MUKESH BHAI CHHOTABHAI PATEL

JOINT AGRICULTURE AND MARKETING ADVISOR,

GOVT. OF INDIA AND ORS.

AUGUST 18, 1994

IK. RAMASWAMY AND N.P. SINGH, JJ.]

Se111ice Law-Tempormy appoilltment-Scheme for regularisation of- Conditions of applicabilitr-field inapplicable to employee who has not

passed the qualifying test.

The appellant was appointed on May 21, 1977 but was removed from service subsequently. He unsuccessfully challenged his removal before the Tribunal. In appeal to this Court it was contended on bis behalf that in view of the scheme framed by the Union of India vide its Circular No. 19/511/80-Estt. I dated 8.6.84, which prescribed that all persons appointed D temporarily to Group C posts on or prior to November 4, 1978 should be regularised, the appellant was entitled to regularisation; a proper construction of the circular would show that failure of the appellant to pass the test is not a ground to deny him regularisation.

Dismissing the appeal, this Court

HELD : Regularisation bas to be considered in the light of the scheme framed by the Department. It is not an automatic regularisation.

A reading of the Circular clearly indicates that the question of regularisation has to be done by a committee duly constituted for regularisation of F the persons appointed temporarily to Group C posts. Admittedly, the appellant did not pass the qualifying test conducted by the competent committe. Therefore, he could not be regularised. Thus, there is no illegality in the order passed by the Tribunal. [761-E, C-D]

Bhagwati Prasad v. Delhi State Mineral Develoment Corporation, G [1990] 1 S.C.C. 361, cited.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5713 of 1994.

From the Judgment and Order dated 19.4.90 of the Central Ad- H 759

A ministrative Tribunal, Additional Bench at New Bombay in 0.A. No. 368 of 1987.

B.K. Mehta, Ms. Divya Bahal, Ms. Meeta Sharma and B. V. Desai for the Appellant.

B K.N. shu1kla, Avtar Singh Rawat and S.N. Terdol for the Responc

dents.

The following Order of the Court was delivered :

Leave granted.

The appellant was appointed on May 21, 1977 and was removed on April 13, 1987. When the appellant approached the Tribunal, the Tribunal in the impugned order dated April 19, 1990 made in O.A No. 368/87 dismissing the petition. Thus this appeal by special leave.

Shri Mehta, learned senior counsel for the appellant placing heavy reliance on the decision of this Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, [1990] 1 SCC 361, contended that the Union of India, Ministry of Irrigation had issued the circular No. 19/50/80- Estt. I, dated 8.6.1984, directing that all those candidates temporarily E appointed on or prior to November 4, 1978 should be regularised and that the question of the appellant appearing for the test asked for by the Department and his nonclearance should not be a ground to deny him regularisation of his temporary appointment on the proper construction of the above circular, it is clear that he is entitled to that relief. Therefore, F the Tribunal has committed gravious error in dismissing the appellat' s 0 .A

The said circular reads as umder :

"Sub : Regularisation of appointmnets made by CWC to the grade of LDCs/Steno prior to taking over of recruitment by the S.S.C.

Sir,~

i am directed to refer to the correspondence rusting with the CWC letter No.8/U012/2/82-E.VII dated 19th Jan' 89, on the above subject and to say that it has been decided with the approval of DPAR, that all ad-hoc appointments made in the grade of

MUKESH BHAI BHAI PATEL.v. IT. AGRICULTURE At-JD MRKTG. ADVJSOR761

LDCs/Stenos prior to 4.11.1978 may be regularised as a special A case. The DPAR vide their OM No. 24012/41178-Estt.(B) dated 4-11-1978 and made it mandatory for every Deptt. that recruitment to Group 'C' posts in the attached and sub-offices should be made only through the SSC. Hence 4.11.1978 has been fixed, as the cut-off date for regularisaing the adhoc appointment in the grade of LDCs/stenos.

2. I am to request that necessary action may now be taken immediately under intimation to all concerned."

A reading of it clearly indicates that the Government have approved C the proposal made by the DPAR that all ad/we appointments made in the grade of LDCs/Stenos prior to November 4, 1978 be regularised as special case. It is also made mandatory for every department that the recruitment to group 'C' posts in the attached sub-offices should be made only through S.S.C. thereafter. In that context, November 4, 1978 has been fixed as a cut-off date for regularisation of adhoc appointments in the grade of D LDCs/Stenos. It 1s clear that the question of regularisation has to be done by a committee duly constituted for regularisation of the persons appointed temporarily to Group C posts, namely, LDCs/Stenos. Admittedly, the appellant had appeared thrice. It is stated that on one occasion the result was not declared. Admittedly on two occasions results were declared and E he did not pass the qualifying test conducted by the competent committee.

Therefore, he could not be regularised. Regularisation in that context has to be considered in the light of the scheme framed by the Department. It is not an automatic regularisation as contended for. Under these circumstances, we do not find any illegality in the order passed by the Tribunal.

The appeal is accordingly dismissed. No Cost.

T.N.A.

Appeal dismissed.

SECRETARY, QUILON DISTT., MOTOR TRANSPORT

WORKERS' COOPERATIVE SOCIETY LTD.

I'.

REGIONAL TRANSPORT AUTHORITY AND ORS.

AUGUST 18, 1994

[K. RAMASWAMY AND N.P. SINGH, JJ.]

Motor Vehicles Act, 1939 : Section 58.

Motor Vehicles Act, 1988: Sections 72, 81, 217(2){b).

Grant of stage Carriage Pennit under 1939 Act-Expiry of permit-Coming into force of 1988 Act-Repeal of 1939 Act-Renewal of permit-Held with the expiry of pennit the right to renewal under the 1939 Act stands repeale~Operator has to make a fresh application and seek a grant D under section 72-IVhen such an. application was not made rejection of renewal application under the 1939 Act held valid.

The appellant-society obtained a stage carriage permit under Section 58 of the Motor Vehicles Act, 1939 for a period of three years. In the meanwhile, the Motor Vehicles Act 1988 came into force on July 1, 1989.

E Thereafter, the appellant made an application to the Regional Transport Authority, seeking renewal of the permit which was rejected on the ground that there Is no power under the Act o grant renewal to a permit granted under the 1939 Act. The order of Regional Transport Authority was confirmed by the State Transport Appellate Authority and on appeal it was F upheld by the High Court.

In appeal to this Court, It was contended on behalf of the appellant that renewal Is In continuation of the permit granted by the Regional Transport Authority. By operation of Section 217(2)(b), It Is a permit granted under the old Act and continued in Its operation and that, tbere- G fore, by deemlug fiction the appella.nt is entitled to the renewal as a substantive right ..

Dismissing the appeal, this Couirt

HELD : 1. The High Court Is right In its conclusion. By necessary H Implication of section 217(2)(b) the right to renewal under the Motor 762

MOTOR TPT. WORKERS' CO-OP. SOCY. LTD. v. REG NL TRANSPORT AlITHORITY 763

Vehicles Act of 1939 stands repealed with the expiry of the period of grant A given in the permit under the repealed Act, by necessary implication the operator has to make fresh application in the prescribed manner to the concerned Regional Transport Authority or State Transport Authority and seek a grant under section 72. Since the application was not made for fresh grant under the 1988 Act, the rejection of the renewal application under B 1939 Act or under the 1988 Act is perfectly legal. [765-8, C, El

2. The grant of renewal is no more than a fresh permit to operate the transport service for a fresh period mentioned in the renewed permit.

Therefore, the operation of the permit issued under section 58 of the repealed Act of 1939 is a terminus with the expiry of the period of the grant C and the operation of the Act of 1939 ceases to have effect from that date.

Any right to run the permit, therefore, must be under the permit granted under the Act as per its provisions. Harmonious construction of the relevant provisions would lead to the above couclusion lest any other constructiou would Dy in the face of the express provisions of the Act. The application for the renewal would not lie under the Act. [765-C to El D

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5729 of 1994.

From the Judgment and Order dated 16.9.93 of the Kerala High E Court in W.A. No. 1169 of 1993.

Joseph Vellapally, B. V. Deepak and G. Prakash for the Appellant.

G. Viswanatha Iyer and M.A. Firoz for the Respondents.

The following Order of the Court was delivered : F

Leave granted.

This appeal arises from the judgment of the Division Bench of the Kerala High Court made in Writ Appeal No. 1169 of 1993 dated 16.9.93.

The appellant is a registered cooperative society consisting of workers and G it had obtained certain stage carriage permits. One among which was on the route Kundara-Chinnakkada via Anchalmood and Civil Station of 22 Kilometers distance. The appellant had obtained the permit under s. 58 of the Motor Vehicles Act, Act IV of 1939 on December 23, 1987 for a period of three years which stood expired by December 22, 1990. In the H

A meanwhile, the Motor Vehicles Act No. 59 of 1988, (for short 'the Act') has come into force on July I, 1989 in relation to the State of Kerala. The appellant made an application to the Regional Transport Authority, Kollam, on January 4, 1991 seeking renewal .of the permit. The Regional Transport Authority rejected the application on the ground that there is

B no power under the Act to grant renewal to a permit granted under Act IV of 1939. When the appellant carried the matter in appeal, State Transport Appellate Authority confirmed the same and the High Court by the learned Single Judge and the Division Bench upheld the order of the State Transport Authority. Thus this appeal by special leave.

C It is contended for the appellant that renewal is in continuation of the permit granted by the Regional Transport Authority on December 23,

1987. By operation of s.217(2)(b), it is a permit granted under the old Act and continued in its operation and that, therefore, by deeming fiction the appellant is entitled to the renewal as a substantive right and it cannot be D rejected on the ground that after the Act has come into force the appellant cannot seek the renewal under the Act by operation of the statutory deeming fiction granted by Clause (b) of sub-s.(2) of s.217. We find no force in the contention. Clause (31) of s.3 defmes permit means permit issued by a State or Regional Transport Authority or an Authority prescribed in ibis behalf under this Act authorising the use of Motor E Vehicle as a transport vehicle. Section 72 gives substantive right to grant the permit and s. 81 deals with duration and renewal of the permit.

Sub-s.(1) provides that a permit other than a temporary permit issued under s. 87 or a special permit issued under ub-s. (8) of s.88 shall be effective without renewal for a period of five years. The proviso is not F necessary. Therefore, it is omitted. Sub-s.(2) provides that a permit may be renewed on ari application made not less than fifteen days before the date of expiry. Permit granted under subs.(1) of s.72 of the Act shall have, therefore, the duration of five years by operation of sub-s.(1) of s.81 and renewal shall be under sub-s.(2) in the prescribed manner. In other words, the permit granted under s.72 may be renewed for a further period of five G years and in an appropriate case, it may be refused. The condition precedent is that the initial grant of permit must be under the Act.

Section 217(2)(b) speaks of only the existing certificate of fitness or registration or licence or permit issued or granted under the repealed H enactments and notwithstanding the appeal of the Motor Vehicles Act IV

MaroR TPT. WORKER•' CO-OP. SOCY. Lm. 'REG NL TRANSPORT AUrnORITY 765

of 1939, by operation of sub-s.(1) of s.217, the permit shall continue to have A effect after such commencement from 1.7.89 under the repealed Act as if that Act was in operation. Under the same conditions and for the same period, as if the Act had not been passed. In other w_ords, notwithstanding the repeal of the Act IV of 1939, the permit issued under the repealed Act will continue to be operative for the period for which it was issued as if B this Act had not been passed and the repealed Act continues to be in operation. With the expiry of the period of grant given in the permit under the repealed Act, by necessary implication the operator has to make fresh application in the prescribed manner to the concerned Regional Transport . Authority or State Tranport Authority and seek a grant under s.72. The grant of renewal is no more than a fresh permit to operate the transport C service for a fresh period mentioned in the renewed permit. Therefore, the operation of the permit issued under s.58 of the repealed Act IV of 1939 is a terminus with the expiry of the period of the grant and the operation of the Act IV of 1939 ceases to have effect from that date. Any right to run the permit, therefore, rµust be under the permit granted under the Act D as per its provisions. Harmonious construction of the relevant provisions would lead to the above conclusion lest any other construction would fly in the face of the express provisions of the Act. By necessary implication of s.217(2)(b) the right to renewal under the Act JV of 1939 stands repealed with the expiry of the period of grant of the permit made under the repealed Act. Since the application was not made for fresh grant under E the Act, the rejection of the renewal application under Act IV of 1939 or under the Act is perfectly leg.iJ.. The High Court is right in its conclusion.

The application for the renewal would not lie under the Act.

Pursuant to the interim order passed by this Court on April 4, 1994, if the permit of the intervenor is cancelled and the renewal is made in F favour of the appellant, obviously with the dismissal of the appeal, the renewal would stand cancelled and the permit granted to the intervenor would stand revived. The appeal is accordingly dismissed but without costs.

T.NA.

Appeal dismissed.