1. Special Civil Applications Nos. 468 and 683 of 1962 raise common questions of law and facts and they can be disposed of by one judgment. The learned advocates for the parties have also consented to both the petitions being dealt with by a common judgment. We shall however state some special facts of the respective petitions where they need a separate handling. In both the petitions, the challenge is directed against circular annexure D read with circular annexure C in Special Civil Application No. 486 of 1962. The said circulars are annexures C and D, respectively, in Special Civil Application No. 683 of 1962 and in this judgment, reference will be made hereafter to these circulars as annexure D read with annexure C. These circulars were issued by the Commissioner of Gujarat Housing Board consequent upon certain resolution mentioned in the said circulars of the Gujarat Housing Board. By the said circulars, rules were circulated amongst the employees whereby the seniority list of its employees together with certain principles of classification, promotion and other conditions of recruitment were finalized and put into effect.
2. The petitioner of Special Civil Application No. 486 of 1962 joined service under the Bombay Housing Board before bifurcation of the State of Bombay as a junior clerk in 1950 and at the date of the petition, he was holding the post of a senior rent collector in the scale of Rs. 92 - 8 - 140 under the Gujarat Housing Board. Petitioners 1 to 15 of Special Civil Application No. 683 of 1962 held the posts of junior rent collectors and petitioners 16 to 18 held the posts of supervising rent collectors under the Gujarat Housing Board. These petitioners were also employees of the Bombay Housing Board before bifurcation. The posts held by the petitioners belonged to a group of posts which was known as non-clerical-cum-non-technical posts. In both the petitions, opponent 1 is the Gujarat Housing Board and opponent 2 is the Housing Commissioner of the said Board. The petitioners in both the petitions were allowed to amend their respective petitions in March 1967 and the opponents were given opportunities to reply to the amended petitions. The petitioners' case in both the petitions as they stand amended may be stated.
3. The staff of the Bombay Housing Board was not divided into any exclusive groups and under the terms and conditions of service, the group of clerical posts was not considered as separate or exclusive to the group of posts pertaining to rent collection, and vice versa. Then again, employees in the clerical group were eligible for promotion to posts in the group pertaining to rent collection and vice versa. The petitioner in Special Civil Application No. 486 relied upon an order of the Bombay Housing Board dated 13 February, 1953 in support of his above-stated case about the conditions of service and more particularly in respect of the post of a senior rent collector and that of a senior clerk to claim that they were treated as interchangeable and the pay-scale was also the same. The said order, however, cannot be and is not relied upon by the petitioners of the second petition. It is not necessary for us to state the details of this order. Then came the bifurcation of the State of Bombay in 1960 and under the relevant provisions of law, the two regional boards, the Gujarat Housing Board and the Maharashtra Housing Board came into being and the services of all the petitioners were allocated to the Gujarat Housing Board. The provisions under which the two regional boards were established also laid down that the terms and conditions of such servants allocated to the two respective housing boards shall not, unless altered by any authority designated, be less favourable than those admissible to them while in the service of the Bombay housing Board. The petitioners claim that when they joined the service of the Bombay Housing Board, the conditions of their service included amongst other things, the right of being considered for promotion to the various higher posts in the clerical group right up to the senior superintendent. According to the petitioner of Special Civil Application No. 486 of 1962, under S. 67(c) of the Bombay Housing Board Act, the Bombay Housing Boards had made regulations relating to remuneration and conditions of service of the employees and seniority lists were prepared and promotions to higher posts in the clerical group of persons holding posts in rent collecting group were made in accordance with the seniority as fixed in the lists. The petitioner appears to have initially relied on the regulations in supports of his claim. It may, however, be mentioned that the opponents have produced the regulations so made and they particularly rely upon Regn. 3 to meet the case of all the petitioners. The said regulation is as under :
'3. As far as possible, the Board shall follow the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. It should also frame suitable rules for classification of and recruitment to the various posts under it.'
4. The opponents claim that this regulation is still in force and the impugned resolution and such others were made under the authority of this regulation. The petitioner of the first petition has averred that he did not have the copy of the regulations and obviously he had relied on them in the absence of the knowledge of the contents thereof. But after affidavit-in-reply was filed in both the petitions all the petitioners challenged this Regn. 3 as ineffective and giving no authority to the Board to issue the impugned circulars. The petitioner in the first petition has further averred that as a junior clerk, he was entitled to be promoted to the higher clerical posts. In 1953, when he was promoted to the post of the senior rent collector, the promotion was not at his request. He had however not objected to the said promotion because the post was interchangeable with the post of a senior clerk and he had not relinquished his right to be promoted to the clerical posts. In order to support his case, the petitioner has given list annexure E of six cases of transfers and promotion from one group of posts to the other group. It may be mentioned that this lists is relied upon by the other petitioners also.
5. The petitioners have further averred that on their being allocated to the Gujarat Housing Board, they were posted to hold the same posts in the same scale of pay as before. On 11 November, 1960, by a circular, the Gujarat Housing Board directed that the operation of all resolutions, procedures, circulars and sanctions prevailing in the Bombay Housing Board shall continue until changed or modified by the Gujarat Housing Board. According to the petitioners, not only the pay-scales but their other conditions of service had also continued. On 22 June, 1961, the Gujarat Housing Board Act (28 of 1961) came into operation. The old Gujarat Housing Board that had come into existence on the bifurcation of the State was dissolved and opponent 1 as a corporation was constituted. Under S. 86 of the said Act, all the servants of the old Gujarat Housing Board stood allotted to the service of opponent-Board; Clause (ix) of Sub-section (2) of S. 86 of the said Act provides as follows :
'(ix) all officers and servants in the employ of the dissolved Boards shall stand allotted for service to the new Board and shall, until provision is otherwise made under the provisions of this Act, be subject to the conditions of service to which they were subject before the appointed day : Provided that the conditions of services of any such officer or servant as applicable immediately before the appointed day shall not be varied to his disadvantage by the new Board except with the previous approval of the State Government.'
6. The Housing Commissioner of the opponent-Board circulated to all the members of the staff on 7 October, 1961 the letter by which grouping of various posts was made. It also dealt with principles for fixing seniority in various groups, principles relating to eligibility for transfers and promotions from one group to another. It also contained a seniority list. The said circular letter with relevant principles of seniority, transfer, etc., is annexure C. Representations were invited from the members of the staff. The petitioners and other members of the staff sent in their representations to those proposals and contended that they amounted to a variation in their conditions of services Despite the objections, the grouping of the posts and the other principles of seniority etc., were finalized by the respondent-Board. This was done by the circular letter dated 7 February, 1962 which is annexure D. The seniority so finalized is opposed on the principle earlier laid down and objected to by the petitioners and others. The said principles and rules have been put into operation by the Board. No previous approval of the State Government had been sought or obtained as required by S. 86(2)(ix) of the Act.
7. So the allegation in the petition is that by the impugned circulars, annexures C and D, the Board had varied the terms and conditions of service of the petitioners to their disadvantage inasmuch as while under the terms and conditions of service applicable to them before the coming into force of the Gujarat Housing Board Act, 1961, they were eligible to be promoted to any post in the clerical group also, from their respective posts in the non-clerical-cum-technical group the impugned rules have created groups of clerical posts and the non-clerical-cum-non-technical posts (in which group fall the rent collectors' posts) which are mutually exclusive, with the result that they are not now eligible to be considered for promotion to any other higher posts in the clerical group. Thus, not only their chances of promotion have been gravely prejudiced but also their prospects of promotion to the posts in the clerical group are permanently marred. The respondents have by the impugned resolution and circulars clearly altered the condition of service to their disadvantage without the sanction of the State Government. Therefore they are clearly violative of S. 86(2)(ix) and are invalid and unenforceable. The petitioners, apart from this challenge, have also seriously challenged circulars, annexures C and D, on the ground that they were made in contravention of S. 74(c) of the Gujarat Housing Board Act as no sanction of the State Government was obtained before making them.
8. The case of the opponents as disclosed in the affidavit filed in reply to the petition before amendments and affidavit-in-reply to the amendments is that it is incorrect to say that the employees of the Bombay Housing Board in the clerical group were eligible to the promotion to posts in the rent collection group and vice versa. They aver that the junior clerks used to choose to become rent collector for some immediate monetary gain as the scale for the post was higher and for such prospects as may be there in that group. But on making this choice they were permanently debarred from coming back to the clerical group and only in exceptional cases they were allowed to do so and this could be done only before 1 April, 1954 and not thereafter. They have at length in their affidavits explained the reasons for this but we need not enter into the details thereof. It is denied by the opponents that when the petitioners joined service, the conditions of their service included amongst other thinks the right of being considered for promotion to higher clerical posts such as senior clerk, junior assistant, senior assistant. Superintendent, etc. The petitioner of the first petition has only a chance of being considered for promotion so long as he remained in the clerical cadre. But the chance of promotion cannot be considered as conditions of service. They also denied the alleged practice of giving promotions to the higher clerical cadres on the basis of seniority. As regards the regulations their case is that regulations were framed by the Bombay Housing Board relating to the remuneration and conditions of service of the employees in exercise of the powers conferred under S. 67(c). Just before the bifurcation of the Bombay State, the said regulations were as per Ex. 1 attached to the affidavit. The said regulations had received the approval of the Government of Bombay. The said regulations by operation of S. 86(4) of the Gujarat Housing Board Act, 1961, continued in force after bifurcation. One of the regulations framed, viz., Regn. 3 empowered the Board to frame suitable rules for classification of and recruitment to the various posts under it. According to the opponents, the cadres belonging to the rent collectors under the unit of the estate management were separate and distinct from the clerical cadres and the employees in the cadre of rent collectors were never eligible as such for promotion to the higher clerical cadres such as assistant or superintendent. Then they refer to the resolution dated 13 February, 1953 and they explained the circumstances and facts under which that resolution came to be passed. But we do not find it necessary to enter into the details thereof. They have specifically denied the claim of the petitioner in the first petition that he was entitled to be promoted to the higher clerical post as alleged relying upon the conditions. The have also explained as to how the petitioner happened to be promoted to the post of the senior rent collector. They have also pointed out that in fact the petitioner had never claimed any promotion in the clerical cadre but actually subsequent to his appointment as rent collector, several posts of head clerks, senior accounts clerks, junior and senior assistants had fallen vacant and such posts were filled in by promotions from the lower clerical cadres only and the petitioner had never protested against such appointments and was also never considered for such appointments. Then they have also pointed out as to how the cases referred to by the petitioner in the list produced by them of transfers and promotions were made. As regards annexures C and D the case of the opponents as stated in the affidavits is that these two circulars, annexures C and D, merely classify the various posts available in the Housing Board and prescribe the procedure for recruitment thereto. It is further averred in the affidavit that the circulars do not lay down any conditions of service as alleged. But even if that were so, the Board was empowered under the earlier regulations referred to above, to frame suitable rules for classification and recruitment to the various posts under the Board. In exercise of those powers given to the Board by the said regulations which were approved by the Bombay Government, the Board was entitled to prescribe the classification and recruitment procedure for the various posts under it. They have contended that therefore there is no question of obtaining previous or subsequent approval of the State Government for prescribing such classification and recruitment rules. Annexures C and D were merely tentative seniority rules circulated by the Board and after considering various representations, the Board adopted such rules as modified by their resolution date 15 January, 1962 which they have produced at Ex. 5 to the affidavit filed in reply to the amended petition. The have further stated that Regn. 3 of the regulations framed by the Bombay Housing Board and approved by the State Government empowers the Board to make rules of classification and recruitment to various posts under the Board without the approval of the State Government. Under the circumstance, the said rules are valid and effective.
9. Sri Daru, the learned advocate for the petitioners, first attempted to urge that the impugned circulars alter the conditions of service, as applicable to the petitioners without the previous sanction of the State Government and violate the proviso to Sub-section (2)(ix) of S. 86 of the Gujarat Act which we have already reproduced hereabove. In order to substantiate this submission, it was argued by Sri Daru that it was a condition of service that though the petitioners held the respective posts in the rent collector's group, not only they were eligible to be considered for a higher post in that group but were also eligible to be considered for promotion if found fit to any of the higher posts in the other group, viz., the clerical group. It is the complaint of the petitioners that the impugned circulars and the resolution of the opponents alter this condition of service inasmuch as they clearly provide that the said two groups are mutually exclusive and that an employee holding a post in one group will be eligible for being considered for promotion only in the same group and will not be entitled to be considered even if found fit for any of the higher posts in the other group. Sri Daru further argued that a term that a servant will be eligible to the next higher post if found fit cannot be considered to be foreign to the concept of conditions of service. The rules of employment or a contract can legitimately contain the condition that as and when higher post was vacant, the employee will be entitled to be considered for such higher posts if found fit. Such a condition would be very important condition of service as it would mar or make his future in that employment and Art. 16 of the Constitution recognizes such right. He also relied upon the decision of C. K. Appanna v. State of Mysore [A.I.R. 1965 Mys. 19]. It was decided in that case :
'The words 'matters relating to employment' in Art. 16(1) of the Constitution include all matters in relation to the employment, both prior and subsequent to the employment and form part of the terms and conditions of such employment Promotion to a higher cadre is a condition of service and the rules defining the qualifications and suitability for promotion form the terms and conditions of service.'
10. Now it is true that the impugned circulars and resolution do provide that the two groups shall be mutually exclusive and the employees holding posts in one group will have no right to be even considered for promotion to a higher post in the other group. There is also no doubt that S. 86(2)(ix) proviso of the Gujarat Housing Board Act, 1962, does prohibit any alteration of a condition of service to the disadvantage of an employee of the former Housing Board by the Gujarat Housing Board and without the sanction of the State Government. But the important thing to be noted is that the whole fabric of the argument of Sri Daru is built upon the basis that one of the conditions of the service was the condition as claimed by the petitioners and referred to hereabove. As we have seen, it is the case of the opponents that this claim of the petitioners that it was a condition of service that they were entitled to be considered for promotion to higher posts in the clerical group on the basis that under the Bombay Housing Board, the employee, holding a post in one group was entitled for being considered for promotion if found fit in the higher posts of the other group was baseless. According to them, there was no such condition of employment and, therefore, no question arises as regards any change in any condition of service to the disadvantage of the petitioners by the impugned circulars. So the most important question the arises for our consideration is whether the petitioners establish this basic claim of theirs, for if they do not, then the whole fabric of the argument must crumble and nothing further remains to be considered on this submission.
11. Sri Daru made some attempt to support the petitioners' stand in respect of this condition by trying to rely upon the order dated 13 February, 1953 made by the Bombay Housing Board in the case of the petitioner of the first petition and the alleged practice followed and some instance which seemed to support the contention of all the petitioners. But when it was pointed out that these grounds were well met by the opponents in their affidavits, he frankly conceded that it was not possible for him to support the contention of the petitioners that as a matter of fact there was such condition of service or even by necessary implication such a condition could be spelt out and, therefore, he did not press this submission any further and the submission therefore stands rejected.
12. The next submission of Sri Daru is that the circular annexure D dated 7 February, 1962 read with annexure C lays down conditions of service of the employees of the Gujarat Housing Board; that however could be done only by making regulations as required by S. 14 of the Gujarat Housing Board Act, with the previous sanction of the State Government under S. 74. No such sanction had been obtained. Therefore, the impugned circulars are illegal and ineffective. The opponents' stand in the affidavits filed, as we have pointed out, is that the classification and recruitment rules do not form part of the conditions of service and, therefore, the Board is competent to frame the said rules and they are not inconsistent with S. 74. However, Sri Daru, while making this sub-mission, conceded that the rules contained in the impugned annexures through not called regulations, they be taken to be regulations under S. 14. On the other hand, Sri Kaji, the learned advocate for the opponents, conceded for the purposes of this petition that it may be assumed that these rules relate to conditions of service of the employees and that they require sanction of the State Government. But Sri Kaji urged that Regn. 3 of the regulations made by the Bombay Housing Board before the bifurcation of the State of Bombay, was made with the sanction of the State of Bombay under S. 67(c) of the Bombay Housing Board Act which was exactly the same as S. 74(c) of the Gujarat Act. The said Regn. 3 empowers the Board to make the impugned rules and therefore they should be held to have been made with the sanction of the State Government. But Sri Daru countered this contention by submitting that the opponents are not entitled to rely upon Regn. 3. The Bombay Housing Board, no doubt, had the power under S. 67(c) of the Bombay Housing Board Act to make regulations relating to conditions of service, with the pervious sanction of the State Government but Regn. 3 does not prescribe the conditions of service. It merely authorizes the Board to prescribe suitable rules. This is not permissible because the sanction give was in the nature of an advance sanction by the State Government for framing regulations in future. Argued Sri Daru that S. 74 contemplates the giving of the sanction by the State Government to the contents of the regulation which the Board desires to frame under S. 14 and not to the making of such regulation at any time the Board may like without the contents of the regulation being brought before the Government for sanction. It was further submitted that if the sanction is not so construed the very object of this statutory provision would be frustrated because the object is that the very contents of the regulation are scrutinized by the State Government before the statutory sanction is accorded. The safeguard or fetter intended by the legislature has been avoided in this case as the Board acquired the power to prescribe conditions of service without having the sanction is respect of the actual terms intended to be prescribed. The power is vested in the Board to prescribe the conditions of service but it is with a fetter and the fetter is that they shall have to obtain the sanction of the State Government to the prescribing of the actual conditions of service. So the sub-mission of Sri Daru was that if the rules are assumed to be regulations, they have not received the prior sanction and, therefore, they are illegal. If it is claimed that the rules are made in pursuance of the authority conferred under Regn. 3, even then the rules are illegal and invalid as Regn. 3 is itself not such a regulation to which sanction could have been given inasmuch as it does not itself prescribe the conditions of service.
13. As against that Sri Kaji had an argument to advance. He contended that the impugned rules made pursuant to the power given in Regn. 3 are valid and enforceable as sanction was given by the State Government to this Regn. 3 which empowered the Bombay Housing Board to make regulations in respect of these specific matters mentioned therein, and therefore when the regulations or rules are actually made by the Board, under Regn. 3, they carry the sanction of the State Government with them. So the only question is whether such sanction in advance could be given by the State or not. Sri Kaji submitted that this was not a case of delegated legislation, where the power is vested by the legislature in one authority and that authority then tries to again vest that power in a sub-ordinate authority, where question would arise for laying down principles for guidance, failing which the delegation would be invalid. Here, the power to make the regulation is directly vested in the Housing Board but that power is vested with a fetter or curb thereon. The fetter is that it shall exercise that power subject to the previous sanction of the State Government. Unless therefore there is any prohibition under any principle of general law or in the State itself, that sanction cannot be given in advance or an omnibus sanction as given cannot be accorded, it is open to the State Government to remove that fetter by giving the sanction in advance. It is for the State Government to determine how it would exercise the control vested in it for the main object of putting this fetter is to vest control in the State Government to see that the powers vested in the Board are not misused. The sanction contemplated therefore is not necessarily to the actual content of the rules or regulations but it is to the making of the regulations. The sanction is indeed a fetter on the exercise of the powers of the Board but it is not intended to be on each specific regulation that may be made by the Board. Reading S. 74, according to Sri Kaji, no wards of limitation are to be found as to how and when the State Government shall exercise this power. So when the State Government of Bombay accorded sanction to Regn. 3, it exercised the discretion to give an advance sanction to the rules the Board may make in respect of the matters contained in Regn. 3. Because of these reasons, submitted by Sri Kaji, it cannot be said that the sanction given in respect of Regn. 3 was improper. Consequently the rules made pursuant thereto cannot be challenged on the ground that they have been without obtaining sanction of the State Government.
14. But as regards this submission of Sri Kaji also, Sri Daru raised various contentions. He submitted that it was a duty cast on the State Government to exercise control by looking into specific conditions. The Board is authorized to exercise the power of sub-ordinate legislation when it is given the authority to make regulations and the State Government is given the duty to exercise control over such subordinate legislation. The State, therefore, as the controlling authority, cannot abdicate that duty cast on it by permitting the Board to make any kind of regulations it chooses even on a given subject. It was further urged that if the interpretation made by Sri Kaji that the sanction is to be given not to the contents of the regulation but only to the making thereof were to be accepted, then it would be open to the Government to tell the Board not to make such regulations. Section 14, however, requires the Board to prescribe conditions of service only by making regulation. Therefore, it this interpretation were to be accepted, Ss. 14 and 74 would seem to come into conflict with each other. But the construction put by him would permit the Court to read the two sections harmoniously.
15. The controversy therefore centres round the correct construction of S. 74. Sri Daru has pressed upon us to accept the narrower construction and Sri Kaji has canvassed for a wider construction. They reasoning behind the respective submissions of the parties is by and large weighty and cogent and neither can be rejected as being without substance. But giving our full consideration to both, we have come to the conclusion that the construction canvassed for on behalf of the opponent, for reasons we shall presently give, deserves acceptance. The submissions made before us do establish that S. 74 and its relevant provisions are not capable of only one reasonable construction and neither of the constructions can be brushed aside as impossible or flimsy. The problem thus presented to us requires us to seek the intent of the legislature and also the purpose and object of the statute as the legislative intent is, more often than not, found reflected in the object and purpose for which it legislated. It would be expedient to reproduce S. 74 here :
'74. The Board may, from time to time, with the previous sanction of the State Government, make regulations consistent with this Act and with any rules made under this Act -
(a) for the management and use of buildings constructed under any housing scheme;
(b) the principles to be followed in allotment of tenements and premises;
(c) the remuneration and conditions of service of the Secretary, Housing Commissioner and other officers and servants of the Board under S. 14;
(d) for regulating its procedure and the disposal of its business.'
16. There can be no doubt that this section empowers the Board to make from time to time as the exigency may demand, regulation in respect of the four categories of matters mentioned in Cls. (a), (b), (c) and (d).
17. At the same time restrictions or fetters are intended to be imposed on the exercise of this power of the Board and they are two in number. One is that the regulation proposed to be made must not be inconsistent with this Act or with any rules made thereunder and the second is that the regulations must be made with the previous sanction of the State Government. We are concerned with the second curb only. The nature of the contents of the four clauses also require to be noticed for our purpose. Clause (a) is concerned with the management and use of buildings and Clause (b) refers to the laying down of principles that the Board may follow in allotment of tenements and premises. Clause (c) with which we are directly concerned in this matter touches the subject of remuneration and conditions of service of the officers and servants of the Board. This clause refers to S. 14 and it would be convenient to have a look as S. 14 at this stage. It lays down that the Board shall have to determine remuneration and conditions of service of all its employees, officers and other servants by making regulations. The last Clause (d) provides for regulating the procedure and the disposal of its business. We have detained ourselves on these clauses with a view to point out that except perhaps Clause (b) all the rest of the clauses pertain to matters which are entirely matters of internal affairs of the Board. Even Clause (b) does not directly affect any right or interest of individuals or the subject as such or create any burden or responsibility on the subject. The idea behind this clause is also to provide for laying down of some principles which the Board should follow even for allotting premises and tenements belonging to the Board. The emphasis even there appears to provide a guidance for internal management of its affairs. So, to us it appears fairly clear that S. 74 is intended to provide for making of regulations by the Board from time to time for the management and control of its internal affairs and do not as such affect any rights of the public or impose any responsibility. No doubt as pointed out, Clause (b) may with some stretch of argument be said to touch the fringe of rights of those who may claim to be entitled to the benefit of the tenements or the premises but in our view by and large the provision is only meant to directly touch a matter of internal management of the Board. As can be seem so far as the subject-matter of Cls. (a), (b) and (b) are concerned, the statute does not require that they shall necessarily be determined only by making regulations. It is only in respect of Clause (c) where it concerns the fixing of remuneration and conditions of service of the employees that it requires that they shall always be determined by making regulations as required by S. 14. It is therefore clear to us that the object of S. 74 including Clause (c) is not to create or protect as such any rights of the subject or the employees but the object is to provide for rules and regulations for the efficient and appropriate management of the internal affairs of the Board and the sanction is intended to be a fetter on the making of those regulations by way of an overall control reserved to the State Government.
18. We may then turn to the larger aspect of the object and purpose of the Act itself. In a social welfare State like ours, it is but natural that the State would be keen on dealing with and satisfying the great need of the public, the housing accommodation. A perusal of the provisions of this Act and the sister Act, the Bombay Housing Board Act, clearly indicates that the object and purpose of the legislature is to carry out the social purpose of providing housing accommodation. The State having myriads of problems and matters on hand that demand direct and prompt handling, has thought it expedient to carry out this much needed purpose of providing housing accommodation by setting up a statutory corporation called the 'Housing Board' and vesting in it the powers to carry out the said purpose. This corporation is actually raised to the status of a local authority for the purposes of the Act and the relevant land acquisition law. But the legislature, at the same time, has thought sit expedient to provide some control over the exercise of these powers and intends to create fetters and controls of varying nature depending upon the nature of the power to be exercised under the various provisions of the Act. With a view to emphasize this aspect, we deem a proper to refer to the scheme of the Act and some of the specific provisions thereof.
19. Chapter I deals with the title, extent and commencement of the Act and provides the necessary definitions. Chapter II deals with the establishment of the Board under S. 3 by the name 'the Gujarat Housing Board' and provides that it shall be a body corporate and for the purposes of the Act and the relevant provisions of the land acquisition law, shall be a local authority. Section 5 provides the constitution of the Board. The only other sections in this chapter that need be noted are Ss. 13 and 14. Section 13 provides for the appointment of officers and servants and the proviso lays down that the appointment of any of the officers whose salary exceeds Rs. 1,000 per month shall be subject to the previous approval of the State Government. This is one of the fetters created on the powers of the Board as it is a question which affects the finances. Section 14, as we have already seen, provides that conditions of service of all employees shall be determined by regulations to be made by the Board.
20. Then Chap. III deals with the housing schemes. Section 24 casts a duty on the Board to undertake housing schemes and incur expenditure, subject to the control of the State Government. So this section provides for the general control over the working of the housing schemes by the Board. Section 25 lays down the matters to be provided by the housing schemes. We need not enter into the details thereof but the general idea is to make provision with the view to provide housing accommodation and to the improvement or development of any area comprised in the scheme or any adjoining area or the general efficiency of the scheme. Section 27 then supplies another example of the control vested in the State Government. It provides that every year, before the year ends, on the prescribed date, the Board shall prepare and submit to the Government on forms prescribed the details of the annual housing programme, budget and establishment schedule. These are indeed important matters that not only affect the finances of the corporation but affect public interest in a larger sense. This is further emphasized by the next S. 28 which requires the draft of the programme to be published in the official gazette and in such other manner as may be prescribed for inviting suggestions and objections. A duty is also cast on the Board to consider them when received and if thought proper to modify the programme. The legislature's intention to provide control over specific matters and details is further exhibited by Ss. 29 and 30. Section 29 lays down that the State Government may sanction the programme, the budget and the schedule of the staff of officers and servants forwarded to it with such modifications as it deems fit. It also provides that such a programme, the budget and the schedule of the staff even after sanction shall be laid before the State Legislature as soon as may be after the programme is published. Then S. 30 lays down that the State Government shall publish the programme sanctioned by it under S. 29 in the official gazette. These provisions, to our mind, with reasonable certainty indicate that the legislature in this Act has expressly indicated its intention wherever it intended control either of the legislature itself or of the State Government to extend to specific matters also and as to how and when such consent or sanction will be obtained. Section 33 then provides that only after the programme has been sanctioned and published by the State Government under Ss. 29 and 30, the Board shall proceed to execute such housing schemes included in the programme. But that is not all. The language of the next S. 34 again clearly indicates the reflection of such legislative intent which casts a further duty on the Board to publish the housing scheme so sanctioned in the official gazette before executing the scheme. Not only that but it shall also notify that the plans showing the area proposed to be included and the surrounding lands shall be open to public inspection. Section 40 provides for the other duties of the Board with a view to expedite the cheaper construction of buildings. We refer to this only to show that it emphasizes one of the purposes for which the Act is enacted. The other sections in the chapter need not be examined.
21. Chapter IV deals with the acquisition and disposal of lands by the Board for the purposes of the Act. Only Ss. 45 and 46 in this chapter may be referred to for our purpose. Section 45 entitles the Board to levy betterment charges from owners of persons interested in land, which land in the opinion of the Board has increased in value because of the enforcement of the housing scheme. But as it casts a responsibility on the members of the public, S. 46 has provided the detailed machinery in which this can be done and in case of dispute, the matter has to go before the tribunal. The next Chap. V provides for the constitution of the tribunal and matters relating to the tribunal. Chapter VI deals with the powers of the Board to evict persons from the premises of the Board.
22. Chapter VII refers to finance, accounts and audit. As the provisions in the chapter refer to finance, accounts, etc., in various sections controls and adequate fetters have been provided for. Sri Kaji particularly referred to S. 65 in order to seek support for his construction as the language used is similar. It lays down that the Board may from time to time, with the previous sanction of the State Government and subject to the provisions of the Act and to such conditions as may be prescribed in that behalf, borrow any sum required for the purposes of the Act. Sri Kaji urged that what is intended is that the Board shall seek sanction of the Government to borrow a particular amount and then proceed to borrow the money in various ways. It is improbable that for every borrowing within that limit it is intended that the previous sanction should be obtained. The State Government's sanction given to the overall amount of borrowing, would attach itself to the detailed borrowings from time to time which the Board may make within the scope of that advance sanction. The submission is weighty but we do not propose to decide whether it is so or not as the question may have to be examined from angles specially affecting that matter. We rest content by only observing that this is more or less the same type of control which is intended to be exercised by the State Government as that under S. 74.
23. Then comes Chap. VIII containing Ss. 68 to 86. Section 68 indicates an extreme type of control in respect of certain matters that may be prescribed by rules by providing that in such matters, not only the Board will have to submit reports to the State Government in such form and on such dates as may be prescribed but that the State Government will be bound to publish it in the gazette and also that it shall be laid before the State Legislature as soon as may be after it is published. Section 69 also indicates the intended control of the State Government in respect of proposed or existing housing scheme. By S. 73, the legislature left the responsibility and the important right of making the rules to the State Government itself. The rules to be made affect by and large, matter in which public interest or the rights and liabilities of the subject are directly concerned. These rules are authorized to be made subject to the condition of previous publication and also subject to the right of the legislature to modify them before which they are to be laid as soon as may be, after they are made. The next section that requires consideration is S. 75 and, to our mind, as it has an important bearing on the subject in controversy, it would be proper for us to reproduce it here :
'45. (1) The Board may make bylaws, not inconsistent with this Act, which may be necessary or expedient for the purpose of carrying out its duties and functions under this Act.
(2) A bylaw made under this section may provide that a contravention thereof shall be an offence.
(3) No bylaw made by the Board shall come into force until it has been confirmed by the State Government with or without modification.
(4) All bylaws made under this section shall be published in the official gazette.'
24. Unlike S. 73, this section empowers the Board to make bylaws just as S. 74 empowers the Board to make regulations. The most important thing to note about S. 75 is the nature of the control intended by the legislature. It provides by Sub-section (3) that no bylaw made by the Board shall come into force until it has been confirmed by the State Government with or without modification and further that all the bylaws made under this section shall be published in the official gazette. This clearly shows the legislative intent that the consent of the State Government has to be obtained by the Board and the State has to give its consent or sanction is respect of each individual bylaw. The legislature in this provision has clearly indicated by use of appropriate language and which is very different from the one used in S. 74, that the sanction cannot be given either in advance or in a general way to the making of bylaws by the Board. The legislative intent in no uncertain terms has therefore been expressed that each bylaw will have to receive the sanction of the State Government. It stands to reason that the legislatures was anxious to provide a control not only in the nature of a mere fetter removable in any manner the State Government may like but in the nature of a condition precedent to the coming into force of the bylaws, when it gave the power to make the bylaws to the Board which would affect not only the internal management or affairs of the Board as is the case in regard to regulations to be made under S. 74 but would affect important rights and liabilities of the subject, though possibly lesser in degree of importance than those which may be affected by the rules to be made by the State Government itself. The legislature, in view of the nature of the wide powers vested in the Board under S. 75, created an absolute obligation on the Housing Board to seek and the State Government to give sanction to each bylaw before it could have the force of law. Not only that but it has also provided that they shall be published in the official gazette. This use by the legislature of different language to indicate the difference in the nature of the control prescribed by it to be exercised by the State Government, in these two sections in juxtaposition, in our view cannot be taken to be merely accidental or attributed to negligent drafting. It should be taken to be deliberate. It is true that sometimes even different phraseology is found to be used to express the same thing but ordinarily the presumption is that the same expression would be used to convey the same intention. Here the legislature has used not only different but appropriate language in the same enactment in respect of these two powers vested in the Board of making regulations and making bylaws, by Ss. 74 and 75, respectively, and it has to be given all the weight that it deserves. If the legislature intended to provide, also as regards making of the regulations under S. 74, that sanction should be obtained by the Board and be given by the State Government to each actual regulation made, or to the contents of each regulation proposed to be made, then it is reasonable to expect that legislature would have used the same or at least similar language in respect of the making of the regulations also. Then again as regards the nature of control, it is also pertinent to notice that no machinery is provided as in the other cases as to how and when the control will be exercised. No provision is made to invite objections or consider them or to publish these regulations before the are made.
25. Having examined the scheme of the Act, the object and purpose of the Act, the purpose of the provisions of S. 74 itself and the difference in the language used, particularly in the two sections in juxtaposition, viz., Ss. 74 and 75, we are satisfied that these are very important factors which go to support the conclusion that different kinds of control are intended to be placed on the powers of the Board in exercise of the provisions of Ss. 74 and 75 and that a general or an advance sanction can be accorded by the State Government in the making of the regulations by the Housing Board. The provision of previous sanction, to our mind, is a limited fetter put on the power of making regulations. It is left to the discretion of the State Government as to how, when and to what extent that fetter is to be enforced. The State Government may remove the fetter by giving either a general or an advance sanction or may demand from the Board the contents of the individual regulations proposed to be sanctioned before removing that fetter. But in either case the regulations that may be made by the Board will be with the previous sanction of the State Government. There are no words, in our view, in S. 74 which would necessitate the narrow construction urged upon us to be accepted by Sri Daru.
26. Sri Daru relied upon a decision in Ganpat Singhji v. State of Ajmer [A.I.R. 1955 S.C. 188] in support of his contention at one stage. It was held in that decision that the regulation empowered the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation at fairs and large public assemblies. He could only do this by bringing a system into existence and incorporating it in his rules so that all concerned would know what the system was and make arrangements to comply with it. The rules in question, however, in effect, empowered the District Magistrate to make his own system and see that it was observed. As the regulation conferred this power on the Chief Commissioner and not on the District Magistrate, the action of the Chief Commissioner in delegating this authority to the District Magistrate was ultra vires. But in our view this decision can have no application to the present case. As the facts of that decision show obviously the Commissioner was vested with the power of framing the regulations mentioned therein and he instead of exercising that power himself went beyond the authority and delegated that power to the Collector. Therefore, that action of the Commissioner was held to be ultra vires. In the present case, as observed by us hereabove, the power to make regulations is directly vested in the Board under S. 74 only with a fetter of obtaining previous sanction of the State Government and when the State Government gave in advance or general sanction, it cannot be said that it delegated its authority or power of making regulations to the Board.
27. We are also not able to agree with Sri Daru that if the construction suggested by Sri Kaji is accepted, Ss. 14 and 74 would come into conflict. He argued that if the State Government is to give sanction not to the contents of each regulation but only to make or not to make them, the State Government would be entitled to say that no regulation may be made at all even for the purpose of determining the remuneration or conditions of service though S. 14 lays down that the remuneration and conditions of service are to be determined only by making regulations. Again, according to Sri Daru, this will enable the Government to completely annihilate the very object of safety of the interest of the employees for which the fetter or control is intended to be imposed by abdicating that right of control. In the first place as discussed above, the purpose and object of the control or fetter prescribed in S. 74 does not appear to be imposed with the idea of safeguarding the interest of the employees or the public at large. But it is imposed as a limited fetter in order to see that the State may watch that the power vested in the Board for carrying out the social purpose is properly exercised and is not misused. We also cannot see how a conflict between Ss. 14 and 74 would arise on the construction put by Sri Kaji. There is no doubt that S. 14 requires that the remuneration and conditions of service of the employees shall be determined by making regulations. But we do not read in the construction placed by Sri Kaji any authority vested in the State Government to order the Board to determine the remuneration and conditions of service without any regulations. The authority vested in the State Government does not go to that extent on the construction urged by Sri Kaji. What he has urged is that the sanction required to be given is to the making of the regulation and not to each regulation or contents of each regulation. This of course would include the discretion in the State Government in fit cases to refuse to give the sanction unless the contents of the regulations are also placed before the State Government. In giving cases, however, on the otherhand, the State Government may not insist upon placing each of the regulations or the contents thereof before giving its sanction. The object of the power of control vested in the State Government being to see that the Board does not misuse the power vested in it of making regulations, in our view, there is no question of the State Government having a right to order or permit the Board to determine remuneration or conditions of service of the employees otherwise than by making regulations. The power of control vested in the State Government empowers the Government only to use its discretion as to how it will sanction the making of the regulations. It may do so by a general or advance sanction to the making of the regulation or may sanction only the particular regulation after knowing its contents. Besides, there is no reason for us to base any conclusion on the assumption that the higher executive authority in which confidence is reposed by the legislature will act in a manner contrary to the intent and purpose of the statutory provision. The control is vested in the State Government to ensure only a check that the corporation will carry out the object of the welfare legislation.
28. The other apprehension of Sri Daru is that if the construction of Sri Kaji is accepted, the State Government of a particular political party and antagonistic to the Board, may refuse to sanction the making of any regulation in respect of the remuneration and conditions of service of the employees and frustrate the object of S. 14 of the Act. But then even on the construction he is canvassing for, the same result may follow if the State Government were to adopt such an unreasonable attitude, because even if the contents are placed before the State Government for sanction, it may refuse to sanction every time they are placed before it. Similarly the State Government favouring a particular party may abdicate the authority vested in it of control to the Board and allow it to exercise its power without any fetter whatsoever and thus frustrate the object of the provisions of S. 74 by giving a carte blanche to the Board. But there again on his own interpretation even the same thing can be done by the State Government if so inclined. But as observed hereabove, we cannot base any conclusion regarding the construction of S. 74 on any such assumed or possible mala fide action on the part of the State Government. It our view, acceptance of Sri Daru's construction on the other hand would amount to putting a fetter on the State Government as to how and when it shall exercise the control vested in it for there is no reason for us to reach such a limitation on the authority of the State Government. The language used in S. 74 in contradistinction to the language used in the other provisions of the Act and particularly S. 75 forcefully indicates the different intention of the legislature in dealing with the subject-matter of the provisions of S. 74 and of other provisions. It is obvious that the legislature had not considered the subject-matter of S. 74 to be as important as the one even under S. 75. There is nothing in the language of S. 74 to hold that the legislative intent is to cast a duty on the State Government to give its sanction only if the individual regulation or the contents thereof are presented to it by the Board and not otherwise.
29. Sri Daru at one state also tried to support the submission by drawing our attention to provisions in the various Municipal Acts and particularly to S. 48 of the Bombay District Municipal Act, 1901, where language similar to S. 74 has been used. But it would not be proper in our view to rest our judgment on similarity of language. Construction of a given provision of law would depend on various factors like context in which the statutory provision stands with other provisions and the object and purpose of the particular provision and that of the Act itself, etc. Even if we look at S. 48 of the District Municipal Act, there are other provisions in the same section which prima facie show that there the intention of the legislature indicates that a narrower construction in intended. But we may not be taken to have decided one way or the other in respect of S. 48 of the said Act. Construction of S. 48 has not been made by any competent Court, so that the decision may be looked at for the construction of the said section, on the basis of the said provision being pari materia with S. 74 of the Gujarat Housing Board Act. We are not inclined to accept Sri Daru's contention that in S. 74 confidence is reposed in the State Government to give sanction only if duly satisfied about the particulars contained in the regulation to be made. Here it is not a case of the legislature having left to the higher judgment of the State Government the making of the regulations. It has left it to the Board with the restriction that it will be subject to the sanction of the State Government. In respect of the giving of the sanction, the language of the section, the purpose of the Act and the provision itself and other relevant factors show that a lot of leeway is intended to be left in the State Government as to how, and when it shall give that sanction to the making of the regulation. In our judgment, the impugned circulars, annexure D, read with annexure C and the action of the Board can fall within the language, as it stands, of S. 74 without doing any violence to it. The requirement of S. 74 is that the Board has to get the sanction of the State Government for circular, annexure D, read with annexure C and the question is can it be said that such a sanction has been obtained. The answer in our view has to be in the affirmative because sanction for making Regn. 3 was obtained to make the rules for classification of and recruitment to the various posts and this annexure D read with annexure C is made in pursuance of Regn. 3. Therefore, sanction generally granted to Regn. 3 would apply to the rules made in pursuance of Regn. 3. It is not contended before us that the said rule do not fall within the ambit of Regn. 3.
30. We may usefully refer to the decision of Raghavendra Rao v. Deputy Commissioner [A.I.R. 1965 S.C. 136] cited by Sri Kaji in support of his contention. In the said case, it is observed that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115(7) of the States Reorganization Act limits that power but that limitation is removable by the Central Government by giving its previous approval to the making of rules by a State Government. The expression 'previous approval' in the proviso to S. 115(7), is the setting in which it is placed includes a general approval to the variation in the conditions of service within certain limits indicated by the Union Government. When therefore, the Central Government had expressed in a memorandum addressed to all the State Governments including the Mysore State Government in 1957, that, after examining various aspects of the question they agreed with the State Government that it would not be appropriate to provide any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion, meaning that he State Government, might if they so desire, change service rules as indicated in the memorandum, it amounts to 'previous approval' within the meaning of the proviso to S. 115(7) to the making of the Mysore General Service (Revenue Subordinate Branch) Recruitment Rules, 1959, so as to make them valid, Sri Daru rightly pointed out to us that this case cannot be relied upon as a binding decision for the purpose of deciding the question before us. But we are referring to this decision as it seems to us that there is considerable analogy between the facts and the controversy in that case and those we have got now to deal with. In our view, the reasoning and the rule of construction adopted by the learned Judges of the Supreme Court in the said cases do lend support to those we have adopted in dealing with the controversy in the present case. It is true that in the said case, as pointed out by Sri Daru, the right of making the rules themselves was not subject to any restriction and the only question was whether 'previous approval' of the Central Government was obtained by State Government in making the conditions of service which were alleged to be to the disadvantage of the Government servants. But all the same it is a matter of some significance and importance for our purpose that in the said decision the analogous phrase 'with the previous approval' appearing in the proviso to the said S. 115(7) was construed on the reasoning that we have adopted, namely, that while considering a question of this nature inter alia the purpose underlying the provision which comes in for construction, the setting in which the provision appears in the statute with which one is concerned and the intention of the legislature have to be looked to. It is also worth noting that in the said case, contentions were raised on behalf of the petitioner before the Supreme Court which were similar to those raised before us by Sri Daru. It was submitted that the very fact that the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules were not sent to the Central Government for approval before being promulgated shows that the previous approval had not been obtained. The memorandum sent to the State Government who was not approved but an abdication of the powers vested in the Central Government. Sri Daru, in the present case, has adopted a similar line of argument and submitted that because no particular regulations were made by the Board and submitted to the State Government and as the State Government gave a general permission of the nature of Regn. 3 it amounted to abdication of power vested in the State Government. This reasoning made on behalf of the petitioner of that case was not accepted by the Supreme Court. Their lordships said that the broad purpose underlying the proviso to S. 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Government, should obtain the concurrence of the Central Government. In the memorandum mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the specific matters mentioned therein and in their opinion that amounted to previous approval within the proviso to S. 115(7). In the present cases we have come to the conclusion that the broad purpose underlying the restriction provided in S. 74 is to see that the board exercised the powers vested in it for the purpose of the Act and for carrying out the social purpose for which it was brought into existence and when the regulations were placed by the Bombay Housing Board before the State Government of Bombay, the State Government must have given thought to the various matters placed before it before it gave sanction to the regulation. Now it is true that even when such a general sanction is granted, it must not be a carte blanche grant but a limited general sanction as contemplated by the provisions of S. 74. If we have a look at the regulations, that were put before the State and which were sanctioned by the State Government of Bombay, they clearly indicate that in matters of importance and policy relating to the conditions of service detailed and specific facts were put before the State Government for consideration and sanction. Regulation 1 lays down that all the staff, the officers and other servants employed and to be employed in the housing organization including the estate manager and his staff but excluding Chief Accounts Officer and his staff shall be under the administrative control and orders of the Housing Commissioner. But it takes out the Chief Accounts Officer and his staff from surveillance of the Housing Commissioner. Then Regn. 2 deals particularly with the scales and other conditions of service of the Housing Commissioner and other officers and servants of Housing Board and lays down that they shall be as shown in appendix I. Leave and allowance (compensatory, house-rent, dearness, travelling, conveyance, mileage, daily, etc.) are laid down to be in accordance with the Bombay Civil Services Rules and such other rules as may be made by the State Government from time to time. Then it further requires that a revised schedule of staff shall be got sanctioned whenever necessary and the need to do so in not dispensed with. To this part of the regulation we are referring only with a view to point out that it cannot be said that when the sanction was accorded to the various regulations placed before the State Government by the Housing Board, an unlimited general sanction was intended to be given to the Board on these important matters but the sanction was specific and the sanction was given to the contents and actual details of the matters referred to in Regn. 2. Then, when we come to Regn. 3, we find that the first part of that regulation also is in specific terms and it says that as far as possible the Board shall follow the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. The latter part of Regn. 3 which is a matter of controversy between the parties before us, also to our mind refers to specific matters and they are that the sanction is given to the Board by the State Government to frame suitable rules for classification of and recruitment to the various posts under it. As has been rightly conceded on the part of the opponents, such rules may impinge upon certain conditions of service but that by itself cannot lead us to the conclusion that an unlimited general sanction has been granted by the State to the Board to frame rules as regards conditions of service at its sweet will. In our judgment, therefore, this sanction by the State Government to Regn. 3 was a limited general sanction pertaining to the subject-matter specifically mentioned in Regn. 3. We do not think it necessary to take up the other regulation, to support the conclusion that we have reached as regards the nature of the sanction granted by the State Government of Bombay. But by and large they do support the reasoning that we have adopted for coming to the conclusion that the State Government was conscious of the right that was exercising and that in the discretion though it fit only in respect of matters which it considered were not of such importance as was the subject-matter of the other regulations, gave a general limited sanction to the Board to frame rules with regard to that subject matter. To this extent only we are relying upon the decision of the Supreme Court referred to by Sri Kaji.
31. For all these reasons discussed above, we are prepared to accept the construction of S. 74 canvassed for by Sri Kaji. We hold that the sanction obtained by the Housing Board in respect of Regn. 3 valid and effective and that rules contained in annexure D read with annexure C being made in pursuance of the authority given by Regn. 3, they are legal and valid. The result is that both the petitions are dismissed. No order as to costs.