LexSHRI A.B. KRISHNA versus THE STATE OF KARNATAKA AND ORS.
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SHRI A.B. KRISHNA
v.
THE STATE OF KARNATAKA AND ORS.
JANUARY 14, 1998
B
[S. SAGHIR AHMAD, D.P. WADHWA, JJ.]
Service Law :
Mysore Fire Force Act, 1964, Sec: 39-Mysore Fire Force (Cadre C
Recruitment) Rules(f 971). Rule 1-Rufes made by legislature under Sec. 39
of the Act - Applicability-State Government took a policy decision and
amended the Karnataka Civil service (General Recruitment) Rules, 1977-
Held, the rules made by Legislature are special rules having precedence over
rules framed under the Proviso to Art. 309 by virtue of doctrine of occupied D
field, so cannot be superseded by amendment made to General Recruitment
Rules-Constitution of India, Art. 309.
The Respondent State Government in exercise of it.s power under
Section 39 of the Fire Force Act, 1964, framed the Mysore Fire Force (Cadre
Recruitment) Rules, 1971 under which passing of a qualifying examination E
was a condition precedent for promotion. Subsequently, the State Government
took a general policy decisio~ to make promotions on the basis of selection
or seniority-cum-merit but without any qualifying examination. Accordingly,
the Karnataka Civil Service (General Recruitment) Rules, 1971 were
amended. A circular was issued that examination, if any, prescribed under
the relevant recruitment rules, should not be held for the purpose of promotion. F
The appellants were promoted to the post of Leading Fireman on the
basis of the seniority. Their promotion was challenged by respondents on the
ground that Karnataka Civil Services (General recruitment) rules, 1977
were not applicable to the posts under the present establishment and that G
promotion to the post of Leading Fireman shall continue to be governed by
the rule made by the State Government under Section 39 of the Fire Force
Act, 1964. The contention was upheld by the State Administrative Tribunal.
Hence this appeal.
Dismissing the appeal, this Court
157
H
158
SUPREME COURT REPORTS
(1998} l S.C.R
A
HELD : 1.1. The Fire services under the State Government was created
and established under the Fire Force Act, 1964 made by the State Legislature.
The State government in exercise of the power conferred under Section 39
of the Act made the Service Rules, 1971, regulating the conditions of Fire
Service. Since Fire Service had been specifically established under an Act
of Legislature and the Government, in pursuance of the powers conferred
B upon it under that Act, has already made Service Rules, any amendment in
the Karnataka Civil Service (General Recruitment) Rule, 1977 would not
affect special provisions validly made for Fire Services. Under the scheme
of Article 309 of the Constitution, once a legislature intervenes to enact a
law regulating the l.Onditions of service, the power of Executive, including
C the President or the Governor, as the case may be, is totally displaced on the
principle of 'Doctrine of Occupied Field'. [161-D-F_J
1.2. The rule making authority under Article 309 of the Constitution
and Sec. 39 of the Act is the same, namely, the government but the two
jurisdictions are different. Power under Article 309 cannot be exercised by
D the Governor, if the legislature has already made 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 subordinate legislation, but the rules under Article 309 cannot be treated
E to fall in that category and, therefore, on the principle of "occupied field",
th~ Rules under Article 309 cannot supersede the ~ules made by the
legislature. [161-G-H; 162-A)
1.3. There is also no question of implied supersession of the Rules
made under Sec. 39 of the Act by the General Recruitment Rules.
F Consequently prescription of the qualifying examination as a condition
precedent to the post of leading Fireman cannot be said to be superseded by
the amendment in the General Recruitment Rules prescribing seniority as
mode for promotion and it would not have the effect of displacing or altering
the rules made under Section 39 of the Fire Force Act 1964 as the Act of
G the legislature would have precedence over any rule made by the executive
under the proviso to Article 309 of the Constitution. (163-B-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3702-03 of
1990.
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