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PETITIONER: V. BALASUBRAMANIAM ETC. ETC

       Vs.

RESPONDENT: TAMIL.NADU HOUSING BOARD & ORS ETC. ETC.

DATE OF JUDGMENT21/09/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1988 AIR    6            1988 SCR  (1) 228  1987 SCC  (4) 738        JT 1987 (3)   617  1987 SCALE  (2)625

ACT:      Tamil Nadu  State Housing  Board Act, 1961/Madras State Housing Board  Regulations: Section  16-19/Regulation 28 and State Government 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.      Words and phrases-’Subject to’-Meaning of.

HEADNOTE:      The Tamil  Nadu Housing Board made Madras State Housing 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.      For promotion  to the cadre of Assistant Engineers, the Board prescribed  5 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  5  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  Resolution No.  467 dated 8.11.1965, again  prescribed the  qualifying  service  of  5 years in  respect of  Junior Engineers,  since, according to it, that would be in accordance with the rules governing the Madras Engineer-      ing Service  in the  Government. By  G.O.. Ms.  No. 156 (Housing)  department   of  Labour   dated  14.5.1969,   the Government approved  the  regulations  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 229      The appellants  and other  Supervisors who were working in the  Engineering Subordinate  Service of  The Tamil  Nadu

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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 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 regulations in respect of Junior Engineers was 3 years’ service as stated in the Government order dated 14.5.1969 and  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  procedure prescribed for modifying a regulation.      A Single  Judge of  the High  Court directed  the State Government 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 filed  an affidavit  explaining the  reasons  for issuing the  erratum. The  Single Judge  concluded that  the period of  "3 years" 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  contrary 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 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 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 230 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  on behalf  of the  respondent-Board that even though under  the regulations 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 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  erratum  correcting  a  clerical

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mistake and not a 1:) modification of an earlier regulation. [241B]      2. In  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 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 the Board. [251A-C]      The  impugned   promotions  have   been  made   between 28.6.1971  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-      cised under  regulation 28(d).  Since relaxation of the qualification  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; 251D]      3.1 No  doubt the  regulations which  had received  the approval of  the State  Government had not been published in the offecial gazette 231 by the relevant dates as required by sections 3(19-A) of the Tamil Nadu 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- El      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  regulations were submitted  to   the  Government   for  approval.  Until  the 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]      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 concerned, 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 with s. 161 of the Act. [245E, H; 246A-B]      3.4 Having taken a decision as per its resolution dated 8.11.1965 laying  down that  the qualifying  service which a Junior Engineer  should possess for purposes of promotion to the cadre  of Assistant  Engineers should  be 5 years, which

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had received the approval of the State Government, 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  modifying  it  by  another  resolution  and obtaining the approval of the State Government to it. [246B- Cl      3.5 Having  once obtained  the concurrence of the State Government to  the regulations  made by  it, the Board could not act  contrary to the said regulations ignoring the State Government altogether merely 232 because the  regulations had  not been  published. Any  such action would be arbitrary in character. Mere non-publication of the  regulations in the of official gazette was not fatal to the writ petitions. [251E, GJ      The impugned  promotions are, therefore, set aside, and the Board  directed to  pass fresh orders of promotion after considering the  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 Board with the approval of the State Government. [251E-F]      [The Judgment  of the Division Bench set aside and that of the 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  way of  the petitioners  in the  writ petitions  or  any  other  employee  of  the  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 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.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 545 of 1975.      From the  Judgment and  order dated  25.11.1974 of  the Madras High Court in Writ Appeal No 238 of 1974.                               With      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 C.A. No. 545 of 1975. 233      K. Rajindera  Choudhary,  A.K  Srivastava,  K.  Shivraj Choudhary and  K. Ram  Kumar for the Respondent Nos. 2 to 11 in C.A No. 545 of 1975.      Padmanabham,  Sunder   and  Ambrish   Kumar   for   the Appellants in C.A. Nos. 637-642 of 1975.      A. K. Srivastava, R. Mohan, K Shivraj Chowdhary and A V Rangam for the Respondents in A Nos. 637-642 of 1975.      The Judgment of the Court was delivered by

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    VENKATARAMIAH, J.  The above appeals arise out of three petitions filed  under Article  226 of  the Constitution  of India bearing  Writ Petition Nos 1367, 1389 and 1448 of 1973 on the  file of  the High  Court of  Madras The  appellant V Balasubramaniam was the petitioner in Writ Petition No. 1389 of 1973 and S. Swaminathan and S Suruli were the petitioners in the  other two writ petitions All of them were working as Supervisors in  the Engineering  Subordinate Service  of the Tamil Nadu  Housing Board  (hereinafter referred  to as ’the Board’). The  Board was  established under  the  Tamil  Nadu 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 filled up either by direct recruitment  or  by  promotion  from  the  cadre  of  Junior Engineers possessing  the qualifications  prescribed  for  a Junior Engineers  or from  the cadres  of Supervisors,  Head Draftsmen and  Draftsmen Grade-l 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 service 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 Junior  Engineers and  a diploma  in Engineering  or  any equivalent  qualification   was  the  minimum  qualification prescribed for  entry into  the 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, 234      who were  working as Junior Engineers had been promoted      to the  A cadre of Assistant Engineers even though they      had not  put in  five years  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, 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 petitions were opposed by the Board and the Junior      Engineers who  had been impleaded as respondents in the      said writ petitions. The State Government was impleaded      as a  respondent to  the writ  petitions by the learned      Single Judge who heard the writ petitions After hearing      all the  parties, the  learned Single Judge allowed the      Writ Petitions  by his  common  judgment  delivered  on      30.1.1974 declaring that the 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

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    promoted according  to the regulations Aggrieved by the      decision of  the learned Single Judge the Board and the      Junior Engineers whose promotions had been set aside by      the learned Single Judge preferred in all seven appeals      being Writ  Appeal 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.  These seven  appeals by      special leave  have been  filed  against  the  judgment      delivered by the Division Bench of the High Court.      It is  necessary at  this stage  to set out briefly the relevant provisions  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 Board’ contains provisions relating to  the appointment  of the  employees 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 servants of the Board reads thus: 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 officers and servants of           the Board  shall be  such as  may be prescribed by           regulations."      Section 18  of the Act contains the provisions relating to promotions 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 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;           (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:      Section 19  of the  Act provides  that subject  to  the provisions of  the Act,  the Board  shall with  the previous approval of  the Government, make regulations with regard to the  various   matters  set   out  therein  such  as  leave, disciplinary proceedings  etc. which are also referred 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,  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

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carrying into  effect the  provisions of the Act. Subsection (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 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 ]61 of the Act  provides that  the Board may, by notification, 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-section (3) of section 161 of the Act  states  that  no  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 the Board has made regulations which are called Madras State Housing 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 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 16  1(3) of  the Act. In the said regulations as far as the promotion of the Junior Engineers and the Supervisors as  Assistant   Engineers  was   concerned,  the  Board  had prescribed five  years’ qualifying  service in  the case  of Junior Engineers  and ten  years’ qualifying  service in the case of  Supervisors 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 period of five years  of service  which had  been  prescribed  as  the 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 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 .  O .  Ms .  No .  156 (Housing) Department of  Labour dated  14.5.1969. The  regulations, as approved by the Government in 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’.  This memorandum  was signed  by an Assistant Secretary to the 237 Government. It  was the  contention of  the Junior Engineers who had  been promoted  as the  Assistant Engineers that the qualification prescribed  by the  regulations in  respect of Junior Engineers  for promotion  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

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be ignored  since it  had not  been issued  by following the procedure prescribed  for modifying a regulation. The Board, however, raised  some inconsistent  pleas with regard to the said erratum.  It is  at the  stage the learned Single Judge directed the  State Government to be impleaded as a party in order to  ascertain whether  the Memorandum  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 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:                "2.  The   Tamilnadu  Housing  Board  in  its           resolution No.  772 dated  20.3.1963 approved  the           draft  service   regulations  in   regard  to  the           conditions of service of the officers and Servants           of  the  Board.  The  Chairman  of  the  Tamilnadu           Housing Board  in  his  letter  No.  188884/E/63-I           dated  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 Housing  Board Engineering  officers  Service.           For the  appointment as  Assistant Engineer one of           the qualifications  proposed 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 the  Government the  Tamilnadu 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 238           409 to 410 of the G.O.). While these revised draft           regulation     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 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  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           26.2.71 (vide page 799 of the G.o.).                This respondent respectfully submits that the           Tamilnadu Housing  Board in its resolution No. 467           dated 8.11.1965  has proposed  a period of 5 years

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         as  the   minimum   qualification   required   for           promotion as  Assistant Engineers  in the  case of           directly recruited  Junior Engineers.  At the time           of approval  by the  Government in  G. O . Ms. No.           156/Labour dated  14.5.1969 the minimum period for           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.      The  learned  Single  Judge  after  going  through  the various affidavits  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 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 Respondents 2 to l  l and  C.J. Jayachandran  from  the  cadre  of  Junior Engineers to  the cadre  of Assistant Engineers was contrary to the 239 regulations as  they had not completed five years of service in the  cadre 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  new plea  was urged  on behalf  of the  appellants, namely, that  the 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  the  Act  had  provided  that  the remuneration and other conditions of 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 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  statute 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 Bench proceeded to hold that the effect  of not  notifying the regulations as required by sub-section (I)  of section  161 of  the Act  was  that  the regulations did not have the force of law and, therefore, no mandamus 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 petitions were dismissed. These appeals,  as already  stated, have  been filed against the judgment of the Division Bench.

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    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  contentions urged  before  us  and  that  plea  is contained in  paragraph 3  of the 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. 2           17  the  Board  has  decided  to  relax  the  rule           requiring 5 240           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."      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 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:                " Notwithstanding anything contained in these           regulations or  in any  of the  rules mentioned in           these regulations,  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/absorption to  a service  in           such manner  as may  appear to  it to  be just and           equitable  subject   to  the   approval   of   the           Government................. "      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  P  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 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  Board and  everybody  concerned  with  the question had understood 241 that the  qualifying service prescribed for Junior Engineers to be  eligible to  be promoted  to the  cadre of  Assistant Engineers was  five years 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

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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  merely an  erratum correcting  was a clerical error and  was not  a modification of an earlier regulation. We, therefore,  uphold the  finding of  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  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 various dates between 25.6.197 1 and 7.2.1972. It is true that the regulations 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, 189 1 which defined the expression ’notification’ as a notification published in the official  Gazette and  by section  21 of  the Tamil Nadu 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, notification  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  publication   or  notification.  The  said regulations were  actually published 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 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 received the approval  of the  State Government although they had not been published  in the official Gazette. There were no other regulations which  had been  duly made  and published in the official Gazette. 242 In the  above situation  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  and   such  other  officers  and  servants  as  it considers necessary  for the  efficient performance  of  its functions. Section  17 of the Act no doubt provides that the remuneration  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 regulations 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 22.4.6;  and   it  passed   the  resolution   adopting   the regulations on  20.3.1963. The regulations 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  the Board had  necessarily to  take decisions in accordance with certain norms  laid down  by it  as  regards  the  modes  of

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appointment of  officers  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, [19 15] 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 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  validity  of  a notification issued  by the  General Manager  of the  Mysore State Road  Transport Corporation  inviting applications for appointments 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(1) of  the Road Transport Corporations 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 staff and the manner in which the conditions of appointment and 243 service of  such officers and staff was to be regulated were almost 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           Executive Officer  or General  Manager and a Chief           Accounts   officer    appointed   by   the   State           Government.           (2) A  Corporation may appoint such other officers           and servants  as it  considers necessary  for  the           efficient performance of its functions.           (3) The  conditions of appointment and service and           the scales  of pay of the officers and servants of           a Corporation shall-                (a) as  respects the  Chief Executive officer           or General  Manager and the Chief Accounts officer           be such 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  determined by regulations made           under this Act.                45(1). A  Corporation may,  with the previous           sanction   of    the   State    Government,   make           regulations, not  inconsistent with  this Act  and           the rules  made thereunder, for the administration           of the affairs of the Corporation.           (2) In  particular, and  without prejudice  to the           generality   of    the   foregoing   power,   such           regulations may  provide for  all or  any  of  the           following matters, namely:      ..........................................                (c) the conditions of appointment and service           and the  scales of pay of officers and servants of

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         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) an  (2) of  section 14  of the Road Transport Corporations Act, 1950 244 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  and  section  45  of  the  Road  Transport Corporations Act,  1950 corresponds  to section  161 of  the Act. Admittedly  in that case no regulations had been framed by the  Corporation  under  section  45(2)(c)  of  the  Road Transport Corporations  Act, 1950 prescribing the conditions 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 section  45 of  the  Road  Transport Corporation Act,  1950. The relevant part of the decision of this Court is given below:                "In Dundee  Harbour Trustees  v. &  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           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 autonomous  Corporation incorporated  under the           Act for  the purpose  of operating  road transport           services in  the 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           officers 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 scales of pay of its officers           and servants  shall be  such as may subject to the           provisions of  s. 34  be 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 prescribing 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  and  conditions  of           service of the employees, the Corpora- 245           tion must  obey  those  directions.  The  conjoint           effect of  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

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         are  framed   or   directions   are   given,   the           Corporation may  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 of its affairs with the help           of officers  and servants. In the absence of clear           words,  it   is  difficult   to  impute   to   the           legislature the  intention  that  the  Corporation           would  have  no  power  to  appoint  officers  and           servants and  fix the conditions of service unless           the regulations under s. 45(2)(c) are framed. "      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 without expressing any final opinion of the said question it has to be held that 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 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 officers and staff of the  Board until they were replaced by formal regulations published in  the form  of a  notification in  the  official Gazette. Even  in the  case of the persons holding the civil posts  in   the  Government   this  Court   had  held   that notwithstanding  the   provisions  of  Article  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 made  under  Article  309  of  the Constitution or the rules made under the proviso thereto the State Government could make valid appointment 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 exercisable by  a State  Government under Article 162 of the Constitution as 246 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 which  a Junior Engineer should possess 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 faithfully 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  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 cadre of

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Assistant Engineers  on the  dates  on  which  the  impugned promotions were  made, the  impugned  promotions  cannot  be questioned since  under regulation  28(d) as approved by the State Government  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  of  relevant records relating to the said resolution. By resolution dated 20th January,  1972 the Board has no doubt approved the note prepared 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 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 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 clearly 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 elapsed after the resolution relaxing the qualifications was passed, the 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 qualification 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:                     "Lr. No. 60880/FT2/69 date 5.7.72      TO           The Secretary to Government,           Labour Department,           Madras-9.      Sir,           Sub:  Establishment-Technical-Tamil  Nadu  Housing      Board  Engineers   officer  Service-Promotion   to  the      Assistant Engineer reduction of service from five years      to three years. Amendment to service regulation.      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.           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.           3. Relevant rules in the service regulation are to      be amended  suitably in  accordance  with  the  Board’s      resolution cited.  Hence  the  following  amendment  is      suggested to  the rule  in the  service regulation  for      approval.      Rule 6           Existing:           Must possess  the qualification  in items  (i)  or

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    (ii) above  and service as Junior Engineer for a period      of not less than five years. 248           Amendment                Must possess  the qualification  in items (i)           and (ii)  above and service as Junior Engineer for           a period of not less than three years."      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 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 (ii)/72           dated 17.8.1972           From                U.P. Govindasami B.A.                Deputy Secretary to Government           To      The Chairman,      Tamil Nadu Housing Board,      Madras-35.           Sir,                Sub:    Establishment-Technical-Tamil    Nadu           housing  Board   Engineering   officers   Service-           Promotion to  the Assistant  Engineer reduction of           service from  five years  to three years Amendment           to service regulation.                Ref.  Your   letter  No.  60880/FT2/69  dated 5.7.72.                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  favour of  certain Junior  Engineers who           have not put in five 249           years of service but has not approved any proposal           to 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 Assistant Engineers in the proportion           of 3:  I 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.                                         sd/                               (T.K. Krishnan)                               for Deputy Secretary to                                    Government."      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 petitions were disposed  of by the learned Single Judge on January 13,

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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/ET2/69        dated 7-3-74.           To                The Special Secretary to Government,                Housing Department, Fort St. George,                MADRAS -- 600009.           Sir,                Sub:    Establishment-Technical-Tamil    Nadu           Housing  Board   Engineering   officers   Service-           Promotion to the post of Assistant Engineer. 250                Ref: 1. Government lr. 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 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 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 Tamil  Nadu  Housing  Board  Service           Regulations, the  powers conferred on the Board to           relax the  rule, in  case of any 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  this  office           letter 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.                                    sd/                               Chairman"      By this letter the Board requested the State Government not to  take any decision on the subject-matter of the above correspondence till the appeals were disposed of. Till today the Government has not 251 approved the resolution passed by the Board on 20th January, 1972 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

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approval of  the Government’,  that  is,  that  unless  that approval is given by the Government the relaxation would not be valid  because the  regulations themselves  had been  put into effect  after  obtaining  the  approval  of  the  State Government  earlier.   The  words   ’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 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  been done  in accordance  with regulation 28(d) is  untenable in  the aforesaid circumstances it would be wholly  unjust to  upheld the  impugned 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 contrary to the said Regulations ignoring the State Government  altogether merely  because the Regulations had not  been published.  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 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.      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 which he is now H 252 holding by  creating a  supernumerary  post,  if  necessary, until such  time he becomes again eligible to be promoted to the said  post. The  continuance 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 petitioners 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   accordance  with   law.  These   appeals  are accordingly allowed. There shall, however, be no order as to costs. N.P.V.                                  Appeals allowed. 253