(1) The petitioner and respondents 2, 3 and 4 were, all of them, regional transport officers prior to 22nd november, 1966. It is not disputed that the petitioner was senior to respondents 2, 3 and 4 on that date. On 22nd november, 1966, the second respondent was promoted as deputy transport commissioner by g. O. Ms. No. 2516. On 24th march, 1967 the third respondent was promoted as deputy transport commissioner by g. O. Ms. No. 532. Both these promotions were on a regular basis. On 17th april, 1967 the fourth respondent was temporarily promoted as a deputy transport commissioner by g. O. Ms. No. 729.

(2) I understand that he has since been reverted and his temporary promotion is now not in question before me. The promotions of respondents 2 and 3 made on a regular basis are the subject - matter of this writ petition. The posts of deputy transport commissioners were sanctioned by g. O. Ms. No. 1257, dated 3rd june, 1960. In exercise of the powers conferred by the proviso to article 308 of the constitution, by g. O. Ms. No. 660, dated 31st march, 1961, the governor of andhra pradesh made rules constituting the posts of deputy transport commissioners as a distinct category in the andhra pradesh transport service and making the general and special rules applicable to that service applicable to persons holding the posts of deputy transport commissioners. It was expressly stated in rule (2) that

"appointment to the post of deputy transport commissioners shall be made by promotion from among the assistant secretaries, state transport authority, or the regional transport officers"

.

Rule 2 (5) also provided that

"promotion shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal."

g. O. Ms. No. 660 was superseded by g. O. Ms. No. 1238, dated 28th june, 1963. This was also issued in exercise of the powers conferred by the proviso to article 309 of the constitution. By this g. O. The general and special rules applicable to holder of permanent post of secretary, state transport authority in category i of the andhra pradesh transport service were made applicable to holders of posts of deputy transport commissioners and the posts of deputy transport commissioners were to constitute an addition to category i in the said service. The result of g. O. Ms. No. 1238 was that the rules called the' andhra pradesh transport service rules, 1958' made by g. O. Ms. No. 1570, dated 11th october, 1958 became applicable to posts of deputy transport commissioners who were placed in category i of the andhra pradesh transport service along with the secretary, state transport authority. Under rule 3 (a)

"appointment to the post of secretary, state transport authority shall be made by promotion from assistant secretaries, state transport authority or regional transport officers"

.

(3) Under rule 3 (c) of those rules

"promotion as secretary, state transport authority shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal."

It followed from these rules that appointment to the post of deputy transport commissioner was to be made on grounds of merit and ability from among assistant secretaries, state transport authority, and regional transport officers. These rules were in force on the date when the second respondent was promoted on grounds of merit and ability and hence his promotion cannot be questioned by the petitioner whose claim is based entirely on the ground of seniority.

(4) G. O. Ms. No. 1570, dated llth october, 1958 containing the andhra pradesh transport service rules was published as notification no. 496 in the andhra pradesh gazette of 30th october, 1958. G. O. Ms. No. 375, dated 1st march, 1967 was issued by the governor of andhra pradesh ir exercise of the powers under the proviso to article 309 of the constitution superseding the rules contained in notification no. 496, dated 11th october, 1958 and making special rules for the andhra pradesh transport service to be known as ' the andhra pradesh transport service rules 1967'. These rules were published in the andhra pradesh gazette on 6th april, 1967 at pages 436 to 438 of part i. For some unexplained reason, these rules did not contain any provision corresponding to rule 3 (c) of the previous rules. The matter was however soon rectified and by g. O. Ms. No. 1574, dated 18th september, 1967, a new rule 3 (c) was introduced which is in the same terms as rule 3 (c) of the previous rules. The omission of any provision corresponding to old rule 3 (c) and the later amendment introducing such a provision resulted in the position, that in the interregnum, the post of deputy transport commissioner was not a selection post and during that period promotion to that post could only be made under the general provision contained in rule 34 (b) (ii) of the andhra pradesh state and subordinate service rules, part ii. Rule 34 (4) is as follows :

"promotion to selection category or grade - promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority being considered only where merit ? nd ability are approximately equal. (ii) promotions according to seniority - all other promotions shall, subject to the provisions of rule 16, be made in accordance with the seniority unless - (1) the promotion of a member has been withheld as a penalty ; or (2) a member is given special promotion for conspicious merit and ability."

The promotion of the third respondent was on 24th march, 1967, i. E. Subsequent to the date of g. O. Ms. No. 375 and it is therefore the contention of the petitioner that the promotion is illegal as it is made in contravention of rule 34 (b) (ii). His contention is that he is senior to the third respondent and as he does not suffer from the disqualification mentioned in rule 34 (b) (ii) (1) , he must be promoted in preference to the third respondent. Though it is stated in the counter - affidavit filed or behalf of the government that the third respondent was promoted on grounds of conspicious merit and ability ir terms of rule 34 (6) (ii) (2) , the petitioner's contention is that this statement in the counter affidavit is only an afterthought and that the authorities concerned while making the promotion were not aware of the fact that new rules had been made or that the new rules did not contain a provision similar to rule 3 (c) of the old rules. In the counter - affidavit filed on behalf of the government, it is mer tioned that promotion of the third respondent was made on grounds of conspicuous merit and ability'. It is unfortunate that such a statement should have been made in the counter - affidavit because i find on a perusal of the several files produced before me that the words ' conspicuous merit and ability' are conspicuously absent from the notes made by the various authorities concerned before issuing the g. O. Promoting the third respondent.

(5) They have clearly proceeded on the basis of the old rules, and only on that basis, decided that the third respondent had claims superior to that of the petitioner for promotion. rule 34 (b) (ii) does not appear to have been present to the minds of those that decided the question of promotion. The third respondent in his counter - affidavit has taken the stand that since g. O. Ms. No. 375 was published in the andhra pradesh gazette on 6th april, 1967, the new rules must be held to have come into force only on 6th april, 1967 and therefore his promotion made on 24th march, 1967 was properly made under the old rules. If as contended by the third respondent, the rules came into force only on 6th april, 1967, the promotion of the third respondent as deputy transport commissioner would be perfectly valid. If on the other hand, the rules came into force on 1st march, 1967, the date of g. O. Ms. No. 375, the promotion of the third respondent would not be validly made. The question, therefore, that squarely falls for consideration is, whether rules made under article 309 of the constitution of india take effect from the date of the government order or from the date of publication in the official gazette.

(6) The constitution of india does not contain any provision determining the precise point of time at which rules made under article 309 come into effect. The general clauses act, 1898, which by article 367 of the constitution has been made to apply to interpret the constitution does not also contain any provision regarding the time when rules made under various enactments take effect. The difficulty and the uncertainty created by want of suitable provision in the general clauses act has been noticed by the supreme court in state of maharashtra v. Mayer hans george, (1965) 35 comp. Cas. 557 : (1966) m. L. J. 123: a. I. R. 1965 s. C. 722. (crl.) 348 : (1966) 1 s. C. J. 363 : (1965) 1 s. C. R. In that case the question arose whether the accused could be held to have contravened a notification, dated 8th november, 1962 and published in the official gazette on 24th november, 1962 prohibiting the bringing into india of any gold coin, gold bullion, gold sheets or gold ingot. The notification was made under the provisions of the foreign. Exchange regulation act, 1947. The accused was a passenger by a swiss plane from zurich to manilla. The plane touched santa cruz air port on 28th november, 1967, when the customs officers, on the basis of previous information, entered the plane and searched the person of the accused recovering from his jacket gold slabs weighing approximately 34 kilos. The argument for the accused was that since the foreign exchange act did not prescribe the time when notification made under the act took effect, such notifications could take effect only when they came to the notice of the persons affected. Since the accused in that case had no knowledge of the notification, it was argued that he could not be convicted. This argument was repelled by the supreme court and their lordships held that in the case of general orders as distinguished from orders directed to individuals, all that the subordinate law making body need do was to publish it in such a manner that interested persons could acquaint themselves with its conter ts. It was held that publication in the official gazette, being the recognised mode by which such notifications were usually published, was sufficient and that the notification, dated 8th november, 1962 was effective, at any rate from 25th november, 1962. Dealing with the question when subordinate legislation took effect their lordships observed :

"there is no provision in the general clauses act as regards the time when subordinate legislation enacted under powers conferred by acts of the central legislature shall come into effect. There is no provision either in the particular act with which we are concerned determining the point of time at which orders made, or permission granted by virtue of powers conferred by the parent statute would come into operation. Before parting from this topic we would desire to make an observation. There is undoubtedly a certain amount of uncertainty in the law except in cases where specific provision in that behalf is made is individual statutes as to (a) when subordinate legislation could be said to have been passed, and (b) when it comes into effect. The position in england has been clarified by the statutory instruments act of 1946, though there is a slight ambiguity in the languag employed in it, which has given rise to disputed questions of construction as regards certain expressions used in the act. We consider that it would be conducive to clarity as well as to the avoidance of unnecessary technical objections giving occasion for litigation if an enactment on the lines of the u. K. Statutory instruments act, 1946 were made in india either by an amendment of the general clauses act or by independent legislation keeping in mind the difficulties of construction to which the u. K. Enactment has given rise."

(7) Notwithstanding the difficulty pointed out by the supreme court, since the questior has squarely arisen in this case, i have to answer it and i shall proceed to do so as well as i can. Law, whether parliamentary or subordinate, demands compliance and those that are governed must therefore be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the ' conscientious good man ' seeking to abide by the law or from the standpoirt of justice holmes's ' unconscientious bad mnn,' seeking to avoid the law, law must be krown, that is to say, it must be so made that it can be known. Parliamentart legislation is often preceded and accompanied by a fan fare of publicity. The legislation is publicly made ; debates are open to the public and freely reported in the newspapers. The legislation itself is made, as pointed out by bose, j. , in a case to which i shall presently refer,

" by the accredited representatives of the people who in theory car be trusted to see that their constituents known what has been done"

. But in the case of subordinate legislation, rules and orders are often made in the ' secret recesses of the chamber of a minister' or a secretary to the government; or some other government official. The general public or even the interested public can and may never know the rules and orders made to affect them unless those rules are published or promulgated.

(8) Though, generally introduced unobtrusively and seldom attended by the flourish of bugles, delegated or subordinate legislation is all pervasive and there is hardly any field of activity where governance by delegated legislative powers is not as important, if not more important, than governance by parliamentary legislation. One has only to go through any issue of the official gazette to realise how much we are governed by subordinate legislation. Is it then not just to those that are governed that they should be informed of the law that governs them ? justice vivian bose called this a principle of natural justice, though, i have no doubt, that the learned judge did not mean to add to the two great principles of natural justice. Nemo judex in causasua and audi alteram partem. What the learned judge meant was that the principle that there can be no law. That is not published or promulgated is as true a principle of justice and fair play as any prirciple of natural justice. Judges in india are brought to administer law according to the principle of justice, equity and good conscierce. In harla v. State of rajasthan, (1951) s. C. J. 735 : (1952) s. C. R. 111 : a. I. R. 1951 s. C. 467 the facts were these. During the minority of the maharaja, of jaipur, a council of ministers appointed by the grown representative was authorised to make laws for the state. On 11th december, 1925 the council of ministers passed a resolution purporting to enact the jaipur opium act. The act was never promulgated or published in the gazette or made known to the public by other means. The question arose whether the mere passing of the resolution was sufficient to make it law. Vivian bose, j. , with whom agreed mahajan, j. , was of the emphatic opinion that it was not. He observed : -

"in the absence of any special law or custom, we are of opinion that it would br against the principles of natural justice to permit the subjects of a state to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, a t the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential."

(9) I most respectfully agree that the idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour or totalitarianism and of the gestapo. It is repugnant to the principles of justice, freedom, equality and fraternity, cherished by all lovers of democracy and enshrined in our constitution.

(10) In johnson v. Sargant, l. R. (1918) 1 k. B. 101. Bailhache, j. , held that an order did not take effect until it " became known ". In that case the order had been signed on 16th may but was not published and did not become known to the trade till 17th may. The learned judge observed : -

"while i agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come into operation, there is about statutes a publicity even before they come into operation which is absent in the case of many orders such as that with which we are now dealing ; indeed, if certain orders are to be effective at all, it is essential that they should be known until they are actually published. In the absence of authority upon the point, i am unable to hold that this order came into operation before it was known, and, as i have said, it was not known till the morning of 17th may."

It is true, as bailhache, j. , points out, that it is essential that some laws should not be known until they are published ; otherwise, they will lose their efficacy. But if such laws cannot be made known previously, they can at least be made known contemporaneously. Sir c. K. Allen in his " law and orders ", characterising this judgment as a bold example of judge made law 'has criticised it not on the ground that it is not reasonable, because he accepts the position that ' on the face of it', it would seem reasonable that legislation of any kind should not be binding until it has somehow been 'made known to the public' but on the ground that such a rule if accepted would ' seriously and most inconveniently' impair 'the automatic cogency of a statute which has received the royal assent'. But bailhache, j. , was dealing with a case of delegated legislation and not parliamentary legislation and did not claim for the rule laid down by him, universal applicability. Johnson v. Sargant, l. R. (1918) 1 k. B. 101. Has, however been cited without reservation by both maxwell (interpretation of statutes, 11th edition, page 397) and craies (statute law, 6th edition, page 302). The supreme court quoted bailhache, j. , with approval in harla v. State of rajasthan, (1951) s. C. J. 735 : (1952) s. C. R. 111 :a. I. R. 1951 s. C. 467. In state of maharashtra v. Mayer hans george, (1966) m. L. J. (crl.) 248 : (1966) 1 s. C. J. 363 : a. I. R. 1965 s. C. 732. Rajagopala ayyangar, j. , while observing that he saw great force in sir c. K. Allen's comment on the reasoning of bailhache, j. , did not however dissent firm it. The learned judge was content to say that even adopting the view of bailhache, j. , the notification in. Question had been brought to the notice of all concerned by publication in the gazette. In simms motor units v. Minister of labour, (1946) 2 all e. R. 201. Pursuant to general instructions. Given by the minister, the national service officer directed the reinstatement by the management of in industrial undertaking, of a dismissed employee. The minister was competent to issue such general instructions by an order made under the defence regulations. The question arose whether these general instructions issued by the minister but which were not ' published in the proper way for the information of the public and those who are bound to comply with the regulations could be described as orders made under the defence regulations. It was held that they were mere directions and for want of publication did not attain the status of ' orders' under the defence regulations. This case also supports the view that the status of subordinate legislation cannot be attained unless there is publication.

(11) In lim chin aik v. The queen, l. R. (1963) a. C. 160. The judicial committee of the privy council had to consider the question in the following circumstances. The singapore immigration ordinance provided that the minister may, by order, prohibit the entry or re - entry into the colony of any persons or class of persons. It was also provided that every such order should ' take effect and come into operation on the date on which it is made ' and that where the order 'relates to a class of persons it shall be published in the gazette '. On 28th may, 1959 an order prohibiting the appellant from entering singapore was made by the minister. The order was communicated to the controller of immigration but no other step was taken by way of publication or otherwise so as to bring the order to the attention of the appellant - or indeed of anyone else. The question arose whether the appellant who entered singapore in june could be said to have contravened the prohibitory order. Dealing with the argument that the prohibitory order was law and that the appellant could not plead ignorance of law as an excuse, lord evershed observed :

"it is convenient to dispose at once of mr. Le quesne's first suggested answer to this question which was an invocation of the precept that ignorance of the law is no excuse. It was said on the respondent's part that the order made by the minister under the powers conferred by section 9 of the ordinance was an instance of the exercise of delegated legislation and therefore, that the order, once made, became part of the law of singapore of which ignorance could provide an excuse upon a charge of contravention of the section. Their lordships are unable to accept this contention. In their lordships' opinion, even if the making of the order by the minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede) , the maxim cannot apply to such a case as the present where it appears that there is in the state of singapore no provision, corresponding, for example, to that contained in section 3 (2) of the english statutory instruments act of 1946, for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate enquiry to find out that ' the law ' is. In this connection it is to be observed that a distirction is drawn in the ordinance itself between an order directed to a particular individual on the one hand and an order directed to a class of persons ot? the other ; for sub - section (3) (b) of section 9 provides in the latter case both for publication in the gazette and presentation to the legislative assembly."

(12) In state of maharashtra v. Mayer hans george1, (1966) m. L. J. (crl.) 248: (1966) 1 s. C. J. 363 : a. I. R. 1965 s. C. 722. Subba rao, j. , as he then was, expressed his whole - hearted approval of lord evershed's judgment characterising it as an 'illuminating judgment'. Rajagopala ayyangar, j. , distinguished the judgment on the ground that in lim chin aik's case, l. R. (1963) a. C. 160. The impugned order was never published and was one with respect to a single individual and not a general order. As a result of the above discussion, i have arrived at the conclusion that subordinate legislation to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation, that mode must be followed but where the statute is silent, the question arises what is the mode of publication or promulgation to be adopted. The subordinate legislation itself may prescribe the manner of publication, in which case such mode, if adopted may be sufficient, if reasonable. I am guardedly adding the words 'if reasonable' because it is not easy to visualise cases where the mode of publication prescribed by subordinate legislation may be wholly unsuitable. If affixture on the notice board of the central secretariat of rules under enactments of universal application in the country is prescribed as the mode of publication, it can never be said to be a satisfactory or reasonable mode of publication. If the subordinate legislation does not prescribe a mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the channel, now customarily recognised in our country as the appropriate channel through which official orders are made known to the public, namely the official gazette. In my view, subordinate legislation of a general nature takes effect on the date when it is published in the official gazette, except where statute provides otherwise or where the subordinate legislation itself provides a different but reasonable mode of publication.

(13) All that i have said in the precedieg paragraph is in relation to subordinate legislation of a genenal character. There may however be subordinate legislation concerning individuals or confined to small local areas. In such cases publication or promulgation by other means may be sufficient. I am not venturing to go into that question at all.

(14) In the present case, the andhra pradesh transport service rules, 1967, is subordinate legislation of a general character. G. O. Ms. No. 375, dated 1st march, 1967 by which the rules are made begins with the sentence ' the following notification shall be published in the andhra pradesh gazette'.

(15) The subordinate legislating authority has thus clearly prescribed the manner of publication. The rules therefore become effective on the date of publication in the gazette, i. E. , 6th april, 1967. The promotion of the third respondent was therefore under the old rules and hence valid. The writ petition is accordingly dismissed with costs. Advocate's fee rs. 100. Petition dismissed.