Mr. KISHORE THAPA vs STATE OF SIKKIM AND ANR.
- Court
- High Court of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra-Ordinary Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE A. MUHAMED MUSTAQUE, CHIEF JUSTICE
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W.P. (C) No. 11 of 2023
Mr. Kishore Thapa,
Son of Late P.B. Thapa,
Resident of Majhitar,
Rangpo, East Sikkim,
Presently working as BDO,
Rakdong-Tinkek, East Sikkim-737107. ... Petitioner
Versus
1. STATE OF SIKKIM,
Represented through the Secretary,
Health Care, Human Services & Family Welfare
Department, Government of Sikkim, Gangtok,
East Sikkim-737101.
2. DEPARTMENT OF PERSONNEL,
Administrative Reforms and Training,
Represented through the Secretary,
Government of Sikkim,
Gangtok, East Sikkim-737101. ... Respondents
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Appearance:
Dr. (Mrs.) Doma T. Bhutia, Senior Advocate with Ms. K.D. Bhutia,
Advocate, for the Petitioner.
Mr. Zangpo Sherpa, Additional Advocate General with Mr. S.K.
Chettri, Government Advocate, Mr. Mohan Sharma and Mr.
Bhaichung Bhutia, Advocates and Ms. Neera Thapa, Law Officer, for
the Respondents.
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Date of Hearing : 25.05.2026
Date of Judgment : 28.05.2026
Date on which uploaded : 28.05.2026
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WP(C)/11/2023
(Mr. Kishore Thapa Vs. State of Sikkim & Anr.)
J U D G M E N T
(A. Muhamed Mustaque, C.J.)
The issue involved in the present matter lies in a narrow
compass. The Petitioner seeks reckoning of his appointment as
Health Educator with effect from 10.10.2001 in terms of the
corrigendum dated 24.02.2009, issued by the Health & Family
Welfare Department, Government of Sikkim, whereby it was
specifically ordered that the Petitioner be treated as Health Educator
with effect from 10.10.2001 instead of 30.09.2005.
2. It is not in dispute that the Petitioner had successfully
completed the requisite diploma course in Health Education and was
fully qualified for appointment/promotion to the post of Health
Educator in the year 2001 itself. The Government, upon
consideration of the matter, also found that the Petitioner ought to
have been promoted along with others in the year 2001.
3. Though monetary benefits were subsequently extended to the
Petitioner pursuant to the corrigendum, the consequential benefit of
notional seniority and promotion from 10.10.2001 was not granted.
4. The complication appears to have arisen on account of the
Government order issued in the year 2005 appointing the Petitioner
as Health Educator as a direct recruit, despite the fact that he was
already serving as a regular employee under the Department. Prima
facie , such appointment as a direct recruit while in regular service is
contrary to settled principles of service jurisprudence. True, the
Petitioner did not challenge the said order at the relevant point of
time; nevertheless, the same cannot operate to his prejudice in
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WP(C)/11/2023
(Mr. Kishore Thapa Vs. State of Sikkim & Anr.)
perpetuity, particularly when no third-party or competing rights are
shown to be adversely affected. The government perhaps issued
such order in the light of amended rules, but it is to be noted that
the government has necessary powers to the relevant rules to relax
the rigour of the rule also.
5. The delay or laches on the part of the Petitioner would assume
significance only where retrospective fixation of seniority is likely to
disturb vested rights or affect competing interests. In the present
case, no such prejudice to any other employee has been
demonstrated.
6. Significantly, the Government has also never withdrawn or
recalled the corrigendum dated 24.02.2009. The said corrigendum,
therefore, continues to hold the field, and must be given its full
effect.
7. In such circumstances, this Court is of the considered view
that the Petitioner is entitled to have his appointment as Health
Educator reckoned with effect from 10.10.2001 and to all
consequential service benefits flowing therefrom, including refixation
of seniority.
8. Consequently, the Respondents shall refix the Petitioner’s
seniority by treating him as Health Educator with effect from
10.10.2001 and shall thereafter consider and grant all consequential
notional promotions on the dates on which he became eligible,
including promotion to the post of Deputy Director.
9. The Petitioner shall, however, not be entitled to any arrears of
salary or monetary benefits for the period during which he had not
actually discharged duties in the promotional posts. The benefits
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WP(C)/11/2023
(Mr. Kishore Thapa Vs. State of Sikkim & Anr.)
shall remain purely notional, except to the extent necessary for the
pensionary and retiral benefits.
10. Upon such refixation, the case of the Petitioner for promotion
to the post of Joint Director shall also be considered expeditiously, in
accordance with law and subject to his otherwise fulfilling the
requisite eligibility criteria.
11. The aforesaid exercise shall be completed within a period of
two months from the date of receipt of a copy of this order.
12. Ordered accordingly.
13. The writ petition, being, WP (C) No.11 of 2023 , stands
disposed of.
Chief Justice
Approved for Reporting: Yes/No
ami
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