Mohan Singh vs H.P. Housing Board and Others

T.R. Handa, J.—The petitioner, Shri Mohan Singh, is presently holding a work charged post of a clerk with Respondent No. 1, Himachal Pradesh Housing Board, hereinafter referred to as �the Board. He was appointed against this post in 1978 vide appointment order, copy found at Annexure-P1. This appointment of the Petitioner was made after his name was duly sponsored by the concerned Employment Exchange and he was declared successful in the test/interview conducted for selection to the post.

The Petitioner has since put in about seven years of service as a work charged clerk which post carries the same duties as the post of a regular clerk. The work and conduct of the Petitioner during his seven years of service has been commended by his superiors and in fact for some duration, he had also satisfactorily discharged the duties of a higher post of a Sub-Divisional Clerk. He also possesses all the qualifications prescribed for the post of a regular clerk under the relevant rules framed by the Board. The grievance of the Petitioner is that in spite of all this, he has not been brought on regular establishment of the Board even though he had been making repeated representations to that effect. Copies of such representations are found at Annexures- P-5 to P-9. It is, in these circumstances, that the Petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution praying for issue of an appropriate writ, directing the Respondent-Board to bring the Petitioner on regular establishment of clerks with effect from the date, a vacancy in that cadre had been filled after his appointment against the work charged post and to give him all the benefits� arising out of such regularisation.

The contention of Respondents No. 1 and 2 initially was that the case of the Petitioner for being brought on regular establishment of clerks was under active consideration of the Board. I was, however, informed today by Shri Prem Goel, learned Counsel appearing for Respondents No. 1 and 2, that in so far as the Board is concerned, it has accepted the claim of the Petitioner for being brought on the regular establishment and has recommended his case to the State Government (Respondent No. 3) for conversion of the post held by the Petitioner from work charged to regular establishment. He further made a statement that as soon as the approval of Respondent No. 3 is obtained, formal orders for bringing the Petitioner on regular establishment shall be issued. According to the learned Counsel, the necessity for making recommendations to the State Government and obtaining its prior approval for conversion of the work charged post into regular post was felt on account of the letter dated 1-9-1976 received from the State Government and a copy of which is found at Annexure-RA. Vide this letter instructions have been issued by the State Government to all the Boards/Corporations including the Respondent-Board to obtain approval of the Committee referred to therein relating to all proposales concerning sanction of staff, revision of pay scales and allied matters in order to have proper control over public sector undertakings.

It may be observed in this connection that in its supplementary affidavit filed on behalf of the Board by its Chief Engineer-cum-Secretary, the letter dated 1-9-1976 found at Annexure-RA had no sanctity of law as there was no requirement of law for the Board to obtain prior approval of the State Government for creation of posts and making appointments thereto where the minimum of the pay scale of the post did not exceed Rs. 800/- per mensem or the maximum of the pay scale did not exceed Rs. 1250/- per mensem.

Respondent No. 3, the State of Himachal Pradjsh, however, did assert in its reply affidavit that the instructions issued by the State Government in terms of its letter dated 1-9-1976 were valid and binding on the Board since the same had been issued u/s 60 of the Himachal Pradesh Housing Board Act, 1972, hereinafter called �the Act�.

After hearing the learned Counsel appearing for the parties and considering the relevant provisions of the Act, I am of the view that the Board is fully competent to create the posts of regular clerks against which the Petitioner seeks his appointment and also to make appointments against such posts without the prior approval of the State Government. Inasmuch as the Board now concedes the claim of the Petitioner for being brought on regular establishment, the only point that needs consideration i.s whether it is incumbent upon the Board to seek prior approval of the State Government for bringing the Petitioner on the regular establishment.

It is not disputed that the Board is a statutory body having been established u/s 3 of the Act. Section 13 of the Act deals with appointment of the officers and servants of the Board and creation of posts. This provision reads:

(1) The State Government may appoint a Secretary of the Board on such terms and conditions of service as it may deem fit.

(2) The Board may create such other posts and appoint such other officers and servants thereto as it may consider necessary for the efficient discharge of its duties:

Provided that the previous sanction of the State Government shall be necessary:

(a) for the creation of any post if either the minimum of the pay scale of the post exceeds eight hundred rupees per month or the maximum of the pay scale thereof exceeds one thousand two hundred and fifty rupees per month; or

for the appointment, whether by promotion or otherwise of any person to such post if the initial pay thereof exceeds eight hundred rupees per month or the maximum of the pay scale of the post exceeds one thousand two hundred and fifty rupees per month.

(3) Subject to the provisinos of sub-section (1) the conditions of service, functions and duties of the officers and servants of the Board shall be such as may be determined by regulation.

The language of sub-section (2) of Section 13 extracted above admits of no doubt that the Legislature intended to confer absolute power on the Board to create such posts other than the post of a Secretary, the minimum of the pay scale of which does not exceed Rs. 800/- per mensem or the maximum of the pay scale of which does not exceed Rs. 1250/- per mensem. The power of making appointments against the posts falling in the above-mentioned category also stands vested in the Board. There is no requirement for the Board to obtain prior approval of the State Government or of any other authority before creation of the posts referred to above and making appointments thereto. Admittedly, the post of a clerk carries the pay scale of Rs. 400-600 and, therefore, the power to create this post and to make appointment thereto would, in terms of Section 13(2), vest only in the Board.

In support of its contention that it had the authority to issue instructions to the Board as contained in the letter dated 1-9-1976 found at Annexure-RA, the State Government places reliance on Section 60 of the Act. This provision reads:

The State Government may give the Board such directions as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Board to comply with such directions.

The power conferred on the State Government to issue directions to the Board for carrying out the purposes of the Act was certainly not intended to negate or nullify any of the express provisions of the Act. This power was intended to operate only in such fields in respect of which no provision had been made in the Act or in respect of which the Act was silent. It is a well settled proposition that executive directions/ instructions cannot supersede an express dictum of the Legislature, By enacting Section 13, the Legislature had conferred absolute power on the Board to create and make appointment against any post of which the minimum of the pay scale does not exceed Rs. 800/- per mensem or the maximum of the pay scale does not exceed Rs. 1250/- per mensem. This power given to the Board was not subject to the control of the State Government. Since the power of the Board vested in it u/s 13 in so far as it pertains to the creation of posts falling in the category referred to above and making appointments thereto is absolute and not subject to the control of the State Government, the latter in my view cannot invoke the provisions of Section 60 of the Act to control that power of the Board. As earlier stated, the power conferred on the State Government u/s 60 is only a residuary power which can be exercised in matters in respect of which no express provision is found in the Act. The directions issued jby the State Government to the Board vide letter dated 1-9-1976 found at Annexure-RA are, therefore, ultra vires of the Act in so far as they pertain to the creation-of posts the minimum of the pay scale of which does not exceed Rs. 800/- or the maximum of the pay scale of which does not exceed Rs. 1250/- as also the appointments to such posts.

Inasmuch as the post of a clerk against which the Petitioner seeks his regularisation carries a pay scale of Rs. 400-600/- only the Board is well within its jurisdiction to create such a post and to make appointment against that post. Since the Board has now conceded the claim of the Petitioner for his being brought on the regular establishment of clerks, I direct that the Board shall do sowithin one month from today.