3.2008 at serial No. 3 reference were made to the provisions of section 3 of the Sikkim Civil Court Act, 1978 which were made due to inadvertence for which we express our sincere regret and the reference to the said provision of the law which has already been amended may kindly be treated as withdrawn and deleted. However, on the issue of the recommendation made by the High Court of Sikkim for filling up of the post in the cadre of Sikkim JudiciaJ. Service, the matter was duly examined by the State Government. While examining the matter it has been found that:- The Honble Supreme Court has exempted the State of Sikkim from the requirement of filling up of any vacant post in the judiciary due to peculiar condition in the State i.e. limited cadre of Judiciary and low pendency of cases (in Civil appeal