Kerala State Road Transport Corporation v. Regimon Francis
2014-03-12
A.MUHAMED MUSTAQUE, THOTTATHIL B.RADHAKRISHNAN
body2014
DigiLaw.ai
Judgment : Thottathil B. Radhakrishnan, J. 1. Heard the learned counsel for the appellant, the learned Senior Government Pleader and the counsel appearing for the private respondents. 2. Kerala State Road Transport Corporation is in appeal. The short issue is as to whether counting of 120 days of minimum period of duty is a necessary condition to regularize provisional employees. Judgment after judgment, the KSRTC lost on this point before the Division Bench. Thereafter, the KSRTC was permitted to withdraw the writ appeal with leave to move the Government. The Government has since issued G.O.(Ms) No.105/2013/Tran dated 21.11.2013. That Government Order does not explicitly say that the provisions thereof are intended to operate retrospectively. That position notwithstanding, we have looked into whether that is a curative one and would amount to one correcting an error in G.O.(Ms) No.78/2011/Tran dated 22.12.2011. Having gone through the contents of that Government Order dated 21.11.2013, we cannot find our way to hold so. We say this because, even that Government Order explicitly shows that there was conscious exercise of administrative power and jurisdiction while the Government issued the earlier orders. The provision in G.O. (Ms)No.105/2013/Tran dated 21.11.2013 that the Chairman and Managing Director should verify and satisfy the conditions as to the minimum 120 days' duty per year operates only from 21.11.2013 and would not affect cases from which these writ appeals arise. To exclude uncertainty, we have also looked into Section 34 of the Road Transport Corporation Act, 1950. That provision enables the Government to issue instructions. Issuance of instructions is provided for in that statutory provision to empower the State Government to issue general instructions to be followed by the Corporation. Such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. That power is primarily one to issue instructions and not to frame Rules or Regulations, for which, authority has to be traced to Sections 44 and 45 of the Act. The power to issue instructions of general nature is essentially the power to guide in praesenti and in future and not to turn topsy-turvy or to put at jeopardy, situations already obtained.
The power to issue instructions of general nature is essentially the power to guide in praesenti and in future and not to turn topsy-turvy or to put at jeopardy, situations already obtained. The distinction between an authorized exercise of statutory power and exercise of delegated legislation on the one hand vis-a-vis, the scope of a primary legislation, points to this conclusion. 3. For the aforesaid reasons, these writ appeals do not deserve acceptance on the ground of issuance of G.O.(Ms) No.105/2013/Tran dated 21.11.2013 since these writ appeals relate to situations before the issuance of that Government Order and even the judgments impugned in these writ appeals are issued before that Government Order. Hence, these writ appeals fail. In the result, these writ appeals are dismissed.