ORDER
Venkatachala, J.
1. One batch of Writ Petitions, W.P. Nos. 12401 to 12403 of 1991, and another batch of Writ Petitions, W.P. Nos. 12348 to 12350 of 1991, have come up before this Division Bench for hearing because of an order dated 8-11-1991 made by a learned single Judge of this Court, which reads thus:
'In the first batch of cases, the question raised is one relating to promotion of the petitioners and seniority of the petitioners vis-a-vis respondent-2. There has been some previous litigations in this matter. In view of several orders passed by the learned single Judge and thereafter in Writ Appeal by the Division Bench, consideration or re-consideration of the same may arise. Hence, it would be appropriate that these cases should be referred to Division Bench.
Though, in second batch of cases it is submitted that they are not connected with the first batch of cases which has been referred to Division Bench, it is submitted by the learned Counsel for the petitioners that they are in some way or the other connected with these petitions. Therefore they also stand referred to Division Bench under Section 9 of the Karnataka High Court Act, 1961.
Second set of papers shall be furnished within a period of two weeks from today unless dispensed with by the Division Bench.'
After we heard learned Counsel for the parties in Writ Petition Nos. 12401 to 12403 of 1991 and called upon the learned Counsel, who appeared before us in Writ Petition Nos. 12348 to 12350 of 1991 to have his say respecting them, it was represented by him that his Senior was engaged in a part-heard matter and therefore the hearing of these matters may be adjourned to week after next. When we required him to commence the arguments, we found him in difficulties in arguing the matters. So we thought it better to disconnect this batch of Writ Petitions, WP. Nos. 12348 to 12350 of 1991, and proceed to make an order respecting the former. Accordingly, we propose to dispose of Writ Petition Nos. 12401 to 12403 of 1991 by this order.
2. As the circumstances in which the present Writ Petitions have come to be filed by the petitioners will have a bearing in deciding them, we shall advert to the same at the first instance.
3. H. Venkataraman (Respondent-2, a Section Manager in the Corporation of the City of Bangalore (for short 'the Corporation'), was promoted on officiating basis as the Manager of the Commissioner's Office by a Memo No. 12(1) PR.463/82-83 dated 6-8-1983 issued by the Commissioner of the Corporation. He filed a Writ Petition, W.P. No. 13230 of 1988, before this Court arraying therein the Corporation and the State of Karnataka as the only respondents. He obtained an order dated 18-12-1990 from a learned single Judge of this Court, by which he got quashed entries in Column Nos. 2 and 3 of clause (b) of Sub-rule (2) of Rule 26 of the Karnataka Municipal Corporations (Amendment) Rules, 1987 (for short 'the 1987 Rules), which were as follows:
'Deputy Revenue Officers: By promotion from the cadreof Assistant RevenueOfficers.'
By the same order, he obtained a direction to respondent-1 to the effect that his (petitioner's) case for promotion with effect from the year 1986 for the post of Deputy Revenue Officers in the Corporation should be considered if found fit and a declaration that in such event, the petitioner shall be regarded as having become entitled to all monetary benefits flowing therefrom computed from the year 1986.
4. The said order of the learned single, Judge was questioned by petitioner-1 along with Hanumantharaya, A. Krishnappa, B.S. Ramappa in Writ Appeals No. 126 to 129 of 1991 considered by a Division Bench of this Court. On 6-2-1991, the said Writ Appeals were disposed off by the Division Bench by an order made therein, thus:
'We make it clear that in as much as the appellants before us were not parties in the writ petition and the judgment under appeal, namely, W.P. No. 13230/88, the said judgment will not bind them. Therefore, their position will not be altered to their detriment by reason of that judgment.
The other contentions are left open. Subject to this writ appeals are dismissed.'
The appellants, who were not satisfied with this order made by theDivision Bench, sought a clarification from the Division Bench inrespect of the said order. As a consequence thereof, the Appealshaving come up on 26-2-1991 for being spoken to before the DivisionBench, an order was made by it, thus:
'The matter having set down for being spoken to, all that is required to be stated is instead of 'therefore, their position will not be altered to their detriment by reason of that judgment' occurring in our order of 6/2, it shall read as 'therefore their position will not be altered to their detriment including seniority and promotion'.
If it becomes necessary to implement the judgment to create supernumerary posts to accommodate the writ petitioner the Corporation shall do so.'
The matter did not stop there as I.A.III was filed by respondent- 3 in the Appeals, who was the petitioner in the Writ Petition praying for issuance of a direction to the Corporation to give benefits of promotion, which was accorded to him by the order of the learned single Judge. That application having again come up before the same Division Bench on 5-4-1991, an order came to be made thereon, thus:
'All that is necessary to be stated having regard to our prior direction dated 26-2-1991, is, the inters seniority between the appellant and respondent-3 be decided by the Corporation on or before 31st of May 1991. Should any party be aggrieved, it is open to him to challenge the same by separate Writ Petition, I.A.III ordered accordingly.'
In complying with the order made by the learned single Judge in the Writ Petition and several orders made in the Writ Appeals, to which we have adverted, a Memo dated 30-5-1991 (Annexure-A in the Writ Petitions) came to be issued by the Commissioner of the Corporation, the material portion of which read:
'..As per the direction of the High Court in Writ Petition No. 13230/1988 Sri Venkataraman has been promoted retrospectively with effect from 5-8-1986 by creating supernumerary post.
Sri Hanumantharaya appellant No. 1 is promoted as DRO w.e.f. 20-10-1981. He is therefore senior to Sri Venkataraman and his seniority has to be protected as per the order of the High Court dated 26-2-1991. Therefore, he will be senior to Sri Venkataraman.
Sri A. Krishnappa and Sri B.S. Ramappa, Appellants 2 and 3 are promoted as DROs w.e.f. 26-10-1988 and 7-7-1988 respectively. As Sri Venkataraman has been promoted retrospectively with effect from 6-8-1986, Sri Venkataraman will be senior to Sri A. Krishnappa and Sri Ramappa. However, in view of the order of the Hon'ble High Court dated 26-2-1991, their seniority and promotion has to be protected. Therefore, they have to be treated as seniors to Sri Venkataraman. Hence they will become senior to respondent No. 3 Sri Venkataraman.
Since Sri Mylar and Sri A.N. Narayana Rao were promoted as DROs, on 26-10-1988, hence they will be juniors to Sri Venkataraman who was promoted on 6-8-1986.
They were not appellants in the Writ Appeals. Hence the respondent No. 3 Sri Venkataraman has to be placed above these two officers. Sri K.N. Nagaraju, Appellant No. 4 was promoted as ARO w.e.f. 25-6-1983 and promoted as DRO on 2-3-1991. As per the order of the High Court dated 26-2-1991 his seniority and promotion in the cadre of A.R.O. has only to be protected.
Sri K.N. Nagaraj was promoted as D.R.O. only on 2-3-1991. Hence he has to be necessarily junior to Sri Venkataraman, Sri Narayana Rao and Sri Mylar.
Hence, the inters seniority of the appellants and respondent No. 3 is determined as follows:
1. SriHanumantharaya
20-10-1981
2. SriB.S.Ramappa
7-7-1988
3. SriA. Krishnappa
26-10-1988
4. SriH.Venkataraman
6-8-1986
5. SriMylar
26-10-1988
6. SriA.N.Narayana Rao
26-10-1988
7. SriK.N.Nagaraju
2-3-1991
It is the said order which has come to be impugned by the petitioners in the present Writ Petitions arraying therein as respondent-1, the Corporation, as respondent-2, H. Venkataraman the petitioner in the earlier Writ Petition, W.P. No. 13230/88 who had obtained orders from a learned single Judge of this Court regarding his promotion by the quashing of Rule 26(2) (b) of the 1987 Rules.
5. The petitioners' case in these Writ Petitions is--
Petitioners-A.N. Narayana Rao and Hanumaiah when had been promoted on 26-10-1988 from the posts of Assistant Revenue Officers to the posts of Deputy Revenue Officers in the Corporation under the Karnataka Municipal Corporations Rules, 1977 (for short 'the 1977 Rules'), which were in operation respecting the employees of the Corporation, long prior to 1-3-1991, the date when respondent-2 was promoted as Deputy Revenue Officer, and when their promotion and seniority were directed to be protected by the order dated 26-2-1991 made by a Division Bench of this Court in Writ Appeal Nos. 126 to 129 of 1991, there was absolutely no reason for the Corporation for placing them below respondent-2, H. Venkataraman, in the inters seniority among Deputy Revenue Officers fixed under the impugned memo dated 30-5-1991 by the Corporation (respondent-1). Coming to the petitioner--K.N. Nagaraj, who became an Assistant Revenue Officer on 25-6-1983 by promotion and subsequently became eligible for promotion as Deputy Revenue Officer, his case was that he could not have been placed in the impugned Memo below respondent-2 who was promoted as the Commissioner's Office Manager on 6-8-1983, with reference to which date, if any, he could have claimed his entitlement to promotion as Deputy Revenue Officer. Therefore, the prayer made in the writ Petitions was for quashing the impugned memo of the Corporation dated 30-5-1991, in which inters seniority of Deputy Revenue Officers had been fixed, and for issuance of a direction in the nature of Mandamus, to the Corporation to include the name of the petitioner-Hanumaiah in the list of Deputy Revenue Officers of the Corporation, and also for issuance of a direction in the nature of Mandamus to the Corporation to re-fix the seniority of the petitioners and respondent-2 protecting their seniority, having regard to the dates on which they were entitled to be promoted or actually promoted as Deputy Revenue Officers. Respondent-1, the Corporation, in its statement of objections, has not disputed the claim of the petitioner-Hanumaiah to be included in the inters seniority list of Deputy Revenue Officers prepared by it, in that, his name, according to it, was not included therein by an inadvertant mistake.
6. Coming to the claim of the petitioner-A.N. Narayana Rao, it has been said in the statement, of objections of respondent-1 that though he had been promoted on 26-10-1988 as Deputy Revenue Officer much earlier to the dale of promotion of respondent-2, H. Venkataraman, on 1-3-1991, he could not be placed above H. Venkataraman because he had not obtained any order from the Division Bench of this Court to protect his seniority as had been done by other Deputy Revenue Officers who were similarly placed by filing Writ Appeals. As to the operation of 1977 Rules during the period when the appointments and promotions of the writ petitioners as also respondent-2 were made and the same Rules being the basis for the claim made for higher placement in the inters seniority list of Deputy Revenue Officers by the petitioners, there is absolutely no dispute raised by the Corporation.
7. Coming to the statement of objections filed by respondent-2 on 3-7-1991, as to the claim made by the petitioners for fixing their inters seniority among the Deputy Revenue Officers on the basis of 1977 Rules, it is stated therein, i.e., in Paragraph 7 thereof, thus:
'7. The Corporation has been following the C&R; Regulations in the matter of appointment and promotion of its employees. [Note: C&R; Regulations referred to herein are undisputedly the Bangalore Municipal Corporation (Service)(General) Cadre and Recruitment Regulations (for short 'the 1971 Regulations']. The mode of promotion to the post of D.R.O. is as follows:
Categoryof Post
Methodof Recruitment
D.R.O.
Bypromotion from the cadre of ARO's, Commissioner's Office Manager and CouncilSecretary.
Of the above three posts, the post of Council Secretary has been upgraded to the post of DRO, Hence the only two cadres from which promotions could be effected to the post of DRO and ARO's and Commissioner's Office Manager. The quota being followed was after promoting three ARO's, one Commissioner's Office Manager was being promoted. The fact that the Corporation has been following C & R Rules is evidenced by the reminder dated 26.10.1988 produced herewith Annexure-2. On a perusal of Annexure-R2 it is clear that the persons mentioned therein are being promoted as per C & R Rules. The proceedings of the Departmental Promotion Committee dated 10.8.1982 produced herewith at Annexure-R3 and the Memo dated 21.4.1979, produced herewith at Annexure-R4, clearly demonstrate that the Corporation is following the C & R Rules. Further Section 506(6) of the Act clearly states that untill other provision is made in that behalf the C & R Rules shall continue to hold the field. However, the 1st Respondent Corporation without considering the case of this Respondent as per the C & R Rules promoted a number of persons as DRO's insisting that only the KMC Rules of 1977 are applicable and that under the said Rules this Respondent is not eligible for promotion to the post of DRO. A true copy of the order promoting one of the petitioners and certain others as DRO's under the KMC Rules ignoring the claim of this Respondent under the C&R; Rules is produced herewith at Annexure-R5. It is respectfully submitted that as on the date Annexure-R5 came to be issued it was the turn of the Commissioner's Office Manager to be promoted as DRO and this Respondent was eligible and qualified to be promoted as DRO much earlier to the issuance of Annexure-R5'.
8. This is an appropriate stage where we should refer to Writ Petition No. 13230/88, in which a learned single Judge of this Court made the order dated 18-12-1990 quashing Rule 26(2)(b) of the 1987 Rules and directed the Corporation to appoint respondent-2 in these petitions as Deputy Revenue Officer from an anterior time, i.e., from 1986. In that Writ Petition where the present respondent-2 was the petitioner, he arrayed as respondents the Corporation and the State Government only, as has been indicated by us already. As seen from the order made in the Writ Petition (produced as Annexure-3), he had sought therein the quashing of Rule 26(2) (b) of the 1987 Rules urging, inter alia, that that amended Rule had taken away his right to promotion as Deputy Revenue Officer, which existed under the 1977 Rules. The learned single Judge assumed that Rule 26(2) (b) of the 1977 Rules, before its amendment, entitled the petitioner (respondent -2 here) for promotion, in that, he was the Manager of the Commissioner's Office, by stating in paragraph-2 of the order, thus:
'2. It is common ground that prior to the aforesaid amendment referred to supra produced herein as Annexure-B, the post of Deputy Revenue Officer was accessible to three different categories of persons namely (1) Council Secretary, (ii) Manager, Commissioner's Office, and (iii) Asst. Revenue Officers with minimum service of three years. Mr. Narayana Rao, learned Counsel for the petitioner, says that the promotional post of Deputy Revenue Officers had to be rotated amongst three categories in the proportion of 1:1:1. Mr. Keshavan, learned Counsel appearing for Mr. Castelino for the Corporation, says 'no'. Any how it is not necessary to get embroiled in this dispute because till 1986 the Manager of the Commissioner's Office had a chance for being promoted as Deputy Revenue Officer.'
What the learned single Judge has done, thereafter, is to rely upon a Decision of the Supreme Court in R.D. AGARWAL v. STATE OF UTTAR PRADESH, : [1987]3SCR427 and act on the observations made therein regarding the amending of Service Rules respecting promotional opportunities available to Government Servants, which read:
'It is well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated an authority competent to lay down qualifications for promotion is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changes retrospectively.
This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words such rules laying down in qualifications for promotion made with retrospective effect must necessarily satisfy the Articles 14 and 16(1) of the Constitution.'
By relying upon the said observations, the learned single Judge quashed Rule 26(2)(b) of the 1987 Rules, which amended Rule 26(2)(b) of the 1977 Rules, proceeding, as already pointed out, on the assumption that the petitioner (respondent-2 here), who had become entitled to promotion as Deputy Revenue Officer under the 1977 Rules, was denied such promotion retrospectively by reason of the 1987 Rules. The quashing of that Rule naturally led the learned single Judge to issue a direction to the Corporation to promote the petitioner (respondent-2 here) from the year 1986.
9. In the course of the arguments addressed before us in the present Writ Petitions, Sri H.N. Narayan, learned Counsel appearing for the petitioners sought to point out that the learned single Judge, while deciding Writ Petition No. 13230/88, had proceeded on an incorrect premise that respondent-2, who was the Manager of the Commissioner's Office, was entitled to promotion under Rule 26(2) (b) of the 1977 Rules, whereas it was in fact, not so. The relevant Rule in 1977 Rules, to which our attention was drawn, read:
'OctroiSuperintendents and Deputy Revenue Officers :
From theKMAS Cadre or by promotion of Assistant Octroi Superintendents and Asst.Revenue Officers.'
From a reading of the above Rule of the 1977 Rules, it becomes obvious that respondent-2, as the Manager of the Commissioner's Office, was not the person who was eligible to be promoted to the post of Deputy Revenue Officer from 6-8-1983 the same being the date on which he was promoted to officiate as Manager in the Commissioner's Office, In this state of things, Rule 26(2)(b) of the 1987 Rules should not have been quashed at the instance of respondent-2 here (petitioner in W.P. No. 13230/88), in that, the quashing of that Rule would have, from the point of view of the petitioner (respondent-2 here), would have got him no benefit at all.
10. However, the contentions urged on behalf of respondent-2 in these Writ Petitions, before us by Sri U.L. Narayana Rao are these:
That the quashing of Rule 26(2)(b) of the 1987 Rules, which substituted Rule 26(2)(b) of the 1977 Rules, does not have the effect of reviving the 1977 Rules, so as to make them become operative with regard to the promotions to the post of Deputy Revenue Officers in the Corporation. In that event, the 1971 Regulations, which were made under the City of Bangalore Municipal Corporation Act, 1949 (for short 'the 1949 Act') must be regarded as operative in respect of promotions which were effected and which are to be effected to the posts of Deputy Revenue Officers. If the 1971 Regulations were to operate, respondent-2 in the present Writ Petitions (petitioner in W.P. No. 13230/88) would have become entitled for promotion as Deputy Revenue Officer. In that situation, when respondent-2 is promoted as the Deputy Revenue Officer by an order made by the Corporation on 1-3-1991 retrospectively, that promotion itself has to be held to be valid and consequently, the inters seniority list among Deputy Revenue Officers, which is impugned in the Writ Petitions, should be upheld.
11. On the other hand, the contentions urged on behalf of the petitioners before us by Sri H.N. Narayan by way of reply to the contentions raised on behalf of respondent-2, are these:
The 1971 Regulations made under the 1949 Act continued to operate only till, under the successor Karnataka Municipal Corporations Act, 1976, the 1977 Rules were made and not thereafter. The 1977 Rules though were held to be inoperative as having been brought into effect without prior publication in the Karnataka Gazette, when those Rules were validated by an Ordinance, which was replaced by Act 40/1981, with effect from 12-8-1981, they became operative ever since, in as much as the validity of the 1977 Rules validated under Act 40/1981 has not come under challenge in any Court so far. If that be so, during the period in which the petitioners as well as respondent-2 were promoted or had to be promoted as Deputy Revenue Officers, the only Rules that were in operation and force, were the 1977 Rules.
12. Shri Narayana Rao's contention that the quashing of Rule 26(2)(b) of the 1987 Rules amending the 1977 Rules resulted in non-revival of the 1977 Rules if had to be accepted, there would be no valid reason as to why in respect of the 1971 Regulations, the same thing cannot be said, in that, the non-revival of the 1977 rules would result in the non-revival of the 1971 Regulations, the benefit of which was claimed by respondent-2. However, what cannot be overlooked is that when amended Rule 26(2)(b) of the 1987 Rules was quashed by the learned single Judge in the Writ Petition filed by respondent-2 on the ground that there was no power of amendment vested in the Rule Making Authority to make such a Rule with retrospective effect, the amended Rule 26(2)(b) of the 1987 Rules has to be regarded as one which was still born and void ab-initio. If that be so, the 1977 Rules have to be regarded as those not touched by the 1987 Rules and those which have remained in operation all through.
13. The aforesaid contentions of Sri Narayana Rao which are put forth on behalf of respondent-2, who has, in our view, made the learned single Judge quash Rule 26(2)(b) of the 1987 Rules amending the 1977 Rules, by filing Writ Petition No. 13230/1988 leading to the belief that he was entitled to promotion under the 1977 Rules while he was not so entitled, and obtained a Mandamus to the Corporation to promote him from 1986 itself, are devoid of substance for the reasons which we shall presently state.
14. The 1971 Regulations were those made under the City of Bangalore Municipal Corporations Act, 1949 (for short 'the 1949 Act'). They governed the service conditions of the Officers and servants of the Corporation before that Act was repealed by the Karnataka Municipal Corporations Act, 1976 (for short 'the 1976 Act'). Section 507 of the latter Act, by its second proviso, since provided that the Regulations made under the predecessor Act shall be deemed to have been done and taken under the corresponding provisions of that Act and shall continue to be in force accordingly unless and until superseded by any Act, they continued to operate even after the coming into force of the 1976 Act. The 1977 Rules were sought to be brought into force on 22- 12-1977 in the place of the 1971 Regulations which were operating till then by force of Section 507 of the 1976 Act. These Rules could be regarded as being under suspended animation till they were validated by Act 40/1981, in that, this Court, in some of its Decisions, has taken the view that on account of the fact that they had been promulgated without inviting prior objections from the public and considering them as required under law they wer6 unenforceable. However, when those Rules were validated which gave them the status of the provisions of the 1976 Act, by Act 40/1981 and when that validation has remained unchallenged till today, it is difficult to think that they (the 1977 Rules) did not come into force at all as now claimed by Sri Narayana Rao on behalf respondent-2, though respondent-2 had got the relief in his Writ Petition, W.P. No. 13230/88 on the plea that Rule 26(2)(b) of the 1987 Rules was void since it amended retrospectively Rule 26(2)(b) of the 1977 Rules. When the 1977 Rules made under the 1976 Act, because of its un-enforceability, has been validated by a validating Act 40/1981, we find it rather hard to think as to how the 1977 Rules are to be regarded as void and unenforceable when there is no challenge directed against the validity of that validating Act. Besides, when respondent-2 here had filed Writ Petition No. 13230/1988 and got quashed an amendment made to the 1977 Rules on the plea that that amendment took away from the 1977 Rules his vested right of promotion as already pointed out, we are unable to think how a contention could be raised on his behalf that the 1977 Rules cannot be regarded as those in force at all at the time the 1987 amendment to such Rules had come into effect. Such being the real position, when the promotion of respondent-2 as Deputy Revenue Officer was made not under the 1977 Rules, but on a direction issued by this Court in Writ Petition No. 13230/1988, it is difficult to regard such promotion of respondent-2 as the one which should adversely affect the seniority of the petitioners who were duly promoted under the 1977 Rules as Deputy Revenue Officers, and legitimately became entitled to be placed in the inters-seniority list above respondent 2, who, but for the Court Order, to which petitioners were not parties, could not have got promotion at all as Deputy Revenue Officer. In this view of the matter, we consider it just and reasonable to issue a direction to respondent-1 to refix the inters seniority of Deputy Revenue Officers placing the petitioners above respondent-2.
15. However, we shall also consider three more contentions which were strenuously urged by Sri Narayana Rao on behalf of respondent -2, the first of such contentions having been claimed to be supported by the decided cases of this Court and that of the Supreme Court though such consideration may result in repealed consideration of entire aspects.
16. The first contention, which we have in-a-way already dealt with, relates to the so-called non-revival of the 1977 Rules because of the quashing of Rule 26(2)(b) of the 1987 Rules. The Decision of the Supreme court in B.N. TIWARI v. UNION OF INDIA, : [1965]2SCR421 , is what is sought to be relied upon to support the said contention. The observations in that Decision claimed to advance the contention, are found in Paragraph-6 of the report and read thus:
'It is true that in Devadasan's case : (1965)IILLJ560SC , the final order of this Court was in these terms:-
'In the result, the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid'That, however, does not mean that this Court held that the 1952- Rule must be deemed to exist because this Court said that the carry forward Rule as modified in 1955 was declared invalid. The carry forward rule of 1952 was substituted by the carry forward rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus, by promulgating the new carry forward rule in 1955, the Government of India itself cancelled the carry forward rule of 1952, When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive. We are therefore of opinion that alter the judgment of this Court in Devadasan's case : (1965)IILLJ560SC , there is no carry forward rule at all, for the carry toward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Govt. of India substituted the carry forward rule of 1955 in its place. But, it must be made clear that the judgment of this Court in Devadasan's case is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule; it does not in any way touch the reservation for Scheduled Castes and Scheduled Tribes at 12 1/2% and 5% respectively; nor does it touch the filling up of Scheduled Tribe vacancies by Scheduled Caste candidate where sufficient number of Scheduled Tribe are not available in a particular year or vice-versa. The effect of the judgment in Devadasan's case therefore is only to strike down the carry forward rule and it does not affect the year to year reservation for Scheduled Caste and Scheduled Tribe or filling up of Scheduled Tribe vacancies by a number of Scheduled Caste in a particular, year if a sufficient number of Scheduled Tribe candidates are not available in that year or vice-versa. This adjustment in the reservation between Scheduled Caste and Tribe has nothing to do with the carry forward rule from year to year either of 1952 which had ceased to exist or of 1955 which was struck down by this Court. In this view of the matter, it is unnecessary to consider whether the carry forward rule of 1952 would be unconstitutional, for that rule no longer exists.'
17. The other Decision of the Supreme Court to which our attention was invited is of MOHD. SHAUKAT HUSSAIN KHAN v. STATE OF ANDHRA PRADESH, : [1975]1SCR429 . As seen from that Decision, the contention urged there for consideration by the Supreme Court is stated thus:
'The learned Advocate for the appellant has urged that the effect of striking down Act 9 of 1967 by the High Court of Andhra Pradesh was not to revive Act 8 of 1955 as amended by Act 10 of 1956 which being dead, could not be revived. Accordingly, the vesting of the inams in the Government under the repealed Act 8 of 1955 and Act 10 of 1956 has no legal validity'.
For repelling the said contention, the Supreme Court has referred to its earlier decision in B.N. Tiwari's case (supra). Observations made by Jaganmohan Reddy, J. speaking for the Court, read:
'In the case before us it has attempted to do something which the Legislature could not do, namely, to abolish imams which did not exist and which had already vested in the Government and which the Legislature could not abolish again. In these circumstances, the repeal of the enactment, which had already been given effect was a device for depriving the inamdars whose rights had been abolished, of their right of compensation, and was accordingly struck down as still-born, null and void, as such unconstitutional from its inception and cannot have the effect as if it had repealed the previous Act. On this analysis, the provisions of Act 8 of 1955 as amended by Act 10 of 1956 could not be held to have been repealed at all, and therefore they are in existence.'
18. The above Decisions of the Supreme Court being referred to in the Division Bench Decision of this Court in BALIPADI M.B. v. CHIEF SECRETARY TO GOVERNMENT, 1976(1) KLJ 310, the enunciation of the Supreme Court referred to above, is summarised thus:
'It is clear from the above enunciation that if a law is struck down as being still-born, null and void and unconstitutional, the entire Act inclusive of the repealing provision therein, must be deemed never to have been enacted at all, with the result the enactment repealed thereby continues to exist.'
19. If what is stated is the law governing the revival of a provision when the amendment made thereto is struck down by the Court, in the instant case when the substituted Rule, that is, Rule 26(2)(b) of the 1987 Rules, is quashed on the ground that the Authority making the Rule had no power to make it after accepting the contention advanced in that regard on behalf of the petitioner in Writ Petition No. 13230/88, we must hold that what is quashed by the order in that Writ Petition is the amendment and the quashing of such amendment cannot in any way affect the continued existence of Rule 26 (2)(b) of the amended 1977 Rules, as stood before its amendment in 1987.
20. The second contention relates to the effect of validation Act of 1981 on the 1977 Rules. As we have already held, the validity of the validating Act has remained unchallenged. Hence, the validating Act has continued to operate ever since it has come into force making the 1977 Rules operative.
21. However, our attention was invited to an order made by this Court in dismissing a Contempt Petition filed against the State, in an endeavour to show that the validation Act of 1981 is invalidated by this Court. It was the contention of the State in that Petition that Section 91-A, which is the validating Act under consideration since validated the earlier Rules, there was no contempt committed by the State in trying to give effect to the Rules concerned. However, the Review Petition fifed was dismissed by this Court by stating thus:
'Section 91A, on which reliance was placed by the learned Govt. Advocate, was not there when the respondents were transferred. Since there is no substance on the merits, it is unnecessary to consider I.A.I for condonation of delay.'
From the said Decision of this Court relied upon by Sri Narayana Rao, it is impossible to think that this Court has in any way touched upon the validity of the validation Act, as such. This apart, when respondent-2 here, on whose behalf the contention is raised, has got quashed Rule 26(2) (b) of the 1987 Rules, which amended the 1977 Rules, on the basis that that amended Rule if not quashed, will operate against him, we feel that we should not have entertained at all the contention advanced on behalf of respondent-2 though we have found it to be devoid of merit.
22. The third contention sought to be put forth on behalf of respondent-2 was that Section 506 of the 1976 Act allowed the 1971 Regulations to subsist for ever. We feel that this contention should not be allowed to be raised by a person, who had, as we have pointed out earlier, filed a Writ Petition on the ground that the 1977 Rules were in operation and that the amended Rule of 1987 had to be quashed Since it affected his vested right to be promoted under the 1977 Rules. Even otherwise, we are unable to see how such contention could be sustained when all that is said in Section 506 of that Act is that the conditions of service of officers and the employees of the Corporation, which were operative under the 1949 Act, will continue to operate till the new Rules are made under the new Act (the 1976 Act) as would govern their service conditions. When the 1977 Rules made were such new Rules and they had, in any event, taken the place of the 1971 Regulations after the coming into force of the validation Act 40/1981, question of continued operation of the 1971 Regulations does not arise at all. Hence, the third contention is liable to be rejected.
23. For the foregoing reasons, we allow these Writ Petitions, make the Rule issued therein absolute and direct respondent-1, the Corporation of the City of Bangalore, to re-do the inters-seniority list of the petitioners and respondent-2, who are in the cadre of Deputy Revenue Officers of the Corporation as at present, placing the petitioners above respondent-2 in such list to be re-done, within a period of three months from to-day.
24. The batch of Writ Petitions, W.P. Nos. 12348 to 12350/1991, which could not be disposed of by this Order for the reasons which we have given at the outset, is directed to be listed for hearing two weeks hence.