http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

             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