Holding

The State Government was justified in issuing the special recruitment notification in exercise of its executive power, and the High Court erred in quashing it.

Summary

The Sikkim State Civil Service Rules, 1977 provided for recruitment through the Sikkim Public Service Commission, which was not constituted until 1982, rendering the rules inoperative for about five years. In September 1981 the State Government issued a notification for a special recruitment, citing exigencies of service, and appointed 29 officers in December 1982. Dorjee Tshering Bhutia, an unsuccessful candidate, challenged the notification and appointments before the Sikkim High Court, arguing that the State had exceeded its executive power and violated Rule 4(3) by not satisfying the conditions of exigency and consultation with the Commission. The High Court quashed the notification, but the Supreme Court held that when statutory provisions are inoperative, the State may act under its executive power under Article 162 of the Constitution, and the conditions of Rule 4(3) were either satisfied or directory. The Court further observed that the selection process, once the Commission was constituted, received its approval, and there was no illegality in the appointments. Consequently, the Supreme Court set aside the High Court judgment and dismissed the writ petition.

Issues considered

Whether the State could exercise executive power under Article 162 to recruit civil servants when the statutory recruitment rules were inoperative due to the absence of a Public Service Commission.
Whether the conditions precedent under Rule 4(3) of the Sikkim State Civil Service Rules – existence of exigencies of service and consultation with the Commission – were satisfied.
Whether Rule 4(3) amounted to an unlawful delegation of power.
Whether the alteration of the Selection Committee rendered the selection process invalid.

Legislation cited

Constitution of Indias. 162, s. 166(3), s. 309

Subjects

executive powerArticle 162public service commissioninoperative statutory provisionsdelegation of authoritySikkim Civil Service Rulesspecial recruitmentconstitutional law

Judgment

STATE OF SIKKIM
A
v.
DORJEE TSHERING BHUTIA AND ORS.

AUGUST 20,1991

[KCLDIP SINGH AND K. RAMASWAMY, JJ.] B

Constitution of India, I950: Article I62-Executive power of tfle
State-Exercise of-In the field already occupied by !egislation-
Statutory provisions non-operative-Whether executive power could
be exercised.

Civif Services: Sikkim State Civil Service Rules, 1977. c

Rules 4 and 5-Special recruitment fo~ '•1ducting already serving
officers-Issue of notification-Constitution of Selection Committee-
Public Service Commission coming into being later-Requisite condi-
tions-Existence of exigencies of service-Consultation with Public D
Service Commission-Fulfilment of-Validity of the Notification.

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 E
State. On the basis of representations from officers who were not being
considered for induction into the service at its i!litial 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 Committee. Written examination-cum-viva-voce
test was adopted as the method of recruitment, and the Selection Com- F
mittee 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 G
16.9.1981 and the consequent selection. The main contention raised by
him was that the exercise of power under Rule 4(3) on the basis of which
the said notification was issued, was illegal on the ground of excessive
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 H

633
634 SUPREME COURT REPORTS [1991] 3 S.C.R.

enforced, were inoperative since Public Service Commission was not in
A
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 P.recedent 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 contained in the Cabinet
B 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 ihe written examination and viva
voce test was estopped from challenging the selection.
. -"·

C 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 Government
and the selected officers preferred the present appeals by special leave.
D The same contentions as were raised in the High Court were urged
before this Court.

Allowing the appeals, this Court,

HELD: I. The State Government was justified in issuing the
E 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, instruction, direction or notification issued
F in exercise of the executive power of the State which is contrary to any
statutory provisions, is without jurisdiction and is a nullity. In the
instant case, tlte Sikkim State Civil Service Rules, 1977 though enforced,
remained unworkable for about five years. The Public Service Commis-
sion, which was the authority to implement the said Rules, was not in
existence during the said period. There is nothing on record to show as
G 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 functionaries under Article 166(3) of the Constitution of India
there. is possibility of lack of co-ordination amongst various limbs of the
H Government working within their respective spheres of allocation. The
STATE OF SIKKIM v. D.T. BHUTIA [KULDIP SINGH, J.[. 635

object of regulating the recruitment and conditions of service by statu-
tory provisions is to rule out arbitrariness, provide consistency and A
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 statu- B
tory provisions c~uld not be operared, 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 enforce-
ment of the Rules. It was done to remove stagnation 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 c
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] ·
D
4. After the constitution of the Sikkim Public Service Commis-
.~
sion, 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 authority. E
There could be no infirmity or illegality in the process of selection or in
preparing the merit list. [642H; 643A-B]

~ CIVIL APPELLATE JURISDICTION: Civil Appeal Nos ..
5061-62 of 1985.
F
From the Judgment and Order dated 24.9.1985 of the Sikkim
High Court in W.P. No. 1of1983.

K. Swami, T. Topgay, A. Subba Rao (N.P.) B. Parthasarthi and
Parijat Sinha for the appearing parties.
G
The Judgment of the Court was delivered by

KULDIP SINGH, J. The Sikkim State Civil Service (hereinafter
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 H
636 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

'Rules'). The question for our consideration in these appeals is
A
whether the special recruitment made by the State Government in the
year 1981/82 and the consequent appointment 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,
B 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 Secretary to
c the Government of Sikkim competed for the selection but failed. He
challenged the notification dated September 16, 1981 and the conse-
quent 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
D 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.

E Before dealing with the points involved in the appeals it is neces-
sary 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

F
of the service on the enforcement of the rules. Rule 4 which provides
for the method of recruitment to the service is as under:

4. Merhod of Recruitmenr to the Service: (!) Recruitment
•
to the service after the publishment of these rules shall be
by the following methods, namely:-

(a) Competitive Examinations to be held by the
G Commission;

(b) Selection from among persons serving in connec-
tion with the affairs of the State of Sikkim.

(2) The· proportion of vacancies to be filled in any
H year in accordance with clauses (a) and (b) above, shall be
50: 50 respectively:
STATE OF SIKKIM v. D.T. BHUTIA [KULDIP SINGH, J.[ 637

Provided that the number of persons, recruited under
A
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 require, the Government may, after consultation B
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.
,J.
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 c
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 eligibility and other qualifications for D
admission to the competitive examination. Rule 12 states that the
decision of the Commission as to the eligibility or>otherwise of a candi-
date for admission to the competitive examination shall be final.

The Rules provide for two methods of recruitment, competitive
examination and by selection from amongst persons serving in connec- E
tion 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 Selec-
tion Committee for recruitment under Rule 4(1)(b) is to be presided
over by the Chairman of the Public Service Commission and finally the F
merit list has to be approved by the Public Service Commission. It is
thus ol:!vious 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 G
for the first time that one Shri K. R. K. Menon was appointed as
chairman of the Commission by a notification. 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 11, 1982 the
Public Service Commission in the State of Sik1<im had not been con-
stituted arid as such was not functioning. H
638 SUPREME COURT REPORTS [1991] 3 S.C.R.

On August 10, 1981 a Cabinet Memorandum was issued by the
A Sikkim Government suggesting the necessity of inducting officers
working with the Sikkim Government into the service by way of sele~
tion. The reasons for holding the said selection as stated in the
memorandum are as under:

B "Officers, who had not been considered for induction into
the Sikkim State Civil Service at its initial constitution in
1977, have been representing from time to time for induc-
tion into the Sikkim State Civil Service. Presently these
Officers have been grouped in the category of 'GENE-
RAL'. In order to give them chance for appointment to the
State Civil Service, the Government may consider the
c 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 sub-
mitted for the consideration of the cabinet."

D The Memorandum was considered by the Cabinet in its meeting
held on September 1, 1981 and it was decided to hold a written exami- ..
nation and viva voce test for selection to the Service. Consequently,
the notification dated September 16, 1981 was issued, the operative
part of which is reproduced hereunder:

E "N 0 TI FICA TI 0 N

In pursuance of sub-rule (3) of rule 4 of the Sikkim I
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
F voce test as a method of recruitment to the service for that
purpose constitutes a Selection Committee and prescribe
the conditions of eligibility and regulation of seniority
among the selected officers as follows:

I. Constitution of the Selection Committee.
G ....
There shall be a Selection Committee comprising of
the following officers, namely:
j

I. Chief Secretary Chairman

H 2. Home Secretary Member
STATE OF SIKKIM v. D.T. BHUTIA [KULDIP SINGH, J.] 639

3. Development Commissioner Member
A
4. Finance Secretary Member
.1
5. Establishment Secretary Member

The Deputy Secretary in the Establishment Depart- B
ment shall act as the Secretary to the Selection Committee.

2. Functions of the Selection Committee:

The Selection Committee shall arrange to hold a writ.-
ten examination-cum-viva voce test for the eligible officers
with a view to assess their suitability for appointment to c
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 D
Service.

3. Officers eligible to appear at the written Examination-
cum"viva voce test-( l) Every person who on the 1st day of
August, 1981 is a gazetted officer under the Government of
Sikkim not possessing the technical qualifications as E
specified in the Notification of the Government of Sikkim
in the Establishment Department No: 350/GEN/EST dated
3rd Feb .. 1978 shall be eligible to appear at the Written
examination-cum-viva voce test. '

By a subsequent notification dated April 24, 1982 the constitu- F
tion 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 there-
after 29 officers were appointed to the service by a notification dated
December 13, 1982. G

Dorjee Bhutia challenged the notification dated September 16, ·
1981 and the consequent selection before the Sikkim High Court on
the following grounds:

1. ·The exercise of power, in issuing the impugned notification, H
640 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

under Rule 4(3) of the Rules was illegal as the requisite condi-
A
tions namely the existence of exigencies of service anc\ consulta-
tion with the Public Service Commission, were not sati: .fled.

2. The method of selection provided under the notification
being contrary to the statutory rules was bad in law.
B
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.
c
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 non-
0 existence of Public Service Commission in the State of Sikkim.
The Government could . therefore, issue the notification in exer-
cise of its executive power under Article 162 of the Constitution
oflndia.

2. The conditions precedent for holding the selection under
E Rule 4(3) were satisfied. Necessary opinion to issue the
impugned notification was formed on the basis of the reasons
contained in th•~ 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
F 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.

G 4. The writ petition v.as liable to be dismissed on grounds of
!aches.

The High Court rejected the arguments advanced on behalf of
I
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
H acted in its executive power when the statutory rules were holding the
STATE OF SIKKIM v. D.T. BHUTIA [KULDIP SINGH. J.J 641

field. the two conditions-precedent under Rule 4(3) of the Rules were A
mandatory, there was no material before the State Government to
form an opinion that exigencies of service required the issuance of the ·
1
impugned notification and the Public Service Commission was not
consulted. On these findings the High Court quashed the selection and
the consequent appointments.
B
The learned counsel for the appellant contended that the Rules
came into force in the year 1977 which provided recruitment to the
service through the Public Service Commission. The service consti-
tt led 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
Administrative Service. After its initial constitution no further c
appointments were made to the service under the RQ)es because 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 of officers seeking opportunity to enter. the service. It was
under these circumstances that the cabinet decision to hold the special D
selection was taken and the impugned notification was issued. The
learned counsel vehemently contended that the Rules being in-
operative 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 'Exigencies of Service' was formed by the E
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 selec-
tion illegal. F

The executive power of the State. under Article 162 of the Con-
stitution of India extends to the matters with respect to which the
legislature of the State has power to make laws. The Government
business is conducted under Article 166(3) of the Constitution in
accordance with the Rules of Business made by the Governor. Under G
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.
H
642 SUPREME COURT REPORTS I 1991) 3 S.C.R.

The executive power of the State cannot be exercised in the field
A
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 executive 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
B 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 wer~ justifiable reasons for the
delay in constituting the Commission. The executive power of the
C State being divided among,;! various functionaries under Article 166(3)
of the Constitution of India there is possibility of lack of co-ordination
amongst various limbs of the Government working within their respec-
tive spheres of allocation. The object of regulating the recruitment and
conditions of service by statutory provisions is to rule out arbitrari-
D ness, provide consistency and crystilise the rights of employees con-
cerned. The statutory provisions which are unworkable and in-
operative cannot achieve these objectives. Such provisions are non-est
till made operational. 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 case, the statutory
E 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 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
F notification in exercise of its executive power &nd 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 notification is of no conse-
quence. When the source of power can be validly traced then the State
G action in the exercise of such power cannot be struck down on the
ground that it was labelled 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 constitution of the Sikkim
Public Service Commission, the Chairman of the Commission was
H made to preside over the Selection Committee which took the viva
STATE 0~ SIKKIM v. DC!. BHUTIA [KULDIP SINGH, J.) 643

voce test. There after the merit list was sent to the Public Ser,vice A
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 author-
ity. No infirmity or illegality has been pointed out in the process of
selection or in preparing the merit list.
B
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 allowed.

-