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PETITIONER: MR. U.D. LAMA & ORS.

       Vs.

RESPONDENT: THE STATE OF SIKKIM & ORS.

DATE OF JUDGMENT:       26/11/1996

BENCH: CJI, SUHAS C. SEN, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN. J.      Leave granted.      This case  has a long history. The dispute started when the Sikkim  State  Civil  Service  (hereinafter  called  the "Service") was  constituted with  effect from  the 1st July, 1977 by  rules framed  under Article 309 of the Constitution of India,  called Sikkim  State Civil  Service  Rules,  1977 (hereinafter described as the "Rules"). It provided that the persons holding  posts mentioned  therein would be deemed to be members  of the  Service on the enforcement of the Rules. Rule 4  is important  for  the  purpose  of  this  case  and provided for the method of recruitment to the Service:-      "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  examination to  be      held by 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:      Provided   that   the   number   of      persons, recruited under clause (b)      above, shall not at any time exceed      50 per  cent of  the total strength      of the service.      (3)    Notwithstanding     anything      contained in  sub-rule (1),  if  in      the  opinion   of  the   government      exigencies  of   the   service   so      require, 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

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    behalf, prescribe."      Rule  5   provided  for  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 was  to be  forwarded to the Sikkim Public Service  Commission for  its final  approval. Rule  8 laid down  that the  competitive examination for recruitment to the  Service was  to be  conducted by  the Sikkim  Public Service  Commission.   Rules  9,  10  and  11  provided  for eligibility and  other qualifications  for admission  to the competitive examination. Rule 12 stated that the decision of the Commission  as to  the eligibility  or  otherwise  of  a candidate for admission to the competitive examination shall be final.      Two methods  of recruitment were laid down by the Rules - (1) competitive examination and (2) selection from persons serving in  the State  of Sikkim.  In both the cases, Sikkim Public Service Commission had to make the recruitment to the Service. A  competitive examination  had to  be held  by the Commission for recruitment under Rule 4(1)(b). The Selection Committee had  to be  presided over  by the  Chairman of the Public  Service  Commission.  Therefore,  under  the  Rules, selection could  be made  only through Sikkim Public Service Commission and  not otherwise. 63 officers were appointed to the Service  including 34  of the  rank of Under Secretaries and equivalent  posts. No  induction to the Service was made after the initial recruitment till 1981.      When the  Rules came into force on 1st July 1977, there was no  Public Service  Commission in the State. It was only on 20th  November, 1981 a Chairman was appointed who assumed office on 11th January, 1982. The result being that from 1st July, 1977 till 11th January, 1982 Public Service Commission in the  State had  no been  constituted and  as such was not functioning. Under  the circumstances, on 10th August, 1981, a Government  decision was taken to induct officers who were already working in the Government into the Service by way of selection.  A   decision  was   taken  to   hold  a  written examination and viva voce test for selection to the Service. A notification  was issued  on 16th  September, 1981  to the following effect:                        "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   so      require, hereby  adopts the  method      of   written   examination-cum-viva      voce   test    as   a   method   of      recruitment to the service for that      purpose  constitutes   a  Selection      Committee   and    prescribes   the      conditions   of   eligibility   and      regulation of  seniority among  the      selected officers...      3. Officers  eligible to  appear at      the  written   examination-cum-viva      voce test.      (1) Every  person who  on the first      day of  August, 1981  is a gazetted      officer  under  the  Government  of      Sikkim not possessing the technical      qualifications as  specified in the      notification of  the Government  of

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    Sikkim   in    the    Establishment      Department  No.  350/GEN/EST  dated      February 3,  1978 shall be eligible      to   appear    at    the    written      examination-cum-viva-voce test."      A large  number of  person applied, on the basis of the written examination  as well as viva voce test, a merit list was prepared  which was  sent to  the Sikkim  Public Service Commission which  had by  that time  been constituted. After obtaining its  approval, 29  officers were  appointed to the Service by notification dated 13th December, 1982.      One  of  the  unsuccessful  candidates.  Dorjee  Bhutia Challenged  the   initial  notification   issued   on   13th September, 1981  and the selection by a writ petition before the Sikkim High Court on the following grounds:      "1.  The   exercise  of  power,  in      issuing the  impugned  notification      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    examination    was      different from  the one  which took      the viva voce test."      The High  Court upheld  the  contentions  of  the  writ petitioner and  the matter  ultimately came to this Court on appeal. The  case of the Sikkim Government before this Court was that  the Service  constituted under the Rules consisted of top ranking posts in the State Service. It was also to be used as  a  feeder  cadre  for  appointment  to  the  Indian Administrative  Service.   But  since   no  Public   Service Commission  could   be  constituted  for  a  long  time,  no appointments could  be made  to the Service. The decision to hold the said selection was taken under these circumstances. It was competent for the State Government in exercise of its executive power  to issue  the  impugned  notification.  The action of the Government was also justified under Rule 4(3). Even under  Rule 4(3),  consultation with the Commission was necessary. But  it was  contended that  this  provision  was directory and  not mandatory in nature and in any event, the list  that   was  prepared   was  finally  approved  by  the Commission. This  Court reversed  the decision of the Sikkim High Court and held as under:-      "... When  in a peculiar situation,      as  in   the  present   case,   the      statutory provisions  could not  be      operated there  was no  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 enforcement of      the Rules.  It was  done to  remove

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    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      executive power...      The fact  that the State Government      purported to act under Rule 4(3) of      the Rules  in issuing  the impugned      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 under a      different provision."      As has been stated earlier in the judgment, 29 officers in all  were appointed  to the  Service with effect from the date of  issue of  the notification,  i.e.,  13th  December, 1982. By  another  notification  dated  17.4.1984,  inter-se seniority of these 29 officers was fixed.      Even while the writ petition filed by Dorjee Bhutia was pending in  appeal in  this Court, a representation was made by the  Sikkim Government  General Officers’  Association on 27th March,  1989 to  the State  Government for induction of the officers  belonging to  their Association  who were  not inducted earlier  into the  Service. The  grievances of  the Association were :-      "2. Now  we feel  that there should      not be  two categories  of officers      who are  working in  the Government      with parallel  responsibilities. In      view of  this, it is submitted that      all officers  in the Administrative      and  Ministerial   Wing  (excluding      those  in  technical  and  academic      wings) who  have not  been inducted      in the  service should  be inducted      in  the   service  duly  protecting      their seniority so that equality of      states  and   opportunity  for  all      could be maintained.      3.  We   also  express   our   deep      dissatisfaction    regarding    the      promotion  of   officers  of  Civil      Service Cadre within a short tenure      of five  years. Those  officers who      have been inducted in Civil Service      wore  promoted   to  the  Cadre  of      Deputy Secretary within 4 years. On      the  other   hand,  the   non-civil      Service officers  who  are  holding      Gazetted    posts     with    equal      responsibilities for  last 10 years      and even  more have  not been given      promotion to  the higher  grade. If      such inequality  continues for some      time,   the    non-civil    Service      officers will  lose their interest,      self-confidence       to       work      efficiently, which may badly hamper      the administration  of  the  State.      Furthermore,  a  handful  of  Civil      Service Officers may not be able to

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    run  the   administration  of   the      State."      A  five-member  Committee  under  the  Chairmanship  of Justice  (Brig.)   D.M.Sen  was   set  up  to  consider  the representation. The  terms of  reference  of  the  Committee were:-      "1. To examine whether all the then      serving  gazetted  officers  should      have been  inducted into the Sikkim      State Civil  Service at its initial      constitution under  Rule 3  of  the      Sikkim State  Civil Service  Rules,      1977.      2. To  examine  whether  all  those      officers  of   the  gazetted  grade      already serving  in the  government      prior to  1977 and  those appointed      to gazetted  grade  from  1977  and      date prior  to the  appointment  in      the lowest gazetted grade of the 20      officers inducted  into  the  State      Civil Service  in 1986 had rightful      claim for  induction into the State      Civil Service.      3. To  suggest  a  method/principle      for induction  of serving  gazetted      officers  into   the  Sikkim  State      Civil  Service  and  a  method  for      regulation of  their own  seniority      with the  officers already  in  the      service.      4. To  review the promotion of five      members of  the State Civil Service      promoted to the senior grade of the      State Civil Service."      Before the  Committee  gave  its  finding,  it  gave  a personal hearing to the Association. Three members on behalf of the Association appeared before the Committee. One of the grievances of  the appellants  herein is  that although they were going  to be affected by the decision of the Committee, the Committee  did not  think it fit to give them a hearing. In our  view, there is some justification in this grievance. The  Committee   having  decided  to  give  hearing  to  the Association, should  have given  a hearing to the appellants who were vitally interested.      It must,  however, be  noted that it is not the case of the writ  petitioners that  they had made any representation or request  to the  Committee for  being heard.  They  have, however, taken  a point  that the notification regarding the constitution of  Justice Sen  Committee  and  the  terms  of reference of  the Committee  were not  gazetted nor were the petitioners put  to notice  about this  Committee. They were not  invited  to  place  their  views  on  the  question  of seniority. It  is difficult  to uphold  this contention. The Committee  was   functioning  openly   and   publicly.   The petitioners   being    responsible   officers   of   various departments of  the State could not have been unaware of the existence of the Committee and its functioning. Moreover, it has been  stated in the counter filed on behalf of the State that  the  Second  Committee  was  set  up  because  of  the resentment expressed  by the  writ petitioners  against  the report of the Sen Committee. The Second Committee adequately took  into   consideration  the   objections  of   the  writ petitioners.  Furthermore,  the  two  Committees  only  made recommendations to  the State  Government. It  was  for  the

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State  Government   to  accept   wholly  or   partially  the recommendations or to reject them outright after considering all aspects of the matter.      The Committee was, inter alia, of the view that "-      "17.  The  induction  of  these  29      officers,  however,   validly   and      properly it  might have  been done,      does not  conclude the cases so far      as other  officers eligible at that      time and  who might  have failed or      not appeared at the examination are      concerned. At  the  time  these  29      officers were  inducted, 78  in all      were eligible  under  Rule  4(1)(b)      and Rule  (2)(b). So  the cases  of      remaining 49  officers will have to      be considered in the light of Rules      4(3)  and   5(4).   Of   these   49      officers, we  may note  that 36 had      appeared but failed.      18. The  case of  these 49 officers      is that  the examination  system as      introduced by  the  Government  was      not specified  under rule 5(4) and,      as  such,   this   requirement   of      qualifying at an examination should      not have  stood  in  their  way  of      being  considered.,  The  Committee      sees   lot   of   force   in   this      submission and  is  constrained  to      hold that  both on  grounds of  law      and  equity,   introduction  of   a      supplementary    requirement     or      qualification might  not have  been      duly  warranted  under  rule  5(4).      Also, "exigencies  of  service"  as      under  rule   4(3)  can  hardly  be      invoked to  justify the  holding of      an examination,  as in case of real      exigency that rather time consuming      method of <??> (sic) would not have      been adopted.      19.  In   the  above  view  of  the      matter, the  Committee  is  of  the      opinion that  all these 49 officers      should now  be inducted  into Civil      Service   w.e.f.    the   date   of      induction of  the 29  officers,  if      otherwise  found  suitable  and  if      they   satisfy    the    conditions      prescribed in  rule 5(2)  and  rule      5(3) and (4)."      The recommendations  of the  Committee were accepted by the Cabinet.  A notification  dated 29th  December, 1990 was issued stating  that the Government of Sikkim had decided to induct suitable officers except those specified therein into the Service.  It also  laid down  a method for selection and determination  of   seniority.  The  Sikkim  Public  Service Commission, thereupon,  invited applications  from  eligible officers. 166 officers were found eligible and were inducted into the  service. The  existing offices of the Service felt aggrieved by  this action of the Government and thought that their seniority  in Service had not been properly protected. Because of the resentment among the existing officers of the Service, another  Committee  was  set  up  to  go  into  the

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question  of  seniority.  The  Committee  comprised  of  six officers  headed  by  Shri  K.C.  Pradhan,  Advisor  to  the Government of  Sikkim. A  point has  been taken on behalf of the appellants  that this  Committee was  not impartial,  in that, one  of the members of the Committee was an interested party in  the controversy.  The Advisor to the Government of Sikkim headed  the  Committee.  His  wife  was  one  of  the candidates for appointment to the Service and was appointed. The question  of her  seniority should not have been decided by the  Committee of  which her  husband was  a member.  The Advisor has  not been  made a  party to  the  Special  Leave Petition and  had not  opportunity to  deny this allegation. Moreover, this  objection to deny this allegation. Moreover, this objection  should have  been made as soon as the Second Committee was  constituted. It  has to be borne in mind that the  Second   Committee  was   constituted  because  of  the objections   of    the   writ    petitioners   against   the recommendations  made  by  the  first  Committee  headed  by Justice D.M.  Sen. It  is on  record that  objections of the writ petitioners were taken into consideration by the Second Committee. It  is not  the case of the writ petitioners that they took  this point before the Committee and the Committee overlooked this  point. We  are of  the view that this point cannot be allowed to be urged at this belated stage.      This Second Committee was of the view that:-      "(1) Besides the Sikkim State Civil      Service, 8 other State services had      been  constituted   in  the  State.      Except in  the case  of the  Sikkim      State Civil  Service, all the other      Services had  inducted all gazetted      officers of  their  departments  as      members   of   the   Service.   the      disadvantage was only in respect of      the  Sikkim   State  Civil  Service      where a  large number  of  officers      had  not  been  inducted  into  the      Service.  The  Committee  expressed      the  opinion   that  all   officers      should be  encadred  to  the  State      Civil Service  as in  the  case  of      other organised  services and  this      should be done as per the principle      outlined   in   the   Justice   Sen      Committee Report.      (ii) There are no separate rules or      regulations or  pay scales or posts      for the State Civil Service and all      officers  engaged  in  the  general      administration  of  the  State  are      regulated by  the same  rules,  pay      scales etc.,  as of the State Civil      Service. The  question of  being  a      member  of  the  Service  has  only      arisen  when   the  Government  has      sought  to   make  promotions  from      within  the   Service   itself   on      certain  occasions,  while  at  the      same time officers not belonging to      the Service  have also  made use of      this fact for their promotions. The      adoption of different yardsticks at      different  points   of  time   have      resulted in  the  fact  that  while      some people have benefitted, others

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    have been affected adversely.      (iii)  In  the  matter  of  service      conditions relating  to promotions,      posting, pay scales etc., there has      been  no   difference  between  the      members of  the Civil  Service  and      the others and only advantages have      been  derived   wherever   it   was      opportune  by   both  category   of      officers.   Such    an    anamolous      situation  cannot   be  allowed  to      continue as  this will  create  not      only confusion in the management of      the Service  but also  rivalry  and      unhealthy  competition  for  favour      among   various    categories    of      officers resulting  in inefficiency      and total chaos.      (iv)  In   the   absence   of   the      Notification of  specific posts for      the  civil  Service,  most  of  the      officers  are  languishing  in  the      administrative  jobs  that  do  not      offer any challenge with the result      that  officers   are  often   badly      underworked. If the Services are to      be regulated  properly then  it  is      imperative that  specific posts  be      notified against  which only  Civil      Service officers be appointed.      (v) Under  the present arrangement,      recruitment    to    the    General      Administration is  very competitive      and even a brilliant applicant find      limited  opportunities  while  mere      graduates in the technical subjects      get   jobs    in   the    technical      departments   as   also   automatic      induction to  the  State  Technical      Service.      The reports  of the Two Committees were implemented and the  seniority  list  of  the  employees  was  redrawn.  The grievance of  the appellants is that respondent Nos. 4 to 65 have  been  recruited  in  the  Service  with  retrospective effect. It  has been  contended that a test was conducted in 1981 on the basis of the result of the competition among the officers  who   were  employed  by  the  Sikkim  State,  the appellants got  into the  Service on merit. Those who failed to get  into the  Service or those who did not appear in the test at  all cannot  be retrospectively  promoted to disturb the  seniority   of  the  appellants  in  the  Service.  The recruitment in  1982  was  made  because  30  officers  were required for  the Service  and accordingly after holding the tests, 30 officers were appointed. The respondents including respondent No. 18 failed to qualify in the selection test of 1982. It  has further  been contended  that  the  appellants recruited in  1982 were  placed below the officers appointed at the  time of initial constitution of the Service in 1977. Likewise, officers  appointed in  1986 were placed below the appellants and the officers appointed thereafter were placed below the  officers appointed  in 1986. This was the pattern of seniority  that was followed till it was disturbed by the report of the Sen Committee. After getting into the Service, the  appellants   were  given  promotion  on  completion  of qualifying service  in each  rank. At the time the promotion

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was given,  the respondents  belonged to a different service and could  not in  any way  feel aggrieved  by the promotion given in the Service to which the appellants belonged.      Another point  that  has  been  urged  was  that  after initial  constitution   of  Service,   the  main  source  of appointment was  Rule 4(1)(b)  and Rule  5(2)(b) under which almost all the respondents were ineligible either not having completed six years’ continuous service or not being holders of  gazetted  posts.  That  is  the  reason  why  a  special selection  in  1982  was  held  with  different  eligibility criteria of  holding gazetted  post only as on 1.8.1981. The sole purpose  of this  was to  give a chance to all gazetted officers to  qualify for  the newly  created Service.  Those respondents who  had failed  in the selection tests continue to be  governed by Sikkim Government Service Rules, 1974 and Sikkim  Establishment   Rules.  On   the  other   hand,  the appellants who  had succeeded  in the test became members of State Civil  Service governed  by  the  Sikkim  State  Civil Service Rules, 1977.      The contention  of the  appellants  is  that  they  had actually taken  the test  held in  1982 and  qualified. They joined the  Service in  1982.  Their  claim  is  that  their seniority cannot be disturbed by induction of fresh recruits in the Service by the method of selection.      On the  other hand,  it cannot  be overlooked  that the appellants were  not  appointed  by  following  the  regular procedure of appointment. Under Rule 4(1), recruitment could be  made  to  the  newly  created  State  Civil  Service  by competitive examinations  to be  held by  the Sikkim  Public Service Commission.  This competition  is  not  confined  to persons who are already in Government employment. The second method of  recruitment is selection from persons "serving in connection with  the affairs of the State of Sikkim". In the second category of recruitment, specifically no provision of holding written  and viva  voce test has been laid down. The respondents claim  that had  the procedure  in rule  4(1)(b) been followed,  they would have got into the Service without any examination.  But their  lawful exception  was denied by the failure  of the  Government to  set up  a Commission  or appoint a  Chairman. What  would  have  happened  in  normal course, did  not happen because of the Government’s failure. Only because of this, quite contrary to the Rules, a written and oral  tests were  held. This  was upheld  by this  Court principally on the ground of what was described as "peculiar situation" which  was created by the absence of a Commission and its  Chairman. The  selection and  appointments made  in 1982 were  dictated by  peculiar circumstances  obtaining at that time.  The  appointments  were  not  made  strictly  in accordance with the Rules but, as was held by this Court, in exercise of  the executive  power of  the State.  It is true that some  of the  respondents appeared  in the test and did not qualify  but there is substance in the contention of the respondents that  they were  entitled to  be appointed  even without these  tests if Rule 4(1)(b) was followed. They were deprived  of   this  chance.  Even  for  Rule  4(1)(b),  the instrumentality of  Public Service  Commission was necessary for making  any appointment.  Now that  the  Public  Service Commission has been set up, the State Government has to undo the wrong  that was  initially done  to these  employees  by subjecting them  to tests  which was  not warranted  by Rule 4(1)(b). Therefore, they should not be made to suffer in the matter of  seniority or  promotion in  any way by failure of the State Government to implement the Rules laid down by it. In these  circumstances by  directing the new recruits to be treated to  have been  recruited on  the day  the appellants

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were recruited,  the State  Government has not done anything contrary or wrong but has really restored the injustice done to the  respondents by  the State  Government’s  failure  to recruit them  into  the  Service  in  accordance  with  Rule 4(1)(b). In  fact, the  only  door  that  was  open  to  the appellants under  the Rules to enter the Service was through Rule 4(1)(b).  They might  have  also  joined  through  open competition but neither of the two steps were taken or could be taken. In these circumstances, the appellants have really tried to  steal  a  march  upon  the  respondents  by  being successful in  the tests  which should not have been held in any event.      We  are   of  the  view  that  the  contention  of  the respondents must  be upheld.  The point  in dispute has been examined in  depth by  two Committees  set up  by the  State Government. The earlier judgment of this Court upholding the recruitment of  the appellants was because of the failure of the State  Government to  appoint the  State Public  Service Commission. As  no appointments were being made for a number of years,  the Government  adopted the  device of  holding a written test  which was  not laid  down by  the Rules.  This Court held  that under  the peculiar  circumstances, it  was justified. This,  however, does  not  mean  that  the  State Government would  not be  entitled to regularise the service on the  basis of  the rules  framed. The appellants who were appointed under  very special circumstances cannot claim any special right  in the  matter of  promotion or seniority. It was not  the fault  of  the  respondents  that  appointments according to  rules could  not be  made in  time. Taking  an overall view  of the  matter, we are of the opinion that the High Court  has come  to a  correct decision. The appeal is, therefore, dismissed with no order as to costs.