vil Appeal Nos
 5061 62 of 1985
From the Judgment and Order dated 249
1985 of the Sikkim High Court in WP No 1 of 1983
K Swami T Topgay A Subba Rao NP B Parthasarthi and Pari jar Sinha for the appearing parties
The Judgment of the Court was delivered by KULDIP SINGH J
The Sikkim State Civil Service here inafter called the Service  was constituted with effect from July 1 1977 by the rules framed under article 309 of the Constitution of India called the Sikkim State Civil Service Rules 1977 hereinafter called the 636 Rules 
The question for our consideration in these ap peals is whether the special recruitment made by the State Government in the year 198182 and the consequent appoint ment of 29 officers to the service is violative of the rules and as such is liable to be quashed
The Sikkim Government by a notification dated September 16 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 service by an order dated December 13 1982
Dorjee Tshering Bhutia who was working as Under Secre tary to the Government of Sikkim competed for the selection but failed
He challenged the notification dated September 16 1981 and the consequent selection by way of a writ petition under Article 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 Article 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 pro vides for the method of recruitment to the service 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 be held by the Commission b Selection from among persons serving in connection with the affairs of the State of Sikkim
2 The proportion of vacancies to be filled in any year in accordance with clauses a and b above shall be 5050 respectively 637 Provided that the number of persons recruited under ClauSe b above shall not at any time exceed 50 percent of the total strength of the Service 3Notwithstanding anything contained in sub rule I if in the opinion of the Government exigencies of the service So re quire 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 provides for the constitution of a Selection Committee consisting of Chairman Sikkim Public Service Commission and three other officers to make recruitment under Rule 41b
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
Rule 9 10 and 11 provide for eligibili ty and other qualifications for admission to the competitive examination
Rule 12 states that the decision of the Commis sion as 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 com petitive 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 Rule 41b is to be pre sided 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 July 1 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 KRK Menon was appointed as chairman Of the Commission by a notifica tion dated November 20
1981 and he took over as such on January 11 1982
It is thus the admitted position that from July 1 1977 till January 11 1982 the Public Service Commission in the State of Sikkim hadnot been constituted and as such was not functioning
638 On August 10 1981 a Cabinet Memorandum was issued by the Sikkim Government suggesting the necessity of inducting officers working with the Sikkim Government into the service by way of selection
The reasons for holding the said selec tion as stated in the memorandum are as under
Officers who had not been considered for induction into the Sikkim State Civil Service at its initial constitution in 1977 have been representing from time to time for induction into the Sikkim State Civil Service
Presently these Officers have been grouped in the cate gory of GENERAL 
In order to give them chance for appointment to the State Civil Service the Government may consider the modalities for selection and the determination of seniority of the officers as proposed in the draft Notification and the draft order enclosed
The following salient points are submitted for the consideration of the cabi net
 The Memorandum was considered by the Cabinet in its meeting held on September 1 1981 and it was decided to hold a written examination and viva voce test for selection to the Service
Consequently the notification dated September 16 1981 was issued the operative part of which is repro duced hereunder NOTIFICATION 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 as require hereby adopts the method written examination cum viva voce test as a method of recruitment to the service for that purpose constitutes a Selec tion Committee and prescribe the conditions of eligibility and regulation of seniority among the selected officers as follows 1
Constitution of the Selection Committee
There shall be a Selection Committee comprising of the following officers namely 1
Chief Secretary Chairman 2
Home Secretary Member 639 3
Development Commissioner Member 4
Finance Secretary Member 5
Establishment Secretary Member The Deputy Secretary in the Estab lishment Department shall act as the Secretary to the Selection Committee
Functions of the Selection Committee The Selection Committee shall arrange to hold a written examination cum viva voce test for the eligible officers with a view to assess their suitability for appointment to Service
Provided that any Officer who fails to obtain forty per cent of the total marks at the written examination cum viva voce test shall not be considered for appointment to Service
Officers eligible to appear at the written Examination cum viva voce test 1 Every person who on the 1st clay of August 1981 is a gazetted officer under the Government of Sikkim not possessing the technical qualifica tions as specified in the Notification Of the Government of Sikkim in the Establishment Department No 350GENEST dated 3rd Feb 1978 shall be eligible to appear at the Writ ten examination cum viva voce test
By a subsequent notification dated April 24 1982 the constitution of the Selection Committee was changed and the Chairman Sikkim Public Service Commission was made to preside over the Interview Board
The merit list prepared as a result of selection was sent to the Sikkim Public Service Commission for approval and thereafter 29 officers were appointed to the service by a notification dated December 13 1982
Dorjee Bhutia challenged the notification dated Septem ber 16 1981 and the consequent selection before the Sikkim High Court on the following grounds 1
The exercise of power in issuing the impugned notifica tion 640 under Rule 43 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
The method of selection provided under the notification being contrary to the statutory rules was bad in law
Rule 43 of the Rules was liable to be struck down on the ground of excessive delegation
The Selection Committee was changed from time to time so much so that the Committee which took the written examina tion was different from the one which took the viva voce test
The learned Advocate General appearing for the State of Sikkim raised the following points before the High Court 1
The rules though enforced were inoperative due to nonexistence of Public Service Commission in the State of Sikkim
The Government could therefore issue the notifica tion in exercise of its executive power under Article 162 of the Constitution of India
The conditions precedent for holding the selection under Rule 43 were satisfied
Necessary opinion to issue the impugned notification was formed on the basis of the reasons contained in the Cabinet Memorandum dated August 10 1981
The High Court could not have gone into the sufficiency of reasons
Consultation with the Public Service Commission under the Rules was directory
In any case there being no Commission in existence it was not possible to do so
Dorjee Bhutia having appeared in the written examination and the viva voce test was estopped from challenging the selection
The writ petition was liable to be dismissed on grounds of laches
The High Court rejected the arguments advanced on behalf of the State of Sikkim
It was held by the High Court that the impugned notification was violative of the Rules the Government could not have acted in its executive power when the statutory rules were holding the 641 field the two conditions precedent under Rule 43 of the Rules were mandatory there was no material before the
State Government to form an opinion that exigencies of service required the issuance of the impugned notification and the Public ServiCe Commission was not consulted
On these findings the High Court quashed the selection and the consequent appointments
The learned counsel for the appellant contended that the Rules came into force in the year 1977 which provided re cruitment to the service through the Public Service Commis sion
The service constituted under the Rules consisted of the top ranking posts in the State Service
It also served as a feeder cadre for appointments to the Indian Administra tive Service
After its initial
constitution no further appointments were made to the service under the Rules be cause in the absence of the Public Service Commission there was no mechanism to operate the Rules
According to him when recruitment to the service was not made for a long period there were representations from number off officers seeking opportunity to enter the service
It was under these circum stances that the cabinet decision to hold the special selec tion was taken and the impugned notification was issued
The learned counsel vehemently contended that the Rules being inoperative the State Government was within its executive power to issue the notification
He also justified the Government action under Rule 43 of the Rules
According to him the necessary opinion regarding existence of Ex igencies of Service  was formed by the Government on the basis of the reasons contained in the Cabinet Memorandum quoted above and the High Court could not have gone into the sufficiency of the said reasons
He further argued that the requirement of consultation with the Public Service Commission was directory and its non compliance could not have rendered the selection illegal
The executive power of the State under Article 162 of the Constitution of India extends to the matters with re spect to which the legislature of the State has power to make laws
The Government business is conducted under Arti cle 1663 of the Constitution in accordance with the Rules of Business made by the Governor
Under the said Rules the Government business is divided amongst the ministers and specific functions are allocated to different ministries
Each ministry can therefore issue orders or notifications in respect of the functions which have been allocated to it under the Rules of Business
642 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 in exercise of the execu tive power of the State which is contrary to any statutory provisions is without jurisdiction and is a nullity
But in this case we are faced with a peculiar situation
The Rules though enforced remained unworkable for about five years
The Public Service Commission which was the authority to implement the Rules was not in existence during the said period
There is nothing on the 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 we assume 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 object of regulating the recruit ment and conditions of Service by statutory provisions is to rule out arbitrariness provide consistency and crystilise the rights of employees concerned
The statutory provision s which are unworkable and inoperative cannot achieve these objectives
Such provisions are non est till made operation al
It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field
When in a peculiar situation as inthe present ease 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 enforce ment 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 execu tive power and the High Court fell into error in quashing the same
The fact that the State Government purported to act under rule 43 of the Rules in issuing the impugned notifi cation 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 la belled under a different provision
The view we have taken it is not necessary to go into any other question
It is not disputed that after the con stitution of the Sikkim Public Service Commission the Chairman of the Commission was made to preside over the Selection Committee which took the viva 643 voce test
There after the merit list was sent to the Public Service Commission and the appointment of 29 appellants in the year 1982 was made with the approval of the Commission
The selection was thus finally approved by the Commission which is an independent authority
No infirmity or illegali ty has been pointed out in the process of selection or in preparing the merit list
We therefore allow the appeals set aside the judgment of the High Court and dismiss the writ petition by Dorjee Tshering Bhutia
There shall be no order as to costs
GN Appeals al lowed


Summary:
The appellant and Dr Jain respondent No 4 completed their MBBS course in the years 1983 87
from Gandhi Medical College Bhopal
While Dr Jain had been admitted into that course in the Gandhi Medical College Bhopal after he had passed the entrance test the appellant first sought admission to MBBS course in the MS Ramayya Medical College Bangalore after paying the capitation fee and after completing the first year of the course in that Col lege she got herself transferred in 1984 to the Gandhi Medical College Bhopal with the approval of the State Government and with no objection from the Ramayya College Bangalore
After passing MBBS both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989
Both of them then applied for a single seat in the Master s Degree MD course in Radiology at Gandhi Medical College Bhopal
The appellant having secured higher marks got admission to this seat in preference to Dr Jain
Dr Jain thereupon challenged the admission of the appellant by means of a writ petition before the High Court on the ground inter alia that the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and since the very admission of the appellant to the MBBS course degree in the Bhopal College was invalid she could not at all have been considered for admission to the MD course which was available only to the institutional candidates
The High Court allowed the writ petition quashed the admission of the appellant and directed that Dr Jain be admitted to that seat
Hence this appeal by the appellant
Allowing the appeal this Court HELD The validity of an order for transfer may be chal lenged 430 contemperaneonsly by a third party whose claim for admission or transfer is superseded by such order but cannot be al lowed to be challenged by a third party because he finds in retrospect at a future point of time that it has affected his interests as a result of subsequent events
437E The order of the State of Madhya Pradesh permitting the transfer of the appellant cannot be struck down as void
There has been some irregularity hut in the circumstances in which it was passed it was one within the competence of the State Government
437F There is the need to avoid disturbing settled issues which affect the life and career of an individual after a lapse of time or after the interposition of further events as a result of which he has rightly developed a sense of security
441B In the instant case the merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same hatch
The latter did show the appellant to have obtained more marks than Dr Jain and in this sense was adverse to his interests
The omis sion of Dr Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all
Dr Jain should therefore be barred on equitable consideration from challenging the order of merit at the present stage
441G