Non-compliance of any procedural requirement is no ground for automatic rejection: Sikkim High Court

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) S.B: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE ….. Petitioners WP(C) No. 217 Shri Ganesh Bhandari Son of Shri Punya Prasad Bhandari Resident of Tareythang East Sikkim. Smt. Amrita Sharma Wife of Atmaram Sharma Resident of Pacheykhani P.O. Pakyong East Sikkim. State of Sikkim Represented by and through The Chief Secretary Government of Sikkim P.O. Gangtok East Sikkim. 4. The Secretary The Principal Secretary Human Resource Development Department Government of Sikkim P.O. Gangtok East Sikkim. 3. The Joint Secretary Human Resource Development Department Government of Sikkim P.O. Gangtok East Sikkim. State Public Service Commission Government of Sikkim P.O. Gangtok East Sikkim. 2 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 5. The Secretary Department of Personnel Administrative Reforms & Training Government of Sikkim P.O. Gangtok East Sikkim. ….. Respondents Application under Article 226 of the Constitution of India. Mr. A. Moulik Sr. Advocate with Mr. Ranjit Prasad Advocate for the Appellant. Dr. Doma T. Bhutia Additional Advocate General Mr. S.K. Chettri Government Advocate for the Respondents no. 1 2 3 and 5 and Mr. Zigmee Bhutia Standing Counsel for Education Department. Mr. Bhusan Nepal Advocate for Respondent No.4. Date of hearing : 9.11.2020 19.11.2020 and 23.11.2020 Date of judgment: 14.12.2020 JUDGMENT Bhaskar Raj Pradhan J. The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14 16 19 and 21 as well as Article 300A of the Constitution of India has been preferred by the two petitioners who have been issued office orders no. 278 HRDD ADM and 279 HRDD ADM by which the Human Resource Development Department had cancelled their promotion orders no. 3 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 06 DIR HRDD(SE) PGT and 07 DIR HRDD(SE) PGT both dated 14.05.2015with retrospective effect. By the impugned office orders they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto the petitioners were issued show cause notice no. 277 ADM HRDD dated 04.07.2016 by the HRDD directing them to show cause why their co terminus service should not be terminated and why inquiry should not be initiated against them for concealing the facts. 2. Heard Mr. A. Moulik learned Senior Advocate for the petitioners Dr. Doma T. Bhutia Additional Advocate General for respondents no. 1 2 3 and 5 State respondents) and Mr. Bhusan Nepal learned Counsel for respondent no. 4 i.e. the State Public Service CommissionNo. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others He relied upon Udai Shankar Triyar vs. Ram Kalewar Prasad Singh Another1 to submit that non compliance with any procedural requirement should not entail automatic dismissal or rejection. These defects and irregularity according to Mr. Moulik were procedural and should not therefore be allowed to defeat their substantive rights or to cause injustice. He submitted that the Commission which is a public authority entrusted with public functions was required to act fairly reasonably uniformly and consistently in public good and in public interest. He relied upon Central Board of Secondary Education & Another vs. Aditya Bandopadhyay & Others2 for the said proposition. It was his case that the State respondents had failed to follow the principles of natural justice before issuance of the impugned office orders cancelling their appointment as Post Graduate Teachers with retrospective effect. He relied upon S.L. Kapoor vs. Jagmohan & Others3 to explain the concept of natural justice in administrative law. Mr. Moulik also submitted that the records would reveal that both the Commission as well as the State respondents had grossly failed in as much as they had issued forms without any clear indication for what purpose it was misleading the petitioners to fill the wrong forms and therefore they could not take advantage of their own wrong. 11 SCC 75 28 SCC 497 34 SCC 379 5 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others The learned Additional Advocate General per contra contended that the writ petition was not maintainable as no fundamental or statutory right of the petitioners had been violated. She relied upon Union of India & Another vs. Arulmozhi Iniarasu & Others4 and submitted that a writ of mandamus can be issued by this court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the state. Only because an illegality has been committed the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. It was her submission that the petitioners have not approached this court with clean hands and therefore the writ petition should be dismissed. For the said purpose she relied on a judgment of this Court in The Principal Secretary Department of Commerce and Industry vs. Ms. Mobile Automobile Pvt. Ltd.5. The learned Additional Advocate General also submitted that when the petitioners were not eligible to be promoted and they were given promotion it was their duty to inform the Government that they were wrongly promoted. She submitted that there was deliberate suppression of facts on the part of the petitioners and therefore they could not claim a right to continue in service. She relied upon Jainendra Singh vs. State of Uttar Pradesh6. 47 SCC 397 52018 Sikkim 1005 68 SCC 748 6 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others The petitioners were appointed as Graduate Teachers Sanskrit language) on 04.03.2003 and 01.03.2003 on co terminus basis under HRDD. They were posted at Government Senior Secondary Schools Singtam and Linkey both East Sikkim respectively during the year 2014 15. is the petitioners’ case that pursuant to an advertisement dated 04.06.2014 published in Sikkim Express on 08.06.2014 they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus they applied in the “prescribed application forms” for the said posts. Along with the in service candidates they also annexed their appointment orders appointing them on co terminus basis as Graduate Teachers in Sanskrit along with the no objection from their employer and other documents as required. The petitioners submit that the authorities scrutinised their application forms and having found them eligible they were invited to appear for the written examination and thereafter for viva voce on 13.04.2015. They were successful in the written examination as well as viva voce. Both the petitioners were issued “promotion orders” and posted as Post Graduate Teachers Hindi) in Lingee Senior Secondary School and Tikalall Niraula Senior Secondary School respectively. The petitioners have also annexed their promotion orders. After they received their promotion orders the petitioners joined their service on 7 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 20.05.2015 and they have worked there continuously. However on 04.07.2017 the impugned office orders issued by the respondent no. 3 were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion. It is their case that the petitioners were paid for the services they have rendered as Post Graduate Teachers. The petitioners were also issued impugned show cause notice directing the petitioners to show cause as to why their co terminus service should not be terminated and inquiry not be initiated against them for concealing facts about their qualifying service and for submitting the in service application forms when they were required to fill the forms for direct recruitment. The petitioners responded to the show cause notice by submitting their replies dated 18.09.2016 and 27.09.2016. The petitioners plead that they were not aware of any other advertisement apart the advertisement no. 09 SPSC dated 04.06.2014 in Sikkim Express for direct appointment advertisement for direct recruitment) by the Commission. They further plead that they were not aware of the two separate forms for promotion and direct recruitment. As advertisement for direct recruitment did not have any restrictions for application by in service teachers like the petitioners holding co terminus post they applied for direct recruitment to the posts 8 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others of Post Graduate Teachers. The petitioners also aver that a combined written test for Post Graduate Teachers for both direct recruitment as well as promotion was held and a combined result published on 18.03.2015 in which both of them featured as successful candidates. The petitioners aggrieved by the impugned office orders and impugned show cause notice sent a legal notice to the State respondents. However the State respondents in their reply dated 06.02.2017 declined to entertain their grievances. It is in these circumstances that the petitioners have approached this court praying for the following: “(i) A writ or order or direction or declaration that: a) the common show cause notice issued to petitioner nos. 1 and 2 bearing no. annenure P6) and b) Office Order nos. 278 HRDD Adm and 279 HRDD Adm both dated 4.7.16 Annexures P4 and P5) are set aside quashed and cancelled. ii) A writ or order or direction or declaration that the petitioners are regular Government servants as PGT they are entitled to all benefits of employment including seniority in their respective posts. iii) A writ or order or direction or declaration that the promotion orders of the petitioners as PGT be treated as their appointment orders in the regular establishment either by conversion or otherwise as will be found fit. iv) Costs of the proceedings v) Any other Writ or Order or direction or declaration as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.” In so far prayers are concerned the learned Additional Advocate General submitted that the petitioners have now been appointed as Graduate Teachers on a regular basis 9 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others vide office order no. 646 ADM HRDD dated 24.07.2019 and as such the prayers are infructuous. Mr. A. Moulik submits that in fact the petitioners have been so appointed. A copy of the office order dated 24.7.2019 has been filed by the respondent no. 2 in its affidavit dated 24.11.2020 with the leave of this court. It reveals that by the office order dated 24.07.2019 the word “co terminus” appearing in the initial appointment order in respect of both the petitioners have been removed and they have been treated as appointed on regular basis. In the circumstances the impugned show cause notice seeking to terminate their co terminus appointment would be infructuous and consequently there would be no need for a direction that the show cause notice bearing no. 277 ADM HRDD dated 04.07.2016 be set aside. The State respondents have filed a counter affidavit dated 19.08.2017. According to the State respondents the Human Resource and Development Department forwarded two requisitions bearing no. 567 DIR HRDD(SE) dated 28.02.2014 and 568 DIR HRDD(SE) dated 28.02.2014 to the Commission. It is the case of the State respondents that the petitioners pursuant to the advertisement for direct recruitment applied against the 5 posts of Post Graduate Teachersto be filled up by in service candidates. It is the specific case of the State respondents that the Commission forwarded a merit list of selected candidates after completing the selection process vide 10 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others letter dated 298 SPSC 2015 dated 20.04.2015 recommending the selected candidates. The petitioners were selected for the posts of Post Graduate Teacher through in service quota and accordingly appointment orders dated 14.05.2015 were issued to the petitioners. Subsequently when it was revealed that the petitioners had worked only on co terminus basis and therefore not eligible to apply under promotion in service candidates’ quota their appointments were cancelled vide order dated 04.07.2016. The Commission has filed their counter affidavit. According to them the Commission received a requisition dated 28.02.2014 from the respondent no.3 HRDD for filling 127 posts of Post Graduate Teachers including 16 posts of Post Graduate Teachers for Hindi on direct recruitment basis. The Commission also received another requisition on the same date from the HRDD for filling 35 posts of Post Graduate Teachers in different subjects including 5 posts for Post Graduate Teacher Hindi) for promotion in service candidates. Pursuant to the first requisition advertisement for direct recruitment was published by the Commission inviting applications from eligible candidates. On 10.06.2014 the Commission issued employment notice no. 51 SPSC 2014 dated 10.06.2014 inviting applications from eligible in service candidates for filling up 35 posts of Post Graduate Teachers in 11 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others different subjects including Hindi by way of promotion. The commission decided to conduct a combined examination for both direct recruitment as well as promotion on 13.11.2014. It is the case of the Commission that pursuant to the advertisement for in service candidates the petitioners applied against the 5 posts of Post Graduate Teacher to be filled by in service candidates. The written examination for both direct recruitment and promotion was conducted on 13.11.2014 in which 154 candidates were shortlisted for classroom demonstration and viva voce test which was held on 11th 13th and 15th of April 2015 after which the Commission finalised the merit list. On 20.04.2015 a list of selected candidates for direct recruitment as well as for promotion were recommended by the Commission for appointment to the posts of Post Graduate Teachers. It is the specific stand of the Commission that the petitioners were recommended for appointment under the in service category as both had applied as in service candidates. On 28.02.2014 the HRDD wrote to the Commission forwarding filled in proforma statement for filling up the posts of Post Graduate Teachers subject wise) through direct recruitment. Sixteen posts were available for Post Graduate Teachers as against the total of 127 posts. The relevant notification no. 02 GEN ADM HRDD dated 07.01.2011 for manpower Management Guidelines of Post Graduate Teachers 12 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Guidelines notification) was also enclosed. The Commission has not furnished a copy of the proforma with regard to direct 10. On the same date i.e. 28 02 2014 the HRDD wrote to the Commission forwarding filled in proforma statement for filling up the posts of Post Graduate Teachers through promotion. Five posts were available for Post Graduate Teacher as against the total of 35 posts. The Guidelines notification was also enclosed. The proforma for promotion required twelve information to be filled. The proforma forwarded by the HRDD to the Commission is as under: 1 Name of Post and Department 2 No. of posts to be filled up Pay band and Pay Grade Post Graduate Teacher PB(2) 9300 34800+5000 GP the Department with Total number of Posts of this grade nomenclature if any List of officers already holding posts in this grade including those on Adhoc basis in order of seniority duly indicating mode of recruitment to this grade. 6 Complete uptodate seniority list of persons in lower grade with full service particulars 7 Uptodate confidential reports for the number of years as per rules of all the persons who are to be considered for promotion. 8 Whether certificates in respect of all persons to be considered for promotion are enclosed. 9 Whether Annual Property Return in to be respect of all persons Enclosed with Notification no 02 Gen Adm HRDD Dated 07 01 2011 13 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Dated 21.03.2011 No 10 Whether Departmental Clearance certificates of all eligible persons are enclosed. 11 Number of date of Notification along with copy thereof under which the relevant promotion rules including up to date amendments are published 12 Total number of enclosures. 1. List of Officers mentioned at Sl. No.5 2. Seniority list vide SL. No 6 3. ACRs 4. Vigilance Cleartence5. Departmental Clearence6. Annual property return 7. Others8. Grant total 11. It would be relevant to note that details to be filled in the proforma especially in serial no. 6 to 12 would have given the Commission the relevant information of those candidates who were eligible to be considered for promotion. According to the proforma complete uptodate seniority list of persons in lower grade with full service particulars were enclosed by the HRDD and forwarded to the Commission. 12. The advertisement for direct recruitment required the following eligibility criteria: “3.ELIGIBILITY CRITERIA Minimum i) Master’s Degree in respective subject with for reserved category ii) Master Degree without B.Ed. with 50% and above for General Category and 45% and above respective subject can also apply. On selection they shall be given conditional appointment and they should acquire the B.Ed. qualification within 3years failing which their service is liable to be 14 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others iii) Should have attained the age of 18 years but should not have exceeded the age of 30 years. In the case of Government servant not more than 40 years. v) 45years for presently working temporary including those working on adhoc contract Co terminus) under Department Govt. of Sikkim Substituted 617 DIR HRDD SE dated 05.04.2014. 13. The advertisement for promotional candidates invited applications from “In service Primary Teachers and Graduate Teachers working in the Government School having eligible criteria for filling up for following posts of Graduate Teachers and Post Graduate Teachers”. A master’s degree in respective subjects with B.Ed. and eight years of regular service as Graduate Teacher was the eligibility criteria for the posts of Post Graduate Teacher Hindi). The candidates were required to go through a written examination and after qualifying to appear for classroom demonstration personality test. Application form was required to be downloaded from the official website of the Commission. 14. On 08.07.2014 and 28.07.2014 the petitioners no. 1 and 2 respectively filled the application forms for in service applicants. This was the form required to be filled by promotional candidates pursuant to advertisement for promotional candidates. In serial no.13 of the form the petitioners gave their designation as Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others not mention that they were appointed on co terminus basis. The petitioners have stated that they had enclosed a copy of their co terminus appointment letters along with the forms. There is no specific denial about this fact in the courter affidavits filed by the Commission as well as the State respondents. 15. According to the Commission the petitioners also submitted no objection certificates dated 30.06.2014 and 18.07.2014 along with the application forms. The no objection certificates certified that the HRDD had no objection for the petitioners appearing in the interview for the posts of Post Graduate Teachers being conducted by the Commission. 16. The written examination was conducted on 13.11.2014. On 18.03.2015 a notice for viva voce and classroom demonstration was issued based on the evaluation of marks obtained by the candidates in the written examination. Both the petitioners’ roll numbers were featured in the list. Those candidates selected in the written examination were to be called for viva voce and classroom demonstration on a date to be announced later. They were asked to come with original certificates of all relevant documents listed there. The viva voce and classroom demonstration took place on 11th 13th and 15th of April 2015. On 18.04.2015 the Commission issued a notice declaring ninety six candidates qualified on the basis of the 16 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others written examination classroom demonstration and viva voce. The petitioners were also selected. 17. On 20.04.2015 the Secretary of the Commission wrote to the respondent no. 2 stating that pursuant to their letters both dated 28.02.2014 for direct recruitment and promotion the Commission advertised the posts in the local newspapers dailies as well as in the Commission’s website. After receiving applications the Commission issued admit cards to 1738 candidates and conducted the written examination on 13.11.2014 and out of which 154 candidates were shortlisted for classroom demonstration and viva voce. The classroom demonstration and viva voce interview were conducted on 11th 13th and 15th April 2015. On the basis of the marks obtained in the written examination and classroom demonstration viva voice test 96 candidates were provisionally recommended appointment. Petitioner no.2 featured in serial no. 53 and petitioner no. 1 featured in serial no. 56 in order of merit in the said list. They were both recommended for promotion. The letter also stated that the applications and other documents of the selected candidates were being forwarded and that the list was provisional subject to police verification report medical fitness and verification of all required documents by the State government. It was also notified that all the original certificates 17 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others and documents as well as original admit cards were to be checked before issuing formal office order by the HRDD. 18. It seems that both the petitioners satisfied that they fulfilled the eligibility criteria demanded in advertisement for direct recruitment for the posts of Post Graduate Teachers filled the forms titled “Application Form for In service” meant for promotional candidates. The form which the petitioners were required to fill was however the form titled “Application Form” meant for direct recruitment. There is no explanation from the Commission why they could not title them in any other manner to give a clear indication to the applicants that one form was for direct recruitment and the other for promotional candidates. Although as per the learned counsel for the Commission there was a difference in the two forms in as much as it was only in the form titled “Application Form” that local Employment Card Number was sought which would reflect that it was meant for direct recruitment. It is the petitioners’ case that as they were in service in co terminus basis they presumed that they were required to fill the form titled “Application Form for In service” filled the details therein and submitted to the Commission. Even in the forms filled by the petitioners they did not disclose that they were appointed on co terminus basis in item no. 13 which sought information about their present designation. On scrutiny of their application forms it is apparent that the Commission 18 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others for written demonstration viva voce. If the Commission had gone through the information provided by the State respondents through the proforma giving an updated seniority list of persons in the lower grade with full service record it is apparent that the petitioners would have not even have been invited to sit for the written examination. Apparently the Commission completely ignored the information given by the State respondents. Again there is no explanation as to why the Commission thought it fit to hold a combined examination for direct recruitment as well as promotion. There is also no explanation as to why the Commission thought it fit to publish the result of the written examination of both direct recruits as well as promotional candidates together. However the notice dated 18.03.2015 publishing the list of candidates selected for viva voce and classroom demonstration did point out that this was for “both direct & In service promotional candidates”. Further a list of thirteen documents was sought from the candidates to be brought with them in the original. Items “i” and “j” in the said list were as follows: “i. Minimum eight years of service experience certificate as regular graduate teacher and In service candidates shall invariably bring existing substantive post’s office order. j. Work experience certificate No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 19. Admittedly the petitioners did not have eight years of service experience as regular Graduate Teachers and therefore they being considered as being in service candidates for the promotional posts did not arise at all. Obviously the petitioners had not furnished such certificates. 20. However it transpires that both the petitioners were called for sat for the viva voce and were also selected by the Commission. The Commission thereafter published a notice dated 18.04.2015 declaring ninety six candidates qualified on the basis of written examination classroom demonstration and viva voce once again for both direct and promotional candidates. The petitioner no.1 featured in serial no. 56 and the petitioner no.2 in serial no. 53. In the notice dated 18.04.2015 both the petitioners were shown as promoted and not as directly recruited. The petitioners’ appointment orders dated 14.05.2015 also clearly records that they were promoted to the posts of Post Graduate Teachers No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Teachers through direct recruitment. Thus when the petitioners read the notice dated 18.04.2015 showing them as qualified for promotion they ought to have been alarmed. However the facts reveal that both the petitioners accepted the promotional orders without any demur or protest. They enjoyed the promotional posts the salaries and perks till the State respondents realised that they had been promoted without even being qualified. The advertisement for the promotional posts required eight years of regular service as Graduate Teacher as eligibility condition which they apparently and admittedly did not possess. 21. The Commission is a commission under Article 315 of the Constitution of India for the purpose of fulfilling the functions as provided in Article 320 of the Constitution of India. It is the duty of the Commission to conduct examinations for appointment to the services of the State. The explanation given by the Commission for such gross failures are wanting. According to the learned counsel of the Commission the petitioners were selected for promotion solely on the basis of the no objection certificates issued by the HRDD dated 30.06.2014 and 18.07.2014 certifying that the department had no objection for the petitioners appearing in the interview for the posts of Post Graduate Teachers. The certificates according to the petitioners were furnished to the authorities along with the forms for in service candidates they had filled and submitted. These 21 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others certificates said nothing else. The proforma submitted by the State respondents to the Commission for promotion provided them with an updated seniority list of eligible persons that could be considered. Clearly this information was ignored. Failure of the Commission to ignore such relevant information without anything more is grossly and patently irresponsible. Conducting examination for all government posts is a serious affair. It is unfortunate that the conduct of the examination as well as the scrutiny of the petitioners has been lacking in the responsibility demanded of the Commission to its constitutional functions. It was also the duty of the State respondents to have verified the recommendations before issuing the promotion orders. More so when the Commission had itself cautioned the State respondents against doing so. Apparently the State respondents trusted the Commission’s recommendation and gave effect to it by promoting the petitioners who were not even in the zone of consideration. 22. In such circumstances the question is whether the prayers as prayed for in the writ petition could be granted in favour of the petitioners. Admittedly both the petitioners do not have the necessary eligibility criteria of eight years of regular service required for the promotional posts of Post Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others them continuing their service in the promotional posts they held before the issuance of the impugned office orders cancelling their promotion orders does not arise. 23. That takes us to the next question raised by them as to the illegality of the impugned office orders as apparently no show cause or opportunity of hearing were afforded to the petitioners before their issuance. The impugned office orders cancelled the petitioners’ appointment to the promotional posts of Post Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Teacher for more than a year and two months before the authorities realised their folly and rectified the same by issuing the impugned office orders cancelling their promotional orders. The writ petition was filed on 11.05.2017 almost after ten months after issuance of the impugned office orders dated 04.07.2016. The conduct of the petitioners are also wanting. It was incumbent upon them to have notified the authorities of their having wrongly promoted 24 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others them although they had not applied for promotion at least on the receipt of the promotional orders dated 14.05.2015. Much water would have flowed under the bridge from the time of the advertisement in the year 2014 till the filing of the writ petition in the year 2017. They have enjoyed more than a year’s salary perks for holding posts they were not even eligible for. This court is of the considered opinion that the petitioners have also disqualified themselves by their own error of judgment to their own detriment. They cannot at this juncture be considered for the direct recruitment posts advertised in the year 2014 as well. However this would not be an impediment to them to be considered for either promotional or direct recruitment avenues in the future. 25. The only question left now is whether the petitioners should be directed to refund the excess payment made on account of their promotion. Besides the error of judgment of the petitioners it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners which although alleged by the State respondents have not been proved the issue would have 25 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularise the petitioners’ co terminus service inspite of issuance of the impugned show cause notice. In the circumstances this court is of the considered view that the State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions. However it is apparent that there has been a loss of financial resources from the State exchequer due to the follies of the Commission and the State respondents. This court is of the opinion that it should be left to their wisdom to realize the amount from their erring officers if found guilty. 26. The writ petition is partly allowed in the above terms and disposed. 27. No order as to costs. Judge Approved for reporting: Yes No : Yes No Internet 

Summary: “The State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Ganesh Bhandari &amp; ors. V. State of Sikkim &amp; ors, [WP(C) No. 24 of 2017]. The petitioners were appointed as Graduate Teachers on 04.03.2003 and 01.03.2003 on coterminus basis under HRDD. It is the petitioners’ case that pursuant to an advertisement dated 04.06.2014, published in Sikkim Express on 08.06.2014, they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus, they applied in the “prescribed application forms” for the said posts. After they received their promotion orders, the petitioners joined their service on 20.05.2015 and they have worked there continuously. However, on 04.07.2017, the impugned office orders issued by the respondent no. 3, were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion. The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14, 16, 19 and 21 as well as Article 300A of the Constitution of India, has been preferred by the two petitioners who have been issued office orders no. 278/HRDD/ADM and 279/HRDD/ADM by which the Human Resource Development Department, had cancelled their promotion orders both dated 14.05.2015 with retrospective effect. By the impugned office orders, they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto, the petitioners were issued show cause notice, directing them to show because why their coterminous service should not be terminated and why inquiry should not be initiated against them for concealing the facts. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “Besides the error of judgment of the petitioners, it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher (Hindi) in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners, which although alleged by the State respondents have not been proved, the issue would have been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularize the petitioners’ co-terminus service inspite of issuance of the impugned show cause notice.”