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

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 631 of 1965
Judge
Reported inAIR1966Kant267; AIR1966Mys267; (1966)1MysLJ265
ActsConstitution of India - Articles 133(1), 226 and 309; Mysore Police Service (Recruitment) Rules, 1965; Mysore Police Service (Recruitment) Rules, 1960; States re organization Act, 1956 - Sections 115(7)
AppellantA. Noronha
RespondentState of Mysore and ors.
Excerpt:
.....of the taluka panchayat and is in fact outside the scope of section 141(2) of the act. the state government is also justified in holding that the attitude of the petitioners disclosed divisive tendency intending to create division among the members of the panchayat on sectarian lines and hence they were guilty of misconduct which entailed their removal from the post of member and adhyaksha of the taluka panchayat. the procedure followed while passing the impugned order is fair and reasonable. the punishment imposed for the illegal and unauthorised activities indulged in by the petitioners also does not call for interference by the high court. - appanna's case 1964-1 mys lj 217: (air 1965 mys 19), the ratio of which applies to the facts of the present case as well and as no..........mys 19). 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 section 115 of the states re organization act, 1956, for promulgating that rule. aggrieved by that decision, the state government applied to this court for a certificate under article 133(1)(c) of the constitution. this court refused to grant the certificate prayed for by the state government was refused by the supreme court. thereafter the state government promulgated fresh rules, under article 309 of the constitution on 31st march 1965. in the new rules also there is a provision identical to that which was struck down in c.k. appanna's case 1964-1 mys lj 217. (air 1965 mys.....
Judgment:

Hegde, J.

(1) The petitioner who is a Circle Inspector of Police, challenges in this writ petition, under Article 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 Inspector, 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 No. 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 1-11-1956, the petitioner was serving in the former State of Coorg. As a result of the reorganisation 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 s a Deputy Superintendent of Police. After re organization of States, the now State of Mysore promulgated, under Article 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 the Court in C.K. Appanna v. State of Mysore, 1964(1) Mys LJ 217: (AIR 1965 Mys 19). 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 Section 115 of the States re organization Act, 1956, for promulgating that rule. Aggrieved by that decision, the State Government applied to this Court for a certificate under Article 133(1)(c) of the Constitution. This Court refused to grant the certificate prayed for by the State Government was refused by the Supreme Court. Thereafter the State Government promulgated fresh rules, under Article 309 of the Constitution on 31st March 1965. In the new rules also there is a provision identical to that which was struck down in C.K. Appanna's case 1964-1 Mys LJ 217. (AIR 1965 Mys 19). 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 was refused to him was that on the relevant date he had completed the age of 52 years.

(3) It was urged by Mr. Datar, the learned counsel for the petitioner, that in view of the decision of the Court in C.K. Appanna's case 1964-1 Mys LJ 217: (AIR 1965 Mys 19), 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's case 1964-1 LJ 217: (AIR 1965 Mys 19), the rule in question is liable to be struck down. If the authority of the decision in C.K. Appanna's case, 1964-1 Mys LJ 217: (AIR 1965 Mys 19), the validity of a rule similar to that consideration in C.K. Appanna's case 1964-I Mys LJ 217: (AIR 1965 Mys 19), came up for consideration before 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 section 115(7) of the States Reorganisation Act, must be deemed to have been accorded in view of the Memorandum addressed by the Central Government to the State Government on May 11, 1957. The Supreme Court interpreted that Memorandum as according previous sanction for making rules under Article 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's case 1964-1 Mys LJ 217; (AIR 1965 Mys 19), 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's case 1964-1 Mys LJ 217: (AIR 1965 Mys 19), must be confined to the facts of that case.

(4) It was next urged by Mr. Datar that whatever may be the correctness of the decision in C.K. Appanna's case 1964-1 Mys LJ 217: (AIR 1965 Mys 19), 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's case, 1964-Mys LJ 217: (AIR 1965 Mys 19). We are unable to accede to this contention. The only effect of the decision in that case is to strike 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 Article 309 of the Constitution. The other two contentions advanced by Mr. Datar may be considered together. They are:

(1) That the impugned rule is violative of Articles 14 and 16 of the Constitution as the Classification 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. These two contentions are two facets of the same question viz., that the rule in question is violative of Articles 14 and 16 of the Constitution.

(5) After the decision of the Supreme Court in Rangachari's case : (1970)IILLJ289SC it can no more be contended that the Article 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, Inspector who have completed the age of 52 years are precluded from being considered of promotion as deputy Superintendents of Police. According to him the differentiation has no justifiable basis; 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 Legislature and the Officer concerned may by that time complete the age of 52 years; hence he cannot be filed responsible for circumstances over 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 filed 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.'

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 grounds 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.

(6) As a result of the re organization 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 frame 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 prima facie 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 center particularly in the matter of promotion of Military Officers. As observed by the Supreme Court in J. Pandurangarao v. Andhra Pradesh Public Service Commission, : [1963]1SCR707 , Article 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 Article 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 other leg 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 no geographical considerations or it may have reference to objects or occupations or the like. In every case there must be some nexus be 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.

(7) As seen earlier, after the re organization of States on 1-11-1956, it become necessary for the new State of Mysore to have a common set 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 Mr. Datar that the condition requiring that he should have a prospect of serving in the post in question atleast 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 turns out to be a mere bird of passage having no interest in the Officer 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 chance 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.

(8) In support of his contention that the rule in question is violative of Articles 14 and 16 of the Constitution. Mr. Datar read to us several decisions. We shall not proceed to consider those decisions. Mr. Datar in support of his contention, placed reliance on the decision of the Supreme Court in All India Station Masters' and Assistant Station Masters' Association Delhi v. General Manager, Central Railway, : [1960]2SCR311 . We do not think that the decision in question lands any support to the contention advanced by Mr. Datar. the writ prayed for by the Petitioners in that case was refused. The classification made in that case was found to be a valid one. Mr. 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.'

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 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 the petitioner. In that case the contest was between Class I Income-Tax Officers and Class II Income-Tax 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 obs4vations in a judgment particularly when they are torn out of the context. The ratio of a decision will have to the gathered by taking into consideration the entire judgment. Next Mr. Datar relied on a passage in the judgment of this Court in G. Govindarajulu v. State of Mysore, 1963 Mys. LJ (Supp.) 525; (AIR 1963 Mys. 265).

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 Article 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 1st 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 Rule 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 qualification 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 process certain other qualifications when obviously the type of work all are expected to do after recruitment is the same or similar.'

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

Reliance was next placed on the decision of the Punjab High Court in S. G. Jaisinghan v. Union of India, AIR 1964 Punj 155. Therein, the validity of Rule 1(f)(iii) of Rules of Seniority contained in the Letter of the Ministry of Finance dated 5-9-1952 which provides for the weightage of three years in seniority in case of the Income-tax 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 Article 16(1) of the Constitution as it laid down different standards for promotion, vis a vis the same class of Income-tax Officers. Hence, the said rule was struck down. We do not think that this decision has any bearing on the point under consideration.

(9) Mr. Datar next relied on the decision of the Full Bench of the Punjab High Court in Brijlal Goswani v. State of Punjab, (FB).Briefly the merger of Pepsi and Punjab States, there were two classes of gazetted Officers in the Education Department in the Punjab, namely, P.E.S. Class I and P.E.S. Class II. The normal rule of promotion from Class II to Class I was that seniormost person in Class I, and it made no difference whether, at the time he was promoted, he held the post of a senior Lecturer or a post which had something to do with the Schools. After merger of the States by a notification dated 29th 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 1Sales Tax November 1956. The promotion 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 carrier 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 Article 16 of the Constitution. The Court held that the Order of the Punjab Government dated 29th September 1961 bifurcating the P.E.S. (Class II) into School and College Cadres was violative of the principle of preserving into 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 vis a vis the respondents concerned. It further held that the promotions to P.E.S. (Class I), in the wake of the aforesaid bifurcation of the respondents who were originally junior to the petitioners in the joint P.E.S. (Class II) list in preference to the petitioners on the sole ground of the nature of vacancy in P.E.S. (Class I) were also violative of the said Rule and Article 16 of the Constitution.

(10) The decision in that case turned on the facts of that case.

(11)Lastly reliance was placed by Mr. Datar on the decision of this Court in W.P. No. 354 of 1962(Mys). In that case, this Court was called upon to consider the validity of certain direction 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 to the Course. But at the same time it directed that as between the question candidates the elder should be preferred to the younger. This Court struck down the direction to question holding that the classification made had no reasonable nexus with the object intended to be achieved.

(12) When the validity of any provision of law is challenged on the ground of contravention of Article 14 and 16, what has to be first done by a Court is to ascertain the true effect of the 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 untended 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.

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

(16) Petition dismissed.


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