IMPORTANT POINT
Persons who were appointed under very special circumstances cannot claim any special right in matter of promotion or seniority.

JUDGMENT

R.M. LODHA, CJI :

1. It is not necessary to answer the reference for two reasons.

2. In the first place, there is already a three-Judge Bench decision, namely, U.D. Lama and

Ors. Vs. State of Sikkim and Ors., (1997) 1 SCC 111 on the issue referred by the two-Judge Bench. In U.D. Lama, this Court held in paragraphs 20 and 21 of the report as follows :

“20. On the other hand, it cannot be overlooked that the appellants were not appointed by following the regular procedure of appointment. Under Rule 4(1), recruitment could be made to the newly-created State Civil Service by competitive examinations to be held by the Sikkim Public Service Commission. This competition is not confined to persons who are already in government employment. The second method of recruitment is selection from persons "serving in connection with the affairs of the State of Sikkim". In the second category of recruitment, specifically no provision of holding written and viva voce has been laid down. The respondents claim that had the procedure in Rule 4(1)(b) been followed, they would have got into the Service without any examination. But their lawful exception was denied by the failure of the Government to set up a Commission or appoint a Chairman. What would have happened in normal course, did not happen because of the Government's failure. Only because of this, quite contrary to the Rules, written and oral tests were held. This was upheld by this Court principally on the ground of what was described as "peculiar situation" which was created by the absence of a Commission and its Chairman. The selection and appointments made in 1982 were dictated by peculiar circumstances obtaining at that time. The appointments were not made strictly in accordance with the Rules but, as was held by this Court, in exercise of the executive power of the State. It is true that some of the respondents appeared in the tests and did not qualify but there is substance in the contention of the respondents that they were entitled to be appointed even without these tests if Rule 4(1)(b) was followed. They were deprived of this chance. Even for Rule 4(1)(b), the instrumentality of Public Service Commission was necessary for making any appointment. Now that the Public Service Commission has been set up, the State Government has to undo the wrong that was initially done to these employees by subjecting them to tests which was not warranted by Rule 4(1)(b). Therefore, they should not be made to suffer in the matter of seniority or promotion in any way by failure of the State Government to implement the Rules laid down by it. In these circumstances by directing the new recruits to be treated to have been recruited on the day the appellants were recruited, the State Government has not done anything contrary or wrong but has really restored (sic removed) the injustice done to the respondents by the State Government's failure to recruit them into the Service in accordance with Rule 4(1)(b). In fact, the only door that was open to the appellants under the Rules to enter the Service was through Rule 4(1)(b). They might have also joined through open competition but neither of the two steps were taken or could be taken. In these circumstances, the appellants have really tried to steal a march upon the respondents by being successful in the tests which should not have been held in any event. (emphasis supplied)

21. We are of the view that the contention of the respondents must be upheld. The point in dispute has been examined in depth by two Committees set up by the State Government. The earlier judgment of this Court upholding the recruitment of the appellants was because of the failure of the State Government to appoint the State Public Service Commission. As no appointments were being made for a number of years, the Government adopted the device of holding a written test which was not laid down by the Rules. This Court held that under the peculiar circumstances, it was justified. Thi