Civil Appeal No 1801 of 1974
From the Judgment and Order dated 2031974 of the Karnataka High Court in WP No 1956 of 1971
RN Narasimhmurthy Novin Singh and M Veerappa for the Appellants
The appeal is by special leave
Challenge is to the Judgment
of the Karnataka High Court declaring Rule 81 of the Karnataka Excise Sale of Indian  Foreign Liquors Rules 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy col lected within three years prior 281971 when the Writ Petition was filed
Respondent an excise contractor had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 81 of the aforesaid Rules
Respondent filed a writ petition before the Karnataka High Court chal lenging the vires of section 23d of the Mysore Excise Act 1965 hereafter Act  for short and Rule 81 as being beyond the legislative competence ofthe State Legislature
The High Court did not accept the contention of the respondent in regard to section 23 but held that Rule 81 authorising the levy of a licence fee for the retail off shop was without authority of law
Section 23d as far as relevant provides 23
Ways of levying such duties Subject to such Rules regulating the time place and manner as may be prescribed excise duty and countervailing duty under section 22 shall be levied in one or more of the follow ing ways as may be prescribed namely 702 a    aa     b      c     dby fees on licences in respect of manufacture or sale of any excisable articles
 Rule 8 made the rule making powers under the Act interalia provides 8
Fee to be paid 1 The licence fee for the several kinds of licences shall be as follows namely 1      2     3    
The High Court rightly did not accept the challenge to section 23d of the Act
What is authorised under section 23d is imposition of a fee of licence in respect of manufacture or sale of any excisable articles
Rule 81 has obviously gone beyond the enabling provision in the section by requir ing a licence fee to be paid for the premises where the licence shop is located
Such a fee would not have the support of section 23d
It is unnecessary to refer to prece dents for support for this conclusion
It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made
We find no merit in this appeal and it is therefore diismissed
fore dismissed
Respondent did not appear inspite of service of appeal notice
We make no of for costs
GN Appeal dismissed


Summary:
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 State
On the basis of representations from officers who were not being considered for induction into the service at
its initial constitution the Petitioner State decided to afford an opportunity to them
On 16981 the State Government issued a notification for special recruitment and constituted a Selection Commit tee
Written examination cum viva voce test was adopted as the method of recruitment and the Selection Committee 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 1691981 and the consequent selec tion
The main contention raised by him was that the exer cise of power under Rule 43 on the basis of which the said notification was issued was illegal on the ground of exces sive 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 633 634 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 precedent for holding the selection under Rule 43 were satisfied as the necessary opinion to issue the notification was formed on the basis of the reasons con tained in the Cabinet Memorandum dated 1081981 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 the written examination and viva voce test was estopped from challenging the selection
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 Gov ernment and the selected officers preferred the present appeals by special leave
The same contentions as were raised in the High Court were urged before this Court
Allowing the appeals this Court HELD 1
The State Government was justified in issuing the 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 instruc tion direction or notification issued in exercise of the executive power of the State which is contrary to any statu tory provisions is without jurisdiction and is a nullity
In the instant case the Sikkim State Civil Service Rules 1977 though enforced remained unworkable for about five years
The Public Service Commission which was the authori ty to implement the said Rules was not in existence during the said period
There is nothing on 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 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 function aries under Article 1663 of the Constitution of India there is possibility of lack of co ordination amongst var ious limbs of the Government working within their respective spheres of allocation
The 635 object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrari ness provide consistency and 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 statutory provisions could not be operated 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 enforcement of the Rules
It was done to remove stagna tion 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 rule 43 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 4
After the constitution of the Sikkim Public Service Commission 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 authori ty
There could be no infirmity or illegality in the process of selection or in preparing the merit list
642H 643A B