Case: State Of U.P.  Vs. Hirendra Pal Singh Etc

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. Manual4. 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

Reasoning:
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 under the unamended provisions, i.e., which stood repealed by the amendment dated 13.8.2008.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 the19. 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 )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 abeyance23. 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 amendmentThus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under ag 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 usedTherefore, 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 sustainable.