A NORONHA Vs. STATE OF MYSORE
LAWS(KAR)-1966-1-7
HIGH COURT OF KARNATAKA
Decided on January 19,1966

A.NORONHA Appellant
VERSUS
STATE OF MYSORE Respondents

JUDGEMENT

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-organisation 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-organisation 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, AIR1965 SC 136 , (1964 )2 MysLJ~ (NULL ), [1964 ]7 SCR549 . 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.


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