MUKESH BHAI CHHOTABHAI PATELversusJOINT AGRICULTURE AND MARKETING ADVISOR, GOVT. OF INDIA AND ORS.

               MUKESH BHAI CHHOTABHAI PATEL                                    A
                             v.
        JOINT AGRICULTURE AND MARKETING ADVISOR,
                  GOVT. OF INDIA AND ORS.

                            AUGUST 18, 1994
                                                                               B
               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.                                                    C
      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 con-
struction 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
                                                                               E

       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 regularisa-
tion 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 il-
legality 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
    760                       SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

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 Respon-
    dents.

             The following Order of the Court was delivered :

             Leave granted.
c
          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.
D         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.
G
               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
H              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
                                                                           B
         of LDCs/stenos.

         2. I am to request that necessary action may now be taken imme-
         diately 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 cir-
cumstances, we do not find any illegality in the order passed by the
Tribunal.                                                                     F
      The appeal is accordingly dismissed. No Cost.

T.N.A.                                                  Appeal dismissed.
A          SECRETARY, QUILON DISTT., MOTOR TRANSPORT
               WORKERS' COOPERATIVE SOCIETY LTD.
                                        I'.

            REGIONAL TRANSPORT AUTHORITY AND ORS.

                               AUGUST 18, 1994
B
                  [K. RAMASWAMY AND N.P. SINGH, JJ.]

         Motor Vehicles Act, 1939 : Section 58.

         Motor Vehicles Act, 1988: Sections 72, 81, 217(2){b).
c
          Grant of stage Carriage Pennit under 1939 Act-Expiry of per-
    mit-Coming into force of 1988 Act-Repeal of 1939 Act-Renewal of per-
    mit-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
    764                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

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, Kol-
    lam, on January 4, 1991 seeking renewal .of the permit. The Regional
    Transport Authority rejected the application on the ground that there is
    no power under the Act to grant renewal to a permit granted under Act
B   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 sub- s.(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 prece-
    dent 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.