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M.N. Mani Vs. the State of Tamil Nadu, Represented by Secretary to Government, Health and Family Welfare Department and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1983)2MLJ277
AppellantM.N. Mani
RespondentThe State of Tamil Nadu, Represented by Secretary to Government, Health and Family Welfare Departmen
Excerpt:
- .....to the post of sanitary inspector within the said region, the government chose to pass the impugned government order--according to which a statewise seniority list has to be prepared for the purpose of promotion of the sanitary inspectors and that has affected his chances of promotion as his name has gone down considerably in the statewise seniority list.3. the learned counsel's attack on the government order is that having passed a statutory regulation in the year 1972 in exercise of their power under section 8(2) of the act, the government cannot modify the regulation in any manner by issuing administrative orders. thus, the main question to be considered in this case is, whether the government is entitled to alter the existing regional-wise seniority list to statewise.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner has approached this Court for the issue of a writ of certiorari to quash the G.O. Ms. No. 402, Health and Family Welfare Department, dated 9th March, 1979, on the ground that the Government had no jurisdiction to pass the said Government Order administratively so as to modify the regulations which it has framed under Section 8(2) of the Tamil Nadu Public Health Act, 1939.

2. The petitioner herein was working as a Health Assistant from 20th July, 1970, in Alandur Municipality. His services have been regularised after the satisfactory completion of probation and he was awaiting promotion as Sanitary Inspector. The State Government has framed certain regulations called Tamil Nadu Municipal Public Health Service Regulations, 1972 with effect from 14th January, 1970, in exercise of their power, under Section 8(2) of the Act. As per the said regulations, the services in the Public Health Department of the Municipalities had been divided into five clauses and Health! Assistant came under category 2 of Clause (5). Regulation for purposes of promation by Statewise seniority was to be adopted as far as other clauses are concerned. So far as the promotion to the post of Sanitary Inspector is concerned, there was regional seniority list and the petitioner's name found place in the seniority list of the region consisting of the districts, Chingleput, North Arcot and Dharmapuri. According to the petitioner, all his seniors had been appointed as Sanitary Inspectors on the basis of the said Seniority List and when he was awaiting promotion to the post of Sanitary Inspector within the said region, the Government chose to pass the impugned Government Order--according to which a Statewise seniority list has to be prepared for the purpose of promotion of the Sanitary Inspectors and that has affected his chances of promotion as his name has gone down considerably in the Statewise Seniority List.

3. The learned Counsel's attack on the Government Order is that having passed a statutory regulation in the year 1972 in exercise of their power under Section 8(2) of the Act, the Government cannot modify the regulation in any manner by issuing administrative orders. Thus, the main question to be considered in this case is, whether the Government is entitled to alter the existing regional-wise seniority list to Statewise seniority list by issuing the impugned notification. According to the learned Counsel for the petitioner the impugned notification is administrative in nature and it cannot be taken to be a regulation issued under Section 8(2) of the Act by way of amending the earlier regulation!. It is no doubt true that the impugned Government Order does not indicate that it has been passed in exercise of Government's power to make regulation under Section 8(2) of the Act. But the non-mention of the source of power cannot affect the Government Order. If in fact, the Government had the power at the time when they issued the notification to amend the regulation under Section 8(2) of the Act, that section of the Act empowers the State Government to pass service regulations dealing with Municipal Public Health staff and such regulation has been passed in the year 1972. The said regulation as already stated, provides for a regionwise seniority for purposes of promotion to the post of Sanitary Inspector. From the counter-affidavit filed toy the respondent in this case, it is seen that there was some repeated representations from the employees of the Municipal Health Service for Statewise seniority for purposes of promotion to the post of Sanitary Inspector instead of regionwise seniority. As a result of those representations, the Government decided to provide for a Statewise seniority instead of regionwise seniority, for the purposes of promotion to the post of Sanitary Inspector. Therefore, for giving effect to the said decision, the impugned Government Order was passed. That the Government have the power to modify or revise the regulations which they had framed earlier under Section 8(2) of the Act, cannot be disputed and it has not in fact, been disputed by the learned Counsel for the petitioner. But what the learned Counsel for the petitioner contends is: Firstly, that the impugned order does not refer to its source of power under Section 8(2) of the Act and, therefore, the Government Order cannot be taken to have been passed under the said provision; and secondly, it is contended that the impugned Government Order does not in terms modify the regulation. But it merely provides for the alteration of the regionwise seniority into a Statewise seniority. After a due consideration of the matter, I am of the view that the impugned Government Order is not vitiated for the reason that it does not contain the source of power and will not invalidate the order and in such a case the question to be considered is whether the authority had the requisite power or not and once it is found that the authority had the power, then the non-mention of the provision will not invalidate the exercise of that power. Though the impugned Government Order does not refer to the provision of Section 8(2) of the Act, since the Government had the requisite power under Section 8(2) of the Act to modify the existing regulation, the impugned Government Order should be taken to have been passed only under Section 8(2) of the Act, and it cannot be merely an administrative order without reference to the provisions of the Tamil Nadu Public Health Act.

4. Coming to the second contention that the impugned Government Order in terms does not amend the earlier regulations, I am of the view one cannot go by the wording of the order, but by the substance of the same. In this case, the Government has issued the impugned notification for the adoption of Statewise seniority for Health Assistants instead of Zonewise seniority which has been provided in the regulation. The object of the notification is to adopt Statewise seniority for, the Health Assistants which it has passed though it does not in terms amended the earlier! notifications. It is not in dispute that the Government has got the power to modify or alter the regulations already passed under Section 8(2) of the Tamil Nadu Public Health Act under the provisions of the General Clauses Act. When a power is given to an authority, to make a regulation under a statute, the authority has the power to add or modify or alter the regulations as and when the circumstance justify, the same. It cannot be said that once the regulation had been made by the Government in exercise of the power under Section 8(2) of the Act, the regulations are immutable anid the authority who made the regulations has no power to alter, add or amend, the same. Therefore, the State Government should be taken to have the power to amend the regulations. It is no doubt true as pointed out by the learned Counsel for the petitioner that the impugned Government Order does not refer to the provisions in Section 8(2) of the Act. But it is well-established that once the authority is found to have the statutory power to act under a particular provision of a statute, the non-mention! of the statutory provision by the authority while exercising that power instead of Zonewise seniority is immaterial. The purpose of the notification is to have the earlier regulation amended to the extent necessary. Having regard to the subject sought to be achieved by the impugned order, it has to be taken that it is pugsned order, it has to be taken that it is. to modify the existing provision of the regulations so as to bring in the amendment to the regulation providing for a Statewise seniority for the Health Assistant instead of Zonewise seniority.

5. In this view of the matter, I find no merits in the writ petition and it is accordingly dismissed. There will be no order as to costs.


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