TMI Blog1998 (1) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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39 by the same authority namely, the Government and, therefore, those Rules shall be deemed to have been impliedly superseded. 5 Rule-making power, so far as services under the Union or any State, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor, 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 impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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