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Saturday, March 1, 2014

Promotion to Deputy Municipal Commissioner - whether modified rules applies after publication or after sanction of Govt. - High court held that publication is only formal and as such the HDO who has less service than 10 years as per old rules can not be questioned - Apex court held that new rules applies only after publication in Gazette and set aside the order of High court saving the promotions made prior to Gazette publication =MUNICIPAL CORPORATION OF GREATER MUMBAI, THROUGH COMMISSIONER ..APPELLANT vs ANIL SHANTARAM KHOJE & ORS. ..RESPONDENTS =2014(Feb.Part) judis.nic.in/supremecourt/filename=41276

 Promotion to Deputy Municipal Commissioner - whether modified rules applies after publication or after sanction of Govt. - High court held that publication is only formal and as such the HDO who has less service than 10 years as per old rules can not be questioned - Apex court held that new rules applies only after publication in Gazette and set aside the order of High court saving the promotions made prior to Gazette publication =

The writ petitioners before the High Court of Bombay were  working  in
the Mumbai Municipal Corporation of Greater Mumbai  as  Assistant  Municipal
Commissioners and had prayed that their promotion to  the  vacant  posts  of
Deputy Municipal Commissioner may be effected in accordance with  the  Rules
framed  under  the  Mumbai  Municipal  Corporation  Act,  1888  (hereinafter
referred to as the “M.M.C. Act”). =
Prior  to  the
gazetting of the extant Rules  that  came  to  be  gazetted  on  28.04.2011,
Corporation had promoted three persons  to  the  post  of  Deputy  Municipal
Commissioner including Shri Anil Shantaram Khoje (Contesting Respondent  No.
1) and Shri Babusaheb Pandurang Kolekar (Contesting Respondent No. 5).
Shri Ram B. Dhus  was  promoted as Deputy Municipal Commissioner on 16/8/13. 
Under the old Rules,  10  years
experience in the post of Head of Department  was  required  as  eligibility
for promotion to the next  higher  post  of  Deputy  Municipal  Commissioner
whereas in the subsequent Rules, this eligibility had been lowered by  three
years, now requiring only 7 years experience. 
When the writ  petitions  came
to be filed before the High Court, Shri Ram B.  Dhus  did  not  possess  the
stipulated 10 years experience.
6.    Shri Ram B. Dhus and the Corporation submit in these appeals that  the
modified Rules would become operative not from the date on which  they  were
sanctioned by the State Government vide letter dated  04.10.2006,  but  from
the date of their publication in the Official Gazette  as  required  by  law
and as specifically stipulated in Section 80B(5) of the M.M.C. Act.
7.    The opinion of the High Court is that the publication in the  Official
Gazette was not mandatory, but only desirable or directory.=

Conclusion of Apex court

  The  extant
Rules would become operative only from  the  date  of  its  promulgation  by
publication in the Official Gazette, i.e.  on  28.04.2011.  
Promotions  made
prior to 28.04.2011 under the extant Rules  promoting  Shri  Anil  Shantaram
Khoje  (Contesting  Respondent  No.  1),  Shri  B.P.   Kolekar   (Contesting
Respondent No. 5) and Shri P.J.  Patil  to  the  post  of  Deputy  Municipal
Commissioner could not have been effected in the absence of  publication  of
the extant Rules in the Official Gazette. 
We note that Shri  Anil  Shantaram
Khoje and Shri B.P. Kolekar have already retired from  the  post  of  Deputy
Municipal Commissioner while Shri P.J. Patil who was promoted on  05.07.2010
to the post of Deputy Municipal Commissioner, is  still  holding  the  post.

Being mindful of the  fact  that  their  promotion  and  retiral  and  other
consequential benefits would be  adversely  impacted  by  our  Judgment,  we
direct that the promotion effected prior  to  28.04.2011  and  consequential
retiral and other benefits should not be altered to their detriment.
12.        We, however, uphold the view of the High Court that, keeping  the
nature of the reliefs in the writ petition in perspective,  the  Roster  has
to be determined by the Mumbai Municipal Corporation in accordance with  the
extant Rules and all concerned officers would then be entitled to  challenge
the fixation, if they are aggrieved and if so advised.
13.          The Appeals are allowed in the above  terms,  leaving  all  the
parties to bear their respective costs.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41276
T.S. THAKUR, VIKRAMAJIT SEN
                                                               REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  2918  OF 2014
                  [Arising out of SLP(C) No.15868 of 2010]

MUNICIPAL CORPORATION OF GREATER
MUMBAI, THROUGH COMMISSIONER                        ..APPELLANT

                                     vs
ANIL SHANTARAM KHOJE & ORS.                       ..RESPONDENTS

                                    WITH
                       CIVIL APPEAL NO. 2919  OF 2014
                  [Arising out of SLP(C) No.12985 of 2011]

SHRI RAM B. DHUS                                          ..APPELLANT
                                     vs
SHRI ANIL SHANTARAM KHOJE & ORS.                   ..RESPONDENTS

                               J U D G M E N T

VIKRAMAJIT SEN, J.

1.    Leave granted in both these petitions.
2.    Although interim orders have not been granted in  the  appeal  arising
out of SLP(C) No.15868 of 2010, in  the  accompanying  matter  it  had  been
ordered on 01.07.2011 that any promotion that may be made would  be  subject
to the result of the petition.
3.    The writ petitioners before the High Court of Bombay were  working  in
the Mumbai Municipal Corporation of Greater Mumbai  as  Assistant  Municipal
Commissioners and had prayed that their promotion to  the  vacant  posts  of
Deputy Municipal Commissioner may be effected in accordance with  the  Rules
framed  under  the  Mumbai  Municipal  Corporation  Act,  1888  (hereinafter
referred to as the “M.M.C. Act”). The relevant provisions  are  Sections  55
and 80B of the M.M.C. Act. Section 55 authorizes the Corporation to  appoint
Deputy  Municipal  Commissioner  subject  to  confirmation  by   the   State
Government whereas  sub-Section  (4)  of  Section  80B  of  the  M.M.C.  Act
requires the Corporation to frame  Rules  stipulating  the  eligibility  and
qualification criteria for the post of Deputy Municipal Commissioner in  the
Mumbai Municipal Corporation; sub-Section (5) thereafter requires the  Rules
so framed to be published in the  Official  Gazette.  It  appears  that  the
previous Rules were framed in the year 1988 and were duly published  in  the
Official Gazette on 18.08.1988,  according  to  which  the  post  of  Deputy
Municipal Commissioner was to be filled in by  way  of  promotion  from  the
post of Heads of Major Department (hereinafter  referred  to  as  “HOD”)  or
holders of equivalent posts having administrative  experience  of  not  less
than 10 years or Ward Officers on the one hand and by selection through  the
Maharashtra Public Service Commission on the other in the ratio of 1:1,  the
vacancies being filled in by  promotion  and  selection  alternatively.  The
Roster points indicated in the Rules were: A/C/B/C/A/C  (A  –  promotion  of
Ward Officer, B – promotion from HODs and C – selection  through  MPSC).  It
was further clarified that the appointing authority will decide whether  the
post earmarked for promotion is to be filled in by  promoting  HOD  or  Ward
Officer. Thereafter, the Corporation  proposed  modifications  in  the  then
existing Rules in terms of Resolution No. 531 dated 21.09.2000,  which  were
duly submitted to the State Government  for  according  its  approval.   The
State  Government,  however,  neglected  to  grant  sanction  to  the   said
Resolution and as a consequence the Commissioner addressed  a  letter  dated
19.08.2003 to the Corporation suggesting other modifications  in  the  Rules
relating to promotions. These suggested amendments came to  be  approved  by
the  Corporation  leading  to  the  passing  of  Resolution  No.  752  dated
20.11.2003 amending the then existing Recruitment Rules and these were  then
forwarded to the State Government for its approval.   The  State  Government
accorded its  approval  with  certain  modifications  with  respect  to  the
chronology  to  be  followed  in  the  Roster  and  appointment  by  way  of
deputation/transfer, unfortunately almost three years later vide its  letter
dated 04.10.2006. The said Resolution required 75% of the said posts  to  be
filled in by  promotion  from  the  Assistant  Municipal  Commissioners/Ward
Officers and 25% to be filled in by promotion of HOD, direct recruitment  or
by deputation. The Roster fixation  indicated  that  the  first  and  second
vacancy has to be filled in by promotion from  amongst  Assistant  Municipal
Commissioners whereas the third vacancy would be filled up by  promotion  of
HODs or direct recruitment or by deputation and the fourth vacancy would  go
to the Assistant Municipal Commissioner and so on and so forth.
4.    The petitioners before the High Court,  namely,  Shri  Anil  Shantaram
Khoje and Shri Prakash Krishnarao Thorat who are the contesting  Respondents
before us, were holding the post of Assistant Municipal Commissioners.  Shri
Ram B. Dhus was holding the post of HOD, and has filed  the  present  Appeal
along with  the  Mumbai  Municipal  Corporation  for  the  reason  that  the
impugned  judgment  dated  07.10.2009  has  allowed  the   writ   petitions,
directing the Mumbai Municipal Corporation to effect promotions to the  post
of   Deputy  Municipal  Commissioner  strictly  in   accordance   with   the
Resolution No. 752 dated 20.11.2003, sanctioned by the State  Government  in
terms of its  letter  dated  04.10.2006  and  the  Roster  point  determined
therein.   We clarify that Shri Ram B.  Dhus  was  the  senior-most  amongst
HODs, whilst the writ petitioners are Shri Anil  Shantaram  Khoje  and  Shri
Prakash Krishnarao Thorat, who belonged to the cadre of Assistant  Municipal
Commissioner/Ward Officer. These two respondents, we reiterate,  had  sought
issuance of directions to the Mumbai Municipal Corporation to  fill  in  the
16 vacant posts of Deputy Municipal Commissioner according to  the  modified
Rules,   i.e.,   by   assigning   75%   quota   for   Assistant    Municipal
Commissioners/Ward Officers and 25% to the other categories.  Prior  to  the
gazetting of the extant Rules  that  came  to  be  gazetted  on  28.04.2011,
Corporation had promoted three persons  to  the  post  of  Deputy  Municipal
Commissioner including Shri Anil Shantaram Khoje (Contesting Respondent  No.
1) and Shri Babusaheb Pandurang Kolekar (Contesting Respondent No. 5).
5.    It also requires to be elucidated that Shri Ram B. Dhus  was  promoted
as Deputy Municipal Commissioner on 16/8/13. Under the old Rules,  10  years
experience in the post of Head of Department  was  required  as  eligibility
for promotion to the next  higher  post  of  Deputy  Municipal  Commissioner
whereas in the subsequent Rules, this eligibility had been lowered by  three
years, now requiring only 7 years experience. When the writ  petitions  came
to be filed before the High Court, Shri Ram B.  Dhus  did  not  possess  the
stipulated 10 years experience.
6.    Shri Ram B. Dhus and the Corporation submit in these appeals that  the
modified Rules would become operative not from the date on which  they  were
sanctioned by the State Government vide letter dated  04.10.2006,  but  from
the date of their publication in the Official Gazette  as  required  by  law
and as specifically stipulated in Section 80B(5) of the M.M.C. Act.
7.    The opinion of the High Court is that the publication in the  Official
Gazette was not mandatory, but only desirable or directory.  A  plethora  of
precedents prevails on  this  vexed  question  which  continues  to  exhaust
judicial time.   In Harla vs State of Rajasthan, 1952 SCR 110 [AIR  1951  SC
467], the Court’s conscience appears to have been shocked  by  the  “thought
that a decision reached in the secret recesses of a  chamber  to  which  the
public have no access and to which  even  their  accredited  representatives
have  no  access  and  of  which  they  can  normally  know   nothing,   can
nevertheless affect their lives, liberty and property by  the  mere  passing
of a Resolution without  anything  more  is  abhorrent  to  civilised  man.”
However, what this Court was confronted with in that case  was  the  failure
of the publication of the Jaipur Opium Act, which led to the  conviction  of
the petitioner.   It can certainly be argued  that  imposition  of  criminal
liability  is  not  akin  to  provisions  determining  the  eligibility  for
promotions.   In B.K. Srinivasan vs State of Karnataka  1987  (1)  SCC  658,
this Court was concerned with the Outline Development Plan  and  Regulations
pertaining to  the  construction  of  high-rise  buildings  in  one  of  the
residential  extensions  of  Bangalore.  This  Court  observed  that  it  is
necessary that subordinate legislation, in order to  take  effect,  must  be
published or promulgated in some suitable manner, regardless of whether  the
statutes so prescribed, the subordinate legislation would then  take  effect
only from the date of publication. However, a caveat was articulated to  the
effect that where subordinate legislation  is  concerned  only  with  a  few
individuals  or  is  confined  to  small   local   areas,   publication   or
promulgation by other means may meet the mandates of law.
8.    In I.T.C. Bhadrachalam Paper Boards vs Mandal  Revenue  Officer,  A.P.
1996 (6) SCC 634, the question was whether  the  petitioner  assessee  could
claim the exemption from payment of tax on non-agricultural land  assessment
by virtue of one GOM issued by  the  Government,  but  which  had  not  been
published or notified  at  the  relevant  point  of  time  in  the  Official
Gazette. This Court declined to grant the benefits of the exemption  to  the
assessee holding that that provision would have to be implemented only  when
finality attached to it which would be contemporaneous  to  its  publication
in the Official Gazette; that the dissemination  of  the  substance  of  the
exemption in the newspapers or in other media was irrelevant. Reference  was
made to Section 83 of the Evidence Act. The Court did not  agree  that  such
publication was only a directory requirement and accordingly  a  dispensable
one and reiterated the observations earlier made  in  Sammbhu  Nath  Jha  vs
Kedar  Prasad  Sinha  1973  Crl.L.J.  453,  which  is  to  the  effect  that
publication in the  Official  Gazette  “is  an  imperative  requirement  and
cannot be dispensed with. This view further finds adoption  in  S.K.  Shukla
vs State of U.P. 2006 (1) SCC 314, wherein  the  Court  was  concerned  with
unauthorized possession of arms and  ammunitions  under  the  Prevention  of
Terrorism Act, 2002. It was observed by this  Court  that  the  notification
notifying the State of U.P. as a  notified  area,  thereby  prohibiting  and
criminalizing  possession  of  certain  arms  in  the  notified  area  under
Section 4(a)  of  the  Prevention  of  Terrorism  Act,  2002,  would  become
effective from the date of its publication and reasserted  that  publication
is essential as it affects the rights of the public.  Rajendra  Agricultural
University vs Ashok Kumar Prasad 2010 (1) SCC 730, is directly  relevant  to
the conundrum before us  inasmuch  as  it  pertains  to  promotions  in  the
university, in contra-distinction to criminal  culpability.  Even  in  those
circumstances, this Court  had  opined  that  publication  in  the  Official
Gazette was a  mandatory  requirement,  although  the  Statute  in  question
providing  for  a  time-bound  promotion  Scheme  was  assented  to  by  the
Chancellor, and pursuant to which a notification  was  also  issued  by  the
Petitioner University. The respondents made a failed attempt to  distinguish
a legislation  imposing  obligations  or  creating  liabilities  from  those
intended to benefit a specific and limited  class  of  persons  inasmuch  as
publication would be a  mandatory  requirement  in  the  former  case  while
directory in the latter. The Court disagreeing  with  the  proposition  held
that the fact that a particular Statute may not concern the general  public,
but may affect only a specified class of  employees,  is  not  a  ground  to
exclude the applicability of the mandatory  requirement  of  publication  in
the Official Gazette in  the  absence  of  any  exception  included  in  the
Statute itself.
9.    It is relevant for us to mention Section  23  of  the  Bombay  General
Clauses Act, 1904, which provides  thus:  “Where,  in  any  Bombay  Act  (or
Maharashtra Act), or in any Rule passed under such Act, it is directed  that
any order, notification or other matter  shall  be  notified  or  published,
then such notification or publication shall,  unless  the  establishment  or
Rule otherwise provides, be deemed to be tailor made if it is  published  in
Official Gazette.”
10.   We are immediately reminded of the observations made in Babu  Verghese
vs Bar Council of Kerala (1999) 1 SCR 1121, when this Court was called  upon
to consider a case under the Advocates Act. While doing so, we  applied  the
principles earlier enunciated in  Taylor vs Taylor (1875)1  ChD  426 and  in
Nazir Ahmad vs King Emperor AIR  1936  PC  253.     The  Court  observed  as
follows:  “It is the basic principles  of  law  long  settled  that  if  the
manner of doing a particular act is prescribed under any  statute,  the  act
must be done in that manner or not at all”.
11.         In this conspectus  we  find  ourselves  unable  to  accept  the
position favoured by the High Court in the  impugned  Judgment.  The  extant
Rules would become operative only from  the  date  of  its  promulgation  by
publication in the Official Gazette, i.e.  on  28.04.2011.  Promotions  made
prior to 28.04.2011 under the extant Rules  promoting  Shri  Anil  Shantaram
Khoje  (Contesting  Respondent  No.  1),  Shri  B.P.   Kolekar   (Contesting
Respondent No. 5) and Shri P.J.  Patil  to  the  post  of  Deputy  Municipal
Commissioner could not have been effected in the absence of  publication  of
the extant Rules in the Official Gazette. We note that Shri  Anil  Shantaram
Khoje and Shri B.P. Kolekar have already retired from  the  post  of  Deputy
Municipal Commissioner while Shri P.J. Patil who was promoted on  05.07.2010
to the post of Deputy Municipal Commissioner, is  still  holding  the  post.
Being mindful of the  fact  that  their  promotion  and  retiral  and  other
consequential benefits would be  adversely  impacted  by  our  Judgment,  we
direct that the promotion effected prior  to  28.04.2011  and  consequential
retiral and other benefits should not be altered to their detriment.
12.        We, however, uphold the view of the High Court that, keeping  the
nature of the reliefs in the writ petition in perspective,  the  Roster  has
to be determined by the Mumbai Municipal Corporation in accordance with  the
extant Rules and all concerned officers would then be entitled to  challenge
the fixation, if they are aggrieved and if so advised.
13.          The Appeals are allowed in the above  terms,  leaving  all  the
parties to bear their respective costs.


                       ………………………J
                                                              (T.S. THAKUR)



                                             ………………………J
                                                                 (VIKRAMAJIT
SEN)
NEW DELHI;
February 28,   2014.
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