Patna High Court
Ram Odar Jha And Ors., Ram Krishna Singh, ... vs State Of Bihar And Ors. on 8 October, 1991
Equivalent citations: 1992(2)BLJR936
JUDGMENT S. Ali Ahmad, U.P. Singh and G.C. Bharuka, JJ. 1. These four writ applications have been heard together and are being disposed of by this common judgment. 2. Irrespective of the prayers made in the applications, the only question that has been agitated in support of the applications is that the Bihar Rationalised High Schools Service Condition Rules, 1983 (for short 'the Rules') is ultra vires to the provision of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act (for short 'the Act') as the same were not placed before the two Houses of the Legislature for fourteen days continuously as required under Section 15 (2) of the Act. 3. The vires of the Rules came under attack before a Division Bench of this Court in the case of Mateshwar Singh and Ors. v. The State of Bihar 1985 PLJR 416. It appears that the accepted position before the Division Bench was that the Rules were laid before the Legislative Assembly for a few days but it was never laid before the Legislative Council. It was thus accepted that the provisions as envisaged under Section 15 (2) of the Act regarding laying of the Rules in the two Houses of Legislature were not complied with. The Rules, however, were held to be valid by the Bench in the aforesaid case on the ground that the State, besides Section 15 of the Act, had jurisdiction to determine the service condition of teachers and it was in exercise of this power that the Rules were framed. C.W.J.C. No. 1138 of 1988 was taken up for hearing by a Division Bench consisting of U.P. Singh and B. Prasad, JJ. The learned Judges constituting the Bench doubted the view taken in the case of Mateshwar Singh (supra) that the rules were framed under Section 9 of the Act and as such, it was not necessary to lay the same before the two Houses of Legislature. 4. It will be convenient to have the relevant provisions of the Act in mind before I proceed to consider the argument advanced by learned Counsels for the parties. 5. The Act provides for taking over of management and control of me non-government secondary schools by the State Government for improvement, better organisation and development of education in the State of Bihar. Non-Government secondary schools were those schools, which were recognised as such by the Bihar Secondary Education Board constituted under the Bihar Education Secondary Act, 1976 and the Bihar Secondary Education Board (Second Amendment) Ordinance, 1980. All non-Government secondary schools were deemed to have been taken over by the State Government with effect from 2nd of October, 1980 under Section 3 of the Act. Section 4 of the Act provides for the consequences of taking over management and control of such schools. Sub-sections (2) and (3) of Section 4 of the Act provides that with effect from the date of taking over the services of every head-master, teacher and other employees of the schools were deemed to have been transferred to the State Government and they became employees of the State Government. Other terms and conditions of their services continued to be the same as it were before taking over until any alteration was made therein by the State Government in the prescribed manner. It will be advantageous to quote Sub-sections (2) and (3) of Section 4 of the Act which read as follows: (2) The services of every Headmaster, teacher or other employees of the school taken over the State Government, shall be deemed to have been transferred to the State Government with effect from the date of taking over of the school and become employees of the State Government with such designation as the State Government may determine. (3) The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the State Government shall be 58 years. The other terms and conditions of their services shall continue to be the same as it was before taking over the management and control of the school until any alteration is made therein by the State Government in the prescribed manner. The expression 'prescribed' has been defined under the Act which reads as follows: 'Prescribed' means prescribed by the Ordinance or the rules framed thereunder. Rules also has been defined under Section 2(1) of the Act which reads as under: 'Rules' means rules framed under Section 15 of this Ordinance. Since in Mateshwar Singh's case, it has been held that the Rules have been framed under Section 9 of the Act, therefore, this section may also be usefully quoted :'-- 9. Service Conditions.-The service condition of the Headmaster, teacher and non-teaching staffs of the nationalised secondary schools shall be determined by the State Government. 6. The only other section that needs mention in this case is Section 15 of the Act which is as follows: 15. Power to frame rules.-(1) The State Government may make rules not inconsistent with this Ordinance for carrying out the purposes of this Ordinance. (2) Every rule made under this section shall be laid as soon as possible after it is made before each house of the State Legislature while it is in session for the total period of 14 days which may be comprised in one session or in two successive sessions, and if, before expiry of the session in which it is so laid or the sessions immediately following both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, such modification or annulment shall not affect the validity of anything previously done under the rule. 7. Rules were notified on 9th June, 1983 and were published in the Bihar Gazette on 25th September, 1983. There is, however, controversy between the parties as to whether the rules were actually laid before the two Houses of the Legislature continuously for 14 days as provided under Section 15 (2) of the Act. It has been positively stated in C.W.J.C. 420 of 1988 that the rules were not laid in either House of the Legislature. The counter-affidavit filed on behalf of respondent No. 5 in C.W.J.C. No. 1138 of 1988 states that the rules were, in fact, laid before the Council on 30-3-1984 and before the Legislative Assembly on 24-4-1984. A counter-affidavit was also filed on behalf of the State after counsels for the petitioners had virtually closed their arguments stating that the rules had been laid before the two Houses of the Legislature. The statements made in these affidavits filed by respondent No. 5 in C.W.J.C. No. 1138 of 1988 and on behalf of the State were challenged on the ground that they were sworn by incompetent persons and the statements were not supported by the documents while stating the fact in Mateshwar Singh's case (supra) the Court had noted that the rules had been placed for a few days before the Legislative Assembly but nothing was said in the judgment about laying the same before the Legislative Council. We thought, the controversy could be easily resolved if we get an authentic information from the Secretaries of the two Houses of the Legislature regarding placement of rules. We accordingly passed the following order on 2-5-1991 in C.W.J.C. No. 1138 of 1988: The materials placed before us regarding placement of the original rules in the two Houses of the Legislature are confusing. It is difficult for us to arrive at any positive conclusion on the basis of the affidavit and annexures attached to it. In our view the best evidence is the proceeding of the two Houses relating to placement of the rules. We, therefore, direct the Secretary of the Assembly and also the Secretary of the Council to produce the proceedings of the Houses through the Advocate-General on 6-5-1991. Let a copy of this order be given to the Advocate-General. It is extremely unfortunate that in spite of this positive direction to the two Secretaries, they did not produce the proceeding of the two Houses relating to placement of the rules, instead they sent letters to Mr. Advocate-General with enclosures. The letter sent by the Secretary, Legislative Assembly, inter alia, states that the proceedings have not been printed so far. Therefore, he was enclosing a photo copy of unauthenticated proceedings. This photo copy shows that the rules framed under Section 15 (2) of the Act were placed by Shri Nagendra Jha, the then Education Minister on 2-4-1984. Likewise the letter sent by the Secretary, Legislative Council encloses typed copy of the proceedings of 30-3-1984 which shows that the rules were placed on the table of the House on that day by Dr. Umeshwar Prasad Verma (Minister). Learned Counsel for the petitioner has taken serious objection to the enclosure sent by the Secretaries of the two Houses is said that the enclosures cannot be given any evidence as they are unauthenticated and are not supported on affidavit. It is also said that in pursuance of the order passed earlier the proceedings book itself should have been brought before the Court. I must confess the confusion still persists in mind. It is unfortunate that I am not able to record a positive finding either way regarding placement of the rules in the two House of Legislature although I have a feeling that Section 15 (2) of the Act was duly complied with and the rules were, in fact, placed before the two Houses. But that feeling is not sufficient to record the finding. I am, therefore, proceeding on the assumption that the rules were not placed before the two Houses as provided under Section 15 (2) of the Act. What is the effect of that ? (i) Whether the rules as held in Mateshwar Singh's case could be saved on the ground that they were made under Section 9 of the Act, or (ii) in case it is held that Mateshwar Singh's case was not correctly decided then what is the effect of non-laying of the rules as provided under Section 15 (2) of the Act ? 8. The petitioners were teachers of non-Government Secondary Schools and were not in Government Service. As a result of taking over, all non-Government Secondary Schools the petitioners became Government servants. Under Section 4 (3) of the Act, the age of superannuation was fixed at 58 years. The other terms and conditions of their services were to continue until any alteration was made by the State Government in the manner prescribed. Admittedly by the rules, the terms and conditions of their services have been changed. Learned Counsel for the petitioners urged that the change in service condition has not been made in the prescribed manner. Section 2(k) defines 'prescribed. It says prescribed means prescribed by the Act or the Rules framed thereunder. 'Rules' also had been defined under Section 2(1) of the Act which says 'rules' means rules framed under Section 15 of the Act. Learned Counsel, therefore, argued that the terms and service conditions could be changed by the Act itself which is not the case here or it could be done by making rules under Section 15 of the Act. Section 15 (2) of the Act provides that the rules framed thereunder shall be laid before each of the two Houses of the State Legislature for a total period of 14 days. It is said that since that has not been done, therefore, the rules cannot be said to have been made in the prescribed manner. Mr. Advocate-General, on the other hand, says that the service conditions of Headmaster, teachers and non-teaching staff of the nationalised secondary schools can be determined by the State Government under Section 9 of the Act. He says that Mateshwar Singh's case (supra) has been rightly decided wherein it has been held that the rules are really determination of the service conditions of the Headmaster teachers and non-teaching staff of the nationalised secondary schools. This argument is countered by learned Counsels for the petitioners, who say that Section 9 of the Act is only a provision which enables the State to make rules and the procedure to make rules is Section 15 of the Act. They again reiterated that since the procedure of laying the rules before each of the Houses of Legislature was not followed, the same could not be said to be the rules within the meaning of Section 15 of the Act. It will be useful in this context to quote the following passage from the decision in Mateshwar Singh's case (supra): ...from the relevant provisions of the Act, which have been mentioned above, there is no doubt that under Section 9 power has been given to the State Government to frame the service conditions. This power is independent by itself and, in my opinion, it is not necessary to place the rules before the House and Section 15 will not be attracted. Any other rules, which may be framed and for those rules, the provisions laid down under Section 15 have to be followed. Reading Section 4 (3) also it is clear that the State Government, after taking over, has power to make alteration in the service conditions in the prescribed manner and that manner has been laid down in Section 9. It is difficult to accept the contention raised on behalf of the petitioners that for Section 9 procedure laid down under Section 15 will have to be followed.... 9. I regret my inability to agree with the view taken by the learned Judges deciding Mateshwar Singh's case Section 4 (3) of the Act specifically prescribes that the service conditions can be altered by the State Government in the prescribed manner. Prescribed manner as I have shown earlier means prescribed by the Act or the Rules framed thereunder. The alteration in service condition is not by the Act. The only other alternative which can alter the service condition is the Rules. According to Section 2(1) of the Act, rule means Rules framed under Section 15 of the Act. Therefore opinion, the State Government cannot in exercise of its power under Section 9 of the Act alter the terms and service conditions in the garb of determining them. The argument that rules are framed under Section 15 of the Act, but the source of power to make rules is Section 9 of the Act, does not appeal to me. Sub-section (1) of Section 15 of the Act itself enables the State Government to make rules which are not inconsistent with the Act for carrying out the purpose of the Act. Determination/alteration of the terms and service conditions of teaching and non-teaching staff of non-Government secondary schools cannot be said to be inconsistent with the Act for carrying out the purpose of the Act. Besides, Section 4 (3) of the Act itself says that the other terms and conditions of service shall continue to be the same until any alteration is made therein by the State Government in the prescribed manner. Therefore, apart from Section 4 of the Act Sub-section (3) Section 4 of the Act also by necessary implications gives teeth to the State Government to make rules regarding service conditions. What then is the purpose of Section 9 of the Act ? I could not visualise any and I specifically asked learned Counsels for the petitioners and Mr. Advocate-General. As I have said above, counsels for the petitioners said that this was only an enabling provision, but Mr. Advocate-General said that apart from the rules framed under Section 15 of the Act, the State also has the power to determine service conditions under this section. If that be so then there is contradiction in terms between this section and Section 4 (3) of the Act which says that the terms and service conditions can be changed by the State Government in the prescribed manner. The determination of service conditions under Section 9 of the Act does not. come within the definition of "prescribed manner" as the determination does become part of the Act nor it becomes rules framed under Section 15 of the Act. I also asked learned Counsels to give me any illustration on regarding determination of service conditions which will not alter the existing service conditions, neither Counsels for a petitioners nor Mr. Advocate-General could give one single illustration. I am, therefore, constrained to hold that Section 9 of the Act is a surplusage. For these reasons, with great respect to the learned Judges, I hold that Mateshwar Singh's case was not rightly decided. The decision in that case that the rules were framed under Section 9 of the Act is over ruled. I also hold that the rules which alter the service conditions of the teachers are of taken over non-Government Secondary Schools have been framed under Section 15 of the Act. 10. I have said above that I will proceed on the assumption that the rules were not placed before the two Houses of Legislature as required by Section 15 (2) of the Act. I have also held that the rules were framed under Section 15 of the Act. Now the question arises whether the rules can be said to be valid piece of subordinate legislation for non-laying the rules before the two Houses of Legislature. Sub-section (2) of Section 15 of the Act, no doubt, says that every rule made under this section shall be laid before each Houses of the State Legislature. "Shall" generally speaking is used where the intention is mandatory but this is not the determining factor alone. As to whether the State Legislature has used the word 'shall' in the mandatory fashion or not will depend upon the intention of the Legislature and that intention will have to be gathered by the Court by carefully scrutinising the scope of the particular piece of legislation. The history of subordinate legislation is quite old and I do not intend to mention that in this judgment. All that needs mention is that generally the rules are laid before the Legislature. The language regarding laying of rules is not the same in all the Act. The Supreme Court in the case of Atlas Cycle Industries Limited and Ors. v. State of Haryana AIR 1979 SC 1149 had occasion to consider the matter in great detail and after doing so it classified the laying provision in three categories: (i) Simple laying, (ii) Negative resolution, and (iii) affirmative resolution, in the following manner: (i) Simple laying.-The most obvious example is in Section 10 (2) of the 1946 Act. In earlier days, before the idea of laying in draft had been introduced, there was a provision for laying rules, etc., for a period during which ever they were not in operation and could be thrown out without having come into operation (compare Merchant Shipping Act, 1894, Section 417 ; Inebriates Act, 1898, Section 21) but this is not used now. (ii) Negative resolution, Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made. ' The phraseology generally used is "subject to annulment in pursuance of a resolution of either House of Parliaments. This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to "buy off opposition" by proposing some modification. (iii) Affirmative resolution. The phraseology here is normally "no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament Normally, no time limit is fixed for obtaining approval-none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval bat Section 16 (3) of the Housing (Financial and Miscellaneous Provisions) Act 1946 did impose a limit of forty days. An old form (not much said nowadays) provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained, This form was used in Section 10 (4) of the Road Traffic Act, 1930 [of. Road Traffic Act, 1960, Section 19 (3) and].... The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated. The procedure, therefore, is sparingly used and is more or lesse reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all where the spending, etc. of public money is affected. Sometime where speed or secret action is required (e.g. the imposition of import duties), the order is laid with immediate operation but has to be confirmed within a certain period [cf. Import Duties Act, 1958, Section 13(4).] This process of acting first and getting approval after has also been adopted in the Emergency Powers Act, 1920 under which a state of emergency can be proclaimed and regulations made. The proclamation must be immediately communicated to Parliament and does not have effect for longer than a month ; but it can replaced by another proclamation. Any regulations made under the proclamation are to be laid before Parliament immediately and do not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for their continuance. In view of the guidelines given in the Atlas's case, it has to be seen as to whether the provision regarding laying of rules in the two Houses of Legislature was in the nature of simple laying, negative resolution or affirmative resolution. The rules framed under Section 15 of the Act come into operation as soon as they were notified and were not dependent on their approval by the Houses of Legislature. This I say because Sub-sect ion (2) itself provides that if the two Houses agree in making modification in the notification or the rules and agree that the rule should not be made then the rules shall thereafter have effect only in such modified form or will be of no effect as the case may be. The word 'thereafter' is quite significant which suggests that prior to the modification or the annulment the rules as framed will be valid. Further last part of Sub-section (2) makes the position still more clear. It says that modification in the rules or annulment of the rules by the two Houses shall not affect the validity of anything previously done under the Rules. According to this provision, actions taken under the Rules will not be invalidated in case the rules do not get approval of the two Houses of Legislature. This saving provision of the actions taken under the Rules makes it abundantly clear that the rules are good, operative and valid until they are modified or annuled by the Legislature, In my opinion, therefore, the Legislature has expressed its intention in clear language that enforcement of rules is not subject to affirmative resolution by the two Houses of the Legislature ; rather it becomes operative as soon as notified. In my view, therefore, Section 15(2) of the Act provided as negative resolution for annulment or modification of the rules. Having determined the nature of laying provision and the intention of the Legislature the next enquiry that has to be made is as to whether the provision regarding laying of the rules is directory in nature or is mandatory. The Supreme Court in Atlas's case (supra) quoted with approval Craies on Statute Law as saying "each case must depend on its own circumstances or the wording of the statute under which the rules are made". I am conscious of the fact that the provision regarding laying of the order under Sub-section (3) of Section 3 of the Essential Commodities Act was held to be directory as the laying rules came in the category of 'Simple laying'. But this does not mean that the rules which do not come under the category of 'Simple laying have to be laid before the Houses of Legislature in the mandatory way. As said above, it all depends on circumstances and the wordings of statute under which the rules are made. In the case of D.K. Krishnan v. Secretary Regional Transport Authority Chittoor AIR 1956 Andhra 129, which has been referred to with approval by the Supreme Court in Atlas's case (supra), Subra Rao, J. (as he then was) had to deal with similar rules. Section 134-A of the Madras Motor Vehicles Rules, 1940 was challenged on the ground that the rules were not said before the Legislature of the Madras State as required by Section 133(3) of the Madras Motor Vehicles Act which provided that the rules shall be laid for not less than 14 days before the Legislature as soon as possible after they are made and shall be subject to modification by Parliament of such Legislature may make during the session in which they are so laid. Subba Rao, J. held that the laying provision was only directory and not mandatory. I feel tempted to quote the following portion of the judgment given by the learned Judge and which has been quoted by the Supreme Court also: The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or Legislature to control delegated legislation. That Control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the parliament. Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non-compliance with the condition subsequent. Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribed the legal effect of non-compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule. In the case of statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules. It may asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the parliament or the Legislature, as the case may be if they intended to make that rule mandatory, of its non-compliance they would have clearly mentioned the legal consequences as they have done in other cases. This rule (i.e. the one contained in Section 133(3) therefore is not made either a condition precedent or a condition subsequent to the coming into force of rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament. If Sub-section (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature, We, therefore, hold that the rule in question is valid. There is yet another case of Jan Mohammad Noor Mohammad v. State of Gujarat . The Supreme Court in this case had occasion to consider the validity of the rules framed under Bombay Act 22 of 1939. Section 26 (1) of the Bombay Act authorised the State Government to make rules for the purpose of carrying out the provisions of the Act. Sub-section (4) of this section provided that the rules under Section 26 shall be laid before each Houses of the provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the official Gazette, be deemed to have been modified or rescinded accordingly. This sub-section positively said that the rules shall be laid before each of the Houses of the Provincial Legislature session thereof "next following" (stress is mine). The rules were framed in the year 1941. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946. That session was (sic) on May 24, 1956. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946. The rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 3, 1945. There was thus non-compliance of Section 26 (5) according to which the rules had to be placed at the session "next following". Yet the Supreme Court upheld the validity of the rules on the ground that the Act did not prescribe that the rules acquired validity only from the date on which they were placed before the House of Legislature. This also was a case where the Legislature had complete control over the rules. It could modify the rules, it could rescind the rules and according to the section if rescinded the rules were to be of no effect and if modified then it was to be operative only in modified form. I may also refer to the case of State (Delhi Admn.) v. V.C. Shukla and Anr. which has been relied upon by Mr. Rajendra Prasad Singh to suggest that the laying provision was mandatory. I am afraid, this case also goes against the petitioners. The learned Judges applying the principle laid down in Atlas's, case (supra) held that the laying provision was one of 'simple laying'. They also said that Section 13 of the Special, Courts Act, 1979 did not provide that until a declaration is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the section intend that any consequence would result from its non-compliance. On basis of the authorities I have referred to above, I am positively of the view that the laying provision under Section 15(2) of the Act is directory in nature and it certainly is not mandatory as the rules came into operation as soon as they were notified and the actions taken under the Rules were also saved even if subsequently the rules were annuled or modified, but I should not be misunderstood to mean that in cases the provision regarding laying of the rules before the Legislature is directory then the same should be ignored merely on the ground that the neglect will not invalidate the rules. Even directory provisions in the statute have to be meticulously followed and no neglect to observe the same can be appreciated. In the circumstances, I would direct the concerned respondents to lay the rules in the two Houses of Legislature as early as possible. 11. Mr. Ganesh Prasad Singh appearing on behalf of the petitioners in some of the writ petitions drew our attention to paragraph 8 of the decision in the case of D.S. Carewal v. The State of Punjab and Anr. . In response to a query made by me, learned Counsel said that he was not challenging the validity of Section 15 (2) of the Act. He, however, contended that the rules which came into force prior to laying in the two Houses of Legislature cannot be sustained on the ground of excessive delegation. It is difficult to appreciate this argument. The section itself provides for it and Mr. Singh does not challenge its validity. We, therefore, cannot make a grievance of excessive delegation. Besides that there is no question of excessive delegation. The Legislature is in full control of the matter. According to the laying provision, though directory, the rules have to be placed before the two Houses of the Legislature and the Legislature can modify or annul the same, Therefore, the Legislature has full control over the matter. It cannot be said that they have abdicated their power to the executive. Mr. Rajendra Prasad Singh, another Counsel for the petitioners, also referred to the case of B. Shama Rao v. Union Territory of Pondicherry to suggest that the provision regarding framing of rules amounted to abdication of duty by the Legislature. It is impossible to accept this contention. The conception of subordinate legislation originated in England sometime in 18th Century and it was not only upheld there but has also been upheld in our country by the Supreme Court and by different High Courts. In no case, even faintly, it has been suggested that the power to frame rules accounts to abdication by the Legislature. The Pondicherry General Sales Tax Act (1 of 1965), which extented the Madras General Sales Tax Act (1 of 1959), as it stood immediately before the date on which the Pondicherry Act was to be brought into force in the territory of Pondicherry by a notification issued by the Government as provided under Section 1(2) was held to be void and still born, because the Pondicherry Legislature in enacting the Act in that manner had totally abdicated its legislative functions in the matter of sales tax legislation and surrendered it in favour of the Madras Legislature. This case, therefore, cannot help the petitioners. In my opinion, therefore, it is not correct to say that legislature abdicated in favour of the executive by authorising it to make rules. 12. Before I close, I would like to mention that learned Counsels for the petitioners were very fair in telling us that they are not challenging the orders passed against the petitioners as they are in accordance with the rules. They wanted to get rid of those orders by challenging the very validity of the rules under which the orders were passed. Under these circumstances, I have not referred to the facts involved in the cases. I may also mention that the prayer made in C, W. J. C. No. 4150 of 1987 was to add Annexure 5, a Government Notification dated, 18-11-1986 as a part of service condition. The validity of Annexure 5 was challenged in C.W.J.C. No. 1254 of 1987 and the same was quashed. The matter went to the Supreme Court and the orders passed by this Court was upheld and the decision was . A question arises as to whether this writ application has thus become intructuous. Mr. Ganesh Prasad Singh accepted the position that the prayer originally made cannot now be granted but he said that he may be allowed to challenge the validity of the rules. We granted him that privilege and I have considered his argument regarding validity of the rules in the earlier part of the judgment. 13. For the reasons stated above, I do not find any merit in these writ applications, which are dismissed, but without costs. U.P. Singh, J.
14. I have had the occasion to peruse the judgment of brother S. AH Ahmad, J., and, in my view, these writ applications are to be allowed for the reasons stated hereinafter. The petitioners have challenged the vires of the Bihar Nationalised High Schools Service Condition Rules, 1983 on several grounds and have contended that Mateshwar's Singh's case, 1985 PLJR 416 has been wrongly decided by a Division Bench of this Court.
15. While hearing one of these applications (C.W.J.C. No. 1130 of 1988), a Division Bench of this Court consisting of U.P. Singh, J. and B. Prasad, J. referred the question to be considered by a Full Bench of this Court for the reason that the proposition laid down in the aforesaid Mateshwar Singh's case was not correctly decided. While hearing the said case, I was of the view that Section 9 of the Act was only an enabling provision and the power to make rules was under Section 15 of the Act. When the State was confronted with this situation, it was then contended that both the sections, namely, Sections 9 and 15, are the rule making powers. The contention on behalf of the State was not raised even in the said Mateshwar's case. In this situation the matter was referred for consideration by a Full Bench of this Court.
16. In order to appreciate the question raised in this applications brief facts are necessary to be stated. Formarly, there were Government schools owned by the State Government and teachers were governed by the service conditions of Government servants. There were private schools run by private individuals, Trusts and other bodies managed by the Managing Committee who were the appointing authorities with different set of service conditions, scales of pay, other benefits, etc., etc. Prior to the year 1958, there were only High Schools and the Government issued directions from time to time for the management of the affairs of the schools. Some of those directions were challenged by the Managing Committee of the Schools and the matter went up to the Supreme Court and in the case of Dwarka Nath Tiwari v. State of Bihar and Ors. AIR 1959 SC 249, it was held that the orders or circulars issued by the State Government to the private schools and no statutory force. After 1958, new schools came into existence which were known as Higher Secondary Schools in which the persons having the minimum qualification of M. A. degree appointed as teachers in High Schools. After the judgment in the case of Dwarka Nath Tiwari (supra), Bihar Act 13 of 1960 was enacted for the management of private schools and thereafter there were series of Ordinances regarding the counsel and management of private schools by the State Government starting from the year 1974 to 1976, the last one was Ordinance No. 169 of 1976. Therefore, the Bihar Secondary Education Board Act, 1976 (Bihar Act 25 of 1976) , came into force with effect from 31-12-1976. Various notifications were also issued from time to time for giving effect to the provisions of the Ordinances and the Act. The State Government then decided to take over all the private schools of this State and Ordinance No. 146 of 1980 was issued on 11-8-1980 being the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1980. This was followed by subsequent Ordinances and ultimately the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (Bihar Act 33 of 1982) was enacted which came into force with effect from 24-1-1984. In pursuance of the Ordinance issued in the year 1980, all private schools were taken over by the State Government with effect from 2-10-1980. Under Section 4 (3) of the Act, all teachers and other employees of private school became Government servants and they were to superannuate at the age of 58 years. Prior to the taking over, each school was treated as one Unit and there was no question of determining the inter se seniority between the teachers of two different schools. There was no unified cadre. But, after the taking over of the schools, it became necessary for the State Government to create a cadre and to frame rules regarding the service conditions of the teachers and other employees whose services were taken over. Section 9 of the Act enacted the Government to determine the service conditions of the teachers and other employees in the prescribed manner. In pursuance of this power, the impugned rule has been framed which came into force with effect from 26-9-1983, the vires of which has been challenged. The relevant provisions of the Act for consideration in this case are Section (2) (k), Section 2(1), Section 4 (2) &(3), Section 9 and Section 15.
Section 2(k) defines the word 'prescribed'. Prescribed means prescribed by the Act or the Rule framed thereunder.
Section 2(1) defines the word 'Rules', 'Rules' means rules framed under Section 15 of the Act:
4 (2) The services of every Headmaster, teacher or other employees of the school taken over by the State Government shall be deemed to have been transferred to the State Government, with effect from the date of taking over of the school and become employer of the State Government with such designation as the State Government may determine."
"(3) The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the State Government shall be 58 years. The other terms and conditions of their services shall continue to be the same suit was before taking over the management and control of the school until any alteration is made therein by the State Government in the prescribed manner."
"9. Service Conditions.-The service condition of the Headmaster : teacher and non-teaching staffs of the nationalised secondary schools shall be determined by the State Government."
"15. Power to frame rules Service condition of the Headmaster.-(1) The State Government may make rules not inconsistent with this Ordinance for carrying out the purposes of this Ordinance.
(2) Every rule made under this section shall be laid as soon as possible after it is made before each House of the State Legislature while it is in session for the total period of 14 days which may be comprised in one session or in two successive sessions, and if, before expiry of the session in which it is so laid or the sessions immediately following, both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, such, modification or annulment shall not affect the validity of anything previously done under the rule.
17. The contention raised on behalf of the petitioners in Mateshwar Singh's case was that since the rules were not placed before the Houses for fourteen days continuously as required under Section 15 of the Act the rules were not at all enforceable and had to be quashed. Reliance was placed on a decision rendered in the case of Managing Committee of T. K. Ghosh Academy v. State of Bihar 1974 BBCJ 50.
On the other hand, the learned Advocate General appearing for the State contended that, since the rules had been framed under Section 9 of the Act, it was not necessary to place those rules before the Legislature and Section 15 of the Act will not be attracted. His alternative submission was that even if it was necessary to place the rules before the House for 14 days and it had not been done, it will not invalidate the rules, because the direction is directory and not mandatory. In support of the above contention, reliance was placed on a decision rendered in the case of Atlas Cycle Industry v. State of Haryana AIR 1979 SC 1140.
18. While considering the question whether the rules have been framed under Section 9 of the Act and that it was not necessary to lay before both the Houses, as contended on behalf of the State, their Lordships held in Mateshwar Singh's case (supra) that from a plain reading of the opening paragraph of the rules, it is absolutely clear that the rules have been framed under Section 9 of the Act and the State Government has the power to frame such rules which will be clear from Section 9 itself.
19. While considering the other question these rules have to be placed before the Legislature as required under Section 15 of the Act, there Lordships while hearing Mateshwar Singh's case held:
From the relevant provisions of the Act, which have been mentioned above there is no doubt that under Section 9 power has been given to the State Government to frame rules and service conditions. This power is independent by itself and, in my opinion, it is not necessary to place the rules before the House and Section 15 will not be attracted. Any other rules which may be framed and for those rules provisions have been laid down under Section 15, have to be followed. Reading Section 4(3) also it is clear that the State Government, after taking over, has power to make alteration in the Service-Conditions in the prescribed manner and that manner has been laid down under Section 9. It is difficult to accept the contention raised on behalf of the petitioners that for Section 9 procedures under Section 15 will have to be followed.
It was further held:
that the rules have been framed under Section 9 and Section 15 has no application and, therefore, laying of the rules before the two Houses of the Legislature will not be necessary as contended by the learned Advocate General. In that view of the matter, it will not be necessary to consider the alternative submission of the learned Advocate General that even if those rules are required to be placed in the Houses and have not been placed, that will not invalidate the rules and the case laws relied upon by the parties in the case of he Managing Committee of T. K. Ghosh Academy v. State of Bihar and Atlas Cycle Industry State of Haryana (supra) have not to be considered for decision in the instant case.
20. In the present case also, the same contention as raised in Mateshwar Singh's case has been reiterated by the learned Advocate-General. The respondents found it difficult to sustain the contention that Mateshwar Singh's case was rightly decided. In other words, the respondents were not sure of their own stand whether Section 9 itself was a rule making power of Sections 9 and 15 both were rule making powers.
21. After considering these arguments even brother S. Ali Ahmad, J., arrived at the conclusion that Mateshwar Singh's case was wrongly decided. I was of the same view while referring the matter and I still hold the view that Mateshwar Singh's case was wrongly decided.
22. Once it is held that Mateshwar Singh's case was wrongly decided, then the contention noticed in that case, which has also been reiterated herein these writ applications that Section 9 itself is the rule making power, had to be rejected and with great respect the view expressed by brother S. Ali Ahmad, J. that Section 9 is a surplus is difficult to be accepted by me. In my considered view, Section 9 is not a rule making power. It is an enabling provision and the power to make rules is one under Section 15 of the Act. Section 15 provision the statutory procedure for making rules and the procedure prescribed therein has to be followed in the same year. Section 9 is an enabling provision which enables the Government to determine the conditions of service of teachers in the prescribed manner. The only prescribed manner is by framing of the rules. Therefore, I differ with the view of brother S. Ali Ahmad, J., that Section 9 is a surplus.
23. The view of my learned brother S. Ali Ahmad, J. that Section 4 (3) is a rule-making power is again difficult to be accepted. By no means, Section 4 (3) can be read as a rule-making power. The only rule making power under the Act is Section 15.
On a plain reading of Section 4 (3) of the Act, by no means the said provision can be treated as a rule-making power. In accordance with the said provision, other terms and conditions of the services of Headmasters, Teachers and other employees of the Schools, taken over by the State Government were permitted to continue to be the same as they were existing before the Management and control of the school was taken over and the same conditions of their services were permitted to continue until any alteration could be made by the State Government in the prescribed manner. In accordance with Section 9 of the Act, the service conditions of the Headmasters, Teachers and non-teaching staff of the nationalised secondary schools were required to be determined by the State Government in the prescribed manner, and the prescribed manner is provided under Section 15 of the Act. Therefore, I find it difficult to agree with the view of my learned brother S. Ali Ahmad, J., that Section 9 is a surplus and Section 4 (3) is a rule making power.
24. As held above, if Mateshewar Singh's case has been wrongly decided which I have held in the affirmative then there is no half way house and it has to be held that the rule, as framed in exercise of the powers conferred by Section 9 of the Bihar Non-Government Secondary Schools taking over Management and Control) Act, 1981, was invalid and the contention that Section 9 itself is a rule making power and, therefore, the rules so framed under Section 9 of the Act are valid has to be rejected. This was the firm contention aised on behalf of the respondents that Section 9 itself is a rule making power as contended in Mateshwar Singh's case and it was not contended that Section 9 was a typographical mistake or a wrong nomenclature for Section 15. In view of the finding that Mateshwar Singh's case was wrongly decided, the contention raised therein as also reiterated here in the present case, has to be rejected. My learned brother S. Ali Ahmad, J., held that the decision in the case of Mateshwar Singh's case that rules were framed under Section 9 of the Act, is overruled. Having so held, I do not see any further reason for him to hold on assumption "that the rules have been framed under Section 15 of the Act." Because, the definite and firm stand of the respondent State was that the rules were framed only in exercise of the powers under Section 9 of the Act and the rule so made in exercise of the said power is a valid one. Therefore, either rules were validly framed under Section 9 of the Act or they were not validly framed if Section 9 is not the rule making power. Having overruled the contention of the respondents that the rules were framed under Section 9 of the Act, it has to be held that the rules were not validly framed in exercise of the said power because the rule making power is only under Section 15 of the Act.
25. It would be relevant to notice the provision contained in Section 15 of the Act:
15. Power to frame rules.-(1) The State Government may make rules not inconsistent with this Ordinance for carrying out the purposes of this Ordinance.
(2) Every rule made under this section shall be laid as soon as possible after it is made before each house of the State Legislature while it is in session for the total period of 14 days which may be comprised one session or in two successive sessions, and if, before expiry of the session in which it is so laid or the sessions immediately following, both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, such modification or annulment shall not affect the validity of any thing previously done after the rule.
26. Much controversy was raised on the laying of the rules before each House of the State Legislature continuously for fourteen days. The petitioners contended that the rules were not laid in either House of the Legislature and there is a categorical assertion to this effect in C.W.J.C. No. 420 of 1988. The stand of the respondent No. 5 in the counter-affidavit filed in C.W.J.C. No. 1138 of 1988 was that the rules were in fact laid before the Legislative Council on 30-3-1984 and before the Legislative Assembly on 24-4-1984. At the fag end of the argument of the petitioner, the State again filed a counter-affidavit stating that the rules were laid before the two Houses of the Legislature. This was challenged by the petitioners on the ground that these affidavits were sworn by incompetent persons and the statement made therein remained unsupported by any document. It may be noticed that even in Mateshwar Singh's case (supra), it was noticed by the Court that the rules were placed before the Legislative Assembly for a few days but it was not stated that it was laid before the Legislative Council. The fact remained that in Mateshwar Singh's case the respondents did not establish by any cogent evidence that the rules were laid before the two Houses and, if so, then when and for how many days.
27. In order to resolve this controversy, this Court gave a direction calling for an authentic information from the Secretaries of the two Houses of the Legislature and they were directed to produce the proceedings of the Houses through the Advocate General. Even then, the proceedings of the two Houses relating to the laying of the rules were not produced. A communication from the Secretary, Legislative Assembly, was sent through the Advocate General with enclosures that the proceedings had not been printed so far and a photocopy of unauthenticated proceedings was enclosed. From the said photostat copy, it appears that the rules were placed by the then Education Minister on 2-4-1984. In the similar manner a letter was sent by the Secretary, Legislative Council, enclosing a typed copy of the proceeding dated 30-3-1984 showing that the rules were placed on the table of the House on that day by the Minister.
28. Serious objections were raised by learned Counsel appearing for the petitioners on the enclosures sent by the Secretaries of the two Houses of the Legislature. It was urged and, in my view, correctly, that no credence could be placed on those unauthenticated encloseures which remained unsupported by any affidavit. I see no reason why an authenticated copy of the proceeding book could not be placed before the Court in order to establish whether the rules so framed were placed before either of the Houses and, if so, when and for how long. Even so, my learned brother S. AH Ahmad, J, held:
It must confess that the confusion is still persisting in my mind. It is unfounate that I am not able to record a positive finding either way regarding placement to the rules in the two Houses of the Legislature although I have a feeling that Section 15(2) of the Act was duly complied with and the rules were, in fact, placed before the two Houses. But that feeling is not sufficient to record that finding. I am, therefor proceeding on the assumption that the rules were not laid before the two Houses as provided under Section 15(2) of the Act. What is the effect of that ? (0 whether the rules as held in Mateshwar Singh's case could be saved on the ground that they were made under Section 13 of the Act, (ii) in case it is held that Mateshwar Singh's case was not correctly decided then what is there fact of non-laying of the rules as provided under Section 15(2) of the Act ?
29. I find it difficult to proceed on any feeling or assumption. In the facts of the present case, there is no escape from the conclusion that the rules were not placed before either House of the Legislature in terms of Section 15 of the Act. I have already held above that the rule as framed in exercise of the power under Section 9 of the Act was not a valid rule, and I further hold that the same was not placed before both the Houses of the Legislature as contemplated by Section 15{2) of the Act. Therefore, before deciding as to what will be the effect of non-laying of the rules as provided under Section 15(2) of the Act it has to be held that laying of the rules before each House of the State Legislature is imperative. The opening line of Section 15(2) of the Act is significant to be noticed which says that:
Every rule made under this section shall be laid as soon as possible after it is made before each House of State Legislature while it is in session for a total period of 14 days which may be comprised in one session or in two successive Sessions.
30. On a plain reading of the said provision contained in Section 15(2) of the Act, it has to be held that, before a rule is to be laid before each House of the State Legislature it must be a rule made under Section 15(2) of the Act. Secondly, a rule contemplated to be laid must be a valid rule and thirdly, such rule made under Section 15(2) of the Act, after it is so made, shall have to be laid before each House of the State Legislature, as soon as possible, where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. See AIR 1936 PC 253 (2) and .
31. Before holding that the provision is not mandatory, the question will have to be answered whether the State Government could ignore the clear intention of the Legislature and alter the service conditions without placing the rules before each House of the Legislature. The impugned rule was framed on 9-6-1983 and was notified in the official Gazette on 26-9-1983. By this is under rule, the service conditions were totally altered. It is extremely unfortunate that since 1983 the rule has not been placed before either House of the Legislature and no positive and cogent evidence was produced before the Court which, in all fairness, the respondents were duty bound to place before the Court and even then, it is held as contended by the respondents that non-laying before the House has no effect and it is not mandatory. In fact, by enacting Section 15(2) of the Act, the Legislature intended to keep its control over its delegatee. In the present case, the accepted position is that, although the Bihar Legislature held its session several times since 1983, the impugned rule was not placed before either of the Houses of the Legislature for a period of fourteen days either in one session of two successive sessions since 1983. I have no doubt in my mind that the rules so made has to be laid, as soon as possible. These expressions in the opening line of Section 15(2) of the Act are not meaningless. The intention of the Legislature is obvious otherwise the entire object of control over its delegatee will be nullified and meaningless. There is no explanation or any reason given as to why the impugned rules were not laid before both the Houses of the Legislature since 1983 for long nine years. Can it be said that it is not obligatory to lay it before the House or can it be contended that the laying of such rules is meaningless and the conditions of service can be changed by the State without adopting the manner prescribed under the Act ? In my view, the answer is obviously 'no' and the command of the Legislature has to be carried out. It is in conceivable to accept any other contention that even though the impugned rules have not been laid before both the Houses of the Legislature for long nine years, still the Legislature would be deemed to have control over it.
32. It will be also relevant to notice the two notifications produced during the course of hearing. By Government notification No. 437, dated 28-4-1988 issued in exercise of its power under Sections 9 and 15 of the Act, certain provisions of the impugned rules contained in 9, 11, 12, 13, 15 and 19 were amended. But this amendment was not placed before either of the Houses of the Legislature for a period of fourteen days. Thereafter, the Government issued another notification No. 737, dated 7-8-1990 cancelling the earlier notification on the ground that since the amendment of the rules was not placed before either House of the Legislature, it was not effective and, accordingly, the implementation be stayed. This tact could not be controverted and the learned House for the respondents failed to reply. In view of those notifications, the petitioners contended that on the same principle the impugned rule as well cannot be held to be legal and valid.
33. It cannot be contended that since an invalid rule, as the one impugned here, has continued fur long nine years even without laying before either House of the Legislature, therefore, it must be deemed that the Bihar Legislature has abdicated its authorities and the impugned rule can continue as a valid rule. The conferment of such a wide and uncontrolled power on the delegatee would suffer from the vice of excessive delegation of power. It is well established principle that the legislation by the delegatee will have to conform the policy so laid down by it.
34. In the case of the Managing Committee of the T.K. Ghosh Academy and Anr. v. The State of Bihar and Ors. 1974 BBCJ 15, the contention raised on behalf of the petitioners was that "new rules framed under Section 8 (1) of the Act have not yet been laid before each House of the Bihar Legislature as required by Sub-section (3) of Section 8 of the Act, and, therefore, the rules are not yet effective."
While considering the said contention, a Division Bench of this Court held:
Since the facts concerning the new rules were not placed before us on any affidavit we are not sure as to whether the rules are effective or not and whether they have been laid before each House of the Bihar Legislature in accordance with Section 8 (3) of the Act. If they have not been so laid, it is claimed that the rules have not got the statutory force yet, because they may be rejected by the Legislature ; they may be modified by the Legislature.
Reliance on this case was placed by the petitioners in Mateshwar Singh's case but then the same was not dealt with.
35. The next question whether the direction to lay the rules is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules, must necessarily depend on the facts and circumstances of each case, or the wording of the statute under which the rules were made.
In this context, it is again relevant to notice the wording of Section 15 of the Act under which rules are to be made. The said section has already been quoted above but the last few lines are of great significance in order to appreciate this contention.
...if, before the expiry of the session in which it is so laid or the session immediately following, both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made, the rules shall thereafter have effect only in such modified form or be of no effect as the case may be.
36. While construing the aforesaid expression appearing in Section 15 of the Act, the petitioners have also placed reliance upon the decision of the Supreme Court rendered in the case of Atlas Cycle Industry Ltd. v. State of Haryana AIR 1979 SC 1149. Paragraph 22 is the ratio of the case wherein it was held:
In the instant case, it would be noticed that Sub-section (6) of Section 3 of the Act merely provides that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both the Houses of Parliament as soon as may be after it is made. It does not provide that it shall be subject to the negative or affirmative resolution by either Houses of Parliament, It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify the period for which the order is to be laid before both the Houses of Parliament nor does it provide any penalty for non-observance of or non-compliance with the direction as to the laying of the order before both the Houses of Parliament. It would also be noticed that the requirement as to the laying of the order before both the Houses of Parliament is not a condition precedent but subsequent to the making of the order. In other words, there is no prohibition to the making of the orders without approval of both the Houses of Parliament. In these circumstances, we are clearly of the view that the requirement as to laying contained in Sub-section (6) of Section 3 of the Act falls within the first category, i.e., 'simple laying' is directory and not mandatory.
37. Applying the said principle enunciated in the Atlas Cycle case (supra) the provisions contained in Section 15 (2) of the Act has to be construed on its own language. The language of Section 15 (2) of the Act is unambiguous and in terms it provides that it shall be open to both the Houses to approve it with modification or disapprove, and the rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be. Therefore, it was open to both the Houses to approve or disapprove the rules made under Section 15(2) of the Act and it is only after such approval or disapproval that the rule shall thereafter be effective in such modified form or shall be of no effect. As I have said above that the question whether the direction to lay the rule is mandatory or directory must depend upon its own circumstances or the wording of the Act under which the rules are framed, so construing the wording of Section 15 of the Act, under which the rules are to be made, I have no hesitation in holding that the provision is mandatory in accordance with the principles enunciated by the Supreme Court in the Atlas Cycle case (supra). The cases of Jan Mohammad Noor Mohammad v. State of Gujarat and D.K. Krishnan v. Secy. Regional Transport Authority AIR 1956 Andhra 129 have been noticed and referred to in the Atlas Cycle case. In the case of Jan Mohammad, the rules under Act XXII of 1939 were framed by the Provincial Government of Bombay in 1941. At that time, there was no legislation, the Legislature having been suspended during the emergency arising out of the World War II, rules were in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act XX of 1964 they continued to remain in operation. Considering the provisions of the said rule and the facts of that case, it was held that the provision of Sub-section (5) of Section 26 having regard to the purpose for which it was made, and in the context in which it occurred could not be regarded as mandatory. The said case has obviously no similarity with this case.
38. Construing the provisions contained in Section 15 (2) of the Act, rules framed under the said provision owe their efficacy to the tacit assent of the Legislative Assembly itself. Section 15 (2) of the Act clearly indicates that the Legislature has not abdicated its function and that while it has conferred on the Government a very wide power for laying down the conditions of service of the teaching and non-teaching staff of the nationalised Secondary Schools, it has not only provided that such power can only be exercised for specific purposes mentioned in the clause itself but has also kept a further and more effective control over the exercise of the power, by requiring that it is to be exercised only if a resolution passed by the Legislative Assembly authorising the Government to do so. The impugned rule was required to be framed by the State Government by virtue of the authority vested under Section 15 of the Act and was a piece of delegated legislation which, if the rules were laid before both the Houses in accordance with Section 15 of the Act acquired the force of law.
39. When an Act provides that the rules framed under a section of it shall have to be laid before the Legislature, the provision is generally made in one or other of these forms. There is either a mere direction that any rules framed under a particular section shall have to be laid before the Legislature for a certain period or there is a provision that the rules shall not come into effect till after they have been laid before the Legislature and have laid there for a stated period or it may be said that the rules shall have to be laid before the Legislature and if the Legislature disapproves or amends or modifies them they shall have the effect only as so amended on modified.
40. The expression in the last few lines of Section 15 (2) of the Act that 'such modification or annulment shall not affect the validity of anything previously done under the Act, can only be construed to mean that if both the Houses of the Legislature modified or annulled the rule laid before it then in that eventuality it would not affect the validity of anything which has been previously carried out under the said rule. It cannot be taken into and in upholding the contention that the provision of Section 15 (2) is directory.
41. In my considered view, therefore, the impugned rule cannot be sustained as legal and valid and is, therefore, declared ultra vires.
42. In the result, the writ applications are allowed hut without cost.
G.C. Bharuka, J.
43. I have had the advantage of going through the judgment of my learned Brothers, S. Ali Ahmed, J. and U.P. Singh, J. I agree with the ultimate conclusion arrived at by learned Brother S. Ali Ahmad, J. that the writ petitions are devoid of any merit and are fit to be dismissed. But I would like to record my own opinion on certain aspects of the case.
44. In these writ applications the petitioners. are either the headmasters or teachers of the Schools, which have been nationalised under the provisions of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 (Bihar Act 33 of 1982) (hereinafter to be referred to as 'the Act' only) and the preceding Ordinances having pari materia provisions. The impugned Rules called Bihar Nationalised High Schools Service Condition Rules, 1983 (hereinafter to be referred to as 'the Rules') have been framed under the provisions of the said Act. The preamble of the Rules discerns two important aspects, namely, (i) the rules have been framed under the purported exercise of powers under Section 9 of the Act, and, (ii) the purpose of framing the rules is to lay down the service conditions of the headmasters, teachers and non-teaching staff of the nationalised Secondary Schools. Obviously, the terms and conditions laid down under these Rules will govern the service conditions of the headmasters, teachers and other employees, who were in service of the schools at the time of taking over (hereinafter called the existing staff) as also the new incumbents, who are employed on such posts after nationalisation of the said schools (hereinafter called the new staff). So far as the application of the Rules to the existing staff is concerned if it leads to any variation in their earlier service conditions, then it will amount to alteration in their service conditions. Section 4 (3) of the Act permits such alteration to be made by the State Government in the prescribed manner. Section 9 of the Act further empowers the State Government to determine the service conditions of teaching and non-teaching staff of the nationalised Secondary schools. To my mind Section 4(3) of the Act empowers the State Government to alter the service conditions of the existing staff of the secondary schools whereas Section 9 of the Act empowers the State Government to lay down service conditions for the new staff. Viewing from this angle, Section 9 of the Act cannot be said to be surplusage because in absence of Section 9 of the Act it will be difficult to trace out any specific provisions under the Act empowering the State Government to lay down the service conditions of teaching and non-teaching staff who have been or are to be employed in such schools after nationalisation. But this aspect is not very material for the determination of the issue at hand.
45. In this case admittedly the petitioners are the headmasters or teachers of the nationalised secondary schools, who were in service at the time of taking over of the schools. Therefore, as provided under Section 4(3) of the Act, the State Government was competent to alter the service conditions in the manner prescribed. The manner for exercise of this power by the State Government has been prescribed under Section 15 of the Act. Section 15(1) of the provides that the purposes of the Act are to be carried out by the State Government by making rules in that regard. I agree with the views taken by my learned brothers that the State Government has competence of altering the service conditions by making rules under Section 4 (3) of the Act read with Section 15 of the Act. But I am unable to subscribe my agreement with U. P. Singh, J. that since the preamble of the Rules says that it has been made under Section 9 of the Act, which is not the enabling provision for alteration of service conditions of the existing staff of the nationalised schools, therefore, the Rules are ultra vires the powers of the State Government. It is well settled that mention of a wrong provision under which subordinate legislation is expressed to be made does not invalidate it if there is other enabling statutory provision which can support it. In the case of Hukumchand Mills Ltd. v. The State of Madhya Pradesh and Anr. , it has been held that-
...a wrong reference to the power under which certain actions are taken by the Government would not per se vitiate the actions done if they can be justified under some other power under which the Government could lawfully do these acts.
Again, in the case of Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal , it has been held that-
It is well settled that the exercise of a power, if there is indeed a power, will be referrable to a jurisdiction, when the (sic) of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned.
46. In this case efforts were made to impress upon the Court that the enabling provision contained under the the Act are unconstitutional on the ground of excessive delegation or abdication of essential legislative functions. This aspect has been dealt with in detail by S. Ali Ahmad, J. I am in complete agreement with him that this contention is wholly unacceptable.
47. Now let me come to the main question which has been canvassed at a great length by the contesting parties. . It is with regard to the laying clause contained in Section 15(2) of the Act. Submissions were made on legal as well as factual, aspects at laying of the Rule before the two Houses of the Legislature. It is well settled that laying clause incorporated by the Legislature in the Act is the part of the procedure for making subordinate legislation. The object of incorporting the laying clause in enabling Acts is to subject the subordinate law making authority to the vigilance and control of the Legislature. Non-compliance with the laying clause cannot have any bearing on the validity of the subordinate legislation if the power to make the same has been conferred by the enabling Act on the authority making the same. Non-compliance with the requirement of the laying clause has always to be judged only for the purpose as to whether the subordinate legislation or any provision thereof as made by the delegatee has come into force or not. I need not deal in greater detail with regard to the legal effect of the laying clause contained in Section 15 (2) of the Act because, in my view all possible aspects of the matter have been considered in detail by S. Ali Ahmad, J. and I entirely agree with him that the laying clause in question is merely directory in nature and its non-compliance or part compliance does not in any way entail upon either the validity of the Rules or enforcibility thereof. Though after taking the view that the impugned laying clause in question is directory in nature, it is not very necessary to enter into factual aspect as to whether the Rules in question were, in fact, laid before the two Houses of the Legislature. But keeping in view the facts of the present case and non-co-operative or half hearted attitude adopted by the State Government and its officers even in vital matters like the present one, I strongly feel it necessary to express myself on the factual aspect of the issue.
48. The challenge on facts is that the Rules were not laid before the two Houses of the Legislature for 14 days comprised in one session or in two succesive sessions. It is a fact, which, if challenged, can be immediately ascertained from the proceedings of the two Houses of the Legislature as also from the records of the State Government. These facts are to be found from such record, which are always available and the authenticity or genuineness whereof can never be challenged. But still because of the callous and possibly intentional non-co-operative attitude adopted by the officers of the Education Department, the controversies have been allowed to persist for a long period of more than seven years possibly at the instance and benefits of persons interested,
49. I would like to deal with the pleadings of the parties, the documents placed on the record and the respective rules of the State Legislature to show that the Rules were, in fact, laid before both the Houses of the State Legislature in accordance with its mandate under Section 15(2) of the Act.
50. The Rules came into force on the 25th September, 1983, when the same were published in the official Gazette as provided under Sub-rule (3) of Rule 1 of the Rules. The assertions of the petitioners in the writ applications had been that the Rules were thereafter never placed before the Houses of the Legislature as required under Section 15(2) of the Act. In an affidavit filed by one of the private Respondent on 25-4-1990 in CWJC No. 1138 of 1988, it was stated that the Rules were, in fact, laid before the Legislative Council on 30-3-1984 and before the Legislative Assembly on 2-4-1984. In support of this factual statement, the deponent has annexed two letters, which have been marked as Annexure 'H' and 'I' respectively, Annexure-H is a letter dated 6-10-1988 written by the Deputy Secretary of the Bihar Legislative Council to the Additional Director, Secondary Education, Headquarter, Bihar, stating therein that a copy of the Rule was placed on the table of the Council on 30-3-1984 by the then Minister Shri Umeshwar Prasad Verma, Annexure-1 is a letter dated 25-11-1988 issued by the Deputy Secretary of the Legislative Assembly to the aforesaid Additional Director stating therein that a copy of the Rule was placed before the House on 2nd April, 1984, and thereafter it was referred to a Committee of the House for its examination. It was further stated that the said Committee after due consultation with the officers of the Education Department, Finance Departments and Legal Department, has submitted its report suggesting certain amendment, which was placed before the House on 29-6-1988. An official publication of the said report incorporating all these facts has also been placed on the record of the present case. The opening paragraph of the report shows that this Committee has held its meeting on 16 different dates between 18th January, 1984 to 28th April, 1988. These factual assertions have not been controverted by the petitioners by filing either any reply to the affidavit of the respondent nor by producing any other document or material on the record. But since at the time of argument the learned Counsel for the petitioners took technical objection with regard to the placing of the Rules, by order dated 2-5-1991, which has been quoted in para 7 of the judgment of S. Ali Ahmad, J. the Secretary of the Legislative Assembly as also the Secretary of the Legislative Council were directed to produce the proceeding of the Houses through the Advocate-General on 6-5-1991. The said two Secretaries, instead of producing the proceedings of the two Houses relating to the placement of the Rules, sent letters dated 4-5-1991 and 3-5-1991, respectively, to the learned Advocate-General with enclosures. The letter sent by the Secretary of the Legislative Assembly, inter alia, stated that since the proceedings have not been printed so far, therefore, he was enclosing a photo copy of unauthenticated proceeding. A copy of the proceeding so produced and placed on the record of the case shows that the impugned Rules were placed before the Assembly by Shri Nagendra Jha, the then Education Minister on 2-4-1984. Similarly copy of the proceeding of the Council sent along with the letter of the Secretary of the Council shows that the Rules were placed before the Council on 30-3-1984 by the then Education Minister Dr. Umeshwar Prasad Verma.
51. Learned Counsel for the petitioners took an objection that information sent by the said Secretaries of the two Houses of the Legislature to this Court through the Advocate-General, cannot be relied upon because in their respective letters they have described the copies of the proceedings as "unauthenticated." I find myself wholly unable to accept such contention. The information sought for, were sent by the most competent persons and the same were sent through an authority none less than the Advocate-General of the State. The petitioners have not even suggested that the information were, in any way, incorrect or that the letters or the copies of the proceedings, which were produced in the Court were not genuine. Instead of challenging the authenticity or genuineness of the documents providing the required factual information or by making any statement on oath by way of filing an affidavit controverting the facts contained in those documents, efforts have been made to keep these informations and documents out of record by way of raising hypertechnical objection. It is well-settled that technical rules of Evidence Act does not apply to the writ proceedings. If there is nothing on the record to doubt the correctness of the statements made by the Secretaries of the two Houses, I fail to understand why this factual statements could not be taken into account as correct.
52. Rules 295 and 301 of the Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha, framed under Article 208 of the Constitution provide as follows:
295. Report of Proceeding of House.-The Secretary shall cause to be prepared a full report of the proceedings of the House at each of its sittings and shall, as soon as practicable, publish it in such form and manner as the Speaker may, from time to time, direct.
301. Duties of Secretary of the Assembly.-In addition to the other duties specially assigned to him under these rules it shall be the duty of the Secretary-
(i) as far as may be, attend meetings of all the Committees constituted or appointed under these rules ;
(ii) to keep the proceedings and record of the Assembly and other Committees of the House.
From the aforesaid rules, it is clear that it is the duty of the Secretary to get prepared a full report of the proceedings of the House at each of its sittings and to keep the proceedings and records of the Assembly. But the publication of the proceedings has to be made in such form and in such manner as the Speaker may from time to time direct. The Secretary of the Legislative Assembly has clearly stated that the proceedings have not been printed so far and, therefore, the same could not have been authenticated. Authentication under the rules of the Legislature can be made only by the Speaker. But, even if, there was no such authentication, the most competent person, who could have produced the copy of the proceedings of the Assembly was the Secretary and he has done it in pursuant to the direction of this Court. I just cannot reconcile as to why the facts contained in such proceedings cannot be relied upon.
53. There is one more reason for holding that the assertions of the petitioners that the proceedings were not placed before the Houses of the Legislature is manifestly and mala fidely incorrect, is that it has been brought on the record and is an admitted fact that after few days of the placement of the Rules before the Legislative Assembly those were referred to the House Committee and the said Committee after careful and thorough deliberation and consideration in this regard, had submitted its report to the house. When confronted with this situation, it was urged on behalf of the petitioners that since the Rules were referred to a Committee of the House only after few days of its placement, therefore, it cannot be said that the Rules were placed before the House for 14 days. This argument is again devoid of any merit and is fit to be rejected. In the case of Koteswar Vittal Kamath v. K. Rangappa Baliga & Co. , it has been held that, "even when the bill is before a Select Committee, it continues to be pending in the house, so that, if it is modified or re-drafted, it there is amendment of the bill at that stage." Applying the same principle, the Rules are still for consideration before the House and if after considering the report of its Committee, the House resolves that the Rules should be modified in any particular aspect then the Rules thereafter will come into force in that amended or modified form. Keeping in view this aspect, I hold that the Rules were, in fact, placed before both the Houses of the Legislature as required by the laying clause contained in Section 15(2) of the Act.
54. Mr. Rajendra Prasad Singh, learned Advocate, appearing for the petitioners, has brought to our notice that the State Government also, as is evident from the notification No. 437 dated 28th April, 1988, is of the view that since there was no laying before the Houses in terms of the enabling Act, therefore, the Rules have not come into force. But in my view the State Government has taken the said stand under a complete misconception of facts as well as the law and, therefore, the same is wholly inconsequential for the determination of the issue at hand. It needs enquiry as to how and at whose instance and for what objective this stand has been notified.
55. For the reasons aforesaid, I agree with learned Brother S. Ali Ahmad, J. and direct that the writ petitions be dismissed but without cost.