U.D. Lama & Ors Vs. The State of Sikkim & Ors  INSC 1500 (26 November 1996)
Suhas C. Sen, K.S. Paripoornan Sen. J.
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.
is important for the purpose of this case and provided for the method of
recruitment to the Service:-
Method of recruitment to the service:
Recruitment to the service after the publishment of these rules shall be by the
following methods, namely:-
Competitive examination to be held by the Commission ;
Selection from among persons serving in connection with the affairs of the
State of Sikkim.
The proportion of vacancies to be filled in any year in accordance with clauses
(a) and (b) above, shall be 50:50 respectively:
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.
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." 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.
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.
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.
notification was issued on 16th September, 1981 to the following effect:
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...
Officers eligible to appear at the written examination-cum-viva voce test.
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. 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.
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
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
method of selection provided under the notification being contrary to the
statutory rules was bad in law.
Rule 4(3) of the Rules was liable to be struck down on the ground of excessive
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."
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
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).
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 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
fact that the State Government purported to act under Rule 4(3) of the Rules in
issuing the impugned notification is of no consequence.
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.
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.
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.
a handful of Civil Service Officers may not be able to 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.
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.
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.
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
view, there is some justification in this grievance.
Committee having decided to give hearing to the Association, should have given
a hearing to the appellants who were vitally interested.
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 State Government
to accept wholly or partially the recommendations or to reject them outright
after considering all aspects of the matter.
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.
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).
"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.
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.
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 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.
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.
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.
Second Committee was of the view that:- "(1) Besides the Sikkim State Civil
Service, 8 other State services had been constituted in the State.
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.
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 have been affected adversely.
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.
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
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.
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.
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 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.
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.
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.
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
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.
these circumstances by directing the new recruits to 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 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.
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.
Pages: 1 2