H. A. RAMANUJA v. STATE OF MYSORE — 1971 DIGILAW 317 (KAR)

NARAYANA PAI, C. J. ( 1 ) OUT of the petitioners in these 29 cases, N. V. Munirathnaiah Setty petitioner in WP. No. 4104 of 1968 and B. Sannahanumaiah-petitioner in wp. No. 1271 of 1969 are reported to have died. As the reliefs claimed are purely personal to the petitioners, these writ petitions do not survive. Both of them are, therefore, dismissed. ( 2 ) THE points for consideration in the rest of the petitions are same. Although many documents and orders and instructions of the State Government issued from time to time have been produced, the actual controversy for consideration and determination falls within a small compass. ( 3 ) THE petitioners were all First Division Clerks working in the state Accounts Department of the erstwhile State of Mysore and became allotted as such to the new State of Mysore. They complain that their juniors according to the final inter-State seniority list of the non-gazetted officers of the State Accounts Department published in April, 1968 were promoted to the next higher post of Accounts Superintendent before they themselves were promoted and without their cases for promotion having been considered. It is also stated that the reason for such non-consideration was that the petitioners had not passed at the relevant period two departmental tests said to have been prescribed as necessary for earning eligibility, viz. , accounts higher and subordinate accounts service examination (SAS. examination ). According to the petitioners, if seniority is taken into account, their cases for promotion with reference to the availability of vacancies to be filled by promotion were due for consideration before the 30th of August, 1963 (the importance of this date will be apparent later ). They further contend that during the period from 1st November, 1956 to 30th August, 1963, the passing of the tests mentioned above could not have been lawfully insisted upon before considering the cases of first division clerks for promotion as Accounts Superintendents. ( 4 ) HENCE, the only point for consideration is, what was the legal position during the said period from 1-11-1956 to 30-8-1963 so far as the necessity of having to pass higher accounts and SAS. ( 4 ) HENCE, the only point for consideration is, what was the legal position during the said period from 1-11-1956 to 30-8-1963 so far as the necessity of having to pass higher accounts and SAS. examination for first division clerks to be eligible for promotion as Superintendents in the state Accounts Department, is concerned, ( 5 ) IT is not disputed that in the erstwhile State of Mysore there were rules binding on the officials working in the State Accounts Department, according to which it was necessary for first division clerks to pass tests mentioned above before their cases for promotion as Superintendents could be considered. Upon integration of territories of various States to constitute the new State of Mysore under the States Re-organisation Act government servants from different integrating areas became allotted, each group being governed by its own set of rules. Although under the states Re-organisation Act the Government of the new State of Mysore was, given the power of adapting the pre-existing rules or making uniform rules, it was not found administratively possible to take immediate action in that regard. As an interim measure, with a view to carry on day-to-day administration, the State government issued certain general instructions, by means of official memorandum bearing No. GAD (S-1) 35-RSR/57 dt. 17th June, 1957. General effect of the same regarding promotion, with which we are now concerned, was that promotion should be made on an ad-hoc or tentative basis, subject to the condition that they were liable to be reviewed in the light of the final inter-State seniority list and in the light of the uniform cadre and recruitment rules when promulgated. ( 6 ) THE Mysore State Accounts Service Cadre and Recruitment Rules, 1959 were promulgated with effect from 26th of May, 1959. According to the same 66 2 3 per cent of the posts of the Superintendents was to be filled by promotion from the cadre of first division clerks. The qualification for promotion was expressed to be '" must have passed the prescribed departmental examinations. According to the same 66 2 3 per cent of the posts of the Superintendents was to be filled by promotion from the cadre of first division clerks. The qualification for promotion was expressed to be '" must have passed the prescribed departmental examinations. " But, no departmental examinations were actually prescribed by any other set of rules under the proviso to Art. 309 of the Constitution promulgated by the Governor; certain administrative instructions appear to have been issued by the State Government from time to time, either by way of their opinion as to the effect of certain decisions of this Court or by way of clarification of doubts raised by Departmental Heads and referred to the Government. ( 7 ) ON 30th August, 1963, the relevant entry prescribing the qualification for promotion of first division clerks to the cadre of Superintendents was amended by substituting the following words: " I Division Clerks must have passed Accounts Higher Examination and SAS. (Parts I and II) Examination. " ( 8 ) AS the Recruitment Rules merely refer to the process of promotion without describing it as promotion by selection the promotion could only be on the basis of seniority-cum-merit as prescribed under Rule 4. (3) (b) of the Mysore State Civil Service (General Recruitment) Rules, 1957. ( 9 ) AS all the petitioners claim that according to seniority their cases for promotion were due for consideration before 30th August, 1963, we do not find it necessary to examine the legal position for the period subsequent thereto. ( 10 ) SO far as the period from 1st November, 1956 to 26th May, 1959 us concerned, the promotions, as already stated, were effected on ad hoc basis and are expressly made liable to be reviewed in accordance with the general Recruitment Rules when made. That such a position was quite in accordance with law is the opinion expressed by this Court in the case of y. Rudrappa v. Divisional Commissioner , (1966) 7 LR. 6737" ( 11 ) HENCE, the promotions made prior thereto have to be reviewed and regularised or tested according to the Recruitment Rules of general application for the first time promulgated on the 26th May 1959. According to the provisions of the said Rules, the promotions had to be subject to some departmental examinations to be prescribed. 6737" ( 11 ) HENCE, the promotions made prior thereto have to be reviewed and regularised or tested according to the Recruitment Rules of general application for the first time promulgated on the 26th May 1959. According to the provisions of the said Rules, the promotions had to be subject to some departmental examinations to be prescribed. But, no such examinations were prescribed under any rule made under the proviso to Art. 309. ( 12 ) THE question is whether in such circumstances it could at all be said that there were any departmental examinations prescribed for purpose of earning eligibility for promotion. ( 13 ) IT has been contended that the departmental instructions or executive orders issued by the State Government must be regarded as amounting to prescribing departmental tests within the meaning of the recruitment Rules mentioned above. Now, the word 'prescribe' is not defined in the Recruitment Rules of 1959. But, in accordance with the normal legal content of such expression, it could only mean " prescribed by competent authority". If the Rules made by the Governor had delegated the power of making such a prescription to the State Government, it would perhaps have been possible to argue that the orders issued by the Government with reference to or prescribing departmental tests were competent and that therefore the tests so prescribed by them are prescribed tests within the meaning of the Recruitment Rules under Art. 309. There is no such delegation. In the absence of any such delegation, the orders issued by the State Government would at the highest be regarded as executive orders under Art. 162 of the Constitution. ( 14 ) SO far as the relative competence or the effectiveness of legislative power is concerned, there cannot be any doubt that the highest authority clothed with the power of making rules regarding recruitment and conditions of service of Government servants is the Legislature of the state, so far as the State Government servants are concerned. If the state Legislature makes any law governing any particular matter falling within the ambit of that expression, then that law alone governs and the governor cannot thereafter make any rules under the proviso to Art. 309 on the said topic or question and the rules, if any, made by him prior thereto will get displaced by the Legislation. If the state Legislature makes any law governing any particular matter falling within the ambit of that expression, then that law alone governs and the governor cannot thereafter make any rules under the proviso to Art. 309 on the said topic or question and the rules, if any, made by him prior thereto will get displaced by the Legislation. ( 15 ) THAT the power of the Governor to make rules under the proviso to Art. 309 is legislative power and is as high as the power of the Legislature itself comprehending the power to make even retrospective legislation is the decision of the Supreme Court in the case of Vadera v. Union of India, AIR. 1969 SC. 118. ( 16 ) WHEN such is the clear identification of the nature of the power exercised by the Governor under the proviso to Art. 309, there could be little doubt that the said power is superior to the executive power of the state under Art. 162 of the Constitution. The executive power exists in respect of every matter on which the State Legislature can legislate. But, once the Legislature makes a law and, as constitutional lawyers say, occupies a field, the executive power of the State under Art. 162 cannot operate except subject to the law already occupying that field. ( 17 ) THE principles aforementioned lead to no conclusion other than that a held occupied by a rule made by the Governor under the proviso to art. 309 excludes the exercise of the executive power of the State under art. 162 to the extent of the field occupied by the rule. ( 18 ) IT has been argued nevertheless that the conditions or the principles on which promotions can be made may be prescribed or detailed by executive orders under Art. 162, Reliance has been placed on the case of Sant Ram Sharma v, State of Rajasthan , AIR. 1967 SC. 1910. particularly the observations contained in paragraph 7 of the judgment at page 1914 of the report. That case, however, did not deal with the question whether the power of the State Government to settle or indicate the principles governing the selection of persons for purposes of promotion included the power of prescribing departmental examinations or other qualifications. 1967 SC. 1910. particularly the observations contained in paragraph 7 of the judgment at page 1914 of the report. That case, however, did not deal with the question whether the power of the State Government to settle or indicate the principles governing the selection of persons for purposes of promotion included the power of prescribing departmental examinations or other qualifications. It will be seen that the prescription of departmental examinations is by way of entry in the column prescribing the minimum qualifications for recruitment. In respect of recruitment to several posts, the Recruitment Rules themselves prescribed the minimum qualification. Promotion is one of the modes of recruitment. Prescription therefore, of a departmental test for earning eligibility for promotion is not different from prescribing the qualification for recruitment to the promotional post. That is a power completely within the rule making power regarding or in respect of promotions. It is not a mere subsidiary matter or detail unconnected with the main topic of promotion or so far remote therefrom as to permit of being prescribed by any authority other than the Governor who has made the rules of recruitment. ( 19 ) WE hold, therefore, that when rules made by the Governor under the proviso to Art. 309 of the Constitution do not themselves prescribe any examination or departmental tests for earning eligibility for promotion to any post dealt with by the said Rules, no rule made by the State Government in exercise of its executive power under Art. 162 can validly prescribe any test. ( 20 ) THE result, therefore, is that in these cases, there were no validly prescribed departmental tests for earning eligibility for promotion from the cadre of First Division Clerks to the cadre of Accounts Superintendents in the State Accounts Department of the State Government during the period 1-11-1956 to 30-8-1963. ( 21 ) THE relative seniority of the petitioners and others has to be ascertained from the final inter-State seniority list and their relative position in the promotional cadres suitably adjusted in the light of what is stated above. It has been brought to our notice that though the final inter State seniority list was published in April, 1968, there have been taken, consequent upon the discovery of certain mistakes therein, further steps by the State Government for correcting the mistakes pursuant to the directions given by this Court in certain other writ petitions. It has been brought to our notice that though the final inter State seniority list was published in April, 1968, there have been taken, consequent upon the discovery of certain mistakes therein, further steps by the State Government for correcting the mistakes pursuant to the directions given by this Court in certain other writ petitions. That, however, makes no difference to the adjustment under the final inter-State seniority list of promotions as has been pointed out in the decision of this Court in the case of Kyate Gowda v. State of Mysore, (1970) 2 Mys. L. J. 407. ( 22 ) WE should also mention that there have been certain proposals by the State Government to bring the Accounts Section of the Public Works Department also under the administrative control of the Controller of State Accounts and the Recruitment Rules of 1959 mentioned above are interpreted as bringing about a merger. That matter is now pending in appeal betore the Supreme Court, which has stayed operation of the order cf this Court holding that there is such a merger. ( 23 ) IN the light of the law declared above, and the circumstances noted above, it is enough to make a direction in these cases that the proper dates on which the petitioners should have been promoted shall be determined by the Controller of State Accounts, one of the respondents fn these cases, in the light of the law declared above and without disobedience to any of the orders of this Court or of the Supreme Court granting stay. We order accordingly. ( 24 ) IT goes without saying on the basis of series of pronouncements already made by this Court that in the event of the petitioners after consideration of their cases being given deemed dates of promotions prior to the dates on which they were actually promoted, they should be given all the benefits consequent thereon including financial benefits. --- *** --- .