SHIVA NAND MISRA Vs. STATE OF SIKKIM
LAWS(SIK)-2010-9-17
HIGH COURT OF SIKKIM
Decided on September 01,2010

Shiva Nand Misra Appellant
VERSUS
STATE OF SIKKIM,Secretary, Human Resource Development Department,Mamta Thapa,O.P. Basnett,M.P. Subba Respondents

JUDGEMENT

DINAKARAN,CJ - (1.) THE writ petitioner herein prays for a writ of Mandamus/Certiorari questioning the promotion of respondents no. 3, 4 and 5 as Joint Director on officiating capacity and consequently the inter-se seniority and further that he should be promoted to the post of Joint Director prior to the date of promotion of the respondents no. 3, 4 and 5 i.e. 24.01.2009. 1.1 The service of the petitioner and respondents no. 3, 4 and 5 are governed by The Sikkim State Education Service Rules, 1996 as well as the Sikkim State Services (Regulation of Seniority) Rules, 1980. As per The Sikkim State Education Service Rules, the post of Deputy Director and the post of Principal of Senior Secondary Schools were treated at par for promotion to the post of Joint Directors on completion of 8 years of regular service as Deputy Director/Principal of Senior Secondary Schools, as per Rule 7 and Schedule II of the said Sikkim State Education Service Rules. The relevant portion of the Schedule reads as follows: " SCHEDULE ­ II (see rule 7) ______________________________________________ Sl. Post/grade Mode of Eligibility No. recruitment conditions ______________________________________________ 1. Assistant 100 per cent 8years regular Director by promotion service as Junior Grade Assistant Education Officer. 2. Deputy 100 per cent 6 years regular Director by promotion service as Senior Scale Assistant Director. 3. Joint Director 100 per cent 8 years regular Selection by promotion service as Grade II Deputy Director. This includes induction of Principals of Senior Secondary Schools at this level. 4. Additional 100 per cent 4 years regular Director by promotion service as Selection Joint Director. Grade I 5. Director 100 per cent 4 years regular Supertime by promotion service as Grade II or by deputation Additional Director. " 1.2 According to the petitioner, respondents no. 3, 4 and 5 were promoted as Deputy Director in the year 2001 even though they were not eligible for the same. 1.3 The petitioner further contends that on 15.06.1999, an amendment was brought to the said Service Rules, which reads as under: - " GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL, ADMINISTRATIVE REFORMS and TRAINING GANGTOK. NO. 17/GEN/DOP DATED: 15.06.1999 NOTIFICATION In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, the Governor of Sikkim is hereby makes the following rules to amend the Sikkim State Education Service Rules, 1996, namely: - Short title and commencement 1. (1) These rules may be called the Sikkim State Education Service (Amendment) Rules, 1999. (2) They shall come into force at once. Amendment of Schedule II 2. In the Sikkim State Education Service Rules, 1996, for the existing Schedule II, the following Schedule shall be substituted namely: - SCHEDULE - II (see rule 7) Sl. Post/grade Mode of recruitment Eligibility No. conditions 1. ... ... ... 2. ... ... ... 3. Joint Director i) 34% from amongst 8(Eight) years Selection the Principals of regular service Grade II Senior Secondary as Principal of School Senior Secondary School. ii) 66% from amongst 8(Eight) years the Deputy Directors regular service as Deputy Director. "
(2.) ON the strength of the said amendment dated 15.06.1999, the petitioner submits that the respondents no. 3, 4 and 5, were promoted to the post of Deputy Director in the year 2001 on officiating basis, and were thereafter promoted to the post of Joint Director with effect from 13.12.2002, 24.12.2002 and 24.12.2002 respectively, on officiating basis. The petitioner's grievance is that even though he had completed more than 11 years of regular service as Principal, Senior Secondary School, he was not considered for promotion to the post of Joint Director on the said relevant dates. According to the petitioner, as per the amendment dated 15.06.1999, he is entitled to be considered for promotion to the post of Joint Director even before respondents no. 3, 4 and 5 were promoted as Joint Director. Hence, the petitioner was constrained to move this Court in W.P.(C) No. 3 of 2006, which was disposed of by Order dated 20.05.2008, which is extracted as hereunder: "It is recorded that promotions have been granted to the writ petitioners who had grievance. It has been granted with effect from 22.05.2007 the date of the Court's earlier order. The writ petitioners now would have something even more, and they want the Court to enter into the question of their seniority involving several private parties. In our opinion this would not be just or equitable. Let the writ petitioners be happy with what they have got in pursuance of the Court's order. Steps taken by the parties so far are confirmed. The writ petition is disposed of without any further or other orders. Sd/- (A.N. Ray, CJ) Sd/- (A.P. Subba, J)" The said order dated 20.05.2008 has become final. Thereafter, the petitioner made a representation dated 08.12.2009 to the authority concerned, namely, the Secretary, Department of Personnel, Administrative Reforms and Training, Government of Sikkim, respondent no. 1, claiming his seniority above the aforementioned respondents and promotion to the post of Additional Director with effect from 16.10.2009, the date on which the respondents no. 3, 4 and 5 were subsequently promoted. As there was no response to the representation from the said respondent no. 1, the petitioner has filed the present writ petition questioning the promotion of respondents no. 3, 4 and 5 to the post of Joint Director, as the same is contrary to the amendment dated 15.06.1999 issued by the Stat Government and he has prayed that he be given inter-se seniority and be placed above respondents no. 3, 4 and 5 and accordingly he should be promoted to the post of Additional Director, prior to respondents no. 3, 4 and 5, who were promoted to the said post on 16.10.2009.
(3.) HEARD .;


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