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Yogen Ghatani and Others vs. State of Sikkim and Others

2. The facts may be briefly traversed to comprehend the dispute with clarity. By the Constitution (Thirty-Sixth) Amendment Act, 1975, on 26.04.1975 (Appointed day), Sikkim became a State in the Indian Union. Article 371F was inserted in the Constitution of India (for short "Constitution") as a special provision for the State of Sikkim. Clause (l) of Article 371F inter alia provides that the President may extend any law to the State or repeal any law existing in the State, within two years from the appointed day. Prior to Sikkim joining the Indian Union, the Monarch (Chogyal) of the erstwhile Kingdom of Sikkim promulgated the Sikkim Subjects Regulation, 1961 (for brevity "Regulation of 1961") enumerating criteria for persons to become Sikkim Subjects inter alia by virtue of birth in Sikkim immediately preceding the Regulation and by ordinarily being a resident of Sikkim for not less than fifteen years prior to the Regulation of 1961. In addition to the above, under Regulation 8(iii)(a), a person could become a naturalized Subject if he was in the service of the Government of Sikkim for a period of not less than ten years immediately preceding the date of his application, and under Regulation 8(iii)(b) if he had rendered meritorious service to the State and Certificate thereof was granted to him. The Sikkim Government Establishment Rules, 1974 (hereinafter, "Establishment Rules, 1974") also came to be promulgated by the Chogyal to govern recruitment and conditions of service for persons appointed in Government service then. Under these Rules preference was given to Sikkim Subjects for recruitment in Government service. Only in the Yogen Ghatani and Others vs. State of Sikkim and Others absence of requisite qualified „Sikkimese‟ personnel appointments were offered to non-Sikkimese. Post merger the Establishment Rules, 1974 came to be adopted by the State of Sikkim under Article 309 of the Constitution. The validity of those Rules were upheld by the Hon‟ble Supreme Court in the ratiocination of State of Sikkim vs. Surendra Prasad Sharma and Others1.

9. Adverting to the constitution of the Committee in 1989 by the Government of India, it was contended that a bare perusal of the Guidelines to the Committee clearly indicates that a person holding a regular Government job before 26.04.1975 and his natural descendants were found to be eligible to have their names included in the Register maintained under the Regulation of 1961, thereby making such person‟s eligibility at par with persons under Items (a), (b), (c) and (e) of the Guidelines. By the same logic it would imply that the Petitioners were also eligible for inclusion as Sikkim Subjects. That, interpreting the provisions of the Notification of 1995 to mean that the children of those who have obtained COIs on the basis of the employment of their father in Government service prior to 31.12.1969 would not be entitled to obtain COI would lead to absurdity and such interpretation would be unacceptable. That, even Regulation 6 of the Regulation of 1961 provides that children of a Sikkim Subject father would also be a Sikkim Subject. That, the insertion of Item No.4A is an effort to overcome the grammatical difficulties created by Notification of 1995 for children of those persons belonging to Items No.1 to 4 but excludes children of persons belonging to Item No.5 without any reasoning. Infact, agricultural land was not even a criteria for issuance of Sikkim Subject Certificate but was subsequently inserted by way of Memorandum of 1981. Contending that the Yogen Ghatani and Others vs. State of Sikkim and Others interpretation made by the Notifications of 1995, 1996 and 2010 (supra), leads to absurdity, he relied on H.S. Vankani and Others vs. State of Gujarat and Others2, Afcons Infrastructure Limited and Another vs. Cherian Varkey Construction Company Private Limited and Others3 and Sarah Mathew vs. Institute of Cardio Vascular Disease and Others4. It was next urged that the Government cannot make policy decisions which are illegal. Towards this submission, reliance was placed on State of Madhya Pradesh and Others vs. Mala Banerjee5 and Delhi Development Authority and Another vs. Joint Action Committee, Allottee of SFS Flats and Others 6. That, the ratio in R.K. Garg vs. Union of India and Others7 lays down that classification cannot be arbitrary. Further, in D.S. Nakara and Others vs. Union of India8 the Courts have been vested with powers to widen the scope of the petitions by reading down the provisions. That, the interpretation of Notification of 1995 is untenable as fetters were created by such interpretation only for the third generation of persons belonging to Item No.5 of the Notification and not for the third or subsequent generation of persons belonging to Items No.1 to 4 of the said Notification. No explanation emerges as to why the third generation of persons belonging to Item No.5 alone have been denied COIs and not others. That, policy decisions cannot be arbitrary and there is no justification as to why the son or daughter of a father who is a (2010) 4 SCC 301 (2010) 8 SCC 24 (2014) 2 SCC 62 (2015) 7 SCC 698 (2008) 2 SCC 372 (1981) 4 SCC 675 (1983) 1 SCC 305 Yogen Ghatani and Others vs. State of Sikkim and Others COI holder could not be considered for grant of COI whether he is of a third generation or fourth generation. That, in view of the averments in the Writ Petition and the foregoing arguments the prayers be granted.

10. Learned Advocate General repudiating the stand of Learned Counsel for the Petitioners contended that Article 14 of the Constitution is not applicable in the instant case. That, only those persons whose parents‟ names had been recorded in the Sikkim Subject Register on or before 15.05.1975 qualified as „Sikkimese‟ or „locals‟. That, as per the Regulation of 1961 persons were naturalized as subjects on giving up of their Indian Citizenship and taking an oath of allegiance to the King. The forefathers of the Petitioners did not give up their Indian Citizenship neither did they claim allegiance to the then Kingdom and its Monarch and continued to be Indian Citizens, thus becoming ineligible for subjecthood. That, the letter dated 02.06.2006 by the Additional Secretary/Home to the District Collector, East District, Gangtok (Annexure-P14) unequivocally states the position that the grandchildren of persons who were issued with the COI being in regular Government service prior to 31.12.1969 were not entitled to obtain COI. Relying on the decision in State of Haryana and Others vs. Mahabir Vegetable Oils Private Limited9 it was contended that there is no law which can force the hand of the Government to extend benefits to the Petitioners. That, the Notification of 26.10.2010 extends the (2011) 3 SCC 778 Yogen Ghatani and Others vs. State of Sikkim and Others issuance of COI to the father but does not perpetuate it. The Learned Advocate General urged that Rule 4(4) of the Establishment Rules, 1974 is protected under Clause (k) of Article 371F of the Constitution whereby employment is reserved only for the „Sikkimese‟ or the locals. To safeguard the spirit of this provision, the Notifications have been issued by the Government of Sikkim from time to time and in 1981 the Government categorized various groups so as to enable them to take up employment in the State. By way of concession and as a one time measure this was offered also to persons whose father/husband had been in the service of the State on or before 31.12.1969. The Memorandum of 1981 also clearly stipulated that it was only for the purpose of employment. Thus, this concession was extended only to the wife or children of those persons who had been in Government service on or before 31.12.1969 and not to their children or other future generations. Later, by issuance of the Notification of 1995, the Government decided to issue Certificate of Identification. Vide the Notification, a concession was extended or continued to those persons whose father/husband had been in Sikkim Government service on or before 31.12.1969 on account of the State having newly merged into the Indian Union. A clarification ensued therein that COI would be only for the purpose of employment, thus manifesting the interpretation of the State Government to give the concession or benefit of COI to such category of persons despite them being non-locals. It was next contended that the grant of such concession does not however entitle them to claim Yogen Ghatani and Others vs. State of Sikkim and Others the status of being a Sikkim Subject or a „Sikkimese‟ which is a distinct class as law grants certain rights and privileges to the Sikkim Subjects. Consequently, the District Collectors vide Notification of 2006 have been authorized to issue COI only to the direct descendants of such persons, this distinction is reinforced by the amendment in the Finance Act, 2006 recognising „Sikkimese‟ as a distinct class. Drawing the attention of this Court to the ratio in Surendra Prasad Sharma (supra), it was contended that the Hon‟ble Supreme Court has upheld the constitutional validity of the Establishment Rules, 1974. That, the High Level Committee constituted on 03.03.2014 concluded that the benefits to category in Item No.5 of Notification of 1995 as amended in 1996, was admissible only to the son/daughter and the wife of a person who was in the Sikkim Government service on or before 31.12.1969 and permanently lived in Sikkim after retirement and that too for the purpose of employment only and for no other purpose. That, the grandchildren of such persons are not entitled to COIs (Annexure R-5) and the Chairman, Law Commission of Sikkim Hon‟ble Justice Bhaskar Bhattacharjee was also of the same view. That, the Memorandum of 1981 was not issued in terms of Regulation 8(iii) of the Regulation of 1961 neither was the Memorandum of 1981 for any other purpose besides employment contrary to the stand of the Petitioners. That, even under Clause 8 of the Regulation of 1961 persons who had been granted „Sikkimese‟ citizenship were required to enter their names in the Sikkim Subject Register hence in the absence of such entry the claims Yogen Ghatani and Others vs. State of Sikkim and Others of the Petitioners are misconceived. That, considering the historical background of Sikkim, the third generation of persons falling under category in Item No.4 of the Memorandum of 1981 and category in Item No.5 of the Notification of 1995 are not entitled to be treated in the same distinct class as Sikkim Subjects in terms of Article 371F of the Constitution and only one generation following was to be granted COI. Such non- entitlement is neither discriminatory nor arbitrary. It was clarified that before the appointed day there were many persons including citizens of India residing in the State for the purposes of employment or business. Such persons did not opt for „Sikkimese‟ citizenship and continued to remain Indian citizens, hence after the merger it is only Sikkim Subjects or „Sikkimese‟ nationals who were granted Indian citizenship. The other category of persons who are Indian Citizens were not required to be granted Indian citizenship afresh as they were already citizens of India even prior to the appointed day. That, at this belated stage the Petitioners cannot take the plea that under the Regulation of 1961 they are also entitled to „Sikkimese‟ Citizenship. The Petitioners are thus not entitled to any of the reliefs sought for in the Writ Petition, which deserves a dismissal.

(b) He has rendered meritorious service to the state; and the person to whom such a certificate is granted shall, on taking oath of allegiance, and upon his name being entered in the Register of Subjects, be a naturalized Sikkim subject from the date on which the certificate was granted; ....................."

14. A bare perusal of these provisions reveal that once the contingencies in Regulation 8 were fulfilled persons applying for Sikkim Subjecthood would be granted the same. The Regulations do not envisage any differential benefit or treatment Yogen Ghatani and Others vs. State of Sikkim and Others to any category once they are Sikkim Subjects, whether by birth, descent or naturalisation. The Sikkim Subjects Regulation, 1961 stood repealed by the Adaptation Laws, 1975, which defines "Existing Law" as any law in force immediately before the Appointed day in the whole or any part of the territories comprised in the State of Sikkim. "Law includes any enactment, Proclamation, Regulation, Rule, Notification or other instrument having, immediately before the Appointed day, the force of Law in the whole or any part of the territories now comprised in the State of Sikkim." Hence, the Establishment Rules, 1974, being covered by the ambit of the above definitions is a protected law in terms of Article 371F(k) of the Constitution.