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4. R4 in his Counter-Affidavit by and large reiterated the averments put forth in the Counter-Affidavit of the R1 and R2 and added that the Select List of candidates is not the Merit List as erroneously interpreted by the Petitioner, hence the Petition be dismissed with costs.

Tseten Palzor Bhutia vs. State of Sikkim and Others 6

5. Rejoinder was filed by the Petitioner disputing the averments made in the Returns of the Respondents. 6(i). Opening his arguments for the Petitioner Learned Counsel contended that the Petitioner was primarily aggrieved by two issues viz. the appointment of R4 on 25-06-2016, despite completion of the selection process, in the post of DySP sans a Panel or Waiting List of selected candidates and secondly by the inter se Seniority List dated 02-08-2016, in which R4 was placed at Serial no.69 higher in seniority than the Petitioner who was at Serial no.70. Leading this Court through the documents and the correspondence relied on by the Petitioner, it was argued that in the Provisional Seniority List of DySP in the Sikkim State Police Service (hereinafter "SSPS"), when the name of the Petitioner appeared at Serial no.38, R4 was not even appointed then. Vide a communication of R1 dated 19-03-2016 to all Sikkim Police Service Officers', a provisional Seniority List was circulated and the Officers' were to submit their comments, within fifteen days, of the issuance of the letter, failing which, it would be presumed that they had consented and seniority would be fixed accordingly. As the Provisional List and the seniority therein was not set aside, it is assumed to have been confirmed after fifteen days.

8(i). Learned Senior Counsel for R4 advanced the arguments that the contentions put forth for the Petitioner are fallacious both factually and legally. He asserted that the 2017 SCC Online Del 12028 Tseten Palzor Bhutia vs. State of Sikkim and Others 10 appointment of R4 was neither against a Panel List or a future vacancy but was on that particular advertised vacancy for recruitment. That, the contention of the Petitioner that the selection process was completed on publication of the Select List, is an incorrect proposition as the selection process concludes only on verification and the consequent filling up of all vacancies. To buttress this submission reliance was placed on Public Service Commission, Uttaranchal vs. Mamta Bisht and Others 11. It was next urged that as per the relevant Rules relied on by R1 seniority is based on merit and not the Select List of candidates or the date of joining of service by the appointed candidate, neither is seniority based on the Provisional List as incorrectly contended by the Petitioner. That, the appointment of R4 arose on account of the cancellation of the candidature of Candidate No.1 and steps taken by R1 on the recommendation of R2, in view of the above circumstance of cancellation. That, it is unfortunate that R4 despite being appointed in an unreserved category, on merit, has to defend his appointment after four years, due to the untenable claims of the Petitioner, that too when he has already availed of promotion to a higher post. That, seniority ought not to be disturbed after a long lapse of time. On this count reliance was placed on K. R. Mudgal and Others (supra). That, the Seniority List was issued on 02-08-2016, on which date the cause of action arose and does not get extended by way of belated filing of the Writ Petition on 06-03- 2020. In any event, although, the Writ Petition of R4 was filed on 01-12-2015, the Petitioner did not assail the appointment of R4 as illegal, his grievance being limited to an alleged erroneous ranking (2010) 12 SCC 207 Tseten Palzor Bhutia vs. State of Sikkim and Others 11 in seniority of the R4. The Petitioner filed his first grievance against R4 regarding seniority, before R1 on 24-10-2017, sixteen months after the appointment of R4. The Government rejected his representation on 07-04-2018. Thereafter, the Petitioner filed the instant Writ Petition only on 06-03-2020, much after R4 was promoted to the subsequent senior post of ASP on 03-09-2019. That, although, the legal Notice dated 11-02-2019 and 11-07-2019 of the Petitioner states that numerous representations were made by the Petitioner, records reveal that only one representation was filed by him and came to be rejected.

(2010) 12 SCC 471 AIR 1995 SC 1088 Tseten Palzor Bhutia vs. State of Sikkim and Others 14

3. Whether the Writ Petition is rendered nugatory on account of delay, laches and acquiescence?

12(i). While taking up the first question hereinabove for consideration, for brevity the facts herein or details of the Writ Petition filed by R4 WP(C) No.66/2015 seeking appointment to the posts of US and DySP are not being reiterated. It may relevantly be clarified here as pointed out by Learned Senior Counsel for R4 and the Additional Advocate General for R1 and R3 that, the post in which Candidate No.1 was selected was never utilised, in as much as she was never appointed to the post on account of cancellation of her candidature, following Police investigation and verification of her documents. In other words she was disqualified before appointment. Hence, in contrast to the two posts of US that fell vacant on the two selected candidates declining to join the post, no candidate was actually appointed in the post of DySP. The selection process could not be stated to be completed until all requisite verification in terms of the condition in the Select List of 09-06- 2015 was carried out. On this aspect I am inclined to agree with Learned Senior Counsel for R4. As the posts of US fell vacant after the appointment of the candidates, the posts were to be carried over to the next recruitment process. Reliance on Madan Lal (supra) by Learned Counsel for the Petitioner is misplaced. It was observed therein inter alia that once the requisite vacancies are filled by candidates taken in order of merit from the Select List, that list gets exhausted having served its purpose. The case at hand can be distinguished from the said ratio for the reason that Candidate No.1 was not even eligible to take the examination, in other words Tseten Palzor Bhutia vs. State of Sikkim and Others 15 as already stated her candidature was disqualified and R4 was appointed as he appeared next below her on merit.