LexMUNICIPAL CORPORATION OF GREATER MUMBAI THROUGH COMMISSIONER versus ANIL SHANTARAM KHOJE & ORS.
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[2014] 3 S.C.R. 511 MUNICIPAL CORPORATION OF GREATER MUMBAI,. THROUGH COMMISSIONER V. ANIL SHANTARAM KHOJE & ORS. (Civil Appeal No. 2918 of 2014) A I FEBRUARY 28, 2014 B, [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.] SERVICE LAW: Promotions made according to Rules prior to its publication in Official Gazette - Held: Such promotions could c 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 Commissio
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