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1979 DIGILAW 87 (KAR)

J. NADAGOUDA v. STATE OF KARNATAKA

1979-03-27

CHANDRASHEKARAIAH, K.S.PUTTASWAMY

body1979
CHANDRASHEKHAR, C. J. ( 1 ) THIS petition under Art 226 of the Constitution has been leferred to a Division Bench. ( 2 ) THE petitioners had been promoted from the cadre of First Division Clerks to the cadre of Superintendents in the Department of State Accounts. Though they were juniors to several First Division Clerks in that Department, they (the petitioners) had been promoted in preference to their seniors on the ground that they (the petitioners) had passed certains Service examinations, while those seniors had not passea them. The promotions of the petitioners were sought to be reviewed by the authorities under the provisions of the Karnataka Service Examinations Act, 1976 (hereinafter referred to as 'the Act' ). They apprehended that on such review they would be reverted, from the cadre of superintendents to the cadre of First Division Clerks or that their seniority would be brought down vis-a-vis those who were seniors to them in the cadre of First Division Clerks and had not been promoted earlier but would be promoted on such review of promotions. ( 3 ) IN this petition, the petitioners have challenged the constitutionality of the Act. They have also prayed for issue of a mandamus directing the authorities of the State of Karnataka not to enforce the provisions of the Act against them. ( 4 ) SHRI B. P. Holla,, learned Counsel, sought for permission to intervene in this petition on the ground that he is appearing for a party in W. P. No. 3038 of 1975 and that the decision rendered in this petition is likely to affect his client. We permitted Shri Holla, to intervene in this petition and he Addressed arguments in defence of the validity of the Act. We permitted Shri Holla, to intervene in this petition and he Addressed arguments in defence of the validity of the Act. ( 5 ) SHRI H. B. Datar, learned Counsel for the petitions, condended that the, Seirvice examinations had been validly prescribed, that under the rules made under the proviso to Art 309 of the Constitution regulating recruitment to posts in the Department of State Accounts, passing of the Service Examinations was a requisite condition for eligibility for promotion from the cadre of First Division Clerks to that of Superintendents, that the petitioners who had passed those examinations had been validly promoted and had acquired a right to hold the posts to which they had been promoted, that their promotions could not be reviewed and the First Division Clerks who had not passed those examinations could not be promoted with effect from any date prior to the dates of their (the petitioners) promotions. Sri Datar maintained that the Act which seeks to nullify valid promotions and to make eligible persons who were not eligible for promotion, is invalid as the legislature has no competence to do so. ( 6 ) ON the other hand, the learned Government Advocate sought to defend the constitutionality of the Act and the review of promotions. ( 7 ) IN order to appreciate the rival contentions of learned Counsel regarding the constitutionality of the provisions of the Act, it is necessary to set out briefly the historical background of the Act. ( 8 ) AFTER the formation of the now State of Mysore (Karnataka) on 1-11-1956, civil servants were allotted to the new State from the former States of Mysore, Coorg, Hyderabad, Bombay and Madras under the provisions of the States Reorganisation Act, 1956 (herein after referred to as 'the Reorganisation Act' ). The proviso to sub-section (7) of S. 115 of that Act provides inter alia, that the conditions of service applicable immediately before the appointed day (1-11-1956) to any civil servant allotted to a State under the provisions of the Act, shall not be varied to his disadvantage except with the previous approval of the Central Government. ( 9 ) SEC. The proviso to sub-section (7) of S. 115 of that Act provides inter alia, that the conditions of service applicable immediately before the appointed day (1-11-1956) to any civil servant allotted to a State under the provisions of the Act, shall not be varied to his disadvantage except with the previous approval of the Central Government. ( 9 ) SEC. 117 of the Reorganisation Act empowers the Central Government to give directions to any State Government as may appear to it (the central Government) to be necessary for the purpose of giving effect to the provisions of Sections 114 and 116 and the State Governments are required to comply with such directions. ( 10 ) ON 27-3-1957 the Central Government addressed a letter to the State Governments affected by reorganisation of States regarding pror tection of service conditions to be afforded to State service personnel. That letter (which was re-published by the State Government in O. M. No. SO SRPI IAPB 57 dated 11-5-1957) stated, inter alia that the central Government had decided that the conditions of service immediately before 1-11-1956 relating to pay, special pay, leave rules, pension, provident fund and dearness pay applicable to personnel affected by the Reorganisation of States, should be protected as derailed in that letter, but the central Government considered that it would not be appropriate to provide for any protection to such civil servants in regard to matters like departmental promotions in regard to which the State Government might assume the Central Government's approval in terms of the proviso to sub-Section (7) of S. 115 of the Reorganisation Act and take appropriate action and that in all other matters relating to conditions of service it was necessary for the State Government concerned to obtain the prior approval of the Central Government to vary previous conditions of service of such civil servants. ( 11 ) IN exercise of the powers conferred by the proviso to Art. 309 of the Constitution, the Governor of Mysore (Karnataka) made Rules called 'the Mysore " (Karnataka) State Accounts Service Cadre and Recruitment Rules, 1959 (hereinafter referred to as 'the Recruitment Rules,' ). Those Rules provide, inter alia, that for promotion from the cadre of First Division Clerks to that of Superintendents, the minimum qualification was passing the prescribed departmental examinations. But these rules them selves did not prescribe such departmental examinations. Those Rules provide, inter alia, that for promotion from the cadre of First Division Clerks to that of Superintendents, the minimum qualification was passing the prescribed departmental examinations. But these rules them selves did not prescribe such departmental examinations. The State Government, by its Order dated 7-9-1961, determined the equivalence of various examinations prescribed in the erstwhile States for promotion from the cadres equivalent to that of First Division clerks to those equivalent to that of Superintendents. However, the, Rules under the proviso to Art. 309 of the Constitution prescribing such departmental examinations, were, made for the first time by the Notification dated 30-8-1963 by which the Recruitment Rules were amended. The amended Rules provided that for eligibility for promotion to the cadre of Superintendents, First Division Clerks must have passed Accounts Higher Examination and the S. A. S. examination (Parts I and II ). Before making such amendment, the State Government had not obtained the previous approval of the Central government under the proviso to sub-sec. (7) of Sec. 115 of the Reorganisation Act. In Mohammad Bhakar Vs. Krishna Reddy, 1970 0 SLR 768. an appeal from the decision of this Court in k. S. Suryanarayana Rao Vs. State of Mysore, (1967) 2 Mys. L. J. 544. the Supreme Court held that any rule which lays down passing of certain Departmental examinations as a condition for promotion of any civil servant who was an allottee, was in violation of the proviso to sub-section (7) of S. 115 of the Re-organisation Act and that the letter of the Central Government dated 11-5-1957 to State Governments, could not be inter preted as a general previous approval for all such rules. ( 12 ) IN view of the ruling of the Supreme Court in Mohammad Bhakar's case (1) (supra,)' the Governor of Mysore after obtaining the previous approval of the Central Government under the proviso to sub-bcc. ( 12 ) IN view of the ruling of the Supreme Court in Mohammad Bhakar's case (1) (supra,)' the Governor of Mysore after obtaining the previous approval of the Central Government under the proviso to sub-bcc. (7) of Sec. 115 of the Reorganisation Act, in exercise of his powers under the proviso to Article 309 of the Constitution, issued, the Mysore (Karnataka,) State Civil Services (Service and Kannada Language Examinations) Rules, 1974 (hereinafter referred to as 'the Service Examnationa Rules'), those Rules came into force on 10-1-1974 Rule 4 of those Rules provided that after the expiry of two years from the date of commencement of those Rules, no Government servant shall be eligible for promotion to any higher post unless he had, inter alia, passed the prescribed examinations examinations specified in Sch. II to those Rules or in any law or rule regulating recruitment to such post. ( 13 ) SUCH is the historical background of the Act. We shall now set out the relevant provisions of the Act. ( 14 ) THE Act, the Karnataka Service Examination Act, 1976, was enacted by the State Legislature. Under sub-sec. (2) of S. 1, the Act is deemed to have corne into force on the 1st day of November 1956. ( 15 ) THE preamble to the Act roads"whereas the validity of departmental examinations for persons serving in connection with the affairs of the State was from time to time questioned; whereas while in set of decisions, courts had held that such examinations could be prescribed validly after obtaining the previous approval of the Central Government in pursuance of the proviso to S. 115 (7) of the States Reorganisation Act, 1956, in a later case, the Supreme Court held that such previous approval can be assumed in terms of the Official Memorandum of the Central Government dated 27th March 1957; whereas the divergent views resulted in uncertainly and confusion in the matter of promotions and reviews thereof; whereas in order to set matters right the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974 have been issued prescribing service examinations; whereas in some cases on the basis of certain earlier court decisions, retrospective promotions and payment of back salary, etc. are being claimed and sought to be enforced; whereas in the circumstances, it is not feasible, financially and and otherwise also, to so promote and pay;" ( 16 ) CLAUSE (a) of S. 2 defines 'service Examinations' as haying the same meaning as the term 'prescribed examination' in the service examinations Rules. In those Rulers the letter term with reference to any post means the service examinations prescribed for the holder of the said post as specified in Sch. II to those Rules or in any law regulating recruitment to such post or the conditions of service of the holder of such post ( 17 ) SUB-SEC. (1) of S. 3 of the Act provides that for the period commencing on 1st November 1956 and ending on 9th January 1974, for the purpose of eligibility for promotion, no service examination shall be and shall ever be deemed to have been prescribed for Government servants. ( 18 ) SUB-SEC. (2) of S. 3 provides that a Government servant who during the aforesaid period, wa not promoted solely on the ground of not passing any service examination, shall, if he has not already been promoted and if he is otherwise eligible, be promoted. ( 19 ) S. 5 provides that to facilitate promotions under S 3, a review of promotions made between 1st November 1956 and 9th January 1974, shall be made and the persons promoted shall, if juniors to the persons to be pro moted, yield place and wherever necessary be reverted to the lower post. ( 20 ) SUB-SEC. (2) of S. 5 provides that in the seniority list of persons in the class or grade of service to which Government servant is promoted under S. 3, the rank of the promoted person shall be fixed as if he had been promoted to that class or grade of service on the eligibility date. ( 21 ) SRI Datar assailed the constitutionality of the Act on several grounds. Firstly, he contended that what had been stated in the preamble to the Act, was not factually correct. In particular, he referred, to paras 2 and 3 of preamble, which state that there was conflict of judicial decisions regarding validity of departmental examinations resulting uncertainty and confusion in the matter of promotions and reviews thereof. Firstly, he contended that what had been stated in the preamble to the Act, was not factually correct. In particular, he referred, to paras 2 and 3 of preamble, which state that there was conflict of judicial decisions regarding validity of departmental examinations resulting uncertainty and confusion in the matter of promotions and reviews thereof. He submitted that by the time this Act was enacted there was no such conflict of judicial decisions or uncertainty or confusion and that though there was some conflict between the decision of the Supreme Court in N. Raghavendra Rao v. Deputy Commissioner, S. K. , AIR 1965 SC. 136 and the decision of the Supreme Court in Mohammad Bakhar's case (1) (supra), such conflict had been resolved by the subsequent decision, of the Supreme Court in Mohammed Shujat Ali v. Union of India, AIR 1974 SC. 1631 . wherein a Bench of five Judges reaffirmed the earlier view of the Supreme Court in Ragravendra Rao's case (3) (supra) and said that the contentions of the letter of the Central Government dated 11-5-1957 addressed to the State Governments should be regarded as previous approval within the meaning of the proviso to sub-sec. (7) of S. 115 of the Reorganisation Act and that the ratio of the decision in Raghavendra Rao's case (3) did not appear to have been properly appreciated by the Bench of three Judges who decided Mohammed Bhakar's case (1 ). ( 22 ) IT is unnecessary to go into, the question whether conflict of judical decisions, uncertainty and confusion adverted to in the preamble to the Act, did or did not exist at the time of enactment of the Act. The validity of an Act does not depend upon the correctness of any statement of facts or opinion set out in the preamble to the Act. What is material for the purpose of validity of an Act is the enacting portion thereof. ( 23 ) SRI Datar next contended that the petitioners, had been promoted in accordance with the rules of recruitment prevailing at the, time of their promotions and that it was not competent for the legislature to invalidate a promotion validly made or to validate a promotion which was invalid when it was made. ( 23 ) SRI Datar next contended that the petitioners, had been promoted in accordance with the rules of recruitment prevailing at the, time of their promotions and that it was not competent for the legislature to invalidate a promotion validly made or to validate a promotion which was invalid when it was made. He maintained that officials who did not possess the requisite qualification at the time when their cases could be, considered for promotion, could not be declared by a subsequent enactment as being eligible for promotion and could not be promoted retrospectively. ( 24 ) IN support of his contention, Shri Datar relied on the observations Of the Supreme Court in State of Mysore v. Padmanabhacharya, AIR 1966 SC 602 . There, the impugned -notification made by the Governor in purported exercise of his powers under the proviso to Art. 309 of the Constitution, reads thus:"not with standing anything contained in Note 4 of the Art 294 of the Mysore Service Regulation (Eight Edn.) Government servants who have been retired from service on the attainment of the age of fifty-five, during the pariod between 7th day of June 1957 and the 28th day of October 1958 shall be deemed to have been validly retired from service on superannuation. " ( 25 ) THE Supreme Court observed that all that the Rule did was to say in so many words that certain persons who had been invalidly retired, should be deemed to have been validly retired from service on superannuation and that such a rule could not be regarded as rule regulating recruitment and conditions of service contemplated by the proviso to Art. 309 of the Constitution. ( 26 ) SRI Datar next relied on the observations of the Supreme Court in R. N. Nanjundappa vs. T. Thummiah, AIR 1972 SC 1767 . There, the appointment of the respondent was not in accordance with the rules of recruitment in force when he was appointed. Subsequently, his appointment was sought to be regularised by means of a rule made under the proviso to Art. 309 of the Constitution. There, the appointment of the respondent was not in accordance with the rules of recruitment in force when he was appointed. Subsequently, his appointment was sought to be regularised by means of a rule made under the proviso to Art. 309 of the Constitution. While considering the validity and effect of that rule, the Supreme Court observed at page 1771:"regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore, the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of a person in utter defiance of rules. . . . . . " ( 27 ) RELIANCE was also placed on the decision of the Supreme Court in Stale of Mysore Vs. Krishnamurthy, AIR 1973 SC 1147. in which the Supreme Court reiterated its decision in Padmanabhacharya's case (5) and observed that the power of making rules relating to recruitment and conditions of service under the proviso to Article 309 could not be used to validate unconstitutional discrimination in promotional chances of government servants who belong to the same category. ( 28 ) NONE of the aforesaid three decisions relied on by Sri Datar, has any application to this case. Firstly, all these cases relate to the scope of the power under the Rules made under the proviso to Art 309 of the Constitution. In Padmanabhacharya's case (5) the Supreme Court specifically said that it was expressing no opinion! as to the power of the legislature to make a retrospective provision under Art 309 of the Constitution. ( 29 ) SECONDLY, both in Padmanabhacharya's case (5) and R. N Nanjundappa's case (6) the impugned notifications purported to be issued under the proviso to Art 309 of the Constitution, sought to validate actions which were not in accordance with the rules regulating conditiops of service or recruitment. Such validation was attempted without removing the cause for the invalidity in the respective cases. As laid down by the Supreme Court in Municipal Corporation of the City of Ahmedabad v. New Shrock Spinning and Weaving Co. Such validation was attempted without removing the cause for the invalidity in the respective cases. As laid down by the Supreme Court in Municipal Corporation of the City of Ahmedabad v. New Shrock Spinning and Weaving Co. Ltd. , AIR 1970 SC 1292 . when a legislature sets put to validate tax declared by Courts to be illegally collected under ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. ( 30 ) IN the present case, S. 3 of the Act has declared that for the period between 1-11-1956 and 9-1-1974 no service examination shall be and shall ever be deemed to have been prescribed for Government servants for the purpose of eligibility for promotion and S. 5 of the Act has provided for" review of all promotions in the past in order to give effect to the change brought about by such declaration regarding the condition of eligibility for promotion. As explained by the Supreme Court in Raj Kumar v. Union of India, AIR 1975 SC 1116 . once a law is given retrospective effect as from a particular date, all actions taken under the Act even before the amendment was made, would be deemed to have been, taken under the Act as amended and there is really no question of having to validate any action already taken, provided it is subsequent to the date from which the amendment is given retrospective effect. In the present case, the service examinations are deemed not to have been prescribed for the period commencing on 1-11-1956 and ending on 9-1-1974 for all promotions made during that period, passing of should be deemed to have not required as a condition of eligibility for promotion. The review of promotions under S. 5 is intended merely to give effect to the altered condition of eligibility and to correct promotions which are found to be not in accordance with such altered conditions of eligibility. ( 31 ) THERE can be no doubt about the competence of the State legislature to prescribe conditions of eligibility for promotions. Art. 309 of the Constitution empowers the State Legislature io regulate recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of that State. ( 31 ) THERE can be no doubt about the competence of the State legislature to prescribe conditions of eligibility for promotions. Art. 309 of the Constitution empowers the State Legislature io regulate recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of that State. The power to prescribe service examinations as a condition of eligibility for promotions, includes the power to withdraw prescription of such service examinations as a condition of eligibility for promotions and such power of withdrawal can be exercised by the State Legislature retrospectively. ( 32 ) THUS, we are unable to accept the contention of Sri Datar that the State Legislature had no comptence to withdraw retro pectively prescription of service examinations as a condition of eligibility for promotions and to review promotions made, before the enactment of the Act, but subsequent to the date with effect from which such prescription of service examinations as a condition of eligibility for promotions, was withdrawn. ( 33 ) MOREOVER, in Mohammad Yusuff v. State of Mysore, WP. 2234 of 1973, decided by one of us, it was held that there was no valid prescription of service examinations in the Department of State Accounts prior to 8-1-1974 and that passing of any service examination was not a requisite condition for pro-motion from the cadre of First Division Clerks to the cadre of superintendents. That decision was affirmed by a Division Bench of this Court in W. A. Nos. 668 to 733 of 1974. There was no appeal to the Supreme Court from that decision of the Division Bench. ( 34 ) WHEN there was no valid prescription of Service examination prior to 8-1-1974, the promotions of the petitioners who were promoted from the cadre of First Division Clerks to the cadre of Superintendents in preference to First Division Clerks who were seniors to them, solely on the ground that they had passed certain service examinations, cannot be said to be valid, nor had they acquired any right to hold the posts of supeprintendents. Even de hors the provisions of Act, their promotions were liable to be reviewed and on such review, persons seniors to them in the cadre of First Division Clerks in that Department who had not passed such examinations, but were otherwise suitable for promotion, were entitled to be promoted and placed above the petitioners. Even de hors the provisions of Act, their promotions were liable to be reviewed and on such review, persons seniors to them in the cadre of First Division Clerks in that Department who had not passed such examinations, but were otherwise suitable for promotion, were entitled to be promoted and placed above the petitioners. ( 35 ) IN the result, this petition fails and the rule is discharged. ( 36 ) IN the circumstances of the case, we direct the parties to bear their own costs. --- *** --- .