Full Judgment Text
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PETITIONER:
STATE OF HARYANA & ORS.
Vs.
RESPONDENT:
AMAR NATH BANSAL
DATE OF JUDGMENT: 15/01/1997
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S. C. AGRAWAL, J.:
This appeal, by special leave, arises out of a suit
filed by the respondent-Amar Nath Bansal for a declaration
that his retirement on attaining the age of 58 years was
illegal and that he is entitled to continue in service till
he attains the age of 62 years.
The respondent was appointed as a civilian clerk in the
Army in the erstwhile State of Jind on July 12, 1943. In the
Jind State the age of superannuation, as prescribed by
Regulation 27 of the Jind State Civil Service Regulations,
1945, was 62 years. On May 5, 1948 the Ruler of Jind State
and the Rulers of the States of Patiala, Kapurthala, Nabha,
Fariodkot, Malerkotla, Nalagarh and Kalsia entered into a
Covenant whereby they agreed to unite and integrate their
territories in one State to be known as Patiala and East
Punjab States Union (for short "PEPSU"). As a result of the
integration of the services of the union States, the
respondent was posted as Auditor in the Treasury in PEPSU.
On the coming into force of the Constitution, PEPSU became a
Part B State and continued as such till the re-organisation
of the States under the States Re-organisation Act, 1956.
With effect from November 1, 1956, the Part B State of PEPSU
Became a part of the reorganised State of Punjab and the
respondent was absorbed in the service of the State of
Punjab. As a result of the re-organization of the State of
Punjab and the formation of the State of Haryana by the
Punjab Re-organisation Act 1966 with effect from November 1,
1966, the respondent was allocated to the State of Haryana.
While he was employed as Assistant Treasury Officer in the
State of Haryana, he was retired from service on attaining
the age of 58 years with effect from September 30, 1984. On
September 25, 1987 he filed a suit (Civil Suit No. 392 of
1987) in the court of Sub-Judge IInd Class, Rohtak, for a
declaration that his retirement at the age of 58 years was
illegal and against the service condition and that he was
entitled to continue in service upto the age of 62 years.
The said suit was dismissed by the trial court on the view
that the Jind State Service Rules were not applicable and
the conditions of service of respondent were governed by
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Rule 3.26 of the Punjab Civil Service Rules Vol. I Part I
which prescribes 58 years as the age of superannuation. The
said judgment of the trial court was, however, reversed in
appeal by the Additional District Judge IV, Rohtak, who held
that the age of superannuation constitutes a condition of
service and by virtue of clause XVI of the Covenant the said
condition continued in operation in the State of PEPSU and
thereafter in the State of Punjab in view of the States Re-
organisation Act, 1956 and in the State of Haryana in view
of the Punjab Re-organisation Act, 1966 and it has not been
shown that the approval of the Central Government had been
taken for applying the provisions of Rule 3.26 of Vol. I
Part I of the Punjab Civil Service Rules to the respondent,
Second appeal filed by the appellant-State against the said
judgment and decree of the Additional District judge was
dismissed by the High Court by the impugned judgment dated
July 6, 1993. Hence this appeal.
The question that falls for consideration is whether
the provisions of the Jind State Service Regulations, 1945
which prescribed 62 years as the age for superannuation of
persons employed in the State service continued in operation
after the formation of PEPSU and thereafter the State of
Punjab and the State of Haryana. For a proper appreciation
of the submissions of the learned counsel it is necessary to
take note of the relevant provisions of the Covenant.
"Article X(2). Until a Legislature
elected in accordance with the
terms of the Constitution framed by
it comes into being, the
Constitution framed by it comes
into being, the Constituent
Assembly as constituted in the
manner indicated in Schedule II
shall function as the interim
Legislature of the Union."
"Article XVI(1). The Union hereby
guarantees either the continuance
in service of the permanent members
of the public services of each of
he Covenanting State on condition
which will be not less advantageous
than those on which they were
serving on the 1st of February 1948
or the payment of reasonable
compensation or retirement on
proportionate pension.
In accordance with Article VI of the Covenant the Raj
Pramukh took over the administration of Jind State on August
20, 1948 and on the same date the Raj Pramukh promulgated
the Patiala and East Punjab States Union Administration
Ordinance No. 1. of S. 2005. Section 3 of the said Ordinance
contained the following provision :-
"As soon as the administration of
any covenanting State has been
taken over by the Raj Pramukh as
aforesaid all Laws, Ordinances,
Acts, Rules, Regulations,
Notifications, Hidayate Firman-i-
Shahi, having force of law in
Patiala State on the date of
commencement of this Ordinance
shall apply mutatis mutandis to the
territories of the said State and
with effect from that date all laws
in force in such Covenanting State
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immediately before that date shall
be repealed:
Provided that proceedings of any
nature whatsoever pending on such
date in the courts or offices of
any such Covenanting State shall,
notwithstanding anything contained
in this Ordinance or any other
Ordinance be disposed of in
accordance with the laws governing
such proceedings in force for the
time being in any such Covenanting
State."
On February 15, 1949 Ordinance No. 1 of S, 2005 was
repealed and replaced by Ordinance No. XVI of S. 2005.
Section 3(1) of the said Ordinance was in the same terms as
Section 3 of the Ordinance No. 1 of S. 2005. On April 9,
1949 the Rulers of the States constituting PEPSU entered
into a Supplementary Covenant whereby Article X of the
original Covenant was substituted as under :-
"Until the commencement of the
Constitution of India, the
legislative authority of the Union
shall vest in the Raj Pramukh, who
may promulgate Ordinances for the
peace and good Government of the
Union or any part thereof, and any
Ordinance so made shall have the
like force of law as an Act passed
by the Legislature of the Union."
On November 24, 1949 the Raj Pramukh of PEPSU issued a
proclamation accepting the Indian Constitution as that of
the PEPSU and, as a result, PEPSU became a Part B State
under the Indian Constitution on January 26, 1950. By virtue
of Article 372 of the Constitution the laws in force in
PEPSU immediately before the commencement of the
Constitution were continued in force until altered, repealed
or amended by competent legislature or other competent
authority.
By Notification Dated January 18, 1951 issued by the
finance Department of Government of PEPSU provision was made
for payment of compensation to permanent employees of
covenanting States for premature retirement. In the said
Notification it was stated that the PEPSU Government had
adopted the age limit of 55 years for retirement of
government servants on superannuation for pension and that
the service rules which were in force in erstwhile Nabha and
Jind States prescribe 60 and 62 years respectively as the
age for compulsory retirement from service. The said
Notification made provision for payment of compensation by
way of increase in monthly pension. Government servants who
had retired between 1st September, 1948 and 31st August,
1949 were given an increase of 10% of monthly pension; those
who retired between 1st September 1949 and 31st August 1950
were given an increase of 7% of monthly pension and those
who retired between 1st September 1950 and 31st August 1950
were given an increase of 4% of the monthly pension. NO
compensation was provided for government servants who
retired on or after 1st September 1950 on the ground that
they would be getting the full benefit of the increased pay
for pension. Thereafter the PEPSU Government issued the
PEPSU Services Regulations, 1952. In Chapter IX, Article 9.1
of the said Regulations it was prescribed that every
Government servant shall on attaining the age of 55 years
retire on such pension as may be admissible to him under the
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rules for the time being in force. As a result of the re-
organisation of the States under the States Re-organisation
Act. 1956 the Part 8 State of PEPSU became a part of the re-
organised State of Punjab. Provisions relating to services
were made in Section 115 of the States Re-organisation Act,
1956. By virtue of sub-section (1) of Section 115 every
person who immediately before the appointed day was serving
in connection with the affairs of the existing State of
PEPSU was to be deemed to have been allotted to service in
connection with the affairs of successor State, namely, the
State of Punjab as from that day. In the proviso to sub-
section (7) of Section 115 it was prescribed that the
conditions of service applicable immediately before the
appointed day in the case of any person referred to in sub-
section (1) shall not be varied to his disadvantage except
with the previous approval of the Central Government. In the
State of Punjab there were Punjab Civil Service Rules which
prescribed 58 years as the age of retirement for all
employees except Class IV government employees (Rule 3.26).
The State of Haryana was formed as a result of re-
organisation of the State of Punjab under the Punjab Re-
organisation Act, 1966. The proviso to sub-section (6) of
Section 82 of the Punjab Re-organisation Act, 1966 contains
a provision similar to that contained in the proviso to sub-
section (7) of Section 115 of the States Re-organisation
Act, 1956.
On behalf of the appellants it has been urged that
after the formation of PEPSU in 1948 the conditions of
service of the respondent were governed by the rules
applicable in the State of Patiala and after the framing of
the Pepsu Service Rules in 1952, the Jind State Civil
Service Regulations, 1945, ceased to be applicable and the
conditions of service of the respondent were governed by the
Pepsu Service Rules of 1952 till the merger of Part B State
of PEPSU into the State of Punjab in 1956 under the States
Re-organisation Act when the Punjab Service Rules became
applicable. It was submitted that under the Patiala State
Rules the age of retirement was 55 years and that under the
PEPSU Civil Service Rules also the age of retirement was 55
years and that as a result of the re-organisation of the
States under the States Re-organisation Act, 1956 the
respondent was governed by the Punjab Civil Service Rules
wherein the age of retirement was 58 years and therefore the
respondent has been rightly retired on his attaining the age
of 58 years and he cannot claim to continue in service till
he had attained the age of 62 years on the basis of the
provisions contained in the Jind State Civil Service
Regulations 1945.
Shri Pradeep Gupta, the learned counsel appearing for
the respondent, has urged that the respondent was entitled
to continue in service till he attained the age of 62 years
in view of the provisions contained in the Jind State Civil
Service Regulations, 1945 and reliance has been placed on
clause XVI of the Covenant which guaranteed either the
continuance in service of the permanent members of the
public services of each of the Covenanting States on
conditions which will be not less advantageous than those on
which they were serving on 1st February, 1948, or the
payment of reasonable compensation or retirement on
proportionate pension. Shri Gupta has submitted that the
Covenant was in the nature of constitution for the newly
constituted State of PEPSU and the provision contained in
Article XVI of the Covenant was binding on PEPSU as well as
the successor State, namely, the Part B State of PEPSU under
the Indian Constitution as well as the State of Punjab as
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re-organised under the States Re-organisation Act, 1956 and
the State of Haryana established under the Punjab Re-
organisation Act, 1966. Shri Gupta has placed reliance on
the decision of this court in Bholanath J. Thaker vs. State
of Saurashtra, AIR 1954 SC 680.
The Covenant entered into by the Rulers of the States
which had joined together to form the PEPSU was a treaty
entered into by the Rulers of independent States. Under the
Covenant the rulers gave up their sovereignty over their
respective territories and vested it in the ruler of the new
State of PEPSU. As a result of the Covenant there was
establishment of a new sovereign over the territories
comprising the States of the Rulers who had signed the said
covenant. The Covenant is, therefore, an Act of State. With
regard to an act of State the law is well settled by the
decisions of this Court. The residents of the territories
which are acquired do not carry with them the rights which
they possessed as subjects of the ex-sovereign. As subjects
of the new sovereign they possess only such rights as are
granted or recognised by him. The process of acquisition of
new territories is one continuous act of State terminating
on the assumption of sovereign powers de jure over them by
the new sovereign and it is only thereafter that rights
accrue to the residents of those territories as subjects of
that sovereign. No act done or declaration made by the new
sovereign prior to his assumption of sovereign powers over
acquired territories can quoad the residents of those
territories by regarded as having the character of a law
conferring on them the rights such as could be agitated in
courts. The clauses in a treaty entered into by the
independent rulers providing for the recognition of the
rights of the subjects of the ex-sovereign are in capable of
enforcement in the courts of the new sovereign. [See : M/s.
Dalmia Dadri Cement Co. Ltd. vs. Commissioner of Income Tax
(1959) SCR 729, at p. 746; Pramod Chandra Deb v. State of
Orissa, 1962 Supp. (1) SCR 405 at pp. 434-436; State of
Gujarat v. Vora Fiddali, 1964 (6) SCR 461; Pema Chibar alias
Premabhai Chhibabhai Tangal v. Union of India & Ors., 1966
(1) SCR 357; and Vinodkumar Shantilal Gosalia v. Gangadhar
Narsingdas Agarwal & Ors., 1982 (1) SCR 392].
In M/s. Dalmia Dadri Cement Co, Ltd. (supra) it was
contended that the Covenant that the Covenant entered into
by the rulers of the States to form the PEPSU was more than
an act of State and was in the nature of a constitution for
the new State in the sense that it is a law under which all
the authorities of the new State including the Raj Pramukh
had to act. Reliance was also placed on Article XVI of the
Convenant to show that the rights of the subjects of the
quondam states were intended to be protected. Rejecting the
said contention it was held that the Covenant is in whole
and in parts an act of State. As regards Article XVI of the
Covenant, it was a stated that "a clause in a treaty
between high contracting parties does not confer any right
on the subjects which could be made the subject-matter of
action in the courts, and that the Patiala Union is not
bound by it, because it was not a party to the Covenant".
[p. 745]. After referring to Ordinance No. 1 of S. 2005, the
Court observed :-
"That undoubtedly is a law enacted
by the sovereign conferring rights
on his subjects and enforceable in
a court of law, but at the same
time the enactment of such a law
serves to emphasis that the
Articles have not in themselves the
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force of law and were not intended
to create or recognise rights."
[p. 745]
Reference may be made at this stage to the decision in
Bholanath J. Thaker (supra) on which reliance has been
placed by Shri Gupta. In that case the appellant was
employed in the service of Wadhawan State. The ruler of the
Wadhawan State along with the rulers of other Kathiawar
States had entered into a Covenant to form the United State
of Kathiawar (later known as Saurashtra) on January 24,
1948. The raj Pramukh took oath of his office on February
15, 1948 and on March 1, 1948 he promulgated an Ordinance,
being Ordinance No. 1 of 1948, continuing in force all laws,
ordinances, acts, rules, regulations etc. having the force
of law in the covenanting State until repealed or amended
under the provisions of the ordinance. The ruler of the
Wadhawan State made over the administration of the State to
the Saurashtra Government on March 16, 1948 and on the same
date a proclamation was insured by the Saurashtra Government
declaring that whatever rights, jurisdiction and authority
were with the Ruler with respect to the said State were then
vested in the Saurashtra Government and the duties and
obligations with regard to the Ruler’s own State passed to
the Saurashtra Government and the Saurashtra Government
would fulfill the same. Article XVI(1) of the Covenant of
the United States of Kathiawar contained provisions similar
to those contained in Article XVI(1) of the Covenant of the
Rulers forming the States of PEPSU. By Order dated June 29,
1948, the appellant was retired by the Saurashtra Government
on the ground that he had crossed the age of superannuation
which was taken as 55 years. The appellant claimed that he
was entitled to continue in service till the completion of
60 years of age on the basis of the provisions contained in
Section 5 of the Dhara (Act) No. 29 of S. 2004 which had
been promulgated by the Ruler of the Wadhawan State which
came into force with effect from January 1, 1948 whereby the
age of superannuation of state civil servants had been fixed
at 60. He filed a civil suit claiming compensation for his
premature compulsory retirement. The said suit was decreed
by the trial court but on appeal the suit was dismissed by
the High Court. Before this Court it was urged on behalf of
the State that the Covenant by the rulers of Kathiawar
States was an act of State and the municipal courts were not
competent to entertain any dispute arising out of the
Covenant. Reliance was also placed on Article 363 of the
Constitution which bars interference by courts in any
dispute arising out of certain treaties and Covenants. The
said contention was rejected by this Court on the view that
when the Wadhawan State merged with the Saurashtra State and
again when it acceded to the Dominion of India all the
existing laws continued until repealed and the appellant’s
rights under Dhara No. 29 of S. 2004 were still good and
could have been enforced in the municipal courts until
either repealed or repudiated as an act of State. It was
observed that there was in fact no such legislation and
therefore his rights remained and the municipal courts would
be entitled to examine the contract and apply Dhara No. 29
of S. 2004 and enforce whatever rights the appellant had
under that Dhara and his contract of service. It was held
that the Covenant could be looked at to see whether the new
sovereign had waived his right to ignore rights given under
the laws of the former sovereign and that the terms of the
covenant showed that the existing laws were to continue and
whatever rights of the appellant were under the existing
laws were available for enforcement to the appellant and
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there was no bar to municipal courts entertaining the suit
to enforce such rights. As regards that bar under Article
363 of the Constitution it was observed that there was no
dispute arising out of the Covenant and what the appellant
was doing was merely to enforce his rights under the
existing laws which continued in force and till they were
repealed by appropriate legislation. The decision in
Bholanath J. Thaker (supra) thus proceeded on the basis that
the law of the Wadhawan State (Dhara No. 29 of S. 2004)
prescribing 60 as the age of superannuation, had been
continued in force after the establishment of the State of
Saurashtra by Ordinance NO. 1 of 1948 and the appellant was
entitled to enforce his rights under the said law which was
in force at the relevant time. Moreover, in that case the
Saurashtra Government had issued a proclamation on the same
date on which the administration of the Wadhawan State was
taken over by the Saurashtra Government, whereby it was
declared by the Saurashtra Government that the duties and
obligations with regard to the Ruler’s own State had passed
to the Saurashtra Government and that the Saurashtra
Government would fulfill the same. Thus it was a case where
apart from continuing the laws of the old sovereign the new
sovererign had made an express declaration recognising the
duties and obligations of the old sovereign.
In the instant case, there was no such declaration by
the PEPSU Government recognising the duties and obligations
of the rulers of Jind State under the laws of the Jind
State. Nor was there a law similar to Ordinance No. 1 of
1948 of Saurashtra continuing the laws of the Jind State. On
the other hand, there was Ordinance No. 1 of S. 2005
followed by the Ordinance No. 16 of S. 2005 whereby the laws
of the covenanting States were repealed and the laws of
Patiala State were made applicable in the entire territory
of PEPSU. Can it be said that in spite of the said
ordinances the Jind Service Regulations of 1945 which
prescribed 62 years as the age of superannuation was a law
in force in PEPSU on the date of commencement of the
Constitution and by virtue of Article 372 of the
Constitution the said Regulations continued in the Part B
State of PEPSU after the coming into fore of the
Constitution and in the reorganised State of Punjab under
the States Re-organisation Act, 1956 and in the State of
Haryana under the Punjab Re-organisation Act, 1966. In our
opinion, this question must be answered in the negative. As
noticed earlier the Raj Pramukh of PEPSU look over the
administration of Jind State on August 20, 1948 and on the
same date he promulgated Ordinance No. 1 of S. 2005 and by
section 3 of the said ordinance all laws, ordinances, acts,
rules, regulations, notifications, Hidayate, Shahi-farman
having force of law in Patiala State on the date of
commencement of the said Ordinance were made applicable
mutatis mutandis to the territories of all the covenanting
States (including Jind State) and with effect from that date
all laws of such covenanting States immediately before that
date would stand repealed. Ordinance No. 1 of S. 2005 was
followed by Ordinance No. 16 of S. 2005 which contained a
similar provision. As a result of the said ordinances the
Jind State Civil Service Regulations of 1945 stood repealed
on August 20, 1948 and the relevant law as applicable in the
State of Patiala became applicable in the entire area of
PEPSU, including the Jind State, and the terms and
conditions of the respondent were, therefore, governed by
the provisions contained in the law that was applicable in
Patiala State and he could not claim any right on the basis
of the Jind State Civil Service Regulations 1945.
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Shri Pradeep Gupta has urged that Ordinance No. 1 of S.
2005 which was followed by Ordinance No.16 of S. 2005 were
both temporary laws having an operation of six months in
view of Article X(2) of the Covenant and that after the
expiry of Ordinance No. 16 of S. 2005 in August 1949 the
repeal of the Jind State Service Regulations under the
Ordinances Nos. 1 and 16 of S. 2005 became ineffective and
the Jind State Service Regulations stood revived and were
law in force on the date of coming into force of the
Constitution of India and by virtue of Article 372 of the
Constitution the said regulations contained in force
thereafter. In this connection, Shri Gupta has also
submitted that the amendment that was made in Article X of
the Covenant by the Supplementary Covenant was invalid since
the rulers of the covenanting States, after having entered
into the Covenant on May 5, 1948 and having divested
themselves of all the sovereignty, were not competent to
enter into the Supplementary Covenant and, therefore, the
Ordinances Nos. 1 and 16 of S. 2005 could only remain in
force for a period of six months. In support of the said
submission Shri Gupta has placed reliance on the decision of
this Court in Lachhman Das on behalf of firm Tilak Ram Ram
Bux vs. State of Punjab and Ors., 1963 (2) SCR 353, wherein
it has been laid down that the Supplementary Covenant that
was entered into by the rulers of the States forming PEPSU
cannot be held to be effective for modifying the provisions
in the original Covenant. Shri Gupta has also placed
reliance on the decision of the Judicial Committee of the
Privy Council in Gooderham and Worts Ltd. vs. Canadian
Broadcasting Corporation, AIR 1949 PC 90, in support of his
submission that a law repealed by a temporary legislation
automatically resumes its full force after the temporary
legislation has expired by efflux of the prescribed time.
In view of the decision of this Court in Lachhman Das
(supra) it must be held that Ordinance No. 16 of S. 2005 had
ceased to operate on August 15, 1949, on the expiry of the
period of six months from the date of its promulgation on
February 15, 1949. The question which requires consideration
is whether on the expiry of the said ordinance the Jind
State Civil Service Regulations, 1945, which had been
repealed by the said ordinance, stood revived. A similar
question came up for consideration before this Court in
State of Orissa vs. Bhupendra Kumar Bose, 1962 Supp, 2 SCR
380. In that case an ordinance had been promulgated whereby
the elections to the Cuttack Municipality which had been set
aside by the Orissa High Court and the electoral rolls
prepared in respect of the other Municipalities in the State
of Orissa, which would have otherwise been irregular and
invalid in accordance with the judgment of the Orissa High
Court, were validated. The Bill which contained
substantially similar provisions as those of the ordinance
was introduced in the Orissa Legislative Assembly but was
defeated by majority of votes and as a result the Ordinance
lapsed after the expiration of the prescribed period. It was
contended that the ordinance was a temporary statute which
was bound to lapse after the expiration of the prescribed
period and that as soon as it lapsed the invalidity in the
Cuttack Municipal elections which had been cured by it
revived. Rejecting the said contention, this Court has laid
down :-
"In our opinion, what the effect of
expiration of a temporary Act would
be must depended upon the nature of
the right or obligation resulting
from the provisions of the
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temporary Act and upon their
character whether the said right a
liability are enduring or not."
[p. 398]
"Therefore, in considering the
effect of the expiration of a
temporary statute it would be
unsafe to lay down any inflexible
rule. If the right created by the
statute is of an enduring character
and has vested in the person, that
right cannot be taken away because
the statute by which it was created
has expired. If a penalty had been
incurred under the statute and had
been imposed upon a person, the
imposition of the penalty would
survive the expiration of the
statute. That appears to be the
true legal position in the matter."
[p. 400]
The following statement of law in Craies on Statutes,
7th Edn, at p. 419, has been approved :-
"If an act which repeals an earlier
Act is itself only a temporary Act
the earlier Act is revived after
the temporary Act is spent; and
inasmuch as ex-hypothesis the
temporary Act expires and is not
repealed, the rules of construction
laid down by Ss. 11(1) and 38(2) of
the Interprotection Act, 1889, do
not apply. But there will be no
reviver if it was clearly the
intention of the legislature to
repeal the earlier Act absolutely."
After referring to the observations of Lord
Ellenborough C.J., in Warren vs. Windle, (1803) 3 East 205:
102 E.R.(K.B) 578, this Court has observed that the said
decision shows that "in some cases the repeal effected by a
temporary Act would be permanent and would endure even after
the expiration of the temporary Act". The ordinance was
construed by this Court as providing that the order of the
court declaring the election tot he Cuttack Municipality to
be invalid shall be deemed to be and always to have been of
no legal effect whatever and that the said elections were
valid and that effect of the said Ordinance would not come
to an end on the expiry of the Ordinance.
In Gooderham and Worts Ltd. (supra) Section 9(b) of the
Canada Radio Broadcasting Act, 1932 had been repealed and
substituted by a temporary Act in 1933 which was to be
operative till April 30, 1934. The period of operation of
the temporary Act was extended from time to time by
successive temporary Acts till March 31, 1936. The last such
temporary Act contained an express provision to the effect
that on and after April 1, 1936 the principal Act of 1932
shall be read as if the temporary acts had never been
enacted. In these circumstances the Privy Council held that
the repeal effected by the temporary legislation was only a
temporary repeal and when the temporary repeal expired the
original legislation automatically resumed its full force.
If the provisions of Section 3 of Ordinance No. 1 of S.
2005 and Section 3(1) of Ordinance No. 16 of S. 2005 are
construed in the light of the principles laid down by this
Court in Bhupendra Kumar Bose (supra), it must be held that
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the object underlying said provisions was to exclude the
applicability of the laws of other covenanting States in the
territory of PEPSU by repealing them absolutely and to apply
the laws applicable in Patiala State in the entire territory
of PEPSU. Since the repeal of the laws of other Covenanting
States by Ordinances Nos. 1 and 16 of S. 2005 was intended
to be for all time, the expiration of the said Ordinances
would not mean that the effect of the said Ordinances
regarding on-applicability of the laws of other convenanting
States in the territory of PEPSU was nullified on the
expiration of Ordinance No. 16 of S. 2005. In view of the
express terms used in the said Ordinances it must be held
that Jind State Civil Service Regulations 1945 stood
repealed absolutely and ceased to have any application after
the Raj Pramukh of PEPSU took over the administration of
Jind State on August 20, 1948.
There is one more difficulty in the way of the
respondent. The provisions of the Jind State Civil Service
Regulations 1945 were not continued after the establishment
of PEPSU on August 20, 1948. The repeal of the provisions of
the laws of covenanting States of PEPSU by section 3 of the
ordinance No. 1 of S. 2005 does not mean that but for such
repeal the said laws without anything more would have
continued in force in the covenanting States. In tsthe
absence of any law, similar to that contained in Ordinance
No. 1 of 1948 promulgated by the Raj Pramukh in Bholanath J.
Thaker (supra), continuing the laws of Jind State in the
territory of that State it cannot be said that the Jind
State Civil Service Regulations, 1945 continued in force
after the administration of Jind State was taken over by the
Raj Pramukh of PEPSU on August 20, 1948. The expiry of
Ordinance No. 16 of S. 2005 could, therefore, not have the
effect of reviving Jind State Civil Service Regulations of
1945 after the expiry of the said Ordinance.
Moreover, there is nothing to show that the Raj Pramukh
of PEPSU had ever given his recognition to the rights
conferred on the employees of the Jind State under the Jind
State Civil Service Regulations of 1945 after the formation
of PEPSU. On the other hand, we find that by Article 9.1 of
Chapter IX of the PEPSU Service Regulations, 1952, 55 years
was prescribed as the age for compulsory retirement for the
employees of the State of PEPSU. The said provision in PEPSU
Service Regulations, 1952 was law which modified the earlier
laws regarding age of superannuation applicable in the State
of PEPSU including the Jind State Civil Service Regulations
of 1945, even if it be assumed that the said Regulations
were in force at that time by virtue of Article 372 of the
Constitution. There was no legal impediment in the Part B
State of PEPSU making a law modifying a law which was
continued in force under Article 372 of the Constitution.
Clause XVI of the Covenant, on which reliance was placed by
Shri Gupta, cannot be invoked to impose such a limitation
because, as stated earlier, the Covenant is an act of State
and the respondent cannot claim any right on the basis of
the said clause in the Covenant. After the making of the
PEPSU Service Regulations, 1952 the age of compulsory
retirement of government servants in part B State of PEPSU
was fixed at 55 years which continued till the Part B State
of PEPSU merged into the reorganised State of Punjab under
the States Re-organisation Act, 1956 and thereafter the
Punjab Civil Service Rules were made applicable to the east
while employees of PEPSU Government who became the employees
of the Punjab Government and, as a result, their age of
superannuation was fixed at 58 years. Once it is held that
the PEPSU Service Regulations and the Punjab Service Rule
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were applicable to all PEPSU government employees, the
respondent, who was one such employee, has to be governed by
the PEPSU Service Regulations and the Punjab Service Rules
and he cannot claim that he continued to be governed by the
provisions of the Jind State Civil Service Regulations,
1945. Since the age of superannuation prescribed under
Article 3.26 o the Punjab Service Rules was 58, the
respondent was rightly retired on his attaining the said
age.
For the reasons aforementioned, we are unable to uphold
the judgment of the High Court that the respondent was
entitled to continue in service till he attained the age of
62 years on the basis of the provisions contained in the
Jind State Civil Service Regulations, 1945. The appeal is,
therefore, allowed, the impugned judgment of the High Court
dated July 6, 1993 passed in R.S.A. No. 1491 of 1990 is set
aside and the civil suit filed by the respondent is
dismissed. But in the circumstances there is no order as to
costs.