REPORTABLE

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. …………. OF 2010 (Arising out of SLP (C) Nos.14992-93 of 2010)

State of U.P. & Ors. …… Appellants

Versus

Hirendra Pal Singh etc.        …….Respondents

J U D G M E N T  

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  

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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  

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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,  

these appeals.

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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  

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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  

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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.

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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.  

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(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  

Government Advocates.  

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  

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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  

under:

“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.   

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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  dated  

23.4.2010.

It  is  also  pertinent  to  mention  here  that  operation  of  the  

impugned order  dated  30.11.2009  has  already  been  stayed  by  this  

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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.

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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  

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  

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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  

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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  

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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).

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(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.   (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,  

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would not arise.  In view of this, the interim order would amount to  

substituting  the  legal  policy  by  the  judicial  order,  and  thus  not  

sustainable.  

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  

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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 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.         

..…………………………….J.  (J.M. PANCHAL)

..…………………………….J. (DEEPAK VERMA)

      ………………… ………….J. (Dr. B.S. CHAUHAN)

New Delhi, December 3, 2010

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