ivil Appeal Nos
993  994 of 1976
378 From the Judgment and Order dated 1691974 of the Allahabad High Court in Spl
Civil Appeal Nos 622  623 of 1972
RK Virmani for the Appellant
MV Goswami and SS Khanduja for the Respondents
The Judgment of the Court was delivered by M FATHIMA BEEVI J
1
These two appeals by special leave are filed by the Municipal Board Bareilly against the judgment of the Allahabad High Court quashing the Ga zette Notification dated August 27 1969 amending the octroi schedule of the Bareilly Municipality so as to impose octroi on mineral oil
The respondents Bharat Oil Company and others filed writ petitions under Article 226 of the Constitution of India challenging the notification on the ground inter alia that the appellant the Municipal Board Bareilly hereinaf ter referred to as the Board  had no authority to impose octroi on mineral oil in view of the proviso to Rule 13 1 of the octroi Rules contained in the UP Municipal Account Code 1925
This was countered by the appellant stating that the R 13 1 was superseded by the 1963 rules which govern the imposition of octroi by the appellant Board
The Single Judge in allowing the Writ Petitions took the view that R131 restricted the power of the Board to impose the octroi and the subject matter of the rule is not covered by the 1963 rules
The appeals preferred were dismissed by the Division Bench of the High Court agreeing that the bar under R 131 regarding the imposition of octroi duty on mineral oils continued notwithstanding the 1963 rules
The appellant is a Municipal Board governed by the provisions of the UP Municipalities Act 1916 hereinafter referred to as the Act 
Section 128 of the Act provides for imposition of taxes by a Municipal Board
The relevant part of the said section reads as under 128
Taxes which may be imposed 1 Subject to any general rules or special orders or  the State Government in this behalf the taxes which a board may impose in the whole or any part of a municipality are i x x x 379 viii an octroi On goods or animals brought without the municipality for consump tion use or sale therein
Sections 13 1 to 135 of the Act contain provisions relating to the framing of proposals for the imposition of taxes by the Municipal Board inviting objections to the said proposal the approval of the said proposal by the State Government the framing of rules by the State Govern ment on the basis of such proposals under Section 296 of the Act and for the issue of a notification about the impo sition of tax from the appointed date
Section 153 of the Act provides that assessment and collection of taxes and other matters relating to taxes may be regulated by Rules
Section 296 empowers the State Gov ernment to make rules in respect of matters described in Section 153
In exercise of the powers under Sections 13 1 to 135 and 296 of the Act the Government of the United Provinces framed octroi rules which were published vide notification dated the 25th October 1925
The said rules are included in the Municipal Account Code Chapter X Rules 13 1 to 23 1 published by the Government of UP 7
Rule 13 1 provided that subject to the exceptions contained in the proviso octroi may be ordinarily levied on commodities included in the list set out in the said rule
The proviso to this rule stated that octroi shall not be levied on certain articles which included mineral oil
Rule 131 was amended vide notification dated the 2nd November 1953 and for the words the mineral oil in the proviso the words mineral oils classified as motor spirit kerosene or diesel oil were substituted
Separate rules for the assessment and collection of octroi in the Bareilly Municipality were framed by the Government of UP in exercise of the powers conferred by Section 296 of the Act
The draft rules were notified vide notification dated the 16th February 1963 and published in the UP Gazette dated 23rd February 1963
The said notifi cation reads as under No 89 BXI C 129 60
The following draft of the rules for the assessment and collection of octroi in the Bareilly Municipality in super session of the existing octroi rules contained in the Municipal Account Code in so far as they apply to the said municipality which the Governor of Uttar 380 Pradesh proposes to make in exercise of the powers conferred by Section 296 of the UP Municipalities Act 1916 UP Act No II of 1916 is published as required by subsection 1 of section 300 of the said Act for the information of all concerned with a view to invite objections and suggestions in respect thereof
Final Rules were notified vide notification dated the 7th May 1963 and published by the Government in the UP Gazette dated the 11th May 1963 as required under section 300 of the Act
By notification dated the 24th July 1963 published in the UP Gazette dated the August 3 1963 the appellant Board imposed octroi duty on goods and animals brought within the octroi limits of Bareilly Municipality for con sumption use and sale at the rates shown in the schedule to the said notification and subject to the exceptions con tained therein
Item 29 of the exceptions contained in the schedule related to mineral oils classified as motor spirit kerosene and diesel oil
The said notification came into operation from November 16 1963
Thereafter the levy of octroi in the Bareilly Municipality was governed by 1963 rules
The amendments were made in the octroi schedule both in the rates as well as in the exemption and as a result thereof motor spirit kerosene and diesel oil were removed from the exemption clause and were subjected to the octroi duty  1 paisa per litre vide notification dated August 27 1969
The validity of the notification dated the 27th August 1969 was challenged before the High Court in the Writ Petitions Nos
1805 and 4696 of 1970 by respondents on the ground that 1925 rules take away the power from all Municipal Boards to impose octroi duty on mineral oils and until such power is restored under a contrary notification issued under Section 128 of the Act the Board did not have any justification to assess or collect octroi duty on miner al oils
The impugned judgment proceeded on the basis that Rules 13 1 to 133 of the 1925 rules have been made by the State Government in exercise of the powers conferred upon it by the opening words of Section 1281 and they are not rules under section 153 for the assessment and collection of octroi
It was also held that the subject matter of these rules is not covered by the 1963 rules and therefore the 1963 rules cannot supersede R 13 1 of the 1925 Rules
A Full Bench of the Allahabad High Court in Ms Central Dis tillery Chemicals Works Ltd  Another vs State of UP  Others 1980 All LJ 62 following the 381 decision of this Court in Municipality of Anand vs State of Bombay  overruled the impugned decision holding that the special rules which are in relation to a particular tax and a particular Municipal Board will over ride or supersede the general rules framed by State Govern ment under Section 153 read with Section 296
The appel lant s learned counsel relied on the Full Bench decision and maintained that the rules framed by the Board prevail over the rules contained in the Municipal Account Code and the notification is therefore valid
In our view the approach made by the Full Bench of the High Court in Ms Central Distillery Chemicals Works Ltd vs State of UP supra is correct and has to be approved
As pointed out by this Court in Municipal Board Hapur vs Raghuvendra Kripal and Others  taxes raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature
The tax is valid one if it is one of the taxes the local authority can raise and the delegate imposes it in accordance with the conditions laid down by the legislature
The taxes that can be raised in exercise of delegated power are predetermined and procedure is prescribed by the Municipal Act
Thus Section 128 of the UP Municipalities Act confers on the municipalities in the State the power to levy taxes enumer ated thereunder
The power conferred is not absolute but is subject to any general rules or special orders of the State Government in this behalf
Section 1281 does not confer any independent rule making power
The general rules re ferred to in that Section can only be the rules in the matter of such levy specified in Section 153 of the Act and framed in exercise of the power under Section 296 of the Act
The State Government is empowered under Section 296 to make rules consistent with the Act in respect of matters described in Section 153
Rules framed under Section 153 constitute the exclusive machinery for assessment and col lection of taxes
The relevant part of Section 153 reads as under 153
Rules as to assessment collection and other matters
The following matters shall be regulated and governed by rules except in so far as provision therefor is made by this Act namely a the assessment collection or composition of taxes and in the case of octroi or toll the determination of octroi or toll limit 382 f any other matter relating to taxes in respect of which this Act makes no provision or insufficient provision and provision is in the opinion of the State Government neces sary
 In prescribing the procedure for the impositon of taxes by the board Section 13 1 of the Act requires the board while framing the proposal to prepare a draft of the rules which it desires the State Government to make in respect of the matters referred to in Section 153 and publish the same
When the proposals have been sanctioned the State Government makes the necessary rules in respect of the tax under Sec tion 296
The rules referred to in Section 1281 are rules thus framed by the State Government under Section 296 in respect of matters referred to in Section 153
Section 3002 expressly provides that any rule or regulation made by the State Government may be general for all municipali ties or may be special for anyone municipality as it di rects
The Municipal Manual published by the Government contains the general rules made by the Government under the Act and general orders issued in Volume 1
The second volume contains the Municipal Account Code
The General Rules and orders are contained in Chapter I to XII of Part I
The Explanation in Chapter I reads as under The Rules in this Manual which are printed in pica type together with their explana tions illustrations and exceptions have the force of law having been made by the Govern ment in exercise of the powers conferred by section 296 of the Act and except where otherwise stated are applicable to all munic ipalities
The notifications in which they were published are referred to on the margins of the pages
 Part II contains the model rules bye laws and regulations
Section A deals with Rules with reference to Section 153 of the Act thus The following model rules have been framed by the Government for the assessment and collec tion of taxes other than octroi under section 153 and 296 of the Act
It is anticipated that they will be found generally applicable to the circum stances of the municipalities of these prov inces and it is desirable that the model forms 383 should be adhered to unless there are special reasons justifying any divergence from them
In forwarding proposals for the imposition of additional taxation boards are reminded that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specif ically referred to in the proposals submitted
II contains the Municipal Account Code
Chapter X deals with octroi and provides in R 13 1 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list
In Mool Chand vs Municipal Board Banda AIR 1926 All 5 17 it was held that the rules contained in the Code have as much force of law as the Act itself
The octroi rules contained in Chapter X of the Municipal Account Code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment collection etc
The rules are general for all municipalities
The 1963 rules are framed for the appellant board expressly superseding the general rules in so far as they apply to the appellant board
By framing the 1963 rules the government evinced the intention to cover the field which was covered by 1925 rules in so far as the Bareilly Municipality was concerned
The subject matter dealt within 1963 rules is the same as that dealt with in 1925 rules
The intention to supersede the earlier rules is clearly expressed
The rule has the force of law
Rule 13 1 of 1925 rules has no longer any applica tion in the matter of levying octroi by the appellant board
That rule stands repealed in so far as the appellant Board is concerned
The rule cannot therefore be read as cur tailing the power under Section 1281viii of the Act to impose octroi
Rules do not enlarge or restrict the authori ty to impose tax
Authority is conferred by the section
Rules are only regulating the exercise of that power
The imposition of the tax and the regulation of its assessment and collections are totally different matters and they are clearly distinguished
In Zaverbhai Amaidas vs The State of Bombay 1955 1 SCR 799 this Court reiterated the rule of construction that if a later statute deals with the same subject matter and varies the procedure the earlier statute is repealed by the later statute
In The Municipality or Anand vs State of Bombay 1962 2 Supp
SCR 366 construing section 59 of the Bombay District Municipal Act 1901 which is in pari materia with 384 section 128 of the UP Municipalites Act this Court said the word impose  in section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government
The opending words of section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act
The rule making power under Section 296 read with Section 3002 of the Act enables the State Government to except anyone municipality from the operation of the general rule by express provision in that behalf
When the identical author ity in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules it must be deemed that existing rules are repealed to that extent
The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Govern ment in the Gazette as provided under Section 300 and therefor Rule 13 1 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is concerned
In this view of the matter we hold that the appel lant Board had authority to levy octroi on mineral oils and challenge against the impugned notification is not sustain able
The High Court was clearly in error in quashing the same and restraining the Board from assessing and collecting the tax
We accordingly allow the appeal and set aside the judg ment of the High Court
In the circumstances of these cases we however make no order as to costs


Summary:
The State of Bihar published an advertisement inviting applications for appointments to the junior teaching posts in medical colleges in the State of Bihar
For the post of Assistant Professor
only such officers who had worked as Resident or Registrar in Medical Hospitals recognised for imparting MBBS studies by the Medical Council of India and having three years experience of such post were consid ered eligible
The last date for receipt of applications was fixed as 31st January 1988
Pursuant to the said advertise ment
applications from eligible candidates were received and a select list or panel was prepared for appointments to the respective posts
The respondents and some other inter venors who were working then in the Medical colleges as junior teachers challenged the State action in fixing the 3 1st of January 1988 as the cut off date for receipt of applications for the advertised posts
as they had by then not completed three years which was prescribed as the requi site experience
It was contended by them that the cut off date was arbitrarily fixed and was therefore violative of Article 14 of the Constitution
The High Court took the view that the State Government in fixing the 31st January 1988 as the cut off date
had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year
Hence this appeal by the State of Bihar by special leave
It is contended by the State that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was always  fixed as 30th of June of the relevant year in the past
Allowing the appeal this Court
HELD The past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement
Following the past practice the State 469 Government fixed the last date for receipt of applications as 31st January 1988
These who had completed the required experience of three years by that date were
therefore
eligible to apply for the posts in question
474G H The choice of date cannot be dubbed as arbitrary even if no particular reason is forth coming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark
The choice of the date for advertising the post had to depend on several factors eg the number of vacancies in different disciplines
the need to fill up the posts
the availability of candidates etc 475C D Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January 1988 to 30th June 1988
is no reason for dubbing the earlier date as arbitrary or irrational
475D The High Court was clearly in error in striking down the Government s action of fixing the last date for receipt of application as 31st January 1988 as arbitrary
475E Municipal Board Pratabgarh  Anr
vs Mahendra Singh Chawla  Ors  Union of India  Anr
vs Ms Parameswaran Match Works  Ors  and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitika ran Abhiyan Samiti Varanasi vs State of Uttar Pradesh  Ors  referred to