STATE OF U.P. AND ORS.versusHIRENDRA PAL SINGH ETC

                   [2010) 15 (ADDL.) S.C.R. 854


A                    STATE OF U.P. AND ORS.
                                 v.
                    HIRENDRA PAL SINGH ETC.
                (Civil Appeal Nos.10229-30 of 2010)
                       DECEMBER 03, 2010
8
             [J.M. PANCHAL, DEEPAK VERMA AND
                    DR. B.S. CHAUHA~, JJ.]

        U.P. Legal Remembrancer Manual - Amendment of
C provisions in regard to appointment of District Government
    Counsel - High Court vide interim order stayed the operation
    of amended provisions of L.R. Manual and directed the State
    Government to consider the applications for renewal of all
    District Government Counsels whose term had already
D   expired under the unamended provisions, i.e., which stood
    repealed by the amendment - On appeal, held: Whenever
    an Act is repealed, it must be considered as if it had never
    existed - Tl7e object of repeal is to obliterate the Act from the
    statutory books, except for certain purposes as provided
E   under s 6 of the General Clauses Act, 1897 - On repeal, the
    earlier iJrovisions stand obliterated/ abrogated/wiped out
    wholly, i.e., protanto repeal - The High Court erred in issuing
    dtrections to the State authorities to proceed, as an interim
    measure, under a non-existing IC1w - Such an order seems
F   to have been passed only to fill up the vacuum - Under
    certain circumstances, an Act which stood repealed, may
    revive in case the substituted Act is declared ultra viresl
    unconstitutional by the court on the ground of legislative
    competence etc., however, the same shall not be the position
G   in case of subordinate legislation - The L. R. Manual consists
    of executive instructions, which can be replaced any time by
    another set of executive instructions - Therefore, question of
    revival of the repealed clauses of L.R. Manual in case the
    substituted clauses are struck down by the court, does not

H                                 854
 STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 855
                     ETC.
 arise :... In view of this, the interim order passed by High Court   A
 would amount to substituting the legal policy by the judicial
 order, and is thus not sustainable - General Clauses Act,
 1897 - s.6.
      Interpretation of Statutes - Repeal and suspension· of 8
 statutory provisions - Distinction between - Discussed.
     The provisions of the U.P. Legal Remembrancer
 Manual (L.R. Manual) were amended w.e.f 13th August,
 2008. The amendment provided basically two changes (1)
 dispensation of consultation with the District Judge by              C
 the District Magistrate before sending any proposal/
 recommendation to the State Government for
 appointment of District Government Counsel; and (2)
 reduction in the age of service from 62 to 60 years. The
 amended provisions of the LR. Manual were challenged                 D
 in writ petitions filed before the High Court.

       The High Court passed interim order staying the
 operation of amended provisions of LR. Manual and
 directed the State Government to consider the
 applications for renewal of all District Government                  E
 Counsels whose term had already expired under the
 unamended provisions, i.e., which stood repealed by the
 amendment dated 13.8.2008, and to allow them to serve
 till they attain the age upto 62 years.
                                                                      F
       In the instant appeals, the appellant contended that
  fixing the age even in government services falls within th.e
' exclusive competence of the State authorities, and the
  court should not interfere in such matters being a policy
  decision, even at the final stage; and that an interim order        G
  should not be passed by the court, staying the operation
  of law as such unless the court is o.f the view that the law
  was patently unconstitutional. It was contended by the
  appellant that the High Court under no circumstance
  could direct the State authorities to consider the cases            H
    856    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A for renewal/extension under the provisions of the
  unamended LR. i.e. non-existing provisions; and that
  such interim order tantamounts to legislation by judicial
  orders. It was further contended by the appellant that a
  large number of similar orders were passed by the High
8 Court and in all of them except this case, the operation
  of such interim orders has been stayed by this court.

       Per contra, the respondents contended that In
  making the proposal for appointment of the Distt.
  Government Counsel by · the Distt. Magistrate,
C dispensation of consultation with the District Judge itself
  is c' serious matter and High Court rightly stayed the
  op"lration of the amended provisions of the L.R. Manual.
  They contended that since the High Court stayed the
  operation of the amended clauses of the LR. Manual, the
D r•ld LR. Manual became automatically operative and,
  U1erefore, the High Court was justified in issuing direction
  to consider the cases of renewal/extension under the
  unamended provisions of the Manual.

E         Disposing of the appeals, the Court

      HELD:1. 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
F in Government services. So in case of purely professional
  engagement, the age could validly be reduced by the
  State Government unilaterally. It is evident that even in
  government services where the terms and conditions of
  service are governed by the statutory provisions, the
G Legislature is competent to enhance or reduce the age
  of superannuation. In view of the above, it is beyond the
  imagination of this Court as to why such a course is not
  permissible for the appellant-State while fixing the age of
  working of the District Government Advocates. The court
H
 STATE OF U.P. AND ORS. v. HIRENDRA PAL-SINGH 857
                     ETC.
 should not generally stay the operation of law. [Paras 7,        A
 11, 12] [864-H; 865-A; 865-H; 866-A-D]

       Bishun Narain Misra v. The State of Uttar Pradesh & Ors.
  AIR 1965 SC 1567; Roshan Lal Tandon v. Union of India &
  Ors. AIR 1967 SC 18h89; B.S. Vader? v. Union of India & Ors.    B.
  AtR 1969 SC 118; Ti e State of Jammu & Kashmir v. Triloki
  Nath Khosa & Ors. AIR 1974 SC 1; 8.S. Yadav & Ors. v.
  State of Haryana & Ors. AIR 1981 SC 561; State of Jammu
  & Kashmir v. Shiv Ram Sharma & Ors. AIR 1999 SC 2012;
  K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc. AIR
  1985 SC 551; State of Andhra Pradesh etc. etc. v. S. K.         C·
/ Mohinuddin etc. etc. AIR 1994 SC 1474; Bhavesh D. Parish
  & Ors. v. Union of India & Anr. AIR 2000 SC 2047; Si/iguri
  Municipality & Ors. v. Amalendu Das & Ors. AIR 1984 SC
  653; Bir Bajrang Kumar v. State of Bihar & Ors. AIR 1987 SC
  1345; Mis. Vinod Trading Company v. Union of India & Ors.       D
  (1982) 2 SCC 40; Vishnu Traders v. State of Haryana & Ors.
 (1995) Suppl. (1) SCC 461 - referred to.
     2. Admittedly, this Court has stayed the operation of
 the interim orders passed by the High Court in large             E
 number of identical cases and all such orders have been
 placed on record. In order to maintain consistency, it is
 required to pass the same order in the said case also.
 [Para 16] [867-F; 868-A]                         -
                                                                  F
       3.1. 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             G
  substance. Therefore, on repeal, the earlier provisions
, stand obliterat~dlabrogated/wiped out wholly, i.e.,
  protanto repeal. [Para 19] [868-H; 869-A]
   1•   3.2. There is a clear distinction between repeal and      H
   858 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.

A 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
B holds it in abeyance. [Para 21] [870-B]

      Mis. 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;
C Property Owners' Association & Ors. etc. etc. v. State of
  Maharashtra & Ors. AIR 2001 SC 1668; Mohan Raj v.
  Dimbeswari Saikia & Anr. AIR 2007 SC 232 - relied on.

       Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors.
  AIR 1991 SC 537; Harpal Singh Chauhan & Ors. v. State of
D U.P. AIR 1993 SC 2436; State of U.P. v. Ramesh Chandra
  SJ1arrna & Ors. AIR 1996 SC 864; State of U.P. & Anr. v. Johri
  Mal AIR 2004 SC 3800; State of UP. & Ors. v. Netra Pal Singh
  & Ors. AIR 2004 SC 3513; Mis. Shree Chamundi Mopeds
  Ltd. v. Church of South India Trust Association, Madras AIR
E 1992 SC 1439 and Bhagat Ram Sharma v. Union of India &
  Ors. AIR 1988 SC 740 - referred to.

       4.1. The amended provisions of the LR. Manual are
  under challenge before the High Court and the
  provisions repealed by the Amendment dated 13.8.2008
F 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
G 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
  la~. Such an order seems to have been passed only to
H
STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 859
                    ETC.
fill up the vacuum. Generally quashing of a subsequent A
notification would not effect 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 s
words like substitution; or suppression. It depends upon
the totality of circumstances and the context in which
they are used. [Para 23] [870-D-H]

    4.2. It is evident that under certain circumstances, an
Act which stood repealed, may revive in case the C
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 D
be replaced any time by another set of executive
instructions. 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 E
substituting the legal policy by the judicial order, and
thus not sustainable. [Para 24] [871-E-G]

     B.N. Tewari v. Union of India & Ors. AIR 1965 SC 1430;
Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. · F
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;
State of Kera/a & Anr. v. Peoples Union for Civil Liberties,;
Kera/a State Unit & Ors. (2009) 8 SCC 46; Ameer-un-Nisscj G
Begum & Ors. v. Mahboob Begum & Ors. AIR 1955 SC 352;
India Tobacco Co. Ltd. v. The Commercial Tax Officer,
Bhavanipore & Ors. AIR 1975 SC 155; Firm A. T.B. Mehtab
Majid and Co. v. State of Madras & Anr. AIR 1963 SC 928 -
relied on.                                             ·
                                                           H
                                 ""'~     .               .
         860 SUPRE~E coµJRl' REPORTS [2010] 15' (ADot.) S.C.R.

A             5. The impugned orders 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, would not be
         disturbed till the final disposal of the cases. [Para 25] [871-
B        H; 872-A]

                              Case Law Reference:
          AIR 1965 SC 1567                referred to         Para 8
          AIR 1967 SC 1889                referred to         Para 9
c
          AIR 1969 SC 118                 referred to         Para 9
          AIR 1974 SC 1                   referred to         Para 9
     '
           AIR 1981 SC 561                referred to         Para 9
.D
          AIR 1999 SC 2012                referred to         Para 9
           AIR 1985 SC 551                referred to         Para 10
           AIR 1994 SC 1474               referred to         Para 10
E          AIR 2000 SC 2047                referred to        Para 12
           AIR 1984 SC 653                 referred to        Para 13
           AIR 1987 SC 1345                referred to        Para 14

F          (1982) 2 sec 40                 referred to        Para 14
           (1995) Suppl. (1) sec 461       referred to        Para 15
           AIR 1991 SC 537                 referred to        Para 17
           AIR 1993 SC 2436                referred to        Para 17
G
           AIR 1996 SC 864                 referred to        Para 17
           AIR 2004 SC 3800                referred to         Paras 17,
                                                              ·24

 H         AIR 2004 SC 3513                referred to        Para 17
    862    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A         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
B 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 LR. Manual) and further directed the State Government
  to consider the applications for renewal of the all District
C 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
D 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 Magi1>trate, Agra in
  1993 and 1996, however, no order was passed on the said
E 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
F 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,
G 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

H
STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 863
         ETC. [DR. 8.S. CHAUHAN, J.]

extension of service upto · 62 years under the unamended           A
provisions of the LR. Manual.

     4. Similarly, another order has been passed in Writ Petition
No.7851 (M/8) of 2008 filed by the Association of District
Government Counsel in representative capacity challenging the       .
                                                                  8
amendment dated 13.8.2008 to the LR. 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 lias
stayed the operation of the amended provisions, and issued C
direction to consider applications for the Distt. Government ·
Counsel for renewal in accordance with the unamended
provisions of the LR. Manual, till further orders. Hence, these
appeals.
                                                                   D
      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 LR. Manuals has been
challenged. The amendment provided basically two changes
(1) consultation with the District Judge by the District Magistrate E
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 F
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 G
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 LR. i.e. non-
existfng provisions. Such interim order tantamounts to
legislation by judicial orders. More so, a large number of similar
                                                                    H
    864   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   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
  c:ounsel appearing for the respondents' Association and Shri
8
  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
C 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 LR. Manual becomes automatically operative. Therefore,
  the High Court was justified in issuing direction to consider the
D 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
E   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
F   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.
G
         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 ..
H
STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 865
         ETC. [DR. B.S. CHAUHAN, J.]
So in case of purely professional engagement, the age could         A
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     8
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.
                                                                    c
      9. In Roshan La/, Tandon v. Unior. 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           D
statutory rules whi.ch 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.,            E·
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
                                                                    F
provisions of AndtJra 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      G
retrospective appljcation taking away their accrued rights. (See
also State of Andf:Jra Pradesh etc. etc. v. S.K. Mohinuddin etc.
etc., AIR 1994 SC 1474).
                  I

    11. In viewi of the above, it is evident that even in           H
    866    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.G.R.

A 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
B age of working of the District Government Advocates.
        12. In Bhavesh D. Parish & Ors. v. Union of India & Anr.,
    AIR 2.000 ~C 2047, thi~ Court observed that while considering
  thf: constitutional validi f of statutory provisions, the court should
  be very slow in staying the operation of the statutory provisions.
C It is permissible for the court to interfere at interim stage "only
  in those few cases where the view reflected in t~:e legislation
  is not possible to be t(!ken at all".

          Thus, the court should not generally stay the operation of
D law.

       13. In Si/iguri Municipality & Ors. v. Amalendu Das & Ors.,
  AIR 1984 SC 653, this Court had taken note of the fact that
  thet High Court had been passing stay orders in some cases
E 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
F 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
G         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
H         eschewed."
STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 867
         ETC. [DR. B.S. CHAUHAN, J.]

     14. In Bir Bajrang Kumar v. State of Bihar & Ors., AIR         A
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.                                   B

    The same view has been reiterated by this Court in Mis.
Vinod Trading Company·v. Union of India & Ors., (1982) 2
sec 40.
    15. In Vishnu Traders v. State of Haryana & Ors., (1995)        C
Suppl. (1) sec 461, while dealing Nith 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        D
    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           E
    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          F
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 5.1.201 O; and
SLP(C) No.11261/2010 dated 23.4.2010.
                                                                    G
     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          H
     868   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A
     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 1st case, the High Court, in spite of taking
B 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.
c      17. So far as the issue of dispensation of consultation with
  the District Judge is concerned, this court has hitherto 'aken 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 ·
D 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.
E      18. The High Court vide impugned interim orders stayed
  the operation of the amended provisions of the LR. 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
F 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
G 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,
H except for certain purposes as provided under section 6 of the
STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 869
         ETC. [DR. B.S. CHAUHAN, J.]
General Clauses Act, 1897. Repeal is not a matter of mere A
form but is of substance. Therefore, on repeal, the earlier
provisions stand obliterated/abrogated/wiped out wholly, i.e.,
protanto repeal (vide: Mis. 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 B
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 Mis. Shree Chamundi Mopeds Ltd. v. Church of
South India Trust Association, Madras, AIR 1992 SC i439, C
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 D
    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 E
    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 F
    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 G
    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 H
    870    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A         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;
8
    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 hold~ it in abeyance.

        22. This Court in Bhagat Ram Sharma v. Union of India
C   & Ors., AIR 1988 SC 740, explained the distinction between
    repeal and amendment observing t~r• Jr.':mdmcr.t 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; 1f it is extensive, it repeals and re-enacts it.
D
          23. In fact, the amended provisions of the LR. 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
E   in existence. The Court while examining the validity of the
    am~nded 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.

F       Thus, the High Court erred in issuing directions to the State
  authorities to proceed, as an intenrn 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
G 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
H the context in which they are used. (Vide B.N. Tewari v. Union
                                            \

  STATE OF U.P. AND ORS. v. HIRENDRA PAL SINGH 871
           ETC. [DR. B.S. CHAUHAN, J.]

 of India & Ors., AIR 1965 SC 1430; Indian Express A
 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
 Kera/a & Anr. v. Peoples Union for Civil Liberties, Kera/a State B
 Unit & Ors., (2009) 8 sec 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              C
 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 :
                                                                     D
             "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                 E ·
-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 LR. Manual is consisted of
 executive instructions, which can be replaced any time by           F
 another set of executive instructions. (Vide Johri Mal (supra).

      Therefore, question of revival of the repealed clauses of
 LR. Manual in case the substituted clauses are struck down
 by the court, would not arise. In view of this, the interim order   G
 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 ar~ hereby set aside. However, in view of the peculiar     H
    872      SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   fact~situation existing herein, the order (s}r 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
8 appointment  involved in such cases made a request to the High
  Court in Special Leave Petition (C) No.12751 of 2009 (Ram
  Autar Saini, Advo9ate 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
C 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
  Hon'ble Chief Justice/Senior Judge for informatio.n and
  appropriate orders.
0
         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
E   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.

    8.8.8.                                      Appeals disposed of.