KERALA STATE HOUSING BOARD Vs. SANTHASAKKU BAI

JUDGEMENT

(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.) 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. 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.