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Binoy Kumar Mohanty Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 697 of 1980
Judge
Reported inAIR1981Ori13; 50(1980)CLT204
ActsRoad Transport Corporations Act, 1950 - Sections 5(1), 5(4) and 44; Orissa State Road Transport Corporation Rules, 1967 - Rule 4; Orissa State Road Transport Corporation (Amendment) Rules, 1980
AppellantBinoy Kumar Mohanty
RespondentState of Orissa
Appellant AdvocateR. Mohanty, ;R.C. Patnaik, ;B. Misra, ;A.K.J. Mohapatra and ;P.K. Ray, Advs.
Respondent AdvocateAddl. Standing Counsel and ;Addl. Govt. Adv.
DispositionPetition dismissed
Cases ReferredHukam Chand v. Union of India
Excerpt:
.....settled that a legislature can give retrospective effect to the legislation passed by it but an executive government exercising subordinate and delegated legislative powers cannot make rules retrospective in effect unless that power is expressly conferred......the authority of the aforesaid decisions, that the state government is not competent to make the rule retrospective in operation.7. the question for consideration is whether the amended rule has retrospective operation. 'retrospective' means looking backwards; having reference to a state of things before the act in question. a retrospective statute contemplates the past and gives to a previous transaction some different legal effect from that which it had under the law when it occurred or transpired. every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. unless there are words in the statute sufficient to show that the intention of the legislature is to give the rule retrospective effect, it is deemed to be.....
Judgment:

P.K. Mohanti, J.

1. Petitioner was appointed as the Chairman of the Orissa State Road Transport Corporation on 24th June, 1978 and he assumed charge of the said office on 28th June, 1978. The tenure of office of the Chairman was three years from the date of appointment as provided under Rule 4 of the Orissa State Road Transport Corporation Rules, 1967. On 18th April, 1980, the Government of Orissa amended the said rule by the Orissa State Road Transport Corporation (Amendment) Rules, 1980 which reduced the tenure of office from three years to one year and as a result, appointment of the petitioner stood terminated on 25th April, 1980. The petitioner's contention is that the amended rule is retrospective in effect and the State Government was not competent to make a rule with retrospective effect. He seeks issuance of an appropriate writ quashing the Orissa State Road Transport Corporation (Amendment) Rules, 1980 -- Annexure 3.

2. The stand taken by the State Government is that the amended rule has no retrospective effect and has not retrospectively affected any vested right of the petitioner.

3. Section 5(1) of the Road Transport Corporations Act, 1950 provides that subject to rules made under the Act, a Corporation shall consist of a Chairman and such number of other members as the State Government may think fit to appoint. Sub-section (4) of that Section provides that the term of office of, and the manner of filling casual vacancies among, members of the Corporation shall be such as may be prescribed. Section 44 of the Act authorises the State Govt. to make rules regarding the term of office of and the manner of filling casual vacancies among members of the Corporation. In exercise of the powers conferred by that Section, the State Government made the Orissa State Road Transport Corporation Rules, 1967. According to Rule 4 (i) of the said Rules the term of office of a member including the Chairman and Vice-Chairman shall be three years from the date of his appointment and he shall be eligible for re-appointment. On 18th April. 1980 the State Government amended Rule 4 (i) as follows:

'(i) The term of office of a member including the Chairman and the Vice-Chairman shall be one year -

Provided that the State Government may by notification extend the term from time to time by such period not extending one year at a time as may be specified in the notification so however that the total period of such extension shall not in any event exceed two years.

(i-a) Notwithstanding anything contained in Sub-rule(i) the term of office of a member. Chairman or Vice-Chairman, where appointment was made prior to the commencement of the Orissa Road Transport Corporation (Amendment) Rules, 1980 and whose term of such appointment exceeded the period of one year by the date of such commencement, shall stand terminated on the expiry of seven days from the date of such commencement unless the term is extended by the State Government under the proviso to Sub-rule (i).'

4. The amended rule came into force with effect from 18th April, 1980 and in accordance with Sub-rule(i-a) cited above the petitioner's appointment stood terminated with effect from 25th April, 1980.

5. The legal position is well settled that a Legislature can give retrospective effect to the legislation passed by it but an executive Government exercising subordinate and delegated legislative powers cannot make rules retrospective in effect unless that power is expressly conferred. In the case of the Income-tax Officer, Alleppey v. M. C. Ponnoose: AIR 1970 SC 385 the Court observed:

'...... The Parliament can delegate its legislative power within the recognized limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the Legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate Legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect.'

The aforesaid principle was reiterated in a later derision in the case of Hukam Chand v. Union of India, AIR 1972 SC 2427.

6. It is urged on behalf of the petitioner that Rule 4 (i) as amended by the Orissa State Road Transport Corporation (Amendment) Rules, 1980 is retrospective in operation and it is also urged, on the authority of the aforesaid decisions, that the State Government is not competent to make the rule retrospective in operation.

7. The question for consideration is whether the amended rule has retrospective operation. 'Retrospective' means looking backwards; having reference to a state of things before the act in Question. A retrospective Statute contemplates the past and gives to a previous transaction some different legal effect from that which it had under the law when it occurred or transpired. Every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Unless there are words in the statute sufficient to show that the intention of the Legislature is to give the rule retrospective effect, it is deemed to be prospective only.

8. On a plain reading of the amended rule, we are of the view that it has no retrospective operation. The rule, by its own terms, is prospective as it operates in future. It applies subsequently to its', enforcement and does not affect any vested rights of the petitioner. No doubt, the rule operates on a person who was appointed before the framing of the rules but it operates in future. It enables an order to be made in the future disqualifying a person from continuing as the Chairman for more than one year but it does not affect what happened in the past. As the petitioner had already completed the term of one year he ceased to be the Chairman on the expiry of seven days from the date of commencement of the impugned rules by operation of the provisions of Sub-rule(i-a) of Rule 4 citec above. Such a rule cannot be construed to be retrospective in operation. The contention raised on behalf of the petitioner fs devoid of any force.

9. There is no merit in this writ application and it is accordingly dismissed, but in the circumstances, we make no order as to costs.

Das, J.

10. I agree. As described in paragraph-3 above, according to Section 5 (4) of the Act, the term of office of, and the manner of filling casual vacancies among, members of the Corporation shall be such as may be prescribed and according to Section 5 (1), a Corporation shall consist of a Chairman and such number of other members as the State Government may think fit to appoint, subject to the rules made under the Act. Rules have been framed under the Act which provide the term of office and the manner of filling casual vacancies. According to Rule 4 (i), the term of office of a member including the Chairman and Vice-Chairman shall be three years from the date of his appointment. Neither the aforesaid provisions of the Act nor the rule, as stated above, are challenged. Undisputedly, the appointment and the term of office of the Chairman are within the ambit of the Rules. The Act has not put any fetter on framing of rules relating to term of office of the Chairman nor does the Act provide any condition for such rules. Thus, the Act does not provide any limitation as to the period for the term of office of the Chairman. It has left the matter for provision in the Rules. The Rules have pro-vided the term to be three years. In the instant case, the Rules have been amended in 1980 which have been quoted in paragraph-3 above. The Rules have come into operation after the amendment. By the amendment, the term of office has been reduced from three years to one year. When the Rules come into operation, nobody can remain in the office of the Chairman for more than one year. Therefore, provision has been made in the amended Rules that the person who has completed the term of one year will have to vacate. The office of the Chairman is not a service post. It is a public office which the petitioner assumed on a contractual basis. When the Rules act pro-spectively limiting the period of the term of office to one year, the petitioner having completed one year cannot claim any right to continue in the office. Even if it is assumed that the amended Rules operate retrospectively, the term of office being within the ambit of the Rules and when the rules can be amended retrospectively, the amendment cannot be challenged to be ultra vires the Act, inasmuch as no fetter has been put by the Act on making provision in the Rules relating to the term of office of the Chairman. In any view of the matter, the contention of the petitioner that the amended Rules are ultra vires the Act and the petitioner has a right to continue in the office for a complete term of three years, is without any force.


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