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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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,  

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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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