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Judgment
Markandey Katju, C.J.—Writ Appeal No. 2205 of 2004 has been filed against the impugned judgment of the learned single Judge dated
23.4.2004 passed in Writ Petition No. 35718 of 2003 and Writ Appeal No. 2503 of 2004 has been filed against the interim order passed by the
learned single Judge in W.P.M.P. No. 17268 of 2004 in W.P. No. 14567 of 2004 dated 25.5.2004. We have heard the learned counsel for the
parties and have perused the impugned orders and other papers on record.
In Writ Petition No. 35718 of 2003 the learned single Judge has permitted the writ petitioners to file a representation to the first respondent and
directed that the same should be decided on merits. We see no reason to interfere with the aforesaid direction. We are informed that the writ
petitioners have filed a representation to the first respondent and the same has been rejected.
Be that as it may, we wish to lay down the law as regards the qualification and eligibility for promotion to the post of Assessor in the
Corporation of Chennai. The writ petitioners were initially appointed as Tax Collectors and subsequently promoted to the post of Licence
Inspectors in the year 1988. Now they wish to be promoted as Assessors. Certain draft by-laws have been framed by the Corporation of Chennai
in the year 1981, but admittedly they have not received the sanction of the State Government. Section 352(1) of the Chennai City Municipal
Corporation Act 1919 (hereinafter referred to as the ''Act'') states as follows:
S. 352. Confirmation of by-laws by State Government:
(1) No by-law made by the council under this Act shall have any validity unless and until it is sanctioned by the State Government.
A perusal of Section 352(1) of the Act shows that the language therein is categorical. No by-law made by the council has any validity
whatsoever unless and until it is sanctioned by the State Government. Hence the draft by-laws framed by the Corporation of Chennai have to be
totally ignored unless and until the State Government sanctions the same. Since admittedly the State Government has not sanctioned the said draft
by-laws we have to totally ignore the same. It is only like a Bill which has been moved in the Parliament, but which does not become law unless
and until it is passed by both the Houses of Parliament and received the assent of the President.
It is well settled that when statutory rules are silent, the gap can be filled in by Executive Instructions.
In Union of India (UOI) Vs. K.P. Joseph and Others, , the Supreme Court observed in paragraph 9 as follows:
Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court
has held in Sant Ram Sharma Vs. State of Rajasthan and Another, that although Government cannot supersede statutory rules by administrative
instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and
supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.
In J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., the Supreme Court again observed that Executive
Instructions can fill in the gaps in the statutory law. Similar view has been taken in large number of decisions.
Since there is no statutory rule governing the field on the legal subject with which we are concerned, the gap has obviously to be filled in by the
Executive Instructions, which in this case is the Madras Corporation Code 1941.
Rule 1015 of the Madras Corporation Code reads as follows:
Educational and technical qualifications:-
The following are the educational and other qualifications prescribed by the Standing Committees concerned for the posts in the various
departments. Exemptions from these qualifications will be granted by the Council in special deserving cases on the recommendation of the
Commissioner and the Standing Committee concerned.
In the same Code, subsequent to Rule 1015 it is mentioned that for appointment as an Assessor the requisite qualification is passing Account Test.
Mrs. P. Baghyalakshmi, learned counsel for the Chennai Corporation has submitted that a resolution has been passed by the Chennai
Corporation that apart from passing the Account Test a candidate seeking appointment as an Assessor should have also passed the Account Test
for Subordinate Officers Part I & II as it is prescribed in the draft by-laws which were made in the year 1981. Since we have already observed
that the draft by-laws have no legal force at all in view of Section 352 of the Act, we are of the opinion that the Chennai Corporation cannot insist
that a candidate seeking appointment as an Assessor must have passed the Account Test for Subordinate Officers Part I & II. All that is required
for appointment as an Assessor is passing the Account Test as mentioned in the Madras Corporation Code. As regards the second sentence of
Rule 1015, in our opinion, this only permits exemptions to be granted by the Council in special deserving cases on the recommendation of the
Commissioner and the Standing Committee concerned. This would mean that in exceptional and special deserving cases even the Account Test
which is the requisite qualification prescribed in the Code can be dispensed with. The second sentence of Rule 1015 cannot be treated to mean
that an additional qualification apart from passing the Account Test can be prescribed by the Chennai Corporation.
Mrs. P. Bagyalakshmi, learned counsel for the Chennai Corporation relied on the decision of the Supreme Court in Delhi Judicial Services
Assn. and Others Vs. Delhi High Court and Others, in which, a direction was given by the Supreme Court to the High Court to go ahead with the
selection process from amongst the members of the Delhi Judicial Service in the light of the draft rules in anticipation of sanction.
We have already held in The The Secretary, Saliar Mahajana Higher Secondary Schools Vs. G. Subburaj and Others, that a mere direction by
the Supreme Court without laying down any principle of law is not a precedent. The case law on the point has already been discussed in the
aforesaid decision and we need not repeat the same. Hence the mere direction of the Supreme Court in Delhi Judicial Services Assn. and Others
Vs. Delhi High Court and Others, cited supra, in our opinion, does not amount to a precedent as it does not lay down any principle of law. As
already observed above, the language of Section 352 of the Act is categorical and it clearly states that no draft by-law will be valid unless and until
it is sanctioned by the State Government. Hence the Corporation of Chennai cannot get any benefit from the decision of the Supreme Court in
Delhi Judicial Service Association vs. Delhi High Court cited supra.
Mrs. P. Baghyalakshmi, learned counsel for the Chennai Corporation then submitted that we should give a direction to the State Government
to sanction the draft by-laws u/s 352 of the Act. We have already held in Rama Muthuramalingam, State Propaganda Committee Member Vs.
The Deputy Superintendent of Police and Others, that the Judiciary must exercise self restraint. Granting sanction u/s 352 of the Act is a purely
Executive function and it will be wholly improper for the Judiciary to encroach into the domain of the Executive. Judges must exercise self restraint
and must not take over the functions of the Executive or the Legislature as that alone will maintain their prestige and esteem. Under our Constitution
the three separate wings of the State viz. the Legislature, the Executive and the Judiciary have their own functions to perform and it is wholly
improper for the Judiciary to encroach into the domain of the Executive or the Legislature.
For the reason given above, we hold that passing Account Test is sufficient qualification for the writ petitioners for being considered for
promotion to the post of Assessors. We make it clear that we are not directing that the writ petitioners should automatically be promoted as
Assessors. We are only holding that they are eligible to be considered for promotion as they have the necessary qualification for the post of
Assessors. However the actual promotion will be done in accordance with the relevant criteria for promotion as Assessors. The writ appeals are
disposed off accordingly. The writ petition is also disposed off. No costs. Connected miscellaneous petitions are closed.