KULDIP SINGH - (1.) THE Sikkim State Civil Service (hereinafter called the'Service') was constituted with effect from 1/07/1977 by the rules, framed under Art. 309 of the Constitution of India, called the Sikkim State Civil Service Rules, 1977 (hereinafter called the 'Rules'). THE question for our consideration in these appeals is whether the special recruitment made by the State Government in the year 1981/ 82 and the consequent appointment of 29 officers to the services is violative of the rules and as such is liable to be quashed.
(2.) THE Sikkim Government by a notification dated 16/09/1981 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 services by an order dated 13/12/1982. Dorjeetshering Bhutia who was working as under Secretary to the Government of Sikkim competed for the selection but failed. He challenged the notification dated 16/09/1981 and the consequent selection by way of a writ petition under Art. 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 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 Art. 136 of the Constitution of India. Hence these two appeals. Before dealing with the points involved in the appeals it is necessary 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 of the service on the enforcement of the Rules. Rule 4 which provides for the method of recruitment to the services is as under: 4. Method of Recruitment to the Service: (1) Recruitment to the service after the publishment of these rules shall be by the following methods, namely:- (a) Competitive Examinations to ba held by the Commission; (b) Selection from among persons serving in connection with the affairs of the State of Sikkim. (2) The proposition of vacancies to be filled in any year in accordance with Cls. (a) and (b) above, shall be 50 : 50 respectively: Provided that the number of persons, recruited under Cl. (b) above, shall not at any time exceed 50 per cent of the total strength of the Service. (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 consulsultation with the Commission, adopt such method of recruitmerit to the Service other than those specified in the said sub-rule, as it may by Notification in this behalf, prescribe.
(3.) 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 R. 4(1)(b). Under RULE 6 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. RULEs 9, 10 and 11 provide for eligibility and other qualifications for admission to the competitive examination. R. 12 states that the decision of the Commission is to the eligibility or otherwise of a candidate 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 connection 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 Selection Committee for recruitment under R. 4(1)(b) is to be presided over by the Chairman of the Public Service Commission and finally the merit list has to be approved by the Public Service Commission. It is thus obvious 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 1/07/1977 when the Rules came into force there was no Public Service Commission in the State. It was for the first time that one Shri K. R. K. Menon was appointed as Chairman. of the Commission by a notification dated 20/11/1981 and he took over as such on 1/01/1982. It is, thus, the admitted position that from 1/07/1977 till 11/01/1982 the Public Service Commission in the State of Sikkim had not been constituted and as such was not functioning.;