IN THE HIGH COURT OF SIFKIM AT GANGTOK Writ Petition (C) No.2 of 2002. shri]`B``Khach -ve_rs.u_a.- S,tale o,f Sikldm thro.ugh Chief Secretary, Government of Sikkim, Gangtok` S`ecretatry, Department o`f Personnel, AR` & Trairfug, GQvemment of Sikkim, Gangto.k` Secretary, D eparfuent o.f Education, Government of Sikkin, Gangtok` S.e`cretary, D ep.artment o`f Sikkim NatiQnalised Transp.ott, GQvemment Qf Sikkin, Gangrok` S`ecretary, Department Qf Finance, Go.vemment Qf Sikkin, Gangtok` `u Peddo`ner` ` „ Resp.Qndents` Pres`ent ; Mr` B` Sharma, Advo.Gate. for the. p.edtioner` Mr` S` P` Wangdi, Advo.Gate General with .Mr` ]` 8.` Pradhan, Go.vt` Advocate for the respondents` Date of decision: 04-12-2002. JUDGMENT Dayal, C.J. The p.etitioner entered into. Go.verrment service as a Primary School Teacher on 22.-0.&-1973.. He. was transferred to Sjkkim Nationalised Transp.ort on 2&-02.-1979 as Assistant Auditor having pay scale identical to. that of a Primary Teacher. In 1982, the GCIvemment ele.vated many of the local graduates to the p`o`sts` of gazetted officers. The y. cyrwl petitioner was not successful in getting such an appointment. In 1983., the S,ikkim Civil Service. E3rmination was held. The petitioner competed in that examination but he secured 30th position in the list of 31 successful candidates. Out of the said list only 6 were initially appointed and the 7th succesrful candidate was also appointed subsequently from the said panel which lasted till a new panel was prepared in 1985. The allegation of the p.etitioner was that many persons were given appointment as garetted officers ignoring the claim of the petitioner. Hence, he went on representing to higher aHthorities including the Chief Minister for getting a chance as a garetted officer. Qn 27-01-19&4 he was offered appointment as Auditor in Sikkim NatiQnalised Transport, but he did not accept the same as he wanted nothing less than a gezetted post. Witheffect from 23.-04-19&4 he was appointed Assistant Manager in SIMFED, a Go.vemment undertaking in the scale of lo,west gazetted officer for tva years. He went on persuading the GQvemment for providing a gazetted post. Ultimately, Memorandum No.1413/GENffisT dated 17-07-1986, Armexure R-2, was issued by the GQvemment to the following effect:- "With reference to his representation dated 22.5.86 ad`dressed tQ the Hon'ble Chief Minister, the undersigned is directed to infon:n him that his request fo.r Gazetted drade from the date he joined the SlhffED is accepted by the Go.verrment and that his prQmctiQn in the S.tate GQvt. will be considered on the basis of his seniority in the grade of Accountants/Senior Accountants." He filed writ petition NQ.5 Qf 1994 before this. High Court which was decided on 01-0.6-1995. By that Judgment, the State respcndents were. directed to implement their memorandum dated 17-Q7-19&6 and give all the benefits to bin in terms thereof. Subsequently., the petitioner filed Civil Misc. Case No.1 of 1996 and Criminal Misc. Case No. 1 Of 1996 v . cwvvwl which were .disp.o`sed Of by this Court on 2.1-0.9-1996. A copy Qf the judgment is annexed as R-3. In that judgment, the Memorandum dated 17-0.7-1996. came in tQ be intexpretated. It was held that the expression "gazetted grade" in the. memorandum did no.t mean gazetted post Qr rank and it only meant gazetted scale Qf pay. It was, therefore, held that the petitioner wo.uld continue to have gazetted scale with effect from 23.-0`4-1984 the date when he joined SIMFED as Assistant Manager with necessary annual increments and availing of the benefit of revision of the scale, if any, but fir the purpose Qf seniority etc., necessary for subsequent promotion, his substantive post should be held as that of Senior Acco.untant. The. decision to the effect that his substantive post for promotion was to. b.e deemed to be that o.f Senio,r AccQuntaat was never armulled Qr modified in any mamer by any subsequent decision on the judicial side. Leaned counsel for the petitioner admits that no order of promo.tion was also ever passed by the` Go`vemment. Even then the petitio.ner is making his. claim for holding the higher p.Qst in gazetted grade. By this. unit petition, the petitioner has challenged Qffice orders/letters Annexures P-1, P-2 and P-3. Armexure P-2 is letter No`.15909/G/DQP dated 26-Q2-20.Ql issued by the GQvemment Qf Sikkim, Dep.artment of Personnel, A.R+. & Training communicating to the p`etitioner that his claim for his inter-se seniority in the Sikkim Nationalised Transport had not been supported b.y the relevant gazette notification. By Amexure. P-1, which is an Qffice order NQ.3.6ffin/SSAS dated 17-03.-20,01 issued by the Finance Department, Government of Sikkim, the petitioner was transferred and posted as Senior Accountant at Pay & Acco.unts Office, Mangan against the vacant post. By y - cywl e Amexure P-3, bearing NQ.6948/(G)/BOP dated 14-0&-200.1 the petitioner was communicated that his seniority had been fixed as Senior Accountant under the Sikkim Subordinate Accounts Service. The petitioner has challenged these orders chaining that since he is drawing gazetted scale, he is. entitled to. hold a gazetted post relevant to. that scale. He has also chained that he should be inducted in the State Civil Service cadre in the same marmer in which 10. persons were inducted vide NctificatiQn dated 20-0.7-2cO1, inexure P-11. 2-` I have. heard sfui B,` Shamra, Advocate. for the petitioner and shri S..P. Wangdi, leaned Advo.Gate General on behalf Qf the State. As regards the claim of the petitioner for induction into the State Civil Service, the No.tification dated 20-0.7-20.01 published in the Sikkim Gazette Qn 3.1-0.7-20.0.1-, Armexure P-11-, chows that 10 p`ersoas named therein were absorbed in the State Civil Service for the reason that the Government considered it expedient to absorb them as they did not belong to any organized service and they should have been inducted in the State Civil Service in 1993` when mass induction took place in the Sikkim State Civil S.ervice and having regard to their ho.Iding analogue posts as held by the members Of Silckim State Civil Service Officers. It carmot be said that the petitioner who was held by the judgment dated 21-Q9-1996. tQ be entitled o.uly to. the gazetted scale. and nut to. a gazietted post and who did not hold any analQgus po.st in terms Qf the no.tificatiQn dated 20-7-20.01 (AlineRTe P-11) fell in the same class in which the .1Q persons rrmed in that no.tification fell. Furthermore, this relief is inconsistent with the jndgmentofthis.Co.urtdated21-0.9-,1996ac`cordingtowhichthepetitioner was. held entitled to the gazetted scale and not a gazetted post. ry^. ctryrJwl 3.. Ireamed counsel for the p.etitioner submits that vide Order No.3.0.0/G/D.QP dated 3.0-05-1996, Annexure P-5., the petitioner was transferred as. Assistant Superintendent Trasport, Sikkim NatiQnalised Transport, Gangtok which is a gazetted post and as such the petitioner sho`uld be held entitled tQ that post. Vide. Order dated 13.-08-2QQ2, the Government was required to. clarify as to. how the petitioner was transferred tQ a gazetted post. Thereafter, an affidavit dated 29.&.20.02 has been filed by Smt. D.L. llama, Additional Secretary, Department of Persomel, A.R. & Training to the effect that earlier the petitioner was ho.1ding the post of Private Secretary to the Adviser of Govt. of Sikkim which was a cQ-terminus post and since that post was a gazetted post, the Order dated 30-5-1996 was issued posting the petitioner as Assistant S.uperintendent TranspQprt, Sikkin NatiQnalised Transport by mistalce and inadvertence. It is manifest that this order was issued earlier to the date Of Judgment dated 21-09-1996 and sQ this office order camQt cloud in any lnanner the judgment of the Court. Once it has been held by this Court vide judgment dated 21-Q9-1996 that the petitioner is entitled to only gazetted scale and not a gazetted post and his substantive post is to be taken as Qf Serior Accountant for subsequent prQmQtion, his claim for higher post witho.ut any order of promotion being passed is to be adjudged only as frivo.Ious. As such, there is nQ merit in the petition. In the result, the petition is dismissed with cost of Rs.10,0.00/- (Rupees.tenthousand). ry`` cwJrwl h , ' 1,t},,i a. Dayal) Chief Justice 04-12-2002.