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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: MANGILAL PINDWAL

DATE OF JUDGMENT:       08/07/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J)

CITATION:  1996 SCC  (5)  60        JT 1996 (6)   162  1996 SCALE  (5)38

ACT:

HEADNOTE:

JUDGMENT:                  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                       J U D G M E N T      The following Judgment of the Court was delivered: State of Rajasthan V.0 Mangilal Pindwal                       J U D G M E N T S.C. AGRAWAL, J.      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

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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 :

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    "(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

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    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

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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.