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PETITIONER: SHRI A.B.KRISHNA & ORS.

       Vs.

RESPONDENT: THE STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:       14/01/1998

BENCH: S. SAGHIR AHMAD, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 14TH DAY OF JANUARY, 1998 Present :                Hon’ble Mr. Justice S.Saghir Ahmad                Hon’ble Mr. Justice D.P.Wadhwa P.Mahale, Adv. for the appellants M.Veerappa, Adv. for t he Respondents                       J U D G M E N T      The following Judgment of the Court was delivered: S.SAGHIR AHMAD. J.      Section 39  of the  Fire Force  Act, 1964  under  which Mysore Fire  Force has  been established  gives  rule-making power to  the State  Government, in  exercise of  which  the State Government  made Mysore  Fire Force (Cadre Recruitment )Rules, 1971.  Under these  Rules, promotion  to the post of Leading Firemen  is made  from the  post of  Firemen/Firemen Drivers. 2.   In  1982,  an  examination  was  conducted  for  making promotion to  the post of Leading Firemen in accordance with the procedure  indicated in  the Rules, and a select list of 43 persons  including Respondent 4 and 5 was prepared out of which nineteen  persons, ten  in one  batch and  nine in the other, were  promoted but thereafter the select list was not operated. In  June, 1982,  the select list was not operated. In June,  1982, the Government of Karnataka, however, took a policy decision  that promotion  to  the  post  of  Head  of Department or  to the posts of Additional Head of Department would be  made by  Selection while  promotion on  all  other posts would  be made on the basis of seniority-cum-merit and not by  selection, including  selection through a qualifying examination, irrespective  of the  method specified  in  the Rules of  Recruitment. In  view of this policy decision, the Karnataka Civil  Services (General  Recruitment) Rules, 1971 were amended.  This was  followed by  a Circular  which  was issued  to  all  the  Departments  indicating  therein  that examination, if  any, prescribed under the Rules, may not be held for purpose of promotion. 3.   In 1986,  after the  amendment of the General Rules, as indicated above, the appellants were promoted to the post of Leading Firemen  on the  basis  of  their  seniority.  Their promotion was  challenged by  respondents 4  and  5  on  the

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ground  that   the   Karnataka   Civil   Services   (General Recruitment) Rules,  1977 were  not applicable  to the posts under the  present establishment  and that  promotion to the post of  Leading Firemen  shall continue to be government by the Rules  made by  the State Government under Section 39 of the  Fire   Force  Act,   1964,  under  which  a  qualifying examination had  to be passed before promotion which was not passed by  the appellants  who were  promoted merely  on the ground of  seniority. This contention has been upheld by the Karnataka  Administrative   Tribunal.  It  is  against  this Judgment that the present appeal has been filed. 4    It  is   contended  by  the  learned  counsel  for  the appellants  that   the  Karnataka  Civil  Services  (General Recruitment) Rules,  1971 were amended in 1977 by Rules made by the Government under Article 309 of the Constitution and, therefore, the  Mysore Fire Force (Cadre Recruitment) Rules, 1971 shall be deemed to have been superseded at least to the extent that  t hey  make provision  for an examination to be passed before  promotion which under the General Rules, have to be  made on  the basis  of seniority alone and, therfore, the promotion  of  the  appellants  made  on  the  basis  of seniority could not have been set aside. It is contended, in the alternative  that Rules made under Section 39 of the Act have been  made by the Government and not by the Legislature and, therefore,  if any Rule is made by the Government under Article 309 of the Constitution, it will positively displace the Rule made under Section 39 by the same authority namely, the Government  and, therefore,  those Rules shall be deemed to have been impliedly superseded. 5    Rule-making power,  so far  as services under the Union or any  State, are concerned, are vested in the President or the Governor,  as the  case may be, under Article 309 of the Constitution which provides as under :-      "309.Recruitment and  conditions of      service  of   persons  serving  the      Union or  a  State-Subject  to  the      provisions  of  this  constitution,      Acts of the appropriate Legislature      may regulate  the recruitment,  and      conditions of  services  of  person      appointed, to  public services  and      posts  in   connection   with   the      affairs of  the  Union  or  of  any      State:      Provided that it shall be competent      for the President or such person as      he  may   direct  in  the  case  of      services and  posts  in  connection      with the  affairs of the Union, and      for the Governor of a State or such      person as he may direct in the case      of services and posts in connection      with the  affairs of  the State, to      make    rules     regulating    the      recruitment, and  the 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 this article, and      any rules so made shall have effect      subject to  the provisions  of  any      such Act." 6.   It is primarily the Legislature, namely, the Parliament or the State Legislative Assembly, in whom power to make law

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regulating the  recruitment and  conditions  of  service  of persons  appointed   to  public   services  and   posts,  in connection with  the affairs  of the  Union or the State, is vested. The  legislative field  indicated in this Article is the same  as is  indicated in  Entry 71  of List  I  of  the Seventh Schedule  of Entry  41 of  List II of that Schedule. The Proviso,  however, gives  power to  the President or the Governor  to   make  Service   Rules  but  this  is  only  a transitional provision as the power under the Proviso can be exercised only  so long  as the Legislature does not make an Act whereby  recruitment  to  public  posts  as  also  other conditions of service relating to that post are laid down. 7.   The Rule-making  function under  the Proviso to Article 309 is  a legislative  function. Since  Article 309  has  to operate subject  to other provisions of the Constitution, it is obvious  that whether it is an Act made by the Parliament or the  State Legislature  which lays down the conditions of service or  it is  the Rule  made by  the President  or  the Governor under  the Proviso to that Article, they have to be in conformity  with the other provisions of the Constitution specially Article 14, 16 310 and 311. 8.   The Fire  Services  under  the  State  Government  were created and  established under the Fire Force Act, 1964 made by the  State Legislature.  It was  in exercise of the power conferred under  Section  39  of  the  Act  that  the  State Government made  Service Rules  regulating the conditions of Fire  Service.   Since  Fire   Service  had  been  specially established  under   an  Act  of  the  Legislature  and  the Government, in  pursuance of  the power  conferred  upon  it under  that   Act,  has  already  made  Service  Rules,  any amendment  in   the  Karnataka   Civil   Services   (General Recruitment)  Rules,  1977  would  not  affect  the  special provisions validly  made for  Fire Services.  As a matter of fact, under  the scheme  of Article 309 of the Constitution, once  a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or  the Governor,  as the case may  be, is totally displaced on  the principle or "Doctrine of Occupied Field". If, however, any matter is not touched by that enactment, it will  be   competent  for  the  Executive  to  either  issue executive instructions  or to  make a Rule under Article 309 in respect of th at matter. 9.   It is  no doubt  true that  the  Rule-making  authority under Article  309 of the Constitution and Section 39 of the Act is  the same,  namely, the  Government (to   be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the  legislature has  already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to  be noticed that Rules made in exercise of the rule- making power given under an Act constitute Delegated or Sub- ordinate legislation, but the Rules under Article 309 cannot be treated  to fall  in that category and, therefore, ont he principle of  "occupied field",  the Rules under Article 309 cannot supersede the Rules made by the legislature. 10.  So far  as the  question of implied supersession of the Rules made  under Section  39 of  the  Act  by  the  General Recruitment Rules,  as amended in 1977, is concerned, it may be pointed  out that  the basic  principle, as  ser  out  in Maxwell’s Interpretation  of Statutes (11th edn., page 168), is that :-      "A  general   later  law  does  not      abrogate an  earlier special one by

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    mere     implication.     Generalia      specialibus non  derogant,  or,  in      other  words,   ’where  there   are      general  words   in  a   later  Act      capable of r easonable and sensible      application without  extending them      to subjects specially dealt with by      earlier legislation, you are not to      hold  that   earlier  and   special      legislation  indirectly   repealed,      altered, or  derogated from  merely      by force  of  such  general  words,      without   any   indication   of   a      particular intention  to do  so. In      such cases  it is  presumed to have      only general  cases it  is presumed      to have only general cases in view,      and not particular cases which have      been already otherwise provided for      by the special Act." 11.  This principle  was reiterated  in  Vera  Cruz’s  case, (1884) 10 AC 59, as under :-      "Where there are general words in a      later Act capable of reasonable and      sensible    application     without      extending    them    to    subjects      specially  dealt  with  by  earlier      legislation...  that   earlier  and      special legislation  is not  to  be      held   indirectly repealed, altered      or derogated  from merely  by force      of such  general words  without nay      indication    of    a    particular      intention to do so." 12.  Vera Cruz’s  case was followed in Eileen Louise Nicolle v. John Winter Nicolle, (1992) 1AC 284, as under :-      "It is  no doubt  a sound principle      of all jurisprudence that  a  prior      particular law  is not easily to be      held to be abrogated by a posterior      law, expressed in general terms and      by the  apparent generality  of its      language applicable to and covering      a number  of  cases  of  which  the      particular law is but one." 13.  To the above effect, is also the decision of this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dev, AIR 1966 SC  1931 =  (1966) 3 SCR 663, in which it was indicated that an  earlier Special  Law cannot  be held  to have  been abrogated by  mere implication.  That being so, the argument regarding implied  supersession has  to be rejected for both the reasons set our above. 14.  Applying the  above principle  to the  instant case, it will be  noticed that the Rules made by the State Government under  Section  39  of  the  Act  prescribe  the  qualifying examination as  a condition  precedent for promotion to t he post of  Leading Firemen. These Rules have not been touched, altered or  amended and  they exist  in their original form. What had  been done by the Government is that it has amended the General  Recruitment Rules  by providing  therein the at any promotion  made ont  he higher  post would not be on the basis of examination, if any prescribed, but on the basis of seniority. This is a Rule made by the Executive, namely, the Governor  under   Article  309   of  the  Constitution.  The amendment in  the General  Recruitment Rules  would not have

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the effect  of displacing  or altering  the Rules made under Section 39  of the  Fire Force  Act, 1964  as the Act of the Legislature would  have precedence over any Rule made by the Executive under the Proviso to Article 309. 15.  As pointed  out earlier,  fire service  was created and established under  Fire   Force Act,  1964 made by the State Legislature  which  gave  rule-making  power  to  the  State Government. Instead  of  amending  the  General  Recruitment Rules, the  Government could  well have  exercised its power under Section 39 of the Fire Force Act, 1964 and amended the Rules specially  made for the fire services. The Government, however, in its wisdom, did not do it obviously because it n ever intended  to touch  the fire services specially created by the State Legislature. 16.  In view  of the  above, the  appeals have no merits and the same are dismissed but without any order as to costs.