Holding

Regulation 3 requires that the post be filled by promotion of eligible Executive Engineers on seniority‑cum‑merit, and deputation may be used only if no suitable candidate is available, rendering the State Government's direction invalid.

Summary

The Gujarat Housing Board Engineers Association and certain board employees challenged a direction from the Gujarat State Government that the Board appoint an officer from the State's Building and Communication Department on deputation to the post of Assistant Housing Commissioner (Technical). The High Court dismissed the writ, holding the decision was not arbitrary. On appeal, the Supreme Court examined Regulation 3 of the Gujarat Housing Board Services Classification and Recruitment Regulations, 1981, which provides three modes of appointment and a clause stating that deputation may be used only if no suitable Executive Engineer of the Board is available for promotion. The Court held that the regulation must be read to require promotion of eligible Board engineers on seniority‑cum‑merit first, and deputation is permissible only as a fallback. Consequently, the State Government's direction was contrary to the regulation and beyond its power under Section 82 of the Gujarat Housing Board Act. The appeal was allowed and the direction to appoint on deputation was set aside.

Issues considered

Whether an appointment on deputation to the post of Assistant Housing Commissioner (Technical) can be made without first considering eligible Executive Engineers of the Gujarat Housing Board for promotion.
Whether Regulation 3 of the Gujarat Housing Board Services Classification and Recruitment Regulations, 1981 mandates that deputation be resorted to only when no suitable eligible candidate is available for promotion.
Whether the State Government can issue directions under Section 82 of the Gujarat Housing Board Act, 1961 that are contrary to the said regulations.

Legislation cited

Gujarat Housing Board Act, 1961s. 74(c), s. 82

Subjects

service lawrecruitment regulationsdeputationpromotionseniority-cum-meritadministrative lawstate government directionsinterpretation of regulations

Judgment

A GUJARAT HOUSI:!'lG BOARD ENGINEERS
ASSOCIATION AND ANR.
v.
STATE OF GUJARAT AND ORS.

NOVEMBER 5, 1993
B
[J.S. VERMA, N.P. SINGH AND S.P. BHARUCHA, JJ.]

Service Law: Gujarat Housing Board Act, 196l~Gujarat Housing Board
Services Clas_sifications of and Recruitment Regulations, 1981:
c
Sections 74(c), 82/Regulation 3-Appointment to the post of Assistant
Housing Commissioner (Technical) on deputation-Directions issued by
State Government-Whether deputation could be resorted to without first
considering eligible, suitable Executive Engineers of Housing Board-State
Government's power to give directions not to extend to a matter contrary to
D the Regulations.

The first appellant, an Association of the Engineers of the Gujarat
Housing Board and the third appellant, the employees of the Housing
Board preferred a writ petition in the High Court challenging the direction
E given to the ·Housing Board by the State Government to appoint to the post
of Assistant Housing Commissioner (Technical) an officer on deputation
from the Building and Communication Department of the State Govern-
ment. The High Court found that the decision was not unjust and arbitrary
or based on irrelevant or extreneous considerations and dismissed the writ
petitions.
F
In this appeal before this Court, the appellants contended that no
appointment on deputation could be made to the said post unless and until
it was found that no suitable eligibile candidate was available for appoint-
ment to the said post by promotion from among the eligible Executive
G Engineers of the Housing Board.
On behalf of the respondents, it was contended that sub-clause (b)
of clause (1) of Regulation 3 of the Gujarat Housing Board Services
Classifications of and the Recruitment Regulations 1981 was resorted to
in this case, and that it was not necessary that the appoinment should be
H so made only if no suitable eligible candidate was avilable for appointment
638
-4 GUJARAT HOUSING BOARD v. STATE 639

by promotion from among Executive Engineers of the Housing Board. A
Allowing the appeal, this Court,

HELD : l. Clause (3) of Regulation 3 of the Gujarat Housing Board
Services Classification of and Recuritment Regulations, 1981 does not set
B
out an additional, fourth mode of filling in the post of Assistant Housing
Commissioner(Technical) but is only a provision which sets out how and
when an Executive Engineer from the State Government's Building and
Communication Department can be appointed to the said post on deputa·
tion. It provides that such an appointment can be made to the said post
on deputation only if a suitable eligible candidate is not available for c
appointment by promotion from among the Executive Engineers of the
Housing Board. Regulation 3 must, therefore, be read as providing that
the said post must be filled by promotion of eligible Executive Engineers.
of the Housing Board on the basis of seniority-cum-merit. It is only if no
suitable candidate is available for promotion to the said post from among D
·j
the eligible Execut~ve Engineers of the Housing Board that the appoint·
ment by be made on deputation from among the Executive Engineers of
the State Government~s Building and Communication DepartmenL F_ailing
this, the appointment can be made by direct selection from among can·
didates called for interview. [643·E·H; 644-A] E
2. Regulation 3 can be read in no other manner. To construe it
otherwise would mean that it provides no guidelines. (643-F]

3. Admittedly, the suitability of eligible Executive Engineers of the
F
Housing Board for appointment to the said post by promotion was not
considered before resort was directed to be had to the provisions of sub·
clause (b) of clause (1) of Regulation 3 for filling the said post by deputation
of an officer of the State Government's Building and Communication
Department. Therefore, the State Government was patently in error in
directing the Housing Board to fill the said post by deputation.· (644·B·CJ G

4. It is also not open to the State Government to give such directions
to the Housing Board under Section 82 of the Gujarat Housing Board Act,
1961 which are contrary to the Regulations made under the said Act with
its previous sanction. (644-E]
H
640 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A CIVIL APPELLATE JURiSDICTION : Civil Appeal No. 6059 of
1993.

From the Judgment and Order dated _17.11.92 of the Gujarat High
Court in S.C.A. No. 395 of 1990.

B P.K. Manohar for ~he Appellants.

D.A. Dave, Nandini Gore, M. Karanjawala and S.C. Patel, for the
Respondents.

The Judgment of the Court was delivered by
c
BHARUCHA, J. : Special leave granted.

Heard.

This appeal requires a true and correct interpretation to be placed
D upon Regulation 3 of the Gujarat Housing Board Services Classifications
of and Recruitment Regulations, 1981. The appeal arises thus : The first
appellant is an association of the Engineers of the Gujarat Housing Board
(the second respondent). The second and third appellants are employees
of the Housing Board. They filed a writ petition in the Gujarat High Court
E challenging the direction given to the Housing Board by the State of
Gujarat (the first respondent) to appoint to the post of Assistant Housing
Commissioner (Technical) an officer on deputation from the Building and
Communication Department of the State Government. The writ petition
was dismissed. The Hig~ Court relied upon the fact that the decision to
appoint to the ,sai~ post on officer of the rank of Superintending Engineer
F from the Building and Communication Departme1.tt of the State Govern-
ment had' been taken by the State Government for reasons stated in its
affidavit in reply and the said decision could not be said to be unjust or
arbitrary or based on irrelevant or extraneous considerations.

The Gujarat Housing Board Services Classifications of and Recruit-
G ment Regulations, 1981 are made under the provisions of Section 74(c) of
the Gujanit Housing Board Act, 1961 (now called "the said Act") with the
previous sanction of the State Government. Regulation 3 in Part-V thereof
prescribes the qualifications, age, experience and procedure relating to
recruitment to the post of Assistant Housing Commissioner (Technical),...
H now called Superintendent Engineer. The relevant portion thereof reads
GUJARAT HOUSING BOARD i•. STATE [BHARUCHA, J.) 641

thus: A
"The post may he filled in either :

( 1) (a) by promlllion of employees working as Executive
Engineer in Board's Higher Services on the basis of seniority
cum merits, B
OR

(b) by calling Executive Engineer on deputation from State
Building and Communication Department.
c
OR

( c) by direct selection from amongst the candidates called for
interview;

(2) To be eligible for promotion, Executive Engineers (i) D
should have rendered atleast 4 years continuous service as
Executive Engineer;

On promotion, the officers will be on trial for one year on expiry
of which he may be finally promoted or his trial may be extended
or he may be reverted to the post from which he was promoted E
as the case may be looking to his performance during the trial
period. On the expiry of the extended trial, period, his case will
be again reviewed and dealt in same manner.

(3) If a suitable candidate is not available for appointment by
promotion from the Executive Engineers of the Board, a F
panel of names of Executive Engineers having at/east 4 years
standing experience from the State B and C Department may
be called for, with a proviso that no departmental inquiry
should be pending against them. One of the names will be
selected by the Board and the selected candidate will be G
appointed by the Board.

(4) To be eligible for appointment by direct selection a
candidate

(i) should be not more than 45 years of age; H
642 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A • (ii) should possess a bachelor's Degree in Engineering
of a recognised University or an equivalent
qualification recognised by Board and

(iii) should have atleast 10 years practical experience of
. B planning and building construction work in State
or Central Government or a local authority or a
Corporation owned or controlled by such Govern-
ment or in renowned private firms of Engineers and
Contractors in a responsible post.

C Officers in Board's Higher Service who are eligible for direct
selection as above, can also apply alongwith others.

xxxx xxxx xxxx"

The contention on behalf of the appellants is that no appointment on
D deputation can be made to the said post of an officer serving in the State
Government's Building and Communication Department until and unless
it has been found that no suitable eligible candidate is available for· ap-
pointment to the said post by promotion from among the eligible Executive
Engineers of the Housing Board. On the other hand, it is contended on
E behalf of the State Government that Regulation 3 provides three alternative
modes of appointment to the said post in clause (1) and clause (3) provides
yet another, fourth mode of appointment. The appointment in question was
directed to be made under the provisions of sub-clause (b) of clause (1)
and not under clause (3), so that the State Government and the Housing
Board were not in any manner constrained in making the appointment and
F it was not required that the appointment should be so made only if no
suitable eligible candidate was available for appointment by promotion
from among the Executive Engineers of the Housing Board.

Clause (1) of Regulation 3 provides that the post of Assistant Hous-
G ing Commissioner (Technical) may be filled in by promotion of employees
working as Executive Engineers in the Housing Board on the basis of
seniorit}'-cum-merit; or by calling Executive Engineers on deputation from
the Building and Communication Department of the State Government; or
by direct selection from among candidates called for ii:iterview. Clause (2)
sets out who among the Executive Engineers of the Housing Board are
H eligible for such promotion. Clause (3) states that if a suitable eligible
GUJARATHOUSINGBOARDv. STATE [BHARUCHA,J.] 643

candidate is not available for appointment by promotion from among the A
Executive Engineers of the Housing Board, a panel of names of Executive
Engineers having four years standing experience in the State Government's
Building and Communication Department may be called for and one name
out of the panel may be selected and appointed on deputation by the
Housing Board. Clause (4) sets out the eligibility requirements of can-
B
didates for appointment by direct selection.

It is, therefore, clear that clause (2) of Regulation 3 has application
to sub-clause (a) of clause (1); that is to say, clause (2) sets out the
eligibility criteria of employees working as Exec~~ive Engineers in the
Housing Board for appointment to the said post on the basis of seniority- C
cum-merit under sub-clause (a) of clause (1). Clause (3) sets out how and
when an Executive Engineer from the State Government's Building and
Communication Department can be appointed on deputation to the said
post under the provisions of sub-clause (b) of clause (1) Clause (4) sets
out the eligibility requirements for candidates to be appointed by direct D
selection under the provisions of sub-clause (c) of clause (1).

We have no doubt, therefore, that clause (3) does not set out an
additional, fourth mode for filling in the said post but is only a provision
which sets out how and when an Executive Engineer from the State
Government's Building and Communication Department can be appointed E
to the said post on deputation. It provides that an appointment can be
made of an Executive Engineer from the State Government's Building and
Communication Department to the said post on deputation only if a
suitable eligible candidate is not available for appointment by promotion
from among the Executive Engineers of the Housing Board. p

Regulation 3 can be read in no other manner. To construe it other-
wise would mean that it provides no guidelines as to when the said post is
to be filled up from among the Executive Engineers of the Housing Board,
when by deputation from among the Executive Engineers of the Building G
and Communication Department of the State Government and when by
direct selection. The interpretation that the court must place upon Regula-
tion 3 must be such as avoids arbitrariness and the conferment of un-
canalised power. Regulation 3 must, therefore, be read as providing that
the said post must be filled by promotion of eligible Executive Engineers
of the Housing Board on the basis of seniority-cum- merit. It is only if no H
644 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A suitable candidate is available for promotion to the said post from am6ng
the eligible Executive Engineers of the Housing Board that the appoint-
ment may be made on deputation from among the Executive Engineers of
the State Government's Building and Communication Department. Failing
this, the appointment can be. made by direct selection from among can-
didates called for interview.
B
It is an admitted position that the suitability of eligible Executive
Engineers of the Housing Board for appointment to the said post by
promotion was not considered before resort was directed to be had to the
provisions of sub-clause (b) of clause (1) for filling the said post by
C deputation of an officer of the State Government's Building and Com-
munication Department. In our view, therefore, the State Government was
patently in error in directing the Housing Board to fill the said post by
deputing an officer in the State Government's Building and Communica-
tion Department.

D Reference was made on behalf of the State Government to the
provisions of Selection 82 of the said Act and it was submitted that the
State Government was thereby empowered to give to the Housing Board ·
such directions as were in its opinion necessary or expedient for carrying
out the purposes of the said Act and the Housing Board was obliged to
E comply with such directions. The short answer to the submission is that it
is not open to the State Government to give directions to the Housing
Board under Section 82 which are contrary to the provisions of Regulations
inade under the provisions of the said Act with its previous sanction.

The appeal is allowed. The judgment and order under appeal are set
F aside. The direction given to the Gujarat Housing Board by the Govern-
ment of Gujarat to fill the post of Assistant Housing Commissioner (Tech-
nical) (now called Superintendent Engineer) by appointment on
deputation of a person in its service in the Building and Communication
Department is set aside. For the purposes of filling up the said post, the
Gujarat Housing Board shall proceed in the manner indicated above.
G . I

There shall be no order as to costs.

G.N. Appeal allowed.