V. Balasubramaniam etc. etc. Vs. Tamil Nadu Housing Board & Ors.etc.etc.
EmailAppeal:
Petitioner: V. Balasubramaniam etc. etc.
Respondent: Tamil Nadu Housing Board & Ors.etc.etc.
Apeal:
Judges: E.S. Venkatarmiah & M.M.Dutt , jj.
Date of Judgment: Sep 21, 1987
JUDGEMENT:
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 22.4.61 and it passed the resolution adopting the regulations on 20.3.1963. The regulations were submitted by the Board to the Government for the 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 VS. D. & J. NICOL, (1951) 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 VS. 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 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 Corporations 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 Staff 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 the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer.”
12. It is seen from the provisions set out above that sub-sections (1) and (2) of section 14 of the Road Transport Corporations Act, 1950 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 Corporations Act, 1950. The relevant part of the decision of this Court is given below:
“In DUNDEE HARBOUR TRUSTEES VS. D & 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) 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 Corporation 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.”
13. 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 on 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 persons holding the civil posts in the Government this Court has 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 appointments in exercise of its executive powers (Vide B.N NAGARAJAN AND ORS. VS. STATE OF MYSORE AND ORS. (1966) 3 S.C.R. 682.) The power of the Board under section 16 of the Act is
14. 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 regulation 28(d) since even though more than nine months had elapsed after the resolution relaxing the qualifications was passed, the approval of the Government had not been accorded to the resolution 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 dt.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 28.1.1972.
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 posses the qualification in items (i) or (ii) above and service as Junior Engineer for a period of not less than five years.
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.”
15. 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 D (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 Promotion to the Assistant Engineer reduction of service from five years to three yuears Amendment to service regulation.
Ref. Your letter N. 60880/ET2/69 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 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 3:1 whereas 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.”
16. 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/ET/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.
Ref: 1. Government Ir. No. 58479/Hg.D.(ii)/72-1 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 power 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 understood from the Legal Adviser to the Housing Board that the Assistant Engineers affected by judgment have already filed a Writ Appeal whch has been admitted and stay granted. In the circumstances, I am to suggest that the question of the Government approving the relaxation of rule 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”
17. By this letter the Board requested the State Government not to take any decision on the subject-matter of the abover correspondence till the appeals were disposed of. Till today the Government has not 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.
18. 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 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.
Appeals allowed.
“14(1). Every Corporation shall have a Chief Executive Officer or General Manager and a Chief Accounts Officer appointed by the Staff 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 the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer.”
12. It is seen from the provisions set out above that sub-sections (1) and (2) of section 14 of the Road Transport Corporations Act, 1950 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 Corporations Act, 1950. The relevant part of the decision of this Court is given below:
“In DUNDEE HARBOUR TRUSTEES VS. D & 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) 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 Corporation 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.”
13. 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 on 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 persons holding the civil posts in the Government this Court has 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 appointments in exercise of its executive powers (Vide B.N NAGARAJAN AND ORS. VS. STATE OF MYSORE AND ORS. (1966) 3 S.C.R. 682.) The power of the Board under section 16 of the Act is
14. 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 regulation 28(d) since even though more than nine months had elapsed after the resolution relaxing the qualifications was passed, the approval of the Government had not been accorded to the resolution 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 dt.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 28.1.1972.
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 posses the qualification in items (i) or (ii) above and service as Junior Engineer for a period of not less than five years.
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.”
15. 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 D (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 Promotion to the Assistant Engineer reduction of service from five years to three yuears Amendment to service regulation.
Ref. Your letter N. 60880/ET2/69 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 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 3:1 whereas 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.”
16. 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/ET/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.
Ref: 1. Government Ir. No. 58479/Hg.D.(ii)/72-1 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 power 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 understood from the Legal Adviser to the Housing Board that the Assistant Engineers affected by judgment have already filed a Writ Appeal whch has been admitted and stay granted. In the circumstances, I am to suggest that the question of the Government approving the relaxation of rule 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”
17. By this letter the Board requested the State Government not to take any decision on the subject-matter of the abover correspondence till the appeals were disposed of. Till today the Government has not 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.
18. 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 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.
Appeals allowed.
