JUDGMENT

Sen, J.-Leave granted.

2. This 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. Rule 4 is important for the purpose of this case and provided for the method of recruitment to the Service :-

"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 50:50 respectively :

Provided 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.

(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 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.

3. Two 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.

4. When 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 not 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. A notification was issued on 16th September, 1981 to the following effect :

"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 so require, hereby adopts the method of writt