MUNICIPAL CORPORATION OF GREATER MUMBAI THROUGH COMMISSIONERversusANIL SHANTARAM KHOJE & ORS.

                     [2014] 3 S.C.R. 511


   MUNICIPAL CORPORATION OF GREATER MUMBAI,.                        A
             THROUGH COMMISSIONER
                               V.
            ANIL SHANTARAM KHOJE & ORS.
             (Civil Appeal No. 2918 of 2014)
                                                                        I
                                                                    B,
                    FEBRUARY 28, 2014
       [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

     SERVICE LAW:
                                                                    c
     Promotions made according to Rules prior to its
publication in Official Gazette - Held: Such promotions could
 not have been effected in the absence of publication of.the
 Rules in Official Gazette - However, keeping in view the fact
that promotions of employees concerned and retiral and other        0
consequential benefits would be adversely impacted by the
judgment, it is directed that the promotion effected prior to the
date of publication of Rules in Official Gazette and
 consequential retiral and other benefits should not be altered
to their detriment - Mumbai Municipal Corporation Act, 1888         E
- ss.55 and 808 - Bombay General Clauses Act, 1904 - s.23.

     The Municipal Corporation by Resolution No. 531
dated 21.09.2000 and subsequently by Resolution No.
752 dated 20.11.2003, proposed to amend the Rules for
promotion to the post of Deputy Commissioner. The                   F
State Government accorded its approval by its letter
dated 04.10.2006. The Resolution required 75% of the
posts of Deputy Commissioner to be filled in by
promotion from the Assistant Municipal Commissioners/
Ward Officers and 25% to be filled in by promotion of               G
HOD by direct recruitment or by deputation. The writ
petition filed by respondent nos. 1 and 5 in CA. No. 2918
of 2014, who were holding the post of Assistant
Municipal Commissioners, was allowed by the High
                           511                                      H
   512      SUPREME COURT REPORTS            [2014] 3 S.C.R.

A Court, 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
B Roster point determined therein. Accordingly, prior to the
  gazetting of the extant Rules that came to be gazetted on
  28.04.2011, the Corporation had promoted three persons
  to the post of Deputy Municipal Commissioner including
  respondent No. 1 and respondent No. 5. The appellant in
C C.A. No. 2919 of 2014, being the senior most HOD, was
  promoted as Deputy Municipal Commissioner on
  16.8.2013.

       In the instant appeals, it was contended by the
  appellants that the modified Rules would become
D operative not from the date on which they were
  sanctioned by the State Government by 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 s. 80B(5) of the Mumbai Municipal
E Corporation Act, 1888.

         Allowing the appeals, the Court

      HELD: 1.1 Section 23 of the Bombay General
  Clauses Act, 1904 provides, "Where, in any Bombay Act
F (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
G if it is published in Official Gazette." [para 9] [520-C-D]

       1.2 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
H to 28.04.2011 under the extant Rules promoting
 MUNICIPAL CORP. OF GR. MUMBAI, THR. COMMR. 513
          v. ANIL SHANTARAM KHOJE
respondent No. 1, respondent No. 5 and another to the           A
post of Deputy Municipal Commissioner could not have
been effected in the absence of publication of the extant
Rules in the Official Gazette. [para 11] [520-G-H; 521-A]

     Rajendra Agricultural University vs Ashok Kum3r Prasad     8
2009 (15) SCR 1168 = 2010 (1) sec 730 - relied on.

      Har/a vs State of Rajasthan, 1952 SCR 110 =AIR 1951
 SC 467; B.K. Srinivasan vs State of Karnataka 1987 (1) SCR
 1054 = 1987 (1) SCC 658; /. T.C. Bhadrachalam Paper
 Boards vs Manda/ Revenue Officer, A.P. 1996 (5) Suppl.         C
.SCR 643. = 1996 (6) SCC 634; Sammbhu Nath Jha vs Kedar
 Prasad Sinha 1973 Crl.L.J. 453; S.K. Shukla vs State of U.P.
 2005 (5) Suppl. SCR 172 = 2006 (1) SCC 314; and Babu
 Verghese vs Bar Council of Kera/a (1999) 1 SCR 1121-
 referred to.                                                   D

    Taylor vs Taylor (1875)1 ChD 426 and Nazir Ahmad vs
King Emperor AIR 1936 PC 253 - referred to.

     1.3 Since respondents nos. 1 and 5 have already
retired from the post of Deputy Municipal Commissioner          E
while the other officer 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 the judgment, it is              F
directed that the promotion effected prior to 28.04.2011
and consequential retiral and other benefits should not
be altered to their detriment. [para 11] [521-A-C]

     1.4 However, this Court upholds the view of the High       G
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 officers concerned would then
be entitled to challenge the fixation, if they are aggrieved    H
    514      SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A and if so advised. [para 12) [521-C-D]

                          Case Law Reference:

          1952 SCR 110                 referred to        para 7

B         1987 (1) SCR 1054            referred to        para 7

          1996 (5) Suppl. SCR 643 referred to             para 8

          1973 Crl.L.J. 453            referred to        para 8

          5 (5) Suppl. SCR 172         referred to        para 8
c
          2009 (15) SCR 1168           relied on          para 8

          (1999) 1 SCR 1121            referred to        para 10

          (1875)1 ChD 426              referred to        para 10
D         AIR 1936 PC 253              referred to        para 10

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2918 of 2014.

      From the Judgment & Order dated 07.10.2009 of the High
E Court of Judicature at Mumbai in Writ Petition No. 2191 of
  2008.
                                    WITH
    C.A. No. 2919 of 2014.
F
        Pallav Shishodia, Atul Y. Chitale, P.P. Rao, Sanyukta
    Mukherjee, Jayati Chitale, Suchitra Atul Chitale, J.J. Xavier, U.
    Deshpande, S.N. Pillai, E.C. Vidya Sagar, Kheyali Sarkar,
    Akshat Kulshreshtha for the Appellant.
G       T.R. Andhiyarujina, P.S. Patwalia, Pallav Shishodia,
    Shakar Chillarge, AGA SOM, Susheel Mahadeshwar, Uday B.
    Dube, Soumik Ghosal, E.G. Vidya Sagar, Amit Yadav, Sujata
    Kurdukar, Atul Y. Chitale, Sanyukta Mukherjee, Jayati Chitale,
    Suchitra Atul Chitale, J.J. Xavier, U. Deshpande, Asha G. Nair
H
 MUNICIPAL CORP. OF GR. MUMBAI, THR. COMMR. 515
          v. ANIL SHANTARAM KHOJE
for the Respondents.                                             A
     The Judgment of the Court was delivered by

      VIKRAMAJIT SEN, J. 1. Leave granted in both these
petitions.
                                                                 B
     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.                                                 c
 .    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 D
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 808 of the M.M.C. Act. Section
55 authorizes the Corporation to appoint Deputy Municipal
Commissioner subject to confirmation by the State Government E
whereas sub-Section (4) of Section SOB 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 F
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 G
(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 H
    516     SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A   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
B   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
C   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 20.11.2_003 amending the then
D   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
E   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
F   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.
G
       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
H holding the post of HOD, and has filed the present Appeal
 MUNICIPAL CORP. OF GR. MUMBAI, THR. COMMR. 517
 v. ANIL SHANTARAM KHOJE [VIKRAMAJIT SEN, J.]
along with the Mumbai Municipal Corporation for the reason that       A
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            B
its letter dated 04.10.2006 and the Roster point determined
therein. We clarify that' Shri Ram 8. 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/            c
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%           D
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            E
Kolekar (Contesting Respondent No. 5).

     5. It also requires to be elucidated that Shri Ram 8. 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        F
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
8. Dhus did not possess the stipulated 10 years experience.           G

    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         H
    518      SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A their publication in the Official Gazette as required by law and
  as specifically stipulated in Section 808(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
8
    question which continues to exhaust judicial time. In Har/a 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
C   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
D   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
E   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
F   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
G   promulgation by other means may meet the mandates of law.
        8. In /. T.C. Bhadrachalam Paper Boards vs Manda/
    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
H
  MUNICIPALCORP. OF GR. MUMBAI, THR. COMMR. 519
  v. ANIL SHANTARAM KHOJE [VIKRAMAJIT SEN, J.]
  virtue of one GOM issued by the Government, but which had             A
  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              B
  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          c
  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             D
  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         E
  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          F
  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             G
  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           H
    520      SUPREME COURT REPORTS                  [2014] 3 S C.R.


A 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
B 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
C 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."
D
       10. We are immediately reminded of the observations
  made in Babu Verghese vs Bar Council of Kera/a (1999) 1
  SCR 1121, when this Court was called upon to consider a case
  under the Advocates Act. While doing so, we applied the
E 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
F 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,
G 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
H absence of publication of the extant Rules in the Official
 MUNICIPAL CORP. OF GR. MUMBAI. THR. COMMR. 521
 v. ANIL SHANTARAM KHOJE [VIKRAMAJIT SEN, J.)
Gazette. We note that Shri Anil Shantaram Khoje and Shri B.P.    A
Kolekar have already retired from the post of Deputy Municipal
Commissioner whiie 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     B
be adversely impacted by our Judgment, we direct that the
promotion effected prior to 28.04.2011 and consequentiai
retiral and other benefits should not be altered to their
detriment.

      12. We, however, uphold the view ot the High Court that,
                                                                 c
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.               D

      13. The Appeals are allowed in the above terms, leaving
all the parties to bear their respective costs.

R.P.                                        Appeals allowed.
                                                                 E