Satpal Sharma vs State

T.S. Doabia, J.—Petitioner was promoted as Junior Assistant. An order to this effect was passed on 30.1.1997. In the promotion order it was stated that the petitioner would have to furnish requisite proof in token of his having passed matriculation examination. It is stated that notice was issued to the petitioner. He was called upon to furnish the matriculation certificate. As he failed to furnish the matriculation certificate thereafter order in question was passed. The grievance of the petitioner is that number of persons were promoted who were not matriculate. What is said in para 9(a) of the writ petition is reproduced below :

(a) That the respondentCorporation has even in the past made promotions from the cadre of drivers, conductors, cleaners and peons to the post of Junior Assistants of such employees who were under matric. The petitioner craves leave of this Hon'ble Court to mention a few names viz. S/Shri Nanak Raj, Som Nath, Beli Ram, Kuldeep Kumar, Sukhdev Singh, Puran Chand, Autar Singh, Kewal Krishan to name a few who were promoted to the post of Junior Assistant in the past even when they were not matriculates. The constant conduct of the Corporation has been to make promotions irrespective of the fact whether a person was a matriculate or under matric. However, in the instant case the insistence of respondents upon production of matriculation diploma from the petitioner which he does not possess is totally arbitrary, discriminatory and illegal and violates the rights of the petitioner as enshrined under Articles 14 and 16 of the Constitution.

In addition to above it is submitted that if provisions of Section 34 and Section 45 of the Road Transport Corporation Act, 1950 are taken note of then respondentCorporation has power to frame regulation after getting proper prior sanction of the State Government. It is stated that Rules on which reliance is being placed were not enforced after obtaining prior approval of the State Government, therefore, these cannot be given effect to.

This stand has been noticed in an order dated 6.4.2000 passed in this case. This order reads as under :

While being led to the pleadings, it got revealed that the replies to para 9(a) and (b) are not specific. Let respondent (Managing Director J&K

SRTC) file an affidavit setting out the full details of the promotions made in favour of those persons who have been identified in para 9(a) of the writ petition. The affidavit must further indicate whether the J&K State Road Transport Corporation Regulations 1986 were promulgated, after prior sanction of the State Government, and as to from which date were those regulations made applicable. In case the affidavit is required to be supported by any record, the same shall be made available at the time of hearing.

The affidavit shall be filed within four weeks time. Matter shall be listed thereafter.

The perusal of the Rules namely J&K Road Transport Corporation Rules makes it apparent that for seeking promotion to the post of Junior Assistant a driver has to be matriculate. The relevant entry in this regards reads as under :

430744 Jr. Asstt. Matric or its equivalent type knowing 25 words per minute By selection 50% from matriculate drivers/conductors/ cleaners/Jamadars/Orderlies.

This is one aspect of the matter.

The question arises as to what would be the situation if the argument raised and noticed in order dated 6.4.2000 is taken note of. As noticed, above the argument raised is that the Corporation has the power to make Regulations but before doing so, the previous sanction of the State Government was required. With a view to appreciate this argument, it would be apt to notice the provisions of Section 34. This section deals with the power of the State Government to give directions. Section 44 deals with the power to make Rules. Section 45 deals with the power to make regulations. It is sub section 2(c) which confers power on the Corporation to frame Regulations with regard to conditions of appointment and service and the pay scale of officers and other employees of the Corporation. It is this section which makes it mandatory that there should be previous sanction"" of the State Government before these Regulations are made. Much depends upon the interpretation of Section 45 which is being reproduced below :

Power to make regulations. 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 :

(a) the manner in which and the purposes for which persons may be associated with the (Board) under Section 10;

(b) the time and place of meetings of the (Board) and the procedure to be followed in regard to transaction of business at such meetings.

(c) the conditions of appointment and service and the scales of pay of officers and (other employees of the Corporation other than the Managing Director, the Chief Accounts Officers and the Financial Adviser or as the case may be the Chief Accounts OfficercumFinancial Adviser);

(d) the issue of passes to the employees of the Corporation and other persons under Section 19.

A perusal of the above would indicate that subsection (1) of Section 45 confers power on the Corporation to make Regulations, but this can be done with the previous sanction of the State Government. Subsection (c) deals with the framing of Regulations with regard to appointment and service and scales of pay of officers and also its employees.

In the present case a specific stand has been taken. This is to the effect that the Corporation has not obtained the previous sanction of the State Government. This has remained unrebutted. If this be the position then the petitioner is right in his submission that a Regulation which has been framed without compliance of subsection (1) would be of no consequence. When something is required to be done with the prior sanction then that has to be done in that particular manner only. In case of Baza Buland Sugar Co. v. Board of Revenue, AIR 1965 SC 895 the requirement of law was that a Notification in order to be effective must have been published previously. This was not done. It was held that the provision requiring previous publication is mandatory but if there is some defect in the publication that can be ignored. See Bangalore Cotton and Silk Mills v. Bangalore Corporation, AIR 1962 SC 562. The requirement of previous publication and requirement of publication were held to be different concepts. The first require mandatory compliance, recond may not. In the present case previous sanction of the State Government was required before framing service Rules and Regulations. Specific stand has been taken that this was not done. This has not been rebutted. If this be the position then the petitioner is right in his submission that the Rule in question would not apply to him.

In view of the above this petition is allowed. As respondents have already promoted number of persons who are not matriculate the petitioner is right in his submission that he should be allowed same benefit. Again argument that respondentCorporation has not framed Regulation with regard to getting previous sanction of the State Government, this not been denied. As such respondents would not give effect to its proposal to withdraw the promotion of the petitioner.

Disposed of accordingly.