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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",,
(impugned office orders) by which the Human Resource Development Department (HRDD), had cancelled their promotion orders",,
no.06/DIR/HRDD(SE)/PGT and 07/DIR/HRDD(SE)/PGT both dated 14.05.2015 (promotion orders) 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 no. 277/ADM/HRDD dated 04.07.2016 (impugned show",,
cause notice) 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.,,
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 Commission (Commission).",,
Mr. Moulik submits that the petitioners were eligible to be considered for the posts of Post Graduate Teachers through direct recruitment and as,,
such, they applied for the said posts by filling in the form meant for in-service candidates, genuinely believing that they themselves were in-service",,
candidates as they had been working as Graduate Teachers on co-terminus basis. He, therefore, submits that filling the wrong form was only",,
procedural in nature and the petitioners should not be terminated for innocent violation of the procedural requirement. He relied upon Udai Shankar,,
Triyar vs. Ram Kalewar Prasad Singh & Another( 2006) 1 SCC 75, 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 & Others (2011) 8 SCC 497, 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 & Others (1980) 4 SCC 379, 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.",,
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 & Others 2011) 7 SCC 397 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. (SLR) 2018 Sikkim 1005. 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 Pradesh (2012) 8 SCC 748.,,
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. 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. Along with the forms for 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 certificates 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 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 from the advertisement no. 09/SPSC dated 04.06.2014 published 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,,
available for promotion and direct recruitment. As the 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 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. 277/Adm/HRDD dated 4/7/16 (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 (Hindi) they are entitled to all benefits of,,
employment including seniority in their respective posts.,,
1,Name of Post and Department,"Post Graduate
Teacher (HINDI)
2,No. of posts to be filled up,05
3,Pay band and Pay Grade,"PB(2) 9300-
34800+5000/-GP
4,"Total number of Posts of this grade
in the Department with their
nomenclature if any",
5,"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","Enclosed with
Notification no;
02/Gen/Adm/HRDD
Dated; 07/01/2011
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 Vigilance Clearance
certificates in respect of all persons
to be considered for promotion are
enclosed.",
9,"Whether Annual Property Return in
respect of all persons to be
considered for promotion is
enclosed.",
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","Notification No;
04/Gen/Adm/HRDD
Dated; 21.03.2011
12,"Total number of enclosures.
List of Officers mentioned at
Sl. No.5
Seniority list vide SL. No; 6
ACRs
Vigilance Cleartence (sic)
Departmental Clearence (sic)
Annual property return
Others (please verify)
Grant total",
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 for 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 and documents as well as original admit cards,,
were to be checked before issuing formal office order by the HRDD.,,
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 Formâ€, 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-serviceâ€, 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 called them for written examination and classroom 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 candidatesâ€. 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 (in case of in-service candidates of HRDD from respective,,
district Joint Director) and In-service candidates shall invariably bring existing substantive post’s office order.,,
j. Work experience certificate (if any, in case of direct candidates)â€",,
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.",,
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.,,
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 (Hindi). It is possible that there may have been,,
confusion created by the method adopted by the Commission in the process of recruitment. It is also, therefore, possible for the petitioners to have got",,
confused by the wrong form for in-service candidates they filled for direct recruitment on the presumption that they too were in-service candidates.,,
However, it is apparent that both the petitioners were absolutely clear that they were applying for the post of Post Graduate 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.,,
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 certificates said nothing else. The,,
proforma submitted by the State respondents to the Commission for promotion 0provided 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 fulfil 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.,,
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 (Hindi). Admittedly, again the petitioners did not apply for the promotional posts. In the circumstances, the question of 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.,,
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 (Hindi). The promotion orders were issued to the petitioners apparently without even they applying for it,,
or having the necessary qualifications. Therefore, it cannot be said that they had established right to be heard before the apparently illegal appointment",,
orders dated 14.05.2015 were cancelled.,,
The petitioners have also prayed for a direction that they be treated as direct recruits Post Graduate Teacher (Hindi). The petitioners are,,
Graduate Teachers holding Post Graduate Degrees. When they apply for any post, it is incumbent upon them to be careful and fill the right form for",,
the right job. The records reveal that right from the submission of the forms for in-service candidates, the Commission has evaluated them as",,
promotional candidates. According to the petitioners, pursuant to the advertisement for direct recruitment, they filled the forms and applied for the",,
direct recruitment posts of Post Graduate Teacher (Hindi). It is also their case that the petitioners were invited for viva-voce on 13.04.2015. Although,",,
the petitioners have sought to make out a case that they became aware of the notices dated 18.03.2015 and 18.04.2015 after obtaining information,,
under the Right to Information Act, 2005, there is no other notices by which the petitioners could have known that they had been called for viva-voce",,
to be held on 13.04.2015, besides the said notices. There is also no explanation given by the petitioners as to how they accepted their promotional",,
orders dated 14.05.2015, although they had not applied for it and admittedly, not qualified too. Even if the petitioners had been confused about the form",,
they filled, at least on the receipt of office orders dated 14.05.2015, they ought to have realised that they had not been considered for the posts of",,
direct recruitment. Even when the petitioners replied to the show cause notice they insisted that their promotions were on the basis of a selection,,
procedure. However, the records reveal that they continued to enjoy the promotional posts of Post Graduate Teacher (Hindi) 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 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.",,
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 (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 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.",,
The writ petition is partly allowed in the above terms and disposed.,,
No order as to costs.,,