Supreme Court of India
U.D. LAMA AND OTHERSversusSTATE OF SIKKIM AND OTHERS
- Citation
- 1996 INSC 1382
- Decided
- 26 November 1996
- Disposal
- Dismissed
- Bench
- A M AHMADI
Holding
The Court held that the 1982 appointments were valid under the exceptional circumstances, but the appellants could not claim special seniority, and the State Government's retrospective seniority adjustments were lawful.
Summary
The Sikkim State Civil Service Rules, 1977 required recruitment either by competitive examination or selection of existing gazetted officers, with the Public Service Commission (PSC) as the appointing authority. Because the PSC was not constituted until 1982, the State Government, invoking Rule 4(3), held a written‑exam‑cuma‑viva voce test in 1981 and appointed 29 officers in 1982. Subsequent representations led to the induction of many more officers in 1990, with seniority fixed retrospectively to the 1982 date, prompting the original appointees to challenge the disturbance of their seniority. The Supreme Court held that the 1982 appointments were valid given the "peculiar situation" of the absent PSC, but those officers could not claim any special right to seniority or promotion over later inductees. Consequently, the Court upheld the State Government's power to regularise service and dismissed the appeal.
Issues considered
- The validity of the State Government's notification for selection under Rule 4(3) in the absence of a functioning Public Service Commission.
- Whether the seniority of officers appointed in 1982 can be protected against retrospective seniority granted to later inductees.
- Whether the appellants are entitled to any special right to promotion or seniority arising from their special selection.
- The scope of the State Government's executive power to regularise service under the Rules after the PSC was constituted.
Subjects
public service commissionseniorityrecruitmentservice rulesexecutive powerretrospective appointmentselection procedurestate civil service
Judgment
A U.D. LAMA AND OTHERS
v.
STATE OF SIKKIM AND OTHERS
NOVEMBER 26, 1996
B [A.M. AHMADI, CJ., S.C. SEN AND K.S. PARIPOORNAM, JJ.]
Se1Vice Law :
Sikkim State Civil Rules, 1977-Rule 4 (1)(2)(3)-Rules providing for
C recruitment by three methods-The Government holding written and oral
tests-On the basis of merit appellants were appointetJ-This procedure
depriving many eligible officers-'1ubsequently, Public Se1Vice Commission
constituted and number of eligible officers selected including those who were
selected on the date on which the appellants was recruited-Notifications
issued by the Government regarding their seniority-Retrospective-Whether
D co1rect or not---Held, not illegal and so is valid.
When the Sikkim State Civil Rules, 1977 came into force on 01-07·
1977, there was no Pnblic Service Commission in the State. It was only on
20·11-1981 that a Chairman was appointed who assumed office on 11-01·
E 1982. Under the Circumstances, on 10-08-1981 the Government took a
decision to induct officers who were already working under the Govern·
ment into the service by way of selection. A decision was taken to hold a
written examination and viva voce for selection to the service.
A Notification was issued on 16·09-1961 for this purpose. On the
F basis of written examination as well as viva voce, a merit list was prepared
which was sent to the State Public Service Commission, After obtaining its
approval, 29 officers [appellants herein] were appointed to the service by
Notification dated 13· 12-1982. By another Notification dated 17-04-1984
inter se seniority of those 29 officers were fixed.
G On 27-03-1989, the Sikkim Government General Officers Association
made a representation to the State Government for induction, of the ·
officers belonging to that Association who were not inducted earlier into
service. After the consideration of this representation by a Committee, by
a Notification dated 29· 12-1990 the State Government decided to induct
H suitable officers except those specified therein into the services. It also laid
180
U.D. LAMA v. STATE 181
down a method for selection and determination of seniority. The SikkilQ A
Public Service Commission, thereupon invited applications from eligible
officers. Nearly 166 officers were found eligible and were inducted into
service.
The appellants herein felt aggrieved by the action of the Government
and thought that their seniority in service had nut been protected. Their B
grievance was considered by another committee. The reports of the two
committees were implemented and the seniority list of the employees was
redrawn by the State Government. Hence, appellants filed writ petition
before the High Court which was dismissed. Hence this appeal.
On behalf of the appellants, it was contended that, they were ap-
c
pointed to the service in 1982, and that, those who had failed or had not
appeared in the 1981 tests and were inducted to the service pursuant to
the Notification dated 29-12-1990 could not be retrospectively promoted to
disturb the seniority of the appellants in the service.
D
Dismissing the appeal, this Court
HELD : 1.1. The only door that was open to the appellants under the
Rules to enter the service was through Rule 4(l)(b) of Sikkim State Civil
Rules, 1977. They might have also joined through competition but neither
of the two steps were taken or could be taken. [192-H] E
1.2. Jn the instant case the new recruits shall be treated to have been
recruited on the day the appellants 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 Governmenfs failure to
recruit them into the service in accordance with Rule 4 (i)(b). [192-G] F
2.1. The induction of these 29 officers [appellants] 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 G
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). [188-D-E]
2.2. The point in dispute has been examined in depth by two commit-
tees set up by the State Government. The earlier judgement of this court H
182 SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.
A upholding the recruitment of the appellants was because of the failure of the
State Government to appoint the State Public Service Commission. [193-B]
2.3. The appellants who were appointed under very special cir-
cumstances cannot claim any special right in the matter or promotion or
seniority. It was not the fault or the respondents that appointment accord-
B ing to rules could not be made in time. [193-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14872 of
1996.
From the Judgment and Order dated 20.9.95 of the Sikkim High
C Court in C.W.P. No. 21 of 1993.
Barish N. Salve and Ajit Kumar Sinha for the Appellants.
,.
S. Wangdi, N. Ganpathy, AK. Srivastava, B. Chahar and Ashok
Mathur for the Respondents.
D
The Judgment of the Court was delivered by :
SEN, J. Leave granted.
This case has a long history. The dispute started when the Sikkim
E 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
F 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 recrnitment to the service : (1) Recruitment to the
service after the publishment of these rules shall be by the following
methods, namely :-
G
(a) Competitive examinations to be held by the Commission;
(b) Selection from among persons serving in connection with
the affairs of the State of Sikkim.
H (2) The proportion of vacancies to be filled in any year in
U.D. lAMAv. SfATE[SEN,J.] 183
accordance with clauses (a) and (b) above, shall be 50:50 respec- A
tively:
Provided that the number of persons, recruited uoder clause
(b) above, shall not at any time exceed 50 per cent of the total
strength of the service.
B
(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 behalf,
prescribe. 11
c
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 D
Public Service Commission for its final approval. Rule 8 laid down that the
competitive examination for recruitment to the Sservice was to be con-·
ducted by the Sikkim Public Service Commission. Rules 9, 10 and 11
provided for eligibility and other qualifications for admission to the com-
petitive examination. Rule 12 stated that the decision of the Commission E
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) com-
petitive examination and (2) selection from persons serving in the State of
Sikkim. In both the cases, Sikkim Public Service Commission had to make F
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 G
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 H
184 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
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 not 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
B 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
c 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 a 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
D seniority among the selected officers ..... .
x x x x x x x x x
3. Officers eligible to appear at the written examination-cum-viva voce
test.
E
(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 Sikkim in the establishment Department No.
F 350/GEN/EST dated February 3, 1978 shall be eligible to appear
at the written examination-cum-viva-voce test."
A large number of persons applied, on the basis of the written
examination as well as viva voce test, a merit list was prepared which was
G 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
H writ petition before the Sikkim High Court on the following grounds:
U.D. LAMAv. STATE[SEN,J.] 185
"l. The exercise of power, in issuing the impugned notification A
under Rule 4~) 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. B
3. Rule 4(3) of the Rules was liable to be struck down on the
ground of excessive relegation.
4. The Selection Committee was changed from time to time so C
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 thls Court was that the Service constituted under the D
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
E
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 F
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 im- G
pugned 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 perso:is to
enter the service. In our view the State Government was justified
in issuing the impugned notification in exercise of, its executive
power ... H
186 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A The f~ct 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."
B
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 notifica-
tion, i.e., 13th December, 1982. By another notification dated 17.4.1984,
inter-se seniority of these 29 officers was fixed.
c
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 Officer's Association on 27th March, 1989 to the State Govern-
ment for induction of the officers belonging to their Association who were
D 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
E 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 status and opportunity for all could be maintained.
F ·'3. We also express our deep dissatisfaction regarding the promo-
tion of officers of Civil Service Cadre within a short tel\1lft oJ five
years. Those officers who have been inducted in Civil Service were
promoted to the Grade 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
G 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 run the
H administration of the State."
U.D. LAMAv. STATE [SEN,J.] 187
A five-member Committee under the Chairmanship of Justice (Brig.) A
· D.M. Sen was set up to consider the representation. The terms ofreference
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, B
1977.
2. To examine whether all those officers of the gazetted grade
already serving in the government prior to 1977 and those ap-
pointed to gazetted grade from 1977 and date prior to the appoint- c
ment 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/princip!e for induction of serving gazetted
officers into the Sikkim State Civil Service and a method for D
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." E
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 Com-
mittee, the Committee did not think it fit to give them a hearing. In our F
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 Com- G
mittee for being heard. They have, however, taken a point that the notifica-
tion 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 H
188 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A 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
B Committee adequately took into consideration the objections of the writ
petitioners. Furthermore, the two Committees only made recommenda-
tions to the State Government. It was for the State Government to accept
wholly or partially the recommendations or to reject them outright after
considering all aspects of the matter.
c
The Committee was, inter alia, of the view that -
"17. The induction of these 29 officers, however, validly and proper-
ly 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
D 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.
E 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
F 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 a written (sic.) would not have been adopted.
G
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)
H and Rule 5(3) and (4)."
U.D. LAMAv. STATE[SEN,J.] 189
The recommendations of the Committee were accepted by the A
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 Com-
mission, thereupon, invited applications from eligible officers. 166 officers B
were found eligible and were inducted into the Service. The existing
officers 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 question of seniority. The
Committee comprised of six officers headed by Shri K.C. Pradhan, Advisor C
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. D
The question of her seniority should not have been decided by the Com-
mittee of which her husband was a member. The Advisor has not been
made a party to the Special Leave Petition and had no opportunity 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 E
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 F
that this point cannot be allowed to be urged at this belated stage.
This Second Committee was of the view that -
"(i) Besides the Sikkim State Civil Service, 8 other State services G
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 H
190 SUPREME COURT REPORTS (1996) SUPP. 9 S.C.R.
A should be encadred to the State Civil Service as in the case of other
organised services and this should be done as per the principles
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
B 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
c 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
have been affected adversely.
(iii) In the matter of service conditions relating to promotions,
D postings, 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 con-
tinue as this will create not only confusion in the management of
E 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
F 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
G 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.
H The reports of the two Committees were implemented and the
U.D. LAMAv. STATE [SEN,J.] 191
seniority list of the employees was redrawn. The grievance of the appellants A
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 appellan·.s got into the Service on
merit. Those who failed to get into the service or those who did not appear B
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 C
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 D
Service, the appellants were given promotion on completion of qualifying
service in each rank. At the time the promotion was given, the respondents
belonged to a different service and could not in any way feel aggrieved by
the promotions given in the Service to which the appellants belonged.
Another point that has been urged was that after initial constitution E
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. F
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. G
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. H
192 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A On the other hand, it cannot be overlooked that the appellants were
not appointed by following lhe 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
B in Government employment. The second method of recruitment is selec-
tion 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 expec-
C · talion 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
D "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 wifo. 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
E 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 Govern-
F ment 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 ). There-
fore, 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 w~re
G 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 appellant> under
the Rules to enter the Service was through Rule 4(1)(b). The,· i.··s'•t ha~e
H also joined through open competition but neither of the two steps were
U.D.LAMAv. STATE[SEN,J.] 193
taken or could be taken. In these circumstances, the appellants have really A
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 Commit·
tees sei up by the State Government. The earlier judgment of this Court B
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 C
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 respondent that appointments according to rules
could not be made in time. Taking an overall view of the matter, we are of D
the opinion that the High Court has come to a correct decision. The appea1
is, therefore, dismissed with no order as to costs.
P.T.C. Appeal dismissed.
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