CORUM-J.M. PANCHAL,DEEPAK VERMA,Dr. B.S. CHAUHAN JJJ.
-Arising out of SLP (C) Nos.14992-93 of 2010
State of U.P. & Ors.
Hirendra Pal Singh etc.
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 stayed
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 upto 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 30.11.1988
for a fixed tenure. His term was renewed from time to time upto
31.12.1992. 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.3867
of 1998 challenging the order of dispensing with his services, wherein
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, whereby
respondent preferred Writ Petition No. 11170(M/B) of 2009 praying
therein to be permitted to continue upto 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 upto 62
years under the unamended provisions of the L.R. Manual.
4. Similarly, another order has been passed in Writ Petition
No.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 62
years 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
unamended provisions of the L.R. Manual, till further orders. Hence,
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 of
the 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 unamended L.R. i.e.
non-existing provisions. Such interim order tantamounts 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 Lal
Sharma 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. Manual
and 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 unamended 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 1967
SC 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., AIR
1969 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. 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
12. In Bhavesh D. Parish & Ors. v. Union of India & Anr., AIR
2000 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 High
Court 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 as
"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. In Bir Bajrang Kumar v. State of Bihar & Ors., AIR 1987
SC 1345, this Court held that cases involving identical points must be
given identical treatment by the court, otherwise it may create an
anomalous 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
"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 dated
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 dated
4.9.2008 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 SC
864; 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 unamended 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
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
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
"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. (Vide
Johri 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 not
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
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 Honble
Chief Justice/Senior Judge for information and appropriate orders.
However, it is clarified that no observation made hereinabove
shall be taken into consideration while deciding the writ petitions
pending 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.