9911796707
TMI Blog1968 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by G.O.Ms. No. 1257, dated 3rd June, 1960. In exercise of the powers conferred by the proviso to Article 308 of the Constitution, by G.O.Ms. No. 660, dated 31st March, 1961, the Governor of Andhra Pradesh made rules constituting the posts of Deputy Transport Commissioners as a distinct category in the Andhra Pradesh Transport Service and making the general and special rules applicable to that service applicable to persons holding the posts of Deputy Transport Commissioners. It was expressly stated in rule (2) that appointment to the post of Deputy Transport Commissioners shall be made by promotion from among the Assistant Secretaries, State Transport Authority, or the Regional Transport officers . Rule 2 (A) also provided that promotion shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. G.O. Ms. No. 660 was superseded by G.O.Ms. No. 1238, dated 28th June, 1963. This was also issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution. By this G.O. the General and Special Rules applicable to holder of permanent post of Secretary, State Transport Authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed which is in the same terms as rule 3(c) of the previous Rules. The omission of any provision corresponding to old rule 3(c) and the later amendment introducing such a provision resulted in the position, that in the interregnum, the post of Deputy Transport Commissioner was not a selection post and during that period promotion to that post could only be made under the general provision contained in rule 34(b)(ii) of the Andhra Pradesh State and Subordinate Service Rules, Part II. Rule 34(b) is as follows : Promotion to selection category or grade--Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. (ii) Promotions according to seniority--All other promotions shall, subject to the provisions of rule 16, be made in accordance With the seniority unless-- (1) the promotion of a member has been withheld as a penalty; or (2) a member is given special promotion for conspicious merit and ability. 3. The promotion of the third respondent was on 24th March, 1967, i.e. subsequent to the date of G.O.Ms. No. 375 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, whether rules made under Article 309 of the Constitution of India take effect from the date of the Government Order or from the date of publication in the Official Gazette. 5. The Constitution of India does not contain any provision determining the precise point of time at which rules made under Article 309 come into effect. The General Clauses Act, 1898, which by Article 367 of the Constitution has been made to apply to interpret the Constitution does not also contain any provision regarding the time when rules made under various enactments take effect. The difficulty and the uncertainty created by want of suitable provision in the General Clauses Act has been noticed by the Supreme Court in State of Maharashtra v. Mayer Hans George (1965) 35 Comp. Cas. 557 : (1966) M.L.J. (Crl.) 248 : (1966) 1 S.C.J. 363 : (1965) 1 S.C.R. 123 : A.I.R. 1965 S.C. 722. In that case the question arose whether the accused could be held to have contravened a notification, dated 8th November, 1962 and published in the Official Gazette on 24th November, 1962 prohibiting the bringing into India of any gold coin, gold bullion, gold sheets or gold ingot. The notification was made under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in the Act. We consider that it would be conducive to clarity as well as to the avoidance of unnecessary technical objections giving occasion for litigation if an enactment on the lines of the U.K. Statutory Instruments Act, 1946 were made in India either by an amendment of the General Clauses Act or by independent legislation keeping in mind the difficulties of construction to which the U.K. enactment has given rise. 6. Notwithstanding the difficulty pointed out by the Supreme Court, since the question has squarely arisen in this case, I have to answer it and I shall proceed to do so as well as I can. 7. Law, whether Parliamentary or Subordinate, demands compliance and those that are governed must therefore 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 on from the standpoint of Justice Holmes's 'Unconscientious bad man.' The path of Law to Harvard Law Review 457, 459. seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. Parliamentry legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of the resolution was sufficient to make it law. Vivian Bose, J., with whom agreed Mahajan, J., was of the emphatic opinion that it was not. He observed:-- In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which ever their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omatic cogency of a Statute which has received the royal assent'. But Bailhache, J., was dealing with a case of delegated legislation and not Parliamentary legislation and did not claim for the rule laid down by him, universal applicability. Johnson v. Sargant L.R. (1918) 1 K.B. 101 has, however been cited without reservation by both Maxwell (Interpretation of Statutes, 11th Edition, page 397) and Craies (Statute Law, 6th Edition, page 302). 13. The Supreme Court quoted Bailhache, J., with approval in Harla v. State of Rajasthan (1951 S.C.J. 735 : (1952) S.C.R. 111 : A.I.R. 1951 S.C. 467. In State of Maharashtra v. Mayer Hans George (1966) M.L.J. (Crl.) 248 : (1966) 1 S.C.J., Rajagopala Ayyangar, J., while observing that he saw great force in Sir C.K. Allen's comment on the reasoning of Bailhache, J., did not however dissent from it. The learned Judge was content to say that even adopting the view of Bailhache, J., the notification in question had been brought to the notice of all concerned by publication in the Gazette. 14. In Simms Motor Units v. Minister of Labour (1946) 2 All E.R. 201 pursuant to general instructions given by the Minister, the National Service Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an excuse upon a charge of contravention of the section. Their Lordships are unable to accept this contention. In their Lordships' opinion, even if the making of the order by the Minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede), the maxim cannot apply to such a case as the present where it appears that there is in the State of Singapore no provision, corresponding, for example, to that contained in section 3(2) of the English Statutory Instruments Act of 1946, for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate enquiry to find out that 'the law' is. In this connection it is to be observed that a distinction is drawn in the Ordinance itself between an order directed to a particular individual on the one hand and an order directed to a class of persons of the other; for sub-section (3)(b) of section 9 provides in the latter case both for publication in the Gazette and presentation to the Legislative Assembly. 15. In State of Maharashtra v. Mayer Hans George (1966) M.L.J. (Crl.) 248 : (196 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
