R.M.Sahai, J. - (1.) VALIDITY of the Uttar Pradesh State Road Transport Corporation Employees (Other than officers) (Appointing Authorities) Ordinance, 1987 (U.P. Ordinance No. 9 of 1987) defining appointing authorities of the Corporation with effect from 19th June, 1981 has been assailed, in these petitions principally for being beyond legislative competence of the State and also because it transgresses the field already occupied by the Central enactment 64 of 1950. Subsidiary submissions like colourable exercise of power by the Governor in issuing the Ordinance without any material for forming the opinion that urgency existed, vagueness of its clauses, failure to remove the defects in the rules pointed out by this Court, legislative over -ruling of Judicial decision, breach of Article 14 etc. were also raised, although feebly, more with purpose of adding the number of challenges than with any expectation of their being accepted. Necessity to issue the ordinance arose as this Court in Rashid Ahmad v. U.P. State Road Transport Corporation,, 1986 U.P.L.B.E.C. 613 and Bhopal Singh v. Managing Directors,, 1986 (12) A.L.R. 556 held that Preamble of the U.P. State Road Transport Corporation Service Regulations 1981 (referred to hereinafter as Regulations) framed under Section 45(c) read with Section 12(1)(c) of Road Transport Corporation Act, 1950 (For brevity Transport Act), having superseded all existing resolutions resulted in supersession of the resolution passed by the Corporation, as it stood prior to 1982, including the resolution of 1974 delegating powers of appointing authority to various officers. And there being no fresh delegation the order of dismissal or termination passed by the authorities in pursuance of 1974 delegation was illegal and invalid. If the effect of the decision in Bhopal Singh's case would have remained confined to that case alone probably the Corporation would have submitted to it after the Special Leave petition was dismissed by Hon'ble Supreme Court as in fact it did by reinstating petitioner. But it resulted in larger number of writ petitions by the employees who had been dismissed for misconduct etc. creating huge liability towards past arrears apart from problem of reinstating them. Thus an extraordinary situation arose. To overcome it the State Government issued the Ordinance removing the infirmity by creating fiction that an officer authorised by the Corporation prior to 1982 shall be deemed to have been authorised by the Board. It further validated action taken prior to issuance of the Ordinance.
(2.) LEGISLATIVE power exercised under Article 213 of the Constitution was defended by the learned Advocate General by referring to entries 41 or 32 of list II or entry 35 of list III of seventh schedule. He urged that the legislature was competent to enact such law under either of the entries, therefore, the argument of legislative competence was liable to be rejected. Argued Learned Advocate General that even if the ordinance was not directly covered in any entry but it was included in it incidentally then so long it did not trench upon any matter covered by List I it was not repugnant and shall prevail. In the alternative it was submitted by the learned Advocate General that Parliament having delegated the power to frame regulations on service conditions under Section 14 of the Act on State it was conferment of executive power which taken to its logical conclusion under Article 162 extended to matter in respect of which the law could be made by legislature. Therefore, according to him, the ordinance was a valid piece of legislation the legality of which was unimpeachable. Prior to embarking upon scrutiny of various provisions of the Transport Act to ascertain if the entire field was already occupied by the Central legislation therefore, the ordinance being in class with it was liable to be struck down a State Legislature had no jurisdiction to issue the impugned ordinance or the ordinance in true nature and character or in pith and substance was issued in respect of any matter specified in List II or III of seventh Schedule, it appears appropriate to understand the scheme of distribution of legislative powers under Chapter I Part XI of the Constitution to properly appreciate the dimension of the Constitutional issue relating to legislative competence. Since the Constitution is federal in character it begins with laying down extent of laws to be made by Parliament and the legislature by incorporating the principle of territoriality in Art. 245. It empowers parliament to 'make laws for the whole or any part of territory of India, which under clause (3) of Article 1 of the Constitution comprises of 'territories of the state the Union Territories specified in the First Schedule and such other territories as may be acquired. Whereas a State Legislative can make laws for whole or part of the State. Consequently parliament's power to legislate extends in respect of any territory or part of the country as well as every State included in the Union. It was, therefore, necessary to specify the subject matter of legislation both of parliament and legislature to avoid any conflict or clash. That has been achieved by demarcating legislative field of parliament and State Legislature in Act. They have been conferred with exclusive powers to make laws with respect to any of the matters enumerated in List I and II respectively of the seventh schedule. And concurrent powers in respect of list III. The pattern is more or less the same as was under Government of India Act 1935, The supremacy or predominance of Parliament has been adhered to in clause (1) by use of expression, 'notwithstanding anything in clauses 1 and 3' the Parliament shall have exclusive powers to legislate in respect of matters specified in list I of the seventh schedule. It has been reaffirmed and put beyond doubt by clause (3) which while conferring exclusive power on State legislature, in respect of items mentioned in list II specifically provides that the exercise of powers shall be subject to exercise of power in clauses 1 and 2. The essence or gist of three clauses of Article 246 read together is that even though the State legislature has exclusive power to make laws in respect of matters enumerated in list II but the exercise of power shall be ultra vires or bad if it encroaches upon any subject matter of list I and if there is a Union Law in force and the State law is found to overlap then the former shall hold the field. In other words if there is any Central law in force or if it comes into being even later than the State law, then to the extent it falls under Entry I the power of the State legislature shall be deemed to be nonexistent or withdrawn. In State of Orissa v. M.A. Tullock, : A.I.R. 1964 (S.C.) 1284 the Hon'ble Court while explaining the scope of distribution of powers held, 'If a competent legislature with superior efficacy expressly or impliedly evinces by its legislations an intention to cover the whole field, the enactments of the other legislature would be overborne'. In K.S.E. Board v. Indian Aluminium Co., : A.I.R. 1976 (S.C.) 1037 it was held, The power of Parliament to legislate with respect to matters included in list I is supreme notwithstanding anything contained in clause (3) the entry in List I takes effect notwithstanding the entry in list II'. In Hoechest Pharmaceuticals Ltd. v. State of Bihar : A.I.R. 1983 (S.C.) 1019 the Hon'ble Court while analysing the power of legislation of State Legislature held. The exclusive power of the State Legislature with respect to any of the matters enumerated in list II has to be exercised subject to clause (1) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in list I. As a consequence if, there is a conflict between an entry in list I and an entry in list II which is not capable of reconciliation the power of Parliament to legislate with respect to a matter enumerated must supersede the exercise of power of the State Legislature.'
(3.) THUS the State Legislature has exclusive power to enact laws in respect of subjects specified in list II except to the extent of Constitutional constraints mentioned in clause (1) of Article 246. What has to be examined, therefore, is if the ordinance issued by State Government can be held to fall as argued by learned Advocate General, either under Entry 32 or 41 of list II or entry 35 of list III as in case it is held otherwise, then the ordinance shall be bad or ultra vires not because of any repugnancy with Central law but due to lack of legislative power. Initial endeavour of the learned Advocate General was to protect the Ordinance by referring it to Entry 41 of List II which is reproduced below: State Public Service State Public Service Commission. It was urged that since services under the Corporation were State Public Service, the impugned Ordinance squarely fell under this Entry. It was submitted that providing state road services was a government or State function, therefore, any employee appointed to perform this function is a member of State Public Service. He argued that legislation in respect of State Public Service being in exclusive domain of State legislature any enactment made in this regard even if it incidentally or indirectly encroached upon any field covered by Central enactment it shall not be ultra vires and shall prevail. State Public Service' has not been defined in the Constitution. In Blacks Law Dictionary, 'Public Service' is explained as under: Public service. A term to apply in modern usage to the object and Enterprises of certain kinds of corporations, which specially serve the needs of particular Public or conduct to the comfort and cognizance of an entire community, such as railroad, gas, water and electric light companies, and companies furnishing motor vehicle transportation.;