I-.6 f,qu. pr IN TIE HIGH CoURT oF SIKKnB AT GANGTOK (CONS:ITIUTTONALJURISDIC:II0N) Writ Petition (C) No. 34 of 2007 •1. Shri Santosh Rai, Son of Prithi Dhoj Rai, Resident of Tadong Dara Gaon, P.O. Tadong, P.S: Gangtok-Sadar, East Sikkim presently working as Graduate Teacher (Maths), Deorali Senior See. School, (East) 2. Mr. Nirmal Kumar Subba, Son of Shri 8.8. Linbu, Resident of Kariok Block, P.O. Pakyong, East Sikkin, F[esently working as, Graduate Teacher, Modern Secondary School, Gangtok, East SikEL. 3. Mr. Bhalri ETasad Sharmpa, Son of C. Shama, Resident of Ganchung Busty, P.O. Pakyong, East Sikkin. Presently working as Graduate Teacher (Arts) , Marring Senior Secondary School, East Sikkim. 4. Krishna Kumar Sharma, Son of Shri Manohari Sharma, Rhenock - Fthamdong, P.O. & P.S. Rhenock, East Sikkin, working as Headmaster at Lower Bermiok Jr. Hich School, West Sikkim . 5. Shri Dilliram Shalma, S/o Hari Prasad Shalma, Resident of RDD Complex, Pakyong, Hesently working as Ciraduate Teacher (Arts) , Pacheykhani Secondary School, East Sikki.in . Shri Liladhar Dhakal, Son of Late Loke Nath Dhakal, Resident of Pakyong, East Sikhim Presently working as Headmaster, ParaTha Jr. High School, East Silddm Shri Binod Kumar Sharma, Son of Punya Prasad Sharma (Bhandari) , Resident of Tareythang Busty, P.O. Biring, East Sikkim Presently working as Graduate Teacher at Dikiling, Senior Secondary School, East Sf kkim . Shri Khush Narayan Pradhan, Son of S.N. Pradhan, Resident of Ron8li, P.O. and P.S. Ron9li, East Sikkin, Presently working as a Graduate Teacher (Arts) At Aho Kissan Jr. Hick School, East Sikkim. Shri Gangaram Kafley, Son of Pashupapti Kafley, Resident of 'Thckabong, P.O. Thekabong, P.S. Pakyong, East Sikkin, working as Post Graduate Teacher (Chemistry) at Samdong S.S.S., East Sjkkim . ...Petitioners 0 -Versus- 1. State of Sikkin, Through the Secretary, Human Resource Development Department, Government of Sikkin, Tashj]ing, East Sikkin. 2. Sikkim Pubfic Service Commission, `Throuch the Secretary, SPSC, Government of Sikkin, Gangtok, Bast Sikkim. 3. Smt. Rasmika Rai, Assistant Education Officer (East) C/o Joint Director (E), HRDD, Tashiling Secretariat, Gangtok, East Siklin. • :`+` I t- a I 4. Mrs. Sonam D. Bhutia, Assistant Education Officer (East) C/o Joint Director (E), HRDD, Tashiling Secretariat, Gangtok, East Sikkim. 5. Mr. Durga Pd. Sharma, Assistant Education Officer (East) C/o Joint Director (E), HRDD, Tashiling Secretariat, Gangtok, East Sikkin. 6. Mr. Chandra Singh Subba, Assistant Education Officer (East) C/o Joint Director (E), HRDD, Tashi]ing Secretariat, Gangtok, East Sikkin. 7. Ms. Geeta Sherpa, Assistant Education Officer (East) C/o Joint Director (E), HRDD, Tashiling Secretariat, Gangtok, East Sikfu. 8. Shri Sudesh Deokota, Assistant Education Officer (HQ) C/o Joint Director (E), HRDD, Tachiling Secretariat, Gangtok, East Sikkin. 9. Shri Pempa Lepcha, Assistant Education Officer (North) C/o Joint Director District Administrative Centre , Mangan, North Sildin. 10. Shri Thinley Lepcha, Assistant Education Officer (North) C/ o Joint Director District Administrative Centre , Mangan, North Sikhim. 11. Shri Dilip Sharma, Assistant Education Officer (North) C/ o Joint Director District Administrative Centre, Mangan, North Sikkjm. I 12. Shri Tek Bdr Rai Assistant Education Officer (Soutli) C/ o Joint Director District Administrative Centre , Namchi, South Sikkin. 13. Mrs. Radhika Rai, Assistant Education Officer (South) C/o Joint Director District Administrative Centre, Namchi, South Sikkin. 14. Shri Iching Subba, Assistant Education Officer (West) C/ o Joint Director District Administrative Centre , Gyalshing, West Sikkjm. 15. Shri Sudha Rat, Assistant Education Officer (East) C/o Joint Director (E) HRDD, Tashiling Secretariat, Gangtok, East Sildin. 16. She Robin Dong, Assistant Education Officer (West) C/ o Joint Director District Administrative Centre , Gyalshing, West Sikkim. 17. Shri Manoj Shankar, Assistant Education Officer twest) C/o Joint Director District Administrative Centre, Gyalshing, W'est Siklin. 18. Shri Raju Bhandari, Assistant Education Officer (West) C/ o Joint Director District Adininistrative Centre, Gyalshing, West Sikkin. 19. Shri Tsewang T. Sherpa, Assistant Education Officer (West) C/ o Joint Director District Administrative Centre, Gyalshing, west Sildin. a i., .1 , -. J,. I .. i.= { 20. Shri Hal.endra Subba, Assistant Education Ofricer (West) C/ o Joint Director District Admiliistrative Centre, Gyalshing, West Sikkim. 21. Shri D.N. Sharma, Assistant Education Officer (West) C/ o Joint Director District Admirristrative Centre , Gyalshing, West Sikkim. 22. Shri Tshering Sherpa, Assistant Education Officer (East) C/o Joint Director (E) HRDD, Tashiling Secretariat, Gangtok, East Siklin. 23. Shri Chewang Gyatso, Assistant Education Officer (East) C/o Joint Director (E) HRDD, Tashiling Secretariat, Gangtok, East Siklin. 24. Ms. Priscina Rai, Assistant Education Officer (East) C/o Joint Director (E) HRDD, Tashiling Secretariat, Gangtok, East Sikkim. 25. Ms. ELscilla Rat, Assistant Education Officer (East) C/o Joint Director (E) HRDD, Tashjling Secretariat, Gangtok, East Sikkin. 26. Shri Maching Lepcha, Assistant Education Officer (Ron8li) C/o BDO Rongli, East Sildrim. 27. Shri D.M. Subba, Assistant Education Officer (Pakyong) C/ o Asst. Director. Pakyong Sub Diviision East Sikkim . 28. Ms. Sunita Pradhan, Assistant Education Ofricer (South) C/ o Joint Director District Administrative Centre, Namchi, South Sikkim. 29. Mrs. Indjra Rai, Assistant Education Officer (South) C/o Joint Director District Administrative Centre, Namchi, South Sikkin. 30. Mrs. Reepa Lepcha, Assistant Education Officer (SSA) C/o Joint Director (E) HRDD, Tashiling Secretariat, Gangtok, East Sikkin. 31. Shri Chandra Kiran Dahal, Assistant Education Offlcer (Pakyong) C/ o Assistant Director Pakyong Subdivision, Pakyong, East Sikkin. 32. Shri Karma Bbutia, Assistant Education Ofricer (North) C/ o Joint Director District Administrative Centre , Mangan, North Sikkim. 33. Shri Chhochung Bhutia, Assistant Education Officer (North) C/o Joint Director District Administrative Centre , Mangan, North Sikkin. 34. Shri Deepak Rai, Assistant Education Officer (Rongli) C/ o Assistant Director Rongli Sub Division, Rongli, East Sikkim. 35. Mr. Biren Rai, Assistant Education Officer (West) C/o Joint Director District Administrative Centre, Gyalshing, West siklin. 36. Mrs. Meena Chettri, Assistant Education Officer (SSA) C/o Joint Director (E) HRDD, Tashiling Secretariat Gangtok, East Sikkim. 37. Shri Theophillius W. Lepcha, Assistant Education Officer (South) C/ o Joint Director District Administrative Centre, Namchi, South Sikkim. ...Respondents. For the petitioners: Mr. A.K. Upadhyaya, Sr. Advocate with Mr. D. Tewari, Advocate For the respondents: Mr. J.B. Pradhan, Additional Advocate General, Sikhim with Mr. Karma Thinlay, Government Advocate and Mr. S.K. Chettri, Assistant Government Advocate for the official Respondents No. 1 and2 Mr. Tashi Rabden Barfungpa, Advocate for private respondents No. 3 to 37 Dcde of Ilearing = Dct:fe of ulrdgmen:1 : 09.09.2009 09.09.2009 PRESENT: HON'BLE THE CHIEF dusTICE MR. dusTICE AF`TAB H. SATKTA HON'BLE mR drusTlcE A.p. st]BBA, OUI)GE Salhiab CW JUDGMENT AND ORDER (ORAL) Heard Mr. A.K. Upadhyaya, leaned Senior Counsel assisted by Mr. D. Tewari, leaned Counsel for the petitioners. Also heard Mr. J.B. Pradhan, leaned Additional Advocate General, Sikkim (for short, `AAG) with Mr. Karma Thinlay and Mr. S.K. Chettri, learned State Counsel on bcha]f of official respondents No. 1 and 2 as weu as Mr. Tashi Rabden Barfungpa, leaned Counsel appearing for the private respondents No. 3 to 37. 2. The Offce Order dated 13.03.2006 issued by the respondent No. 2, the Secretary to the Government of Siklin, Human Resource Development Department quereinafter refeITed to as `HRDD) absorbing as many as 35 deputationists as Assistant Education Officers (for chort, the AEOs) in HRDD without holding any selection process in accordance with Notification No. 1247/EST/EDN dated 24.06.1997, having relaxed the terms and conditions laid down in the said Notification, has been assailed in the instant writ proceeding being initiated by 9 (hire) aggrieved Graduate Teachers with the specific allegations of arbitrariness, nepotism and discrinination in issuing such absorption depriving them of being selected to such posts of AEOs. E| 3. Since the basic issue, Tb-eing apparent on the face of the *1 inpugried Office Order itseif, centres around the effect and :)A..`-- justiciability of the Notification dated 24.06.1997, the reproduction of the said Notification is necessary which reads as under: "GOVERNMENT OF SIKKIM DEPARTMENT OF EDUCATION No. 1247/EST/EDN Dated: 14th June, 1997 NOTIFICATION In pursuance of the Notification No. 02/Gen/DOP dated 10.4.97, the Rules for linited Departmental Competitive Examination for the selection of Assistant Education Officers under the Department of Education, Government of Sikkim are pubELed for general infomation. 1. 'The Selection Examination will be conducted by the Sikkim PubHc Service Commission. All Graduate Teacbers and Headmasters/ Headmistresses of Jtmior Hich Schools having completed a mininum of five years of continous service on regular basis as on 30.11.1996 shall be eligible for appearing at the Examination to be conducted by the S.P.S.C. 3. 'There will be a physical Fitness Test to assess the suitabhity of the candidates for undertaking extensive tours. 'Ihe venue and method of tests will be decided by the Commission. OIily the candidates who qualify in the Physical Fitness Test shall be eligible to appear in the whtten. exanination. 4. 'The digible candidates will have to apply to the Commission through the Heads of Schools if they are teacher and through the concerned Sub- Divisional Assistant Directors if they are Heads of Schools on payment of fees prescribed by the Commission in their NOTICE for the Examinations. 5. The decision of the commission as to the eligibility or otherwise of a candidate for admission to the Examination shall be final. The subject and syuabus for the written examination, tine allowed and maximum marks allotted to each subject shall bc as at Appendix-I. 7. 'Ihe Commission Tvi]l have the discretion to fix qualifying mat.ks in the Examination. .)\1`- 10 8. The successful candidates will be called for a Personality Test carrying 20 marks. 9. 'The successful candidates will be alTanged by the Commission in order of merit as disclosed by aggregate marks awarded to each candidate in whtten and personality tests. 'The numbe-r and names to be included in the panel cha]l be decided by the Commission and the panel shall ordinarily be valid for one year. 10. The candidate who is or had been declared by the Commission to be guilty of any offence shall be liable to be disqualified for admission to the Examination. 11. Success in the Examination confers no right to appointment unless the competent authority is satisfied after enquiry as may be considered necessary that the candidate hal7ing regard to his conduct, is fit for appointment to the post of Assistant Education Officer. T.T. Dolji, IAS Commissioner-cum-Secretary Department of Education Date: 24th June, 97 " 4. Leading the arguments on behalf of the petitioners, Mr. Upadhyaya, learned senior counsel has eloquently stated that while the petitioners were worhing as Graduate Teachers along with private respondents i.e. respondents No. 3 to 37, all those private respondents went on deputation to the post of AEOs in HRDD in the years between 2001 to 2004. Since they were on deputation without affecting the petitioners' service conditions, such deputation of those private respondents was not being challenged by the petitioners. However, to their utter dismay and surprise, the authority by inpugped OfEce Order dated 13.03.2006 has absorbed all those 35 deputationists as regular AEOs in the department concerned without any selection test/interview :\*``.- a 11 whatsoever to the exclusion of the petitioners who have also possessed all requisite qualifications for such selection. No opportunity for such selection whatsoever was ever afforded to them and thereby depriving the petitioners, the respondents No. 3 to 37 were absorbed/appointed in the administrative job of AEOs. It is, therefore, strongly submitted that in the process of absorbing the private respondents, the authority has not only violated the terms and conditions stipulated in the Notification dated 24.06.1997 but also have gone beyond to contravene the ftmdamental rigbts guaranteed to the petitioners in the public employment by the Constitution of India under Articles 14 and 16. 5. The specific case of the petitioners is that the private respondents have not been put to any selection test/examination by the authorities, being essential in terms of Notification dated 24.06.1997 and they are straightaway absorbed as AEOs denying the petitioners, being qualified and digible, the equal opportunity of appearing in the selection procedure for appointment as AEOs. 6. It is further submitted by the learned senior counsel that in issuing the inpugried OfEce Order, the Government has clearly and specifically mentioned that they have relaxed the terms and conditions laid down in the Notification dated 24.06.1997 althouch the Notification does not contain any provision for such relaxation. 12 7. Mr. Upadhyaya has further contended that till date no statutory Rules are being framed by the State respondents governing the selection/appointment of AEOs and in absence of such statutory Rules, the Government has no other alternative but to follow the Notification dated 24.06.1997 in letter and spirit which has got the statutory force as it was being pubHshed in the Official Gazette of Govelliment of Sikkim on 25.07.1997 and as such the violation of any terms and conditions laid down in the Notification itself is justiciable and shall vitiate the entire absorption process. 8. Refuting all the allegations and contentions made in the instant wit petition as well as argiiments and submissions advanced by the leaned senior counsel for the petitioners, Mr. Pradhan, the leaned AAG, stronaly relying on the affidavits ffied on behalf of the State and raising a preliminary objection, has submitted that this writ petition basically suffers from delay and negligence inasmuch as althouch the inpugried Office Order was passed on 13.03.2006, this wit petition has been ffled only on 11.10.2007 after a lapse of about one year and seven months. Such inordinate delay has not been satisfactorily explained in the instant petition. 9. To bolster up such submission, Mr. FTadhan has taken us through a catena of judicial authorities to establisb that the writ court under Article 226 of the Constitution of India, basically being •t` ,` .i a a 13 an equity coulf , shall act ].udicially and reasonably because it is purely a discretionary power that has been vested upon the Court and accordingly the Court has to satisfy itself as to whether the petitioner has approached this Court seeling equitable relief witliin a reasonable tine. If the Court is satisfied that the same is not within the permissible period, the Hish Court, being an equity court, should refuse to entertain suck petition on the sole ground of laches and negligence. 10. The cases refied on bebalfoftbe state are as fonows: (a) (1975) 1 SCC 152 P.S. Sadds€zhBsz(ltz77z=/ zis. State a/ Ttlmil Nchu} and ft)) (2007| 9 SCC 2T4 (Shin Dass v s. Uhlon Of India and cthers) 11. In order to augprent his arguments on question of delay, Mr. Pradhan, the learned AAG has also drawn our attention to the two representations dated 29.04.2005 and 05.04.2006 (Annexures P/4 and P/5 appended hereto in this wit petition) submitted by the Sikhim United Teachers' Welfare Association (for short, the Association) to the Government, to chow that the petitioners have all knowledge and informations about the present development and being fully aware of such position, they have intentionally and deliberately caused an inordinate delay in approaching this Court. He has referred to Annexure P-4 to. 36 of the paper-book), as mentioned above which is a representation dated 29.04.2005 from the President of the Association including the petitioner No. 1, ._yJL+I 14 being an office bearer of tbe Association in the capacity of Secretary General addressed to the Chief Minister of Silddm requesting to direct the Department concerned to conduct the recruitment test at the earliest to fill up the posts of AEOs in HRDD. After the issuance of the inpugried Office Order, the petitioner No. 1, being one of the office bearers of the Association, has again whtten to the respondent No. 1 vide representation dated 05.04.2006 as already indicated, seeking some clarifications as regards the appointment of AEOs without interview with a request of response to such communication at the earliest. From those thro communications/ representations, the leaned AAG has wanted to place on record that the petitioners, after maldng the last communication/ representation on 05.04.2006, have waited for long one year and seven months to approach this Court and such delay, according to him, is not reasonable but surely intentional and wilful and under such premises, the instant petition is fiable to be dismissed on the threshold on account of delay and laches itself. 12. Replying to this preliminary objection raised on question of dela.y, Mr. Upadhyaya, leaned senior counsel has submitted that thouch the Association wherein petitioner No. 1 is also an office bearer in the capacity of Secretary General, had written through their representation to the authority concerned inviting the attention of those concerned towards such illegal action, no step has ever been taken at the end of the reapondents. 'The authority 15 did pay no heed to that effect and ignoring such appeal made vide representation dated 29.04.2005, the Government has proceeded to absorb all the private respondents without holding or conducting any sort of selection and eventually the inpugped Office Order has been notified. Thereafter, they have again approached to the respondent No. 1 by filing the second representation dated 05.04.2006 seehing clarification pertailiing to such appointment of AEOs being done without any interview. However, till date they have not received any response whatsoever from the respondent No. 1. Eventually they have to fall back upon the Richt to Information Act, 2005 (for sbort, The Act) and have applied to the authority under the Act for basic infomations with regard to the absorption of the private respondents without holding any selection test and after getting those infolmations, ultimately they have approached this Court by filing this writ petition on 11.10.2007 and the delay, as alleged, occurred in this process in preferring this petition, cannot be said to be inordinate and this dela.y may be accepted as reasonable delay. 13. It is also clarified by Mr. Upadhyaya, that the Act has been implemented only in the ycar 2006 and the statutory officer has also been appointed only in the year 2007 and bence, there is no delay as such as dained by the leaned AAG. 14. Entire materials on record including the pleadings exchanged and between the parties bave been subjected to meticulous 16 scanning and analysis. Extensive arguments and strong submissions put forward on behalf of the parties have also given due consideration and care. 15. Apparently the inpugried Office Order which clearly indicates that the impugned absorption was done by duly relaxing the terms and conditions lard down vide Notification dated 24.06.1997, appears to be in direct conflict with the Notification dated 24.06.1997. On a careful perusal of the Notification, as quoted hereinabove, it would candidly reflect that there is no whisper as regards any provision or clause for relaxation. 'The said Notification does not contain any such clause so as to allow the 'authority to relax the terms and conditions postulated therein. 16. Interestingly there is no explanation on the counter affdavit ffied on behalf of the State in this regard as to whether under what circumstances they have issued the inpugped Offce Order relaxing the terms and conditions of the Notification in question which empathetically stipulates that there must be a selection examination for departmental competitive examination for the posts of AEOs and that too has to be conducted by the Sikkim Public Service Commission (for chort, `SPSC). 17. In the present case, it is an admitted position that the absorption under challenge has never been subjected to any such selection examination to be held by SPSC and the same is evident 17 from the submission advanced on behalf of the Government as well T=~.as the responses filed by the State respondents. 18. Coming to the question of justiciability of the Executive Instructions i.e. Notification dated 24.06.1997, it can be held that in absence of any statutory Rules framed under Article 309 of the Constitution of India, the instmctions issued by the Government are justiciable and the Government is required to act and rely on each and every terms and conditions provided in such Executive Instructions. It is also admitted that there is no Rules framed by the Government for such selection of AEOs and eventua]]y the Govemmeut has to fall back upon such executive instructions for the purpose of selection of AEOs. In fact, the Government has acted upon such Notification and the sane is indicative from the very fact that the absorption was made by relaxing the terms and conditions of the said Notification althouch no such provision has been incorporated thereon. 19. It can be said tliat the relaxation is permissible only if there exists any provision in the Notification. In J¥tfa Jvdrneen Kz(7r.ar and others vs. Rdya Narasainh ZLmgiti and others reported in (2006) 10 SCC 261 in paragraph 59, it was clearly ruled that "relaxation can be given only if there erists any provision therefor in the Rules". T`:f a 18 20. In the instant case, in our considered opinion, since there is >no statutory Rules framed for such recruitment, the Executive Instructions vide Notification dated 24.06.1997 holds the field and the Government is duty bound to follow the terms and conditions laid down therein. Since this Notification does not contain or prescribe any relaxation for such purposes, the action taken ty the Government issuing the inpugried Office Order is not in conformity with the Notification. Moreso, the entire absorption process without selection is vitiated inasmuch as no selection examination was conducted by SPSC as required under the Notification. 21. Under such circumstances, we have no hesitation to hold that the impugried Office Order absorbing the 35 private respondents dehors the Notification and the same deserves interference by this Court. 22. Insofar as the question of delay is concerned, having carefully gone throuch the steps taken ty the petitioners by submitting two representations as mentioned above, in pre-litigation and post- 1itigation stage of the instant writ proceedings, it is seen that prior to issuance of such inpugried Office Order, the petitioners through the Association of which one of the petitioners is an officer-bearer, have approached the authority concerned seeking justice but their case was never looked into. After issuing the impugned Office Order also, one of the petitioners has approached the authority concerned through the Association seeldng some response 19 pertaining to such issuance C'of the inpugried Office Order absorbing the private respondents without interview but such request has also not been duly responded by the Government till date. Failing to get any positive responses, they have approached the authority under the Act wherefi-om they have got certain infomations under the Act. 'Then only they have approached this Court and in the process, it is seen that there is a delay of about one year and seven months. In the interest of justice, we are of the firm view that there was no inordinate delay caused in filing this wit petition and we do accordingly bold tbat the petition has been filed within the reasonable period without causing any such delay to attract the question of maintainabifty on the count of laches and negligence. 23. In view of whatever has been stated, discussed and observed above, we are of the considered view that this wit petition deserves acceptance. 24. In the result the inpugried Office Order dated 13.03.2006 stands set aside and quached. 'This writ petition stands allowed. 25. There chalbeno order ast° C°Stswl tss[llke