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1968 Supreme(Kar) 89
Karnataka High Court
Judges : K.Bhimayya,K.R.Gopivallabha Ayyangar
NANJUNDAPPA (R.N.) - Appellant
Versus
THIMMAYYA (T.) - Respondent
Writ Petition 1152 Of 1967
Decided On : 09/12/1968
The central legal point established in the judgment is the Governor's power to regularize appointments under Art. 309 of the Constitution, even in cases of initial irregularity, provided it is not discriminatory or in violation of constitutional provisions.
Headnote:
Governor of Mysore - Validity of Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967 - Art. 309
Fact of the Case:
The petitioners challenge the validity of the Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967, which regularized the appointment of the respondent as Principal of the School of Mines, Kolar Gold Fields. The appointment was initially made on a deputation basis and later regularized with effect from 15 February, 1958.
Finding of the Court:
The court found that the appointment of the respondent was initially irregular, but it was competent for the Governor to regularize the appointment by making a rule under Art. 309 of the Constitution. The court also noted that the appointment was made in the absence of prescribed qualifications and under exceptional circumstances.
Issues: The issues included the validity of the rules under Art. 309, the irregularity of the initial appointment, and the impact on the petitioners' claims for promotion.
Ratio Decidendi: The court held that the Governor had the power to regularize the appointment under Art. 309, and the appointment, though irregular, was made under exceptional circumstances. The court emphasized the need for appointments to be made in accordance with rules and not in violation of constitutional provisions.
Final Decision: The writ petitions were dismissed, and no order was made as to costs.
( 1 ) THE petitioners in these writ petitions challenge the validity of the rules called "the Mysore education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967," made by the Governor of Mysore in exercise of the powers conferred on him by the proviso to Art. 309 of the Constitution of India. As identical questions arise for decision in all the above writ petitions, a common order is passed. These rules were published under a notification dated 9 February, 1967 which reads as follows :
GOVERNMENT of MYSORE
No. ED 91 DGO 58
Mysore Government Secretariat
Vidhana Soudha
Bangalore ,
Dated 9 February, 1967
Notification
In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of india, and all other powers enabling him in this behalf, the Governor of Mysore hereby makes the
following rules, namely :
(1) Title.- These rules may be called the Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1957.
(2) Provisions relating to regularization of appointment of Principal, School of Mines , Oorgaum , Kolar Gold Fields. Notwithstanding any rule made under, the proviso to Art. 309 of the Constitution of India, or any other rules or orders in force at any time, Dr. T. Thimmayya , B. Sc. (Hons.), PH. D. ( London ).
F. G. S. , shall be deemed to have been regularly appointed as Principal, School of Mines , Oorgaum , Kolar Gold Fields, with effect from 15 February, 1958.
(By order and in the name of the Governor of Mysore )
( Sd. )S. M. SREENATH,
Under secretary to Government,
Education Department.
This document is marked Ex. F in Writ Petition No. 473 of 1967 and will be referred to as Ex. F hereafter. Dr. T. Thimmayya referred to therein and the State of Mysore are impleaded as respondents in all the above writ petitions and they shall hereafter be referred to as respondent and the State, respectively.
( 2 ) THE petitioner in Writ Petition No. 473 of 1967 is now serving as Principal of the Polytechnic at Mysore. He is a graduate in Science with Physics, Chemistry and Mathematics. He took post-graduate degree in Chemical Engineering of the Madras University.
( 3 ) THE petitioner in Writ Petition No. 482 of 1967 is a graduate in Mechanical Engineering of the mysore University. He is now serving as head of mechanical engineering section, in C. P. C. Polytechnic, Mysore.
( 4 ) THE petitioner in Writ Petition No. 497 of 1967 is now posted in additional charge of Joint director of Technical Education, Bangalore.
( 5 ) THE petitioner in Writ Petition No. 567 of 1967 is a graduate of the Mysore University in Civil engineering and is at present the Principal of the Polytechnic, Hassan.
( 6 ) THE petitioner in Writ Petition No. 1152 of 1967 is also a graduate of the Mysore University in civil Engineering and he is now working as the Principal of B. D. T. College of Engineering, davanagere.
( 7 ) THE respondent holds a degree in B. Sc. , (Hons.) and is a Ph. D. (Lond.) in Economics, Geology or Applied Geology. He is also a Fellow of the Geological Society. Incidentally, we may point out that the respondent, after his appointment as Assistant Geologist, went to England and acquired Ph. D. degree in Geology, obviously to improve his prospects.
( 8 ) THE undisputed facts are that by its order dated 5 July 1967 (marked as enclosure I) the government of Mysore ordered the establishment of a School of Mines, Kolar Gold Fields, at oorgaum. It was also provided that the school be placed under the administrative control of the director of Technical Education Department, who may be permitted to exercise the powers of the chairman of the managing committee till such time as the managing committee is constituted and starts functioning. The Director of Technical Education was required to submit definite proposals regarding the staff to be appointed. The Director of Technical Education Department sought by his co
