Research › Browse › Judgment

Karnataka High Court · body

1971 DIGILAW 84 (KAR)

K. HANUMANTHA RAO v. STATE OF MYSORE

1971-03-15

NARAYANA PAI, VENKATASWAMI

body1971
NARAYANA PAI, C. J. ( 1 ) THE petitioners were hereditary Village Officers designated Karnams in different villages of Bellary District. ( 2 ) WHEN the Supreme Court in the case of Dasaratha Rama Rao v. State of A. P. , AIR. 1961 SC. 564 declared that application of hereditary principle would be an infringement of Article 16 of the Constitution, it became necessary for the State Government to take steps to make other provision in accordance with law for appointment of Village Officers. The details of statutory and other provisions made in that regard and the course of litigation consequent thereon are found stated in the judgment of this court in C. S. Narasimha Murthy v. State of Mysore, (1968) 2 Mys. L. J. 366. A brief reference thereto is also made in the order of this Court dated the 13th of january 1971 in the case of Krishna Rao Deshpande W. P. 532 of 1969 and connected cases. ( 3 ) FOR the disposal of these cases, it is enough to state that in the first instance there were promulgated on the 29th of November 1961 rules called the Mysore General Services (Revenue Subordinate Branch) Village accountants (Cadre and Recruitment) Rules, 1961. Rule 10 thereof providing for initial recruitment stated that recruitment for the first time in respect of the posts of Village Accountants shall be made partly from persons already holding the posts of Village Officers and partly by direct recruitment. A proviso appended to the first clause of the rules made certain relaxation or concession in favour of persons already holding posts of Village Officers, in respect of age and educational qualifications, in the event of there being any deficiency in the number of qualified persons even after advertising the vacancies twice over. ( 4 ) ON the 25th of March 1970, a fresh set of rules called the Mysore general Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970, was promulgated. The said rules repealed the previous rules of 1961. In the new rules, relaxation in favour of old village Officers was less generous than the one provided under the old rules. ( 4 ) ON the 25th of March 1970, a fresh set of rules called the Mysore general Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970, was promulgated. The said rules repealed the previous rules of 1961. In the new rules, relaxation in favour of old village Officers was less generous than the one provided under the old rules. ( 5 ) THE present petitioners were among the old Village Officers who sought recruitment under the first set of rules of 1961, In their case the initial steps towards recruitment did not progress beyond the fact that the Tahsildar of the locality concerned included their names in a report made by him to the Deputy Commissioner of the District giving the particulars of Village Officers proposed for being recruited as Village accountants. The factual position seems to be that if the old rules of 1961 had continued, the petitioners would have been able to secure the benefit of the relaxation in respect of age and educational qualifications provided under the said rules, but would be beyond the scope of the relaxation under the new rules of 1970. The result is that they are not now persons who have the necessary eligibility both in respect of age as well as educational qualification for being recruited as Village Accountants. ( 6 ) IT is the said circumstance that furnishes the cause for the presentation of these writ petitions, in which the main prayers are for a declaration of invalidity of the Mysore General Services (Revenue Subordinate branch) Village Accountants (Recruitment) Rules, 1970 and for the issue of an appropriate writ for securing the appointment of the petitioners as Village Accountants. ( 7 ) THE only ground in support of the claim for appointment is the inclusion of the names of the petitioners in the list prepared by the tahsildar and sent up to the Deputy Commissioner, of persons proposed for recruitment as Village Accountants already referred to. ( 7 ) THE only ground in support of the claim for appointment is the inclusion of the names of the petitioners in the list prepared by the tahsildar and sent up to the Deputy Commissioner, of persons proposed for recruitment as Village Accountants already referred to. The said list is of no assistance whatever to the petitioners because the proviso to rule 11 of the Rules 1970 repealing the previous rules of 1961 saves only actual appointments finally made under the previous rules and further provides that a list of persons selected and approved by the Divisional commissioner under the repealed rules shall be deemed to be a list of persons selected and approved by the Divisional Commissioner under the orresponding rule of the new Rules. The petitioners were neither finally appointed under the 1961 rules nor is the list depended upon by them a list of persons selected and approved by the Divisional Commissioner. Hence this part of the prayer cannot, in any event, be granted. ( 8 ) THE only substantial question for consideration therefore is whether the petitioners are right in their contention that the rules of 1970 are unconstitutional and therefore invalid. ( 9 ) THE first ground on which the said contention is sought to be supported is that the rules of 1961 having been promulgated by the Governor under the proviso to Art. 309 of the Constitution, they could not be repealed by the rules of 1970 purporting to have been made in exercise of the powers conferred on the State Government by Ss. 16 and 197 of the Mysore Land Revenue Act, 1964. The argument in this regard is two fold: Firstly, that the rules under the proviso to Art. 309 can be repealed only by an Act of appropriate Legislature and not by any rules, and secondly, that the topic of recruitment of Village Accountants is not within the scope of the rule making power either under S. 16 or under S. 197 of the Mysore Land Revenue Act, 1964. ( 10 ) THE main provision of Art. 309 is to the effect that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. ( 10 ) THE main provision of Art. 309 is to the effect that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Under the proviso, it is competent for the president in the case of Central services and the Governor in the case of state services to make rules regulating recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under the Article and any rules so made (by the Governor) shall have effect subject to the provisions of any such Act. ' ( 11 ) MR. Venkanna learned Counsel for the petitioner , relies not only on the language of the proviso but also on the following observation contained in the judgment of the Supreme Court in the case of B. S. Vadera v. Union of India, AIR 1969 SC 118 , in paragraph 24 at page 124 of the report :-"it is also significant to note that the proviso to Art. 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act'. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in. by any limitations. The rules, which have to be 'subject to the provisions of the Constitution', shall have effect, 'subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Art. 309. the rules, framed under the proviso, will have effect, subject to that Act; but, in the absence of any Act, of the Appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. " ( 12 ) THE language of the proviso, in our opinion, does not support the contention that the rules made by the Governor under the proviso to Art. 309 of the Constitution can be repealed only by an express provision in an Act made by the appropriate Legislature. All that the proviso says is that the Governor can make rules until provision in that behalf is made by or under an Act and that rules, if any, made shall have effect subject to the provisions of any such Act. The Supreme Court by stating that the rules are subject to the Act made by an appropriate legislature, do not also say that the subjection is only to an express or direct provision or the statement contained in the statute itself. ( 13 ) THE substance of the matter is that according to Art. 309, the power to regulate recruitment and conditions of service in the case of public services and posts is that of the appropriate Legislature. Until the legislature exercises the said power which is referred to in the proviso by the expression 'until provision in that behalf is made by or under an act of the appropriate Legislature', the Governor, in the case of State services, is empowered to make rules for the same purpose. By referring to the exercise of Legislative power as a provision made by or under an act, the proviso to Art. 309 undoubtedly contemplates not merely a direct provision contained in the Statute itself but also a provision made under the Statute, which undoubtedly refers to some subsidiary legislation authorised by the Statute. Hence the rules competently made under a Statute should be regarded as actual exercise of Legislative power under a valid delegation made by the Legislature by making provision therefor in one or more of its sections. ( 14 ) THE Constitutional doctrine involved is the one commonly referred to as the doctrine of occupied field. By conferring power on the appropriate Legislature to regulate the recruitment and conditions of service what Art. 309 does is to place within the Legislative competence of the appropriate Legislature a specific topic of legislation. The initial power is actually that of the Legislature itself. By conferring power on the appropriate Legislature to regulate the recruitment and conditions of service what Art. 309 does is to place within the Legislative competence of the appropriate Legislature a specific topic of legislation. The initial power is actually that of the Legislature itself. If and so long as that field of legislation is not occupied by an Act of the appropriate Legislature or a set of rules competently made under the power conferred by the act, the rules made by the Governor may occupy the said field. If the field is already occupied by the Legislature, then the Governor's rules cannot enter that field If the Governor's rules occupy the field in the first instance in the absence of any Act or rules made under the Act, the proviso states that the rules shall yield place to any provision made by or under an Act of the appropriate Legislature. Bv stating that rules made by the Governor shall have effect subject to the provisions of the act, the proviso indicates that the Governor's rules must yield place to the Statute or the rules made under the Statute. If, on the same detail, there is a rule made by the Governor followed by a rule subsequently made under an Act of the appropriate Legislature find there is conflict between the two the former is rendered ineffective. That is a case of implied repeal. If an implied repeal can be brought about either by statute itself or rule competently made under the Statute, than it follows logically that an express repeal of a rule or rules made by the Governor can be brought about by the Statute itself or rules competently made under the Statute ( 15 ) HENCE the next contention is that the rules of 1970 are not within the scope of the rule making power either under S, 16 or under S. 197 of the Mysore Land Revenue Act. The part of S. 16 which is relevant to the present purpose is sub-section (1) which reads as follows:-"16. Village Accountant. The part of S. 16 which is relevant to the present purpose is sub-section (1) which reads as follows:-"16. Village Accountant. (1) The Deputy Commissioner may, subject to the general orders of the State Government and the Divisionial commissioner, appoint a Village Accountant for a Village or group of villages and he shall perform all the duties of a Village accountant prescribed in or under this Act or in or under any other law for the time being in force, and shall hold office under and be governed by such rules as may be prescribed. "the relevant parts of S. 197 are sub-sec. (1) and clauses (a) and (b) of sub-section (2):"197. Power of State Goverment to make rules.- (1) The state Government may, by notification and after previous publication, make rules, not inconsistent with the provisions of this Act, to carry out the purposes and objects thereof and for the guidance of all persons in matters connected with the enforcement of this Act or in cases not expressly provided for thereunder. (2) In particular and without prejudice to the generality of the foregoing power, such rules may be made- (a) regulating the appointment of Revenue Officers and Survey officers and the exercise by them of their powers; (b) prescribing the terms and conditions subject to which a village Accountant holds office under Section 16; " ( 16 ) THE central point in the argument is that so far as the power of making rules regulating appointment is concerned, the same is limited to the Revenue Officers and Survey Officers but that a Village Accoun- tant is not an officer at all much less a Revenue Officer. In support of this suggestion, reliance is placed on the definition of "revenue Officer" given in clause (24) of S. 2 of the Act and that of Village Accountant in clause (39) of the same Section. These definitions are:"'revenue Officer' means every officer of any rank whatsoever appointed under or employed for the purposes of this Act; 'village Accountant' means a Village Accountant appointed, or deemed to be appointed under Section 16; "it is said that the very fact that there are two definitions separately given we must take it that a Village Accountant is not an officer at all. Whatever may be the reason for giving two definitions, we find it difficult to agree that a Village Accountant is totally outside the definition of Revenue officer. It will be seen that under the said definition every officer of any rank whatsoever appointed under or employed for purposes of the Act is a Revenue Officer. Chapter II of the Act which deals wtih the topic of constitution and powers of the Revenue Officers refers to various officers in the sections comprised in it. After stating in S. 3 that there should be a Chief Controlling Authority in revenue matters and the powers of the Government regarding dividing the State into various revenue Divisions in Ss. 4, 5 and 6, the Chapter refers to Divisional Commissioners in S. 7. Deputy Commissioners in S. 8, Special Deputy Commissioners in S. 9, Assistant Commissioners in S. 10, Tahsildars in Ss. 11. 12 and 13, Revenue Inspectors in Sec. 15. Village Accountants in Ss. 16 and 17, Survey Officers in S. 18 and then states in S. 19 that the State government may appoint surh other officers as may be necessary to give effect to the provisions of the Act Prima facie the Statute regards all the persons mentioned earlier including Village Accountants as officers. It is, however, stated that in Ss. 22 and 23 dealing with the power of the deputy Commissioner to recover possession of papers, money or property, no reference is made to Village Accountants but to Revenue Officer or any person and that therefore, it is clear, the use of the expression "any person" alongside the expression ''revenue Officer" is intended to cover the case of a Village Accountant who does not fall within the scope of the description 'revenue Officer' We fail to understand whv such an inference is necessary. The sections refer to all officers actually in service as Revenue Officers and a retired or former Revenue Officer by the expression "any person formerly employed as such". A plain reading of the section makes it clear that the expression 'revenue Officer' is comprehensive and the classification in the section is of Revenue Oficers actually in service and these that are no longer in service. ( 17 ) THERE is no definition of the term 'officer' in the Land Revenue act. A plain reading of the section makes it clear that the expression 'revenue Officer' is comprehensive and the classification in the section is of Revenue Oficers actually in service and these that are no longer in service. ( 17 ) THERE is no definition of the term 'officer' in the Land Revenue act. It has therefore been suggested that we should take the natural meaning of the expression for guidance; the argument is that according to the said natural meaning no person can be called an officer unless he exercises some powers of supervision over others. We do not agree that exercise of supervision should invariably be regarded as an essential ingredient of the position of an officer. Such an idea is relevant to and has become more or less settled notion in certain matters covered or governed by industrial law which makes a difference between an officer and a worker. No such idea need necessarily be imported into the common dictionary meaning of the word officer. According to the dictionary meaning "office" is a post or position, particularly under the State or government, to which duties, powers or authority are or is attached, and an officer is one who holds such a position or post. From that point of view, there can be little doubt that in the absence of a definition in the act limiting the application of the natural meaning, Village Accountant would be an officer and as already hinted out by us the general scheme of chapter II of the Land Revenue Act also points to the same conclusion. ( 18 ) MR. Venkanna has referred to a judgment of the Allahabad high Court in Sri Ram Autar Agarwal v. District Co-operative Sugarcane supply Society, Ltd. , AIR. 1960 All. 500. But in that case the Court was discussing the position with special reference to the definition of the term 'officer' contained in S. 2 (d) of the Co-operative Societies Act governing the case according to which an officer could only be a person empowered under the rules or bye-laws of the Society to give directions in regard to the business of the Society. The said ruling therefore is of no assistance to Mr. Venkanna. We are not, therefore, persuaded that clauses (a) and (b) of sub-sec. (2) of S. 197 can rightly be interpreted in the way Mr. Venkanna wants us to do. The said ruling therefore is of no assistance to Mr. Venkanna. We are not, therefore, persuaded that clauses (a) and (b) of sub-sec. (2) of S. 197 can rightly be interpreted in the way Mr. Venkanna wants us to do. ( 19 ) APART from that, what is of greater importance is that it is the undoubted principle that the ambit of rule making power is to be gathered from the main provision, in this case the first sub-section of S. 197, and the ambit so ascertained cannot be cut down by the enumeration of topics in sub-sec. (2 ). Under the first sub-section, the State Government has full power to make all such rules as may be necessary to carry out the purpose and objects of the Act. The appointment of officers including the Village Accountants is undoubtedly one of the purposes of the act necessary for carrying out its objects ( 20 ) EVEN so Mr. Venkanna says that the conferment of this power is in excess of the permissible limits of delegation became the Statute has not declared its policy regarding recruitment and has given no guidance whatever in regard to the making of rules for recruitment. It appears to us that the argument is extravagant and is unsustainable. ( 21 ) SO far as the policy of recruitment to public services is concerned, the same is governed by the principles stated in the Constitution and by the well recognised and well known principles that the appointment to public offices must be on the basis of suitability and integrity. The rule making authority is no less than the State Government itself, which can and should be credted with the knowledge of the relevant constitutional provisions and the principles stated above and can be expected to frame rules consistently with the same and with a view to recruit persons found suitable for the various offices under the Revenue act in the light of the powers and duties conferred and imposed upon them by the Statute. ( 22 ) WE, therefore, reject the contention that the sections conterring the rule making power suffer from the vice of an excessive delegation of Legislative power. ( 23 ) LASTLY, it is contended that rulos are descriminatory because the content of the relaxation in favour of old Village Officers is different under the two sets of rules. ( 22 ) WE, therefore, reject the contention that the sections conterring the rule making power suffer from the vice of an excessive delegation of Legislative power. ( 23 ) LASTLY, it is contended that rulos are descriminatory because the content of the relaxation in favour of old Village Officers is different under the two sets of rules. So far as the general principle is concerned, the specification of age and educational qualification in the main provisions of the rules must be regarded as involving an opinion that they are necessary elements in assessing the suitability of persons for recruitment. The relaxation in the case of old Village Officers is undoubtedly a matter of concession which they cannot claim as of right. The same is obviously made in consideration of their having held the offices under the old hereditary principle and with a view to save them from the hardship of losing their offices. Whether and if so in what manner and to what extent a concession may be extended to them is a matter of policy; the lapse of nearly ten years after the promulgation of the first set of rales and the change in circumstances could reasonably be regarded as furnishing sufficient ground for changing the content of relaxation. We are not persuaded that the case of alleged discrimination has been satislactorily made out. ( 24 ) WE, therefore, hold that the Mysore General Services (Revenue subordinate Branch) Village Accountants (Recruitment) Rules. 1970), are valid and constitutional and thai they have validly and effectively repealed the rules of the same name of the year 1961. All the writ petitions have to be and are hereby dismissed. --- *** --- .