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Noronha (A.) Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 681 of 1965
Judge
Reported inILR1966KAR418; (1969)IILLJ171Kant
ActsMysore Police Service (Recruitment) Rules, 1965; Mysore Police Service (Recruitment) Rules, 1960; Constitution of India - Articles 14, 16, 16(1), 133(1), 226 and 309; States Reorganization Act, 1956 - Sections 115
AppellantNoronha (A.)
RespondentState of Mysore and ors.
Excerpt:
.....in the office to which he is promoted. the possibility of an officer who is not in the good books of his superiors, not being promoted in due time and thereby his chances of promotion ruined is undoubtedly there. but the possibility of misuse of a rule is no ground for holding the rule to be bad. he merely sought support from one sentence in that decision which reads :it is clear that as between the members of the same class, the question whether conditions of service are the same or not may well arise. it is well-established that even within a broad class, there can be a further classification. ' 13. we fail to see how this decision is of any assistance to the petitioner. members of the class ii service filed various writ petitions stating that the bifurcation had resulted in the..........217]. this court struck down the rule in question on the ground that the rule is invalid as the state government had not obtained the previous sanction of the central government as required by sub-clause (7) of s. 115 of the states reorganization act, 1956, for promulgating that rule. aggrieved by that decision the state government applied to this court for a certificate under art. 133(1)(c) of the constitution. this court refused to grant the certificate prayed for. the special leave for appeal prayed for by the state government was refused by the supreme court. thereafter the state government promulgated fresh rules under art. 309 of the constitution, on 31 march, 1965. in the new rules also there is a provision identical to that which was struck down in c. k. appanna case [(1964) 1.....
Judgment:
ORDER

Hegde, J.

1. The petitioner, who is a Circle Inspector of Police, challenges in this writ petition, under Art. 226 of the Constitution, the validity of the rule in the Mysore Police Service (Recruitment) Rules, 1965, prescribing that for being promoted as a Deputy Superintendent of Police from the cadre of Circle Inspectors, the officer concerned should not have completed 52 years at the time the question of his promotion comes up for consideration. Further he seeks a writ of mandamus from this Court to respondent 1, directing it to promote him as Deputy Superintendent of Police from the date his immediate junior was promoted to that post.

2. Prior to 1 November, 1956, the petitioner was serving in the former State of Coorg. As a result of the Reorganization of States, he was allotted to the new State of Mysore. In his parent State, there was no age restriction in the matter of promotion of an Inspector of Police as a Deputy Superintendent of Police. After Reorganization of States, the new State of Mysore promulgated, under Art. 309 of the Constitution, the Mysore Police Service (Recruitment) Rules, 1960. Under those rules, no Inspector of Police could be promoted as Deputy Superintendent of Police, if by the time he could be promoted he had completed the age of 52 years. The validity of this rule came up for consideration by this Court in C. K. Appanna v. State of Mysore [(1964) 1 Mys. L.J. 217]. This Court struck down the rule in question on the ground that the rule is invalid as the State Government had not obtained the previous sanction of the Central Government as required by Sub-clause (7) of S. 115 of the States Reorganization Act, 1956, for promulgating that rule. Aggrieved by that decision the State Government applied to this Court for a certificate under Art. 133(1)(c) of the Constitution. This Court refused to grant the certificate prayed for. The special leave for appeal prayed for by the State Government was refused by the Supreme Court. Thereafter the State Government promulgated fresh rules under Art. 309 of the Constitution, on 31 March, 1965. In the new rules also there is a provision identical to that which was struck down in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra). The question for consideration is whether that rule can be held to be valid. If that rule is struck down, then, necessarily the petitioner is entitled to be promoted as a Deputy Superintendent of Police with effect from the date his immediate junior was promoted as the only ground on which the promotion was refused to him was that on the relevant date he had completed the age of 52 years.

3. It was urged by Sri Datar, the learned counsel for the petitioner that in view of the decision of this Court in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra), the ratio of which applies to the facts of the present case as well, and as no sanction of the Central Government had been obtained even after the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra), the rule in question is liable to be struck down. If the authority of the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) had remained unshaken, there would have been no difficulty in accepting the contention of Sri Datar. After the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) the validity of a rule similar to that considered in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) came up for consideration before the Supreme Court in N. Raghavendra Rao v. Deputy Commissioner, South Kanara : [1964]7SCR549 . In that case the Supreme Court came to the conclusion that the previous sanction required under S. 115(7) of the States Reorganization Act must be deemed to have been accorded in view of the memorandum addressed by the Central Government to the State Government on 11 May, 1957. The Supreme Court interpreted that memorandum as according previous sanction for making rules under Art. 309 of the Constitution excepting to the extent mentioned in that memorandum. In the present case we are not concerned with the exceptions enumerated in that memorandum. In that case, on behalf of the petitioner, strong reliance was placed on the decision of this Court in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra). The Supreme Court held that the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) was founded on the basis of concession made by the learned Government Pleader who appeared for the State. From the judgment of the Supreme Court, it is clear that that Court did not accept the correctness of the concession made by the learned Government Pleader though it opined that that concession justified the decision in the case. Therefore, the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) must be confined to the facts of that case.

4. It was next urged by Sri Datar that whatever may be the correctness of the decision in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra) that decision having held that a rule corresponding to the impugned rule is an invalid rule and the same having not been reversed by the Supreme Court, we must hold that the Governor was incompetent to promulgate a rule similar to the one struck down by this Court in C. K. Appanna case [(1964) 1 Mys. L.J. 217] (vide supra). We are unable to accede to this contention. The only effect of the decision in that case is to strike down the rule that was actually struck down in that case. On the basis of that decision, it cannot be held that the memorandum referred to earlier did not accord previous sanction for making rules under Art. 309 of the Constitution.

5. The other two contentions advanced by Sri Datar may be considered together. They are :

(1) that the impugned rule is violative of Arts. 14 and 16 Constitution as the classification made thereunder has no reasonable nexus with the object intended to be achieved by the rule; and

(2) that the said rule denies equality of opportunity for officers occupying similar positions.

6. These two contentions are two facets of the same question, viz., that the rule in question is violative of Arts. 14 and 16 of the Constitution.

7. After the decision of the Supreme Court in Rangachari case : (1970)IILLJ289SC it can no more be contended that the Art. 16 is not applicable to promotions. The grievance of the petitioner is that while Inspectors of Police who are less than 52 years can be considered for promotion as Deputy Superintendent of Police, Inspectors of Police who have completed the age of 52 years are precluded from being considered for promotion as Deputy Superintendents of Police. According to him that differentiation has no justifiable basis. It is an arbitrary classification. It is an arbitrary classification. It was urged on his behalf that the question of promotion is not in the hands of those who are to be promoted; firstly it depends upon the existence of a vacancy; next it is for the Government to decide when to fill up that vacancy; by the time the Government chooses to fill up the vacancy; there may be time lag and the officer concerned may by that time complete the age of 52 years; hence he cannot be held responsible for circumstances over which he has no control. The object with which the rule was framed has not been disclosed in the counter-affidavit filed on behalf of the Government. The rules themselves do not give any indication in that regard. In the counter-affidavit filed by the Under Secretary all that is stated is :

'I further submit that the petitioner is not entitled to challenge the correctness of the policy of the Government fixing the age-limit for promotion and secondly I submit the same is not arbitrary.'

8. It is hardly necessary to state that this is only an assertion and not a pleading on the point at issue. But at the same time it should not be forgotten that the burden of assailing the validity of a statutory provision on the ground of contravention of the equality clause is heavily on the party who assails it. There is a presumption that the provision in question is a valid one. In considering the validity of such a provision, it is the duty of the Court to take into consideration common knowledge and matters of common experience. In judging the validity of a rule of that character, the Courts will also have to take into consideration history of that rule.

9. As a result of the reorganization of the States, five different units were amalgamated. Officers previously serving in different States were allotted to the new State of Mysore. These officers had different conditions of service in their parent States. For bringing about uniformity of conditions of service, it was necessary for the new State of Mysore to new rules. Coming to the question of promotion of Inspectors of Police as Deputy Superintendents of Police, there were different rules in different States. In the former States of Mysore, Bombay, Hyderabad and Coorg, there was no age restriction as regards the promotion of an Inspector of Police as a Deputy Superintendent of Police. But in the former State of Madras, a rule similar to the impugned rule was in force. Such a rule is also in force in some of the departments in various States as well as in the Centre, particularly in the matter of promotion of Military Officers. As observed by the Supreme Court in J. Panduranga Rao v. Andhra Pradesh Public Service Commission : [1963]1SCR707 Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any statutory provision is assailed on the ground that it contravenes Art. 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second is that the differentia in question must have a reasonable relation to the object sought to be achieved by the statutory provision in question. The classification on which the statutory provision may be founded may be referable to different considerations. It may be based on geographical considerations or it may have reference to objects or occupations or the like. In every case there must be some nexus between the basis of the classification and the object intended to be achieved by the statute. Bearing these principles in mind, let us now proceed to examine whether there were reasonable grounds for making the classification in question.

10. As seen earlier, after the Reorganization of States on 1 November, 1956, it became necessary for the new State of Mysore to have a common set of rules regulating the conditions of service of the police officers in this State. Again, as seen earlier, there were different rules in force in different States. We have earlier noticed that the impugned rule is modelled on the basis of a rule that was in force in the former State of Madras. Hence, so far as the officers allotted from the former State of Madras are concerned, the rule in question is merely a continuation of a provision by which they were governed in the past. As stated earlier, historical considerations are good grounds for making classification. That apart, taking into consideration the nature of the duties to be performed and the responsibilities to be carried by a Deputy Superintendent of Police, we are unable to agree with Sri Datar that the condition requiring that he should have a prospect of serving in the post in question at least for a period of three years - the age of superannuation being 55 years - it cannot be said that the rule in question is an arbitrary one. The post of a Deputy Superintendent of Police is a responsible post. Public interest may not be best served if the official to be promoted to that post turns out to be a mere bird of passage having no interest in the office to which he is promoted. We assume that this was one of the considerations which must have swayed with the Government in making the impugned rule. It is true that a rule of this character can be misused. That is true of most provisions. The possibility of an officer who is not in the good books of his superiors, not being promoted in due time and thereby his chances of promotion ruined is undoubtedly there. But the possibility of misuse of a rule is no ground for holding the rule to be bad. It is a sound principle of law, to assume, that the persons who are in charge of the Government are discharging their onerous duties and responsibilities in a fair and honest manner. This assumption, we know from experience, is not always true. But those deviations from proper conduct are exceptions, which, as is said in logic, proves the rule.

11. In support of his contention that the rule in question is violative of Arts. 14 and 16 of the Constitution, Sri Datar read to us several decisions. We shall now proceed to consider those decisions. Sri Datar, in support of his contention, placed reliance on the decision of the Supreme Court in All India Station Masters' and Assistant Station Master's Association, Delhi v. General Manager, Central Railway : [1960]2SCR311 . We do not think that the decision in question lends any support to the contention advanced by Sri Datar. The writ prayed for by the petitioners in that case was refused. The classification made in that case was found to be a void one. Sri Datar did not depend on the ratio of the decision in that case. He merely sought support from one sentence in that decision which reads :

'It is clear that as between the members of the same class, the question whether conditions of service are the same or not may well arise.'

12. We do not think that this observation supports the case of the petitioner in any manner. This observation is no authority for the proposition that within a class, there can be no further classification. It is well-established that even within a broad class, there can be a further classification. We also do not think that the decision of the Supreme Court in Kishori v. Union of India : [1962]44ITR532(SC) is of any assistance to the petitioner. In that case the contest was between class I Incometax Officers and class II Incometax Officers. The Supreme Court came to the conclusion that the classification made is a valid classification. No useful purpose will be served in relying on stray observations in a judgment particularly when they are torn out of the context. The ratio of a decision will have to be gathered by taking into consideration the entire judgment. Next Sri Datar relied on a passage in the judgment of this Court in G. Govindarajulu v. State of Mysore [1963 Mys. L.J. Sup. 525]. Therein, the question for consideration was whether an amendment effected to a service rule was a valid amendment. This Court held that the amendment in question is violative of Art. 14 of the Constitution. In the course of the judgment it was observed :

'There is also another reason why the said amendments are unconstitutional. By virtue of the fiction sought to be created by the amendments, the position should be taken to be one in which the rules were made on 1 March, 1958, prescribing one set of qualifications in respect of the first recruitment to the post of Assistant Engineers under the rules and another set of qualifications in respect of subsequent recruitments under the rules. It is not apparent on the face of the rules nor is it possible to ascertain any intelligible criteria reasonably related to the object of the rules on the basis of which this classification between the recruits at the first recruitment and the subsequent recruits has been made. All persons sought to be recruited in this category being Assistant Engineers and the clear object being that all Assistant Engineers should possess certain qualifications or capabilities for the work expected of them, there is no apparent reason why the first set of recruits should possess only certain qualifications and all other recruits should possess certain other qualifications when obviously the type of work all are expected to do after recruitment is the same or similar.'

13. We fail to see how this decision is of any assistance to the petitioner.

14. Reliance was next placed on the decision of the Punjab High Court in S. G. Jaisinghani v. Union of India [A.I.R. 1964 Punj. 155]. Therein, the validity of rule 1(f)(iii) of the rules of seniority contained in the letter of the Ministry of Finance dated 5 September, 1952 which provides for the weightage of three years in seniority in case of the Incometax Officers promoted to class I, grade II, from the department, over the officers in the same grade who are recruited directly on passing of the competitive examination came up for consideration. It was held that the rule in question is ultra vires of Art. 16(1) of the Constitution as it laid down differently standards for promotion, vis a vis the same class of Incometax Officers. Hence, the said rule was struck down. We do not think that this decision has any bearing on the point under consideration.

15. Sri Datar next relied on the decision of the Full Bench of the Punjab High Court in Brijlal Goswami v. State of Punjab . Briefly stated the facts of that case are these : Before the merger of Pepsu and Punjab States, there were two classes of gazetted officers in the Educational Department in the Punjab, namely, Punjab Educational Service (class I) and Punjab Educational Service (class II). The normal rule of promotion from class II to class I was that seniormost person in class II was promoted to class I, and it made no difference whether, at the time he was promoted, he held the post either of a senior lecturer or a post which had something to do with the schools. After merger of the States, by a notification dated 29 September, 1961, the Governor of Punjab ordered bifurcation of the Punjab Educational Service (class II) into two cadres, i.e.,

(1) college cadre, and

(2) school cadre,

with effect from 1 November, 1956. The promotions to class I from class II service thereafter was according to the nature of the vacancy, irrespective of the position of the promoted person in the seniority list before the merger. Members of the class II service filed various writ petitions stating that the bifurcation had resulted in the promotion of respondents who were juniors to them and it had thus adversely affected the career and further chances of promotion of the petitioners as well as their emoluments and pensions. The notification was therefore said to be offending rule 16 of the Punjab Services Integration Rules, 1957, and also Art. 16 of the Constitution. The court held that order of the Punjab Government dated 29 September, 1961 bifurcating the Punjab Educational Service (class II) into school and college cadres was violative of the principle of preserving inter se seniority embodied in rule 16 of the Punjab Services Integration Rules, 1957, in so far as it had affected the seniority of the petitioners s the respondents concerned. It further held that the promotion to Punjab Educational Service (class I), in the wake of the aforesaid bifurcation of the respondents who were originally junior to the petitioners in the joint Punjab Educational Service (class II) list in preference to the petitioners on the sole ground of the nature of vacancy in Punjab Educational Service (class I) were also violative of the said rule and Art. 16 of the Constitution. The decision in that case turned on the facts of that case.

16. Lastly, reliance was placed by Sri Datar on the decision of this Court in Writ Petition No. 354 of 1962. In that case, this Court was called upon to consider the validity of certain directions issued by the Government as regards the admission of students for condensed M.B., B.S. course. The Government directed that no applicant above the age of 40 years should be admitted on the course. But at the same time it directed that as between the qualified candidates the elder should be preferred to the younger. This Court struck down the direction in question holding that the classification made had no reasonable nexus with the object intended to be achieved.

17. When the validity of any provision of law is challenged on the ground of contravention of Art. 14 or 16, what has to be first done by a Court is to ascertain the true effect of provision. Next, it has to find out the object with which the provision is framed and thereafter see whether the classification made has any reasonable nexus with the object intended to be achieved. In discharging that task, decisions rendered in other cases of similar nature are no doubt helpful in ascertaining the legal principles. But the facts of no two cases are likely to be similar. Most cases have their own distinguishing features. In the ultimate analysis, decision in any case will depend on the facts of that case.

18. For the reasons mentioned above, we are unable to agree with the petitioner's contention that the rule impugned in this case is violative of Arts. 14 and 16. Hence, this petition fails and the same is dismissed. No costs.


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