Smt. Rita Devi Niroula and Ors. vs The State of Sikkim and Ors.
- Court
- High Court of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
CNR: SKHC010000732026
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No.02 of 2026
IN
W.P. (C) No. 28 of 2026
1. Smt. Rita Devi Niroula,
D/o N.M. Niroula,
Aged about 36 years old,
R/o Development Area, Gangtok,
Sikkim-737101.
2. Shri Manoranjan Behera,
S/o Bhramarbar Behera,
Aged about 26 years old,
R/o Barapur, Basudebpur, Bhadrak,
Odhisa-756125.
3. Miss Sushma Sharma,
C/o Dilli Ram Sharma,
Aged about 24 years old,
R/o Lower Kolthang,
Near Sanskrit Pathsala Lingee,
VTC: Tokdey, Lingmoo, Rabang,
Sikkim-737134.
4. Shri Kritesh Darnal,
C/o Subarna Darnal,
Aged about 28 years old,
R/o Nandok Saramsa,
Saramsa, Near IRB Camp,
Ranipool, Gangtok, Sikkim-737135.
….... Petitioners
Versus
1. The State of Sikkim,
Through the Chief Secretary,
Government of Sikkim,
Tashiling Secretariat, Gangtok, Sikkim-737101.
2. The Sikkim Judicial Academy,
Through its Director,
Sokeythang, Gangtok, Sikkim-737101.
3. The Director,
Sikkim Judicial Academy,
Sokeythang, Gangtok, Sikkim-737101.
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I.A. No.02 of 2026
IN
W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
4. The Board of Governors,
Sikkim Judicial Academy,
Through its Member Secretary/Director,
Sokeythang, Gangtok, Sikkim-737101.
5. The Registrar General,
High Court of Sikkim,
Gangtok, Sikkim-737101.
6. The Department of Personnel,
Government of Sikkim,
Through its Secretary,
Gangtok, Sikkim-737101.
..….. Respondents
Application for stay
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Appearance:
Mr. Abhinav Kant Jha and Ms. Preeti Basnett, Advocates for the
Petitioners.
Mr. Zangpo Sherpa, Additional Advocate General with Mr.
Thinlay Dorjee Bhutia, Government Advocate for the
Respondent nos.1 & 6.
Mr. N. Rai, Senior Advocate with Mr. Kazi Sangay Thupden, Ms.
Prerana Rai, Ms. Pem Lhamu Lepcha, Advocates for the
Respondent nos. 2 to 4.
Ms. Parvin Manger, Advocate for Respondent no.5.
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Date of Order reserved : 01.07.2026
Date of Order Pronounced : 03.07.2026
Date on which uploaded : 03.07.2026
O R D E R
Bhaskar Raj Pradhan, J.
1. I.A. No.02/2026 filed on 29.05.2026 was pending
consideration by this Court. It is an application seeking stay of the
operation and effect of:
(i) Office Order No.15/SJA/2026 dated
27.05.2026 and Office Order
No.16/SJA/2026 dated 27.05.2026 issued
against the petitioner no.1.
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IN
W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
(ii) Termination orders all dated 27.05.2026
issued against petitioner nos. 2, 3 and 4.
(iii) The application for stay also seeks a
direction that the petitioners shall continue
in service and shall not be disturbed from
their respective posts during pendency of
the writ petition.
2. Office Order No.15/SJA/2026 dated 27.05.2026 is the
Office Order by which the petitioner no.1’s promotion from the post
of Assistant Coordinator to the post of Under Secretary was
revoked with immediate effect on the ground that the promotion
made on 01.12.2025 was done by waiving off the mandatory
requirement of a Departmental Promotion Committee and at the
time of promotion she had not fulfilled the minimum qualifying
term of service as prescribed in the Schedule appended to the
Sikkim Judicial Academy (Appointment, Conditions of Service and
Conduct) Rules, 2020 (the Service Rules) which is in violation of
Rule 5(iii) thereof.
3. Office Order No.16/SJA/2026 dated 27.05.2026 issued
against the petitioner no.1 is the termination and discharge order
w.e.f. 31.05.2026 as Assistant Coordinator on the ground that her
appointment made on 22.08.2023 was done in violation of the
method of recruitment prescribed for the post of Assistant
Coordinator in the Service Rules without advertisement and written
examination/interview in violation of Rule 5(i) thereof.
4. Termination order No.14/SJA/2026 dated 27.05.2026
was issued against petitioner no. 2 terminating and discharging
him from service w.e.f. 31.05.2026 since his appointment made on
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IN
W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
20.06.2023 was done without advertisement of the post and
written examination/interview and thus in violation of Rule 5(i) of
the Service Rules.
5. Termination order No.18/SJA/2026 dated 27.05.2026
was issued against petitioner no. 3 terminating and discharging her
from service w.e.f. 31.05.2026 since her appointment made on
25.09.2025 was done without advertisement of the post and
written examination/interview and thus in violation of Rule 5(i) of
the Service Rules.
6. Termination order No.17/SJA/2026 dated 27.05.2026
was issued against petitioner no. 4 terminating and discharging
him from service w.e.f. 31.05.2026 since his appointment made on
08.07.2024, was done without advertisement of the post and
written examination/interview and thus in violation of Rule 5(i) of
the Service Rules.
7. The respondent nos. 2 to 4 have filed their reply dated
16.06.2026 to the application for stay. They have also filed a
detailed counter affidavit along with all relevant records in
response to the writ petition filed by the petitioners. The reply
submits that the prayers in the application are not maintainable in
the eyes of law and is liable to be dismissed with exemplary costs.
8. Mr. Abhinav Kant Jha, learned counsel for the
petitioners submitted that the show cause notices were issued to
the petitioners with a predetermined mind for termination. The
learned counsel fairly concedes that each of the
appointments/promotion of the petitioners were made without
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W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
following the mandate of Rule 5 of the Service Rules. However, it is
his submission that as the then Hon’ble the Chief Justice had
accorded his approval for appointing them by invoking the
residuary power under Rule 11 of the Service Rules the
appointments were not “illegal.” The learned counsel submits that
these appointments at best were “irregular” appointments. Finally,
the learned counsel pointing out the note dated 27.02.2026 of the
Joint Registrar-cum-Senior Judgment Writer to the Hon’ble Chief
Justice submitted that Hon’ble the Chief Justice had not given the
power to the respondent no. 4 to examine the administrative
lapses in the past.
9. Mr. N. Rai, learned Senior Counsel for the respondent
nos. 2 to 4 vehemently opposed the grant of stay in favour of the
petitioners since according to him all the appointments were illegal
and malafide. It was submitted that the petitioners could not have
been appointed in any other manner than what was permissible
under the Service Rules and Rule 5 of the Service Rules was given
a complete go by. The learned Senior Counsel also pointed out that
the Appointing Authority in all the cases of the petitioners was the
Chairperson/Judge-in-charge of the respondent no.2 and none of
the appointments were made under the signature of the Appointing
Authority or his approval.
10. The learned Additional Advocate General also
submitted that the appointments of the petitioners were in clear
violation of the mandatory provisions of the Service Rules and
therefore, not sustainable.
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
11. The essential facts which are not in dispute and
relevant for the purpose of deciding the present application are
required to be stated. The records reveal that petitioner no.1 was
appointed on ad-hoc basis by respondent no.2 as Assistant
coordinator on 18.05.2023. This ad-hoc appointment was pursuant
to a note dated 15.05.2023 of the then Director of the respondent
no.2 seeking approval for her ad-hoc appointment by invoking Rule
11 of the Service Rules. Thereafter, within a short period of one
year and three months the petitioner no.1 was confirmed to the
post of Assistant Coordinator on 07.09.2024. On 01.12.2025 within
one year and two months, the petitioner no.1 was promoted as
Under Secretary of the respondent no.2. As per the Service Rules
the post of Assistant Coordinator as well as the post of Under
Secretary were posts reserved as promotional/deputation posts.
The Service Rules mandated that to be an Assistant Coordinator
the incumbent was required to be Head Assistant with at least five
years of regular service on the basis of merit-cum-seniority or by
deputation from employees of the High Court, Subordinate Court or
the Government of Sikkim. The records do not reveal that the
petitioner no.1 fulfilled the eligibility condition prescribed under the
Service Rules at the time of her ad-hoc appointment or
confirmation as Assistant Coordinator. The petitioner no.1 also did
not fulfil the eligibility condition prescribed for being promoted as
Under Secretary since admittedly she had not served as Office
Superintendent with at least five years of regular service. The
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
petitioner no.1’s appointment as Assistant Coordinator as well as
promotion as Under Secretary were, prima facie, in violation of
Rule 5(i) and Rule 5(iii) of the Service Rules.
12. The records reveal that the petitioner no.2 who was
earlier appointed as electrician on a contractual basis from
23.03.2022 was appointed on permanent basis on 20.06.2023 and
was confirmed on 26.06.2024. This was pursuant to a note dated
19.06.2023 of the then Director of the respondent no.2 drawing
attention to Rule 11 of the Service Rule and proposing either to
invoke it to appoint the petitioner no.2 or in the alternative to
initiate recruitment process. Apparently, Rule 11 of the Service
Rule was invoked to appoint the petitioner no.2 on 20.06.2023 as
an electrician. Prima facie, as per the Service Rules, the solitary
post of lineman and not electrician was to be recruited by way of
direct recruitment as envisaged by the Service Rules. The
appointment of petitioner no.2 prima facie was without following
the procedure prescribed under Rule 5(i) of the Service Rules.
13. The records reveal that the petitioner no.3 was
appointed on ad-hoc basis on 06.02.2025 as Office
Superintendent/Assistant Coordinator. Subsequently on
25.09.2025 the petitioner no.3 was appointed as Office
Superintendent/Assistant Coordinator. This appointment was also
prima facie without following the procedure prescribed under Rule
5 (i) of the Service Rules.
14. The records reveal that the petitioner no.4 was
appointed on ad-hoc basis as driver on 08.11.2023, appointed on
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
regular basis on 08.07.2024 and confirmed on 10.07.2025. The
petitioner no.4’s appointment as such was prima facie in violation
of procedure stipulated by Rule 5(i) of the Service Rules.
15. The counter affidavit filed by the respondent nos. 2 to
4 also discloses facts which reflect serious nepotism in the
appointments of the petitioners. However, since opportunity has
been given to the petitioners to file rejoinder to the counter
affidavits filed by the respondent nos. 2 to 4, I refrain from making
any further comments.
16. Evidently, the Service Rules was in force when the
petitioners’ appointments were made. Admittedly, these
appointments were made without following the Service Rules and
in violation thereof by applying the residuary powers of the Service
Rules. Prima facie, the mandatory method and mode of
appointment by direct recruitment has been given a complete go
by. This fact is also borne from the records placed before this Court
by the petitioners themselves. The records reveal that prior to the
issuance of the impugned termination orders as detailed above
show cause notices were issued to the petitioners giving them an
opportunity to respond. The records also reveal that the petitioners
have also filed their replies to the show cause notices.
17. At this stage prima facie case, irreparable injury and
balance of convenience are the essential considerations in deciding
whether or not to grant stay as sought for.
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I.A. No.02 of 2026
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W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
18. A glance of the Service Rules reflect that the
Appointing Authority in relation to the post to which the petitioners
were appointed was the Chairperson/Judge-in-Charge, of the
respondent no.2 as per Rule 2(iii)(a) of the Service Rules.
19. The Service Rules also explains what constitutes a
Departmental Promotion Committee in Rule 2(x) of the Service
Rules. Rule 2(xxi) explains what constitutes a Selection Committee.
20. Rule 4 deals with method of recruitment and provides
that all appointments shall be made by direct recruitment,
deputation or promotion except the post of Special Director.
21. Rule 5 provides for method of direct recruitment
through open competitive examination as prescribed by the
Selection Committee. It also provides for a detailed procedure of
notice, publication, preliminary scrutiny, eligibility conditions, age
limits, essential qualification and experience etc..
22. Rule 5(ii) deals with deputation and who may be
deputed to post specified in the schedules. Rule 5(iii) deals with
promotion and provides for a detailed procedure of how an eligible
person could be promoted and who were the eligible persons.
23. Rule 11 is a residuary power and reads as under:-
“11. Residuary Powers:- Nothing in these rules
shall be deemed to affect the powers of the Patron-in-
Chief, the Chief Justice to pass such orders from time
to time as he may deem fit, in regard to matters as
have not been provided for or not been sufficiently
provided for in these Rules. In all other matters
regarding the conditions of service for which no
provision or insufficient provision has been made in
these rules, the rules and orders for the time being in
force and applicable to the Government Servants
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
appointed to corresponding or comparable Civil
Services and posts in connection with the affairs of
the State of Sikkim shall apply mutatis mutandis to
the members of the establishment subject to such
modifications, variations and exceptions, if any, as
the Patron-in-Chief, the Chief Justice may from time
to time specify.
....................................................................... ”
24. The show cause notices issued to the petitioners
contained the same allegation which were mentioned in their
impugned termination orders.
25. As the learned counsel for the petitioners admits that
Rule 5 which relates to the method of recruitment had not been
complied with, the only question, which would determine grant of
stay in favour of the petitioners is whether these appointments
were prima facie “illegal” appointments or “irregular”
appointments. It is contended that since these appointments were
not “illegal” but “irregular” appointments non-grant of stay in their
favour would prejudice them greatly.
26. Rule 11 of the Service Rules is a residuary power of the
Patron-in-Chief, the Hon’ble Chief Justice to pass such orders from
time to time as he may deem fit, in regard to matters as have not
been provided for or not been sufficiently provided for in the
Service Rules. When the Service Rules clearly mandates how
appointments are required to be made, without any confusion, the
exercise of the residuary power is, prima facie, questionable.
27. It is a settled law that ordinarily, the Court is inclined
to maintain status quo as obtain in on the date of the
commencement of the proceedings. The Supreme Court opines,
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W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
however, there are a few cases, which call for the court’s leaning
not in favour of maintaining the status quo and still lesser in
percentage are the cases which an order tantamounting to a
mandamus is required to be issued even at an interim stage. There
are matters of significance and of moment posing themselves as
moment of truth. Such cases do cause dilemma and put the wits of
any Judge to test. Situations emerge where the granting of an
interim relief would tantamount to granting the final relief itself.
And then there may be converse cases where withholding of an
interim relief would tantamount to dismissal of the main petition
itself; for, by the time the main matter comes up for hearing there
would be nothing left to be allowed as relief to the petitioner
though all the findings may be in his favour. In such cases the
availability of a very strong prima facie case–of a standard much
higher than just prima facie case, the considerations of balance of
convenience and irreparable injury forcefully tilting the balance of
the case totally in favour of the applicant may persuade the court
to grant an interim relief though it amounts to granting the final
relief itself. Of course, such would be rare and exceptional cases.
The court would grant such an interim relief only if satisfied that
withholding of it would prick the conscience of the court and do
violence to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the Court
would not be able to vindicate the cause of justice. Obviously, such
would be rare cases accompanied by compelling circumstances,
where the injury complained of is immediate and pressing and
would cause extreme hardship. The conduct of parties shall also
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
have to be seen and the court may put the parties on such terms
as may be prudent. (See Deoraj vs. State of Maharashtra &
1
Ors. ) .
28. When appointments are made prima facie, against the
mandate of the Service Rules in violation of the Rule of method of
appointment, it cannot be said that it is only an “irregular”
appointment. Prima facie it would tantamount to “illegal”
appointment.
29. In Pawan Kumar Tiwary & Ors. vs. Jharkhand
2
State Electricity Board & Ors. relied upon by the learned
counsel for the petitioners, the Supreme Court has succinctly
explained the difference between “illegal appointment” and
“irregular appointment”. In paragraph 31 thereof it has been held:
“31 . The jurisprudence around irregular
versus illegal appointments must not be blurred.
An irregular appointment is one where procedure
is not strictly followed but the appointee is
otherwise qualified and the post is sanctioned. An
illegal appointment, on the other hand, is void ab
initio, such as where the appointee is ineligible or
the post does not exist. When appointments are
questioned on grounds of irregularity, the inquiry
must not end with detecting the infirmity but
must proceed further to distinguish those whose
appointments are unimpeachable. Justice
demands separation, not erasure. ”
30. The appointments of the petitioners viewed prima
facie, in the light of the clear distinction between “irregular” and
“illegal” appointments, were “illegal”. I am of the considered view
that the petitioners have failed to make out a prima facie case or
1
(2004) 4 SCC 697
2
2025 INSC 1000
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IN
W.P. (C) No. 28 of 2026
Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
display any irreparable injury and balance of convenience in their
favour. When the argument starts with an admission that the
appointments have been made in violation of the relevant and
mandatory Service Rules relating to the method of appointment,
which is the core value of service jurisprudence, granting stay in
favour of the petitioners would violate the constitutional scheme of
appointment to public service and result in wastage of public funds.
The writ courts are not permitted to perpetuate, prima facie, illegal
appointments on the ground that the impugned termination, if
given effect to, would cause the petitioners immense hardship. It is
noticed that these appointments, prima facie, were also in gross
violation of the directions issued by the Supreme Court to fill up
vacancies in strict compliance with the statutory rules made in
3
Renu vs. District and Sessions Judge . If at all, in the final call
of this Court the writ petition were to be allowed, it also has the
power to reverse the situation by reinstating the petitioners from
the date of their termination.
31. I am also unable to agree with the learned counsel for
the petitioners that the communication dated 30.03.2026 of the
High Court of Sikkim to respondent no.3 conveying that the
Hon’ble Chief Justice had been pleased to note that respondent
no.4 was authorised to initiate proceedings for terminating services
of the illegal appointees and take steps for illegal promotion,
reflects a pre-determined mind. A perusal of the communication,
prima facie, reflects his view that illegal appointees should not be
3
(2014) 14 SCC 50
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Smt. Rita Devi Niroula & Ors. vs. State of Sikkim & Ors.
continued in service. However, the records reveal that the
respondent no.4 had independently examined the case of each of
the petitioners and made its recommendation to Hon’ble the Chief
Justice as sought for. I am also equally unable to, prima facie, hold
that the note dated 27.02.2026 did not authorise the respondent
no.4 to examine administrative lapses of the past. The language
was clear. It mandated “(iii) they shall examine the current status
of the Sikkim Judicial Academy and bring to the notice of the
Hon’ble Chief Justice any administrative lapses, for the purpose of
fixing responsibility and taking appropriate action; ”
32. I do not desire to say anything further at this stage as
the writ petition is to be decided finally and this Court has granted
time to the petitioners to file their rejoinders on their asking. The
views expressed above are my prima facie views based on what
has been shown to me and argued by the learned counsel for the
parties. These views shall not affect the decision in the writ petition
if the petitioners are able to show that their fundamental rights,
constitutional rights, or statutory rights have been violated by the
respondents.
33. The application for stay is therefore, rejected and
stands disposed.
Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
to/