N.H. Bhatt, J.
1. This is a petition by one tax payer of the Ahmedabad Municipal Corporation (hereinafter referred to as the 'Corporation)'. The petitioner challenges the appointment of the respondent No. 3, one Mr. J.M. Shah as the Deputy Municipal Commissioner of the Corporation. The respondent No. 1 herein is the State of Gujarat which is impleaded as a party respondent because the appointment of the respondent No. 3 as the Deputy Municipal Commissioner was accorded approval by the State Government under certain provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the 'Act' for the sake of convenience).
2. A few facts require to be stated. The petitioner claims to be a one-time Municipal Corporator and presently a voter for the municipal elections. He is an ordinary resident within the municipal limits of the Corporation and being a vigilant citizen, he claims to be interested in the fair administration of the second respondent-Corporation which rightly according to him is to act within the framework of law. The third respondent was in the Municipal employment since 10th September 1968. Prior to his appointment as the Deputy Municipal Commissioner he was the Assessor and Tax Collector of the Corporation. Ever since 1961 the post of the Deputy Municipal Commissioner was created by the Corporation with the approval of the State Government as per the powers vested in the Corporation under Section 45(2) of the Act. As a matter of fact, one Mr. M.A. Panchal, the Deputy Municipal Commissioner, had resigned his office with effect from 1-11-1978. The Municipal Commissioner therefore made his proposal by his letter dated 24-1-1979 requesting the Standing Committee of the Corporation to fill in on a permanent basis the said post that had fallen vacant on account of the resignation of Mr. Panchal. As per Section 45(5) of the Act, the Corporation was required to fill in this office within four months from the date on which the vacancy occurred. The Commissioner in his report at page 28 surveyed the situation of work and the past history and practice of selection on earlier occasions. One Mr. Anandi Thakore and one Mr. Patel even though those of departmental promotees did not possess requisite second class degree for being promoted to the offices of the Deputy Municipal Commissioner and the auditor which it is open to the Corporation under proviso appended to Rule 2 in Chapter III of the Schedule 'A' appended to the Act and styled as 'Method of Appointment of certain Municipal Officers and Servants and their Duties and Powers' to fill in out of departmental employees,
3. Accepting the recommendation of the Commissioner, the Standing Committee passed a resolution on 7-2--1979 selecting the Respondent No. 3 as the would-be Deputy Municipal Commissioner and the general board of the Corporation passed the confirming resolution on 30-3-1979 (vide pages 37 and 38 of the petition). The Commissioner wrote to the State Government on 4-4-1979 seeking confirmation of the said proposal. The State Government approved the action on 2-8-1979 for a period of six months in the first instance and 'waived' the requirement of the second class degree of a recognised university (vide page 16). On 7-8-1979 the respondent No. 3 took charge of the office and when the question arose for further extension as per the Commissioner's letter dated 15-1-1980, the present special civil application came to be filed on 4-2-1980 before the expiry of the respondent No. 3's six months' period on 7-2-1980. This Court admitted the matter on 25-2-1980 and restrained the respondent No. 3. from acting as the Deputy Commissioner.
4. The Rules 1,2 and 3 are required to be reproduced below because in the view of the controversy raised in this petition, they will be required to be referred to in extenso in the course of this judgment.
1. Save in the case of temporary appointments made under Sub-section (7) of Section 45 and in the case of acting appointments made under Section 58 no person shall be appointed to any of the post the power of appointment to which vests in the Corporation unless he possesses the qualifications prescribed in this behalf under Rule 3.
2. Before making an appointment to any post referred to in Rule 1 applications shall be invited for such post by advertisement in the local newspapers and the applications received shall be scrutinised by the Commissioner who shall submit to the Corporation through a committee if so required by the Corporation, a list arranged in order of preference of such persons out of those who have applied as he considers qualified for the post:
Provided that, if the Corporation is of the opinion that any officer in municipal service possessing the qualifications prescribed under Rule 3 is a fit person to be appointed to the post, it may appoint such officer to the post without following the procedure prescribed in this rule.
3. Subject to the provisions of this Act, the Corporation shall from time to time prescribe the qualifications required for each post, the power of appointment to which vests in the Corporation, with the approval of the State Government who may, in granting such approval, make such modifications in, or additions to, the qualifications prescribed by the Corporation as it deems fit.
5. Before I go to any controversial aspect, I would like to state certain incontrovertible propositions of law. The post of the Deputy Municipal Commissioner is certainly a statutory post of no mean importance in the hierarchy of municipal administration. Section 45(2) of the Act itself makes provision for this post which the Corporation can create, albeit with the approval of the State Government. Section 49 of the Act further shows the importance of this post. The Deputy Municipal Commissioner appointed under Section 45(2) of the Act can exercise such of the powers and duties of the Commissioner (including powers and duties of a judicial and quasi judicial nature) as the Commissioner shall delegate to him from time to time. The Commissioner of the Corporation is the highest executive officer of the Corporation and so he carries out the policy decisions of the Corporation and he exercises all the executive powers wielded by the Corporation. As per Section 67(3), the entire executive power for the purpose of carrying out the provisions of the Act vests in the Commissioner and Section 69 clothes the Commissioner with the power to delegate his duties and functions (including judicial and quasi-judicial functions) to any other municipal officer subject of course to the restrictions contained in Sub-Sections 2 and 3 of Section 69. In above view of the matter, the importance of the post of the Deputy Municipal Commissioner, a statutory post, cannot be under-emphasised. It is in the light of this legal position that the scope and ambit of the rules quoted above are to be examined.
6. The scheme of the Bombay Provincial Municipal Corporations Act, 1949, deserves to be specifically noted at this stage. Section 453 of the Act deals with rules. The rules specified in Schedule 'A' as amended or added to from time to time are to be treated as part of the Act by legal fiction. Section 454 of the Act confers on the Corporation the power to add to the said Schedule 'A' rules not inconsistent with the provisions of this Act in order to provide for any matter dealt with or for any of the purposes specified in the said Schedule and subject to the same limitations, to amend, alter or annul any rule in the said Schedule 'A'. Section 455 further provides that the Corporation's power to make, add to, alter or rescind any rule under Section 454, is always subject to the sanction of the State Government and to the condition of the rules being made after previous publication. After previous publication and after sanction of the State Government having been obtained, all the rules made under Section 454 are required to be finally published in the Official Gazettee and it is on such publication in the Official Gazettee that these changes in Schedule 'A' have the force of law, in the sense, that they become part of the Act. Even the State Government is clothed with the power under Section 456 of the Act to require the Corporation to make rules under Section 454 in respect of any purpose or matter specified in Section 457 and Section 457 enlists those possible purposes without derogation of the generality of powers conferred by Section 454. So, it is to be noted that rules that are made under Sections 454 to 457 of the Act are integral part of the Act, are expression of the legislative will, either original or derivative.
7. As stated above, Chapter III in the Schedule A appended to the Act deals with 'Method of Appointment of certain Municipal Officers and Servants and their Duties and Powers. 'At the relevant time the rules were what they are presented to be above. Rule 1 of that Chapter HI provides that the Corporation is not entitled to appoint any person to any post 'unless he possesses the qualifications prescribed in this behalf under Rule 3.' The word 'prescribed' appearing in this Rule 1 was the subject matter of a serious debate before me. Mr. Desai and Mr. Mehta, the learned advocates appearing for the respective respondents urged that the word 'prescribed' was not defined in this Act, though ordinarily in all pieces of legislation we come across Shis phrase almost invariably mentioned in the interpretation clause of the Act and it invariably is shown to be as prescribed by the rules and that the question, however, was whether the word 'prescribed' as used in the rules, can be said to mean 'prescribed by rules.' It is to be noted that Rule 1 and other Rules are part of the Act and so an argument can be advanced that the word 'prescribed' ordinarily means 'prescribed by the new rules to be made after the earlier rules forming part of the schedule are brought on the statute book.' Even the Bombay Genera! Clauses Act (Act No. 1 of 1904) does not define the word prescribed. So the legal situation is that the word 'prescribed' occurring in Rule 1 above may not necessarily mean 'prescribed by rules.' Still looking to the scheme of the Act and the Schedule, we have to accept that the word 'prescribed' means 'prescribed under the Act by virtue of rule-making power.' So the word 'prescribed' occurring in Rule I quoted above must necessarily be understood to mean 'prescribed by statutory rules.' The text of Rule 1 shows that prescription of qualifications is under Rule 3. The important clause of Rule 1 is: 'unless he possesses qualifications prescribed in this behalf under Rule 3.' Rule 3 in that connection would show that the rules are to be framed by the Corporation from time to time with the approval of the State Government. So the text of Sub-rule 3 is clearly indicative of the Corporation's power to lay down in genera! qualifications for each post with the approval of the Government from time to time as the exigencies of the moment require. Mr. A.H. Mehta's submission, however, is that unless the statutory rules are made with the gamut of procedural requirements, the rules cannot be amended. It cannot be denied that the language of Rule 1 is emphatic and unequivocal. It is thus laid down that no person who does not possess the qualification laid down by the Corporation under Rule 3 can be appointed to the post save in the case of temporary appointments made under Sub-section (7) of Section 45.
8. The Corporation had made rules prescribing qualifications for municipal officers. They are to be found at pages 60 and 6i of the Ahmedabad Municipal Corporation Manual, Volume I styled as 'Rules' and printed in 1966. The rules, as the footnote at page 60 shows, were sanctioned by the Government under certain notification and the very caption shows that they are the rules made by the Corporation under Section 457(3)(a) of the Bombay Provincial Municipal Corporations Act, 1949. Now the scheme of Chapter XXX of the Act shows that the rules of the type enlisted at Section 457 are the rules which can be made by the Corporation by virtue of the power conferred on the Corporation by Section 454. So the rules in question at pages 60 and 61 of the Corporation's Manual of 1966 are the rules made under Section 454 and therefore they are the rules forming part of the Schedule 'A' which in its turn in the integral part of the Act. So the said rules are the part of the Schedule and so they are for all practical purposes statutory rules, nay they are the provisions of the Act itself. The said Rule 3 with which we are concerned reads as follows:
(3) Deputy Municipal Commissioner: The candidate must have at least a second class degree in Arts, Law, Science, or Commerce of the Bombay University or any recognized university and possess administrative experience of not less than 10 years.
Any foreign or a double degree will be considered an additional qualification.
It therefore cannot be gainsaid that the said rules form part of Schedule 'A' under Section 454 and therefore form part of the Act itself under Section 453 of the Act and therefore it is the statutory mandate for the post.
9. This takes us to the meaning of Rule 3 of the rules in Chapter II of the Schedule which is a statutory rule. The said Rule 3 is already quoted above. Rule 3 confers power on the Corporation to prescribe the change in qualifications from time to time. The question is, what is meant by 'prescribed'? When the rules forming part of the Act can be changed by the Corporation as per Rule 3 of the rules, the question that would arise is whether a statutory Rule (to change which the power is specifically reserved under Section 454 of the Act) can be changed only in the formal manner required by law, that is, Sections 454 and 455 of the Act, or whether it can be changed only by the resolution of the Standing-Committee approved by the General Board of the Corporation and Then approved by the State Government. It cannot be gainsaid that in recommending the case of respondent No. 3 in this case, the Corporation acted fully bona fide. The Standing Committee and the General Board of the Corporation acted in the best interests of the Corporation and the Government approved of the action of the Corporation in the wider interests of the Corporation. The fitness of the respondent No. 3 for the post in all other respect is so well established on the record of this case that even the petitioner could not raise any other accusing finger at him and so what has been alleged as the sole ground for the challenge of the respondent No. 3's appointed is his lacking in the qualifications statutorily laid down by the above-quoted Rule 3 of the rules prescribing qualifications for municipal officers and servants, the rules that were framed under Section 453 of the Bombay Provincial Municipal Corporations Act. Mr. G.N. Desai, the learned Advocate appearing for the Corporation and Mr. N.J. Mehta, the learned advocate appearing for the respondent No. 3, wanted a liberal interpretation to be placed on the Rule 3 which confers on the Corporation the power to prescribe, that is, to lay down the qualifications for the post from time to time. The power is no doubt there, nobody can contend. The question and the sole question that remains to be considered is whether a statutory rule made under Section 45(3)(a) of the Act read with Section 454 of the Act and made in the manner laid down in Section 455 of the Act and forming part of the Act can be legally altered only by the resolution of the Corporation approved by the Government or whether statutory rule like the one can be altered only in the manner laid down in Section 455 of the Act. This is the only legal question that arises in this petition. Fate of this petition depends on the acceptance of the one or the other of the alternative propositions.
10. To me it appears that a statutory rule forming part of the Act can be replaced by a rule similarly made and not by an administrative resolution as has been unfortunately done by the Corporation in this case and equally unfortunately approved by the State Government. The power to amend the Schedule of the Act is laid down in Section 455 and the manner of exercising that power is also laid down in Section 455 of the Act. Sub-section 2 of the Section 455 itself mentions that all rules made under Section 45 (which include the rules amending, altering or annulling any rule in the said Schedule 'A') shall have the effect only after the final publication of the rules in the Official Gazettee. The alleged resolution of the Corporation's Standing Committee approved by the General Board was not the subject matter of a previous publication and a subject matter of final publication. Even if the appointment of the respondent No. 3 is assumed to be notified in the Official Gazettee, it will be a publication only of an individual act and not the publication of an amended rule. Can it said that this so called waiver or relaxation in the case of the respondent No. 3 goes to change the requirement of a second class degree into a third class degree and to make it a matter for all time to come? Even the respondents cannot say that this action of the Corporation amounts to a permanent change in the requirement of qualifications. What the Standing Committee purported to do by following the past two instances in the history of the Corporation and what the Government purported to approve was only an exceptional waiver so called. Such an executive act of waiver is not envisaged by law and cannot be upgraded to the level of attempt at amending the Rule 3 of the Chapter III which is part of the Act. If the rules prescribed for The municipal officers were not framed under Section 45 (3)(a) of the Bombay Provincial Municipal Corporations Act but were only the result of the power exercised by the Corporation under Rule 3, the matter perhaps would have been different. But as the things stand at present, the qualifications for the post of a Deputy Municipal Commissioner are made under Section 457 read with Sections 454 and 455 of the Act and therefore they are part of the Act. While exercising power under Rule 3, what is implicit is that the Corporation should adopt a course to amend the qualification required for that post. Unfortunately the Corporation was led away by its two past precedents not challenged from any quarters then, and therefore did not pause and ponder over the legal and technical aspect of the whole procedure, Statutorily made rules can be amended only by the statutorily laid down method and by no other method. If any precedent is required to be quoted for pinpointing this proposition, we can fruitfully advert to the case of 'Subhaschandra Jain' 1979 (1) S.L.R. p. 306.
11. A half-hearted and therefore feeble plea was raised at the eleventh hour that the petitioner being not a rival aspirant for the post, the writ of quo warranto being intrinsically within the discretion of the Court, the Court should decline to interfere with the order despite the technical flaw in the appointment. I cannot agree, for the obvious reason that the strict adherence to the forms of writs as understood in English law is not necessary under our Constitution. The case of 'Navinchandra Shah v. A 'bad District Co-operative Bank' reported at 19 G.L.R. 108(111) is an answer to the argument. There it has been observed by the Division Bench of this Court inter alia as under:
The High Court can also grant a writ, direction or order under Clause (c) for redress of any injury by reason of any illegality in any proceedings by or before any authorities under any provision referred to in Sub-clause (b) where such illegality has resulted in substantive failure of justice.
The untenable appointment of an unqualified man to a high public post is an injury to the public which is substantial in nature.
12. There is no doubt that some force is there in Mr. Desai's argument as far as moral aspect of the case is concerned, but that force cannot outweigh the force of law, namely, a statutorily made rule forming part of the statute cannot be altered by an executive fiat like the one adopted in the present case. It is really a sorry state of affairs that the respondent No. 3 whose fitness in other respects or for the post was beyond any breath of challenge, comes to suffer but the law is no respecter of persons and situations. The resultant hardship unfortunately caused to the respondents and the respondent No. 3 in particular cannot be helped. In above view of the matter the petition is required to be allowed. The impugned action of the Corporation approved by the Government cannot be sustained as it is violative of the law and therefore the appointment of the respondent No. 3 for the post of Deputy Municipal Commissioner cannot be upheld. It is, however, still open to the Corporation to suitably amend the rules and avail itself of the commendable services of the respondent No. 3 and redress the wrong caused to the respondent No. 3 on account of the technical lapses on the part of the concerned authorities.
13. The petition is according allowed by declaring that the respondents Nos.1 and 2 have no right to continue the respondent No. 3 in the post of the Deputy Municipal Commissioner. This declaration is confined to the period after 7th February 1980 but not the earlier period because the respondent No. 3 without any challenge had functioned as such. Rule is accordingly made absolute with no order as to costs.