(1.) THE petitioner is challenging the promotion of the contesting respondents no. 6 to 19 from the post of Computer
Programmer to the post of Assistant Director and the further
promotion of respondents no. 6, 7 and 8 to the post of Deputy
Director, as per the following table:
" TABLE Date of appointment in the equivalent Date of rank of Assistant Director upgradation programmer/ Rs.7000-11500 in Deputy Sl Names Respo- Asstt. Director rank No ndent Programmer Rs. 9000- Nos. etc. in the 13800 scale of (officiating) Dates of Dates of Rs.5500-9000 officiating Regulari- promotion sation 1 Syriac Joseph (Petitioner) ... 12.07.96 ... ... ... 2 Phigu Tshering Date Bhutia 9 6.3.2000 ... 20.07.04 unknown 3 Sonam Tashi Wangdi 6 24.05.02 23.06.03 20.02.04 02.03.09 4 Prem Vijay Basnet 7 24.05.02 23.06.03 20.02.04 02.03.09 5 Chewang N. Bhutia 8 24.05.02 23.06.03 20.02.04 02.03.09 6 D.K. Chettri 10 13.08.03 Promotion 31.10.05 7 Deepankar Lama 11 13.08.03 by 31.10.05 8 Sonam L. Kaleon 12 13.08.03 relaxation 31.10.05 9 Ashim Tamang 13 13.08.03 26.10.06 10 Bikash Diyali 14 13.08.03 29.03.08 11 Paldon Ongchu Pazo 15 13.08.03 29.03.08 12 Teneen Bhutia 16 13.08.03 29.03.08 13 Tashi O. Bhutia 17 13.08.03 29.03.08 14 Abina Thapa 18 13.08.03 29.03.08 15 Karma Zimba Bhutia 19 2004 20.06.08 "
(2.) THE main grievance of the petitioner is that he is the seniormost Computer Programmer as compared to that of
respondents no. 6 to 19 and that he also possesses the requisite
qualification to be promoted as Assistant Director, as per the
Notification No. 12/GEN/DOP dated 17.04.2001 of the
Government of Sikkim, published in the Official Gazette dated
01.05.2001, relevant portion of which reads as hereunder: -
" GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL, ADM. REFORMS and TRAINING GANGTOK No. 12/GEN/DOP Dated: 17.4.2001 In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor hereby makes the following rules regulating the method of recruitment to the posts of Assistant Director, Deputy Director, Joint Director, Additional Director and Director in the Information Technology Department, namely: 1. Short title and commencement: (1) These rules may be called the Sikkim State Information Technology Service Recruitment Rules, 2001; (2) They shall come into force at once. 2. Number of posts, classification and scale of pay: The number of posts, their classification and scales of pay attached thereto in relation to the posts of Assistant Director, Deputy Director, Joint Director, Additional Director and Director shall be as specified in column 2, 3 and 4 of the Schedule. 3. Method of recruitment, age limit, qualification, etc.: The method of recruitment, age limit, qualification and other matters relating to the said posts of Assistant Director, Deputy Director, Joint Director, Additional Director and Director shall be as specified in column 5 of the Schedule. 4. Power to relax Where the State Government is of the opinion that it is necessary or expedient so to do, it may, by an order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons. 7 Provided that where no suitable sufficient provisions have been made in so far as the Sikkim State Information Technology Service Recruitment Rules are concerned, the provisions as applicable to the staff/officers of the corresponding grade shall, mutatis mutandis apply subject to such modification as may be made or required to be made. 5. Saving: Nothing in these rules shall affect reservation, relaxation of age limit and other concession required to be provided to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and other special categories of persons in accordance with the orders issued by the State Government from time to time in this regard. 6. Unless otherwise specified by a separate order the expenditure on salaries of the incumbents appointed under the Sikkim State Information Technology Service Recruitment Rules 2001 shall be met from the Budget Head 2852-07-800-OE-40-IT- 400001-Salaries under PLAN. R.S. BASNET, Secretary to the Government of Sikkim, Department of Personnel, Adm. Reforms and Training. SCHEDULE Sl Name of Number Classification Scale Method of Eligibility No post of posts /Grade of pay recruitment conditions required for direct recruitment /promotees 1. Assistant 5 Junior Grade Rs. 1 post by Age bet- Director 7000- deputation ween 21 225- or Transfer years and 11500 and 4 posts 30 years. by direct Upper age recruitment limit after relaxable by 2002 AD five years in the case of Scheduled Tribe/ Schedule Caste candidates 8 and by three years in the case of Other backward Classes category of candidates. Educational Qualification Graduates with PG Diploma in Computer application from a recognised university with 1 years experience in Informa- tion Techno- logy OR electronics Graduates or Computer Science Graduates with 1 years experience in Information Technology Or Master in Computer Application. 2. XXX XXX XXX 3. XXX XXX XXX 4. XXX XXX XXX 5. XXX XXX XXX "
Mr. A. Moulik, learned senior counsel appearing for the petitioner contends that the promotion of the contesting
respondents no. 6 to 19 are discriminatory, arbitrary and
3.2 Mr. Moulik, further contends that respondents no. 10, 11 and 12 were promoted from the post of Computer Programmer to the post of Assistant Director by promotion, which post, as per the provision of Sikkim State Information Technology Service Recruitment Rules, 2001, ought to be filled up only by direct recruitment. Hence, the writ petition.
(3.) MR . J.B. Pradhan, learned Additional Advocate General appearing on behalf of the State-respondents clarify that as per
the Notification No. 12/GEN/DOP dated 17.04.2001, referred to
above, all the posts of Assistant Director are to be filled up by
direct recruitment, except one post which is to be filled up by
deputation or transfer.
4.2 Learned Additional Advocate General further clarifies that even though it stated that the respondents no. 6 to 19 were promoted to the post of Assistant Director, they were not promoted but considered for direct recruitment as internal candidates, at different point of time, which varies from 2003 to 2008 because the relevant Rules notified on 17.04.2001, referred to supra, provides for recruitment of Assistant Directors only by way of direct recruitment/by deputation or transfer, but not by promotion as contended by the petitioners. 4.3 Mr. J.B. Pradhan, learned Additional Advocate General contends that the petitioner is not entitled to challenge the promotion of contesting respondents no. 6 to 19 to the posts of Assistant Director which was made in the years 2003 to 2008, as the respondents were considered not as promotees, but as direct recruits, considering them as internal candidates. 4.4 Mr. J.B. Pradhan, learned Additional Advocate General further contends that since the respondents no. 6, 7 and 8 were subsequently promoted to the post of Deputy Directors with effect from 02.03.2009, the petitioner, who never challenged the promotion of the respondents No. 6, 7 and 8 to the post of Assistant Director with effect from 23.06.2003, is not entitled to challenge the promotion of respondents No. 6, 7 and 8 to the post of Deputy Director at this point of time. According to learned Additional Advocate General, when the petitioner himself failed to approach the Court in time to challenge the recruitment of respondents no. 6 to 19 to the posts of Assistant Director and also failed to challenge the subsequent promotion of respondents No. 6, 7 and 8 to the posts of Deputy Director immediately thereafter, he is not entitled to challenge the said promotions now, as per the decision of the apex Court in (i) P.S. Sadasivaswamy vs. State of Tamil Nadu reported in (1975) 1 SCC 152; and (ii) Shiv Dass vs. Union of India and others reported in (2007) 9 SCC 274. 4.5 Learned Additional Advocate General also brought to my notice that the Government of Sikkim had framed the Sikkim State Subordinate Information Technology Service Recruitment Rules, 2005, notified by a Notification No. 143/GEN/DOP dated 06.05.2005, and the service of the petitioner as a Computer Programmer is governed by the same. Clause 5 of the said Rules reads as hereunder: "5. Persons holding duty posts:- All persons holding duty posts on the appointed day shall be deemed to have been appointed to the corresponding duty posts respectively held by them." 4.6 As per the Subordinate Service Rules dated 06.05.2005, referred to above, the learned Additional Advocate General submits that the petitioner is in Seniority No. 2. 4.7 In any event Mr. Pradhan, the learned Additional Advocate General fairly submits that the case of the petitioner will be considered not for promotion but for direct recruitment to the post of Assistant Director, treating him as an internal candidate, as in the case of respondents no. 6 to 19, as per the Sikkim State Information Technology Service Recruitment Rules, 2001, as referred to above, within a period of three weeks from the date of receipt of this order. ;