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PETITIONER: BHAGAT RAM SHARMA

       Vs.

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT13/11/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1988 AIR  740            1988 SCR  (1)1034  1988 SCC  Supl.   30     JT 1987 (4)   476  1987 SCALE  (2)1097

ACT:      Claim for  pension-Under Regulation  8(3) of the Punjab      State Public  Service  Commission  (Conditions     of  Service)      Regulations, 1958  and proviso to sub-section (1) of section      6B of  the Himachal Pradesh Legislative Assembly (Allowances      & Pension of Members) Act, 1971.

HELD: %      The appellant was elected from the Kangra district West General Constituency,  as a member of the Punjab Legislative Assembly in  the elections  held in 1937 and 1946. By virtue of section  5 of  the Punjab (Provincial Legislature) Order, 1947, he  became a  member of  the Join  Panjab  Legislative Assembly. He  continued to  be a  member of the Joint Punjab Legislative Assembly  as he  had  contested  election  again after the  Assembly was  dissolved in June, 1951. On January 3, 1953,  he was  appointed a  member of  the  Punjab  State Public Service  Commission and retired as such on January 2, 1959.      The district of Kangra was transferred to the new State of Punjab  formed under the States Reorganisation Act, 1956, w.e.f.November 1,  1956. Thereafter, the Kangra district was added to  the Union  Territory of  Himachal  Pradesh  w.e.f. November 1,  1966. Himachal  Pradesh was  established  as  a State w.e.f.  January 25,  1971, and the Kangra West General Constituency from  which the  appellant had been elected all along, stood  transferred to  the State of Himachal Pradesh, and he  was deemed  to have  been elected to the Legislative Assembly of  Himachal Pradesh-under  the provisions  of  the State of Himachal Pradesh Act, 1970.      The appellant  made representations  both to  the Chief Ministers of  Punjab and  Himachal Pradesh  for the grant of pensionary benefits  to him either as a member of the Punjab State Public  Service Commission or as a member of the State Legislative Assembly. The State Government of Punjab replied that the appellant could not be granted pension as a retired member of  the Punjab  State Public  Service Commission. The State  government  of  Himachal  Pradesh  replied  that  the appellant was  not eligible  to pension under the provisions of the State of Himachal Pradesh Act.

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1035      The appellant  then moved  the High Court of Punjab and Haryana for relief by a Writ Petition. The High Court partly allowed the  writ petition and ordained the State government of Punjab  to pay  a  monthly  pension  (of  Rs.400  to  the appellant as  a retired  member of  the Punjab  State Public Service Commission,  under Regulation  8(3)  of  the  Punjab State Public  Service  Commission  (conditions  of  service) Regulations, 1958,  with effect from August 10,1972-the date when the  said provision  was  introduced.  The  appellant’s claim for  pension w.e.f.  January 2,  1959-the date  of his retirement-was disallowed. His claim for pension as a member of the  State Assembly  under the provisions of the Himachal Pradesh Legislative  Assembly  (Allowances  and  Pension  of Members) Act,  1971, was  also disallowed on the ground that no part of the cause of action against the State of Himachal Pradesh arose  within the  territorial jurisdiction  of  the High Court  of Punjab  & Haryana  under Article  226 of  the Constitution.  The  appellant  appealed  to  this  Court  by Special Leave against the order of the High Court.      Dismissing the appeal, the Court, ^      HELD: 1. It is extremely doubtful whether the appellant can claim  pension as  a member  of  the  State  Legislative Assembly  from   the  State   of  Punjab   in  view  of  the constitutional  changes   brought  about.  The  Kangra  West General Constituency from which the appellant was elected to the Punjab  Legislative Assembly  and  later  to  the  Joint Punjab Legislative Assembly, is by reason of sub-section (2) of Section  10 of  the State  of Himachal Pradesh Act, 1970, deemed to  be a  constituency of the Legislative Assembly of the State  of Himachal Pradesh. The liability to pay pension to a member of the State Legislative Assembly elected from a constituency  which   now  forms  part  of  the  Legislative Assembly of the Himachal Pradesh, cannot possibly be saddled on the State of Punjab.[1043D-F]      2. As  regards the  liability of  the State of Himachal Pradesh to  pay pension  to the  appellant under  section 6B (1), read  with the  second proviso, of the Himachal Pradesh Act, the  High Court has rightly declined to grant relief as no part  of the cause of action arose within its territorial jurisdiction  under   Art.  226  of  the  Constitution;  the Himachal Pradesh  Act is operative within the territories of the State  of Himachal  Pradesh. No  interference  with  the judgment of  the High  Court, dismissing  the Writ  Petition against the State of Himachal Pradesh is called for. [1043F- G]      3. The  claim of  the appellant that he was entitled to pension, as a 1036 retired  member  of  the  Public  Service  Commission,  from January 2,  1959-the  date  of  his  superannuation-and  not August 10,  1972-the date when Regulation 8(3) of the Punjab State Public  Service  Commission  (Conditions  of  Service) Regulations, was introduced, cannot be accepted. [1044G-H]      OBSERVATION:  The   appellant   clearly   answers   the description of  a Member  as defined  in section 2(c) of the State  of   Himachal  Pradesh   Act.  Admittedly,   he   had continuously  been   a  Member   of  the  State  Legislative Assembly, representing  the Kangra West General Constituency from the  year 1937  to January  2, 1953,  on which  date he resigned his  membership from  the Joint  Punjab Legislative Assembly to  assume the  office of  a Member  of the  Punjab State Public  Service Commission.  Thus, the  appellant  had been a member of the State Legislative Assembly for a period

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of about  16 years,  and his  case appears  to be covered by section 6B  (1)(a) and  (e) of the State of Himachal Pradesh Act, read  with its second proviso. There is no provision in the Himachal  Pradesh Act  which disentitles a member to the benefit of  the period  during which  he was a member of the State Legislative  Assembly prior  to the  partition of  the country. In  accordance with the view taken by this Court in D.S. Nakara  & Ors.  v. Union of India, [1983] 2 SCR 165-the appellant would  prima facie  be entitled  to the benefit of section 6B  (1) read with the second proviso of the Himachal Pradesh Act.  In view  of this position, the appellant is at liberty to  move the  State Government  of Himachal  Pradesh afresh for  the grant  of pension under section 6B(1) of the Himachal Pradesh  Act, read with the second proviso, failing which, he  may file  a petition in the Himachal Pradesh High Court under  Art. 226  of the  Constitution for the grant of appropriate writ or direction. [1044B-F]      The State  of  Maharashtra  v.  The  Central  Provinces Manganese Ore  Co. Ltd.,  [1977] 1  SCR  1002;  Firm  A.T.B. Mehtab Majid  & Co.  v. State of Madras, [1963] Suppl. 2 SCR 435; Koteshwar  Vittal Kamath  v. K.  Rangappa Balica & Co., [1969] 3  SCR  40,  and  Halsbury’s  Laws  of  England,  3rd Edition, vol 36,p. 474, referred to.

JUDGMENT:

    CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3006 of 1987.      From the  Judgment and  Order dated  31.5.1984  of  the Punjab and Haryana High Court in C.W.P. No. 5440 of 1982.      M.R.  Sharma,   R.S.  Yadav  and  H.M.  Singh  for  the Appellant. 1037      R.S. Sodhi, for the Respondents.      The Judgment of the Court was delivered by      SEN, J.  This appeal  by special leave directed against the judgment  and order  of the  Punjab & Haryana High Court dated May 31, 1984, raises a question of some importance. By the judgment,  a learned  Single Judge  (Tiwana,  J.)  party allowed  the  writ  petition  filed  by  the  appellant  and ordained the  State Government of Punjab to pay a pension of Rs.400 per  mensem to  the appellant  as a retired Member of the Punjab  State Public Service Commission under Regulation 8(3)  of   the  Punjab   State  Public   Service  Commission (Conditions of  Service) Regulations, 1958 w.e.f. August 10, 1972, the date when the said provision was first introduced. While disallowing his claim for payment of such pension from January 2,  1959 i.e.  from the  date of his retirement, the learned Single  Judge disallowed  the appellant’s  claim for pension as  a Member of the State Legislative Assembly under the proviso  to sub-s.  (1) of s. 6B of the Himachal Pradesh Legislative Assembly  (Allowances & Pension of Members) Act, 1971 on  the ground  that no  part of  the cause  of  action against the  State of  Himachal  Pradesh  arose  within  the territorial jurisdiction of the High Court under Art. 226 of the Constitution.      The facts.  The appellant herein Bhagat Ram Sharma, has had a  very distinguished record of public service. In 1937, he was  enrolled as  an Advocate  at Dharamshala and in that year he  contested  the  general  elections  to  the  Punjab Legislative Assembly  as an  independent candidate  from the Kangra  West   General   Constituency.   He   was   returned successfully and  later joined the Indian National Congress. After the outbreak of the second world war, the Assembly had

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a longer  life than  its normal  tenure and  it was not till 1946 that fresh elections were held. The appellant contested the election  from  the  same  constituency  and  was  again returned as  the successful  candidate to  the newly-elected Assembly. Before  the expiry  of the  normal terms  of  that Assembly the  partition of  the country  having taken place, the appellant  by virtue  of s.  5 of the Punjab (Provincial Legislatures) Order,  1947 issued  under s.  9 of  the India Independence Act,  1947, became a Member of the Joint Punjab Legislative Assembly.  On July  17, 1948  the appellant  was appointed to  be Parliamentary  Secretary. This Assembly was dissolved on June 19, 1951 and reconstituted on May 3, 1952. Prior to  its dissolution,  the appellant  resigned from the post of  Parliamentary Secretary  on  March,  29,  1951  and contested elections  to the  reconstituted Assembly  and was elected as a Member. 1038 He continued  to be a Member of the Joint Punjab Legislative Assembly till  January 2,  1953 when,  according to  him, he resigned the  Membership of  the Assembly as directed by the Congress High Command to become a Member of the Punjab State Public  Service   Commission  w.e.f.  January  3,  1953.  He continued to be such Member of the Public Service Commission for a period of six years i.e. till January 2, 1959,the date of his superannuation.      As  from   the   appointed   day   under   the   States Reorganisation Act, 1956 i.e. November 1, 1956, the district of Kangra  was transferred  to the  new State  of Punjab. By virtue of  cl.(a) of  sub-s. (1)  of  s.  5  of  the  Punjab Reorganisation Act, 1966, on and from the appointed day i.e. November 1,  1966, the  district of  Kangra was added to the Union Territory  of Himachal  Pradesh. The State of Himachal Pradesh was  established under the State of Himachal Pradesh Act, 1970 w.e.f. January 25, 1971, the appointed day. Sub-s. (2) of  s. 10  of the  Act  provides  that  the  territorial constituencies of  the existing  Union Territory of Himachal Pradesh shall  be deemed  to be  the constituencies  of  the Legislative Assembly  of the State of Himachal Pradesh. Sub- s. (3)  thereof provides  that every  sitting Member  of the Legislative Assembly  of the  existing  Union  Territory  of Himachal Pradesh  representing  a  territorial  constituency which, on  the appointed day, by virtue of the provisions of sub-s. (2),  becomes a constituency of the State of Himachal Pradesh, shall be deemed to have been elected under Art. 170 to the  Legislative Assembly  of State  of Himachal  Pradesh from that  constituency. As a result of these constitutional changes,  the   Kangra  West   General  Constituency   is  a constituency of  the Legislative  Assembly of  the State  of Himachal Pradesh.      At the  time when  the appellant  was  elected  to  the Punjab Legislative  Assembly from  the Kangra  West  General Constituency in  the year  1937,  no  monthly  allowance  or pension was  payable  to  the  Members  of  the  Legislative Assembly. Similarly,  when the appellant was appointed to be a Member  of the  Punjab State  Public  Service  Commission, there was  no provision  for grant of pension to a Member of the Public  Service Commission,  who  at  the  date  of  his appointment was not in the service of the Central or a State Government. However, with the passage of time, two important changes  were  brought  about  with  respect  to  pensionary benefits.  The   Himachal   Pradesh   Legislative   Assembly (Allowances &  Pension  of  Members)  Act,  1971  (’Himachal Pradesh Act’  for  short)  was  brought  into  force  w.e.f. January 25,  1971. The  expression ’Member’is  defined in s. 2(c) to  mean  a  member  of  the  Assembly,  other  than  a

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Minister, Deputy Minister, Speaker or Deputy 1039 Speaker. Section  6B was  inserted by  the Himachal  Pradesh Legislative Assembly  (Allowances  of  Members)  (Amendment) Act, 1976  and consequential changes were brought about. The Act was  first intituled as the Himachal Pradesh Legislative Assembly (Allowances  of Members)  Act, 1971  and  with  the amendment of  1976, was  changed  to  the  Himachal  Pradesh Legislative Assembly  (Allowances & Pension of Members) Act, 1971 by  introduction of the words ’allowances and pension’. Sub-s. (1)  of s.  6B  of  the  Act,  insofar  as  relevant, provides:           "6B. Pension. (1) There shall be paid a pension of           Rs.300 per  mensem to  every person who has served           for a  period of  not less than five years whether           continuous or not as-           (a) a member of Assembly; or           ***             ***           ***            ***           (e)partly as  a member  of the Assembly and partly           as  a   member   of   the   Legislative   Assembly           ...............of the  erstwhile State  of Punjab,           as the case may be;"      The second proviso reads:           "Provided further that where any person has served           as aforesaid  for a  period exceeding  five years,           there shall  be paid  to him an additional pension           of Rs.  50 per  mensem for every year in excess of           five, so,  however, that  in no  case the  pension           payable to  such person  shall exceed  Rs.500  per           mensem."      Similarly, the  Punjab Legislative Assembly enacted the Punjab  State   Legislature  Members   (Pension  &   Medical Facilities Regulation)  Act, 1977 to provide for pension and medical facilities  to persons  who had  been Members of the Punjab Legislative  Assembly.  The  expression  ’member’  as defined in  s. 2  of the  Act unless  the context  otherwise requires, means  a person who, after the commencement of the Constitution of  India, has  been a Member of (i) the Punjab Legislative  Assembly;   or  (ii)   the  Punjab  Legislative Council; or  (iii) the Legislative Assembly of the erstwhile State of  Patiala and  East Punjab  States  Union;  or  (iv) partly as  a Member  of one  and partly  as a  Member of the other. It would be seen that in the corresponding definition of ’member’  in s.  2(c) of  the Himachal  Pradesh Act,  the words  ’after   the  commencement  of  the  Constitution  of India’are not there.But that 1040 should not  make any  difference  in  principle  as  to  the liability of  the State  of Punjab under s. 3(1) of the Act, if at all applicable. Section 3(1) reads as follows:           "3.(1) From  the date of commencement of this Act,           there shall be paid to every person who has served           as a  member for  a period  of five years, whether           continuous or  not, a  pension  of  three  hundred           rupees per mensem:           Provided that  where  any  person  has  served  as           aforesaid for a period exceeding five years, there           shall be  paid to  him an  additional  pension  of           fifty rupees  per mensem  for every year in excess           of five,  so, however,  that in  no  case  pension           payable to  such person  shall exceed five hundred           rupees per mensem."      After the  conclusion of  the hearing, we find that the amount  of   pension  payable  to  a  Member  of  the  State Legislative Assembly has been increased both in the State of

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Himachal Pradesh  as well  as in the State of Punjab. By the Himachal Pradesh  Legislative Assembly (Allowances & Pension of Members)  (Amendment) Act,  1986, the  minimum pension as provided by s. 6B has been raised to Rs. 500 and the maximum pension as  specified in the second proviso thereto from Rs. 500 to Rs. 1000. The Punjab Legislative Assembly has enacted the Punjab  State Legislature  Members (Pension  and Medical Facilities Regulation)  (Amendment) Act,  1986 and  by a new sub-s. (1B)  the pension of Rs. 300 as specified in s. 3(1), has been  enhanced to Rs. 500 and the maximum pension of Rs. 500 as specified in the proviso, enhanced to Rs. 1000.      There was  also a  change in  the Punjab  State  Public Service Commission (Conditions of Service) Regulations, 1958 which were  brought on  the statute  book on March 10, 1958. But the  Regulations by  a deeming clause in Regulation 1(2) were brought  into force  w.e.f. November  1, 1956. To begin with, pensionary  benefits were conferred by Regulation 8(1) upon a  Member who at the date of his appointment was in the service of  the Central  or a State Government. Later on, it was realised that a person who was not in Government service on the date of his appointment as such Member should also be extended the  pensionary benefits.  To achieve this end, the Regulations were  amended by  an order dated August 10, 1972 issued by  the Governor  of Punjab in exercise of the powers under Art.  318 of  the Constitution  and all  other  powers enabling him in that behalf. Clauses (2) and (3) of 1041 the Punjab  State Public  Service Commission  (Conditions of Service) (First  Amendment) Regulations,  1972 were in these terms:                "(2)  In  the  Punjab  State  Public  Service                Commission    (Conditions     of     Service)                Regulations, 1958 (hereinafter referred to as                the said  regulations), for regulation 8, the                following regulation  shall  be  substituted,                namely:-                8(1) In the case of Member who at the date of                his appointment  was in  the service  of  the                Central or  a State  Government,  service  as                Member shall  count  for  pension  under  the                rules applicable to the Service to which such                Member belonged ............"           "3(i).  A   Member,  who   at  the   date  of  his           appointment as  such was not in the service of the           Central  or  a  State  Government  shall,  on  his           ceasing to  hold office  as such Member, be paid a           pension of four hundred rupees per month;           Provided that  no such pension shall be payable to           a Member:                (a) unless  he has  completed not  less  than                three years  of service  for pension  as such                Member; or                ***       ***            ***            ***’’      It appears that the appellant made representations both to the  Chief Minister  of Punjab  as well  as to  the Chief Minister of  Himachal Pradesh  in the  matter  of  grant  of pensionary benefits  to him  either as a Member of the State Legislative Assembly  or as  a Member  of the  Punjab  State Public Service Commission, but in vain. The State Government of Punjab by letter dated August 30, 1982 regretted that the appellant could  not be  granted pension as a retired Member of the  Punjab State  Public Service Commission on the basis of Regulation  8(3) introduced by way of amendment on August 10, 1972  i.e. long  after he  had ceased  to hold office as such Member.  It was  pointed out that the amendment made in

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1972 was  not given  any  retrospective  effect.  The  State Government of Himachal Pradesh by letter of the Secretary to the Himachal  Pradesh Vidhan  Sabha dated  October 26,  1982 intimated the  decision of  the State Government that he was not 1042 eligible to the grant of pension under s. 6B of the Himachal Pradesh Act.  For  the  redressal  of  his  grievances,  the appellant approached  the High  Court under  Art. 226 of the Constitution.      As already  adumbrated, the  learned Single  Judge  has partly  allowed   the  writ  petition  directing  the  State Government of  Punjab to  pay a pension of Rs.400 per mensem to the  appellant w.e.f.  August 10,  1972 i.e.  the date on which Regulation  8(3) was  brought into  force. He  however repelled his  claim for  payment of  such  pension  as  such Member from  January 2, 1959, the date of his retirement, on the ground that in the absence of any provision giving to it a retrospective  effect, Regulation  8(3) merely  because it had been  ’substituted’ could  not be treated to relate back to the appointed day i.e. November 1, 1956. He also declined to grant  any relief  against the  State of Himachal Pradesh based upon  s. 6B  of the Himachal Pradesh Act on the ground that no  part of  the  cause  of  action  arose  within  the territorial jurisdiction of the High Court under Art. 226 of the Constitution. Hence this appeal by special leave.      During the course of the arguments, learned counsel for the appellant  was fair  enough to accept that the appellant could not,  in any event, claim more than one set of pension of Rs.500  per mensem  either  as  a  member  of  the  State Legislative Assembly  or as  a retired  Member of the Punjab State Public  Service  Commission.  The  High  Court  having partly allowed  the writ  petition and  directed payment  of Rs.400 per  mensem to the appellant under Regulation 8(3) of the Regulations  as a  retired Member  of the Public Service Commission w.e.f.  August 10,  1972, the  controversy is now limited to  the payment  of Rs.100  more and  the period for which such pension could be claimed.      The submission on behalf of the appellant before us, as was in the High Court, is that the appellant was entitled to receive pension  of Rs.500  per mensem  as a  Member of  the State Legislative  Assembly under  s. 6B(1)  of the Act read with the  second proviso  thereto from the State of Himachal Pradesh and  that Regulation  8(3)(i) of  the  Punjab  State Public   Service    Commission   (Conditions   of   Service) Regulations, 1958  having been  ’substituted’ by an order of the Governor  under Art.  318 of  the Constitution,  must be deemed to  have come  into effect from November 1, 1956, the appointed day,  and therefore  the appellant  was upon  that basis entitled to draw pension of Rs.400 per mensem from the State of  Punjab as  a Member  of the  Punjab  State  Public Service Commission  w.e.f. January  2, 1959, the date of his superannuation. During  the  course  of  the  arguments,  it transpired that 1043 the Punjab  Legislative Assembly had also enacted the Punjab State Legislature  Members  (Pension  &  Medical  Facilities Regulation) Act,  1977 to  provide for  pension and  medical facilities to  persons who  had been  Members of  the Punjab Legislative Assembly.  That being  so, the  response of  the learned counsel  to this  was that  the appellant was in any view entitled  to receive  pension of Rs.500 per mensem as a Member of  State Legislative  Assembly either from the State of Himachal  Pradesh or  the State  of Punjab. The matter is not so  simple.  The  question  still  remains  whether  the

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appellant can  claim  pension  as  a  Member  of  the  State Legislative Assembly  against the  State of  Punjab under s. 3(1) of the Punjab Act.      We shall  first deal  with the  question of  payment of pension  to   the  appellant   as  a  Member  of  the  State Legislative Assembly.  As regards the liability of the State of Punjab to pay such pension to the appellant under s. 3(1) read with  the proviso  of the  Punjab Act, we find that the appellant has  laid no  foundation for any such claim in the writ petition.  There is  no such point taken in the special leave petition as well. It is extremely doubtful whether the appellant can  claim pension  as  a  Member  of  this  State Legislative Assembly from the State of Punjab in view of the constitutional  changes   brought  about.  The  Kangra  West General Constituency from which the appellant was elected to the Punjab  Legislative Assembly  and  later  to  the  Joint Punjab Legislative  Assembly, is  by reason of sub-s. (2) of s. 10  of the  State of Himachal Pradesh Act, 1970 deemed to be a  constituency of  the Legislative Assembly of the State of Himachal  Pradesh. The  liability to  pay  pension  to  a Member of  the State  Legislative Assembly  elected  from  a constituency  which   now  forms  part  of  the  Legislative Assembly of  Himachal Pradesh, cannot possibly be saddled on the State  of Punjab.  As regards the liability of the State of Himachal Pradesh to pay pension to the appellant under s. 6B(1) read  with the  second proviso of the Himachal Pradesh Act, the  learned Single  Judge  has  in  our  view  rightly declined to grant any such relief inasmuch as no part of the cause of action arose within the territorial jurisdiction of the High  Court under  Art. 226  of the  Constitution. It is needless  to   stress  that  the  Himachal  Pradesh  Act  is operative within the territories of that State. No exception can be  taken to  the view  expressed by  the learned Single Judge and  we affirm  the same.  No  interference  with  the judgment of  the High  Court dismissing  the  writ  petition against the  State of  Himachal Pradesh  is therefore called for.      It  appears  that  the  State  Government  of  Himachal Pradesh repudiated  the claim of the appellant to pension as a Member of the 1044 State Legislative  Assembly under  s. 6B(1)  read  with  the second proviso on the ground that the period during which he was a  Member of  the Punjab  Legislative Assembly  and  the Joint Punjab  Legislative Assembly prior to the partition of the country  i.e. prior to August 15, 1947 when the Dominion of India  came into  existence under  the India Independence Act,  1947,  could  not  be  counted  for  purposes  of  his entitlement to pension under s. 6B of the Act, which appears to be  prima facie  erroneous. The appellant clearly answers the description  of a  Member as  defined in  s. 2(c) of the Act. Admittedly,  the  appellant  had  continuously  been  a Member of  the State  Legislative Assembly  representing the Kangra West  General Constituency  from  the  year  1937  to January, 2,  1953, on  which date he resigned his Membership from the  Joint Punjab  Legislative Assembly  to assume  the office of  a Member  of  the  Pubjab  State  Public  Service Commission. Thus,  the appellant  had been  a Member  of the State Legislative  Assembly for  a period of nearly 16 years and his  case appears to be covered by s.6B(1)(a) and (e) of the Act  read with the second proviso. There is no provision in the  Himachal Pradesh  Act which  disentitles a Member to the benefit  of the  period during  which he was a Member of the State Legislative Assembly prior to the partition of the country. According  to the  view taken by this Court in D.S.

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Nakara &  Ors. v.  Union of  India, [1983]  2  SCR  165  the appellant would prima facie be entitled to the benefit of s. 6B(1) read  with the  second proviso of the Himachal Pradesh Act. Inasmuch  as the  State of  Himachal Pradesh has chosen not to  enter appearance  in these  proceedings, we  refrain from expressing any final opinion on the question.      In view  of the  foregoing, the appellant is at liberty to move  the State Government of Himachal Pradesh afresh for grant of  pension under  s. 6B(1)  of the  Act read with the second proviso,  failing which he may file a petition in the Himachal  Pradesh   High  Court   under  Art.   226  of  the Constitution for grant of an appropriate writ or direction.      That takes  us to  the next  and last contention of the appellant that  Regulation 8(3)  of the  Regulations  having been ’substituted’  by cl.  (3) of  the Punjab  State Public Service Commission (Conditions of Service) (First Amendment) Regulations, 1972  must be  read along  with Regulation 1(2) and therefore  deemed to have come into force on November 1, 1956, the appointed day, and consequently, the appellant was entitled to  pension as  a  retired  Member  of  the  Public Service Commission  from January  2, 1959,  the date  of his superannuation, and  not August  10, 1972, the date when the amendment came into effect. We are affraid, we are unable to accept this contention. 1045      In order  to appreciate  the  point  involved,  we  may reproduce the  operative part  of the order dated August 10, 1972 issued  by the Governor of Punjab under Art. 318 of the Constitution bringing about a change in the law, which reads as follows:           "In exercise  of the  powers conferred  by Article           318 of  the Constitution  of India  and all  other           powers enabling  him in  that behalf, the Governor           of  Punjab   is  pleased  to  make  the  following           Regulations further  to  amend  the  Punjab  State           Public Service  Commission (Conditions of Service)           Regulations, 1958, namely:"      close  look   at  the   aforesaid  order  manifests  an intention  to  enact  a  regulation  to  further  amend  the Regulations. It  would be  noticed that  the new  Regulation 8(1) has  been ’substituted’ for the old Regulation 8(1) and both deal  with pensionary  benefits to  a Member who at the date of his appointment as such Member was in the service of the Central  or a  State Government. In contrast, Regulation 8(3) is  a  ’newly-added’  provision  conferring  pensionary benefits on  a person who at the date of his appointment was not in  Government service.  It may  be recalled  that while pensionary benefits  under Regulation  8(1)  were  conferred upon a person who at the date of his appointment as a Member was in the service of the Central or a State Government, and his service  as such  Member was  to count for pension under the rules  applicable to  the service  to which he belonged, there  was  no  corresponding  provision  for  conferral  of pensionary benefits  on a  person who  at the  date  of  his appointment as  such Member  was not  in the  service of the Central or  a State  Government. The  newly-added  provision contained in Regulation 8(3) is therefore a remedial measure to remove the anomaly then existing. Regulation 8(3) being a remedial measure, must receive a beneficial construction and if it  is capable  of two  interpretations, the  Courts must prefer  that   construction  which  permits  the  beneficent purpose behind  it. When  language of a statute is free from ambiguity, no  duty is  cast upon  the Court  to do anything more than  to give  effect to  the word or words used. We do not mean  to say  that there  might not  be something in the

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context of an Act of Parliament, or to be collected from its language, which  might give to words prima facie prospective a larger  operation, but  that ought not to receive a larger operation unless you find some reason for giving it. Now, it would  be  seen  that  cl.(5)  similarly  ’substituted’  new Regulation 6(1)  dealing  with  the  salary  and  allowances payable to  the Chairman  and other  Members of  the  Public Service Commission, and underneath appears the following: 1046           "Notwithstanding   anything   contained   in   the           Regulations, clause  (i) of  the proviso  to  sub-           regulation (I)  shall be  deemed to have come into           effect from 1.11.1956." Nothing prevented  the Governor  while issuing the aforesaid order dated  August 10, 1972 from making a similar provision with regard  to the  newly-added  Regulations  8(3).  It  is therefore manifest  that the newly-added Regulation 8(3), in the absence  of any  provision  giving  it  a  retrospective operation, cannot  prima facie  bear a  greater  retroactive effect than intended.      It is a matter of legislative practice to provide while enacting an  amending law,  that an existing provision shall be deleted  and a  new provision  substituted. Such deletion has the  effect of  repeal of the existing provision. Such a law  may   also  provide  for  the  introduction  of  a  new provision. There is no real distinction between ’repeal’ and an ’amendment’.  In Sutherland’s Statutory Construction, 3rd edn., vol.  1 at  p.  477,  the  learned  author  makes  the following statement of law:           "The distinction  between repeal  and amendment as           these terms  are used by the Courts, is arbitrary.           Naturally the  use of  these terms by the Court is           based  largely   on  how   the  Legislatures  have           developed and  applied these  terms  in  labelling           their enactments. When a section is being added to           an Act  or a  provision added  to a  section,  the           Legislatures  commonly   entitle  the  Act  as  an           amendment ....  When a provision is withdrawn from           a  section,  the  Legislatures  call  the  Act  an           amendment, particularly  when a provision is added           to replace  the one  withdrawn. However,  when  an           entire Act  or section  is abrogated  and  no  new           section is added to replace it, Legislatures lebel           the Act  accomplishing this  result a repeal. Thus           as used  by the Legislatures, amendment and repeal           may  differ   in  kind-addition   as  opposed   to           withdrawal or only in degree-abrogation of part of           a section  as opposed  to abrogation  of  a  whole           section or Act; or more commonly, in both kind and           degree-addition of  a provision  to a  section  to           replace a  provision being abrogated as opposed by           abrogation of  a whole  section of  an  Act.  This           arbitrary distinction  has been  followed  by  the           Courts, and  they have developed separate rules of           construction  for   each.   However,   they   have           recognised that frequently an Act purporting to be           an amendment  has the same qualitative effect as a           repeal-the abrogation of an 1047           existing statutory  provision-and  have  therefore           applied the term ’implied repeal’ and the rules of           construction  applicable   to  repeals   to   such           amendments."      Amendment is,  in fact,  a wider  term and  it includes abrogation  or  deletion  of  a  provision  in  an  existing

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statute. If  the amendment  of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts  it. An  amendment of  substantive law  is not retrospective unless  expressly laid  down or  by  necessary implication inferred.      For the  sake of  completeness, we wish to add that the mere use  of the  word ’substitution’  does not  imply  that Regulation 8(3)  must relate  back to  November 1, 1956, the appointed day.  The problem usually arises in case of repeal by substitution.  In the case of executive instructions, the bare issue  of a  fresh instrument on the same subject would replace  a  previous  instrument.  But  in  the  case  of  a legislative enactment,  there  would  be  no  repeal  of  an existing law  unless the  substituting act  or provision has been validly  enacted with  all the required formalities. In State of  Maharashtra v. The Central Provinces Manganese Ore Co. Ltd.,  [1977] 1  SCR 1002  a three Judges Bench repelled the argument  that since  the word ’substituted’ was used in the Amending  Act of  1949. It necessarily followed that the process embraces  two distinct  steps,  one  of  repeal  and another of  a fresh  enactment.  In  that  case,  the  whole legislative  process  termed  ’substitution’  proved  to  be abortive inasmuch  the Amending  Act  did  not  receive  the assent  of   the  Governor  General  under  s.  107  of  the Government  of  India  Act,  1935  and  was  thus  void  and inoperative. Distinguishing  the two  earlier  decisions  is Firm A.T.B.  Mehtab Majid  & Co.  v. State of Madras, [1963] Suppl. 2  SCR 435 and Koteshwar Vittal Kamath v. K. Rangappa Balica & Co. [1969]3 SCR 40 the Court observed that the mere use of  the  word  ’substituted’  does  not  ipso  facto  or automatically repeal  a provision  until the provision which is to  take its  place is  constitutionally permissible  and legally effective. It relied upon the following principle of construction stated in Halsbury’s Laws of England, 3rd edn., Vol. 36. p. 474:           "Where an  Act passed after 1850 repeals wholly or           partially any  former  enactment  and  substitutes           provision for the enactment repealed, the repealed           enactment remains  in force  until the substituted           provisions come into operation." 1048 And observed:           "We  do  not  think  that  the  word  substitution           necessarily  or   always  connotes  two  severable           steps, that  is to  say, one of repeal and another           of a fresh enactment even if it implies two steps.           Indeed,  the   natural   meaning   of   the   word           "substitution" is  to indicate  that  the  process           cannot be  split up  into two pieces like this. If           the process described as substitution fails, it is           totally ineffective so as to leave intact what was           sought to be displaced. That seems to us to be the           ordinary and  natural meaning  of the words ’shall           be substituted’."      The underlying  fallacy of the argument is that lies in the assumption  that Regulation 8(3) had been ’substituted’. What had  been substituted  is the  new Regulation 8(1), and Regulation 8(3)  is newlyadded by way of amendment to remove an existing anomaly.      We therefore  find no  justification to  interfere with the judgment  of the High Court. The appeal must accordingly fail and is dismissed. There shall be no order as to costs. S.L.                                       Appeal dismissed. 1049

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