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1983 DIGILAW 315 (KER)

C. P. Karthiyani v. Block Development Officer

1983-12-08

K.BHASKARAN, U.L.BHAT

body1983
JUDGMENT Bhaskaran, Ag. C.J. 1. The judgment of the Court was delivered by Bhaskaran, Ag. C. J. - Writ Appeal Nos. 201 and 409 of 1983 are respectively against the dismissal of O. P. Nos. 1313 and 1119 of 1983 by our learned brother M. P. Menon, J. Those writ petitions were filed by the appellants/petitioners to challenge the validity/enforceability of the Kerala Public Services (Amendment) Ordinance, 1983 (No. 5 of 1983) issued on 8th February 1983. In the writ Appeals the challenge is made against the Kerala Public Services (Amendment) Ordinance, 1983 (No. 36 of 1983) promulgated on 7th October 1983 in as much as Ordinance No. 5 of 1983 which was under challenge in the writ petitions, so also Ordinance No. 16 of 1983 promulgated on 7th March, 1983, during the pendency of the writ petitions had lapsed by virtue of the provisions contained in Art.213(2) of the Constitution of India, and in their place the present Ordinance No. 36 of 1983 has been promulgated on 7th October 1983. In O. P. Nos. 4137, 4557, 5252, 5560 and 7335 of 1983 the same relief is sought by the respective petitioners. The writ Appeals and the writ petitions referred to above were all heard together and are being disposed of by this common judgment. 2. The Writ Appeals and the Writ Petitions are treated as proceedings challenging Ordinance No. 36 of 1983, hereinafter referred to as the Ordinance, as the other two Ordinances have already lapsed and are not in force. 3. R.9 of the Kerala State and Subordinate Services Rules, 1958, for short the general rules, as it now stands, so far as it is material for our present purpose, reads as follows: - "9. Temporary appointments. 3. R.9 of the Kerala State and Subordinate Services Rules, 1958, for short the general rules, as it now stands, so far as it is material for our present purpose, reads as follows: - "9. Temporary appointments. - (a) (i) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily : Provided that before a person is appointed x x x Note.- (1) x x x (2) x x x (3) x x x provided that a person appointed under this clause by direct recruitment to a post other than teaching post and a post covered by the proviso to clause (iii) of R.10(b) shall not be allowed to continue in such post for a period exceeding one hundred and eighty days. x x x (iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules". 4. Over the years, by virtue of R.9, provisional appointments were being made through the Employment Exchanges because P.S.C. was unable to make selections in time. In the wake of Bangalore Water Supply and Sewerage Board v. Rajappa ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) (for short, Sewerage Board's case), this Court in Umayammal v. State of Kerala ( 1983 KLT 829 (FB)) (for short Umayammal's case) held that all departments of State Government except those of Police, Jails, Judiciary etc. were industries and certain categories of employees therein were workmen entitled to protection of Industrial Disputes Act, 1947 (I.D. Act), and this led to the Ordinance inserting S.4 in the Kerala Public Services Act, with the avowed object of laying down legislation that Government employees are governed only by the Act and the Rules notwithstanding the I.D. Act etc. with the result that the protection of I.D. Act is denied to the provisional employees; hence they are challenging the Ordinance. with the result that the protection of I.D. Act is denied to the provisional employees; hence they are challenging the Ordinance. Actually, neither the Supreme Court in the Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) nor the Full Bench of this Court in Umayammal's case ( 1983 KLT 829 (FB)) had given any indication that it shall not be open to the State to legislate in such a way as to specifically exclude the operation of the provisions of the I.D. Act insofar as they relate to State public services. In Para.16 of Umayammal's case ( 1983 KLT 829 (FB)) the Full Bench of this Court has stated as follows: "In spite of S.25J it may be possible to exclude the operation of the provisions of Chap.5A of the Act by a positive provision in any new legislation. However one cannot say that R.9 of the K.S.S.R. is such a positive provision in any way repealing either expressly or by implication the provisions in Chap.5A of the Act as regards temporary Government employees who are workmen coming with the ambit of the Act. It could not also be said that there is any inconsistency between the provisions in Chap.5A of the Act and R.8 of the K.S.S.R., because of the time limit fixed for the period of continuance in service of a temporary appointee as per the said rule. Such time limit would certainly apply to a person who will not come within the ambit of the term 'workman' as defined in the Act." In the Sewerage Board's case (1978 (28) SCC 213= AIR 1978 SC 548 ) in Para.73 at page 570 what Justice Krishna Iyer observed reads as follows: - " That is a question of interpretation and statutory exclusion; but, in the absence of Such provision of law, it may indubitably be assumed that the key of aspects public administration like public justice stand out of the circle of industry. Even here, as has been brought out from the excerpts of ILO documents, it is not every employee who is excluded but only certain categories primarily engaged and supportively employed in the discharge of the essential functions of constitutional government. Even here, as has been brought out from the excerpts of ILO documents, it is not every employee who is excluded but only certain categories primarily engaged and supportively employed in the discharge of the essential functions of constitutional government. In a limited way, this head of exclusion has been recognised throughout." Again in Para.161 at page 596 of the report, under category IV (b) it is stated as follows : - " Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies." In clause (d) of category IV on the same page what has been stated reads as follows: - " Constitutional and competently enacted legislative provision may well remove from the scope of the Act categories which otherwise may be covered thereby." In Para.23 at page 557 of the report, in the Judgment of Beg, C. J., who concurred with Krishna Iyer, J., it has been observed as follows : - "Hence, to artificially exclude State run industries from the Sphere of the Act unless statutory provisions expressly or by a necessary implication have that effect, would not be correct. The question is one which can only be solved by more satisfactory legislation on it." From the passages quoted from the Sewerage Board's case (1978 (28) SCC 213= AIR 1978 SC 548 ) and Umayammal's case ( 1983 KLT 829 (FB)) it is abundantly clear that neither the Supreme Court nor the Full Bench of this Court had injuncted the State from making enactment for positively excluding the application of the provisions of the I.D. Act to the persons in the State Public Service; not only that, they did not doubt the legislative competence or the propriety of the State making Legislation for such positive exclusion. If we may say so, to place the position beyond the pale of controversy, those decisions have invited the amendments and State has only acted with full legislative competence in promulgating the Ordinance under challenge. 5. In exercise of the powers conferred by the proviso to Art.320(3) of the Constitution of India, the Governor issued the Kerala Public Service Commission (Consultation) Regulations, 1957. 5. In exercise of the powers conferred by the proviso to Art.320(3) of the Constitution of India, the Governor issued the Kerala Public Service Commission (Consultation) Regulations, 1957. Later, for the purpose of regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala, the Kerala Public Services Act, 1968 (the Act) was enacted by the Kerala Legislature. S.2(1) of that Act provided: - "2. Regulation of recruitment and conditions of service. - (1) The Government may make rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala." S.3 of the Act reads: - "3. Continuance of existing Rules. - All rules made under the proviso to Art.309 of the Constitution of India, regulating the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala and in force immediately before the 17th September, 1968, shall be deemed to have been made under this Act and shall continue to be in force unless and until they are superseded by rules made under this Act." The object and reasons of the Act are stated as follows: - "Art.309 of the Constitution of India provides that subject to the provisions of the 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 State. But no such Act has been enacted in the State. The practice so far has been to issue rules under the proviso to Art.309 of the Constitution. But these rules are not subject to scrutiny by the Legislative Assembly. It is considered necessary to enact a Legislation empowering the Government to make rules governing the conditions of service of persons appointed to public services and posts in connection with the affairs of the State subject to scrutiny by the Legislative Assembly." 6. There are other rules like the Kerala Civil Services (C. C. and A.) Rules, 1960, the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960, the Kerala Government Servants' Conduct Rules, 1960 etc. made in relation to the service of the persons in public services. 7. There are other rules like the Kerala Civil Services (C. C. and A.) Rules, 1960, the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960, the Kerala Government Servants' Conduct Rules, 1960 etc. made in relation to the service of the persons in public services. 7. The Act as it stood before its amendment by the Ordinance under challenge in these cases, and the various general and special rules framed thereunder appear to have been taken for granted by the State Government as being sufficient to govern and regulate effectively the recruitment and conditions of service of the persons in public services. A new situation which the Legislature presumably did not foresee at the time of making the Act arose with the historic decision of the Supreme Court in the Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) referred to above, followed by Umayammal's case ( 1983 KLT 829 (FB)). 8. Apparently, it was because the State Government felt it necessary, in the light of the decision of the Supreme Court in Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) and that of the Full Bench of the Court in Umayammal's case ( 1983 KLT 829 (FB)), that the loop-holes, if any, in the Act had to be plugged so that the Act and the Rules framed under the authority of the Act were sufficient, effective and complete, beyond the pale of controversy, to deal with the recruitment and conditions of service of the personnel in public services that the promulgation of the Ordinance was contemplated. S.4 of the Ordinance under challenge, which alone is material for our purpose, reads as follows: - "Notwithstanding anything contained in chap.5A or in any other provision of the Industrial Disputes Act, 1947 (Central Act 24 of 1947) or in any other law for the time being in force, or in any judgment, decree or order of any court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service (including termination of service) of any person appointed to any such service or post shall be governed by the provisions of this Act and the rules made or deemed to have been made thereunder". It may be noted that after Umayammal's case ( 1983 KLT 829 (FB)) a series of writ petitions were filed in this Court by those persons who had been appointed for a period of 180 days under R.9 of the general rules, when the Departmental authorities took steps to terminate their appointments on the completion of 180 days to give place to persons advised by the Kerala Public Service Commission for appointment to the respective posts. The contention raised was that if the temporary employees were entitled to the benefits of the I.D. Act, the benefits of S.25-H would so operate as to debar any appointment of new appointees being made, as that would directly contravene S.25-H of the I.D. Act; accordingly, once the temporary employee obtained the right under Chap.5A of the I.D. Act, S.25-H would operate so as to nullify any appointment sought to be made on the advice made by the P.S.C. If this contention is accepted, it would mean that temporary employees would have to continue for all times without being displaced by regular appointees. Negativing the contentions put forward by the petitioners a Division Bench of this Court in Viswambharan v. State of Kerala ( 1983 KLT 635 ) which disposed of a batch of writ petitions, pointed out: "By the very nature of the rule, appointees thereunder (R.9) cannot defeat the rights of applicants who stand before the Public Service Commission for regular recruitment, seek their opportunity and are advised for appointment on the basis of their qualifications and eligibility." The provisions of the I.D. Act cannot override the Constitutional rights of the persons who had been selected by a due process of selection by the Public Service Commission; R.9(a) relates not to regular appointments in regular vacancies by a regular method; such appointment, as R.9(a)(i) indicates, is appointment, of a person "otherwise than in accordance with the said rules" temporarily; and R.9(a)(iii) provides that a person appointed under clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules; this is subject to the proviso that persons appointed under clause (i) shall be replaced in the order of seniority based on the length of temporary service in the unit. Clause (iv) reads: - "A person appointed under clause (i) or (ii) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim in future appointment to such service, class or category." The Division Bench also pointed out the Constitutional position under Art.320 read with Art.14 and 16 of the Constitution: " Art.14 is of course general in character assuring equality before law and equal protection of the laws within the territory of India. Art.16 works out this rule of equality in the matter of public employment. Clause (1) of Art.16 guarantees to all citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Equality of opportunity envisages that as between persons who are qualified and unqualified, qualified persons must necessarily have preference in being appointed to the office for which they are qualified. There must necessarily be an occasion for their claims to be considered before selection is made. When the number of applicants exceed the number of posts there must necessarily be a process of selection in recruitment. The procedure for selection must be fair and equitable which alone will secure the guarantee of opportunity envisaged in Art.16(1). The Constitution itself envisages the Public Service Commission of the Union as well as of the States as bodies in whom vests the responsibility for directing the recruitment to the civil services of the Centre and the States respectively. When the constitution envisages such bodies and envisages function for such bodies, in the exercise of those functions the guaranteed right to equality will be worked out. In other words, the practical application of the rule of equality of opportunity must inform the functioning of the Public Service Commission." The provisions of R.9 make it clear that it is not as if the appointees under that rule have been recruited after a contest among all those who are eligible. The provisions of the I. D. Act cannot override the Constitutional rights of the due process of selection by the Public Service Commission. The provisions of the I. D. Act cannot override the Constitutional rights of the due process of selection by the Public Service Commission. Rights of persons temporarily appointed by way of stop-gap arrangement cannot be read so as to defeat the Constitutional rights as, otherwise, it would defeat the rule of equal opportunity envisaged under Art.16(1) of the Constitution and the provisions of Art.320, which enable the Public Service Commission to resort to regular recruitment in order to secure that opportunity to the applicants. 9. That the Governor is competent to issue an Ordinance with respect of matters relating to State Public Services, covered by Entry 41, List II of Schedule VII to the Constitution in exercise of the powers conferred under Art.246(3) read with Art.213(i) of the Constitution is beyond doubt. It is also clear that the Act has been enacted in exercise of the power by the Legislature under Art.246(3) read with Entry 41 in List II of Schedule VII to the Constitution. The only point in issue is whether the amendment introduced by the insertion of S.4 of the Act by the ordinance is constitutionally valid. 10. It was contended by Sri P. K. Appa Nair, who led the arguments on behalf of the appellants/petitioners, that the ordinance has been issued without legislative competence in that behalf. Once it is accepted that the Act has been enacted with legislative competence by virtue of the provisions contained in Art.246(3) read with Entry 41, List II of Schedule VII to the Constitution, and that its validity is not open to challenge, the only other point that could detain us is whether S.4 now introduced by S.3 of the impugned Ordinance is beyond the competence of the Governor who promulgated the ordinance by virtue of the provisions contained in Art.213(i) of the Constitution. Sri Appa Nair has fairly conceded that it is open to the Governor to promulgate an Ordinance to amend the Act so long as it did not go beyond the ambit and scope of Entry 41 in List II of Schedule VII. Sri Appa Nair has fairly conceded that it is open to the Governor to promulgate an Ordinance to amend the Act so long as it did not go beyond the ambit and scope of Entry 41 in List II of Schedule VII. According to him, the effect of S.4 of the Act introduced by the Ordinance is not so much to amend the Act, as it professes to do apparently, but covertly, to nullify the effect of the provisions of the I.D. Act, particularly those of Chap.5A thereof, in so far as it relates to employees in public services. 11. We find it difficult to appreciate this argument. At the risk of repetition, we may point out that the power to legislate on public services by virtue of Entry 41, List II, is exclusively vested in the State. So also by virtue of the provisions contained in Entry 70 of List I, the power to legislate on Union Public Service, All India Services and Union Public Service Commission is exclusively vested in the Centre. The position as to whether a particular enactment trenches or encroaches substantially upon a subject on which the Parliament or the Legislative Assembly, as the case may be, so as to render it constitutionally invalid, for want of legislative competence has to be decided by testing the pith and substance of the enactment; where the encroachment, if any, is incidental not substantial, it has only to be ignored and the validity of the enactment on the subject with respect to which the Parliament or the Legislative Assembly, as the case may be, is competent to legislate, has to be upheld. The necessary guide lines in this behalf have been laid down by the Privy Council in Prafulla Kumar v. Bank of Commerce ( AIR 1947 PC 60 ). The principles laid down therein have been restated by the Privy Council in Megh Raj v. Allah Rakhia ( AIR 1947 PC 72 ) and by the Supreme Court in D. N. Banerji v. P. R. Mukherjee ( AIR 1953 SC 58 ) Krishna v. State of Madras (AIR 1957 SC 29) and Southern Pharmaceuticals v. State of Kerala (1981 (4) SCC 39). It is also well settled that repugnancy would arise only where conflict occurs between the two enactments on subjects included in the concurrent list. It is also well settled that repugnancy would arise only where conflict occurs between the two enactments on subjects included in the concurrent list. The decisions of the Supreme Court in Premnath v. State of Jammu and Kashmir ( AIR 1959 SC 749 ), The Bar Council of U. P. v. State of U. P. ( AIR 1973 SC 231 ), The Kerala State Electricity Board v. Indian Aluminium Co. ( AIR 1976 SC 1031 ), Krishna v. State of Madras (AIR 1957 SC 29) and T. Barai v. Henry Hove ( AIR 1983 SC 130 ) are also on the point. 12. At best what could be said of the Ordinance is that it aims at by-passing the Industrial Disputes Act for the purpose of making the Act effective for the fulfilment of the object with which it has been enacted. That being legitimate exercise of the power vested in the Governor, the Ordinance could not be challenged saying that it was promulgated without competence. In Harishankar Bagla v. M. P. State ( AIR 1954 SC 465 ) Mahajan, C.J. has observed as follows: - "By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under S.3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions." Is it correct to hold that the Ordinance amending the Act with the avowed object of excluding the provisions of the Industrial Disputes Act in general, Chap.5A thereof in particular, amounts to the amendment of the Industrial Disputes Act? There could be no doubt that the State is competent to legislate on a subject exclusively reserved for it, so long as the enactment, inclusive of the amendments, if any, read as a whole, in pith and substance, does not substantially encroach upon any subject reserved for the Centre in List I or upon any subject in the Concurrent List with respect to which the Centre has already occupied the field; therefore an amendment to an enactment, validly made with legislative compliance would not become invalid on account of the particular form of the amendment or the procedure adopted in bringing about the amendment. In other words if the State was competent to enact on the subject of State Public Services, and also amend that Act, merely because that amendment sought to by-pass the Industrial Disputes Act, enacted by the Centre in exercise of the power derived from Entry 22 in List III, it could not be said that such amendment amounts to the amendment of the Industrial Disputes Act itself. It has also to be remembered that the question of repugnancy could arise only in case we find that the Ordinance is not one related to State Public Services, but to industrial disputes covered by Entry 22 in the Concurrent List (List III). Assuming for the sake of argument that the Ordinance to any extent encroaches upon or even amends the Industrial Disputes Act to the extent it operates in the State of Kerala, that is bound to prevail inasmuch as the promulgation of the Ordinance is only after containing the instructions from the President as required in the proviso to Art.213(1) of the Constitution. In this context it would be useful to refer to a recent decision of the Supreme Court in M/s Hoechst Pharmaceuticals Ltd. v. State of Bihar ( AIR 1983 SC 1019 ), wherein Sen, J. who spoke for the Bench, in Para.68 of the judgment, stated as follows: - "The question of repugnancy under Art.254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become valid. Art.254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non obstante clause in Art.246(1) read with the opening words 'Subject to' in Art.246(3). In such a case, the State law will fall not because of repugnance to the Union law but due to want of legislative competence. If such overlapping exists in any particular case, the State law will be ultra vires because of the non obstante clause in Art.246(1) read with the opening words 'Subject to' in Art.246(3). In such a case, the State law will fall not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression 'a law made by Parliament which Parliament is competent to enact' in Art.254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as 'List I'. But if Art.254(1) is read as a whole, it will be seen that it is expressly made subject to Clause (2) which makes reference to repugnancy in the field of Concurrent List - in other words, if clause (2) is to be the guide in the determination of scope of clause (1), the repugnancy between Union and State law must be taken to refer only to the Concurrent field. Art.254(1) speaks of a State law being repugnant to (a) a law made by Parliament, or (b) an existing law." In Para.69 of the same judgment it is observed as follows: - "The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e., with respect to one of the matters enumerated in the Concurrent List. Hence, Art.254(1) cannot apply unless both the Union and the State Laws relate to a subject specified in the Concurrent List, and they occupy the same field." 13. In the light of the guideline given by the Supreme Court on the question relating to legislative competence with respect to Entries in List I and List II respectively by the Parliament and the State Legislature, and on the question of repugnancy that might arise with respect to Legislations that might be made by Parliament and the State Legislature with respect to items in the Concurrent List, we have to examine whether the Ordinance is bad either for want of legislative competence or for the reason of repugnance. As already made clear, if the legislation is with respect to an item in List II, as it is in the present case, strictly speaking, the question on repugnance does not arise at all. The Industrial Disputes Act which was enacted in 1947 could not be understood to be meant for controlling the enactment made with respect to State Public Services which falls exclusively within the legislative competent of the State. By virtue of the general rules and the various special rules made by the Governor in exercise of the powers vested in him under Art.309 of the Constitution, which were later by reason of the provisions contained in S.2 of the Act treated as rules made under the Act, elaborate procedure has been prescribed for regulating the recruitment, and conditions of service of the persons appointed in public services. It is evident that all these years the provisions contained in the relative Acts and Rules enacted or made under Entry 41 of List II were found to be effective and sufficient to deal with recruitment and service conditions of persons appointed in Public Services in the State of Kerala. There could also be no doubt that the object behind the Ordinance is to ensure the effectiveness of those provisions in the Act and the various rules framed or deemed to have been framed thereunder in the light of the decision of the Supreme Court in Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) and that of the Full Bench of this Court in Umayammal's case ( 1983 KLT 829 (FB)), by placing it beyond the pale of controversy, making it clear that the provisions of the Industrial Disputes Act, to the extent they are not in harmony with the provisions of the Act, the general rules and the various special rules framed or deemed to have been framed under the Act, would not apply to the recruitment, and conditions of service of the employees in public services. As was laid down by a Full Bench of this Court in P. Ramachandran v. State ( AIR 1971 Ker. 146 ), legislative competence of a particular enactment must depend on the primary objects; if in essence it relates to a subject within the legislative competence, the incidental encroachment on some other matter will not affect the legality (vide Para.34 of the Judgment). 146 ), legislative competence of a particular enactment must depend on the primary objects; if in essence it relates to a subject within the legislative competence, the incidental encroachment on some other matter will not affect the legality (vide Para.34 of the Judgment). The Supreme Court in Sundararamaier and Co. v. State of Andhra Pradesh ( AIR 1958 SC 468 ) in Para.42 at page 489 of the report has laid down as follows: - "Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some Constitutional restrictions". It is also well settled by the decision of the Supreme Court in Waverly Jute Mills v. Raymon and Co. ( AIR 1963 SC 90 ) - vide Para.7, 10, 11 and 13 - that where there are two entries, one general in its character and the other specific, the latter; must be construed as excluding the former this is only an application of the general maxim that Generalia Specialibus non derogent. It has to be remembered that certain departments came to be treated as industries and the persons employed thereunder 'workmen' by the application of the definition contained respectively in S.2(j) and 2(s) of the Industrial Disputes Act, and not because they have been so defined by the Act or any of the rules framed thereunder enacted and made for the purpose of regulating the recruitment and conditions of service of persons appointed to public service in the State. The object of the amendments, among other things, we believe, is to make it clear that the status of persons appointed to public services would be governed by the Act and the rules framed thereunder, enacted and made specifically and exclusively for the purpose in exercise of the constitutional power and in fulfilment of constitutional duties, and not by the provisions contained in any other law for the time being in force, including the Industrial Disputes Act. The State legislature while making the enactments, and the Governor promulgating Ordinances are entitled to hold the view that the Industrial Disputes Act, or, for that matter, any other law for the time being in force, would not govern or control the conditions of service of the persons in public services. It would be unreasonable to hold that in making the Industrial Disputes Act the Centre contemplated a legislation, which tested in the light of the doctrine of pith and substance, would substantially encroach upon the rights of the State to make a legislation with respect to matters exclusively reserved for the State Legislature. Even by legislating with respect to a matter enumerated in List I, the Centre would not be competent to destroy the effect of a legislation by the State with respect to a matter enumerated in List II; the position could not be any different if the legislation by the Parliament is on a matter included in the Concurrent List. In other words, in the field exclusively reserved for legislation by the State in List II, that would operate; and in attempting to make the legislation made on such a subject effective by plugging the loop-holes either by the legislature making an enactment or the Governor promulgating an Ordinance as is deemed necessary in that behalf, it could not be said chat the object of the enactment or Ordinance is either to encroach upon or nullify the effect of the provisions of the Central Act. By no stretch of imagination could it be said in the instant case that the object of the Ordinance under challenge is to encroach upon the powers of the Parliament to legislate on industrial disputes as such. The main object, as we understand it, of the Ordinance is to make the position clear that in the matter of public services in the State, it would be the laws made by the State specifically and exclusively for the purpose that would prevail, notwithstanding anything contained in any other law for the time being in force; and that is with the competence of the State to lay down so in exercise of the legislative power under Entry 41, List II. 14. It was then contended that the Ordinance is bad for it having been given retrospective effect from 1st October, 1981. 14. It was then contended that the Ordinance is bad for it having been given retrospective effect from 1st October, 1981. The decision of the Supreme Court in D. S. Nakara v. Union of India ( AIR 1983 SC 130 ) has been cited as an authority in support of that proposition. We do not think that this decision has any bearing on the retrospective effect given to the provisions of the Ordinance. What was decided by the Supreme Court in that case, which may be called for brevity the 'pension case', was that there could not be a classification between the persons who retired prior to a particular date and those who retired after that date in regard to the conferment of the liberalised benefits of pension, it was held to be arbitrary as the distinction on which the classification was based had no nexus to the object sought to be achieved; namely, for compensating the increase in the cost of living. S.2 of the Act itself, which is not under challenge in these proceedings, enables the Government to make rules either prospectively or retrospectively to regulate the recruitment and conditions of services of persons appointed to public services and posts in connection with the affairs of the State of Kerala. If a rule could be made with retrospective effect by virtue of the provisions contained in an Act enacted in exercise of the power under Entry 41 of List II, naturally and without any doubt, the Governor should have the power to promulgate an Ordinance with retrospective effect. 15. It was argued by the counsel for the appellants/ petitioners that the object of the Ordinance was to nullify the effect of the Full Bench decision of this Court in Umayammal v. State of Kerala ( 1982 KLT 829 (FB)) and for that reason alone the Ordinance was bound to be struck down by this Court. 15. It was argued by the counsel for the appellants/ petitioners that the object of the Ordinance was to nullify the effect of the Full Bench decision of this Court in Umayammal v. State of Kerala ( 1982 KLT 829 (FB)) and for that reason alone the Ordinance was bound to be struck down by this Court. In support of this argument the decision of the Supreme Court in M. M. Pathak v. Union of India ( AIR 1978 SC 803 ) was cited wherein, in Para.24, it is observed as follows: - "The contention was that since the Calcutta High Court had by its judgment dated 21st May, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class III and Class IV employees for the year 1st April, 1975 to 31st March, 1976 along with their salary for the month of April 1976 as provided by the Settlement and this judgment had become final by reason of withdrawal of the Letters Patent Appeal preferred against it, the Life Insurance Corporation was bound to obey the writ of Mandamus and to pay annual cash bonus for the year 1st April, 1975 to 31st March, 1976 in accordance with the terms of Clause 8(ii) of the settlement. It is, no doubt, true, said the petitioners, that the impugned Act, if valid, struck at Clause 8(ii) of the settlement and rendered it ineffective and without force with effect from 1st April, 1975 but it did not have the effect of absolving the Life Insurance Corporation from its obligation to carry out the writ of mandamus. There was, according to the petitioners, nothing in the impugned Act which set at naught the effect of the judgment of the Calcutta High Court or the binding character of the writ of Mandamus issued against the Life Insurance Corporation. This contention of the petitioners requires serious consideration and we are inclined to accept it." In Para.25 of the same judgment it was held: "But the writ of mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 was concerned, it became crystalised in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and not any right to annual cash bonus under the settlement. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class III and Class IV employees for the year 1st April, 1975 to 31st March, 1976 in obedience to the writ of mandamus. The error committed by the Life Insurance Corporation was that it withdrew the Letters Patent Appeal and allowed the judgment of the learned single Judge to be come final. By the time the Letters Patent Appeal came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the Letters Patent Appeal that since the Settlement, in so far as it provided for payment of annual cash bonus, was annihilated by the impugned Act with effect from 1st April, 1975." It was contended before us that inasmuch as the decision of the Full Bench had become final, on the reasoning in the Life Insurance Corporation's case, it had to be held that the object of the ordinance was to nullify the effect of the decision and it could not have the effect of taking away the benefit the employees received by virtue of the decision of the Full Bench. We are not in a position to accept this contention. The reasoning of the Supreme Court in accepting the contentions of the employees of the L.I.C. was that once the right of the employees to receive the bonus for the particular year had crystallised into a right by virtue of the writ of mandamus issued by the Calcutta High Court, it affects the property right of the beneficiaries, and without offending Art.31 of the Constitution, the amendment of the L.I.C. Act could not have been issued. That is not the position here. That is not the position here. The Full Bench has only declared that the workman employed in industries, whether it be in the private sector or in Government service, would be governed by the provisions of Chap.5A of the I.D. Act, so far as the termination of their services is concerned. By no stretch of imagination could it be said that the judgment of the Full Bench of this Court had created any vested right to continue in service indefinitely. The only emphasis in the judgment was that in the absence of a positive exclusion of the provisions of the I.D. Act, inspite of the prescriptions of R.9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 (the general rules) in so far as the workmen of the industries under the management of the Government, they have to be governed in the matter of termination of services by the provisions of the I.D. Act. 16. It was contended that the fact that instructions from the President was received for the promulgation of the Ordinance by itself is proof positive that the intention was not to legislate under Entry 41 of List II, but on a subject in List II (Concurrent List) and, therefore unless the test whether it really encroaches upon the I.D. Act enacted previously by the Centre was satisfied, the Ordinance could not be held valid. We do not think that there is any substance in this argument. It was held by the Supreme Court in Para.89 at page 1048 of the decision reported in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar ( AIR 1983 SC 1019 ) as follows: "There may also be a bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which required the assent of the President to be given to it in order that it may be effective as an Act. In a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. In a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny by the Court........ we have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent." 17. The Act considered as a whole with S.4 introduced by the Ordinance, in pith and substance, is only one to regulate the recruitment and conditions of service of persons in public services. The Governor is by virtue of the provisions contained in Art.246(3) and Art.213(2) of the Constitution, competent to promulgate the ordinance with respect to State Public Services, falling within Entry 41 in List II of Schedule.7 to the Constitution. By way of abundant caution if the Governor has obtained instructions from the president in regard to the promulgation of the Ordinance, that by itself would not make the subject matter of the Ordinance one falling within the Entries in the Concurrent List. What would be found, in pith and substance, is that the legislation falls within Entry 41, List II of Schedule.7 to the Constitution; and that would not fall outside that entry merely for the reason that Presidential instructions were sought and obtained. 18. It was then argued that the Ordinance is hit by the vice of arbitrariness. It was submitted that the Ordinance aims at discrimination of one class of employees against another class by excluding the application of the provisions of the I.D. Act so far as they relate to the service of the Government employees while all other employees are governed by the I.D. Act. We find it difficult to agree with this contention. It was submitted that the Ordinance aims at discrimination of one class of employees against another class by excluding the application of the provisions of the I.D. Act so far as they relate to the service of the Government employees while all other employees are governed by the I.D. Act. We find it difficult to agree with this contention. The personnel in Government service could certainly be treated distinct from the other industrial employees; their recruitment and conditions of service are quite different from the rest, whom the petitioners call generally as industrial employees. For instance, the appointment to public services regularly is made not by the employer direct, but on the advice of the Public Service Commission; a constitutional functionary. There is a machinery provided in the Act and the various rules made thereunder to govern appointments, promotions, disciplinary proceedings, retirement benefits etc., and therefore it could not be said that to have a legislation exclusively to govern the personnel in Government service, would be hit by discrimination or arbitrariness. Classification is not prohibited by the Constitution; it is only the class legislation based on arbitrary consideration, which has no nexus to the object sought to be achieved that has been prohibited. There being a well defined scheme for selection of the candidates for appointment to public services, and for regulating conditions of service of persons appointed to public services, including the departments which may be called 'industries' by applying the definition in S.2(j) of the I. D. Act (not otherwise), it could not be said that the provisions of the Act, as amended by the Ordinance under challenge are hit by arbitrariness, offending Art.14 of the Constitution. The decision of the Supreme Court in Sanjit Roy. v. State of Rajasthan ( AIR 1983 SC 328 ) was cited before us. The challenge in that case was directed against the constitutional validity of Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act. The Supreme Court held that the provisions of S.3 of the Act under challenge countenanced a lesser wage under the Minimum Wages Act to workers employed on the relief work undertaken in drought and famine affected areas and therefore they were against Art.14 of the Constitution, and are therefore void. The Supreme Court held that the provisions of S.3 of the Act under challenge countenanced a lesser wage under the Minimum Wages Act to workers employed on the relief work undertaken in drought and famine affected areas and therefore they were against Art.14 of the Constitution, and are therefore void. Bhagwati, J. in the main judgment stated: "The Act in so far as it excludes the applicability of the Minimum Wages Act, 1948, to workmen employed on famine relief work and permits payment of less than the minimum wage to such workman, is invalid as offending the provisions of Art.23 of the Constitution." In this case, there is no such violation of any statutory provision, much less, any constitutional provision. The Act is one within the legislative competence of the State and it does not offend any constitutional provisions. 19. This is not a case in which under the label of a State subject the Governor really attempted to make law on a subject reserved for the Centre. The decision of the Supreme Court in R. S. Joseph v. Ajit Mills Ltd. ( 1977 (4) SCC 98 ) throws light on the doctrine of colourable legislation; so long as the legislative competence is present for the enactment, the motive behind the legislation or the bona fides or mala fides attributed to the legislation are all factors which would fall into insignificance. 20. The argument based on 1983 (4) SCC 89 that if there was overlapping with respect to legislation on the subject of the Concurrent List, the Central legislation would prevail and to the extent that it is repugnant, the State legislation would be ultra vires could not be applicable in this case, as what we have to consider is the contents and provisions of the Act as a whole, which has been amended, not the Amending Act, for the purpose of deciding whether the subject enacted upon falls within a particular entry or not. This is not also a case where both the Entries fall in the Concurrent List so as to make the State legislation bad for repugnancy, if any with the Central legislation. There is, therefore, no force in the contention that the Ordinance in pith and substance is one relating to the Industrial Disputes, and, therefore, repugnant to the Central legislation made under Entry 22 in the Concurrent List. 21. There is, therefore, no force in the contention that the Ordinance in pith and substance is one relating to the Industrial Disputes, and, therefore, repugnant to the Central legislation made under Entry 22 in the Concurrent List. 21. Sri T. C. N. Menon, Senior Advocate, made submissions mainly highlighting the arguments of the petitioners based on the alleged violation of Art.14 of the Constitution. He has also stated that not only the legislation should not violate the fundamental rights in Part III, but it should also conform to the directive principles in Part IV of the Constitution. In support of his arguments, he relied on the decisions of the Supreme Court in Rajappa's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ), Maneka Gandhi's case, ( AIR 1978 SC 597 ) Ajay Hessia's case ( AIR 1981 SC 487 ) and D. S. Nakara v. Union of India ( AIR 1983 SC 130 ). We have already found that the decision of the Supreme Court in Ajay Hessia's case is based mainly on the mandate of Art.14 of the Constitution which, according to the Supreme Court, would not permit the offering or receiving labour without receiving or being required to pay the minimum wages at least. 22. The other attack based on the plea of arbitrariness is on the ground that the choice of the date 1st October, 1981 to give retrospective effect has no rational basis. Considerable reliance was placed for this purpose on the decision in D. S. Nakara v. Union of India ( AIR 1983 SC 130 ), which has already been referred to in another context. In that case, the Central Government had come out with a scheme for liberalised computation of pension in respect of persons who were in service on 31st March, 1979 and retiring after the said date. The effect of the order was to classify pensioners into two classes marking out one class for more favoured treatment, on the sole basis that they had retired from service after the specific date. Considering that the avowed object of liberalisation was to compensate pensioners for rise in cost of living, the Court held that the date chosen had little relevance to that object. Considering that the avowed object of liberalisation was to compensate pensioners for rise in cost of living, the Court held that the date chosen had little relevance to that object. The result of that order was to create two irrational classes, existing side by side, one getting pension at a higher rate than the other, though both were retired government servants equally groaning under the weight of inflation. 23. In this case, the position is quite different. There would be no different classes of Government servants after 1st October, 1981 in the matter of applicability of the I.D. Act or the Service Rules. As our learned brother Justice M. P. Menon pointed out: "The new policy applies to all government servants alike, from 1st October, 1981. The Full Bench decision in Umayammal was rendered on 7th October, 1982, and according to the counter affidavit, the date chosen for retrospectivity is approximately twelve months anterior to the pronouncement, and the purpose to escape from liabilities which would otherwise have fastened on Government and enforced under S.33C(1) of the Act, S.25B may be more relevant, but what is important is that the 12 months period is not totally irrelevant, if the object is to get over the Full Bench decision. The question is not whether the object is laudable, but whether there is some rational connection between the principle and the object. That connection is there, and I am therefore of the view that the attack against retrospectivity has to fail." 24. Another contention is that the object of the legislation is only to get over the Full Bench decision in Umayammal's case ( 1983 KLT 829 (FB)). Getting over judicial verdicts by retrospectively amending the law is a well known legislative device. The Full Bench decision was mostly declaratory in character though in a few cases there were directions for reinstatement of employees retrenched. Getting over judicial verdicts by retrospectively amending the law is a well known legislative device. The Full Bench decision was mostly declaratory in character though in a few cases there were directions for reinstatement of employees retrenched. The amendment to L.I.C. (Arbitration of remuneration and other terms and conditions of service of employees) with effect from 1st June, 1978 substituted a new clause, Clause 9, for the original clause in respect of bonus, cannot be compared to the provisions of the Ordinance, in as much as the Amendment sought to nullify the effect of the vested rights of the L.I.C. employees by virtue of the writ of Mandamus issued by the High Court of Calcutta against which an appeal was preferred but was withdrawn by the Corporation allowing the amendments to become final. 25. It was Sri Menon's contention that the petitioners, who entered the service though as temporary hands, obtained the status of workmen by reason of the definition contained in S.2(s) of the I.D. Act; and their services could not be terminated at the sweet will of the Government, applying the method of 'hire and fire'. It was his submission that even from the I. D. Act and the report of the National Labour Commission in Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) it could be seen that the concept of industrial establishments and industrial employees in Government Departments were contemplated even before the pronouncement of the Supreme Court, and therefore, it could not be said that prior to the decision in Sewerage Board's case ( 1978 (2) SCC 213 = AIR 1978 SC 548 ) by the Supreme Court or the decision in Umayammal's case ( 1983 KLT 829 (FB)) by the Full Bench of this Court, the Government was not aware of the existence of the Industrial employees in Departments under the Government. We find it difficult to agree with the arguments advanced by Sri T. C. N. Menon. The State Public Services are to be governed by the enactments and the rules framed under entry 41, List II, Schedule.7 to the Constitution, or by the rules made by the Governor under Art.309 of the Constitution. We find it difficult to agree with the arguments advanced by Sri T. C. N. Menon. The State Public Services are to be governed by the enactments and the rules framed under entry 41, List II, Schedule.7 to the Constitution, or by the rules made by the Governor under Art.309 of the Constitution. The Classification of Governmental and nongovernmental employees into two broad classes would be permissible not only because in one case the employer is the State while in the other it is mostly private parties, but also for the reason that for the purpose of recruitment and for regulating conditions of service separate method and machinery including the constitution of a body known as the Public Service Commission under Art.320 are provided. With respect to temporary employees who are recruited to meet a situation of emergency when it would not be possible to make regular selection following the procedure prescribed in that behalf, their appointments are subject to the restrictions contained in amounts to what is called 'hire and fire' method or that the termination is arbitrary, in our view, has no foundation, whatsoever, either in law or on facts. 26. On behalf of some of the petitioners Shri. James Vincent argued that once the petitioners entered the Government service, whatever be the method by which they happened to be so, they attained the status of employee and, therefore, their services could not be terminated except in accordance with the provisions contained in Chap.5A of the I.D. Act. He also submitted that there is discrimination based on unreasonable classification, and, therefore, the ordinance is bound to be struck down. He cited the decision of the Supreme Court in AIR 1983 SC 473 by which the Supreme Court struck down S.303 of the Indian Penal Code, saying that the provisions contained in S.303 making it compulsory to award death sentence to persons found guilty under that section, amounted to arbitrary classification. He also cited the decision of the Supreme Court in I. J. Divakar v. Government of A.P. ( 1982 (3) SCC 341 ) wherein the action of the Government in regularising the services of temporary servants in Government service on humanitarian considerations was justified. 27. He also cited the decision of the Supreme Court in I. J. Divakar v. Government of A.P. ( 1982 (3) SCC 341 ) wherein the action of the Government in regularising the services of temporary servants in Government service on humanitarian considerations was justified. 27. Shri. P. A. Mohammed (T) submitted that it is not possible for the State to take shelter under an alternate plea saying that instructions from the President was received as this was not a case falling within the Concurrent List. He referred us to para. 76 of the decision of the Supreme Court in AIR 1983 SC 1019 . He also relied on the decision of M. P. Menon, J., in 1982 KLT 613 pointing out that therein it has been pointed out by the learned Judge that the I.D. Act is based on the salutary principle of fostering the welfare of the workmen who collectively bargain for the betterment of their lot. The Full Bench in Umayammal's case ( 1983 KLT 829 (FB)) held that the provisions of the Act were not sufficient to expressly exclude the provisions of the I.D. Act; however, the position is that the Act specifically exclude the application of the I.D. Act; and whatever is stated with respect to the employees in the Posts and Telegraphs Department, in a Central legislation vis-a-vis the claims of the employees of the Central Government, could not be relied on for our present purpose. 28. Shri. C. V. Antony, the counsel for some of the petitioners, argued that this is a matter involving humanitarian problems and the persons who had been in service for months, and in some cases for a few years, should not be relieved from service as that would affect them and their families adversely. This is not a valid ground for, as pointed out by the Full Bench in Umayammal's case ( 1983 KLT 829 (FB)). That would mean, an interference with the State Government's right to appoint persons selected and advised by the Public Service Commission in accordance with the procedure prescribed by the statutes, which has the backing of Art.320 of the Constitution. 29. Before parting with this judgment, we would like to utter a word of caution to the Government. That would mean, an interference with the State Government's right to appoint persons selected and advised by the Public Service Commission in accordance with the procedure prescribed by the statutes, which has the backing of Art.320 of the Constitution. 29. Before parting with this judgment, we would like to utter a word of caution to the Government. It appears to us that the present controversy mostly is the result of non-availability of candidates selected and advised by the Public Service Commission as and when vacancies occur in public services. By creating conditions conducive for preparing a select list for anticipated vacancies, this difficulty could be avoided; and the earlier the Government examines the magnitude of the problem in all its aspects, the better would it be for all concerned. 30. For the reasons we have already stated, we find that the impugned ordinance does not suffer from the vice of legislative incompetence. It is not vitiated by any arbitrariness; nor is it opposed to any of the fundamental rights guaranteed in Part III. It does not run counter to the Directive Principles of the Constitution in Part IV. The State is within its power to give retrospective effect to the provisions of the Act, from 1st October, 1981, and for that reason also the provisions of the ordinance could not be struck down. None of the grounds raised is sufficient to hold that the impugned ordinance is constitutionally invalid. The result, therefore, is that we dismiss the writ appeals and the writ petitions. There will be no order as to costs.