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1999 DIGILAW 199 (KER)

Kerala State Housing Board v. Santhasakku Bai

1999-04-08

JACOB BENJAMIN KOSHY, P.K.IYER BALASUBRAMANYAN

body1999
JUDGMENT P.K. Balasubramanyan, J. 1. The Kerala State Housing Board, second respondent in O.P.217 of 1988 is the appellant. The Original Petition was filed by three employees of the Housing Board for the issue of a writ of certiorari to quash Ext.P7, a communication issued to petitioner No.1 in the Original Petition in answer to her petition dated 1-12-1987, for a writ of mandamus or any other appropriate writ, direction or order declaring that the Kerala State Housing Board Establishment Regulation.1977 hereinafter called the Regulations are against the provisions contained in the Kerala State Housing Board Act and hence illegal and void, for the issue of a writ of mandamus or any other appropriate writ, direction or order declaring that for making promotion to the category of Senior Superintendent and higher categories, provisions contained in the Kerala State Housing Board Establishment Regulations should not be made use of and for other incidental reliefs. The Housing Board submitted that the Regulations were made in exercise of power conferred by the Act and the same could not be ignored or set aside by this court and the petitioners are not entitled to any relief. It was also pointed out by the Housing Board that the Regulations were made as indicated in the judgment Ext.P1 in O.P.No.4879 of 1972 the appeal against which at the instance of the Housing Board was dismissed by a Division Bench. It was also pointed out by the Housing Board that the Regulations were framed with the concurrence of the Government and it was binding on the petitioners. 2. The learned Judge on a scrutiny of the relevant provisions of the Kerala State Housing Board Act, 1971 came to the conclusion that the Board has no authority to frame Regulations relating to qualifications for appointment or promotion and hence the Regulation was illegal and void. The learned Judge therefore declared the Regulation not valid and held that the Regulation cannot stand in the way of promotions being given to the petitioners without reference to the qualifications fixed in the Regulation. It is this decision that is challenged in this Writ Appeal. 3. The learned Judge therefore declared the Regulation not valid and held that the Regulation cannot stand in the way of promotions being given to the petitioners without reference to the qualifications fixed in the Regulation. It is this decision that is challenged in this Writ Appeal. 3. We must initially observe that petitioner No.1 in the Original Petition had herself earlier filed O.P.4879 of 1972 before this court claiming that she is entitled to promotion as governed by the Rules in that regard in the City Improvement Trust from which she came to the Housing Board unless and until proper Regulations in that regard are framed by the Housing Board. By judgment dated 6-9-1974 this court upheld the said plea and directed the Housing Board to promote the petitioner therein, first petitioner in the present Original Petition as an Upper Division Clerk in preference to respondents 3 to 7 in that Original Petition on the basis of her seniority on a provisional basis subject to the fixation of qualification. The learned Judge further held that it was hardly necessary to say that if any qualification is prescribed by the Kerala State Housing Board for promotion to the said cadre, the petitioner therein would be reverted if she does not then happen to have that qualification. The Housing Board challenged that decision in W.A.30 of 1975. But the Division Bench affirmed the decision of the learned Judge and dismissed the Writ Appeal. It is thereafter that the Housing Board framed the Regulations in exercise of its power under S.162(1) of the Kerala State Housing Board Act, 1971 by which they sought to fix the qualifications for appointment and promotion in the Housing Board. As far as petitioner No.1 in the present Original Petition is concerned, it is clear that she is certainly estopped from challenging the right of the Housing Board to frame the Regulations even if she might not be barred by res judicata by virtue of the decision in the earlier Original Petition passed at her instance. But probably to avoid this complication, petitioner No.1 is seen to have taken the help of two other employees of the Housing Board to join her as petitioners in the Original Petition and approached the court seeking a declaration that the Regulation was invalid and beyond the power of the Housing Board to make or frame. But probably to avoid this complication, petitioner No.1 is seen to have taken the help of two other employees of the Housing Board to join her as petitioners in the Original Petition and approached the court seeking a declaration that the Regulation was invalid and beyond the power of the Housing Board to make or frame. S.162 of the Act confers power on the Housing Board to make Regulation. S.162 provides that the Board may, by notification in the Gazette make regulations not inconsistent with the Act and the Rules made thereunder, for the purpose of giving effect to the provisions of the Act. Sub-s.(2) enumerates certain particular instances where regulations could be made and that does not take in the power to make regulation regarding the fixing of qualification for appointment or promotion. Under S.17(5) of the Act, the Secretary of the Housing Board is conferred the power in consultation with Public Service Commission to make appointments to the posts in the establishment of the Board and provides that he will exercise the power in such manner as may be prescribed. Though under S.161 of the Act the power to make Rules for the purpose of carrying into effect the provisions of the Act is vested with the Government, there is no case that any Rule has been framed by the Government regarding the qualification for appointment and promotion to any post in the Housing Board. It may be significant to note that the powers referred to in particular in S.161(2) of the Act also does not provide specifically for making any rules regarding the qualification for appointment or promotion to any post in the Housing Board. 4. It was argued before the learned Judge that the power to make the Regulations conferred on the Board under S.162 of the Act must be read subject to the restrictions contained in S.19 of the Act. It was pointed out that S.19 which confers the power on the Housing Board to make service regulations does not refer to a regulation fixing the qualification for appointment or promotion whereas it gives power to the Housing Board to make a regulation with the previous approval of the Government fixing salary and allowances of the Secretary and for the grant of leave of absence and leave allowances and acting allowances to the officers and servants of the Board. It was also contended that when S.17(5) provided for exercise of power by the Secretary in such manner as may be prescribed, the expression 'prescribed' must be understood in the light of S.2(12) of the Act which defines 'prescribed' as meaning prescribed by rules made under this Act. This argument was accepted by the learned Judge who held that power is available only to the Government to make rules in terms of S.161 of the Act regarding the fixation of qualification for appointment or promotion in the Housing Board and in the light of S.19 of the Act, power available under S.162 of the Act cannot be taken to include the power to make a regulation fixing the qualification for appointment and promotion in the Housing Board. 5. There is no case that the Housing Board has in exercise of its power under S.161 of the Act enacted any rule fixing the qualification for appointment and promotion of the officers in the Housing Board. In the decision in O.P.4870 of 1972 as confirmed in W.A.30 of 1975 this court had indicated that it was for the Housing Board to prescribe the necessary regulations in that behalf and until this is done, those employees who had come from the City Improvement Trust like the petitioners in the present Original Petition would be governed by the service regulations of the City Improvement Trust. It is obviously pursuant to this direction that the Regulation were framed in exercise of power under S.162 of the Act with the previous consent of the Government. The power under S.17(5) of the Act conferred on the Secretary of the board to make appointments in consultation with the Public Service Commission and to exercise the power in such manner as may be prescribed clearly envisages the bringing of a set of norms for the purpose of appointment and promotion in the Housing Board. The power given to the Secretary of the Board under S.17(5) of the Act no doubt carries with it the obligation to make regulations for uniform application in the matter of appointment and promotion of the officers in the Housing Board. The power given to the Secretary of the Board under S.17(5) of the Act no doubt carries with it the obligation to make regulations for uniform application in the matter of appointment and promotion of the officers in the Housing Board. The Housing Board is a Board brought into existence by the Kerala State Housing Board Act and it is also given the power to make regulations to carry forward the objects sought to be achieved by the Act and for the purpose of giving effect to the provisions of the Act. The fact that S.19 of the Act refers to certain particular powers regarding service under the Board in our view does not necessarily restrict the power available to the statutory body, the power to make its own regulations in exercise of power under S.162 of the Act and in terms of S.162 of the Act. The fact that there is a power in the Government to frame Rules to carry forward the objects of the Act cannot by itself lead to the situation that the power of the Board to make Regulations does not extend to making a regulation providing for the qualification for appointment and promotion. With respect to the learned Judge we feel that the power conferred under S.162 of the Act on the Board has been too narrowly construed by the learned Judge. The mere fact that S.17(5) of the Act uses the expression 'as may be prescribed' does not necessarily lead to the inference that the prescription can only be by Rules as indicated in S.2(12) of the Act. The nature of the power conferred on the Secretary to the Board under S.17(5) of the Act and the absence of any particularisation of power under S.161(2) of the Act in the Government regarding the framing of Rules relating to qualification and appointment in the Housing Board induces us to come to the conclusion that in the light of S.17(5) of the Act read with S.162 of the Act the Board has the power to make the necessary regulation fixing the qualification for appointment and promotion of the officers in the Board. The question as to whether if and when the Government frames any Rules or Special Rules in that behalf in exercise of power under S.161 of the Act what would happen to the Regulation now framed is not a matter which need be considered now. We find that the Regulation made under S.162 of the Act with the previous concurrence of the Government cannot be held to be ultra vires the powers of the Housing Board under S.162 of the Act. We find that this was the view that was expressed or indicated by this court in the earlier judgment in O.P.4879 of 1972 confirmed in W.A.30 of 1975. We are therefore of the view that the decision of the learned Judge calls for interference in this appeal. We therefore allow this Writ Appeal and setting aside the decision of the learned Single Judge dismiss the Original Petition. In the circumstances of the case we make no order as to costs.