2009 Supreme(SC) 1775

2009(7) Supreme 595
SUPREME COURT OF INDIA
R. V. Raveendran and G. S. Singhvi, JJ.
Rajendra Agricultural University — Appellant
versus
Ashok Kumar Prasad & Ors. — Respondents
Civil Appeal No. 6937 of 2004
Decided on : 30-11-2009

IMPORTANT POINT
Once the law lays down that publication of a statute in the Official Gazette is a part of process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and onthe other hand, fulfilment of the requirement to make public the statute bypublication in the Official Gazette becomes mandatory and binding.

Headnote:Bihar Agricultural Universities Act, 1987 – Section 36 – Whether a statute made under section 36 of Act, 1987, providing for a benefit to the teaching staff, for which assent had been given by Chancellor could be enforced in the absence of publication in the official Gazette-Held when the Act lays down the manner in which a statute under the Act should be made, it shall have to be made in that manner and no other – The requirement that the statute should be published in the official Gazette, is an integral part of the process of ‘statute making’ under section 36 of the Act – It is mandatory and not directory – Until publication in the official Gazette, the statute will be considered as still being in the process of being made, even if had received the assent of the Chancellor – A ‘statute in the making’ or a ‘statute – in – process’ is incomplete and is neither valid nor effective as a statute-So long as the statute is not completely made,but is still in the process of being made, it can be cancelled or withdrawn or modified, without the need for ‘publication’ of such cancellation, withdrawal or modification – The Chancellor kept the ‘statute-in –process’ pending and later reconsidered it and held that the Statute proposing time bound promotion scheme was still-born and non – est – If the parent law had been silent about the manner of publishing or notifying the statute, and had not prescribed publication in official Gazette as the mode of publication, the contentions of respondents might have merited some consideration – But when the Act clearly provided that the statute required publication in the Gazette, requirement became mandatory – Held not possible to accept the contention that the statute contained in the notification came into effect or became enforceable even in the absence of publication in the official Gazette- High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette – Impugned order of High Court set aside –Appeals allowed. (Paras 9, 12 to 17)

       Facts of the Case :

        Issue in consideration in present case was whether a statute made under section 36 of Act, 1987, providing for a benefit to the teaching staff, for which assent had been given by Chancellor could be enforced in the absence of publication in the official Gazette.

       Findings of the Court :

        When the Act lays down the manner in which a statute under the Act should be made, it shall have to be made in that manner and no other. The requirement that the statute should be published in the official Gazette, is an integral part of the process of ‘statute making’ under section 36 of the Act.It is mandatory and not directory.Until publication in the official Gazette, the statute will be considered as still being in the process of being made, even if had received the assent of the Chancellor. A ‘statute in the making’ or a ‘statute-in-process’ is incomplete and is neither valid nor effective as a statute.So long as the statute is not completely made,but is still in the process of being made, it can be cancelled or withdrawn or modified, without the need for ‘publication’ of such cancellation, withdrawal or modification. The Chancellor kept the ‘statute-in-process’ pending and later reconsidered it and held that the Statute proposing time-bound promotion scheme was still-born and non-est.. If the parent law had been silent about the manner of publishing or notifying the statute, and had not prescribed publication inofficial Gazette as the mode of publication, the contentions of respondents might have merited some consideration. But when the Act clearly provided that the statute required publication in the Gazette, requirement became mandatory.Held not possible to accept the contention that the statute contained in the notification dated 4.9.1991 came into effect or became enforceable even in the absence of publication in the official Gazette. High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time-bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. Impugned order of High Court was set aside-Appeals were allowed.