Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION, BHOPAL, M.P.
Vs.
RESPONDENT:
MISBAHUL HASAN & ORS.
DATE OF JUDGMENT12/02/1972
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
SIKRI, S.M. (CJ)
RAY, A.N.
CITATION:
1972 AIR 892 1972 SCR (3) 363
1972 SCC (1) 696
CITATOR INFO :
D 1986 SC1518 (8)
ACT:
Madhya Pradesh Municipal Corporation Act, 1956-Ss. 432 and
433 Whether the State Government can change the service
conditions of the Corporation employees by framing rules
with-out following the procedure laid down under the Act.
HEADNOTE:
The respondent employee was appointed a Lower Division Clerk
and after 5 years of service, the Administrator of the
Municipal Corporation, purporting to carry out the orders of
the St-ate Government, passed a general order dated 21st
December 1967, stating that the age of compulsory retirement
of all servants of the Corporation (other than Class IV
servants) should be 55 years.
The respondent had entered into service of the Municipal
Board of Bhopal long ago. in 1967, the Board became a
Corporation under the Madhya Pradesh Municipal Corporation
Act, 1956. As a result of the continuance of the service
conditions of the employees of the former Municipal Board,
the petitioner was to retire at the age of 60 (by notifica-
tion dated 11th November, 1947), but in 1955, the Government
of Bhopal by a Notification, applying the service
regulations of Central Government employees, reduced the
retiring age of the Respondent to 58. Under the Corporation
Act of 1956, question relating to service conditions of the
employees of the Corporation were to be regulated by bye-
laws under S. 427 (I C) (b) of the Act and not by rules to
be made by Government. The State Government by a
Notification in 1967 further reduced the retirement age of
all employees (except IV Grade employees) to 55 years. The
validity of the Order dated 21st December 1967 of the
Administrator was challenged by the respondent on the ground
that the procedure laid down by the Act for amending a bye-
law was not followed, and the High Court accepting this
contention quashed the Government Notification dated 22nd
December 1967 as well as the general order reducing the age
of retirement. On appeal, it was contended that the pro-
cedure laid down in S. 432 of the Corporation Act was not
mandatory but was merely meant to give the Corporation
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concerned an opportunity of putting forward its views by
means of a representation it may like to make with regard to
any proposal to the Government to modify or repeal any bye-
law so that the administrator, acting on behalf of the
Corporation, could forego the right of the Corporation to
make any representation,. The State, in its appeal
contended that the rule making powers of the Government
under S. 433 are very wide and the Government can make a
rule if the Corporation failed to make a bye-law. The view
of the High Court that the matter did not fall under S. 433
of the Act was assailed. Dismissing the appeals,
HELD : (1) The procedure laid down in S. 432 of the Act is
only applicable where there is an existing bye-law which
appears to the Government to stand in need of modification
or repeal wholly or in part. Therefore, the impugned
notification does not fall under S. 432 of the Act. [358 G]
354
(2) Assuming that the impugned notification purported to
publish a rule made under S. 433 of the Act, the condition
precedent of previous publication in the Gazette for an
amendment of a rule, laid down by S. 24 of the Madhya
Pradesh General clauses Act 1957 had not been followed in
the present case. Therefore no valid alteration in the age
of retirement of the employee-respondent was made in
accordance with law. The impugned notification is bad and
quashed. [359 C, 360 D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : C.A. Nos. 2004 of 1970 and
319 of 1971.
Appeals by Special Leave from the judgment and order dated
the August 26, 1970 of the Madhya Pradesh High Court in Mis-
cellaneous Petition No. 302 of 1968.
C. K. Daphtary and Rameshwar Nath, for the Appellant (in
C.A. No. 2004 of 1970).
I. N. Shroff, for the Appellant (in C.A. No. 319 of 1971).
S. K. Gambhir, for Respondent No. 1 (in both the Appeals).
Rameshwar Nath, for Respondent No. 2 (in C.A. No. 319 of
1971).
The Judgment of the Court was delivered by
Beg, J. There are two appeals by Special Leave before us,
one by the Municipal-Corporation, Bhopal, and another by the
State of Madhya Pradesh, against the Judgment and order of a
Division Bench of the Madhya Pradesh High Court allowing a
Writ Petition filed by the Respondent employee of the Bhopal
Municipal Corporation (hereinafter called the
’Corporation’).
The employee’s case was : He was born on 1st July, 1912,
appointed a Lower Division Clerk in April, 1962, promoted as
a Upper Division Clerk in February, 1964. A general order
dated 21 December, 1967, (Annexure ’A’) had been passed by
the Administrator, Municipal Corporation, purporting to
carry out the orders of the Government of Madhya Pradesh
which had decided that the age of compulsory retirement of
all servants of the Corporation, other than Class IV
servants, should be 55 years. The employee was informed of
it by a communication dated 22nd December, 1967, (Annexure
B). The Municipal Corporation of Bhopal, which was formerly
only a Municipal Council, became a Corporation when
provisions of the Madhya Pradesh Municipal Corporation Act,
1956 (hereinafter referred to as ’the Act’) were applied to
it from 25th August, 1967, by an ordinance the provisions of
which were then embodied in an Act. Although the Petitioner
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had entered service of the Municipal Board of Bhopal as a
result of the continuance of the service conditions of the
355
employees of the former Municipal Board, which had thus be-
come a Corporation, the petitioning employee was to retire
at the age of 60 as laid down in Notification No. 30 of 11th
November 1947 (Annexure C). But, in 1955, when Bhopal was a
Part ’C’, State, the Government of Bhopal had issued a
notification dated 4th February 1955 applying the service
regulations of Central Government employees in Part ’C’
States. In this way, the petitioning employee’s correct age
of retirement was 58. Under the Act of 1956, questions
relating to service conditions of the employees of the
Corporation were to be regulated by bye-laws under Section
427(1-C)(b) of the Act and not by rules to be made by the
Government. The Government of Madhya Pradesh had, however,
issued a Notification in the Gazette of 22nd December, 1967,
purporting to reduce the age ,of retirement of first and
second and third grade employees from 60 years to 55 years
by amending the Government Notification No. 30 dated 11th
November 1947. It was not clear to the petitioning employee
whether the orders of 21st December,’ 1967, were in
pursuance of any Gazette Notification or whether they have
been passed after a proper amendment of their bye-laws in
accordance with the procedure laid down in Section 432 of
the Act. In any case, the validity of the order of 21st
December, 1967, was challenged.
The Judgment under appeal shows that it was argued on behal
f of the petitioning employee that the procedure laid
down :by the Act for amending a bye-law was not followed.
The Madhya Pradesh High Court had accepted this contention
and rejected the argument, put forward on behalf of the
Corporation and its Administrator, that the amendment in
quest-ion was governed by the provisions of Section 433 of
the Act. It had, therefore, quashed the Notification dated
22nd December, 1967, which purported to have been made in
exercise of powers vested in the Government under Section
432 of the Act, as well as an order dated 30th December,
1967, (Annexure R-1), the relevant part of which reads as
follows :-
"In pursuance of the Notification No. 10678/
4251/’XVIII-U-11, dated the 22/12/67, Shri
Misbahul Hasan, UDC Account Section, who has
attained the age of compulsory retirement, is
hereby sanctioned 120 days Earned Leave w.e.f.
1/1/1968 as leave Preparatory to retirement.
He will stand retired w.e.f. 1/5/1968 on
expiry of the leave sanctioned to him, stated
above".
Mr. Daphtary, appearing on behalf of the Corporation Appel-
lant, has contended that the procedure laid down in Section
432
356
of the Act was merely meant to give the Corporation
concerned an opportunity of putting forward its views by
means of any representation it may like to make with regard
to any proposal of the Government to modify or repeal any
bye-law. The learned Counsel submitted that, as the
Corporation had no objection whatsoever to the amendment of
the age of retirement of Class I and II and III employees,
it was not open to the petitioning employee to raise any
objection on the ground that the prescribed procedure had
not been followed. This argument proceeds on the assumption
that there was already a bye-law regulating the age of
retirement of employees of Classes I, II, and III of the
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Corporation, and that the Government was purporting to
follow the procedure laid down by Section 432 of the Act in
amending that bye--law.
We may here reproduce the provisions of Section 432 of the
Act which run as follows :
"432. Government may modify or repeal bye-
laws.-
(1) If it shall at any time appear to the
Government that any bylaw should be modified
or repealed either wholly or in part, it shall
cause its reasons for such opinion to be
communicated to the Corporation and prescribe
a reasonable period within which the
Corporation may make any representation with
regard thereto which it shall think fit.
(2) After receipt and consideration of any
such representation or, if in the meantime no
such representation is received, after the
expiry of the prescribed period, the
Government may at any time by notification in
the Gazette, modify or repeal such bye-law
either wholly or in part.
(3) The modification or repeal of a bye-law
under sub-section (2) shall take effect from
such date as the Government shall in the said
notification direct or, if no such date is
specified, from the date of the publication of
the said notification in the Gazette, except
as to anything done or suffered or om
itted to
be done before such date".
It is admitted by both sides that, at the relevant time,
them powers of the Corporation were vested in the
Administrator under the provisions of Section 432 sub-s (1)
of the Act. The only question, according to the
Corporation, is whether the Administrator, acting as the
Corporation, should not forego the right of Corporation to
make any representation with regard to a
357
proposal of the Government to amend a bye-law. in other
words, the modification or amendment of a bye-law under
Section 432 of the Act was a matter of concern only to the
Government and to the Corporation and to nobody else. If,
therefore, there was any infringement of its technical
procedural requirements, it was only for the Corporation and
nobody else, according to this contention, to raise the
objection. The broad proposition put forward before us is
that the requirements of a procedure intended for the
benefit of a party could be dispensed with if that party
itself chooses that this should be done. It is pointed out
that the only object of the procedure provided by Section
432 was that the proposals of the Government may be duly
considered by the Corporation so as to enable it to
represent its views. There was no obligation upon the
Corporation to make a representation.’ If the Corporation
did not choose to make a representation, after the
Government had sent its reasons for its opinion to the
Corporation and had asked for the representation within a
prescribed period, the failure of the Corporation to make
any representation would, far from depriving the Government
of the power to issue a notification modifying or repealing
a bye-law wholly or in part in accordance with its opinion,
enable it to do so. The mere order in which a proposal is
made and assent to it is given by the Corporation, it was
urged, should not make any difference as there was
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substantial compliance with prescribed procedure.
In the appeal filed on behalf of the State of Madhya
Pradesh, the main contention is that the rule making powers
of the Government under Section 433 of the Act are very wide
so that the State could make rule "for the purpose of
carrying into effect the provisions of the Act". It is
urged that the Act imposed a duty and conferred a power upon
the Corporation to frame bye-laws relating to conditions of
service of its employees as laid down in Section 427 (1-C)
(b) of the Act. The Government could make a rule if the
Corporation failed to make bye-law on a subject. The
correctness of the view of the High Court, that the matter
did not fall within the purview of Section 433 of the Act,
was assailed.
Another contention put forward on behalf of the State of
Madhya Pradesh was that the petitioning employee had not im-
pleaded either the State, or the Government of the Madhya
Pradesh, so that a Notification of the State Government
could not observe here that this ground is not taken in
the Special Leave Petition of the State of Madhya Pradesh
by means of which its appeal has come up before us. No such
objection was taken on behalf of the Corporation in the
Special Leave Petition filed by
358
it. Nor was any such argument advanced on behalf of the
Corporation before the High Court. Paragraph 12 of the
Special Leave Petition filed on behalf of the Corporation
discloses that the High Court had itself considered it
necessary to hear the State Government. It had, therefore,
given time to the State Counsel, by an order dated 16th
April, 1970, to file a return to the petition of the
employees. But, the State Counsel had neither filed any
return nor put in any appearance. Thus, the State had
obtained due opportunity to oppose the petition, but it had
not chosen to do so. Therefore, we are unable to entertain
any such objection at this stage.
Another question attempted to be raised before us, by the
learned Counsel for the State of Madhya Pradesh, was based
on assertions which were neither made in the High Court by
any party nor in this Court in the two Special Leave
Petitions. The submission rests on materials said to exist
on the records of the State Government which, it was stated,
show that the proposal had actually come from the
Administrator himself, that the particular amendment sought
be made by the Government. If this was the correct
position, the State Counsel should have appeared before the
High Court and placed the whole record before the Court so
that the facts which had a material bearing on the question,
whether the procedure laid down by Section 432 of the Act
had been followed in substance or spirit or not, may be gone
into and decided.
The High Court had proceeded on the assumption that the
procedure laid down in Section 432 of the Act was
applicable. Learned Counsel for the Corporation also made
his submission primarily on that assumption. If that
procedure had been really applicable, we think that the
question whether the object of that procedure had been
served and whether the Corporation could forego its right to
make a representation or not would have deserved serious
consideration provided it was supported by evidence which
disclosed that there was substantial compliance with Section
432 of the Act.
After having heard Counsel for both sides, we are unable to
hold that this is a case governed by the procedure laid down
in Section 432 of the Act at all. That procedure is only
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applicable where there is an existing bye-law which appears
to the Government to stand in need of modification or repeal
wholly or in part. It is only then that the Government had
to cause its reasons for entertaining the opinion that the
bye-law in question should be modified or repealed, to be
communicated to the Corporation. We are not at all
satisfied about the exact position of the Ailan No. 30 of
1947. It has not been shown to us, by references to the
relevant records and provisions, that this Ailan could be
359
deemed to be a bye-law as contemplated by the Act. It seems
that the Corporation was aware of this defect because the
main argument on behalf of the Corporation itself before the
High Court was that it was a rule made by the Government and
not that Section 432 was applicable and substantially
complied with. And, the main argument on behalf of the
State Government before us now also is that the impugned
notification is covered by Section 433 of the Act. In view
of Section 427 (1-C) (b) of the Act, the High Court had held
that, having regard to the specific provisions on the
subject, the general rule making power under Section 433 of
the Act was inapplicable to the subject-matter.
Assuming, however, that the modification of the age of
retirement could be made by a rule made under Section 433 of
the Act and not merely by a bye-law, as contemplated by the
Act, we find that a condition precedent for an amendment of
a rule has not been followed here. Section 433 of the Act
enacts : "The State Government may after previous
publication in the Gazette make rules for the purpose of
carrying into effect the provisions of this Act". Section
24 of the Madhya Pradesh General Clauses Act, 1957, lays
down :
"24. Provisions applicable to making of rules
or bye-laws, etc., after previous
publication.-Where, by any Madhya Pradesh Act,
a power to make rules or bye-laws is expressed
to be given subject to the condition of the
rules or bye-laws being made after previous
publication, then the following provisions
shall apply, namely :-
(a) ’the authority having power to make the
rules or bye-laws shall, before making them,
publish a draft of the proposed rules or bye-
laws for the information of persons likely to
be affected thereby;
(b) the publication shall be made in such
manner as that authority deems to be
sufficient, or if the condition with respect
to previous publication so requires, in such
manner as the Government prescribes;
(c)there shall be published with the draft a
notice specifying a date on or after which the
draft will be taken into consideration;
(d) the authority having power to make the
rules or bye-laws; and where the rules or bye-
laws are to be made with the sanction,
approval or concurrence of another authority,
that authority also shall consider any
objection or suggestion which may be
360
received by the authority having power to make
the rules or bye-laws from any person with
respect to the draft before the date so
specified;
(e) the publication in the Official Gazette of
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a rule or bye-law purporting to have been made
in exercise of a power to make rules or bye-
laws after previous publication shall be
conclusive proof that the rule or bye-law has
been duly made".
The legislative procedure envisaged by Section 24, set out
above, is in consonance with notions of justice and fair
play as it would enable persons likely to be affected to be
informed so that they may take such steps as may be open to
them to have the wisdom of a proposal duly debated and
considered before it becomes law. this mandatory procedure
was not shown to have been complied with here.
The result is that we are unable to hold, on the material on
record, that a valid alteration in the age of retirement of
the employee respondent was made in accordance with law.
The High Court had not expressed any opinion on the question
whether the contention of the employee-respondent, that his
age of retirement was the one laid down as 58 for Central
Government employees, was correct. As no contention had
been advanced on this question before us and none seems to
have been advanced on it before the High Court, we refrain
from dealing with it.
The result is that both these appeals must fail and are
hereby dismissed with one set of costs.
S.C. Appeals dismissed.
361