SHANTA KAMALANATHAN Vs. TAMIL NADU HOUSING BOARD MADRAS

JUDGEMENT

(1.) The petitioner in W.P. No. 1094/3 of 1981 is the appellant in this Writ Appeal. The respondents herein are the respondents in the writ petition. It will be convenient for us, if we refer to the parties as per their array in the writ petition. The petitioner, who was, at the relevant point of time, an Assistant in the services of the first respondent, had a grievance with reference to promotions of personnel as Superintendents Grade II on the ground, they lacked the prescribed educational qualification even for the post of an Assistant, from which promotion has to be made. The prescribed educational qualification for the post of an Assistant, prevailing then, was that the candidate must be a graduate of a recognised university. The petitioner is such a graduate, while the other personnel are not. She came to this Court by way of W.P. No. 4072 of 1975, expressing this grievance of hers. In answer to the grievance of the petitioner G.O.Ms. No. 648, Housing Department, dt. 17-6-1975 was put forth by the first respondent herein, which was also the first respondent in that writ petition to say that the service regulations of the first respondent in this behalf have been amended relaxing the prescriptions regarding the educational qualification for the post in question and the amendments have been approved and confirmed by the Government. The learned single Judge did not countenance the move of the respondents before him to take advantage of this Government order and opioning that the relaxation of the prescription of educational qualification could be effective only from 17-6-1975, and cannot validate lack of the prescribed educational qualification in respect of personnel already appointed, allowed W.P. No. 4072 of 1975. However, the learned single Judge made it clear that the first respondent shall not be debarred from considering the appointments of the concerned personnel after 1975.

(2.) On 31-3-1981, there was a Resolution No. 102 of the first respondent, amending the Service Regulations and relaxing the prescriptions regarding educational qualification for the post of an Assistant. The Resolution declared that the amendment shall be deemed to have come into effect from 22-4-1961. The power of the first respondent to make, modify or cancel the Regulations has to be gleaned from Sec. 161 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act, 17 of 1961), hereinafter referred to as the Act. Section 161(1), before its amendment by the Tamil Nadu State Housing Board (Amendment) Act, 1981 (Tamil Nadu Act, 36 of 1981), read as follows:- "161(l): The Board may, by notification, make regulations not inconsistent with this Act and the rules made thereunder, for the purpose of giving effect to the provisions of this Act." As we could see from the language of S. 161(1) of the Act, before its amendment by Tamil Nadu Act (36 of 1981), the first respondent was not vested with the power to make regulations retrospectively. However, as already noted, by the Resolution No. 102, dt. 31-3-1981, it has been directed that the amendment to the regulations shall be deemed to have come into effect from 22-4-1961. This Resolution of the first respondent got communicated to the second respondent by the Chairman of the first respondent on 9-4-1981. By G.O.Ms. No. 921, Housing and Urban Development Department, dt. 22-10-1981, the second respondent, pursuant to powers under S. 161(3) of the Act, approved and confirmed the same. On 8-6-1981, the Tamil Nadu State Housing Board (Amendment) Act, 1961(TamilNadu Act, 86 of 1981) was published in the Gazette, by virtue of which S. 161(1) of the Act was amended; inserting the words 'whether prospectively or retrospectively' after the words 'making regulations', found in that provision. The amended Sec. 161(l) of the Act reads as follows: "161(1) : The Board may, by notification, make regulations whether prospectively or retrospectively not inconsistant with this Act and the rules made thereunder, for the purpose of giving effect to the provisions of this Act." It must be noted that the Tamil Nadu Act (36 of 1981) received the assent of the President on 28-5-1981. The petitioner challenged in the present writ petition the Resolution of the first respondent No. 102 dated 31-3-1981, as approved by the second respondent by G.O.Ms. No. 921, Housing and Urban Development Department, dt. 22-10-1982, as null and void.

(3.) The primary ground urged by the petitioner before the learned single Judge, who heard the writ petition, and now urged before us, is that on the date of the Resolution No. 102 of the first respondent, namely, 31-3-1981, amending the Regulations, giving effect to them retrospectively, the power to do so was lacking for the first respondent and hence the Resolution No. 102 dated 31-3-1981, as approved and confirmed by G.O.Ms. No. 921, Housing and Urban Development Department, dt. 22-10-1981, must be declared to be null and void. The learned single Judge did not countenance this ground of attack on a reasoning that though the Resolution No. 102 was passed on 31-3-1981 and even though at that time the power to make Regulations retrospectively was lacking in the first respondent, yet the Resolution became effective only on its approval by G.O.Ms. No.921, Housing and Urban Development Department, dt. 22-10-1981 as per S.161(3) of the Act and before that, the Tamil Nadu State Housing Board (Amendment) Act, 1981 (Tamil Nadu Act, 36 of 1981) had come into force on 8-6-1981 and that will give sanctity to the Resolution No. 102, dt. 31-3-1981, as approved by G.O.Ms. No. 921. This reasoning of the learned single Judge is not being accepted by the petitioner. On an assessment of the legal position in the context of the sequence of events exposed; we are obliged to concur with the submissions made by Mr. A.L. Somayaji, learned Counsel for the petitioner, on this contention.