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PETITIONER: STATE OF SIKKIM

       Vs.

RESPONDENT: DORJEE TSHERING BHUTIA AND ORS.

DATE OF JUDGMENT20/08/1991

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMY, K.

CITATION:  1991 AIR 1933            1991 SCR  (3) 633  1991 SCC  (4) 243        JT 1991 (3)   456  1991 SCALE  (2)378

ACT:     Constitution  of  India,  1950.  Article  162--Executive power of the State--Exercise of--In the field already  occu- pied        by       legislation-Statutory        provisions non-operative--Whether executive power could be exercised.     Civil Services: Sikkim State Civil Service Rules, 1977.     Rules 4 and 5--Special recruitment for inducting already serving  officers--Issue  of  notification--Constitution  of Selection  Committee-Public Service Commission  coming  into being later--Requisite conditions-Existence of exigencies of service--Consultation  with Public Service  Commission--Ful- filment of--Validity of the Notification.

HEADNOTE:     The Sikkim State Civil Service was constituted in  1977, under the Sikkim State Civil Service Rules, 1977. The  Rules provided  for two methods of recruitment  viz.,  competitive examination  and selection from amongst persons  serving  in connection  with the affairs of the State. On the  basis  of representations from officers who were not being  considered for induction into the service at. its initial constitution, the  Petitioner-State  decided to afford an  opportunity  to them. On 16.9.81 the State Government issued a  notification for special recruitment and constituted a Selection  Commit- tee.  Written examination-cum-viva-voce test was adopted  as the  method  of  recruitment, and  the  Selection  Committee prepared  a  merit list, on the basis of which  29  officers were appointed to the service in December, 1982.     The Respondent who was working as Under Secertary to the State Government compete in the test but was not successful. He filed a Writ Petition before the High Court,  challenging the  notification dated 16.9.1981 and the consequent  selec- tion.  The main contention raised by him was that the  exer- cise of power under Rule 4(3) on the basis of which the said notification was issued, was illegal on the ground of exces- sive delegation, since the requisite conditions of existence of  exigencies of service and consultation with  the  Public Service Commission were not satisfied. The  Petitioner-State contended that the Rules though 633 634

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enforced,  were inoperative since Public Service  Commission was not in existence in the State, and the Government  could issue  the notification in exercise of its  executive  power under  Article  162 of the Constitution of India;  that  the conditions  precedent for holding the selection  under  Rule 4(3)  were satisfied as the necessary opinion to  issue  the notification  was  formed on the basis of the  reasons  con- tained  in the Cabinet Memorandum dated 10.8.1981; that  the consultation  with the Public Service Commission  under  the Rules  was directory and in any case the Service  Commission was  not  in  existence at the relevant time  and  that  the Respondent  having appeared in the written  examination  and viva voce test was estopped from challenging the selection.     Rejecting  the contentions of the State, the High  Court held  that the notification was violative of the  Rules  and quashed the selection and the consequent appointments.     Aggrieved  by the High Court’s decision, the State  Gov- ernment  and  the selected officers  preferred  the  present appeals  by  special  leave. The same  contentions  as  were raised in the High Court were urged before this Court. Allowing the appeals, this Court,     HELD:  1. The State Government was justified in  issuing the notification in exercise of its executive power and  the High Court fell into error in quashing the same. [642F]     2. The executive power of the State cannot be  exercised in  the field which is already occupied by the laws made  by the legislature. It is settled law that any order,  instruc- tion,  direction or notification issued in exercise  of  the executive power of the State which is contrary to any statu- tory  provisions, is without jurisdiction and is a  nullity. In  the instant case, the Sikkim State Civil Service  Rules, 1977  though  enforced, remained unworkable for  about  five years. The Public Service Commission, which was the authori- ty to implement the said Rules, was not in existence  during the  said period. There is nothing on record to show  as  to why the Public Service Commission was not constituted during all those five years. In the absence of any material to  the contrary  it is assumed that there were justifiable  reasons for the delay in constituting the Commission. The  executive power  of the State being divided amongst various  function- aries  under  Article 166(3) of the  Constitution  of  India there  is possibility of lack of co-ordination amongst  var- ious limbs of the Government working within their respective spheres of allocation. The 635 object  of  regulating  the recruitment  and  conditions  of service  by statutory provisions is to rule  out  arbitrari- ness,  provide  consistency  and crystalise  the  rights  of employees  concerned.  The statutory  provisions  which  are unworkable  and inoperative cannot achive these  objectives. Such provisions are non-est till made operational. It is the operative  statutory  provisions which have  the  affect  of ousting  executive power of the State from the  same  field. When in a peculiar situation, the statutory provisions could not  be operated, there was no bar for the State  Government to act in exercise of its executive power. The  notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done to remove  stagna- tion and to afford an opportunity to the eligible persons to enter the service. [642A-E]     3.  The fact that the State Government purported to  act under rule 4(3) of the Rules in issuing the notification  is of  no consequence. When the source of power can be  validly traced  then the State action in the exercise of such  power cannot  be  struck down on the ground that it  was  labelled

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under a different provision. [642G]     4.  After the constitution of the Sikkim Public  Service Commission,  the  Chairman  of the Commission  was  made  to preside  over  the Selection Committee which took  the  viva voce test. Thereafter the merit list was sent to the  Public Service  Commission  and the appointment was made  with  the approval  of the Commission. The selection was thus  finally approved by the Commission which is an independent  authori- ty. There could be no infirmity or illegality in the process of selection or in preparing the merit list. [642H; 643A-B]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos." 5061-62 of 1985.     From  the  Judgment and Order dated 24.9.  1985  of  the Sikkim High Court in W.P. No. 1 of 1983.     K. Swami, T. Topgay, A. Subba Rao (N.P.) B. Parthasarthi and Pari jar Sinha for the appearing parties. The Judgment of the Court was delivered by      KULDIP SINGH, J. The Sikkim State Civil Service  (here- inafter  called the ’Service’) was constituted  with  effect from  July 1, 1977 by the rules framed under article 309  of the  Constitution  of India, called the Sikkim  State  Civil Service Rules, 1977 (hereinafter called the 636 ’Rules’).  The question for our consideration in  these  ap- peals  is whether the special recruitment made by the  State Government  in the year 1981/82 and the consequent  appoint- ment of 29 officers to the service is violative of the rules and as such is liable to be quashed.     The Sikkim Government by a notification dated  September 16, 1981 decided to make special recruitment to the  service on the basis of written examination-cum-viva voce test.  The notification  mentioned ’exigencies of service’ as a  ground for  holding  the special recruitment. As a  result  of  the selection,  29 officers were appointed to the service by  an order dated December 13, 1982.     Dorjee  Tshering Bhutia who was working as Under  Secre- tary to the Government of Sikkim competed for the  selection but  failed. He challenged the notification dated  September 16,  1981  and  the consequent selection by way  of  a  writ petition  under  Article 226 of the  Constitution  of  India before  the Sikkim High Court. The learned single  Judge  of the  High  Court allowed the writ petition and  quashed  the notification  and the selection. At the relevant time  there being no division bench in the Sikkim High Court to hear the appeal,  the  State of Sikkim and  the  selected  candidates have,  against  the judgment of the  Learned  Single  Judge, come-up to this court via Article 136 of the Constitution of India. Hence these two appeals.     Before  dealing with the points involved in the  appeals it  is  necessary to notice the provisions of the  rules  in some  detail. Rule 3 deals with the initial constitution  of the service. It provides that the persons holding the  posts mentioned  therein  would  be deemed to be  members  of  the service  on the enforcement of the rules. Rule 4 which  pro- vides  for  the method of recruitment to the service  is  as under:                    4. Method Of Recruitment to the  Service:               (1)  Recruitment  to  the  service  after  the               publishment  of  these rules shall be  by  the               following methods, namely:--                (a)  Competitive Examinations to be  held  by

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             the Commission;                (b)  Selection from among persons serving  in               connection  with the affairs of the  State  of               Sikkim.                         (2)  The proportion of vacancies  to               be  filled  in  any year  in  accordance  with               clauses  (a)  and (b) above,  shall  be  50:50               respectively:               637                        Provided that the number of  persons,               recruited under ClauSe (b) above, shall not at               any  time  exceed  50  percent  of  the  total               strength of the Service-                        (3)Notwithstanding anything contained               in  sub-rule  (I)  if in the  opinion  of  the               Government  exigencies of the service  So  re-               quire, the Government may, after  consultation               with  the  Commission, adopt  such  method  of               recruitment  to the Service other  than  those               specified  in the said sub-rule, as it may  by               Notification in this behalf, prescribe.     Rule  5  provides for the constitution  of  a  Selection Committee,  consisting  of Chairman, Sikkim  Public  Service Commission  and  three other officers, to  make  recruitment under Rule 4(1)(b). Under Rule 6 the merit list prepared  by the  Selection  Committee is to be forwarded to  the  Sikkim Public  Service  Commission for its final approval,  Rule  8 lays  down that the competitive examination for  recruitment to  the  service  is to be conducted by  the  Sikkim  Public Service Commission. Rule 9, 10 and 11 provide for eligibili- ty and other qualifications for admission to the competitive examination. Rule 12 states that the decision of the Commis- sion  as to the eligibility or otherwise of a candidate  for admission to the competitive examination shall be final.     The  Rules provide for two methods of recruitment,  com- petitive  examination and by selection from amongst  persons serving  in  connection  with the affairs of  the  State  of Sikkim.  In respect of both these methods, it is the  Sikkim Public  Service Commission which is the authority Under  the Rules  to make recruitment to the service.  The  competitive examination  is to be held by the Commission. The  Selection Committee  for recruitment under Rule 4(1)(b) is to be  pre- sided over by the Chairman of the Public Service  Commission and finally the merit list has to be approved by the  Public Service  CommissiOn. It is thus Obvious that the  Rules  can only  operate through the Sikkim Public Service  Commission. Without the existence of a Public Service Commission in  the State of Sikkim the Rules could not have become  functional. It is not disputed that on July 1, 1977 when the Rules  came into  force  there was no Public Service Commission  in  the State. It was for the first time that one Shri K.R.K.  Menon was  appointed as chairman Of the Commission by a  notifica- tion  dated  November 20. 1981 and he took over as  such  on January  11, 1982. It is, thus, the admitted  position  that from July 1, 1977 till January 1.1, 1982 the Public  Service Commission  in the State of Sikkim had.not been  constituted and as such was not functioning. 638     On  August 10, 1981 a Cabinet Memorandum was  issued  by the Sikkim Government suggesting the necessity of  inducting officers working with the Sikkim Government into the service by way of selection. The reasons for holding the said selec- tion as stated in the memorandum are as under.               "Officers,  who  had not been  considered  for               induction into the Sikkim State Civil  Service

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             at its initial constitution in 1977, have been               representing  from time to time for  induction               into the Sikkim State Civil Service. Presently               these Officers have been grouped in the  cate-               gory  of  ’GENERAL’.  In order  to  give  them               chance  for  appointment to  the  State  Civil               Service,  the  Government  may  consider   the               modalities for selection and the determination               of  seniority of the officers as  proposed  in               the  draft  Notification and the  draft  order               enclosed.  The  following salient  points  are               submitted  for the consideration of the  cabi-               net."     The  Memorandum  was considered by the  Cabinet  in  its meeting held on September 1, 1981 and it was decided to hold a  written examination and viva voce test for  selection  to the Service. Consequently, the notification dated  September 16,  1981 was issued, the operative part of which is  repro- duced hereunder:               "NOTIFICATION                        In pursuance of sub-rule (3) of  rule               4  of  the Sikkim State Civil  Service  Rules,               1977, the Government being of opinion that the               exigencies  of the Service as require,  hereby               adopts the method written examination-cum-viva               voce  test as a method of recruitment  to  the               service for that purpose constitutes a  Selec-               tion Committee and prescribe the conditions of               eligibility and regulation of seniority  among               the selected officers as follows:               1. Constitution of the Selection Committee.                        There shall be a Selection  Committee               comprising of the following officers, namely:               1.               Chief               Secretary               Chairman               2.               Home                Secretary               Member               639               3.          Development           Commissioner               Member               4.              Finance              Secretary               Member               5.           Establishment           Secretary               Member                        The  Deputy Secretary in  the  Estab-               lishment Department shall act as the Secretary               to the Selection Committee.               2. Functions of the Selection Committee                        The Selection Committee shall arrange               to  hold a written  examination-cum-viva  voce               test for the eligible officers with a view  to               assess  their suitability for  appointment  to               Service.                        Provided  that any Officer who  fails               to obtain forty per cent of the total marks at               the  written  examination-cum-viva  voce  test               shall  not  be considered for  appointment  to               Service.               3. Officers eligible to appear at the  written               Examination-cum-viva   voce  test--(1)   Every               person who on the 1st clay of August, 1981  is               a  gazetted  officer under the  Government  of               Sikkim not possessing the technical qualifica-               tions as specified in the Notification Of  the               Government  of  Sikkim  in  the  Establishment

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             Department  No.  350/GEN/EST dated  3rd  Feb.,               1978 shall be eligible to appear at the  Writ-               ten examination-cum-viva voce test.     By  a subsequent notification dated April 24,  1982  the constitution of the Selection Committee was changed and  the Chairman,  Sikkim  Public  Service Commission  was  made  to preside over the Interview Board. The merit list prepared as a result of selection was sent to the Sikkim Public  Service Commission  for  approval and thereafter  29  officers  were appointed  to the service by a notification  dated  December 13, 1982.     Dorjee Bhutia challenged the notification dated  Septem- ber 16, 1981 and the consequent selection before the  Sikkim High Court on the following grounds: 1. The exercise of power, in issuing the impugned  notifica- tion, 640 under-Rule  4(3) of the Rules was illegal as  the  requisite conditions namely the existence of exigencies of service and consultation  with the Public Service Commission,  were  not satisfied. 2.  The method of selection provided under the  notification being contrary to the statutory rules was bad in law. 3.  Rule 4(3) of the Rules was liable to be  struck-down  on the ground of excessive delegation. 4. The Selection Committee was changed from time to time  so much  so that the Committee which took the written  examina- tion  was  different from the one which took the  viva  voce test.     The learned Advocate General appearing for the State  of Sikkim raised the following points before the High Court: 1.  The  rules,  though enforced, were  inoperative  due  to nonexistence  of Public Service Commission in the  State  of Sikkim. The Government could, therefore, issue the notifica- tion in exercise of its executive power under Article 162 of the Constitution of India. 2. The conditions precedent for holding the selection  under Rule  4(3)  were satisfied. Necessary opinion to  issue  the impugned notification was formed on the basis of the reasons contained  in the Cabinet Memorandum dated August 10,  1981. The  High Court could not have gone into the sufficiency  of reasons.  Consultation  with the Public  Service  Commission under  the Rules was directory. In any case there  being  no Commission in existence it was not possible to do so. 3. Dorjee Bhutia having appeared in the written  examination and  the  viva voce test was estopped from  challenging  the selection. 4.  The writ petition was liable to be dismissed on  grounds of laches.     The High Court rejected the arguments advanced on behalf of  the State of Sikkim. It was held by the High Court  that the  impugned notification was violative of the  Rules,  the Government could not have acted in its executive power  when the statutory rules were holding the 641 field, the two conditions-precedent under, Rule 4(3) of  the Rules  were  mandatory, there was no  material  before  the. State  Government  to  form an opinion  that  exigencies  of service  required the issuance of the impugned  notification and  the  Public ServiCe Commission was  not  consulted.  On these findings the High Court quashed the selection and  the consequent appointments.     The learned counsel for the appellant contended that the Rules  came into force in the year 1977 which  provided  re- cruitment to the service through the Public Service  Commis-

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sion.  The service constituted under the Rules consisted  of the  top-ranking posts in the State Service. It also  served as a feeder-cadre for appointments to the Indian Administra- tive  Service.  After its initial. constitution  no  further appointments  were made to the service under the  Rules  be- cause in the absence of the Public Service Commission  there was no mechanism to operate the Rules. According to him when recruitment  to the service was not made-for a  long  period there were representations from number off officers  seeking opportunity to enter the service. It was under these circum- stances that the cabinet decision to hold the special selec- tion was taken and the impugned notification was issued. The learned  counsel vehemently contended that the  Rules  being inoperative  the State Government was, within its  executive power  to  issue  the notification. He  also  justified  the Government  action under Rule 4(3) of the  Rules.  According to  .him the. necessary opinion regarding existence of  ’Ex- igencies  of  Service’ was formed by the Government  on  the basis  of  the reasons contained in the  Cabinet  Memorandum (quoted  above) and the High Court could not have gone  into the sufficiency of the said reasons. He further argued  that the  requirement  of consultation with  the  Public  Service Commission  was directory and its non-compliance  could  not have rendered the selection illegal.     The  executive power of the State under Article  162  of the  Constitution of India extends to the matters  with  re- spect  to  which the legislature of the State has  power  to make laws. The Government business is conducted under  Arti- cle 166(3) of the Constitution in accordance with the  Rules of  Business made by the Governor. Under the said Rules  the Government  business  is divided amongst the  ministers  and specific  functions are allocated to  different  ministries. Each ministry can, therefore, issue orders or  notifications in respect of the functions which have been allocated to  it under the Rules of Business. 642     The executive power of the State cannot be exercised  in the field which is already occupied by the laws made by  the legislature. It is settled law that any order,  instruction, direction  or notification issued in exercise of the  execu- tive  power of the State which is contrary to any  statutory provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though  enforced, remained unworkable for about five  years. The  Public Service Commission, which was the  authority  to implement  the Rules, was not in existence during  the  said period. There is nothing on the record to show as to why the Public  Service  Commission was not constituted  during  all those  five  years. In the absence of any  material  to  the contrary  we assume that there Were justifiable reasons  for the  delay  in constituting the  Commission.  The  executive power  of the State being divided amongst various  function- aries  under  Article 166(3) of the  Constitution  of  India there  is possibility of lack of co-ordination amongst  var- ious limbs of the Government working within their respective spheres of allocation. The object of regulating the recruit- ment and conditions of Service by statutory provisions is to rule  out arbitrariness, provide consistency and  crystilise the rights of employees concerned. The statutory provision’s which  are unworkable and inoperative cannot  achieve  these objectives. Such provisions are non-est till made operation- al. It is the operative statutory provisions which have  the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in.the present ease, the statutory provisions could not be operated there was  no

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bar  for  the  State Government to act in  exercise  of  its executive  power. The impugned notification to hold  special selection  ’was issued almost four years after the  enforce- ment  of the Rules. It was done to remove stagnation and  to afford  an opportunity to the eligible persons to enter  the service.  In our view the State Government was justified  in issuing the impugned notification in exercise of its  execu- tive  power and the High Court fell into error  in  quashing the same.     The  fact  that the State Government  purported  to  act under rule 4(3) of the Rules in issuing the impugned notifi- cation is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power  cannot be struck down on the ground that it  was  la- belled under a different provision.     The  view we have taken--it is not necessary to go  into any  other question. It is not disputed that after the  con- stitution  of  the  Sikkim Public  Service  Commission,  the Chairman  of  the Commission was made to  preside  over  the Selection Committee which took the viva 643 voce test. There after the merit list was sent to the Public Service Commission and the appointment of 29 appellants,  in the year 1982, was made with the approval of the Commission. The  selection was thus finally approved by  the  Commission which is an independent authority. No infirmity or illegali- ty  has been pointed out in the process of selection  or  in preparing the merit list.     We, therefore, allow the appeals, set aside the judgment of  the High Court and dismiss the writ petition  by  Dorjee Tshering Bhutia. There shall be no order as to costs. G.N.                                           Appeals   al- lowed. 644