T C SREEDHARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The main question that falls to be decided in these writ petitions concerns the interpretation and scope of R.39 of the Kerala State and Subordinate Services Rules, 1958 and also S.2 and 3 of the Kerala Public Services Act, 1968. The petitioners have challenged the validity of certain orders passed by the State Government in purported exercise of the power conferred by R.39 aforementioned. One of the important points raised by them is that the only authority empowered by the said Rule to exercise the power conferred by it is the Governor of the State and since the orders impugned in the writ petitions were passed only by the State Government without even submitting the files to the Governor those proceedings are illegal and without jurisdiction.

(2.) After the commencement of the hearing of these cases the Government of Kerala in exercise of the powers conferred by sub-s.(1) of S.2 of the Kerala Public Services Act,1968 read with S.3 thereof issued an amendment to the Kerala State and Subordinate Services Rules whereby a new provision was substituted in the place of the original R.39. This amendment was made as per notification SRO. No. 379/72 dated the 10th July, 1972 published in the Kerala Gazette dated the 18th July, 1972. It is stated in the said notification that the amendment shall be deemed to have come into force with effect from 17-12-1958 which is the date on which the Kerala State and Subordinate Services Rules were originally brought into force. The petitioners have challenged the validly of the said notification in so far as it purports to give retrospective operation to the amendment with effect from a date anterior to the date of coming into force of the parent enactment under which the amendment purports to have been issued, namely the Kerala Public Service Act, 1968 which came into force only on the 17th September, 1968. It is also contended by them, in the alternative, that even if the amended provision is to be regarded as having been validly given retrospective effect, it has not brought about any change in the scope of the power conferred by the rule (R.39) and that the orders impugned in these writ petitions are wholly beyond the competence of the State Government even under the rule as now amended.

(3.) R.39 as it originally stood was in the following terms: "Notwithstanding anything contained in these rules or in the Special Rules, the Governor shall have power to deal with the case of any person serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may be appear to him to be just and equitable: