The government's power under Art. 309 of the Constitution cannot be restricted by any agreement, and the doctrine of promissory estoppel does not apply when it would compel the government to act contrary to law.

( 1 ) AGGRIEVED by the order of Rama, Jois, j. allowing W. P. No. 8654 of 1976, the State of Karnataka has preferred this appeal. The learned single Judge, by the impugned order, issued a writ in the nature of mandamus directing the Stale Government to give effect to its assurance as contained in para 8 of the Official Memorandum dated 25-9-1965 (produced as Ext-A in the writ petition ).

( 2 ) THE facts that are material for the disposal of this appeal are not in dispute. In the wake of the first national Emergency declared by the central Government due to external aggression, a number of Civilian personnel working in the various Departments of the State Government had to be drafted into the Military Service temporarily. To provide an incentive to join such service, certain concessions were assured to personnel joining such service. One such concession announced by the State Government in that official Memorandum was that 70% of the vacancies that were to be filled by direct recruitment or promotion in the Medical Department, would be reserved to Government servants with Military service. The respondent's grievance is that the aforesaid assurance embodied in clause 8 of that official Memorandum, was not given effect to by the State Government in her case.

( 3 ) THE respondent who was a permanent employee of the State Government as a Staff Nurse, rendered military service from 14-5-1963 to to 5-4-1971 and held the rank of a captain in the Army. Since she retained a lien on her permanent post in the State Government service while she was still in Military Service, she was given a proforma promotion as nursing Superintendent, Gradet-II with effect from 6-1-1970. After she rejoined the State Government service, she claimed the benefits of the concession under clause 8 of Official Memorandum. She was informed that her Military service would be counted for purposes of promotion, increment leave and pension. Regarding her claim for promotion under clause 8 of the aforesaid Official Memorandum, she did not get and positive reply. Hence she filed the writ petition. While allowing it, learned single judge directed the state Government to give effect to its assurance that 70 per cent of the posts to be filled by direct recruitment or by promotion, should be reserved for government servants with Military service by making, if necessary, appropriate amendment to the rules of recruitment and to give her all consequential benefits.

( 4 ) IN this appeal, the, main contention of the learned High Court government Pleader was that, the rules of Recruitment of the Medical department, made by the Governor under the proviso to Art. 309 of the constitution, did not provide for any reservation in favour of Government servants with Military service, that in spite of the assurance contained in para 8 of that Official Memorandum, she could not be promoted contrary to those Rules and that the learned single Judge erred in directing the government to make amendment to those Rules in order to give effect to the assurance given by the Government.

( 5 ) ON the other hand, Shri Balachandra, learned counsel for the respondent (the writ petitioner), sought to support the decision of the learned single judge. Sri Balachandra maintained that the learned single judge had applied the principle of promissory estoppel enunciated by the Supreme Court in Union of India v. Indo Afghan Agencies, AIR 1968 SC 718 and followed by Venkataramiah, J. , in w. P. No. 1466 of 1972 Shri Balachandra maintained that the learned single Judge had rightly directed the slate Government to give effect to its assurance in terms of clause 8 of the aforesaid Official Memorandum and that there was no difficulty for the slate Government to effect the recessary amendment to the Rules of recruitment of the Medical Department made under the proviso to Art 309 of the Constitution of India.

( 6 ) IT appears to us that the learned single Judge and Venkataramiah, J. have overlooked the p