Sikkim High Court
Dilli Ram Dahal And Anr vs State Of Sikkim And Ors on 28 July, 2021
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(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. 1 of 2020
in
W.P. (C) No. 35 of 2019
1. Dr. Dilli Ram Dahal
Presently working as HoD & Assistant Professor,
Eastern Himalayan Studies (EHS) (Adhoc)
at Government College,
Rhenock,
Rungdung - 737133.
2. Mr. Sangam Rai
Presently working as Assistant Professor,
Department of Tourism (adhoc)
At Sikkim Government College,
Gyalshing,
West Sikkim - 737111. ..... Petitioners
Versus
1. State of Sikkim,
Represented by and through
the Secretary,
Human Resource & Development Department,
Government of Sikkim,
Gangtok, East Sikkim.
2. The Secretary,
Sikkim Public Service Commission,
Government of Sikkim,
Gangtok, East Sikkim.
3. The Secretary,
Department of Personnel,
Administrative Reforms & Training,
Government of Sikkim,
Gangtok, Sikkim.
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I.A No. 1 of 2020 in WP(C) No. 35 of 2019
Dilli Ram Dahal and Another vs. State of Sikkim and Others
4. Selection Committee,
Through its Chairman,
for selection of Assistant Professors
vide Advertisement dated 13/10/2017,
C/o Secretary,
Sikkim Public Service Commission,
Government of Sikkim,
Gangtok, East Sikkim.
5. Sikkim University,
(A Central University established by an
Act of Parliament of India, 2007)
Represented by and through its Registrar,
6th Mile,
Samdur, P.O. Tadong- 737102,
Gangtok, Sikkim, India.
6. University Grants Commission (UGC)
Bahadur Shah Zafar Marg,
New Delhi - 110002
Represented by and through its Chairman.
7. Mr. Karma Loday Tamang,
Assistant Professor,
Department of Geography,
Government College Geyzing,
West Sikkim - 737111.
8. Mr. Gagan Gautam,
Assistant Professor,
Department of Geography,
Government College Rhenock - Rungdung,
East Sikkim - 737133.
9. Ms Pandhi Ongmu Bhutia,
Assistant Professor,
Department of Tourism,
Nar Bahadur Bhandari Degree College,
Tadong,
East Sikkim - 737102. ..... Respondents
Application under Order I Rule 10(2) of the
Code of Civil Procedure, 1908.
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Appearance:
Mr. A. Moulik, Senior Advocate with Ms K.D. Bhutia, Advocate
for the Petitioners.
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I.A No. 1 of 2020 in WP(C) No. 35 of 2019
Dilli Ram Dahal and Another vs. State of Sikkim and Others
Dr. Doma T. Bhutia, Additional Advocate General for the State
respondents no. 1 and 3.
Mr. Bhusan Nepal, Advocate for the respondents no. 2 and 4.
Mr. Saurabh Tamang, Advocate for the respondent no. 5.
Mr. Thinlay Dorjee Bhutia, Advocate for the respondent no. 6.
Mr. J.B. Pradhan, Senior Advocate with Ms Sabina Chettri,
Advocate for the respondents no. 7, 8 and 9.
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Date of hearing : 23.07.2021
Date of order : 28.07.2021
ORDER
Bhaskar Raj Pradhan, J.
1. The petitioners have filed the present writ petition against nine respondents. Respondent no. 1 and 3 are the State of Sikkim and the Department of Personnel, Administrative Reforms and Training; Respondent no. 2 is the Sikkim Public Service Commission (SPSC); respondents no. 5 and 6 are the Sikkim University and University Grants Commission, respectively; respondents no.7, 8 and 9 are Assistant Professors in various Government Colleges (respondents 7 and 8 belong to the Department of Geography and respondent no.9, the department of Tourism); respondent no. 4 is the Selection Committee through its Chairman. The grievance in the writ petition is the non-selection of the petitioners and the selection of respondent nos. 7, 8 and 9.
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I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others
2. It is the case of the petitioners that the Selection Committee was illegally constituted and that it has not applied its mind. It is further alleged that the Selection Committee have selected candidates who are not qualified and failed to consider the petitioners who have the required qualifications. It is alleged that the Selection Committee have acted against the University Grants Commission's Acts and Regulations; have not verified and examined the genuineness and authenticity of the articles published of the successful candidates and have violated the provisions of the manual of the Sikkim Public Service Commission. Besides the aforesaid grounds of challenge against the Selection Committee, the petitioners have also alleged in their pleadings that the Selection Committee have committed various other illegalities in the selection process. In paragraph 18(v), the petitioners have alleged "That the selected candidates namely, Pranesh Pandey (Economics), Santosh Sharma (Economics) were scholars under same subject expert Prof. Manish Choubey (Dept. of Economics, Sikkim University) who was present during Classroom Demonstration. Ph.D. Registration numbers of the above named successful candidates working under Prof. Manish Chowbey as Ph.D Scholars are 14/PhD/ECON/01 and 14/PhD/ECON/02 respectively. They had been working under the same subject expert since 2014 as PhD scholars who had conducted the classroom demonstration, which is highly unjustified, unfair and objectionable." Besides the aforesaid, it is also alleged that the 5 I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others selected candidates, i.e., respondent no.7, 8 and 9 had not satisfied various requirements and despite that they were selected by the Selection Committee in violation of the applicable rules. It is alleged that the Selection Committee was not constituted in the manner required and it also did not have the nominee of the Vice-Chancellor of the Sikkim University as required. It is alleged that the Selection Committee have not given due weightage to the extra additional qualifications secured by the petitioners and that the selection procedure was not transparent, objective and credible.
3. The SPSC has filed a counter-affidavit. However, the Selection Committee has not and instead, filed this application, being I.A. No. 1 of 2020, under Order I Rule 10(2) of the Code of Civil Procedure, 1908 for deletion of the Selection Committee as respondent no.4 from the array of parties. In the application, the Selection Committee have quoted the prayers in the writ petition and submitted that the task of the Selection Committee was only to conduct recruitment/selection test and submit the statement of marks to the SPSC. It is submitted that on completion of the process the Selection Committee becomes functus officio. It is thus urged that the Selection Committee is neither a necessary party nor a proper party. In the reply filed by the petitioners, it is urged that the task of the Selection Committee was not only to conduct the recruitment test and submit the statement of marks, 6 I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others but they were to verify and authenticate the relevant documents submitted by the candidates which was not done.
4. Mr. Bhusan Nepal, learned Counsel for the respondent no.2, submitted that all the prayers are directed against the other respondents and none against the Selection Committee. He further submitted that since the process of recruitment is over the Selection Committee has become functus officio and therefore, there is no need for the Selection Committee to be arrayed as respondent no.4. He referred to the counter- affidavit filed by the SPSC and drew the attention of this court to Notification dated 14.09.2017 (Annexure R-7). The said notification issued by the SPSC dated 14.09.2017 (Annexure R-7) (the notification) is extracted hereinbelow:-
" ...................................................................................
No. 38/SPSC/Exam/2017 Dated 14/09/2017
NOTIFICATION
The Sikkim Public Service Commission in terms of Rule 51(7) of the rules of Procedure and Conduct of Business of the Sikkim PSC hereby constitute a Selection Committee consisting of the following members for the purpose of recruitment of candidates to the post of Principal/Lecturers in the Government Colleges of Sikkim under Human resource Development Department:
1. Chairman, SPSC
2. Members, SPSC
3. The Secretary, DoPAR&T
4. The Secretary HRDD
5. One Member to be nominated by the Vice Chancellor, Sikkim University
6. One member to be nominated by the Commission
7. Subject Experts to be co-opted by the Commission whenever necessary.7
I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others By order Sd/-
(Deepa Rani Thapa) SCS SECRETARY Sikkim Public Service Commission ................................................................................"
5. While supporting Mr. Bhusan Nepal's application, Mr. J.B. Pradhan, learned Senior Advocate representing respondents no. 7, 8 and 9, also submitted that the SPSC would be able to effectively answer all the allegations made in the writ petition vis- à-vis the Selection Committee and as none of the reliefs were sought against the Selection Committee, the Selection Committee was neither a necessary party nor a proper party.
6. Mr A. Moulik, learned Senior Counsel for the petitioners, however, vehemently contended that the Selection Committee was a necessary and a proper party in view of the specific allegations being against them in paragraphs 17, 18, 19, 20, 23, 24, 25, 28, 30, 31, 32, 34, 36, 42, 43, 46, 47, 48, as well as various grounds in the writ petition.
7. Dr. Doma T. Bhutia, learned Additional Advocate General representing respondents no. 1 and 3, supported the legal contention made by Mr. A. Moulik and submitted that in the given facts the Selection Committee would be a proper party. 8
I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others
8. The notification has been issued in terms of Rule 51(7) of the Rules of Procedure and Conduct of Business of Sikkim Public Service Commission. Rule 51(7) is quoted hereinbelow:-
"51. Recruitment by interview:-
.......................................................................
(7) The Selection Board or the Interview Board constituted by the Government by Notification, and in the absence of such Notification the Selection Board or Interview Board constituted by the Commission, shall interview the candidates. The Commission may invite subject expert or any other person with expert knowledge in the subject concerned to be on its Selection Board or Interview Board.
..............................................................................."
9. A perusal of Rule 51(7) makes it evident that the Selection Board or the Interview Board was to be constituted by the Government by notification and in the absence of such notification, the Selection Board or the Interview Board could be constituted by the SPCS to interview the candidates. The notification reflects that it was the SPSC who had constituted the Selection Committee and not the Government. Besides the Chairman and the Members of the SPSC, the Secretary DOPART, the Secretary HRDD, one Member nominated by the Vice Chancellor of the Sikkim University, one member nominated by the SPSC and subject experts co-opted by the SPSC whenever necessary were made the members of the Selection Committee for the purpose of recruitment of candidates to the posts of principle/lecturers in the Government Colleges of Sikkim. The records reveal that the advertisement for the selection under 9 I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others challenge is dated 13.10.2017 after the issuance of the notification.
10. The general rule regarding impleadment of parties is that the plaintiff in a suit is the dominus litus. Dominus litus means that the plaintiff is the master of or having dominion over the case. In Mumbai International Airport (P. Ltd.) vs. Regency Convention Centre and Hotels P. Ltd. (2010) 7 SCC 417, the Supreme Court held:-
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. .................."
11. The Supreme Court also held that Rule 10(2) CPC is about the judicial discretion of the court to strike out or add parties at any stage of the proceeding by exercising the judicial discretion according to reason and fair play and not according to whims and caprices.
12. There are allegations against the Selection Committee strewn across the writ petition although no relief is sought against it. One specific allegation is made against a member of the Selection Committee who is not part of the SPSC but is there 10 I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others by virtue of issuance of the notification. Thus, SPSC would not have the necessary personal knowledge to answer the allegation. It seems that the Selection Committee was constituted for the purposes of recruitment of candidates to the posts of Principal and Lecturers in Government Colleges generally and not specific to the selection process in question only. It is also not alien to implead a Selection Committee in a litigation. It may be correct that the function of the Selection Committee comes to an end when the process of selection is completed, and the proceedings drawn. The consequence is that the Selection Committee may not be able to alter what they have already done. However, it is completely out of place to argue that therefore Selection Committee is neither a necessary party nor a proper party because the selection process is over. Besides, if the SPCS which created the Selection Committee is answerable so is the Selection Committee. In the given facts judicial discretion may be better exercised in favour of permitting the Selection Committee to reply to the allegations made by the petitioner as the dominus litus then to delete it from the array of parties and deny it the opportunity to do so.
13. This court is thus of the view that even if the Selection Committee may not be a necessary party, it is a proper party whose presence would enable the court to completely, 11 I.A No. 1 of 2020 in WP(C) No. 35 of 2019 Dilli Ram Dahal and Another vs. State of Sikkim and Others effectively and adequately adjudicate upon all matters in dispute in the present writ petition.
14. I.A. No. 1 of 2020 is accordingly rejected.
15. No order as to costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes/No
Internet : Yes/No
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