Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6937 OF 2004

Rajendra Agricultural University … Appellant

Vs.

Ashok Kumar Prasad & Ors. … Respondents

WITH

CA Nos.6933, 6934, 6935, 6936 & 6938 of 2004

J U D G M E N T

R.V.RAVEENDRAN, J.

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  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  

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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.

3. Feeling aggrieved, the Rajendra Agricultural University Shikshak  

Manch,  an  association  of  teachers,  filed  a  writ  petition  (CWJC  

No.9622/1992)  challenging  the  said  order  dated  6.2.1992  of  the  

Chancellor, and seeking directions to the University to consider the cases  

of its members  for promotion in terms of the additional statute as per  

Notification dated 4.9.1991. A learned Single Judge of the Patna High  

Court by order dated 17.3.1994 held that the notification dated 4.9.1991  

relating to the additional statute did not come into effect as it  was not  

published in the official gazette and therefore, no right could be claimed  

on the basis of such unpublished statute. The writ petition was therefore  

dismissed  with  a  clarification  that  the  impugned order  dated  6.2.1992  

being an interim order, the dismissal of the writ petition would not come  

in the way of the Chancellor taking appropriate final decision on the issue  

in accordance with law.  Two writ petitions filed before the Ranchi Bench  

of the High Court [CWJC No.3096 of 1992 (R) and CWJC No.2740/1995  

(R)] were disposed of with a direction that the issue raised by the writ  

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petitioners  may  be  considered  and  decided  by  the  Chancellor  after  

hearing the parties.  

4. Thereafter,  the Chancellor considered the representations,  gave a  

hearing and made an order dated 19.3.1996 holding that the Statute was  

still-born, non est and never came into force for want of publication in the  

official Gazette required under section 36 of the Act. The said 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.

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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 was subsequently dismissed by a Division Bench of the  

High Court on 11.9.1997, holding that the Teachers association was not  

entitled to maintain a writ  petition relating to a service dispute  of  the  

university  employees.  Liberty  was  however  reserved  to  the  individual  

teachers to seek relief, if they were aggrieved.  

5. Thereafter,  several  individual  teachers  filed  writ  petitions  

challenging  the  order  dated  19.3.1996  passed  by  the  Chancellor,  and  

seeking  relief  in  terms  of  the  notification  dated  4.9.1991.  A Division  

Bench of the High Court allowed the batch of writ petitions filed by the  

respondents – teachers. It held that once the chancellor gave his assent to  

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a statute under section 36 of the Act, he did not have any power to recall  

the assent. It held that issuing a notification but refusing to publish the  

notification in the Gazette was improper and violative of the rule of law.  

The High Court also held that publication of the new statute in the official  

Gazette was only a formality, and when the Chancellor gave his assent to  

the  statute  framed  by  the  Board  of  Management,  a  vested  right  was  

created in the teachers employed by the University to receive time bound  

promotions in terms of the said statute and it could not be denied to them.  

The High Court therefore declared that even though the notification dated  

4.9.1991 containing the amendment to the statute, was not published in  

the  official  Gazette,  the  teachers  are  entitled  to  the  benefit  under  the  

notification, with effect from 1.4.1987, as per the 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  

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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  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:  

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”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  Statute  affecting  the  statutes,  powers  or  constitution of any existing authority until such authority has been  given an opportunity of expression on opinion on the proposal and  any opinion so expressed shall be in writing and shall be considered  by the Board of Management;  

Provided  further  that  no  Statute  shall  be  made  by  the  Board  of  Management  affecting  the  discipline  of  instruction  education  and  examination except after consultation with the Academic Council.  

(2) Every  new  Statute  or  addition  to  the  Statute  or  any  amendment or repeal of a Statute shall require the approval of the  Chancellor, who may assent thereto or withhold assent or remit the  same to the hoard of Management for reconsideration.  

(3) A new Statute or a Statute amending or repealing an existing  Statute  shall  have  no  validity  unless  it  has  been  assented  by  the  Chancellor.  

(4) All  Statutes  made under this Act shall  be published in the  official Gazette.”

The Bihar and Orissa General Clauses Act, 1917, defines a notification as  

“a notification in the Gazette.”  [Vide clause (36) of section 2]. Section  

28 of the said General Clauses Act provides :  

“28. Publication of orders and notifications in the Gazette : Where  in any Bihar and Orissa Act or Bihar Act or any rule made under any  such Act, it  is directed that any order, notification or other matter  shall be notified or published, such notification or publication shall,  unless the Act otherwise provides, be deemed to be duly made if it is  published in the Gazette.”

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9. Section 36 lays down three steps for making or amending a Statute.  

They 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’  

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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), the Statute was not valid. Thus,  

the  consequence  of  non-compliance  with  the  requirement  relating  to  

assent of the Chancellor was specified in the section itself. On the other  

hand, though sub-section (4) of section 36 requires that the statute should  

be published in the official gazette, there is no provision similar to sub-

section  (3)  providing  that  the  statute  will  not  be  valid  unless  it  is  

published  in  the  official  Gazette.  He  therefore  contended  that  the  

requirement relating to assent of the Vice-Chancellor to the statute was  

mandatory, but publication in the official Gazette was only directory.   

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11. The learned counsel for the respondents admitted that the purpose  

of publication of a sub-ordinate legislation in the official gazette is to give  

publicity to the notification and to provide  authenticity to the contents of  

that notification in case some dispute arises with regard to its contents.  

But he submitted that if a sub-ordinate legislation imposed obligations, or  

created liabilities,  or  required performance  of  duties,  and provided for  

penalties for non-performance, its publication in the Gazette will have to  

be considered to be mandatory, as no one can be expected to perform  

duties and obligations nor be subjected to punishments, unless they had  

knowledge of such provisions; and therefore, there was a mandatory need  

to notify such sub-ordinate legislation to the public and publication in the  

Gazette is deemed to be notice to all concerned. But on the other hand, if  

the order or notification is intended to benefit only a specific and limited  

class of persons, say employees of a particular organisation, it may be  

sufficient to inform or notify the beneficiaries 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  

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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 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  

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(17) relates to fees  which may be charged by a University.  Item (21)  

relates to maintenance of discipline among students of a University. Item  

(26)  relates  to  conditions  and mode of  appointment  and the  duties  of  

examining bodies and examiners. Any person interested in appointment  

in the University service as a teacher or non-teaching staff or officer is  

entitled  to  know  the  qualifications  prescribed  for  the  post  and  the  

manner/mode of selection and appointment. The students or prospective  

students  are  entitled  to  know the  fees  which  may  be  charged  by  the  

University. The statute made for maintenance of discipline amongst the  

students concerns the large body of the student community which keeps  

changing  periodically.  If  the  Statutes  made  on  these  topics  are  not  

published in the Official Gazette, the concerned persons may never come  

to know about them. Therefore, the provision contained in Section 36(4)  

requiring publication of Statutes in the Official Gazette, which applies to  

all statutes framed by the University, has to be treated mandatory. 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 publication in the Official  

Gazette, to that statute  in the absence of an exception in Section 36(4) of  

the Act.

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13. The question can be looked at from another perspective also. The  

contentions  urged  by  the  respondents  may  be  good  grounds  for  the  

legislature to conclude that there need not be a provision in the Act for  

publication in the official Gazette, when they relate to a small section of  

employees  of  the  University  and  consequently,  amend  Section  36(4)  

providing  for  a  simpler  mode  of  publication  in  such  cases.  But  the  

contentions are not relevant grounds for 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  

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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-way street. The remedy if any is  not to treat the requirement as directory or optional, but to  require the authority concerned to restrict the declaration to  peak hours.  

14. In  B. K. Srinivasan vs. State of Karnataka -   1987 (1) SCC 658,  

this Court explained why publication in the Gazette was mandatory and  

necessary in regard to sub-ordinate legislations :  

“There  can  be  no  doubt  about  the  proposition  that  where  a  law,  whether  Parliamentary or  subordinate,  demands compliance,  those  that are governed must be notified directly and reliably of the law  and  all  changes  and  additions  made  to  it  by  various  processes.  Whether  law is  viewed  from the  standpoint  of  the  'conscientious  good man'  seeking to abide by the law or from the standpoint  of  Justice  Holmes's  'Unconscientious  bad  man'  seeking  to  avoid  the  law, law must be known, that is to say, it must be so made that it can  be known. We know that delegated or subordinate legislation is all  pervasive  and  that  there  is  hardly  any  field  of  activity  where  governance by delegated or subordinate legislative powers is not as  important if not more important, than governance by Parliamentary  

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legislation.  But unlike Parliamentary Legislation which is publicly   made,  delegated  or  subordinate  legislation  is  often  made,   unobtrusively  in  the  chambers  of  a  Minister,  a  Secretary  to  the   Government  or  other  official  dignitary.  It  is,  therefore,  necessary  that  subordinate  legislation,  in  order  to  take  effect,  must  be   published or promulgated in some suitable manner, whether such  publication or promulgation is prescribed by the parent statute or   not.  It  will  then  take  effect  from the  date  of  such  publication  or  promulgation.  Where  the  parent  statute  prescribes  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  confined  to  small  local  areas.  In  such  cases  publication  or  promulgation by other means may be sufficient.”

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15. The decision of this Court in I.T.C. Bhadrachalam Paperboards  

vs.  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 incentive and concession to industries to be  

established in certain schedule areas, the object being to provide rapid  

industrialisation  of  those  backward  areas.  The  said  order  was  not  

published in the official gazette. One of the questions considered by this  

Court was whether the Government Order which did not comply with the  

mandatory requirement of publication in the Gazette could be relied on  

by  person  who  acted  upon  it,  to  invoke  the  principle  of  promissory  

estoppel  against  the  government  and  claim  the  benefit  under  the  

government  order  on  the  ground  that  it  contained  a  promise  or  

representation held out by the government to the members of the public.  

This Court held that the requirement under section 11 of the Act relating  

to publication of the government order in the Gazette, was mandatory and  

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that where an enactment requires an act (making a government order) to  

be done  by the government only in the manner prescribed therein, then  

non-compliance with the mandatory statutory requirement will make the  

act  (making  of  a  government  order)  invalid  and  consequently,  the  

government order cannot be considered as a valid and binding one, nor as  

a representation held out by the government, creating any right to seek  

the  benefit  of  that  government  order  by  invoking  the  principle  of  

promissory estoppel against the government. This Court held :  

“30.  Sri  Sorabjee  next  contended  that  even  if  it  is  held  that  the  publication in the Gazette is mandatory yet G.O.Ms. No. 201 can be  treated  as  a  representation  and  a  promise  and  inasmuch  as  the  appellant had acted upon such representation to his detriment,  the  government  should  not  be  allowed  to  go  back  upon  such  representation. It is submitted that by allowing the government 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 to  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  

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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 law made by a competent Legislature, the executive can act in  its executive capacity since the executive power of the State extends  to matters with respect to which the Legislature of a State has the  power  to  make  laws  (Article  162  of  the  Constitution).  The  proposition urged by the learned Counsel for the appellant falls foul  of our constitutional scheme and public interest. It would virtually  mean that the rule of promissory estoppel can be pleaded to defeat  the provisions of law whereas the said rule, it is well settled, is not  available against a statutory provision. The sanctity of law and the  sanctity of the mandatory requirement of the law cannot be allowed  to be defeated by resort to rules of estoppel. None of the decisions  cited  by  the  learned  Counsel  say  that  where  an  act  is  done  in  violation of a mandatory provision of a statute, such act can still be  made  a  foundation  for  invoking  the  rule  of  promissory/equitable  estoppel. Moreover, when the government acts outside its authority,  as  in  this  case,  it  is  difficult  to  say  that  it  is  acting  within  its  ostensible authority.

16. In view of the above, it is not possible to accept the contention that  

the statute contained in the notification dated 4.9.1991 came into effect or  

became enforceable  even in  the  absence of  publication  in  the  official  

Gazette. The High Court committed an error in holding that the teachers  

became  entitled  to  the  benefit  of  the  statute  relating  to  time-bound  

promotion  scheme,  when  the  said  statute  made  by  the  Board  of  

Management was assented to by the Chancellor even though it was not  

published in  the  Gazette.  The  High Court  also  committed  an  error  in  

observing that the non-publication was unreasonable and arbitrary, as it  

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ignored the valid reasons assigned by the Chancellor for withdrawing his  

assent to the incomplete statute, in his order dated 19.3.1996.  

17. We therefore allow these appeals, set aside the order of the High  

Court and dismissed the writ petitions filed by the respondents before the  

High Court.   

…………………….J [R. V. Raveendran]

…………………..J [G. S. Singhvi]

New Delhi;  November  30, 2009  

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