State
of Rajasthan Vs. Mangilal Pindwal [1996] INSC
769 (8 July 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Nanavati G.T. (J) S.C. Agrawal,
J.
CITATION:
1996 SCC (5) 60 JT 1996 (6) 162 1996 SCALE (5)38
ACT:
HEAD NOTE:
THE
8TH DAY OF JULY, 1996 Present:
Hon'ble
Mr.Justice S.C. Agrawal Hontble Mr.Justice G.T. Nanavati Aruneshwar Gupta and Manoj
K. Das, Advs. for the appellant
The
following Judgment of the Court was delivered:
State
of Rajasthan V.0 Mangilal Pindwal
The
question that falls for consideration in this appeal relates to the validity of
the amendment introduced in Rule 244(2) of the Rajasthan Service
Rules,1951.(herein after referred to as the 'the Rule') by notification dated
March 11, 1976. Rule 244 (2) makes provision for compulsory retirement of
Government servant.
The
respondent was employed as an Upper Division Clerk with the Government of
Rajasthan. After he had completed 25 years of qualifying service he was
compulsorily retired by order of the Collector, Ajmer dated March 31, 1973 on
payment of three months' pay and allowances in lieu of notice, The said order
was passed under sub-rule (2) of Rule 244 of the Rules. Along with the order of
Compulsory retirement a bank draft for a sum of Rs. 1,494/- representing three
months' pay and allowances was sent to the respondent. The respondent filed a
writ petition in the Rajasthan High Court Challenging tithe said order of
compulsory retirement. The said writ petition was allowed by the learned Single
Judge of the High Court by order dated January 17, 1978 on the ground that
there was non-compliance with the provisions of sub-rule (2) of Rule 244 of the
Rules inasmuch as the amount paid to the respondent towards three months pay
and allowances along with the order of compulsory retirement was short by Rs.
120/-. On January 28,
1978 notification
dated March 11, 1976 was published in the Rajasthan
Gazette. By the said notification sub-rule (2) of Rule 244 of the Rules was
substituted. The said amendment was operative from August 19, 1972 and was to remain in force up to September 1, 1975. Under the amended provision the requirement of
payment of three months pay and allowances in lieu of notice at the time of
compulsory retirement was dispensed with and it was prescribed that on
retirement the Government servant would be entitled to claim three months pay
and allowances in lieu of notice in the special appeal filed by the appellant
State against the judgment of the learned Single Judge reliance was placed by
the appellant on the said amendment in Rule 44,(2) and it was urged that in
view of the said amendment it was not pre- requisite that the payment of three
months pay and allowances in lieu of notice should have accompanied the order
of compulsory retirement and that the order of compulsory retirement could not
be invalidated if a shorter amount was paid or no payment at all was made at
the time of service of the order of compulsory retirement upon the concerned
Government servant. The said contention was negatived and the special appeal
was dismissed by the Division Bench of the High Court by the impugned judgment
dated April 15, 1980 on the view that the amendment made in the Rules vide
notification dated March 11, 1976 was invalid. Hence this appeal while granting
special leave by order dated April 14, 1981,
this Court imposed the condition that "whatever be the decision of this
Court it shall not affect the respondent anti the High Court's decision in his favour
shall remain undisturbed.
On March 31, 1973, the date of the passing of the
order. of compulsory retirement, sub-rule (2) of Rule 244 of the Rules provided
as under :
"(2)
The Government, may, after giving at least three months' previous notice in
writing or by payment of three months' pay and allowances in lieu of such
notice require a Government servant to retire from the service on the date on
which he completes 25 years of qualifying service or on any date thereafter The
said provision was introduced vide notification dated August 19, 1972 By
notification dated September 2, 1975, sub-rule (2) of Rule 244 of the Rules was
substituted by the following provision:
"(2)
The Government, may, after giving at least three months' previous notice in
writing or by payment of three months' pay and allowances in lieu of such
notice require a government servant to retire from the service on the date on
which he completes 20 years of qualifying service or the date on which he
attains the age of 50 years whichever is earlier, or on any date
thereafter".
By a
subsequent notification dated November 26, 1975,
Rule 244 of the Rules was substituted with effect from September 2, 1975. Sub-rule (2) of Rule 244 thus
substituted, read as follows :
"(2)
The Government, may, after giving at least three months' previous notice in
writing require a Government servant to retire from the service on the date on
which he completes 20 years of qualifying service or the date on which he
attains the age of 50 years whichever is earlier, or on any date thereafter :
Provided
that such Government servant may be retired front service forthwith, and on
such retirement the Government servant shall be entitled to claim three months
pay and allowances in lieu of notice.
(ii)
The Government may publish the order of such retirement in Rajasthan Rajpatra,
and the Government servant shall be deemed to have retired on such publication,
if he has got been served with the retirement order earlier." The
Rajasthan Service (Amendment) Rule, 1976 made by the Governor under
notification dated March
11, 1976, were
published in the Rajasthan Gazette dated January 28, 1978.
The
said Rules were brought into force with effect from August 19.1972 and were to
remain in force up to September
1, 1975. By the said
Rules sub-Rule (2) of Rule 244 was substituted by the following provision:
"(2)
The Government, may, after giving at least three months' previous notice in
writing require a Government servant to retire from the service on the date on
which he completes 25 years of qualifying service or on any date thereafter:
Provided
that such Government servant may be retired from service forthwith, and on such
retirement the Government servant shall be entitled to claim three months pay
and allowances in lieu of notice." The learned Judges of the High Court
have held that as a result of the substitution of sub-rule (2) of Rule 244 by
notifications dated September 2, 1975 and November 26, 1975, provisions of
sub-rule (2) of Rule 244, as applicable during the period from August 19, 1972
till September 1, 1975, stood substituted and, as a result, the said provisions
ceased to exist and must be treated to have been obliterated and, therefore,
Rule 244(2), as it stood on August 19, 1972, was no longer available for supersession,
amendment or substitution on March 11, 1976, since the same stood amended and
substituted by new provisions contained in notifications dated September 2,
1975 and November 26, 1975. The High Court has placed reliance on the following
passages from Craies on Statute Law and Sutherland and on Statutory
Construction:
"when
an Act of Parliament is repealed, "said Lord Tenterden in Surtees v .
Ellison, "it must be considered (except as to transactions past and
closed) as if it had never existed. That is the general rule. Tindal C.J.
stated title exception more widely. He said: "The effect of repealing a
statute is to obliterate it as completely from the records of the Parliament as
if it had never been passed and it must be considered as a law that never
existed except for the purpose of those action which were commenced, prosecuted
and concluded whilst it was an existing law." [Craies on Statute Law, 7th Edn.
pp. 411-412] "Since an amendatory act alters, modifies, or adds to a prior
statute, all courts hold that a repealed act cannot be amended that is, no
court will give effect to a repealed law because the legislature attempted to
amend it." [Sutherland on Statutory Construction, Voil. I para 1903, pp.
328-329] As pointed out by this Court, the process of a substitution of
statutory provision consists of two Steps first, the old rule is made to cease
to exist and, next, the new rule is brought into existence in its place. [see Koteshwar
Vittal Kamath v, K. Rangappa, 1969 (3) SCR 40, at p. 48] In other words, the
Substitution of a provision results in repeal of the earlier provision and its
replacement by the new provision. As regards repeal of a statute the law is
thus stated in Sutherland on Statutory Construction .
"The
effect of the repeal of a statute where neither a saving clause nor a general
saving statute exists to prescribed the governing rule for the effect of the
repeal, is to destroy the effectiveness of the repealed act in future and to
divest the right to proceed under the statute, which, except as to proceedings
past and closed, is considered as if it had never existed." [Vol. I, para
2042, pp.522-523] Similarly in Crawford's Interpretation of Laws it has been said
:
"Effect
of Repeal, Generally. - In the first place, an outright repeal will destroy the
effectiveness of the repealed act in future and operate to destroy inchoate
rights dependent on it, as a general rule.
In
many cases, however, where statutes are repealed, they continue to be the law
of the period during which they were in force with reference to numerous
matters." [pp.640-641] The Observations of Lord Tenterden and Tindal C.J. referred
in the abovementioned passages in Craies on Statute Law also indicate that the
principle that on repeal a statute is obliterated is subject to the exception
that it exists in respect of transactions past and closed. To the same effect
is the Jaw laid down by this Court. [See : Qudrat Ullah v. Municipal Board. Bareilly. 1974 (2) SCR 530, at p. 539] This
means that as a result of repeal of a statute the statute as repealed ceases to
exist with effect from the date of such repeal but the repeal does not affect
the previous operation of the law which has been repealed during the period it
was operative prior to the date of such repeal. The effect of the amendments
that were introduced in sub-rule (2) of Rule 244 of the Rules vide
notifications dated September 2, 1975 and November 26, 1975 whereby the said
sub-rule was substituted with effect from September 2, 1975 is that sub-rule
(2) which was introduced on August 19, 1972 ceased to exist with effect from
September 2, 1975 but it was operative during the period from August 19, 1972
to September 1, 1975. It is settled law that a rule made in exercise of the
power conferred by Article 309 of the Constitution can have retroactive
operation. Since sub-rule (2) of Rule 244 of the Rules, as introduced in
August, 1972, was operative during the period from August 19, 1972 to September
1, 1975, it could be
amended in exercise of the rule making power under Article 309 of the
Constitution so as to operate during the period from August 19, 1972 to September
1, 1975. The
notification dated March
11, 1976, by
substituting sub-rule (2) of Rule 244 of the Rules, repealed the said provision
that was operative during the period from August 19, 1972 to September 1, 1975 and replaced it by another Provision which was to be
operative during the said period. The said notification Cannot be held to be
invalid on the basis that the said amendment sought to amend a provision which
was not in existence. The Statement of Law in Sutherland on Statutory
Construction, on which reliance was placed by the learned Judges of the High
Court, that a repealed law cannot be amended has no application in the present
case.
For
the reasons aforementioned, the judgment of the High Court dated April 15,
1980, in so far as it holds that the amendment made in Rule 244(2) of the Rules
vide notification dated March 11, 1976, is invalid, cannot be upheld and is set
aside. The setting aside of the judgment of the High Court in this regard would
note however, affect the respondent and the decision of the High Court in his favour
shall remain undisturbed. The appeal is disposed of accordingly. No order as to
costs.
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