M N MANI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner has approached this Court for the issue of a writ of certiorari to quash the G.O. Ms. No. 402, Health and Family Welfare Department, dated 9th March, 1979, on the ground that the Government had no jurisdiction to pass the said Government Order administratively so as to modify the regulations which it has framed under section 8 (2) of the Tamil Nadu Public Health Act, 1939.

(2.) The petitioner herein was working as a Health Assistant from 20th July, 1970, in Alandur Municipality. His services have been regularised after the satisfactory completion of probation and he was awaiting promotion as Sanitary Inspector. The State Government has framed certain regulations called Tamil Nadu Municipal Public Health Service Regulations, 1972 with effect from 14th January, 1970, in exercise of their power under section 8 (2) of the Act. As per the said regulations, the services in the Public Health Department of the Municipalities had been divided into five clauses and Health Assistant came under category 2 of clause (5). Regulation for purposes of promation by State wise seniority was to be adopted as far as other clauses are concerned. So far as the promotion to the post of Sanitary Inspector is concerned, there was regional seniority list and the petitioners name found place in the seniority list of the region consisting of the districts, Chingleput, North Arcot and Dharmapuri. According to the petitioner, all his seniors had been appointed as Sanitary Inspectors on the basis of the said Seniority List and when he was awaiting promotion to the post of Sanitary Inspector within the said region, the Government chose to pass the impugned Government Order according to which a Statewise seniority list has to be prepared for the purpose of promotion of the Sanitary Inspectors and that has affected his chances of promotion as his name has gone down considerably in the Statewise Seniority List.

(3.) The learned counsels attack on the Government Order is that having passed a statutory regulation in the year 1972 in exercise of their power under section 8 (2) of the Act, the Government cannot modify the regulation in any manner by issuing administrative orders. Thus, the main question to be considered in this case is, whether the Government is entitled to alter the existing regional-wise seniority list to Statewise seniority list by issuing the impugned notification. According to the learned counsel for the petitioner the impugned notification is administrative in nature and it cannot be taken to be a regulation issued under section 8 (2) of the Act by way of amending the earlier regulation. It is no doubt true that the impugned Government Order does not indicate that it has been passed in exercise of Governments power to make regulation under section 8 (2) of the Act. But the non-mention of the source of power cannot affect the Government Order. If in fact, the Government had the power at the time when they issued the notification to amend the regulation under section 8 (2) of the Act, that section of the Act empowers the State Government to pass service regulations dealing with Municipal Public Health staff and such regulation has been passed in the year 1972. The said regulation as already stated, provides for a regionwise seniority for purposes of promotion to the post of Sanitary Inspector. From the counter-affidavit filed by the respondent in this case, it is seen that there was some repeated representations from the employees of the Municipal Health Service for Statewise seniority for purposes of promotion to the post of Sanitary Inspector instead of regionwise seniority. As a result of those representations, the Government decided to provide for a Statewise seniority instead of regionwise seniority, for the purposes of promotion to the post of Sanitary Inspector. Therefore, for giving effect to the said decision, the impugned Government Order was passed. That the Government have the power to modify or revise the regulations which they had framed earlier under section 8 (2) of the Act, cannot he disputed and it has not in fact, been disputed by the learned counsel for the petitioner. But what the learned counsel for the petitioner contends is: Firstly, that the impugned order does not refer to its source of power under section 8 (2) of the Act and, therefore, the Government Order cannot be taken to have been passed under the said provision and secondly, it is contended that the impugned Government Order does not in terms modify the regulation. But it merely provides for the alteration of the regionwise seniority into a Statewise seniority. After a due consideration of the matter, I am of the view that the impugned Government Order is not vitiated for the reason that it does not contain the source of power and will not invalidate the order and in such a case the question to be considered is whether the authority had the requisite power or not and once it is found that the authority had the power, then the non-mention of the provision will not invalidate the exercise of that power. Though the impugned Government Order does not refer to the provision of section 8 (2) of the Act, since the Government had the requisite power under section 8 (2) of the Act to modify the existing regulation, the impugned Government Order should be taken to have been passed only under section 8 (2) of the Act, and it cannot be merely an administrative order without reference to the provisions of the Tamil Nadu Public Health Act.