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1981 DIGILAW 420 (ALL)

Govind Swaroop v. Adhyaksh Zila Parishad, Mathura

1981-05-08

M.WAHAJUDDIN, YASHODA NANDAN

body1981
JUDGMENT Yashoda Nandan, J. - The petitioner is an employee of Ksbettra Samitis and Zila Parishad, At the time of his recruitment according to the Rules then applicable to him his age of superannuation was 60 years. By means of the impugned notification Rules have been framed in exercise of powers under Section 237 of the U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter referred to as the Act) reducing the age of superannuation of an employee of Zila Parishad to 58 years. 2. Learned counsel appearing for the petitioner contends that since the rules have not been laid before the Houses of the State Legislature as required by Section 237, sub-section (3) of the Act they have not come into force and become effective and cannot operate so as to reduce the age of superannuation which was applicable to him when he entered service. Sub-section (1) of Section 237 runs as follows : "The State Government may be notification in the Gazette make rules consistent with this Act in respect of any matter or matters for which the power of making rules is expressly or by implication, confessed by the Act, and may also make rules which are otherwise requisite for carrying out the purposes of this Act." 3. Reliance has been placed by the learned counsel for the petitioner on sub-section (3) of Section 237 which is in the following terms: - "All rules made under this Act shall, as soon as may be after they are made be laid before each House of the State Legislature while it is in session for a total period of thirty days extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette, subject to such modifications or annulments as the two houses of the State legislature may during the said period agree to make, so however that any such modification or annulment shall be without prejudices to the validity of anything previously done thereunder." 4. The legislature in clear terms empowers the State Government to make rules under sub-section (1) of Section 237. The legislature in clear terms empowers the State Government to make rules under sub-section (1) of Section 237. It is well established that the legislative processes is complete as far as enactments are concerned when the President or the Governor as the case might be has accorded his assent to a Bill as passed by the Legislatures or Legislature empowered to do so and has been promulgated by publication in the Gazette. They come into force as soon as published unless some other date is specified for that purpose in the facts themselves. Similarly the legislative procedure is complete as soon as the delegate designated by the legislature in the Parent Act has framed a subordinate legislation and it has been duly promulgated. It comes into force with effect from the date of its publication unless its commencement is postponed to some other specified date or commencement is made dependent by the legislature itself on its approval. The legislature may either entrust its delegate without any reservations with the power to frame subordinate legislation as longs as it keeps within the parameters laid down by it may retain for itself the power to scrutinise and approve it before it becomes a binding rule of conduct for those concerned. 5. Sub-section (1) of Section 237 gives the State Government the power to frame rules. The language employed in sub-section (3) of Section 237 of the Act does not-.provide that the rules shall be ineffective till such time as they have been approved by the Houses of the State legislature. The sub section in unambiguous terms states that rules made under sub-section (1) shall take effect from the date of their publication in the official Gazette. The Rules as notified are to be effective but are subject to such modifications or annulments as the legislature might choose to make later. The last clause of sub-section (3) of Section 237 makes it evident that the rules become operative immediately after they are published in the Gazette of with effect from the date pacified therein and in the event of their being annulled modified subsequently any action taken under the rules prior to the modification or annulment shall be saved. 6. The last clause of sub-section (3) of Section 237 makes it evident that the rules become operative immediately after they are published in the Gazette of with effect from the date pacified therein and in the event of their being annulled modified subsequently any action taken under the rules prior to the modification or annulment shall be saved. 6. In M/s Atlas Cycle Industries Ltd. and others v. The State of Haryana, 1 (1979) 2 SCC 196 ] the Supreme Court was called upon to consider the question as to in what circumstances the requirement of rules framed by subordinate law making authorise being laid before the legislatures is a condition precedent ;o their legal effectiveness. Delivering the judgment of the Court, Jaswaut Singh, J. categorised such subordinate legislations into three classes as follows : - "(1) Simple laying. (2) Negative resolution. (3) Affirmative resolutions." While discussing the second category it was observed that: "Instruments so laid have immediate operative effect but are subject to a new instrument being made. The phraseology generally used is subject to annulment in pursuance of a resolution of" either House of Parliament. This is by far the comments form of laying. The acts mostly as a deterrent and sometimes forces a Minister (In Sir Cecil Carr's phrase) to buy off opposition' by promising some modification." 7. Section 9 of the Parks Regulations Act, 1972 which came up for interpretation in Bailey v. Williamson, [LR 1872-73 8, QB 118 rans as follows : - "Any rule made in pursuance of the first schedule to this Act shall be forthwith laid before Houses of Parliament, if Parliament be sitting, or if not then within three weeks after the De ginning of the then next ensuing session of Parliament; and if any such rules shall be disapproved of by either House of Parliament within one month after the same shall filed been so laid before Parliament, such rules or such parts thereof as shall be disapproved of shall not be enforced." Rejecting the contention that since Section 2 bad not been complied with and the rules in question bad not been placed before the Parliament they had not become operative Blackburn, observed as follows : - "But, then, there is Section 9 which involves rules being laid before Parliament, which involves a point that was, I think, properly raised, and is a plausible point to be considered. It is quite clear that in giving the power to the Commissioner to make rules of that sort, which would afterwards be enforceable by penalty, legislature might very reasonably and properly have done one of two things. They might have said, inasmuch as there is-a long parliamentary recess, there is a period of near six months when Parliament is not sitting, you, the Commissioners of Works, may make rules for the protection of the public during those six months, and they shall be enforced from the time they are made, but we reserve to ourselves this, that you shall lay them before Parliament as soon as Parliament meets, and then, if either House of Parliament expresses their disapproval of them, they shall no longer be enforced. In other words, the disapproval by Parliament shall be what is technically called a condition subsequent, annulling the rules which have already been made. That would be perfectly intelligible and sensible. Or the legislature might have said this." We will not trust, you, the Commissioners of Works, further than this, you may prepare rules, but those rules shall have not effect until they have been laid for a month on the table of the Houses of Parliament, so that we may see whether we will approve them or not, we will not trust you further than that, and consequently we will make this period of a month elapsing a condition precedent to the rules having any force. Either of those things might have been done. Each has been enacted in other Acts of Parliament. The question is, which of the two this 9th section expresses ? "It says : Any rule made in pursuance of the first schedule to this Act shall be forthwith laid before both Houses of Parliament if Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session of Parliament. Here, it is to be observed, a rule had been made and had been published under the seal of the Commissioners, and had been printed by the Queen's printers. Six months might elapse during the interval before Parliament met before it would be possible to lay it before them. Then the section goes on. Here, it is to be observed, a rule had been made and had been published under the seal of the Commissioners, and had been printed by the Queen's printers. Six months might elapse during the interval before Parliament met before it would be possible to lay it before them. Then the section goes on. And if any such rules shall be disapproved of by either House of Parliament within one month after the same shall have been so laid before Parliament, such rules or such parts thereof as shall be disapproved of, shall not be enforced. If it had been said in express words shall not thereafter be enforced, the case would have admitted of no possible argument. It shall not be enforced, not putting in the word thereafter." The question does that mean that the rule which had been made and published shall not be enforced ab nitio, and that this laying before Parliament shall be made a condition precedent ? "can only say that it does not seem to me to be the intention expressed by the legislature. I think the legislature has expressed the intention that the rules shall be made, and an intention that if after the period limited Parliament expresses its disapproval it shall cease to be a rule but it is to be a rule up to that time, and as such, any transgression of it may be punished by a summary conviction under Section 4." 8. The language employed in Section 237, sub-section (3) is much clearer and leaves no room for doubt that the rules became effective as soon as they have been published in the Gazette. The mere fact that though till now they have not been placed before the Legislature does not effect their legality. If and when the legislature chooses to modify or annul such provisions as are modified or annulled shall cease to be operative to the extent of the annulment or modification. 9. Learned counsel appearing for the petitioner contends that the provision is mandatory and consequently the failure to follow the prescribed precedent under sub-section (3) of Section 237 affects the legality of the rules. To our mind there is no force in this contention. Assuming that the requirement of sub-section (3) of Section 237 is mandatory, there is no prayer for a mandamus directing the Mate Government to place the rules before the legislature 10. To our mind there is no force in this contention. Assuming that the requirement of sub-section (3) of Section 237 is mandatory, there is no prayer for a mandamus directing the Mate Government to place the rules before the legislature 10. For the reasons we find no merit in this petition which is hereby dismissed.