State of U.P. &
Ors. Versus Hirendra Pal Singh etc.
JUDGMENT
Dr. B.S. CHAUHAN, J.
1.
Leave
granted.
2.
These
appeals have been filed against the interim orders passed by the High Court of
Allahabad (Lucknow Bench) dated 4.9.2008 in Writ Petition No. 7851(M/B) of 2008
and dated 30.11.2009 in Writ Petition No.11170 (MB) of 2009, by which the High
Court has the operation of amended provisions of the U.P. Legal Remembrancer Manual
(hereinafter called L.R. Manual) and further directed the State Government to
consider the applications for renewal of the all District Government Counsel
whose term had already expired, resorting to the unamended provisions of the
L.R. Manual and they be allowed to serve till they attain the age up to 62
years.
3.
Facts
and circumstances giving rise to these appeals are that the respondent no.1 in
first case was appointed as a District Government Counsel (Revenue-1), Agra
vide order dated 30.11.1988for a fixed tenure. His term was renewed from time
to time upto31.12.1992. The proposal for renewal of his tenure was forwarded by
the District Magistrate, Agra in 1993 and 1996, however, no order was passed on
the said proposals. Ultimately, the State Government passed an order dated
2.12.1998 dispensing with the services of the said respondent. Being aggrieved,
he preferred Writ Petition No.3867of 1998 challenging the order of dispensing
with his services, where in the interim order was passed that the said
respondent would be allowed to continue till further orders of the court. Thus,
he continued to work under the said interim order till 2008, when the
provisions of L.R. Manual were amended with effect from 13.8.2008, reducing the
age of District Government Counsel from 62 to 60 years. As he had already
completed age of 60 years, thus was disengaged, where by respondent preferred
Writ Petition No. 11170(M/B) of 2009 praying therein to be permitted to
continue up to 62 years. The High Court passed an interim order dated 30.11.2009
directing the State Authorities to consider his application for extension of
service up to 62years under the un amended provisions of the L.R. Manual.
4.
Similarly,
another order has been passed in Writ PetitionNo.7851 (M/B) of 2008 filed by
the Association of District Government Counsel in representative capacity
challenging the amendment dated 13.8.2008 to the L.R. Manual to the effect of dispensation
of consultation by the District Magistrate with the District Judge, while
making proposal to the State Government for appointment of such counsel,
reducing the age of service from 62years to 60 years. The High Court has stayed
the operation of the amended provisions, and issued direction to consider
applications for the Distt. Government Counsel for renewal in accordance with
the un amended provisions of the L.R. Manual, till further orders. Hence, these
appeals.
5.
Shri
P.S. Patwalia, learned senior counsel appearing for State of Uttar Pradesh has
contended that in the said writ petitions, the amendment in the L.R. Manuals
has been challenged. The amendment provided basically two changes (1)
consultation with the District Judge by the District Magistrate before sending
any proposal/recommendation to the State Government for appointment ofthe
District Government Counsel has been dispensed with; and (2) age has been
reduced from 62 to 60 years. Therefore, it has been submitted that as fixing
the age even in government services falls within the exclusive competence of
the State authorities, and thus, the court should not interfere in such matters
being a policy decision, even at the final stage. The interim order should not
be passed by the court, staying the operation of law as such unless the court
is of the view that the law was patently unconstitutional. The High Court under
no circumstance could direct the State authorities to consider the cases for
renewal/extension under the provisions of the un amended L.R. i.e. non-existing
provisions. Such interim order tent amounts to legislation by judicial
orders. More so, a large number of similar orders were passed by the High Court
and in all of them except this case, the operation of such interim orders has
been stayed by this court. Thus, the appeals deserve to be allowed.
6.
On
the contrary, Shri Dhruv Mehta, learned Senior counsel appearing for the
respondents' Association and Shri Manohar LalSharma appearing for the Distt.
Government Counsel have submitted that in making the proposal for appointment
of the Distt. Government Counsel by the Distt. Magistrate, dispensation of
consultation with the District Judge itself is a serious matter and High Court
has rightly stayed the operation of the amended provisions of the L.R. Manualand
no interference is required. In case the High Court has stayed the operation of
the amended clauses of the L.R. Manual, the old L.R. Manual becomes
automatically operative. Therefore, the High Court was justified in issuing
direction to consider the cases of renewal/extension under the un amended
provisions of the Manual. Thus, appeals lack merit and are liable to be
dismissed.
7.
We
have considered the rival submissions made by learned counsel for the parties
and perused the record. So far as the respondent District Government Counsel is
concerned, admittedly, his term has not been extended/ renewed by passing any
order after 1992. He had been continuing under the interim order dated
7.12.1998 passed by the High Court. There is nothing on record to show what has
happened subsequent to the said order. However, we have been informed that the
said writ petition is still pending and the said respondent continued to work
under the said interim order till he attained the age of 60 years. So far as
the issue of reduction of age from 62 to 60 years is concerned, it has not been
brought to the notice of the High Court that it is within the exclusive domain
of the State Government to reduce the age even in Government services. So in
case of purely professional engagement, the age could validly be reduced by the
State Government unilaterally.
8.
A
Constitution Bench of this Court in Bishun Narain Misra v. The State of Uttar
Pradesh & Ors., AIR 1965 SC 1567 held that new rule reducing the age of
retirement from 58 to 55 years could neither be invalid nor could be held to be
retrospective as the said rule was a method adopted to tide over the difficult
situation which could arise in public services if the new rule was applied at
once and also to meet any financial objection arising in enforcement of the new
rule.
9.
In
Roshan Lal Tandon v. Union of India & Ors., AIR 1967SC 1889, a similar view
has been reiterated by this Court observing that emoluments of the Government
servant and his terms of service could be altered by the employer unilaterally
for the reason that conditions of service are governed by statutory rules which
can be unilaterally altered by the Government without the consent of the employee.
(See also B.S. Vadera v. Union of India & Ors., AIR1969 SC 118; The State
of Jammu & Kashmir v. Triloki Nath Khosa & Ors., AIR 1974 SC 1; B.S.
Yadav & Ors. v. State of Haryana & Ors., AIR 1981 SC 561; and State of
Jammu &Kashmir v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012).
10.
In
K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr.etc., AIR 1985 SC
551, this Court examined the amended provisions of Andhra Pradesh Public
Employment (Regulation of Conditions of Service) Ordinance, 1983 by which the
age of retirement was reduced from 58 to 55 years and this Court upheld the
amended provisions being neither arbitrary nor irrational. The court further
rejected the submission of the appellants therein that the said amended
provisions would have retrospective application taking away their accrued
rights.(See also State of Andhra Pradesh etc. etc. v. S.K. Mohinuddin. etc.,
AIR 1994 SC 1474).
11.
In
view of the above, it is evident that even in government services where the
terms and conditions of service are governed by the statutory provisions, the
Legislature is competent to enhance or reduce the age of superannuation. In
view of the above, it is beyond our imaginations as why such a course is not
permissible for the appellant-State while fixing the age of working of the
District Government Advocates.
12.
In
Bhavesh D. Parish & Ors. v. Union of India & Anr., AIR2000 SC 2047,
this Court observed that while considering the constitutional validity of
statutory provisions, the court should be very slow in staying the operation of
the statutory provisions. It is permissible for the court to interfere at
interim stage "only in those few cases where the view reflected in the
legislation is not possible to be taken at all". Thus, the court should
not generally stay the operation of law.
13.
In
Siliguri Municipality & Ors. v. Amalendu Das & Ors AIR 1984 SC 653,
this Court had taken note of the fact that the HighCourt had been passing stay
orders in some cases involving the same question of law and facts though it
vacated the interim orders passed earlier in some of the identical cases. In
the said case, the validity of statutory provision was under challenge. This
Court observed that the High Court should exercise self-restrain in passing
interim orders, for maintaining consistency in similar cases. The court
observed asunder: "The main purpose of passing an interim order is to
evolve a workable formula or arrangement to the extent called for by the
demands of the situation keeping in mind the presumption regarding the
constitutionality of the legislation and the vulnerability of the challenge,
only in order that no irreparable injury is occasioned. The Court has therefore
to strike a delicate balance after considering the pros and cons of the matter
lest larger public interest is not jeopardised and institutional embarrassment
is eschewed."
14.
14.
In Bir Bajrang Kumar v. State of Bihar & Ors., AIR 1987SC 1345, this Court
held that cases involving identical points must be given identical treatment by
the court, otherwise it may create ananomalous position, as there may be a
possibility of contradictory orders being rendered in similar types of cases by
the same court. The same view has been reiterated by this Court in M/s. Vinod Trading
Company v. Union of India & Ors., (1982) 2 SCC 40.
15.
In
Vishnu Traders v. State of Haryana & Ors., (1995) Suppl.(1) SCC 461, while
dealing with the similar issue, this Court observed as under: "In the
matters of interlocutory orders, principle of binding precedent cannot be said
to apply. However, the need for consistency of approach and uniformity in the
exercise of judicial discretion respecting similar causes and the desirability
to eliminate occasions for grievances of discriminatory treatment requires that
all similar matters should receive similar treatment except where factual
differences require a different treatment so that there is an assurance of consistency,
uniformity, predictability and certainty of judicial approach."
16.
Admittedly,
this Court has stayed the operation of the interim orders passed by the High
Court in large number of identical cases and all such orders have been placed
on record. Some of such cases are SLP(C) No.32910/ 2009 dated 14.12.2009; SLP(C)No.35279/2009
dated 5.1.2010; and SLP(C) No.11261/2010 dated23.4.2010. It is also pertinent
to mention here that operation of the impugned order dated 30.11.2009 has
already been stayed by this court vide order dated 3.5.2010. In fact there is a
joint petition in these appeals and thus by inadvertence the operation of order
dated4.9.2008 in W.P. No.7851 (M/B) of 2008 could not be stayed. In order to
maintain consistency in our order, it is required to pass the same order in the
said case also. More so, in the Ist case, the High Court, in spite of taking
note that the petitioner therein had been working under the interim order of the
court since December 1998, i.e. for twelve years entertained his second writ
petition without deciding the first writ petition.
17.
So
far as the issue of dispensation of consultation with the District Judge is concerned,
this court has hitherto taken a view that his opinion would have supremacy,
thus requires to be examined considering the judgments of this court in Kumari
Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991 SC 537;Harpal
Singh Chauhan & Ors. v. State of U.P., AIR 1993 SC 2436;State of U.P. v.
Ramesh Chandra Sharma & Ors., AIR 1996 SC864; State of U.P. & Anr. v.
Johri Mal, AIR 2004 SC 3800; and State of U.P. & Ors. v. Netra Pal Singh
& Ors., AIR 2004 SC 3513.
18.
The
High Court vide impugned interim orders stayed the operation of the amended
provisions of the L.R. Manual and directed the State authorities to consider
the applications for renewal etc. under the un amended provisions, i.e., which
stood repealed by the amendment dated 13.8.2008. The question does arise as to
whether such a course is permissible to the High Court for the reason that it has
been canvassed by Shri Patwalia that the clauses of the L.R. Manual which stood
repealed do not survive any more and no direction could have been given by the
High Court to act upon the non-existing provisions.
19.
It
is a settled legal proposition that whenever an Act is repealed, it must be
considered as if it had never existed. The object of repeal is to obliterate
the Act from the statutory books, except for certain purposes as provided under
section 6 of the General Clauses Act,1897. Repeal is not a matter of mere form
but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped
out wholly, i.e., protanto repeal (vide:M/s. Dagi Ram Pindi Lall & Anr. v.
Trilok Chand Jain & Ors.,AIR 1992 SC 990; Gajraj Singh etc. v. The State
Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412; Property Owners'
Association & Ors. etc. etc. v. State of Maharashtra &Ors., AIR 2001 SC
1668; and Mohan Raj v. Dimbeswari Saikia &Anr., AIR 2007 SC 232).
20.
In
M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association,
Madras, AIR 1992 SC 1439, this Court explained the distinction between quashing
of an order and staying the operation of the order observing as under: "While
considering the effect of an interim order staying the operation of the order
under challenge, a distinction has to be made between quashing of an order and
stay of operation of an order. Quashing of an order results in the restoration
of the position as it stood on the date of the passing of the order which has
been quashed. The stay of operation of an order does not, however, lead to such
a result. It only means that the order which has been stayed would not be
operative from the date of the passing of the stay order and it does not mean
that the said order has been wiped out from existence. This means that if an
order passed by the Appellate Authority is quashed and the matter is remanded,
the result would be that the appeal which had been disposed of by the said order
of the Appellate Authority would be restored and it can be said to be pending
before the Appellate Authority after the quashing of the order of the Appellate
Authority. The same cannot be said with regard to an order staying the
operation of the order of the Appellate Authority because in spite of the said
order, the order of the Appellate Authority continues to exist in law and so
long as it exists, it cannot be said that the appeal which 13 has been
disposed of by the said order has not been disposed of and is still
pending."
21.
Thus,
there is a clear distinction between repeal and suspension of the statutory
provisions and the material difference between both is that repeal removes the
law entirely; when suspended, it still exists and has operation in other
respects except wherein it has been suspended. Thus, a repeal puts an end to
the law. A suspension holds it in abeyance.
22.
This
Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740,
explained the distinction between repeal and amendment observing that amendment
includes abrogation or deletion of a provision in an existing statutes. If the
amendment of an existing law is small, the Act prefaces to amend; if it is
extensive, it repeals and re-enacts it.
23.
In
fact, the amended provisions of the L.R. Manual are under challenge before the
High Court and the provisions repealed by the Amendment dated 13.8.2008 are not
in existence and it will be assumed that the same had never been in existence.
The Court while examining the validity of the amended provisions may reach a conclusion
that the said provisions are ultra vires and unconstitutional and strike down
the same but that may not automatically revive the provisions which stood
repealed by the said amendment. Thus, the High Court erred in issuing
directions to the State authorities to proceed, as an interim measure, under a
non-existing law. Such an order seems to have been passed only to fill up the vacuum.
Generally quashing of a subsequent notification would not affect in revival of
an earlier notification in whose place the subsequent notification had been
issued, however, the legal effect of an earlier law when the later law enacted
in its place is declared invalid, does not depend merely upon the use of the
words like substitution; or suppression. It depends upon the totality of circumstances
and the context in which they are used. (Vide B.N.Tewari v. Union of India
& Ors., AIR 1965 SC 1430; Indian Express Newspapers (Bombay) Private Ltd.
& Ors. v. Union of India & Ors., AIR 1986 SC 515; West U.P. Sugar Mills
Association & Ors. v. State of U.P. & Ors., AIR 2002 SC 948; Zile Singh
v. State of Haryana & Ors., (2004) 8 SCC 1; and State of Kerala & Anr.
v. Peoples Union for Civil Liberties, Kerala State Unit & Ors., (2009) 8
SCC 46). (See also Ameer-un-Nissa Begum & Ors. v. Mahboob Begum &Ors.,
AIR 1955 SC 352; and India Tobacco Co. Ltd. v. The Commercial Tax Officer,
Bhavanipore & Ors., AIR 1975 SC 155).
24.
In
Firm A.T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR 1963 SC
928, this Court while dealing with a similar issue held : "Once the old
rule has been substituted by the new rule, it ceases to exist and it does not automatically
get revived when the new rule is held to be invalid." Therefore, it is
evident that under certain circumstances, an Act which stood repealed, may
revive in case the substituted Act is declared ultra vires/unconstitutional by
the court on the ground of legislative competence etc., however, the same shall
not be the position in case of subordinate legislation. In the instant case,
the L.R. Manual is consisted of executive instructions, which can be replaced
any time by another set of executive instructions. (VideJohri Mal (supra). Therefore,
question of revival of the repealed clauses of L.R.Manual in case the
substituted clauses are struck down by the court. would not arise. In view of
this, the interim order would amount to substituting the legal policy by the
judicial order, and thus notsustainable.25. In view of the above, both the
appeals succeed and are allowed. The impugned orders dated 30.11.2009 and
4.9.2008 are hereby set aside. However, in view of the peculiar fact-situation
existing herein, the order (s), if any, passed by the State Authorities under
the interim order dated 4.9.2008, would not be disturbed till the final
disposal of the cases.26. This Court after taking note of the nature of
appointment involved in such cases made a request to the High Court in Special Leave
Petition (C) No.12751 of 2009 (Ram Autar Saini, Advocate v. Ram Singh Lodhi
& Ors.) vide order dated 15.5.2009 to dispose of the matters at an early
date. However, it appears that the said order could not be brought to the
notice of the High Court. Therefore, we again take the opportunity to request
the High Court to consolidate all such matters and finally dispose them of, as
early as possible. The appellant may place the copy of this judgment before the
Hon'ble Chief Justice/Senior Judge for information and appropriate orders. However,
it is clarified that no observation made herein above shall be taken into
consideration while deciding the writ petition spending before the High Court
as we have not expressed any opinion on merits and the above observations have been
made only to examine the correctness of the interim orders passed by the High
Court. The appeals are disposed of accordingly. No costs.
....................................J.
(J.M. PANCHAL)
....................................J.
(DEEPAK VERMA)
................................J.
(Dr. B.S. CHAUHAN)
New
Delhi,
December
3, 2010
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