Judgment

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 Respondents 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 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, are 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 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 governed 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 they 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, therefore, 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 service of persons 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 servi