TMI Blog2009 (11) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... -2009 - R.V. Raveendran and G.S. Singhvi, JJ. Shri Ambhoj Kumar Sinha, Advocate, for the Appellant. Dr. S.K. Verma, Ms. Namita Choudhary, S/Shri M.K. Choudhary, Manish Kumar, B.B. Singh and Gopal Singh, Advocates, for the Respondent. JUDGMENT The issue involved in these appeals is whether a statute made under Section 36 of the Bihar Agricultural Universities Act, 1987, providing for a benefit to the teaching staff, for which assent has been given by the Chancellor can be enforced in the absence of publication in the official Gazette. 2. The appellant is an agricultural university governed by the Bihar Agricultural Universities Act, 1987 (for short Act ). To provide relief to its teaching staff who were facing stagnation in service, the Board of Management of the Appellant University at its meeting dated 22-7-1989 framed a Statute providing for a Time Bound Promotion Scheme. The proposed Statute was placed before the Chancellor of the University for his assent under Section 36(2) of the Act and such assent was given on 17-8-1991. In pursuance of it, the university issued a Notification (N.No. 106/RAU) dated 4-9-1991, making an addition in Statute 14.1 in chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order noted that several universities had earlier adopted time bound promotion schemes, but subsequently abandoned the schemes as they were found to be anomalous vis a vis the UGC scheme of career advancement and the UGC scheme of placement of lecturers in the senior scales of pay: and that in their place, schemes/statutes in conformity with the UGC schemes, were framed on the recommendations of the State Government. He also gave the following reasons as to why the time bound promotion scheme under the proposed Statute could not be implemented in the agricultural universities of Bihar : It was brought to my notice that ICAR sent a directive to the Vice-Chancellors of the Agricultural Universities that the ICAR can bear the cost on account of promotion under Career Advancement Scheme in built in new UGC scale but beyond that, the ICAR will not entertain any request for fund for any other kind of promotion or selection. In the ICAR Scheme also there are in built provisions for promotion. Therefore, introduction of the time Bound Promotion Scheme along with ICAR scheme may (amount) to double benefits. It may be pointed out that there is no provisions for Time Bound Promotion unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification. 6. The said order is challenged in these appeals. It is contended by the appellant University that a resolution of the Board of Management to make a statute, even if assented to by the Chancellor, would not be a statute made under the Act, unless it was notified in the official gazette. Further, as the assent had been withdrawn by the Chancellor by a reasoned order dated 19-3-1996, there was no statute at all. It was also contended that a new Career Advancement Scheme for promotion of teachers had been implemented by making amendments in the relevant statutes of the university in accordance with the revised UGC pay scales; and the respondents having already opted for the UGC scheme of pay scale which was introduced on 30-3-1990. the proposed Time Bound Promotion Scheme would be inapplicable, even if the statute had been notified. 7. On the contentions urged, the following question arises for consideration : (i) In the absence of publication of the statute in the Official Gazette, as required by Section 36 (4) of the Act, whether a statute made under Section 36(1) and assented under Section 36(2) came into effect and became enforceable? (ii) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are : (a) The Statute should be made by the Board of Management in the manner specified in sub-section (1): (b) The Statute should be approved and assented by the Chancellor; (c) The Statute so made and assented, shall be published in the official Gazette. When the Act lays down the manner in which a statute under the Act should be made, it shall have to be made in that manner and no other. The requirement that the statute should be published in the official Gazette, is an integral part of the process of statute making under Section 36 of the Act. It is mandatory and not directory. Until publication in the official Gazette, the statute will be considered as still being in the process of being made, even if had received the assent of the Chancellor. A statute in the making or a statute-in-process is incomplete and is neither valid nor effective as a statute. So long as the statute is not completely made, but is still in the process of being made, it can be cancelled or withdrawn or modified, without the need for publication of such cancellation, withdrawal or modification. The Chancellor kept the statute-in-process pending and later reconsidered it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by other modes, such as displaying the order on the notice board or by circulating it among the intended beneficiaries; and in such cases of sub-ordinate legislations of limited application, if there is a provision requiring publication in the official Gazette, such requirement will have to be considered directory and as a mere formality. He therefore submitted that the principle that a sub-ordinate legislation which is not published cannot come into effect nor enforced against any member of the public, for want of knowledge to the public, in the absence of publication, cannot apply where a statute is made, as in this case, for the benefit of a specific and small class of persons, that is the teaching faculty of University, and the making of the said statute is otherwise known to all the teaching faculty, and when the teachers for whose benefit it is made seek implementation of the Statute. It was contended that in such a case, the non-publication of the Statute in the official Gazette cannot be put forth as an objection for its implementation. 12. We have carefully considered the contention of the respondents. Many of the statutes which the University is empowered to frame de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r holding that a statutory enacted mandatory requirement relating to publication in official Gazette, is directory. The respondents cannot by importing the reasons for making a statutory provision, or the object of making a statutory provision, attempt to defeat the specific and unambiguous mandatory requirements of that statutory provision. As noticed above, several reasons might have contributed to making of a statutory provision providing for publication of all statutes in the official Gazette. All those reasons may not apply or exist in regard to making of an individual statute. But once the law lays down that publication of a statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfilment of the requirement to make public the statute by publication in the Official Gazette becomes mandatory and binding. We may illustrate the position by an example : If a Two-way Street is declared as a One-way Street, the reason for such declaration may be that the traffic was heavy and the two-way traffic was causing chaos, creating bottlen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mode of publication or promulgation that mode must be followed. (emphasis supplied) However, if the parent law had been silent about the manner of publishing or notifying the statute, and had not prescribed publication in the official Gazette as the mode of publication, the contentions of respondents might have merited some consideration. But when the Act clearly provided that the statute required publication in the Gazette, the requirement became mandatory. In fact, in B.K. Srinivasan this Court explained the position, if the parent Act was silent about publication in the Gazette : Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment to go back on such representation, the appellant will be prejudiced. Learned Counsel also contended that where the government makes a representation, acting within the scope of its ostensible authority, and if another person acts upon such representation, the government must be held to be bound by such representation and that any defect in procedure or irregularity can be waived so as to render valid which would otherwise be invalid. Counsel further submitted that allowing the government to go back upon its promise contained in G.O.Ms. No. 201 would virtually amount to allowing it to commit a legal fraud. For a proper appreciation of this contention, it is necessary lo keep in mind the distinction between an administrative act and an act done under a statute. If the statute requires that a particular act should be done in a particular manner and if it is found, as we have found hereinbefore, that the act done by the government is invalid and ineffective for non-compliance with the mandatory requirements of law, it would be rather curious if it is held that notwithstanding such non-compliance, it yet constitutes a promise or a representation for the purpose of invoking the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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