Summary
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 633634 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 635object 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 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]See the full content of this document
Extract
State Of Sikkim VS. Dorjee Tshering Bhutia And Ors.
PETITIONER: STATE OF SIKKIM Vs.RESPONDENT: DORJEE TSHERING BHUTIA AND ORS.DATE OF JUDGMENT20/08/1991BENCH: 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)378ACT: 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.JUDGMENT: C...
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