TaxTMI 
TaxTMI 
2009 (11) TMI 722
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....und 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 XIV of the Statutes of the Rajendra Agricultural University providing for a time bound promotion of (i) Assistant Professors/Junior Scientists to the post of Associate Professor/Senior Scientist and (ii) Associate Professor/Senior Scientist to the post of University Professor/Chief Scientist. The said addition in Statute 14.1 was not published in the Official Gazette, as the matter was under reconsideration in view of the decision taken by the state government to implement the pay scales of University Grants Commission (for short 'UGC') in regard to the teachers of the agricultural universities. The Chancellor also passed an order, which was communicated to the Vice-Chancellors of the Agricultural Universities vide letter dated 6-2-1992, that the operation of the said statute be kept pending till further orders as the whole issue was under review and further consideration.....
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....equest 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 under the UGC scheme nor ICAR envisaged each scheme. The Agricultural Universities and the State Government have accepted the terms and conditions of the UGC/ICAR while implementing the revised UGC scale of pay for Agricultural Universities, and in the terms and conditions of the Government orders time to time issued by the department of Agriculture of the State Govt., it has been the consistent policy that ICAR guidelines will be followed. Further ICAR has clearly directed the Agricultural Universities that it will not bear any burden on account of Time Bound Promotion to the teachers appointed/deputed even for ICAR funded Schemes." The said order dated 19-3-1996 of the Chancellor also recorded that it was subject to the decision in the Appeal (LPA No. 35/94) pending against the order of the learned Single Judge dated 17-3-1994. The said Letters Patent Appeal ....
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....ed. 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 the respondents are entitled to the benefit of Time-Bound Promotion Scheme under the notification dated 4-9-1991. 8. Section 35 of the Act deals with and enumerates the topics on which statutes can be framed by the University. Section 35(25) provides that subject to the provisions of the Act, the Statutes may provide for the conditions of service, remuneration and allowances to be paid to teachers employed under the University. Section 36 of the Act provides how statutes are to be made. It is extracted below : "36. Statutes how made : (1) the Board of Management may, from time to time, make new or additional statutes or may amend or repeal the statutes in the manner hereinafter provided in this section. Provided that the Board of Management shall not make any Statute or any amendment to a St....
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....ss 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 held that the Statute proposing the time-bound promotion scheme was still-born and non-est. 10. The learned counsel for the respondent contended that the requirement in section 36 of the Act relating to publication in the official Gazette should, contextually be considered as directory and not mandatory. He submitted that there was a significant difference between the requirement of assent of the Chancellor for a statute under sub-section (2) of Section 36 and the requirement relating to publication of the statute in the official Gazette under sub-section (4) of Section 36. He pointed out that sub-section (3) made it clear that in the absence of assent by the Chancellor under sub-section (2), th....
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....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 deal with topics which fall in public domain, affecting or relevant to general public, for example, item (4) of Section 35 relates to classification, qualification and manner of appointment of teachers and other non-teaching staff. Item (9) relates to the manner of appointment and selection of officers other than Vice-Chancellor, and their powers, terms and conditions of service. Item (16) relates to entrance or admission of students to a University and their enrolment and continuance as such and the conditions and procedure for dropping student from enrolment. Item (17) relates to fees which may be charged by a University. Item (21) relates to maintenance of discipline among students of ....
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....rocess 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 bottlenecks and impeding smooth flow of traffic. The object of declaring the street to be a One-way Street may be to ease the traffic and provide road safety and traffic discipline. But once the street is declared to be a one-way, a car driver charged with the offence of driving on the wrong way, cannot defend his wrong act by contending that when he was going the wrong way, there was not much traffic on the road, and therefore, there was no need for the street to be a one-way and the declaration of the street as one-way should be treated as directory or optional. Once the street is declared to be a one-way street, even if there is no heavy traffic, vehicle drivers should use it as one-....
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....rescribes 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 confined to small local areas. In such cases, publication or promulgation by other means may be sufficient." 15. The decision of this Court in I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, AP - 1996 (6) SCC 634, also throws considerable light on this issue, in that case, Section 11 of the Andhra Pradesh Non-Agricultural Land Assessment Act, 1963, conferred upon the government the power to exempt any class of non-agricultural land from the levy by an order published in the Andhra Pradesh Gazette. The state government issued GOM No. 201 dated 17-12-1976, providing certain exemptions including exemption from non-agricultural land assessment, by way of an....
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....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 rule of promissory/equitable estoppel. Accepting such a plea would amount to nullifying the mandatory requirements of law besides providing a licence to the government or other body to act ignoring the binding provisions of law. Such a course would render the mandatory provisions of the enactment, meaningless and superfluous. Where the field is occupied by an enactment the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a l....