LexSTATE OF SIKKIM versus DORJEE TSHERING BHUTIA AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
STATE OF SIKKIM v. DORJEE TSHERING BHUTIA AND ORS. AUGUST 20,1991 [KCLDIP SINGH AND K. RAMASWAMY, JJ.] 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. A B 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 A B 634 SUPREME COURT REPORTS [1991] 3 S.C.R. 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 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 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.
Excerpt shown. Read the full judgment & AI analysis in Lexace.