STATE OF U.P & Ors. v. HIRENDRA PAL SINGH ETC

Per contra, the respondents contended that In making the proposal for appointment of the Distt. Government Counsel by · the Distt. Magistrate, C dispensation of consultation with the District Judge itself is c' serious matter and High Court rightly stayed the op"lration of the amended provisions of the L.R. Manual. They contended that since the High Court stayed the operation of the amended clauses of the LR. Manual, the D r•ld LR. Manual became automatically operative and, U1erefore, the High Court was justified in issuing direction to consider the cases of renewal/extension under the unamended provisions of the Manual. E Disposing of the appeals, the Court F HELD:1. 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. It is evident that even in government services where the terms and conditions of service are governed by the statutory provisions, the G Legislature is competent to enhance or reduce the age of superannuation. In view of the above, it is beyond the imagination of this Court as to why such a course is not permissible for the appellant-State while fixing the age of working of the District Government Advocates. The court H STATE OF U.P. AND ORS. v. HIRENDRA PAL-SINGH 857 ETC. should not generally stay the operation of law. [Paras 7, A 11, 12] [864-H; 865-A; 865-H; 866-A-D] Bishun Narain Misra v. The State of Uttar Pradesh & Ors. AIR 1965 SC 1567; Roshan Lal Tandon v. Union of India & Ors. AIR 1967 SC 18h89; B.S. Vader? v. Union of India & Ors. B. AtR 1969 SC 118; Ti e State of Jammu & Kashmir v. Triloki Nath Khosa & Ors. AIR 1974 SC 1; 8.S. Yadav & Ors. v. State of Haryana & Ors. AIR 1981 SC 561; State of Jammu & Kashmir v. Shiv Ram Sharma & Ors. AIR 1999 SC 2012; K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc. AIR 1985 SC 551; State of Andhra Pradesh etc. etc. v. S. K. C · / Mohinuddin etc. etc. AIR 1994 SC 1474; Bhavesh D. Parish & Ors. v. Union of India & Anr. AIR 2000 SC 2047; Si/iguri Municipality & Ors. v. Amalendu Das & Ors. AIR 1984 SC 653; Bir Bajrang Kumar v. State of Bihar & Ors. AIR 1987 SC 1345; Mis. Vinod Trading Company v. Union of India & Ors. D (1982) 2 SCC 40; Vishnu Traders v. State of Haryana & Ors. (1995) Suppl. (1) SCC 461 - referred to.

#2. Admittedly, this Court has stayed the operation of the interim orders passed by the High Court in large E number of identical cases and all such orders have been placed on record. In order to maintain consistency, it is required to pass the same order in the said case also. [Para 16] [867-F; 868-A] -

3.1. 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 G substance. Therefore, on repeal, the earlier provisions , stand obliterat~dlabrogated/wiped out wholly, i.e., F protanto repeal. [Para 19] [868-H; 869-A] 1 • 3.2. There is a clear distinction between repeal and H 858 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R. A 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 B holds it in abeyance. [Para 21] [870-B] Mis. 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; C Property Owners' Association & Ors. etc. etc. v. State of Maharashtra & Ors. AIR 2001 SC 1668; Mohan Raj v. Dimbeswari Saikia & Anr. AIR 2007 SC 232 - relied on. Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors. AIR 1991 SC 537; Harpal Singh Chauhan & Ors. v. State of D U.P. AIR 1993 SC 2436; State of U.P. v. Ramesh Chandra SJ1arrna & Ors. AIR 1996 SC 864; State of U.P. & Anr. v. Johri Mal AIR 2004 SC 3800; State of UP. & Ors. v. Netra Pal Singh & Ors. AIR 2004 SC 3513; Mis. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras AIR E 1992 SC 1439 and Bhagat Ram Sharma v. Union of India & Ors. AIR 1988 SC 740 - referred to.

4.1. The amended provisions of the LR. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 F 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 G 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 la~. Such an order seems to have been passed only to H STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 859 ETC. fill up the vacuum. Generally quashing of a subsequent A notification would not effect 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 s words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are used. [Para 23] [870-D-H]

4.2. It is evident that under certain circumstances, an Act which stood repealed, may revive in case the C 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 D be replaced any time by another set of executive instructions. 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 E substituting the legal policy by the judicial order, and thus not sustainable. [Para 24] [871-E-G] B.N. Tewari v. Union of India & Ors. AIR 1965 SC 1430; Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. · F 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; State of Kera/a & Anr. v. Peoples Union for Civil Liberties,; Kera/a State Unit & Ors. (2009) 8 SCC 46; Ameer-un-Nisscj G Begum & Ors. v. Mahboob Begum & Ors. AIR 1955 SC 352; India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors. AIR 1975 SC 155; Firm A. T.B. Mehtab Majid and Co. v. State of Madras & Anr. AIR 1963 SC 928 - · relied on. H 860 SUPRE~E coµJRl' REPORTS [2010] 15' (ADot.) S.C.R. ""'~ . . A

#5. The impugned orders 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, would not be disturbed till the final disposal of the cases. [Para 25] [871- B H; 872-A] Case Law Reference: AIR 1965 SC 1567 referred to Para 8 c AIR 1967 SC 1889 referred to Para 9 AIR 1969 SC 118 referred to Para 9