COMMR.MUN.CORP.OF GR.MUMBAI Vs ANIL SHANTARAM KHOJE .
Bench: T.S. THAKUR,VIKRAMAJIT SEN
Case number: C.A. No.-002918-002918 / 2014
Diary number: 10244 / 2010
Advocates: SUCHITRA ATUL CHITALE Vs
UDAY B. DUBE
Page 1
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
1
Page 2
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
2
Page 3
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
3
Page 4
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
4
Page 5
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.
5
Page 6
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
6
Page 7
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
7
Page 8
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
8
Page 9
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,
9
Page 10
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
1
Page 11
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.
1