# V. BALASUBRAMANIAM ETC. ETC v. TAMIL· NADU HOUSING BOARD & ORS. ETC. ETC

- **Citation:** [1988] 1 S.C.R. 228
- **Court:** Supreme Court of India
- **Decided:** 1987-09-21
- **Case number:** Civil Appeal No. 545 of 1975
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-balasubramaniam-etc-etc-v-tamil-nadu-housing-board-ors-etc-etc-9717
- **Pages:** 25

## Headnote

A
B
c
V. BALASUBRAMANIAM ETC. ETC.
v.
TAMIL· NADU HOUSING BOARD & ORS. ETC. ETC.
SEPTEMBER 21, 1987
Tamil Nadu State Housing Board Act, 1961/Madras State Housing Board Regulations: Section 16-19/Regu/ation 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.
The Tamil Nadu Housing Board made Madras State Housing
D
Board Service Regulations in exercise of the powers conferred under
E
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.
y
For promotion to the cadre of Assistant Engineers, the Board
prescribed S 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 S
F
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 S years in respect of Junior Engineers, since, according to it, that
would be in accordance with the mies governing the Madras EngineerG
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
228
-
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD
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
B
c
A Single Judge of the High Court directed the State Government
D
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 tiled an affidavit explaining the reasons for issuing the
"j erratum. The Single Judge concluded that the period of "3 years"
E
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 conF
'\ tr

## Text

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A
B
c
V. BALASUBRAMANIAM ETC. ETC.
v.
TAMIL· NADU HOUSING BOARD & ORS. ETC. ETC.
SEPTEMBER 21, 1987
Tamil Nadu State Housing Board Act, 1961/Madras State Housing Board Regulations: Section 16-19/Regu/ation 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.
The Tamil Nadu Housing Board made Madras State Housing
D
Board Service Regulations in exercise of the powers conferred under
E
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.
y
For promotion to the cadre of Assistant Engineers, the Board
prescribed S 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 S
F
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 S years in respect of Junior Engineers, since, according to it, that
would be in accordance with the mies governing the Madras EngineerG
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
228
-
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD
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
B
c
A Single Judge of the High Court directed the State Government
D
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 tiled an affidavit explaining the reasons for issuing the
"j erratum. The Single Judge concluded that the period of "3 years"
E
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 conF
'\ trary 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 G
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
1
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
H
230
SUPREME COURT REPORTS
(1988) 1 S.C.R.
A 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
B 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
C 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 erratnm correcting a clerical mistake and not a
D modification of an earlier regulation. [241B)
2. lo 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
E 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
F
the Board. [251A-C)
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 January, 1972. The approval has not been given at all
till now. Hence it cannot be said that the power had been validly exerG cised under regulation 28(d). Since relaxation of the qmdification 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. (247 A-B; 2510 I
3.1 No doubt the regulations which had received the approval
H of the State Government had not been published in the official gazette
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r- .
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V. BALASUBRAMANIAM v. T.N. HOUSING BOARD
2fl
by the relevant dates as required by sections 3(19·A) of the Tamil
Nadn 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-E]
A
B
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 regula·
!ions were submitted to the Government for approval. Until the C
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]
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 con·
cerned, 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 withs. 161 of the Act. [245E, H; 246A·Bl
E
3.4 Having taken a decision as per its resolution dated 8.11.1965 F
. laying down that the qualifying service which a Junior Engineer should
~ssess 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 modifyil)g G
it by another resolution and obtaining the approval of the State Govern·
ment 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
H
232
SUPREME COURT REPORTS
[1988] 1 S.C.R.
A
because the regulations had not been published. Any such action would
be arbitrary in character. Mere non-publication of the regulations in +-
the official gazette was not fatal to the writ petitions. [251E, GI
The impugned promotions are, therefore, set aside, and the
Board directed to pass fresh orders of promotion after considering the
B
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 y·
Board with the approval ofthe State Government. [251E-F]
[The Judgment of the Division Bench set aside and that of the
.,..
C 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
D way ofthe petitioners in the writ petitions or any other employee ofthe
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
E 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.
F
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
-
G
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
H C.A. No. 545 of 1975.
V. BALASUBRAMAN!AM v. T.N. HOUSING BOARD [VENKATARAM!AH, J.J 233
'-f
K. Rajindera Choudhary, A.K. Srivastava, K. Shivraj ChouA
--
-
dhary 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 C.A. Nos. 637-642 of 1975.
The Judgment of the Court was delivered by
B
VENKATARAMIAH, J. The above appeals arise out of three
l( petitions filed under Article 226 of the Constitution of India bearing C
} 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 th.em
were working as Supervisors in the Engineering Subordinate Service of D
the Tamil Nadu Housing Board (hereinaftr, referred to as 'the
Board'). The Board was established under the Tamil Nacfu 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
r filled up either by direct recruitment or by promotion from the cadre
E
of Junior Engineers possessing the qualifications prescribed for a
Junior Engineers or from the cadres of Supervisors, Head Draftsmen
and Draftsmen Grade-I. 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 · F
--,:;ervice 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 G
Junior Engineers and a diploma in Engineering or any equivalent
qualification was the minimum qualification prescribed for entry into
·1the 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,
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234
SUPREME COURT REPORTS
[1988] 1 S.C.R.
A who were working as Junior Engineers had been promoted to the -r
cadre of Assistant Engineers even though they had not put in five years
B
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_
C been impleaded as respondents in the said writ petitions. The State \
Government was impleaded as a respondent to the writ petitions by · 1 ·.
the learned Single Judge who heard the writ petitions. After hearing
all the parties, the learned Singie Judge allowed the Writ Petitions by
his common judgment delivered on 30.1.1974 declaring that the
D 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
E learned Single Judge preferred in all seven appeals being Writ AppeaJ-r
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.
F These seven appeals by special leave have been filed against the judgment delivered by the Division Bench of the High Court.
fIt 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
G 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
H servants of the Board reads thus:
I
. "\
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAM!AH, J.] 235
"17. Conditions of service of officers and servants of the
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
A
B
c
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:
....................................................
E
F
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,
G
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
SUPREME COURT REPORTS
(1988) I S.C.R.
A
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 161 of the Act provides that the Board may,
by notification, make regulations not inconsisten,t with th_!: 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
B
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
y
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
...
c
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
161(3) of the Act. In the said regulations as far as the promotion of the
i
Junior Engineers and the Supervisors as Assistant Engineers was concerned, the Board had prescribed five years' qualifying service in the
D
case of Junior Engineers and ten years' qualifying service in the case of
Snpervisors 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
E
period of five years of service which had been prescribed as the
t
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
F
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
G
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'.
H
This memorandum was signed by an Assistant Secretary to the
y
..
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAMIAH, J.J 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 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 TamilA
B
c
D
' nadu Housing Board in his letter No. 188884/E/63-I dated E
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 appointF
ment 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 G
the Government the Tamilnadtl 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
H
A
B
c
D
E
F
238
SUPREME COURT REPORTS
[1988] I S.C.R.
409 to 410 of the G. 0.). While these revised draft regulations were pending scrutiny by the Government the Tamilnadu 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 Chairman, 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 (videpage799oftheG.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 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. 0. 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
G
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 11 and C.J. Jayachandran from the cadre of Junior
H Engineers to the cadre of Assistant Engineers was contrary to the
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V. BALASUBRAMANIAM v. T.N. HOUSING BOARD (VENKATARAMIAH, J.] 239
regulations as they had not completed five years of service in the cadre A
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 B
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 C
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 D
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 E
Bench proceeded to hold that the effect of not notifying the regulations as required by sub-section (1) 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 F
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 G
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. 217 the Board has decided to relax the rule requiring 5 H
A
B
240
SUPREME COURT REPORTS
[ 1988) 1 S.C.R.
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 Supervisors 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
C 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:
D
.E
"
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
F 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
G 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
H Board and everybody concerned with the question had understood
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V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKA TARAMIAH. J.j 241
..... --t
that the qualifying service prescribed for Junior Engineers to be eligiA
ble 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
B
merely an erratum correcting was a clerical error and was not a modifiy
cation 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 c
very short ground namely that relief by way of mandamus could not be
i(
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
D
various dates between 25.6.1971 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,
1891 which defined the expression 'notification' as a notification
published in the Official Gazette and by section 21 of the Tamil N adu
E
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, notifica-
......
tion 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
F
-4.
publication or notification. The said regulations were actually pub-
'\
lished 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
G
Writ Petitions were filed and, therefore, they were not enforceable. It
is, however, not disputed that by the time the impugned promotions
"i
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.
H
242
SUPREME COURT REPORTS
[1988] I S.C.R.
A In the above situatio'.1 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 anq such other officers
and servants as it considers necessary for the efficient performance of
its functions. Section 17 of the Act n~ doubt provides that the remunB eration 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 regula-
'(
lions 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
..
c 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
I
the Board had necessarily to take decisions in accordance with certain
norms laid down by it as regards the modes of appointment of officers
D 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,
[1915] 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
E 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
F validity of a notification issued by the General Manager of the Mysore
State Road Transport Corporation inviting applications for appoint-
>
ments 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( I) of the Road Transport Corporations
G 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
H staff and the manner in which the conditions of appointment and
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V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKA:TARAMIAH, J.J 243
service of such officers and staff was to be regulated were almost
A
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
B
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
shallc
(a) as respects the Chief Executive Officer or
General Manager and the Chief Accounts Officer be such
D
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).