ORDBR Subhash B. Adi, J. 1. Petitioner has questioned the communication dated 14.5.2007 from the first respondent to the second respondent. 2. Petitioner claims that he was appointed as an Assistant Engineer on daily wage basis on 11.4.1989 and his services came to be regularized w.e.f. 11.4.1999. Under Section 84 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the Act), power is conferred on the Commissioner to make appointment to the post in the Corporation other than the posts to be filled either under Section 82 or Section 85 and 86. 3. In this regard, he referred to Section 82 of the Act and submitted that posts like Officers of State Civil Service, Engineer, Health Officer, Revenue officer, Chief Account officer, council Secretary have to be appointed by the Government. He also referred to Rule 26 of the Karnataka Municipal Corporation Rules, 1977 and submitted that though under this Rule, the posts specified in column No.2 are required to be appointed by the Government, which also includes the Assistant Engineer for Mysore Corporation, however, said rule is contrary to Section 84 of the Act. Under Section 84 of the Act, it is only the Commissioner, who is an appointing authority to appoint the candidates in respect of the posts other than referred to under Sections 82, 85 and 86. Neither under Section 82 or Section 85 or Section 86, the posts of Assistant Engineer or Executive Engineer are required to be filled up by the Government or by any other authority. It is only the Commissioner of the Corporation who is the authority, who can fill the poet of Assistant Executive Engineer. Under Rule 26 of the Rules, ratio is fur the purpose of promotion to the post of Assistant Executive Engineer from the lower cadre i.e., Assistant Engineer and Junior Engineer at a ratio of 2:1. He also submitted that, 25% of the total posts are to be filled by deputation and remaining 75% posts on 2:1 ratio from the cadre of Assistant Engineer and Junior Engineer. Petitioner claims that he is an Assistant Engineer and from his cadre, there bas been no promotion. He also submitted that, the first respondent by communication at Annexure-M has directed the second respondent - Corporation to promote the respondent No.3 to the post of Assistant Executive Engineer. Petitioner claims that he is an Assistant Engineer and from his cadre, there bas been no promotion. He also submitted that, the first respondent by communication at Annexure-M has directed the second respondent - Corporation to promote the respondent No.3 to the post of Assistant Executive Engineer. He submits that, the communication also refers to the earlier communication dated 22.12.2006 and it also states that, by the said communication, the Government had already directed to promote the third respondent to the post of Assistant Executive Engineer. He submitted that the Corporation has acted in pursuance of the said communication and bas passed an order in terms of Annexure-P inter-alia stating that the third respondent is promoted as Assistant Executive Engineer. Relying on Annexures - M and P, he submitted that, Annexure-P is consequence of Annexure-M and said direction could not have been issued by first respondent, who has no authority in law to issue such communication and direct the Corporation. The Corporation is also not under obligation to make appointment or promote any candidate at the direction of the State Government. 4. Sri.S.V.Namsimhan, learned Counsel appearing for third respondent submitted that, the Corporation has promoted the third respondent wm the cadre of Junior Engineer i.e., in the ratio of 2: 1 and it is against the post, which became vacant in pursuance of the repatriation of one Kondaiah, who was on deputation to the Corporation in 25% quota and as such, the promotion of the third respondent has no bearing on the question of promotion of the petitioner. Petitioner is claiming only under the quota of Assistant Engineer whereas the third respondent bas been promoted in a vacant post arising out of the repatriation of an Engineer on deputation to the Corporation. He further submitted that merely because the first respondent has issued a communication, that is not a ground to hold that the Corporation bas exercised its power only because of the said letter and submitted that, the order passed by the Corporation is in consonance with the provisions of Section 84 of the Act. 5. Learned Government Advocate supported the impugned orders at Annexures-M and P. 6. The short question that arises for consideration in this writ petition is: “as to whether the Government has power to appoint to the posts other than one referred under Sections 82, 85 and 86 of the Act?” 7. 5. Learned Government Advocate supported the impugned orders at Annexures-M and P. 6. The short question that arises for consideration in this writ petition is: “as to whether the Government has power to appoint to the posts other than one referred under Sections 82, 85 and 86 of the Act?” 7. Section 84 of the Act reads as under: “84. Appointment to the other posts on the corporation establishment. (1) Subject to the provisions of Sections 85 and 86 appointment to posts on the corporation establishment other than borne on the cadre of the Karnataka Municipal Administrative Service, and the posts referred to in Section 82 shall be se made by the Commissioner in accordance with this Act, the rules and the regulations framed thereunder. (2) If any officer appointed under sub-section (1) is a Government servant, he shall be entitled to leave and other privileges in accordance with the rules and regulations applicable to the Government service to which he belongs to the Government service to which he belongs and in force for the time being and the corporation shall make such contribution towards his salary, leave allowances, pension and provident fund as may be payable under such rules and regulations by him or in his behalf.” Under Section 84, the Commissioner is an appointing authority. No doubt, Rule 26 of the Rules refers to the post of Assistant Engineer. However, the rules are framed in exercise of power of subordinate legislation, whereas Section 84 is provision under the Act and it confers power on the Commissioner to make appointment. Even, if the roles state that the State Government is an authority that will not have any overriding effect on the provisions of the Act. In this regard, it is necessary to refer to the decision of this Court reported in 1993(2) KLJ 38, in the matter of P. Siddalingappa Vs. State of Karnataka and Others wherein this Court had an occasion to consider the provisions of Section 84 of the Act and also Rule 26 of the Rules. In this regard, it is necessary to refer to the decision of this Court reported in 1993(2) KLJ 38, in the matter of P. Siddalingappa Vs. State of Karnataka and Others wherein this Court had an occasion to consider the provisions of Section 84 of the Act and also Rule 26 of the Rules. This Court referring to the earlier decision of the Division Bench reported in 1990(2) KLJ 293 observed that, Rule 26 being a piece of subordinate legislation, any provision in the said rule, which contrary to the provisions of Sections 82 and 84 of the Act, will have to be struck down, since the subordinate legislation any yield to the plenary legislation as observed by the Supreme Court in the matter of Indian Express Newspapers (Bombay) Pvt. Ltd., and Others Vs. Union of India and Others etc., reported in AIR 1986 SC 515. By referring to the provision of Section 84 and the earlier decision of the Division Bench, wherein the Division Bench bas observed that, Rule 26 even after the validation cannot prevail over Section 82 and Section 84 of the Act. 8. From the provisions of Section 84, it is clear that, the appointing authority being the Commissioner, his power cannot be taken away by subordinate legislation under Rule 26 of the Rules. In the light of the provisions of Section 84, the communication issued by the first respondent as per Annexure-M where it directs the Corporation to promote the third respondent to the post of Executive Engineer is not sustainable as the same is without authority of law. The Government cannot either direct the Corporation in the matter of appointment to the post over which the Commissioner of the Corporation has got exclusive power and any exercise of power by the State Government would be without authority of law. Since this Court has already interpreted the provisions of Sections 82 and 84 of the Act and also Rule 26 of the Rules, irrespective of the validity of the rule, the provisions of the legislation will prevail over the subordinate legislation. 9. Learned Counsel for the respondent No.3 further submitted that the third respondent is not promoted against the quota of the petitioner. 9. Learned Counsel for the respondent No.3 further submitted that the third respondent is not promoted against the quota of the petitioner. He submitted that, as per Annexure-P, the post to which respondent No.3 is promoted is a post became vacant on account of the repatriation of one Kondaiah, who was on deputation to the second respondent - Corporation and it is under the said quota of deputation, the third respondent has been promoted, which will not have any effect on the question of promotion of the petitioner is concerned. 10. Since, all these questions are required to be considered by the Corporation, as to whether, the post of Assistant Executive Engineer bas become vacant from the quota of deputation or from the quota of Junior Engineer or from the quota of Assistant Engineer, the Corporation required to work out the respective quota and also the vacant post for the purpose of filling them up in terms of the quota fixed under Rule 26 in respect of Mysore City Corporation. If the petitioner is entitled for promotion from the quota of Assistant Engineer under 2:1 ratio, his case is required to be considered by the Commissioner and not by the Government Since the communication is issued by the first respondent being contrary to Section 84 of the Act, it requires to be quashed. 11. Insofar as Annexure-P is concerned, since the third respondent is already working as Assistant Engineer and the matter is required to be considered again, till the final orders are passed by the Commissioner, the status-quo as on today shall continue and the Corporation is directed to consider the grievances of the petitioner and respondent No.3 to the post of Assistant Executive Engineer strictly in terms of Section 84 and not being influenced by the communication or the order of the Government. With this observation the writ petition is partly allowed. Annexure- M is quashed. The Corporation is directed to consider the petitioner’s case along with respondent No.3 within three months from the date of receipt of the order.