BHAGWANBHAI R. JADAV v. DISTRICT DEVELOPMENT OFFICER
2002-12-09
R.M.DOSHIT
body2002
DigiLaw.ai
R. M. DOSHIT, J. ( 1 ) HEARD the learned advocates. ( 2 ) BOTH these petitions raise identical questions of law in similar set of facts. These petitions are, with the consent of the learned advocates, disposed of by this common judgment and order. ( 3 ) PETITIONERS in both these petitions are Talatis-cum-Mantri, appointed under the District Panchayat, Ahmedabad. At the relevant time all the petitioners were posted at villages situated in Dehgam Taluka of Ahmedabad District. On 2 4/09/1997, the Government issued Notification whereunder certain districts were reconstituted. As far as the Ahmedabad and the Gandhinagar Districts are concerned, the said Districts were reconstituted so as to include Dehgam Taluka (then under the Ahmedabad District) in Gandhinagar District and to exclude Dehgam Taluka from Ahmedabad District. The said alteration came into effect on 2nd October, 1997. Pursuant to the said alteration in the limits of Ahmedabad District and Gandhinagar District, some Talatis-cum-Mantri serving in Ahmedabad District Panchayat were transferred to and absorbed in service of Gandhinagar District Panchayat. ( 4 ) THE petitioners have claimed that at the relevant time the petitioners were the Talatis-cum-Mantri who were posted at villages in Dehgam Taluka and, as such with the transfer of territory of the Dehgam Taluka to Gandhinagar District, the services of the petitioners also ought to have been transferred to Gandhinagar District. The petitioners had also given their options to be transferred to Gandhinagar District. However, the District Development Officer, Ahmedabad has, without the authority of law, allocated some 44 Talatis-cum-Mantri from Ahmedabad District Panchayat to Gandhinagar District Panchayat to be permanently absorbed in Gandhinagar District Panchayat excluding the petitioners. Feeling aggrieved, one of the petitioners ( i. e. petitioner in Special Civil Application No. 12594/2001) preferred Special Civil Application No. 9265/2001. The said petition was disposed of by this Court (Coram: Kundan Singh, J.) on 10/10/2001. Under the said order, the District Development Officer, Ahmedabad was directed to consider and decide, in accordance with law, the representations of the petitioner and of other similarly situated Talatis. It appears that pursuant to the said direction the representations made by the petitioner and some other Talatis were considered by the District Development Officer. Under order dated 13th December, 2001 he directed that the 44 Senior Talatis-cum-Mantri be allocated to Gandhinagar District Panchayat and 25 Junior Talatis-cum-Mantri be repatriated to Ahmedabad District Panchayat.
It appears that pursuant to the said direction the representations made by the petitioner and some other Talatis were considered by the District Development Officer. Under order dated 13th December, 2001 he directed that the 44 Senior Talatis-cum-Mantri be allocated to Gandhinagar District Panchayat and 25 Junior Talatis-cum-Mantri be repatriated to Ahmedabad District Panchayat. The petitioners are the persons amongst those 25 Talatis-cum-Mantri who have been ordered to be repatriated to Ahmedabad District Panchayat. Feeling aggrieved, the petitioners have preferred the present petitions. ( 5 ) IT appears that pursuant to the above referred Government Notification dated 24/04/1997, on 26th November, 1998, the State Government made an order. Under the said order, the posts sanctioned for Dehgam Taluka were, in the public interest, allocated to Gandhinagar District Panchayat. The Government also transferred the services of the persons named thereunder to Gandhinagar District Panchayat, to be permanently absorbed in Gandhinagar District Panchayat, on the terms and conditions mentioned therein. The said order does not refer to the cadre of Talati-cum-Mantri nor the service of any of the petitioners herein was transferred to Gandhinagar District Panchayat. Pursuant to the said order of 26/11/1998, the District Collector made order on 3/12/1998 allocating the services of the persons named therein to Gandhinagar District Panchayat. Consequently, the District Collector, Gandhinagar, on 7/12/1998, made order giving posting to the officers allocated under the order of 3rd December, 1998. Neither of these orders is relevant since the same do not pertain to any person in the cadre of Talati-cum-Mantri. Under Government Resolution dated 5/01/2000, the State Government issued general instructions for allocation of staff on reconstitution of districts. The said Resolution is also not relevant for the purposes of these petitions. So far as the cadre of Talati-cum-Mantri is concerned, it appears that under order dated 21/10/1999 the service of all the Talatis-cum-Mantri serving in Dehgam Taluka was transferred to Gandhinagar District Panchayat as loan service. Options were invited from the Talatis serving in Ahmedabad District Panchayat and were considered. While considering such options, the petitioner in Special Civil Application No. 9265/2001 (the petitioner in Special Civil Application No. 12544/2001) was, pursuant to the order dated 10/10/2001 made by this Court in Special Civil Application No. 9265/2001, given notice of hearing on 2/11/2001.
Options were invited from the Talatis serving in Ahmedabad District Panchayat and were considered. While considering such options, the petitioner in Special Civil Application No. 9265/2001 (the petitioner in Special Civil Application No. 12544/2001) was, pursuant to the order dated 10/10/2001 made by this Court in Special Civil Application No. 9265/2001, given notice of hearing on 2/11/2001. Under order dated 13th December, 2001 made by the District Development Officer, Ahmedabad, the options given by 44 senior Talatis-cum-Mantri were accepted and the said 44 Talatis-cum-Mantri were allocated to Gandhinagar District Panchayat for permanent absorption. The Talatis-cum-Mantri whose service was earlier transferred to Gandhinagar District Panchayat as loan service were repatriated to Ahmedabad District Panchayat. Hence, the petitions. ( 6 ) THE petitioners have challenged the orders of the District Development Officer, Ahmedabad District Panchayat made on 21/10/1999, 26/04/2000, 1/11/2001 and 13/12/2001. The order dated 2 1/10/1999 appears to be the order of the District Development Officer, Ahmedabad transferring the services of the petitioners and other Talatis to Gandhinagar District Panchayat as loan service. The order dated 26/04/2000 appears to be the order of the District Development Officer, Ahmedabad District calling upon all the Talatis-cum-Mantri serving in Ahmedabad District Panchayat to give their options either to continue in Ahmedabad District Panchayat or to be transferred to Gandhinagar District Panchayat. The order dated 1st November, 2001 appears to be the order of allocation of posts of Circle Inspector and Talati-cum-Mantri to Gandhinagar District Panchayat. Neither of these three orders is placed on records of either of these two petitions. The petitioners have also challenged the Government Resolutions dated 5th January, 2000 and 19th June, 2000. ( 7 ) MR. PARMAR has submitted that Section 264 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the Act) enjoins upon the State Government, where there is an alteration in the limits of any district or taluka, inter alia, to make order of allocation of the servants of such district or taluka. The order made under Section 264 of the Act is required to be published in the Official Gazette. He has submitted that in the present case the petitioners were the Talatis-cum-Mantri serving in Dehgam Taluka, the State Government, therefore, was under a duty to transfer the service of the petitioners to Gandhinagar District Panchayat in exercise of powers conferred under the said Section 264. The State Government, however, has abdicated its powers.
He has submitted that in the present case the petitioners were the Talatis-cum-Mantri serving in Dehgam Taluka, the State Government, therefore, was under a duty to transfer the service of the petitioners to Gandhinagar District Panchayat in exercise of powers conferred under the said Section 264. The State Government, however, has abdicated its powers. No such order has been made by the State Government. The impugned order dated 13/12/2001 has been made by the District Development Officer, who has no authority to make such order. Mr. Parmar has submitted that in the counter affidavit, it has been pointed out that powers to issue order under Section 264 of the Act have been delegated to the concerned District Development Officer. He has submitted that powers conferred under Section 264 of the Act are legislative in nature and can not be delegated. Even if it is assumed that the State Government could have delegated powers conferred under Section 264 of the Act, such delegation could have been made in favour of an officer of the State Government and not in favour of a District Development Officer. He has relied upon Section 271 of the Act and has submitted that it is the District Panchayat alone which has the authority to delegate powers to the District Development Officer. So, in his submission, the powers under Section 264 could not have been exercised by any authority other than the State Government. Assuming that the delegation of the said power is permissible, the said power could not have been delegated to the District Development Officer. Hence, the exercise of power by the District Development Officer under the impugned orders dated 1st November, 2001 and 13/12/2001 is ultra vires the statutory provisions and is null and void. Mr. Parmar has further submitted that any order made under Section 264 of the Act requires to be published in the Official Gazette. In the present case, the impugned order dated 1 3/12/2001 has not been published in the Official Gazette. The said order, therefore, can not be said to have come into effect. Therefore also, it is vitiated. Mr. Parmar has also submitted that the employees of Ahmedabad District Panchayat actually serving in the Dehgam Taluka alone could have been allocated to Gandhinagar District Panchayat.
The said order, therefore, can not be said to have come into effect. Therefore also, it is vitiated. Mr. Parmar has also submitted that the employees of Ahmedabad District Panchayat actually serving in the Dehgam Taluka alone could have been allocated to Gandhinagar District Panchayat. Otherwise, an anomalous situation would arise i. e. while performing duties for Dehgam Taluka, the petitioners would be serving under Gandhinagar District Panchayat but would be considered to be the servants of Ahmedabad District Panchayat and would be drawing salary from Ahmedabad District Panchayat. Such a situation can not be permitted to arise. At last, Mr. Parmar has submitted that the impugned order dated 1 3/12/2001 is contrary to the instructions issued by the State Government in its communication dated 10th April, 2001 (page 104 in Special Civil Application No. 40/2002 ). ( 8 ) IN support of these arguments, Mr. Parmar has relied upon the judgments of the Honble Supreme Court in the matters of BALASINOR NAGRIK COOPERATIVE BANK LTD. V/s. BABUBHAI SHANKERLAL PANDYA AND ORS. [ (1987)1 S. C. C. 606]; of DIVISIONAL MANAGER, A. P. SRTC V/s. VONDI K. RAMBABU AND ORS. [ (2000)9 S. C. C. 270]; of J. N. GANATRA V/s. MORVI MUNICIPALITY, MORVI [ (1996)9 S. C. C. 495]; of JAIKISHAN JAGWANI AND ORS. V/s. BRITOMATICS ENTERPRISES P. LTD. AND ORS. [1987 (SUPP) S. C. C. 72]; and of THE OFFICIAL LIQUIDATOR V/s. DHARTI DHAN (P) LTD. [ (1977)2 S. C. C. 16] and of this Court in the matter of VORA FIDAALI BADRUDDIN MITHIBHARWALA V/s. THE STATE OF BOMBAY [1961 G. L. R. 343]. ( 9 ) IN the matter of Balasinor Nagrik Cooperative Bank Ltd. (supra), it is held that ". . . It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section. " ( 10 ) IN the matter of Vora Fidaali Badruddin Mithibharwala (supra), Mr. Parmar has particularly relied upon the quote from the judgment of the Honble Supreme Court in the matter of AMEER-UN-NISSA BEGUM V/s. MEHBOOB BEGUM [a. I. R. 1955 S. C. 352] reproduced at p. 380.
" ( 10 ) IN the matter of Vora Fidaali Badruddin Mithibharwala (supra), Mr. Parmar has particularly relied upon the quote from the judgment of the Honble Supreme Court in the matter of AMEER-UN-NISSA BEGUM V/s. MEHBOOB BEGUM [a. I. R. 1955 S. C. 352] reproduced at p. 380. In the said case, the question arose whether the firmans issued by the Nizam as the Ruler of the Hyderabad State were in the nature of legislative enactments or judicial Orders. The Honble Court observed that, "the Ruler was the fountain head of all judicial, legislative and executive authority, it is difficult to define precisely the boundaries which divide the various functions of the Ruler into legislative, executive or judicial acts. " ( 11 ) IN the matter of Divisional Manager (supra), the Honble Supreme Court, on the facts of the said case, held that ". . . Where relief is to be granted on merits, it can be moulded to meet the ends of justice. " ( 12 ) IN the matter of J. N. Ganatra (supra), the Honble Supreme Court has held that ". . . Where statute prescribes the manner in which power has to be exercised, the power must be exercised in that manner alone. " ( 13 ) IN the matter of Jaikishan Jagwani (supra), it has been held that ". . . Tentative observations made by court for limited purposes of the interlocutory proceedings would not create prejudice to the concerned party. " ( 14 ) IN the matter of Official Liquidator (supra), the order under challenge was one of stay of the proceedings under Section 446 (2) of the Companies Act. In an application made under Section 442 (b) of the said Act, the Court, considering the provisions contained in the said two sections, held that ". . . In fact, it is not quite accurate to say that the word "may", by itself, acquires the meaning of "must" or "shall" sometimes. This word, however, always signifies a conferment of power. That power may, having regard gard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises.
This word, however, always signifies a conferment of power. That power may, having regard gard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness. " ( 15 ) THE learned AGP Mrs. Sonal D. Vyas and Mr. J. M. Barot have contested the petitions. ( 16 ) SECTION 264 of the Act provides for consequences of alteration of limits of district or taluka. Sub-section (1) thereof provides, inter alia, that when the limits of a district, or as the case may be, of a taluka are, during the term of office of the members of the district panchayat or, as the case may be, the taluka panchayat, altered so as to- (a) include any area therein, or (b) exclude any area therefrom, the State Government may, by order published in the Official Gazette, provide for all or any of the matters enumerated therein. Clause (iv) thereof provides for "allocation of any officer or servant of the panchayat affected by the alteration of limits". ( 17 ) IN the submission of Mr. Parmar, the word "may" occurring in this sub-section has the meaning of "shall" or "must". In his submission, in case of alteration in the limits of any district or taluka, it is obligatory for the State Government to provide for the matters referred to in the said sub-section including allocation of officers or servants of the panchayat affected by the alteration of limits. ( 18 ) I am afraid, I can not agree with Mr. Parmar. ( 19 ) THERE is nothing in the entire section which should compel me to take a view that the powers conferred under Section 264 of the Act are mandatory and are not directory as they appear to be. The section merely enables the State Government to provide for the matters enumerated therein on occurring of an event (i. e. alteration in the limits of any district or taluka ).
The section merely enables the State Government to provide for the matters enumerated therein on occurring of an event (i. e. alteration in the limits of any district or taluka ). Thus, the said power can be invoked only in case the contingency named therein (i. e. alteration in the limits of any district or taluka) occurs. Further, the said power may be exercised if the exigency requires such power to be exercised. Hence, these are directory powers to be exercised according to the discretion of the State Government only in case the exigency requires such powers to be exercised. Similarly, allocation of any officer or servant of the panchayat also would be required to be made keeping in view the administrative exigency. There might be a case where inspite of the expansion of limits of any district or taluka there may not be a need for increase in number of servants employed in such district or taluka or vice-versa. I, therefore, hold that powers conferred under Section 264 of the Act are discretionary and are not obligatory. ( 20 ) THE plain reading of the section makes it clear that the matter relates to the administrative powers of the State Government and not the legislative powers as contended by Mr. Parmar. I, therefore, hold that powers conferred upon the State Government under Section 264 of the Act are administrative powers and are not the legislative powers. The powers conferred under Section 264 of the Act being administrative in nature, the contention that such powers can never be delegated requires to be rejected. . ( 21 ) MR. PARMAR has relied upon Sections 161 and 162 of the Act. He has submitted that under Section 161 of the Act, the District Development Officer is an Ex-Officio Secretary of the District Panchayat. Further, Section 161 requires that the executive powers of the district panchayat vest in the District Development Officer and are required to be exercised subject to the orders of the President of the District Panchayat. Hence, the District Development Officer is essentially a servant of the district panchayat and can not be said to be a Government officer. No power of the State Government, therefore, can be delegated on the District Development Officer under Section 271 of the Act. The words "district Development Officer" are defined in sub section (6) of Section 2 of the Act.
No power of the State Government, therefore, can be delegated on the District Development Officer under Section 271 of the Act. The words "district Development Officer" are defined in sub section (6) of Section 2 of the Act. It means "such officer as the State Government may appoint to be a District Development Officer for the purposes of this Act". Sub section (1) of Section 161 of the Act requires that there shall be a secretary for every district panchayat and that the District Development Officer posted under the panchayat shall be Ex-Officio Secretary of the panchayat. Section 162 of the Act provides for powers and functions of District Development Officer. Section 232 of the Act empowers the State Government to direct that certain number of officers of the Indian Administrative Service (IAS) and of Class-I and Class-II services of the State shall be posted under panchayat for such period and subject to such conditions as may be specified in the order and accordingly the officers specified in the order shall be posted under such panchayat. Section 227 of the Act provides for constitution of a panchayat service in connection with the affairs of the panchayat and that such service shall be distinct from the State service. Neither of these provisions indicates that the District Development Officer is a servant of the district panchayat. On the contrary, as the definition suggests the District Development Officer is an officer of the State Government, who for the time being is posted in the district panchayat as envisaged under Section 232 of the Act. Hence, the contention that the District Development Officer is a panchayat servant requires to be rejected. Section 271 (1) of the Act empowers the State Government to authorise any officer of the Government to exercise any power exercisable by the State Government under the Act except the power to make rules. As I have held that the District Development Officer is a Government officer, in my opinion he can, in exercise of power conferred under Section 271 (1) of the Act, be authorised to exercise the powers of the State Government conferred under Section 264 of the Act as well.
As I have held that the District Development Officer is a Government officer, in my opinion he can, in exercise of power conferred under Section 271 (1) of the Act, be authorised to exercise the powers of the State Government conferred under Section 264 of the Act as well. In the present case, under Government Notification dated 19th February, 2001 (published in Part I-A of the Gujarat Government Gazette Extra-Ordinary dated 1 9/02/2001), the District Development Officer was specifically authorized "to exercise the powers exercisable by the State Government under clause- (iv) of sub-section (1) of Section 264 of the Act in respect of the Class-III and Class-IV employees of the panchayat service to allocate them to the District Panchayats newly constituted by bifurcation of the respective district". Thus, the impugned order dated 13/12/2001 has been made by the District Development Officer, Ahmedabad in exercise of power under Section 264 (1) (iv) of the Act delegated to him under Section 271 of the Act. The impugned order thus has been made in due exercise of the powers conferred upon the District Development Officer, Ahmedabad and can not be said to have been made without the authority of law. ( 22 ) THE contention that only such employees of the district panchayat who, at the relevant time, were actually serving in Dehgam taluka are required to be allocated to Gandhinagar District Panchayat, also can not be countenanced. It is indisputable that the cadre of Talati-cum-Mantri is a district cadre and the petitioners and other Talatis-cum-Mantri are transferrable anywhere within the district. If the petitioners were at the relevant time serving in Dehgam taluka, it was a mere fortuitous circumstance. Such fortuitous circumstance can not and would not confer a right to be allocated to Gandhinagar District Panchayat. What has actually been done is that 44 senior Talatis-cum-Mantri, amongst those who opted for being allocated to Gandhinagar District Panchayat, have been so allocated. Thus, the District Development Officer has accepted the options on the basis of the seniority of the concerned Talati-cum-Mantri. The criterion adopted by the District Development Officer can not be said to be arbitrary or discriminatory. The action of the District Development Officer, therefore, does not warrant interference. The anomalous situation projected by Mr. Parmar is imaginary. If the petitioners are retained in the service of Ahmedabad District Panchayat they can be transferred anywhere within the district.
The criterion adopted by the District Development Officer can not be said to be arbitrary or discriminatory. The action of the District Development Officer, therefore, does not warrant interference. The anomalous situation projected by Mr. Parmar is imaginary. If the petitioners are retained in the service of Ahmedabad District Panchayat they can be transferred anywhere within the district. There is no requirement to post the petitioner in Dehgam taluka alone. ( 23 ) THE contention that the impugned order dated 13th December, 2001 has been made in violation of the order of this Court in Special Civil Application No. 9265/2001 and is contrary to the Government Circular dated 10th April, 2001 also requires to be rejected. In Special Civil Application No. 9265/2001, the petitioner in the above Special Civil Application No. 12544/2001 was the only petitioner. The only direction that was issued was to the effect that the District Development Officer, Ahmedabad should consider and decide, in accordance with law, the representation of the petitioner and other similarly situated Talatis dated 6/08/2001 within the specified period. It appears that pursuant to the said order, under notice dated 2/11/2001, the said petitioner was called for personal hearing on 5th November, 2001. The impugned order dated 13th December, 2001 also discloses that not only the representation made by such Talatis were considered but all such Talatis were also given opportunity of hearing. Hence, it can not be said that the order has been made in violation of the directions issued by this Court. As far as the communication dated 10/04/2001 is concerned, it is issued by the State Government addressed to the District Development Officers in connection with the allocation of the servants of the panchayat in exercise of powers conferred under above mentioned Notification dated 19th February, 2001. Clause- (v) of the said instruction provides that where the number of employees seeking transfer are more than the number of posts allocated, the senior employees shall be allocated. Hence, it is far from the truth that the impugned order dated 13th December, 2001 has been made in contravention of the instructions issued under communication dated 10th April, 2001. ( 24 ) MR. PARMAR has submitted that Clause-11 of the said communication dated 10/04/2001 provides that certain category of servants named therein shall not be disturbed and be retained at the place where they were serving.
( 24 ) MR. PARMAR has submitted that Clause-11 of the said communication dated 10/04/2001 provides that certain category of servants named therein shall not be disturbed and be retained at the place where they were serving. Nevertheless, though most of the petitioners belong to the said categories, they have been disturbed. The said Clause-11 provides that while making order of allocation under Section 264 (1) (iv) of the Act, the employees who are (a) handicapped; (b) widow of the deceased employees appointed on compassionate grounds; (c) appointed by inter-district transfer; (d) whose spouse has been serving under the State Government/ panchayat in the concerned district, may not be considered for such allocation. This clause only means that the employee belonging to any of the above four categories shall not be allocated from the district of his appointment to the new district. Hence, in the present case, the employees of Ahmedabad District Panchayat falling in one of the above four categories should not be allocated to Gandhinagar District Panchayat. In other words, they should be retained in Ahmedabad District Panchayat. That is what has been done in respect of the present petitioners, i. e. the petitioners have been retained in Ahmedabad District Panchayat. If, as submitted by Mr. Parmar, most of the petitioners belong to the above categories then their retention in Ahmedabad District Panchayat is in consonance with the above referred Clause-11 and not contrary to the said Clause-11. The petitioner in Special Civil Application No. 12544/2001 was earlier appointed in District Panchayat, Panchmahals, however, was later transferred to Ahmedabad District Panchayat at his request. Thus, the said petitioner having been appointed in Ahmedabad District Panchayat by inter-district transfer, even according to the above referred Clause-11 of the communication dated 10th April, 2001 he would be required to be retained in Ahmedabad District Panchayat and could not have been allocated to Gandhinagar District Panchayat. Moreover, the said communication dated 10/04/2001 is an administrative instruction containing guideline for making allocation under Section 264 (1) (iv) of the Act. The said guideline should be followed as far as possible. Even, the said Clause-11 does not completely prohibit allocation of above referred four categories of employees. It only says that such person should be excluded from being considered for such allocation.
The said guideline should be followed as far as possible. Even, the said Clause-11 does not completely prohibit allocation of above referred four categories of employees. It only says that such person should be excluded from being considered for such allocation. However, if such person is transferred, he may represent to the District Development Officer of the district from which he is transferred and the District Development Officer should consider the representation and send necessary proposal to the State Government. Hence, the contention that the impugned order is made in contravention of communication dated 10/04/2001 is rejected. ( 25 ) SO far as the challenge to the Government Resolutions dated 5/01/2000 and 1 9/06/2000 is concerned, the same requires to be rejected. No ground of challenge has been made out by Mr. Parmar. Under Government Resolution dated 5/01/2000 the State Government has, in view of the alterations made in the limits of certain districts under Government Notification dated 2 4/09/1997, resolved to allocate certain posts from one district to the other. The Resolution dated 1 9/06/2000 relates the instructions for effecting allocation under Section 264 (1) (iv) of the Act. The said instructions also are issued in consonance with the provisions of the Act and the rules made thereunder. Nothing objectionable has been pointed out by Mr. Parmar. Mr. Parmar has not made out any ground of challenge to the impugned orders of district panchayat made on 2 1/10/1999, 26th April, 2000 and 1/11/2001. Hence, the challenge to the above referred Resolutions and the orders is rejected. ( 26 ) I do agree that a statutory function is required to be performed in the manner prescribed under the statute. Section 264 (1) of the Act provides that the powers under the said sub-section shall be exercised by an order published in the Official Gazette. Thus, it is a statutory requirement that all orders made in exercise of power under Section 264 (1) of the Act shall be published in the Official Gazette. ( 27 ) MRS. VYAS has admitted that the impugned order dated 13/12/2001 has not been published in the Official Gazette. She, however, submits that the statute does not require that such order shall be published in the Official Gazette.
( 27 ) MRS. VYAS has admitted that the impugned order dated 13/12/2001 has not been published in the Official Gazette. She, however, submits that the statute does not require that such order shall be published in the Official Gazette. She has emphasized on the words "the State may, notwithstanding anything contained in this Act or any other law for the time being in force, by order published in the Official Gazette, provide for all or any of the following matters, viz. :-" She has submitted that the word "may" occurring after the words "the State" suggests that the order made thereunder may be published in the Official Gazette. Thus, it is the discretion of the State Government whether or not to publish such order in the Official Gazette. I am unable to agree with the contention raised by Mrs. Vyas. The word "may" would only mean that the State Government may or may not, keepeeping in view the administrative exigencies, provide for any of the matters named therein. However, it does not give discretion to the State Government whether or not to publish the order, if any, in the Official Gazette. If the State Government exercises its discretion and makes order under Section 264 (1) of the Act, such order has to be published in the Official Gazette. ( 28 ) IN my view, the impugned order dated 13th December, 2001 made under Clause- (iv) of Sub-section (1) of Section 264 of the Act can not take effect unless and until it is published in the Official Gazette as envisaged in the said sub-section. However, no further order can be made in this respect since the beneficiaries of the said order are not parties to these petitions. ( 29 ) IN the result, the petitions are dismissed with costs. Rule nisi issued in each of these petitions is discharged. The Registry shall maintain copy of this order in each of these petitions. .