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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.
———————–
11

 

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