Full Judgment Text
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PETITIONER:
V. BALASUBRAMANIAM ETC. ETC
Vs.
RESPONDENT:
TAMIL.NADU HOUSING BOARD & ORS ETC. ETC.
DATE OF JUDGMENT21/09/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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 Engineer-
ing 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
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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
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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 exer-
cised 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 offecial 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
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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.
JUDGMENT:
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
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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
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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
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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
thereunder, 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 . 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
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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 impleaded 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 impleaded 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 Tamilnadu 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 Tamilnadu
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
Tamilnadu 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 Tamilnadu 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,
Tamilnadu 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
Tamilnadu Housing Board in its resolution No. 467
dated 8.11.1965 has proposed a period of 5 years
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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.
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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:
" Notwithstanding 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
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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
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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 thereunder, 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
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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
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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
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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
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(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,
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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
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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.
253