State Of Sikkim & Ors vs Adup Tshering Bhutia & Ors

2. Integration of services means the creation of a homogenous service by the amalgamation or merger of service personnel belonging to separate services. Integration is a policy matter as far as the State is concerned. In evolving a proper coalescence of the services, there are various steps:

3. Prior to the constitution of integrated Sikkim Police Force w.e.f. 11.09.2000 as per the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000, there were three different services, viz., (1) Sikkim Police Force, (2) Sikkim Armed Police Force and (3) Sikkim Vigilance Police. All the three forces were governed by separate service rules. There is entry level of constable in all the three forces. The Sikkim Vigilance and Sikkim Armed Forces ended with the cadre of inspector. In the case of Sikkim Armed Police there was also 50% direct recruitment at the level of sub-inspector. Promotion to the post of Deputy Superintendent of Police was available only to the Sikkim Police Force. The posts of Deputy Superintendent of Police in Sikkim Vigilance Police and Sikkim Armed Police were filled up only by deputation. The personnel belonging to the Sikkim Vigilance Police and Sikkim Armed Police had been raising their grievances with regard to lack of promotion beyond inspector of police at various levels. The matter reached the High Court in Writ Petition (C) No. 513 of 1998. Realising the heartburn, the State Government appointed Justice N. G. Das, a former Judge of the High Court of Sikkim as one man Commission for examining the scope of integration of different services. Implementing the recommendations of the Commission, the State Government framed the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 under Article 309 of the Constitution of India consisting of posts upto inspector in all the three forces. For the purpose of ready reference, we shall extract Rule 4 of 2000 Rules on constitution of the forces:

inspector and inspector, it appears, there was a back reference to Justice N. G. Das Commission. However, it is seen from the records that there was no further recommendation from Justice N. G. Das Commission. With regard to the method and modalities of fixing of seniority of the sub-inspectors and inspectors, the matter was hence referred to a committee of senior police officers constituted by the Director General of Police. It was recommended that the inter se seniority at the level of sub-inspectors be the determining criterion for fixing the inter se seniority of inspectors in the integrated cadre. The proposal was approved by the Government on 11.04.2008 but the same was not implemented due to the pendency of a Writ Petition filed by the first respondent herein. After the disposal of the Writ Petition on 27.08.2009 as withdrawn, the government again constituted a high level committee headed by the Chief Secretary as Chairman with Director General of Police, Home Secretary and Secretary DoP as members and Joint Secretary DoP as member secretary. The committee submitted its report on 31.10.2009. It was recommended that the inter se seniority of police inspectors should be fixed based on the seniority at the entry level of sub-inspectors. It was also recommended that inspectors of Sikkim Police be deemed to have been promoted as inspectors w.e.f. the date their colleague officers at the entry level of sub-inspectors in Sikkim Armed Police and Sikkim Vigilance Police first got promoted as inspectors. The recommendation was approved by the State Government on 10.11.2009, and on 19.01.2010 a Notification was issued granting retrospective promotion to 52 members of the Sikkim Police Force with the condition that the officers will not be entitled to arrears of pay.

8. Seniority, the retrospective promotion granted notionally to the members of the pre-integrated Sikkim Police Force and the amendment was challenged by respondent no.1 before the High Court in Writ Petiton (C) No. 33 of 2010 mainly with the following two prayers:

9. For a proper understanding of the factual disputes, we shall refer to the grievance of the writ petitioner. He joined Sikkim Police as a Constable on 12.08.1974. He was absorbed in the Sikkim Vigilance Police on 12.09.1978. He was promoted as sub-inspector on 22.12.1986 and was further promoted as inspector on 26.09.1995. On account of the retrospective promotion granted to the members of the Sikkim Police Force based on the date of appointment/promotion as sub-inspector in the case of the other two services, the writ petitioner became junior to them, affecting his chances of promotion to the post of Deputy Superintendent of Police.

10. The High Court by Judgment dated 10.10.2012 allowed the Writ Petition quashing the retrospective promotion granted to the private respondents and striking down Rule 9(iv) holding also that the seniority in the integrated cadre of inspectors shall be decided only on the basis of their substantive promotion to that post, and not based on the date of promotion/appointment to the post of sub- inspector. The Court, however, protected the promotions granted to the private respondents. It is significant to note that even the writ petitioner was also promoted as Deputy Superintendent of Police on 23.02.2012 and he retired from service on 31.08.2012. The direction by the High Court is to grant promotion with effect from the date the first promotion was granted to any other private respondent with all the consequential including monitory benefits. Thus aggrieved, the State is before this Court.

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29. Be that as it may, the High Court has already protected the promotions granted to the private respondents but the High Court has struck down the Rule and has quashed the seniority list. As we have already noted above, the High Court has unfortunately missed the crucial consideration with regard to the principles set by the State with regard to fixation of seniority, the purpose sought to be achieved in the process, the relevant considerations which lead to the decision and the materials including the report of the expert committee which were relied on by the State in the process of making and taking of the decision. The State has only acted within its authority under Article 309 of the Constitution of India in bringing about the clarificatory amendment with regard to the fixation of seniority in the cadre of sub- inspectors. The retrospectivity given to the private respondents by giving the deemed date of promotion is neither arbitrary nor unreasonable. On the contrary, it is perfectly just, fair and equitable in the given circumstances without which the integration of services would have resulted in graver inequality and injustice to the members of the major service. In the result, the appeal is allowed. The impugned judgment is set aside. Writ Petition filed by the private respondent in High Court is dismissed.

30. We have already noted above that the first respondent-writ petitioner was also promoted as Deputy Superintendent of Police and he has retired from service. Rule 17 of the 2000 Rules has provided for power of relaxation to the State. Since the first respondent-writ petitioner had actually entered in service in 1974, prior to some of the private respondents, this could have been probably a case for the State Government to exercise that power. We do not propose to relegate the first respondent-writ petitioner at this stage for that remedy. For doing complete justice, being a solitary case, we hold that the benefits granted by the High Court in the impugned Judgment to the writ petitioner, shall not be disturbed.

31. The appeal is allowed as above. There is no order as to costs.

February 18, 2014.