LexSTATE OF MYSORE versus M. N. KRISHNA MURTHY & ORS.
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575
STATE OF MYSORE
v.
M. N. KRISHNA MURTHY & ORS.
October 5, 1972
[A. N. RAY, D. G. PALEKAR, M. H. BEG AND S. N. DWIVEDI, JJ.]
Mysore - State Accounts Services (Recruitment) Rules 1959-(As
amended retrospectively by State Government Notifications Nos.
GSR
384 dated 30th August, 1961)-Division into two classes of members of
the same service, belonging to the same cadres, for purposes of a differ-
ence to be n1ade in their promotion chances-Rule-making power under
p. aviso to Article 309 of the Constitution-Scope of-Cannot be used
to validate unconstitutionc:l discrimination in promotional chonces.
Practice-Points not raised or argued before High Court-Not al/cw.
ed to be raised for {Wst time before Supreme Court.
The two respondents, who were petitioners before the High Court had
joined the Accounts Service in the Controller's Office of
the
former
Mysore State as first and second division clerks.
Consequent upon the
aboliticm of the Controller's Office. the petitioner
began
working
as
Accounts Clerks under the Chief Engineer, PWD. On 31-10-53,
the
Divisional Accounts Cadre was created by the Mysore Govt. under the
administrative control of the Chief Engineer. Both the petitioners passed
the presC:ribed examinations and were ~bsorbed i.n the Divisional Accounts
Cadre.
Jn April, 1959, the PWD Reorganisation Committee recommend-
ed the transfer of the PWD Accounts Branch into the newly set-up
Controller of State Accounts. Accordingly, the petitioners came under the
administrative control of the Controller and the designation of their office
was changed to that of "Accounts Superintendent". On 15-5-1959, the
two formerly separate U!rtits of the Accounts
service,
namely
PWD
Ac!,counts Unit under the Chief Engineer, PWD and the Local Funds
Audit Unit. known also as "the said Accounts Department" came under
the common admini>trative control of the Controller of State Accounts.
On 26-5-59. the Mysore State Accounts Service Cadre Recruitment Rules
were im1cd and combined cadre strengths were fixed.
On 30-8-67, the
State Govt. issued three Notifications amending the 1959
Rules
with
retrospective effect. The petitioners c'1allenged the Notifications tn the
High Court as being violative of Articles 14 an<l 16 (I) of the Constitu-
tion of India. The High Court quashed the three notifications and the
promotions of the respondents in the Writ Petitio,n.
Dismissing the appeal.
1
HELD: (i) The High Court rightly declared the purported amend-
}
ments in the rules. of 1959, which sought to disintegrate a service which
had been ·integrated, to be 11/trtt rires.
Such an1endmcnts made for the
'purpose of justifying the illegal promolion made, in the teeth of the pro-
tection conferred by Articles P :ind 16(1) of the Constitution of India
upon Indian citizc,n:s in Govcrn1nent service. c'.a,uld not be upheld. The
H
power of n1aking rules rek1ting to rccruitn1ent and conditio.ns of service
·,1n<lcr the prorisO to Article 309 coulJ not be used to validate unconsti-
tutioP.nl discrimination in pron1otional chancies of Govcrnn1c:nt servants
who belong to the same category. [579CJ
2-L499Sup. Cl.'73
576
SUPREME COURT REPORTS
[1973) 2 s.c.R.
Ine't"ality of opportunity of promotion, though not unconstitutional
A
per se, must be justilied on the strenglih of rational criteria co-related
to the object of such a difference must be presumed to be selection of the
most competent from amongst those possessi.'l>g qualifications and b:ick-
grounds entitling them to be considered as members of one class. Articles
14 and 16(1) -of the Constitution must be held to be
violated
when
member of one class are not even considered for promotion. [580GJ
State of Mysore v. Padmanabhacharya AIR 1966 S.C. 602 State of
B
Punjab v. Joginder Singh, AIR 1963 S.C. 913 and K. M. Bakshi v. Union
of India [1965] Supp. 2 S.C.R. 169 relied on.
Ram Lal Wadhwa v. The State of Haryana AIR 1972 S.C. 1982 anti
S. G. Jatsinghani v. Union of /ndla [1967] 2 S.C.R. 703 distinguished.
(ii) It is a well recogl>ised practice of the Supreme Court not
to
allow new points to be raised for the first time in the Supreme Court
C
when they involve investigation of questions of fact. [577GJ
C1v1L APPHLATE JURISDICTION :
Civil Appeals Nos.
193
& 194 of 1971.
Appeal, by special leave from the judgment and order dated
April 11, 1969 of the Mysore High Court at Bangalore in Writ
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