Holding

The memorandum was an erratum correcting a clerical mistake; the Board's relaxation of the five‑year qualification was invalid without Government approval, and the promotions were set aside.

Summary

The Tamil Nadu Housing Board (TNHB) had service regulations requiring Junior Engineers to have five years of service before promotion to Assistant Engineer. A Government order mistakenly listed three years, later corrected by a memorandum dated 26‑Feb‑1971, which the Supreme Court held to be an erratum, not a modification. Several Junior Engineers were promoted with less than five years’ service, prompting writ petitions by Supervisors. The High Court Single Judge set aside the promotions, but the Division Bench reversed, holding the regulations were ineffective because they were not published in the Official Gazette. The Supreme Court clarified that the erratum merely corrected a clerical error, that "subject to approval of the Government" in regulation 28(d) means conditional upon such approval, and that no approval was ever obtained for the relaxation of the five‑year requirement. Consequently, the promotions were invalid, the Division Bench judgment was set aside, and the Single Judge’s order was restored.

Issues considered

Whether the memorandum dated 26‑Feb‑1971 was an erratum or a substantive modification of the earlier Government order.
Whether the service regulations, not published in the Official Gazette, had the force of law for the purpose of issuing a writ of mandamus.
Interpretation of the phrase "subject to approval of the Government" in regulation 28(d).
Whether the Board could validly relax the five‑year service qualification without Government approval.
Validity of promotions of Junior Engineers who had not completed the prescribed five‑year service.

Legislation cited

Tamil Nadu General Clauses Act, 1891s. 3(19-A)
Tamil Nadu General Clauses Act, 1981s. 21
Tamil Nadu State Housing Board Act, 1961s. 16, s. 160, s. 161, s. 17, s. 18, s. 19

Subjects

promotionservice regulationserratumofficial gazettequalificationsubject to approvalTamil Nadu Housing Boardadministrative lawmandamusstatutory interpretation

Judgment

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

SEPTEMBER 21, 1987

B
Tamil Nadu State Housing Board Act, 1961/Madras State Hous-
ing Board Regulations: Section 16-19/Regu/ation 28 and State Govern-
ment 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.
c
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
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
E

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 Reso-
lution 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 Engineer-
G Ing Service in the Government. By G.O. Ms. No. 156 (Housing) depart-
ment of Labour dated 14.5.1969, the Government approved the regula-
tions 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
A
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 B
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 regula-
tions in respect of Junior Engineers was 3 years' service as stated in the
Government Order dated 14.5.1969 and the memorandum dated
c
26.2.1971 which had been issued as an erratum was liable to be ignored
since it had not been issued by following the procedure prescribed for
modifying a regulation.

A Single Judge of the High Court directed the State Government 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 con- F
'\ 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 regula-
tions 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 exer-
G 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. (247A-B; 2510I r- .
3.1 No doubt the regulations which had received the approval
H of the State Government had not been published in the official gazette
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD 2fl

by the relevant dates as required by sections 3(19·A) of the Tamil A
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] 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· E
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

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 Govern-
ment, 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 Govern-
ment 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.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 545
of 1975.
F
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 Chou-
dhary and K. Ram Kumar for the Respondent Nos. 2 to 11 in C.A. A
No. 545 of 1975.

Padmanabham, Sunder and Ambrish Kumar for the Appellants
in C.A. Nos. 637-642 of 1975.
B
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

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 peti-
tioner 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, H
234 SUPREME COURT REPORTS [1988] 1 S.C.R.

A who were working as Junior Engineers had been promoted to the
cadre of Assistant Engineers even though they had not put in five years
-r
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,
B 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 peti-
tions 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 regula-
tions. 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 judg-
ment delivered by the Division Bench of the High Court. f-
It is necessary at this stage to set out briefly the relevant provi-
sions 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 emp-
loyees 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:
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAM!AH, J.] 235

"17. Conditions of service of officers and servants of the A
Board-The remuneration and other conditions of service
of the Secretary, Housing Board Engineer and other offi-
cers and servants of the Board shall be such as may be
prescribed by regulations."

Section 18 of the Act contains the provisions relating to promo- B
tions 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
c
be exercised by the following authorities, namely:-

(a) by the Chairman in the case of posts, the maximum
monthly salary of which does not exceed three hundred
rupees and the servants holding such posts; D

(b) by the Board, in the case of posts, the maximum
monthly salary of which exceeds three hundred rupees but
does not exceed one thousand rupees and officers and
servants holding such posts;
E
(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:
....................................................
F
I Section 19 of the Act provides that subject to the provisions of
. "\
the Act, the Board shall with the previous approval of the Govern-
ment, make regulations with regard to the various matters set out
therein such as leave, disciplinary proceedings etc. which are also re-
ferred 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. Sub-
section (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 provi-
sions 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 Hous-
ing Board Service Regulations. It is necessary to set out at this stage
the manner in which the above regulations were made. The Board by ...
its Resolution No. 772 dated 20.3.1963 made and adopted the service
c 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 con-
cerned, 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
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAMIAH, J.J 237

Government. It was the contention of the Junior Engineers who had
A
been promoted as the Assistant Engineers that the qualification
prescribed by the regulations in respect of Junior Engineers for pro-
motion 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 B
procedure prescribed for modifying a regulation. The Board, however,
raised some inconsistent pleas with regard to the said erratum. It is at
y the stage the learned Single Judge directed the State Government to

.. be impleaded as a party in order to ascertain whether the Memo-
randum 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
c
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: D

"2. The Tamilnadu Housing Board in its resolution
No. 772 dated 20.3.1963 approved the draft service regula-
tions in regard to the conditions of service of the Officers
and Servants of the Board. The Chairman of the Tamil-
' nadu Housing Board in his letter No. 188884/E/63-I dated 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 Hous-
ing Board Engineering Officers Service. For the appoint- F
ment as Assistant Engineer one of the qualifications pro-
posed 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
238 SUPREME COURT REPORTS [1988] I S.C.R.

409 to 410 of the G. 0.). While these revised draft regula-
A
tions were pending scrutiny by the Government the Tamil- +
nadu Housing Board in its resolution No. 467 dated
8. 11. 1965 approved an amendment prescribing a period of
five years as Junior Engineer for promotion as Assistant
Engineer instead of three years. The above amendment
B was made in accordance with Rule 5 of the Special Rule of
the Madras Engineering Service (vide pages 555 to 556 of
the G.O.). This resolution was forwarded by the Chair-
man, Tamilnadu Housing Board in his letter No. 97205A/
E2/64-9 dated 16.11.1965. This letter was however omitted

c
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 \.I ..
26.2.71 (videpage799oftheG.O.). '

This respondent respectfully submits that the Tamil-
D nadu Housing Board in its resolution No. 467 dated
8.11.1965 has proposed a period of 5 years as the minimum
qualification required for promotion as Assistant Engi-
neers 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
E 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."
F
The learned Single Judge after going through the various affi-
davits 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 Respon-
dents 2 to 11 and C.J. Jayachandran from the cadre of Junior
H Engineers to the cadre of Assistant Engineers was contrary to the
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
'r 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
Ji,
~I 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 sta-
tute 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 regula-
tions 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 man-
damus 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 conten-
tions 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
240 SUPREME COURT REPORTS [ 1988) 1 S.C.R.

A years of experience and also providing for promotion of
Assistant Engineers in proportion of 3: 1 between Junior
Engineers/Supervisors. This was approved by the Board in
resolution No. 45 dated 20.1. 1972. In resolution No. 45
promotions were given to the Junior Engineers and Super-
visors by relaxing their required period of service."
B
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:
x.
I

" Notwithstanding anything contained in these regula-
tions or in any of the rules mentioned in these regulations,
D 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/absorp-
tion to a service in such manner as may appear to it to be·
just and equitable subject to the approval of the Govern-
.E ment ......................... "

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
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAMIAH. J.j 241

that the qualifying service prescribed for Junior Engineers to be eligi-
. . . --t ble to be promoted to the cadre of Assistant Engineers was five years
A
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 modifi-
cation of an earlier regulation. We, therefore, uphold the finding of
y the learned Single Judge on the above question.

- We now proceed to consider whether the Division Bench was
right in allowing the appeals and in dismissing the writ petitions on a
very short ground namely that relief by way of mandamus could not be
c
~
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 regu-
lations 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 Nadu 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
publication or notification. The said regulations were actually pub-
-4. 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
took place the regulations had been made by the Board and had also
"i received the approval of the State Government although they had not
been published in the Official Gazette. There were no other regula-
tions 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 remun-
B 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 itregulations
passed the resolution adopting the regulations on 20.3.1963. The
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
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 Execu-
tive Officer or General Manager and a Chief Accounts B
Officer appointed by the State Government.
y
(2) A Corporation may appoint such other officers and

- servants as it considers necessary for the efficient perfor-
mance of its functions.
c
(3) The conditions of appointment and service and the
;(
scales of pay of the officers and servants of a Corporation
l
shall-

(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 deter-
mined by regulations made under this Act.
E
45(1). A Corporation may, with the previous sanc-

-
tion of the State Government, make regulations, not incon-
. sistent with this Act and the rules made thereunder, for the
administration of the affairs of the Corporation.

I (2) In particular, and without prejudice to the generality of F
the foregoing power, such regulations may provide for all
or any of the following matters, namely:

..................................... ' ............. .
(c) the conditions of appointment and service and G
the scales of-pay of officers and servants of the Corporation
other than the Chief Executive Officer or General Manager
and the Chief Accounts officer."

It is seen from the provisions set out above that sub-sections ( 1)
and (2) of section 14 of the Road Transport Corporations Act, 1950 H
244 SUPREME COURT REPORTS [ 1988] 1 S.C.R.

A 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 ..ir
and section 45 of the Road Transport Corporations Act, 1950 cor-
responds to section 161 of the Act. Admittedly in that case no regula-
tions had been framed by the Corporation under section 45(2)(c) of
the Road Transport Corporations Act, 1950 prescribing the conditions
B 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 sec- '"(
tion 45 of the Road Transport Corporation Act, 1950. The relevant

c
part of the decision of this Court is given below:

"In Dundee Harbour Trustees v. 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
D of construction of language, and not of presumption."
Bearing in mind this statement of law. let us consider
whether the appellant had the power to appoint officers
and servants and to lay down their conditions of service in
the absence of regulations framed under s. 45(2)(c) of the
Road Transport Corporation Act, 1950. The appellant is an
E autonomous Corporation incorporated under the Act for
the purpose of operating- road transport services in the
+-

F
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 offi-
cers 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 scalts of pay of its officers and servants
shall be such as may subject to the provisions of s. 34 be
G 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 pres-
cribing 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
H and conditions of service of the employees, the Corpora-
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD (VENKATARAMIAH,J.J 245

tion must obey those directions. The conjoint effect of A,
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 B
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 C
of its affairs with the help of officers and servants. In the
absence of clear words, it is difficult to impute to the legis-
lature the intention that the Corporation would have no
power to appoint officers and servants and fix the condi-
tions of service unless the regulations under s. 45(2)(c) are
framed." D

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 with-
. out expressing any final opinion of the said question it has to be held
-,1.. that it was open to the Board to lay down appropriate norms in 'accord- E
ance 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 offi-
1 cers and staff of the Board until they were replaced by formal regu- F
;\ lations published in the form of a notification in the Official Gazette.
\tven in the case of the persons holding the civil posts in the Govern-
ment this Court had held that notwithstanding the provisions of Arti-
cle 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 G
made under Article 309 of the Constitution or the rules made under
the proviso thereto the State Government could make valid appoint-
.~ ments in exercise of its executive powers (vide B.N. Nagarajan and
Ors. v. State of Mysore and Ors., [1966) 3 S.C.R. 682. The power of
the Board under section 16 of the Act is similar to the power exercis-
able by a State Government under Article 162 of the Constitution as H
246 SUPREME COURT REPORTS [ 1988] 1 S.C.R.

A regards appointment to State Public Services is concerned and that
power could be exercised by the Board in accordance with its own
resolution which in this case had received the approval of the State
Government until appropriate regulations were published by it in
accordance with section 161 of the Act. Having taken a decision as per
its resolution dated 8.11.1965 laying down that the qualifying service
B which a Junior Engineer should posses~ for purposes of promotion to
the cadre of Assistant Engineers should be 5 years which had received
the approval of the Government the Board was bound to follow faith-
fully the said decision while making promotions of Junior Engineers. It
could not have,. therefore, departed from the norm prescribed by itself
earlier without modifying it by another resolution of the Board and
..
C obtaining the approval of the State Government to it.
It is, however, urged on behalf of the Board that even though
under the regulations framed by it, which had received the approval of
the State Government it was necessary that a Junior Engineer should
have experience of five years in that cadre for being promoted to the
D cadre of Assistant Engineers on the dates on which the impugned
promotions were made, the impugned promotions cannot be ques-
tioned since under regulation 28( d) as approved by the State Govern-
ment 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
E of relevant records relating to the said resolution. By resolution dated +
20th January, 1972 the Board has no doubt approved the note pre-
pared 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
F 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
G 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 dearly stated in the
course of the writ petitions that the relaxation made in favour of the ~
Junior Engineers who had been promoted was not in accordance with
regulations 28( d) since even though more than nine months had
H elapsed after the resolution relaxing the qualifications was passed, the
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAMIAH, J.] 247

'( approval of the Government had not been accorded to the resolution A
relaxing the qualification. The impugned promotions have been made
between 25.6.1971 and 7.2.1972. The resolution relaxing the qualifica-
tion 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:
B
"Lr. No. 60880/FI2/69 date 5.7.72
y To
'
The Secretary to Government,

- Labour Department,
Madras-9.
c
Sir,

Sub: Establishment-Technical-Tamil Nadu Housing
Board Engineers Officer Service-Promotion to the Assis-
tant Engineer reduction of service from five years to three
years. Amendment to service regulation. D

Ref: Board Resolution No. 45 dated 20.1.1972.

I am to enclose a copy of the Note for the Board
together with the Board's resolution No. 45 dated 20.1. 72
on the subject. E

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.
F
3. Relevant rules in the service regulation are to be
amended suitably in accordance with the Board's resolu-
tion cited. Hence the following amendment is suggested to
the rule in the service regulation for approval.

Rule6 G

Existing:

Must possess the qualification in items (i) or (ii) above
and service as Junior Engineer for a period of not less than
five years. H
-ll!~l

248 SUPREME COURT REPORTS (1988] 1 S.C.R.

Amendment
A

Must possess the qualification in items (i) and (ii)
above and service as Junior Engineer for a period of not
less than three years."

B 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 ''(

c
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

D U,P. GovindasamiB.A.
Deputy Secretary to Government

To

The Chairman,
E Tamil Nadu Housing Board,
Madras-35.

F
Sir,

Sub: Establishment-Technical-Tamil Nadu Hous-
ing Board Engineering Officers Service-Promotion to the
-
Assistant Engineer reduction of service from five years to }--
three years Amendment to service regulation,

Ref. Yourletter No. 60880/FT2/69 dated 5. 7. 72,

G 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
H favour of certain Junior Engineers ~ho have not put in five
V. BALAsUBRAMANIAM v. T.N. HOUSING BOARD [VENKATARAMIAH,J.J 249

years of service but has not approved any proposal to A
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 B
Assistant Engineers in the proportion of 3: 1 where as in the
letter cited it is requested that the service regulations may
be amended to reduce the qualifying service of Junior

- Engineers for promotion to three years.

3. I am to request you to clarify the above points. c
sd/-
(T.K. Krishnan)
for Deputy Secretary to
Government."
D
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 peti-
-f- tions were disposed of by the learned Single Judge on January 13, E
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/Ef2/69 dated 7-3-74. F

To
The Special Secretary to Government,
Housing Department,
Fort St. George,
Madras-{i00009. G

Sir,
Sub: Establishment-Technical-Tamil Nadu Hous-
ing Board Engineering Officers Service-Promotion to the
post of Assistant Engineer.
H
250 SUPREME COURT REPORTS [1988) 1 S!C.R.

Ref: 1. Government Ir. No. 58479/Hg.D(ii)/72-1
A dated 17.8.72. ~

I invite your attention to the reference cited above. A
reply could not be sent to para 3 of that letter till now, as
B 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 .'>(

c
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
Tami!Nadu Housing Board Service Regulations, the powers
conferred on the Board to relax the rule, in case of any
D 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
E
this office Jetter No. 1112/ET-2/74-3 dated 21-2.74. Action _\.-.
is also being taken to file an appeal by the Housing Board '
against the judgment referred to above. It is also under-
stood from the Legal Adviser to the Housing Board that
the Assistant Engineers affected by judgment have already -
filed a Writ Appeal which has been admitted and stay
granted. In the circumstances, I am to suggest that the-
question of the Government approving the relaxation of
rules in respect of the 11 Assistant Engineers who were )..
promoted on the basis of the Board's Resolution No. 45
dated 20.1.72 may be held over till the Writ Appeal is
disposed of.
G sd/-
Chairman"

By this letter the Board requested the State Government not to ~
take any decision on the subject-matter of the above correspondence
H till the appeals were disposed of. Till today the Government has not
V. BALASUBRAMANIAM v. T.N. HOUSING BOARD (VENKATARAMIAH, J.] 251

approved the resolution passed by the Board on 20th January, 1972 A
'f relaxing the qualifications prescribed for promoting Junior Engineers
to the cadre of Assistant Engineers. In the context in which the words
'subject to approval of the Government' appear in regulation 28(d) of
the Regulations they have to be interpreted as meaning 'conditional
upon the approval of the Government', that is, that unless that
approval is given by the Government the relaxation would not be valid B
because the regulations themselves had been put into effect after
obtaining the approval of the State Government earlier. The words
f 'subect to' have been understood by this Court as meaning 'conditional
upon' in K.R. C. S. Balakrishna Chetty & Sons & Co. v. The State of
Madras, (1961] 2 S.C.R. 736. Even if those words are understood as
meaning that it was possible to obtain ex post facto sanction of a
decision already taken by the Board, even then such an approval C·
should have been given by the State Government within a reasonable
time from the date on which the decision is taken by the Board. Since
the approval has not been given at all till now it cannot be said that the
power had been validly exercised under regulation 28(d). Since the
claim made by the Board that the relaxation of the qualification has D
been done in accordance with regulation 28( d) is untenable in the
aforesaid circumstances it would be wholly unjust to upheld the im-
pugned promotions on the ground that there was a valid relaxation. It
should not be forgotten that having once obtained the concurrence of
the State Government to the Regulations made by it, the Board could
_..,._ not act oontrary to the said Regulations ignoring the State Govern- E
ment altogether merely because the Regulations had not been pub-

-
lished. Any such action would be arbitrary in character. The impugned
promotions are, therefore, liable to be set aside and it is necessary that
the Board should be directed to pass fresh orders of promotion after
considering the cases of all the Junior Engineers and the Supervisors as
on the date on which the impugned promotions were made and to F
1 make promotions in accordance with the Regulations which had been

·'\.acted upon by the Board with the approval of the State Government.
In the circumstances mere non-publication of the Regulations in the
Official Gazettee was not. fatal to the writ petitions. The judgment of
the Division Bench is, therefore, set aside and the judgment of the
learned Single Judge is restored. G

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 •.vhich he is now H

•
252 SUPREME COURT REPORTS (1988) 1 S.C.R.

A holding by creating a supernumerary post, if necessary, until such time
he becomes again eligible to be promoted to the said post. Tue con-
tinuance 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 petition-
ers 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
B
accordance with law. These appeals are accordingly allowed. There
shall, however, be no order as to costs.

N.P.V. Appeals allowed.

•

......
'

-;-

I