i,frwi IN THE HIGH COURT OF SIKKIM AT GANGTOK Wri± Peci:Cton (C) Iifo. 31 Of 2008 Shri Chiran Rizal, s/o Shri Chandra Bdr. Rizal, r/o Tareythang, P.o. Bering, P.S. Pakyong, East Sikkim. . . . Petitioner -Versus- 1 . State of Sikkim through the Secretary, Department of Personnel, Adm. Reforms and Training, Govt. of Sikkim, Gangtok. 2. Secretary, Sikkim Public Service Commission, Gangtok, East Sikkim. 3. Miss. Bina Devi Sharma, d/o Shri Tanka Rm Sharma, r/ o Balwakhani, P.0. and P.S. Gangtok, East Sikkim. 4. Ms. Onissa Dechen Gurung, d/o Shri Tej Gurung, R/o Season Hotel, Namnang, Gangtok, East Sikkim. 5. District Magistrate, Office of the District Collectorate, Govt. of Sikkim, Gangtok, East Sikldm. ...Respondents. For the petitioner: Mr. K.T. Bhutia, Senior Advocate with Ms. Bandana Pradhan, Advocate. For the respondents: Mr. J.B. Pradhan, Government Advocate for Respondents No. 1, 2 and 5. Mr. a. Sharma, Senior Advocate with Mr. J.K. Kharka, Advocate for Respondent No. 3 Mr. B.R. FTadhan, Senior Advocate with Ms. Yangchen Doma Gyatso, Advocate for Respondent No. 4. 'r- J,` age,I Dcctes of Hearing .. 21.05.2009 and 25.05.2009. Date of Jhadgmeat .. 05.06.2009 PRESENT: HON'BLE THE CHIEF JUSTICE MR. JrusTICE AFTAB H. SAIKIA HON'BLE MR. JrusTICE A.P. 8UBBA, JUDGE. jruDGmENI lsaiha, CJl Heard Mr. K. T. Bhutia, 1eamed Senior Counsel assisted by Ms. Bandana Pradhan, leaned Counsel for the petitioner and Mr. J.B. Pradhan, leaned State Counsel, Sikkim representing the Ofricial Respondents. 2. Also heard Mr. 8. Shalma, learned Senior Counsel assisted by Mr. J.K. Itharka, learned Counsel for Respondent No. 3 as well as Mr. B.R. Pradhan, leaned Senior Counsel assisted by Ms. Yangchen Doma Gyatso, leaned Counsel on behalf of Respondent No. 4. 3. Impugning the appointment of Respondents No. 3 and 4 to the Junior Grade of the Sikkim State Civil Service (for short, `SCS) on recommendation of the Sikkim Public Service Commission (for short, `SPSC| vide Office Order dated 21.10.2008 (Annexure P-7) and 03.11.2008 (Annexure P-8) respectively issued by the Special Secretary to the Ctovemment of Sikkim, Department of Personnel, Administrative Refoms and Training, Public Grievances, etc., Gangtok, the petitioner has, in the instant writ petition, pleaded that pursuant to the advertisement published on 16.12.2006 in the "Herald Classified" inviting applications for fflling up 40 posts of Junior Grade of SCS in the various Departments of the Government of Sikkim indicating therein the required reservations for Other Backward Classes (for short, `OBC|, Other Backward Classes (Women) (for short, `OBC (W)1, Most Backward Classes (for short, "Bq and Most Backward Classes nyomen) (for short, `MBC (W)), he, being a member of OBC, applied for the same and took written examination on April 12th, 14th and 16th, 2008 and completed viva-voce test held on 16.09.2008. It is stated that after viva- voce test, the names Of 40 candidates against 40 posts were recommended and a final merit list was published by the Respondent No. 2 by displaying the same on the Notice Board on 04.10.2008. 4. In the said list, according to the petitioner, only the names of the 40 candidates were shown without any indication as regards reserved posts against which those 40 candidates were going to be appointed. Therefore, the petitioner on 22.11.2008 applied to respondent No. 2 under the Right to Information Act, 2005 (for short, the Act| seeking detail informations namely, I.nter dr{.q caste certificates of all the 40 selected candidates, merit list of all the 180 candidates who were called for the viva-voce test, etc.. 5. Meanwhile, both Respondents No. 3 and 4, being OBC and MBC(W) respectively, were appointed vide Ofrice Order dated 21.10.2008 and 03.11.2008 respectively as mentioned hereinabove. 6. On 14.11.2008, the Respondent No. 2, in reply to the petitioner's request under the Act, furnished the list of 40 successful candidates showing the allocation of roster position of each candidate against different reserved quotas including OBC, OBctw), MBC and MBC tw). In that list, Respondents No. 3 and 4 were shown to be selected against the reserved quota of OBC and MBCOv) respectively. Since the entire informations so sought ty the petitioner were not furnished, being EL aggrieved by such action of the Authority under the Act, the petitioner preferred an appeal before the Appellate Authority under the Act. 7. The petitioner has preferred this writ petition alleging that the appointments of both the Respondents No. 3 and 4 against the reserved quotas of OBC and MBC (W) are illegal, arbitrary and discriminatory as they belong to creamy layer persons/section mentioned in the Notification dated 05.12.2003 issued by the Government of Sikkim, Welfare Dep±ent. 8. The petitioner has relied upon the following relevant portions of the Notification dated 05.12.2003: "3. The authorities competent to issue certificates for the purpose of verification of the classes/communities indicated for giving benefit of reservation in civil services, other posts of • Government of India as well as in educational institutions for admission for Sikkimese candidates will also have the power to determine and mention in the certifiicate that the particular person/ section does not belong to the creamy layer. SCHEDULE I PERSONS/SECTIONS EXCLUDED FROM RESERVATION FOR MOST BACKWARD CLASSES AND OTHER BACWARD CIASSES IN SIKKIM Description of Category 11. Service Category Group `A'/ Class I Officers of the All India Central Service and in State Government Class I Officer of the Rank of Joint Secretary and above. To whom exclusion will apply Son(s) and Daugivter(s) of - (a) Parents, both of whom are Class I Officers of the rank of Joint Secretary and above in the State Gov-emment (b) Parents, either of whom is a Class I Officer of the rank of Joint Secretary and above in the State Government (c) Parents, both of whom are Class I Ofricers of the 5 rank of Joint Secretary and above in the State Government, but one of them dies or suffers permanent Incapacitation ; (d) Parents, either of whom is a Class I Officer of the rank of Joint Secretary and above in the State Government and such parent dies or suffers permanent incapacitation and before such death or such incapacitation has had the benefit of employment in any lnternational Organisation like UN, IMF, World Bank, etc., for a period of not less than 5 years; (e) Parents, both of whom are Class I Officers of the rank of Joint Secretary and above in the State Government die or suffer permanent incapacitation and before such death or such incapacitation of the both, either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc., for a period of not less than 5 years; Provided that the rule of exclusion shall not apply in the following cases: - (a) Sons and daughters of parents either of whom or both of whom are Class I Officer of the rank of Joint Secretary and above in the State Government and such parent(s) dies/die or suffer permanent incapacitation; (b) A lady belonging to Most Backward Classes and OBC category has got married to a Class I Officer of the rank of Joint Secretary and above in the State Government and may herself like to apply for a job." 9. The petitioner has prayed for following reliefs: "1. A writ of or in the nature of mandamus commanding the respondent No. 1 and 2 to cancel the appointments of the respondent Nos. 3 and 4. 2. A writ of or in the nature of mandamus commanding the respondent Nos. 1 and 2 to terminate the services of the respondent Nos. 3 and 4 and appoint in their places the OBC and MBC candidates from the merit list retained by the respondent No. 2. 3. A writ of or in the nature of mandamus commanding the respondent Nos. 1 and 2 to transmit all the records relating to the advertisement of the posts, selection process, merit list of all 180 candidates who faced viva voce test being successful in the written examination. 4. A writ of or in the nature of mandalnus commanding the respondent No. 5 to transmit all the records relating to OBC and MBC Certificates of the respondent Nos. 3 and 4. 5. A writ of or in the nature mandamus commanding the respondent No. 5 to cancel the OBC and MBC Certiflcates of the respondent Nos. 3 and 4 if the same are placing the certificate holders beyond the purview of the Creamy Layer. 6. A writ of or in the nature of quo-warranto questioning the authority of the respondent Nos. 3 and 4 to hold and continue to hold the present post where they are posted by the respondent No. 1. 7. Any other Writ/ Writs/ order/ orders/ direction/ directions as deemed fit and proper in the facts and circumstances of the case." 10. All the Respondents including the State of Sikkim/Official Respondents, Respondents No. 3 and 4, refuting the contentions and allegations made in the writ petition, have contested the same by filing their respective responses. In all those affidavits, denying all those statements categorically, all respondents have raised preliminary objections as regards maintainability of this writ petition questioning the locus standi of the petitioner. 11. Keeping in view the prelininary objections so raised on behalf of the Respondents including the Official Respondents, this Court while b~ tEr ? 1` admitting this writ petition on 29.04.2009 making it a returnable on 21.05.2009, has recorded that the preliminary objections raised on behalf of the Respondents shall be considered on the returnable date. Accordingly, when the matter has been taken up on 21.05.2009, the learned Counsel appearing for the parties have informed the Court that all of them have exchanged their affidavits in opposition as well as rejoinders and as such the pleadings are being complete. 12. In that view of the matter, the Court considers it appropriate that instead of hearing the preliminary objections at this stage and since the pleadings are also complete, the matter, in the interest of justice, needs final disposal. 13. As agreed to by the leamed Counsel representing the parties and taking note of the urgency of the matter, the writ petition has been taken up for full dressed hearing on 21.05.2009 and 25.05.2009. 14. In support of the writ petition and the contentions as well as submissions made therein, Mr. Bhutia, the learned Senior Counsel, has strenuously contended that both the Respondents No. 3 and 4 have come from well-to-do family and both of them are daughters of retired Class I officers to the Government of Sikkim and hence they belong to creamy layer and as such they are not entitled to get their appointments under reserved quota like, OBC and MBC (W). 15. Furthering such submission, the learned senior counsel has relied upon the averments made in paragraphs 7, 8, 9 and 10 of the instant writ petition, which are as follows: "7. That on 16th December, 2006 when the applications for appointment were invited vide annxure P-3 the father of the respondent No. 3, Shri Tanka Ram Sharma, was holding the post of Advisor, Forest and Wildlife, Govt. of Sikkim a 1\-. post of Class I Officer of the Rank of Joint Secretary and above in the State Ctovt. falling under category II(b) of Schedule I of the Notification No. 7/COS-9(15) SWD dated 5th December, 2003 as such, the respondent No. 3 was excluded from consideration for the reserved quota of OBC. The father of tne respondent No. 3 retired on 31st August, 2007 as Member, Planning Commission. 8. That the father of the respondent No. 3 before his retirement on 31.8.2007 was drawing gross salary of Rs.48,556/- (Rupees fourty eight thousand five hundred and fifty six) only per month in the scale of Rs.19,500/- (Rupees nineteen thousand rrve hundred) only plus other allowances and after his retirement he is receiving gross monthly family pension of Rs.20,965/- (Rupees twenty thousand nine hundred sixty rive) only. The father of the respondent No. 3 Shri Tanka Ram Shama was drawing an annual salary of Rs.5,82,672/- (Rupees rrve lakhs eighty two thousand six hundred seventy two) only when the application in pursuance to the advertisement annexure P-3 was submitted by his daughter the respondent No. 3. After retirement Shri Tanka Ram Sharma is drawing an annual pension of Rs.2,51,580/- (Rupees two lakhs flfty one thousand five hundred alid eighty) only excluding monthly deduction of Rs.7,800/- (Rupees seven thousand and eight hundred) only against the CVP (Commutation Value Pension), therefore, the respondent No. 3 clearly belongs to Creamy Layer persons/sections under category VI of Schedule I of the Notification annexure P-2 and excluded from consideration for appointment against the OBC quota. 9. That on 16th December, 2006 when the applications for appointment were invited vide annexure P-3 the father of the respondent No. 4, Shri Tej Bahadur Gurung was holding the post of Principal Chief Engineer cum Secretary, P.W.D., a Class I Ofricer of the Rank of Joint Secretary and above in the State Govt. falling under category II(b) of Schedule I of the Notification No. 7/GOS-9(15) SWD dated 5th December, 2003 as such, the respondent No. 4 was excluded from consideration for the reserved quota of MBC (W). The father of the respondent No. 4 was transferred to Irrigation Department and retired on 31st May, 2007. 10. That the father of the respondent No. 4 before his retirement on 31.5.2007 was drawing gross salary of Rs.45,070/- (Rupees fourty five thousand and seventy) only per month in the scale of Rs.18,loo/- (Rupees eighteen thousand one hundred) only plus other allowances and after his retirement he is receiving gross monthly family pension of Rs.20,055/- (Rupees twenty thousand and fifty rive) only. The father of the respondent No. 4 Shri Tej Bdr, Gurung was drawing an annual salary of Rs.5,40,840/- (Rupees rive lakhs fourty thousand eiglit hundred fourty) only when the application in pursuance to the advertisement annexure P-3 was submitted by his daughter the respondent No. 4. After retirement Shri Tej Bdr. Gurung is drawing an annual l`t.-` pension of Rs.2,40,660/- (Rupees two lakhs fourty thousand six hundred and sixty) only, therefore, the respondent No. 4 clearly belongs to Creamy Layer persons/sections under category VI of Schedule I of the Notification annexure P-2 and excluded from consideration for appointment against the MBC(w) quota." 16. His basic submission is that since both the Respondents No.3 and 4 are the daughters of retired Class-I officers under the Government of Sikkim, and they have reached a higher level of social advancement and economic status, and therefore as a matter of law, such persons must be declared not entitled to be treated as backward. 17. Relying on a judicial authority in a case of Jndrti Satuhneg us. U".ori a/ jindt.a reported in AIR 2000 SC 498 (para 22 at p.508), the leaned Senior Counsel has submitted that both the Respondents No.3 and 4 are to be treated as creamy layer fa7ithout further enquiry». 18. Our attention has drawn to paragraph 22 in Jindra SOU;hnegr's case (supra), wherein the Supreme Court observed as under: - "22. As appears from the judgments of six out of the eight- Judges, viz. Jeevan Reddy (for himself and three others), Sawant and Sahai, JJ. (i.e. six leaned Judges out of nine), - they specifically refer to those in higher services like IAS, IPsand All India Services oi. near about as persons who have reached a higher level of social advancement and economic status and therefore as a matter of law, such persons are declared not entitled to be treated as backward. They are to be treated as creamy layer +without further inquiry". Likewise, persons living in sufricient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore outside the backward class. Those holding higher levels of agricultural land holdings or getting income from property, beyond a limit, have to be excluded from the backward classes. This, in our opinion, is a judicial "decharatto7t" made by this Court." 19. It is further submitted that the father of Respondent No.3, who was a Class-I ofricer to the Ctovemment of Sikkim, retired on 31.08.2007 as a Member of Planning Commission and on 31.05.2007, being the last REJ 10 date for filing application, the application for the post in question was filed by the Respondent No.3 and on that relevant time, she was the daughter of a serving Class-I officer to the Government of Sikldm. At the same time, the father of Respondent No.4 retired on 31.05.2007 as Principal Chief Engineer-cum-Secretary, Irrigation Department and on that date itself, i.e. 31.05.2007 the Respondent No.4 riled an application for the post in question being the last date of application. Under such circumstances, they automatically belong to creamy layer and in order to prove such status no further enquiry is necessary. On this count alone the appointments of the Respondents No.3 and 4 are liable to be cancelled. 20. Praying for issuance of a writ of quo-warranto apart from the writ of mandamus, it is submitted by Mr. Bhutia, learned Senior Counsel that if a person is found to be not eligible or qualiried to hold that post like in the present case where both the Respondents No.3 and 4 are holding the post in question without having their essential eligibility, being a member of creany layer, their appointments under OBC and MBC{W) reserved quota respectively have to bc declared invalid by issuing a quo-warranto. 21. In support of his submission, the leaned Senior Counsel relied upon a decision of the Apex Court in a case of the State o/Hanya7ia us. The Harya:ran Co-operedue Transport ltd~ and others reported ±n A:ue 1977 SC 237 (para 14 at pp.241, 242). 22. On the issue of maintainability of this writ petition questioning the locus standi of the petitioner by the Respondents, the leaned Senior Counsel has submitted that assuming that the petitioner has no locus in the instant case, this High Court in exercise of powers under Article 226 of the Constitution of India can certainly entertain a petition in EL, 11 furtherance of public interest and also for the welfare of the people who are in a disadvantage position, and as such it is a fit case wherein this High Court shall interfere with the appointments of Respondents No.3 and 4 in the interest of justice without questioning the locus of the petitioner. He has placed reliance on a decision of the Apex Court in a ca;se Of CtwruuagooT Devas:ujon Marngi:ng Comwi:ttee and arot:her us. C. K. Rajan cind others reported in (2003) 7 SCC 546 (para 50 at p.568). 23. Advancing his next leg of argument, the learned Senior Counsel has submitted that the selected list, as required, was not officially published for which reason he has to make an application under the Act seeking entire informations, which are - (i) xerox attested copy of caste certiricates of selected 40 candidates for the posts of Under Secretary; (ii) merit list of an the 180 candidates, who were called for viva Voce; (iii) Roster point allocated to each of the 40 selected candidates and (iv) separate merit list of written examination and viva voce indicating the consolidated marks of written and viva voce by all the 180 candidates. 24. However, it is contended that the Authority did not furnish all the information, for which the petitioner preferred an appeal before the Appellate Authority and the same is pending before the Authority. fu 25. It is also urged that the separate merit lists on the basis of written examination/interview have not been prepared for each category of candidates for whom reservations are made. 12 26. Under such circumstances, it is submitted that the appointment of Respondents No. 3 and 4 as OBC and MBC (W) candidates deserves interference of this Court and this Court may be pleased to issue a writ in the nature of mandamus and also quo-warranto as already mentioned in the prayer above noted, against the Respondents quashing the appointment of Respondents No. 3 and 4. 27. Mr. J.B. Fhadhan, the lcarned State Counsel, refuting the submissions and allegations so advanced by the petitioner and relying upon the afridavits riled on behalf of the Ofricial Respondents, has forcefully argued that this writ petition is not sustainable on nierit on the face of the records itself. More so, it is also not maintainable for which they have raised the preliminary objection on this count. According to him, the petitioner, being an OBC un-successful candidate, has no locus standi to challenge the appointment of Respondent No. 4 who belongs to MBC (W). In support of his submission he has relied on a decision of the Supreme Court reported in (1969) 2 SCC 228 (Kttman. Cfufro Gfrosh and another us. Uulori of Jird.a and of7iers) wherein in paragraph 12 at page 234, it was held that the candidates/appellants who did not compete for the reserved posts had no right and locus standi to challenge the nomination made by the Central Government to reserved seats. In the instant case, it is submitted that since the petitioner is a candidate of one particular reserved quota i.e. OBC, he has no right to question the appointment of Respondent No. 4 who belongs to a different reserved quota, i.e., MBcny). 28. Supporting the appointment of Respondent No. 3, it is argued by the State Counsel that there is no irregularity or illegality in her appointment because as per the merit list for OBC candidates, the }!.`- 13 position of Respondent No. 3 was at Sl. No. 6 when the petitioner was placed much below at Sl. No. 8. Besides, the candidate at Sl. No. 7, one Khem Raj Bhataraj, has made no grievances. 29. That apart, it is also contended by the learned State Counsel that the Respondent No. 3 does not belong to creamy layer as claimed by the petitioner. 30. The Govemment's clear stand, according to the leamed State Counsel, is that after the completion of written test and viva voce for •appointment to all the posts of 40 Junior Grade under SCS, separate list was prepared for each category and thereafter, according to the 100 point roster position, the rinal list of 40 candidates was published. The separate merit list for OBC candidates was also notified and the same is annexed as Annexure R-8 to the counter afridavit filed on behalf of the Respondent No. 1 (at page 61 of the pleadings of the parties in the paper book). He has also, relying upon paragraph 4 especially 4 (c) of the affidavit riled on behalf of Respondent No. 1, urged that in selecting the successful candidates, the Government has carefully maintained the roster point of all the 40 candidates and paragraph 4(c) reads as follows: "(c) On the basis of written examination and viva voce, the Ctommission as per the usual process forwarded names of 40 successful candidates in order or merit adjusted against different slots as per the 100 point roster system for appointment to the posts of junior Grade of Sikkim State Civil Service (Under Secretary & equivalent) on temporary regular basis to the Department of Personnel, Government of Sikkim. The list of successful candidates is mentioned herein below:- Sl.NO. CATEGORY ROSTERPOINT SELECTED CANDIDATES 1. UR 1' 4' 11' (i| Mr. ujjwal Rat 14, 17' (ii) Kin. Cheeki Ongkula Bhutia 26, 30 (iii) Mr. Jigme Wangchuk Bhutia (iv) Ms. Anita Subba (v) Kin. Roshini pradhan (vi) Kin. Tashi Choden Bhutia EL 14 (vii) Mrs. Rinchen Doma Bhutia 2. UR ny) 8,21 (i) Kin. Koshi Kapil (ii) Kin. Kamitmit Lepcha 3. uRny) BLv 34 (i) Kin. Thinley pema Chankapa 4. UR (Ex-S) 38 (i) Mr. Sonarn Topgay Tashi 5. ST 2, 7, 12, (i) Mr. Jigme samup Basi 16' 22' (ii) Kin. Samten Dolma Bhutia 25' 31' (iii) Kin. Rinzing Choden 33, 37 (iv) Kin. Choden Gyatso (v) Kin. Tsewang Doma Bhutia (vi) Ms. Pema Lhaden Lama (vii) Mr. Gilberi Lepcha (viii) Mr. Samdup Bhutia (ix) Ms. Tashi Palmu Narngyal Bhutia 6. ST ny)