V.
Bala Subramaniam Etc Vs. Tamil Nadu Housing Board & Ors [1987] INSC 260 (21
September 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)
CITATION:
1988 AIR 6 1988 SCR (1) 228 1987 SCC (4) 738 JT 1987 (3) 617 1987 SCALE (2)625
ACT:
Tamil
Nadu State Housing Board Act, 1961/Madras State Housing Board Regulations:
Section 16-19/Regulation 28 and State Government Memorandum dated
26.2.1971-Junior Engineers promoted to the cadre of Assistant Engineers even
though they had not put in five years service-Whether valid and
legal-Memorandum-Whether a mere erratum. Words and phrases-'Subject to'-Meaning
of.
HEADNOTE:
The
Tamil Nadu Housing Board made Madras State Housing Board Service Regulations in
exercise of the powers conferred under sections 17 and 19 of the Tamil Nadu
State Housing Board Act, 1961. The Board, by its Resolution No.
772
dated March 20, 1963, made and adopted the service regulations in regard to the
service conditions of officers and servants of the Board and sent them to Government
for approval under section 161(3) of the Act.
For
promotion to the cadre of Assistant Engineers, the Board prescribed 5 years
qualifying service in the case of Junior Engineers and 10 years in the case of
Supervisors.
While
the matter was pending with the Government. For approval, the Board altered the
period of 5 years' qualifying service in the case of Junior Engineers to 3
years, by its Resolution No. 368 dated 8.12.1964 and forwarded the same to the
Government. Before the approval was received, the Board, by its Resolution No.
467 dated 8.11.1965, again prescribed the qualifying service of 5 years in
respect of Junior Engineers, since, according to it, that would be in
accordance with the rules governing the Madras Engineering Service in the
Government. By G.O.. Ms. No. 156 (Housing) department of Labour dated
14.5.1969, the Government approved the regulations showing 3 years as
qualifying service, but later issued a memorandum dated 26.2.1971, styled as an
erratum, substituting the words "3 years" occurring under the
sub-head "by promotion of (i) Junior Engineers", by the words "5
years". H 229 The appellants and other Supervisors who were working in the
Engineering Subordinate Service of The Tamil Nadu Housing Board filed writ
petitions challenging the promotions of respondents No. 2 to 11 and respondent
No. 2 in the writ petitions in the High Court, who were working as Junior
Engineers, to the cadre of Assistant Engineers, even though they had not put in
5 years' service in the cadre of Junior Engineers, contrary to the regulations
of the Board.
The
writ petitions were opposed by the Tamil Nadu Housing Board and the Junior
Engineers who had been impleaded as respondents in the writ petitions.
It
was contended by the Junior Engineers who had been promoted as Assistant
Engineers that the qualification prescribed by the regulations in respect of
Junior Engineers was 3 years' service as stated in the Government order dated
14.5.1969 and the memorandum dated 26.2.1971 which had been issued as an erratum
was liable to be ignored since it had not been issued by following the
procedure prescribed for modifying a regulation.
A
Single Judge of the High Court directed the State Government to be impleaded as
a party for ascertaining whether the memorandum dated 26.2.1971 was only an
erratum for the purpose of correcting a clerical mistake that had crept into
the Government order or whether it was in fact a modification of the earlier
Government order. The State Government filed an affidavit explaining the
reasons for issuing the erratum. The Single Judge concluded that the period of
"3 years" mentioned in the Government order dated 14.5.1969 was as a
result of clerical mistake, and that the memorandum dated 26.2.1971 was really
an erratum and not a modification of the regulations as approved by the
Government and held that the promotion of respondent Nos. 2 to 11 and
respondent No. 2 in the writ petitions before the High Court from the cadre of
Junior Engineers to the cadre of Assistant Engineers was contrary to the
regulations as they had not completed 5 years' service in the cadre of Junior
Engineers when they were promoted as Assistant Engineers and, therefore, their
promotions were liable to be set aside.
In
the appeals before the Division Bench, a new plea was urged on behalf of the
appellants that the petitioners in the writ petitions were not entitled to the
issue of a writ in the nature of mandamus on the basis of the regulations since
the regulations had no force of law as they had not been published in the
official gazette.
Setting
aside the Judgment of the Single Judge, the Division Bench held that the
regulations were not valid and had no force of law 230 as they had not been
published in the official gazette, as required by sub-section (1) of section
161 of the Act and, therefore, no mandamus could be issued even if it was
established that the regulations had been contravened in making the promotions.
Appeals
by special leave were filed in this Court. It was contended on behalf of the
respondent-Board that even though under the regulations it was necessary that a
Junior Engineer should have experience of 5 years in the cadre for being
promoted to the cadre of Assistant Engineers the impugned promotions could not
be questioned since under regulation 28(d), the qualification prescribed in
respect of Junior Engineers had been relaxed by. the Resolution passed by the
Board dated January 20, 1972.
Allowing
appeals by special leave, this Court, ^
HELD:
1. The memorandum issued by the State Government on 26.2.71 was merely an
erratum correcting a clerical mistake and not a 1:) modification of an earlier
regulation.
[241B]
2.
In the context in which the words "subject to approval of the
Government" appear in regulation 28(d), they have to be interpreted as
meaning "conditional upon the approval of the Government", i.e., that
unless approval is given by the Government, the relaxation would not be valid
because the regulations themselves had been put into effect after obtaining the
approval of the State Government earlier. Even if those words are understood as
meaning that it was possible to obtain ex post facto sanction of a decision
already given by the Board, even then such an approval should have been given
by the State Government within a reasonable time from the date on which the
decision is taken by the Board. [251A-C] The impugned promotions have been made
between 28.6.1971 and 7.2.1972. The resolution relaxing the qualification was
passed by the Board on 20th January, 1972.
The
approval has not been given at all till now. Hence it cannot be said that the
power had been validly exercised under regulation 28(d). Since relaxation of
the qualification has not been done in accordance with regulation 28(d) it
would be wholly unjust to uphold the impugned promotions on the ground that
there was a valid relaxation. [247A-B; 251D]
3.1
No doubt the regulations which had received the approval of the State
Government had not been published in the official gazette 231 by the relevant
dates as required by sections 3(19-A) of the Tamil Nadu General Clauses Act,
1891. The Tamil Nadu Housing Board Act did not provide for any other mode of
publication or notification. By the time the impugned promotions took place the
regulations had been made by the Board and had also received the approval of
the State Government although they had not been published in the official
gazette. [241D- El
3.2
The making of the regulations in the ordinary course of events occupies
considerable time since they had to receive the approval and confirmation of
the Government in order to be effective. The Board passed the resolution
adopting the regulations on 20.3.63. The regulations were submitted to the
Government for approval. Until the regulations were approved by the State
Government, the Board necessarily had to take decisions in accordance with the
certain norms laid down by it as regards the modes of appointment of officers
and staff of the Board. Those decisions cannot be invalidated merely on the
ground that the regulations had not been promulgated in accordance with law.
[242B-D]
3.3
It was open to the Board to lay down appropriate norms in accordance with which
it proposed to make appointments of its officers and staff. The power of the
Board under section 16 of the Act is similar to the power exercisable by State
Government under Article 162 of the Constitution as regards appointment to
State Public Service is concerned, and that power could be exercised by the
Board in accordance with its own resolution, which had received approval of the
State Government, until appropriate regulations were published by it in
accordance with s. 161 of the Act. [245E, H; 246A-B]
3.4
Having taken a decision as per its resolution dated 8.11.1965 laying down that
the qualifying service which a Junior Engineer should possess for purposes of
promotion to the cadre of Assistant Engineers should be 5 years, which had
received the approval of the State Government, the Board was bound to follow
faithfully the said decision while making promotions of Junior Engineers. It
could not have, therefore, departed from the norm prescribed by itself earlier
without modifying it by another resolution and obtaining the approval of the
State Government to it. [246B- Cl 3.5 Having once obtained the concurrence of
the State Government to the regulations made by it, the Board could not act
contrary to the said regulations ignoring the State Government altogether
merely 232 because the regulations had not been published. Any such action
would be arbitrary in character. Mere non-publication of the regulations in the
of official gazette was not fatal to the writ petitions. [251E, GJ The impugned
promotions are, therefore, set aside, and the Board directed to pass fresh
orders of promotion after considering the case of all the Junior Engineers and
the Supervisors as on the date on which the impugned promotions were made and
to make promotion in accordance with the regulations which had been acted upon
by the Board with the approval of the State Government. [251E-F] [The Judgment of
the Division Bench set aside and that of the Single Judge restored. If in the
process of reviewing the promotions, it becomes necessary to revert any Junior
Engineer from the post which he is now holding, he shall not be so reverted but
shall be continued in the post which he is now holding, by creating a
supernumerary post, until such time he becomes eligible to be promoted to the
said post.
The
continuance of such a Junior Engineer shall not, however, come in the way of
the petitioners in the writ petitions or any other employee of the Board
getting promotions due and the seniority entitled in accordance with law.]
[251G-H; 252A-B] Dundee Harbour Trustees v. D. & J. Nicol, [1915] A.C. 550;
Mysore State Road Transport Corporation v. Gopinath Gundachar Char, [1968] 1
S.C.R. 767; B.N. Nagarajan and ors.
v.
State of Mysore and ors.,[1966] 3 S.C.R. 682 and K.R.C.S. Balakrishna Chetty
& Sons & Co. v. State of Madras, [1961] 2 S.C.R. 736, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 545 of 1975.
From
the Judgment and order dated 25.11.1974 of the Madras High Court in Writ Appeal
No 238 of 1974. With Civil Appeal Nos. 637-42 of 1975.
From
the Judgment and order dated 25.11 1974 of the Madras High Court in Writ Appeal
Nos. 175, 228, 229, 238, 263 and 265 of 1974 T.S. Krishnamurthy and Ambrish
Kumar for the Appellants in C.A. No. 545 of 1975.
233
K. Rajindera Choudhary, A.K Srivastava, K. Shivraj Choudhary and K. Ram Kumar
for the Respondent Nos. 2 to 11 in C.A No. 545 of 1975.
Padmanabham,
Sunder and Ambrish Kumar for the Appellants in C.A. Nos. 637-642 of 1975.
A.
K. Srivastava, R. Mohan, K Shivraj Chowdhary and A V Rangam for the Respondents
in A Nos. 637-642 of 1975.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The above appeals
arise out of three petitions filed under Article 226 of the Constitution of
India bearing Writ Petition Nos 1367, 1389 and 1448 of 1973 on the file of the
High Court of Madras The appellant V Balasubramaniam was the petitioner in Writ
Petition No. 1389 of 1973 and S. Swaminathan and S Suruli were the petitioners
in the other two writ petitions All of them were working as Supervisors in the
Engineering Subordinate Service of the Tamil Nadu Housing Board (hereinafter
referred to as 'the Board'). The Board was established under the Tamil Nadu
State Housing Board Act, 1961 (hereinafter referred to as 'the Act') The posts
of Assistant Engineers (now called as Assistant Executive Engineers) in the Engineering
officers Service of the Board were to be filled up either by direct recruitment
or by promotion from the cadre of Junior Engineers possessing the
qualifications prescribed for a Junior Engineers or from the cadres of
Supervisors, Head Draftsmen and Draftsmen Grade-l According to the appellants
the regulations framed by the Board which had received the approval of the
State Government prescribed that in order to be eligible to be promoted to the
cadre of Assistant Engineers a Junior Engineer should have put in service as
Junior Engineer for not less than five years and that a Supervisor should have
put in service as Supervisor for not less than ten years. This difference
between the Junior Engineers and the Supervisors was due to the minimum educational
qualifications prescribed for entry into those posts. A degree in Engineering
or an equivalent qualification had been prescribed for entry into the cadre of
Junior Engineers and a diploma in Engineering or any equivalent qualification
was the minimum qualification prescribed for entry into the cadre of
Supervisors. The grievance of the appellants and other Supervisors was that
Respondents 2 to 11 in these appeals (who were Respondents 3 to 12 in the writ
petitions) and one C.J. Jayachandran, who had been impleaded as Respondent No.
2 in the writ petitions, 234 who were working as Junior Engineers had been
promoted to the A cadre of Assistant Engineers even though they had not put in
five years of service in the cadre of Junior Engineers contrary to the regulations
of the Board and that the appellants and some other Supervisors who were
eligible to be promoted as Assistant Engineers, had not been promoted to the
cadre of Assistant Engineers. They, therefore, approached the High Court by
filing the above-mentioned petitions for the issue of a writ in the nature of
mandamus directing the Board to consider the claims of the appellants and other
Supervisors who were eligible to be promoted to the 11 posts of Assistant
Engineers in the place of Respondents 2 to 11 and C.J. Jayachandran who had
been impleaded as Respondent No. 2 in the writ petitions The writ petitions
were opposed by the Board and the Junior Engineers who had been impleaded as
respondents in the said writ petitions. The State Government was impleaded as a
respondent to the writ petitions by the learned Single Judge who heard the writ
petitions After hearing all the parties, the learned Single Judge allowed the
Writ Petitions by his common judgment delivered on 30.1.1974 declaring that the
promotion of Respondents 2 to 11 and C.J. Jayachandran as Assistant Engineers
was in violation of the requirements of the regulations and directed the Board
to fill up the posts to which Respondents 2 to 11 and C.J. Jayachandran had
been promoted according to the regulations Aggrieved by the decision of the
learned Single Judge the Board and the Junior Engineers whose promotions had
been set aside by the learned Single Judge preferred in all seven appeals being
Writ Appeal Nos. 175, 228, 229, 238 and 263-265 of 1974 before the Division
Bench of the High Court.
The
Division Bench allowed the appeals by its judgment dated 25.11.1974 on a ground
entirely different from the grounds which had been urged in the course of the
writ petitions to which we will advert to hereafter and dismissed the writ
petitions. These seven appeals by special leave have been filed against the
judgment delivered by the Division Bench of the High Court.
It
is necessary at this stage to set out briefly the relevant provisions of law
and the contentions urged by the parties. Chapter IV of the Act which is
entitled 'officers and Members of the Staff of the Board' contains provisions
relating to the appointment of the employees of the Board and their conditions
of service. Section 16 of the Act provides that the Board may appoint a
Secretary, a Housing Board Engineer and such other officers and servants as it
considers necessary for the efficient performance of its functions. Section 17
of the Act which deals with the conditions of service of officers and servants
of the Board reads thus:
235
"17. Conditions of service of officers and servants of the A Board-The
remuneration and other conditions of service of the Secretary, Housing Board
Engineer and other officers and servants of the Board shall be such as may be
prescribed by regulations." Section 18 of the Act contains the provisions
relating to promotions and punishment of the officers and servants of the
Board. The material part of section 18 reads thus:
"
18. Promotions and punishment of the officers and servants of the Board-(1)
Subject to any regulations made under section 19, the power of making promotion
to posts in the service of the Board ......................... shall be
exercised by the following authorities, namely:- (a) by the Chairman in the
case of posts, the maximum monthly salary of which does not exceed three
hundred rupees and the servants holding such posts; D (b) by the Board, in the
case of posts, the maximum monthly salary of which exceeds three hundred rupees
but does not exceed one thousand rupees and officers and servants holding such
posts;
(c)
by the Board, subject to the previous approval of the Government, in the case
of posts, the maximum monthly salary of which exceeds one thousand rupees and
officers and servants holding such posts:
Section
19 of the Act provides that subject to the provisions of the Act, the Board
shall with the previous approval of the Government, make regulations with
regard to the various matters set out therein such as leave, disciplinary proceedings
etc. which are also referred to in section 18 of the Act. But the promotions of
officers and servants of the Board from a lower grade to a higher grade is not,
however, one of the topics which is specifically mentioned in section 19 of the
Act. Section 160 of the Act deals with the power to make rules for the purpose
of carrying into effect the provisions of the Act. Subsection (3) of section
160 of the Act provides that all rules made under the Act shall be published in
the Fort St. George Gazette and unless they are expressed to come into force on
a particular day, shall come H 236 into force on the day on which they are so
published. The power to make regulations is conferred on the Board by section
161 of the Act. Sub-section (1) of section ]61 of the Act provides that the
Board may, by notification, make regulations not inconsistent with the Act and
the rules made there under, for the purpose of giving effect to the provisions
of the Act. Sub-section (3) of section 161 of the Act states that no regulation
or its cancellation or modification shall have effect until the same shall have
been approved and confirmed by the Government. In exercise of the powers
conferred under sections 17 and 19 of the Act the Board has made regulations
which are called Madras State Housing Board Service Regulations. It is
necessary to set out at this stage the manner in which the above regulations
were made. The Board by its Resolution No. 772 dated 20.3.1963 made and adopted
the service regulations in regard to the conditions of the officers and service
of the Board and sent them to the Government for its approval under section 16
1(3) of the Act. In the said regulations as far as the promotion of the Junior
Engineers and the Supervisors as Assistant Engineers was concerned, the Board
had prescribed five years' qualifying service in the case of Junior Engineers
and ten years' qualifying service in the case of Supervisors for being promoted
to the cadre of Assistant Engineers. However, during the pendency of the above
matter before the Government, the Board on its own revised the said regulations
which had already been forwarded to the Government by its Resolution No. 368
dated 8.12.1964. By that revision, the Board altered the period of five years
of service which had been prescribed as the qualifying service in the case of
Junior Engineers to three years and forwarded the said resolution to the
Government.
When
the matter was still pending with the Government, the Board by its Resolution
No. 467 dated 8.11.1965 went back on its revision and again prescribed the
qualifying service of five years in respect of Junior Engineers for promotion
to the cadre of Assistant Engineers since according to the Board that would be
in accordance with the rules governing the Madras Engineering Service in the
Government. The Government considered the regulations submitted by the Board
and gave its approval by G. O Ms No . 156 (Housing) Department of Labour dated
14.5.1969. The regulations, as approved by the Government in the Government order,
however, showed only three years as the qualifying service in respect of Junior
Engineers and not five years as the qualifying service. But the Government
issued a memorandum dated 26.2.1971 which was styled as an erratum and it said
that the words 'Three Years' occurring under the sub-head 'by promotion of (i)
Junior Engineer should be substituted by the words 'Five Years'. This
memorandum was signed by an Assistant Secretary to the 237 Government. It was
the contention of the Junior Engineers who had been promoted as the Assistant
Engineers that the qualification prescribed by the regulations in respect of
Junior Engineers for promotion to the cadre of Assistant Engineers was three
years' service as stated in the order of the Government dated 14.5.1969 and
that the memorandum dated 26.2. 1971 which had been issued as an erratum was
liable to be ignored since it had not been issued by following the procedure
prescribed for modifying a regulation. The Board, however, raised some
inconsistent pleas with regard to the said erratum. It is at the stage the
learned Single Judge directed the State Government to be imp leaded as a party
in order to ascertain whether the Memorandum dated 26.2.1971 was only an
erratum which had been issued for the purpose of correcting a clerical mistake
which had crept into the Government order dated 14.5.1969 or whether it was in
fact a modification of the earlier Government order dated 14.5.1969. After the
State Government was so imp leaded an affidavit was filed on behalf of the
State Government by Shri V.S. Subbiah, Secretary to Government Housing
Department explaining reasons for issuing the erratum dated 26.2. 1971. The
relevant part of that affidavit reads thus:
"2.
The Tamil Nadu Housing Board in its resolution No. 772 dated 20.3.1963 approved
the draft service regulations in regard to the conditions of service of the
officers and Servants of the Board. The Chairman of the Tamil Nadu Housing
Board in his letter No. 188884/E/63-I dated 7.6.63 requested the approval of
the Government for the regulations framed by the Board with reference to
sections 17 and 19 of the Tamil Nadu State Housing Board Act 1961. In the above
proposals the post of Assistant Engineers in the scale of pay of Rs.350-25-650
was included in the Housing Board Engineering officers Service.
For
the appointment as Assistant Engineer one of the qualifications proposed by the
Housing Board included a service of five years in the State Housing Board,
Public Works Department, or Highways in case of directly recruited Junior
Engineers.
3.
While the matter was under consideration of the Government the Tamil Nadu
Housing Board in its resolution No. 368 dated 8.12.1964 approved the revised
draft service regulations. In regard to the appointment of Assistant Engineer the
revised draft service regulations provided a period of three years of service
as Junior Engineer instead of five years (vide page 238 409 to 410 of the
G.O.). While these revised draft regulation were pending scrutiny by the
Government the Tamil Nadu Housing Board in its resolution No. 467 dated
8.11.1965 approved an amendment prescribing a period of five years as Junior
Engineer for promotion as Assistant Engineer instead of three years. The above
amendment was made in accordance with Rule 5 of the Special Rule of the Madras
Engineering Service (vide pages 555 to 556 of the G.O..). This resolution was
forwarded by the Chair man, Tamil Nadu Housing Board in his letter No. 97205A/
E2/64-9 dated 16.11.1965. This letter was however omitted at the time of issue
of orders by Government in G.o. Ms. No. 156 Labour dated 14.5.69. When this
omission was noticed by Government this was rectified by issuing an erratum in
Memorandum No. 6403/Housing/71-2 dated 26.2.71 (vide page 799 of the G.o.).
This
respondent respectfully submits that the Tamil Nadu Housing Board in its
resolution No. 467 dated 8.11.1965 has proposed a period of 5 years as the
minimum qualification required for promotion as Assistant Engineers in the case
of directly recruited Junior Engineers. At the time of approval by the
Government in G. O Ms. No. 156/ Labour dated 14.5.1969 the minimum period for
promotion has been wrongly mentioned as 3 years instead of 5 years. The above
is purely a clerical mistake and in order to rectify the same, the Government
has issued an errata in Government Memo No. 6403/Housing dated 26.2.71 wherein
the period of 3 years was corrected into 5 Years.
The
learned Single Judge after going through the various affidavits and
counter-affidavits in the case and the relevant Government files came to the
conclusion that the period of 'three years' had been mentioned in the
Government order dated 14.5.1969 as a result of a clerical mistake. He observed
that his 'definite conclusion on this part of the case is that what has been subsequently
issued by way of an erratum by the Assistant Secretary to the Government was
really an erratum and not a modification of the regulations as approved by the
Government in the Government order referred to already' . The learned Single
Judge, therefore, found that the promotion of Respondents 2 to l l and C.J.
Jayachandran from the cadre of Junior Engineers to the cadre of Assistant
Engineers was contrary to the 239 regulations as they had not completed five
years of service in the cadre of Junior Engineers when they were promoted as
Assistant Engineers and that their promotions were liable to be set aside. It
may be mentioned here that no other infirmity with regard to the regulations
was put forward when the case was before the learned Single Judge.
In
the appeals before the Division Bench of the High Court a new plea was urged on
behalf of the appellants, namely, that the petitioners in the writ petitions
were not entitled to the issue of a writ in the nature of mandamus on the basis
of the regulations since the regulations had not the force of law as they had
not been published in the official Gazette. The Division Bench permitted the
apellants in the said appeals to raise the said plea. It held that because
section 17 of the Act had provided that the remuneration and other conditions
of service of the officers and the servants of the Board had to be in
accordance with the regulations made under the Act, section 18 of the Act had
provided that subject to any regulations made under section 19 of the Act the
power of making promotions to the posts of the Board could be exercised by the
appropriate authority, section 161 of the Act had empowered the Board to make
such regulations by issuing a notification and under section 3(19-A) of the
Tamil Nadu General Clauses Act it was necessary that a notification issued
under any statute should be notified or published in the official Gazettee
unless the statute otherwise provided, the regulations were not valid as they
had not been admittedly published in the official Gazette. The Division Bench
proceeded to hold that the effect of not notifying the regulations as required
by sub-section (I) of section 161 of the Act was that the regulations did not
have the force of law and, therefore, no mandamus could be issued even if it
was established that the regulations had been contravened in making the
promotions.
On
that sole ground, the judgment of the learned Single Judge was set aside and
the writ petitions were dismissed.
These
appeals, as already stated, have been filed against the judgment of the
Division Bench.
There
is one other plea urged on behalf of the Board to which reference has to be
made at this stage before dealing with the contentions urged before us and that
plea is contained in paragraph 3 of the counter-affidavit filed by Shri K,
Lakshminathan Bharathi, Chairman of the Board, which was sworn on 17.12.1973.
The relevant part of that counter- affidavit reads thus:
"3.....................
Again in resolution No. 2 17 the Board has decided to relax the rule requiring
5 240 years of experience and also providing for promotion of Assistant
Engineers in proportion of 3:1 between Junior Engineers/Supervisors. This was
approved by the Board in resolution No. 45 dated 20.1.1972. In resolution No.
45 promotions were given to the Junior Engineers and Super visors by relaxing
their required period of service." In the counter-affidavit of the
Chairman, extracted above, it is pleaded that the Board had decided to relax
the rule requiring five years of experience in the cadre of Junior Engineers
for purposes of promotion to the cadre of Assistant Engineers by its resolution
No. 217 which was later on approved by the Board by its resolution No. 45
passed in January 1972. The power to relax the regulations in appropriate cases
is claimed under regulation 28(d) of the Regulations which at the material time
read as follows:
"
Not with standing anything contained in these regulations or in any of the
rules mentioned in these regulations, the Board shall have powers to deal with
the case of any persons or class of persons (inclusive of those on foreign
service terms) serving under the Board or any candidates or class of candidates
for appointment/promotion/absorption to a service in such manner as may appear
to it to be just and equitable subject to the approval of the
Government................. " The first point which requires to be
considered in this case is whether the qualifying service prescribed in respect
of Junior Engineers was five years or three years on the date on which the
impugned promotions were made. The answer to this question P depends upon the
fact whether the memorandum dated 26.2.1971 issued by the State Government
stating that the period of qualifying service in respect of Junior Engineers
was five years and not three years was an erratum or was a modification of the
earlier Government order dated 14.5.1969. The learned Single Judge has after
going through the pleadings of the parties and the relevant Government record
found that the error which had crept into the Government order dated 14.5.1969
was clerical in nature and it was open to the State Government to correct it by
issuing an erratum. The Division Bench has not recorded any finding on this
question in the course of its judgment. It is not disputed that the employees
of the Board working in the cadre of Junior Engineers and in the cadre of
Supervisors, the Board and everybody concerned with the question had understood
241 that the qualifying service prescribed for Junior Engineers to be eligible
to be promoted to the cadre of Assistant Engineers was five years during the
relevant time. In fact, the Board had passed a resolution to the effect that
the period of five years should be reduced to the period of three years. Having
heard the arguments of learned counsel of the parties and looking into the
record, we are of the view that the memorandum issued by the State Government
on 26.2.1971 was merely an erratum correcting was a clerical error and was not
a modification of an earlier regulation.
We,
therefore, uphold the finding of the learned Single Judge on the above
question.
We
now proceed to consider whether the Division Bench was right in allowing the
appeals and in dismissing the writ petitions on a very short ground namely that
relief by way of mandamus could not be granted on the basis of the regulations
which had not been published in the official Gazette, without examining whether
the petitioners in the writ petitions were entitled to relief otherwise or not.
The
impugned promotions of 11 Junior Engineers were made on various dates between
25.6.197 1 and 7.2.1972. It is true that the regulations which had received the
approval of the State Government had not been published in the official Gazette
by the relevant dates as required by section 3(19-A) of the Tamil Nadu General
Clauses Act, 189 1 which defined the expression 'notification' as a
notification published in the official Gazette and by section 21 of the Tamil
Nadu General Clauses Act, 1981 which provided that where in any Act or in any
rule passed under any Act, it was directed that any order, notification or
other matter should be notified or published such notification or publication
should unless the said Act otherwise provided be deemed to be duly made if it
was published in the official Gazette. In the present case the Act did not in
fact provide for any other mode of publication or notification. The said
regulations were actually published in the official Gazette only on May 14,
1975. The Division Bench of the High Court as stated earlier proceeded to
dismiss the writ petitions on the sole ground that no writ in the nature of
mandamus could be issued because the regulations had not been published in the
form of a notification in the official Gazette on the dates on which the Writ
Petitions were filed and, therefore, they were not enforceable. It is, however,
not disputed that by the time the impugned promotions took place the
regulations had been made by the Board and had also received the approval of the
State Government although they had not been published in the official Gazette.
There were no other regulations which had been duly made and published in the
official Gazette.
242
In the above situation could it be said there was a legal vaccum as regards the
conditions of service of the officers and servants of the Board? Section 16 of
the Act confers the power on the Board to appoint a Secretary, a Housing Board
Engineer and such other officers and servants as it considers necessary for the
efficient performance of its functions. Section 17 of the Act no doubt provides
that the remuneration and other conditions of service of the Secretary Housing
Board Engineer and other officers and servants of the Board shall be such as
may be prescribed by regulations. The making of the regulations in the ordinary
course of events occupies considerable time since they have to receive the
approval and confirmation of the Government in order to be effective. The Board
came into existence on 22.4.6; and it passed the resolution adopting the
regulations on 20.3.1963. The regulations were submitted by the Board to the
Government for its approval after the said resolution was adopted by the Board.
Until the regulations were approved and confirmed by the State Government the
Board had necessarily to take decisions in accordance with certain norms laid
down by it as regards the modes of appointment of officers and staff of the
Board. Those decisions cannot be invalidated merely on the ground that the
regulations had not yet been promulgated in accordance with law. In Dundee
Harbour Trustees v. D. & J. Nicol, [19 15] A.C. 550 Viscount Haldane L.C.
said that 'the answer to the question whether a corporation created by a
statute has a particular power depends exclusively on whether that power has
been expressly given to it by the statute regulating it, or can be implied from
the language used. The question is simply one of construction of language, and
not of presumption.' The above statement of law has been quoted with approval by
a Constitution Bench of this Court in Mysore State Road Transport Corporation
v. Gopinath Gundachar Char, [1968] 1 S.C.R. 767. In that case the respondent
therein had questioned the validity of a notification issued by the General
Manager of the Mysore State Road Transport Corporation inviting applications
for appointments to certain posts on the ground that such a notification could
not have been issued by the General Manager of the Mysore State Road Transport
Corporation as no regulations had been made by that Corporation under Section
45(1) of the Road Transport Corporations Act, 1950 with the previous sanction
of the State Government with regard to the conditions of appointment of
servants and the scales of pay of officers and servants of the Corporation
other than the Chief Executive officer and the General Manager and the Chief
Accounts officers. In the Road Transport Corporations Act, 1950 the provisions
relating to the power of the Corporation to appoint its officers and staff and
the manner in which the conditions of appointment and 243 service of such
officers and staff was to be regulated were almost similar to the provisions in
sections 16 and 17 of the Act. For purposes of easy comparison the relevant
parts of sections 14 and 45 of the Road Transport Corporation Act 1950 are
given below:
"
14(1). Every Corporation shall have a Chief Executive Officer or General
Manager and a Chief Accounts officer appointed by the State Government.
(2)
A Corporation may appoint such other officers and servants as it considers
necessary for the efficient performance of its functions.
(3)
The conditions of appointment and service and the scales of pay of the officers
and servants of a Corporation shall- (a) as respects the Chief Executive
officer or General Manager and the Chief Accounts officer be such as may be
prescribed, and (b) as respects the other officers and servants be such as may,
subject to the provisions of section 34, be determined by regulations made
under this Act. 45(1). A Corporation may, with the previous sanction of the
State Government, make regulations, not inconsistent with this Act and the
rules made there under, for the administration of the affairs of the
Corporation.
(2)
In particular, and without prejudice to the generality of the foregoing power,
such regulations may provide for all or any of the following matters, namely:
..........................................
(c)
the conditions of appointment and service and the scales of pay of officers and
servants of the Corporation other than the Chief Executive officer or General
Manager and the Chief Accounts officer." It is seen from the provisions
set out above that sub- sections ( 1) an (2) of section 14 of the Road
Transport Corporations Act, 1950 244 correspond to section 16 of the Act,
section 14(3)(b) of the Road Transport Corporations Act, 1950 corresponds to
section 17 of the Act and section 45 of the Road Transport Corporations Act,
1950 corresponds to section 161 of the Act. Admittedly in that case no
regulations had been framed by the Corporation under section 45(2)(c) of the
Road Transport Corporations Act, 1950 prescribing the conditions of appointment
and service and scales of pay of its officers and servants but still this Court
upheld the power of the Corporation to make appointments in the absence of the
regulations made under section 45 of the Road Transport Corporation Act, 1950.
The relevant part of the decision of this Court is given below:
"In
Dundee Harbour Trustees v. & J Nicol, Viscount Haldane L.C. said: "The
answer to the question whether a corporation created by a statute has a
particular power depends exclusively on whether that power has been expressly
given to it by the statute regulating it, or can be implied from the language
used. The question is simply one of construction of language, and not of
presumption." Bearing in mind this statement of law, let us consider
whether the appellant had the power to appoint officers and servants and to lay
down their conditions of service in the absence of regulations framed under s.
45(2)(c) of the Road Transport Corporation Act, 1950. The appellant is an
autonomous Corporation incorporated under the Act for the purpose of operating
road transport services in the State and extended areas. For the proper
discharge of its functions, it is necessary for the Corporation to appoint
officers and servants. Section 14(2) expressly confers upon the Corporation the
incidental power to appoint such officers and servants as it considers
necessary for the efficient performance of its functions.
Section
19(1)(c) empowers it to provide for its employees suitable conditions of
service. Section 14(3) provides that the conditions of appointment and service
and the scales of pay of its officers and servants shall be such as may subject
to the provisions of s. 34 be determined by regulations made under the Act.
Section 45(2)(c) empowers the Corporation to frame regulations with the
previous sanction of the State Government prescribing the conditions of
appointment, service and scales of pay of the officers and servants. If the
State Government issues any directions under s. 34 relating to the recruitment
and conditions of service of the employees, the Corpora- 245 tion must obey
those directions. The conjoint effect of ss. 14(3)(b), 34 and 45(2)(c) is that
the appointment of officers and servants and their conditions of service must
conform to the directions, if any, given by the State Government under s. 34
and the regulations, if any, framed under section 45(2)(c). But until such
regulations are framed or directions are given, the Corporation may appoint
such officers or servants as may be necessary for the efficient performance of
its duties on such terms and conditions as it thinks fit. There is necessarily
a time-lag between the formation of the Corporation and the framing of
regulations under s. 45(2)(c). During the intervening period, the Corporation
must carry on the administration of its affairs with the help of officers and
servants. In the absence of clear words, it is difficult to impute to the
legislature the intention that the Corporation would have no power to appoint
officers and servants and fix the conditions of service unless the regulations
under s. 45(2)(c) are framed. " Assuming for purposes of argument that the
non- publication of the regulations in the official Gazette rendered them
ineffective as regulations as held by the Division Bench of the High Court but
without expressing any final opinion of the said question it has to be held
that it was open to the Board to lay down appropriate norms in accordance with
which it proposed to make appointments of its officers and staff. The
regulations which were made by the Board on 20.3.1963 which had been modified
by its two resolutions dated 8.12.1964 and 8.11.1965 and which had been approved
and confirmed by the State Government could still form the basis of the
appointments of the officers and staff of the Board until they were replaced by
formal regulations published in the form of a notification in the official
Gazette. Even in the case of the persons holding the civil posts in the
Government this Court had held that notwithstanding the provisions of Article
309 of the Constitution the State Government had the executive power in
relation to all matters with respect to which the legislature of the State had
power to make laws and the absence of any such law made under Article 309 of
the Constitution or the rules made under the proviso thereto the State
Government could make valid appointment in exercise of its executive powers
(vide B.N. Nagarajan and ors. v. State of Mysore and Ors., [1966] 3 S.C.R. 682.
The power of the Board under section 16 of the Act is similar to the power
exercisable by a State Government under Article 162 of the Constitution as 246
regards appointment to State Public Services is concerned and that power could
be exercised by the Board in accordance with its own resolution which in this
case had received the approval of the State Government until appropriate
regulations were published by it in accordance with section 161 of the Act.
Having taken a decision as per its resolution dated 8.11.1965 laying down that
the qualifying service which a Junior Engineer should possess for purposes of
promotion to the cadre of Assistant Engineers should be 5 years which had received
the approval of the Government the Board was bound to follow faithfully the
said decision while making promotions of Junior Engineers. It could not have,
therefore, departed from the norm prescribed by itself earlier without
modifying it by another resolution of the Board and obtaining the approval of
the State Government to it.
It
is, however, urged on behalf of the Board that even though under the
regulations framed by it, which had received the approval of the State
Government it was necessary that a Junior Engineer should have experience of
five years in that cadre for being promoted to the cadre of Assistant Engineers
on the dates on which the impugned promotions were made, the impugned
promotions cannot be questioned since under regulation 28(d) as approved by the
State Government the qualification prescribed in respect of Junior Engineers
had been relaxed by the resolution passed by the Board on 20th of January,
1972. The learned counsel for the Board has produced before us copies of
relevant records relating to the said resolution. By resolution dated 20th
January, 1972 the Board has no doubt approved the note prepared by the office.
The relevant part of the note states that in view of the availability of the
large number of supervisors in service in excess of the proportion and in view
of the non-availability of Junior Engineers with five years of service for
promotion, it is considered desirable that the rule requiring five years of
experience should be relaxed in favour of Junior Engineers and that persons who
have put in three years of service should be considered for promotion as
Assistant Engineers. The resolution approving the above note was passed by the
Board in the light of regulation 28(d) of the Regulations which has been set
out above. Regulation 28(d) of the Regulations provided that it was open to the
Board in appropriate cases to relax the qualifications subject to the approval
of the State Government. The appellants and the two other petitioners in the
writ petitions clearly stated in the course of the writ petitions that the
relaxation made in favour of the Junior Engineers who had been promoted was not
in accordance with regulations 28(d) since even though more than nine months
had elapsed after the resolution relaxing the qualifications was passed, the
247 approval of the Government had not been accorded to the resolution A
relaxing the qualification. The impugned promotions have been made between
25.6.1971 and 7.2.1972.
The
resolution relaxing the qualification was passed by the Board on 20th of
January, 1972. On 5th July, 1972 a letter was addressed by the Board to the
State Government which reads thus:
"Lr.
No. 60880/FT2/69 date 5.7.72 TO The Secretary to Government, Labour Department,
Madras-9.
Sir,
Sub: Establishment-Technical-Tamil Nadu Housing Board Engineers officer
Service-Promotion to the Assistant Engineer reduction of service from five
years to three years. Amendment to service regulation.
Ref:
Board Resolution No. 45 dated 20.1.1972.
I
am to enclose a copy of the Note for the Board together with the Board's
resolution No. 45 dated 20.1.72 on the subject.
2.
In the circumstances explained therein, the period of qualifying service for
promotion as Assistant Engineer from the category of Junior Engineer has been
reduced to three years by the Board in the resolution cited.
3.
Relevant rules in the service regulation are to be amended suitably in
accordance with the Board's resolution cited. Hence the following amendment is
suggested to the rule in the service regulation for approval.
Rule
6 Existing:
Must
possess the qualification in items (i) or (ii) above and service as Junior
Engineer for a period of not less than five years.
248
Amendment Must possess the qualification in items (i) and (ii) above and
service as Junior Engineer for a period of not less than three years." In
the above letter the Board had not actually sought the approval of the State
Government for relaxing the qualification under regulation 28(d) but on the
other hand it had actually sought the modification of the regulations
themselves. In reply thereto the State Government wrote to the Board on August
17, 1972 as follows:
"Housing
Department Letter No. 58479/Housing (ii)/72 dated 17.8.1972 From U.P.
Govindasami B.A.
Deputy
Secretary to Government To The Chairman, Tamil Nadu Housing Board, Madras-35.
Sir,
Sub: Establishment-Technical-Tamil Nadu housing Board Engineering officers
Service- Promotion to the Assistant Engineer reduction of service from five
years to three years Amendment to service regulation.
Ref.
Your letter No. 60880/FT2/69 dated 5.7.72.
I
am directed to invite a reference to your letter cited wherein it is stated
that the period of qualifying service for promotion as Assistant Engineer from
the category of Junior Engineer has been reduced to three years by the Board in
resolution No. 45 dated 20-1-72. It is seen from the resolution that the Board
has only relaxed the rules in favour of certain Junior Engineers who have not
put in five 249 years of service but has not approved any proposal to amend the
Service Regulation to provide for three years service in the case of Junior
Engineers for promotion as Assistant Engineers.
2.
Further the Board has approved a proposal to amend the service regulations to
provide for promotion of Assistant Engineers in the proportion of 3: I where as
in the letter cited it is requested that the service regulations may be amended
to reduce the qualifying service of Junior Engineers for promotion to three
years.
3.
I am to request you to clarify the above points.
sd/
(T.K. Krishnan) for Deputy Secretary to Government." Under the above
letter the State Government sought certain clarifications on points raised in
it. No further steps in this regard appear to have been taken after the said
letter was written by the State Government perhaps because the writ petitions
out of which these appeals arise had been pending before the High Court. The
writ petitions were disposed of by the learned Single Judge on January 13,
1974. Thereafter the Board wrote a letter to the State Government on the
question of relaxation of the rules on March 7, 1974.
The
said letter reads as follows:
"No.
60880/ET2/69 dated 7-3-74.
To
The Special Secretary to Government, Housing Department, Fort St. George,
MADRAS -- 600009.
Sir,
Sub: Establishment-Technical-Tamil Nadu Housing Board Engineering officers
Service- Promotion to the post of Assistant Engineer.
250
Ref: 1. Government lr. No. 58479/Hg.D(ii)/72- 1 A dated 17.8.72.
I
invite your attention to the reference cited above. A reply could not be sent
to para 3 of that letter till now, as the connected file of this office was
handed to Board's Legal Adviser in connection with the W.P. Nos. 1367, 1389 and
1448/73 filed in the High Court by the Section officers against the promotion
of Junior Engineers as Assistant Engineers. The connected file has now been
received from the Legal Adviser. The Board in its Resolution No. 45 dated
20-1-72, has approved inter alia the proposal to relax the qualifying service
in respect of certain Junior Engineers who do not possess five years of service
for promotion as Assistant Engineers. According to Regulation 28(d) of the
Tamil Nadu Housing Board Service Regulations, the powers conferred on the Board
to relax the rule, in case of any person or a class of persons is subject to
the approval of the Government The Writ Petitions referred to above have since
been disposed of by the High Court and a copy of the judgment has been sent to
the Government, Housing Department in this office letter No. 1112/ET-2/74-3
dated 21-2.74. Action is also being taken to file an appeal by the Housing
Board against the judgment referred to above. It is also under stood from the
Legal Adviser to the Housing Board that the Assistant Engineers affected by
judgment have already filed a Writ Appeal which has been admitted and stay
granted.
In
the circumstances, I am to suggest that the question of the Government
approving the relaxation of rules in respect of the 11 Assistant Engineers who
were promoted on the basis of the Board's Resolution No. 45 dated 20.1.72 may
be held over till the Writ Appeal is disposed of.
sd/
Chairman" By this letter the Board requested the State Government not to
take any decision on the subject-matter of the above correspondence till the
appeals were disposed of. Till today the Government has not 251 approved the
resolution passed by the Board on 20th January, 1972 relaxing the
qualifications prescribed for promoting Junior Engineers to the cadre of
Assistant Engineers. In the context in which the words 'subject to approval of
the Government' appear in regulation 28(d) of the Regulations they have to be
interpreted as meaning 'conditional upon the approval of the Government', that
is, that unless that approval is given by the Government the relaxation would
not be valid because the regulations themselves had been put into effect after
obtaining the approval of the State Government earlier. The words 'subect to'
have been understood by this Court as meaning 'conditional upon' in K.R.C.S.
Balakrishna Chetty & Sons & Co. v. The State of Madras, [1961] 2 S.C.R.
736. Even if those words are understood as meaning that it was possible to
obtain ex post facto sanction of a decision already taken by the Board, even
then such an approval should have been given by the State Government within a
reasonable time from the date on which the decision is taken by the Board.
Since the approval has not been given at all till now it cannot be said that
the power had been validly exercised under regulation 28(d).
Since
the claim made by the Board that the relaxation of the qualification has been
done in accordance with regulation 28(d) is untenable in the aforesaid
circumstances it would be wholly unjust to upheld the impugned promotions on
the ground that there was a valid relaxation. It should not be forgotten that
having once obtained the concurrence of the State Government to the Regulations
made by it, the Board could not act contrary to the said Regulations ignoring
the State Government altogether merely because the Regulations had not been
published. Any such action would be arbitrary in character. The impugned
promotions are, therefore, liable to be set aside and it is necessary that the
Board should be directed to pass fresh orders of promotion after considering
the cases of all the Junior Engineers and the Supervisors as on the date on
which the impugned promotions were made and to make promotions in accordance
with the Regulations which had been acted upon by the Board with the approval
of the State Government. In the circumstances mere non-publication of the
Regulations in the official Gazettee was not fatal to the writ petitions. The
judgment of the Division Bench is, therefore, set aside and the judgment of the
learned Single Judge is restored.
We,
however, make it clear that if in the process of reviewing the promotions
already made in accordance with the directions issued by the learned Single
Judge it becomes necessary to revert any Junior Engineer from the post which he
is now holding we direct that he shall not be so reverted but he shall be
continued in the post which he is now H 252 holding by creating a supernumerary
post, if necessary, until such time he becomes again eligible to be promoted to
the said post. The continuance of such Junior Engineer in the post which he is
now holding as per this direction shall not, however, come in the way of the
petitioners in the writ petitions or any other employee of the Board getting
the promotion due to him and the seniority to which he is entitled in
accordance with law. These appeals are accordingly allowed. There shall,
however, be no order as to costs.
N.P.V.
Appeals allowed.
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