Madras High Court
State Of Tamil Nadu vs P.Saravanan on 3 October, 2019
Author: S. Manikumar
Bench: S.Manikumar, D. Krishnakumar
WA No.3376 of 2019
CMP No.21651 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.10.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE D. KRISHNAKUMAR
WA No.3376 of 2019
CMP No.21651 of 2019
1. State of Tamil Nadu
rep. by its Secretary to Government,
Adi Dravidar and Tribal Welfare Department,
Fort St. George,
Chennai - 600 009.
2. The Commissioner,
Adi Dravidar and Tribal Welfare Department,
Chepauk, Chennai - 600 005.
3. The District Adi Dravidar and
Tribal Welfare Officer,
Namakkal,
Namakkal District. ... Appellants
Vs.
P.Saravanan ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against the Order
dated 01.03.2018 made in WP No.3675 of 2012.
For Appellants : Mr.A.Ansar
Government Advocate.
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WA No.3376 of 2019
CMP No.21651 of 2019
JUDGEMENT
(Order of the Court was delivered by S.MANIKUMAR, J) Instant writ appeal is filed against the order dated 01.03.2018 made in WP No.3675 of 2012, by which the writ Court, while allowing the writ petition, directed the respondents/appellants herein to give effect to the order of regularization passed by the third respondent/appellant viz.The District Adi Dravidar and Tribal Welfare Officer, Namakkal and to grant all monetary benefits as applicable to the post of Lab Assistant from time to time including annual increments etc. Writ Court further held that the writ petitioner shall be entitled to the arrears of monetary benefits as admissible.
2. Short facts leading to the filing of the writ appeal, are as follows:
(i) Writ petitioner was originally appointed as Cook on 27.06.1997 in the Adi Dravidar and Welfare Department, Namakkal. Subsequently, he was appointed as 'Lab Assistant' on 23.12.1997 by the District Adi Dravidar and Tribal Welfare Officer, Namakkal, the third respondent/appellant as he was fully qualified for such appointment. On completion of two years of service in the post of Lab Assistant, his services came to be regularised on 21.04.1999 with effect from 28.12.1997.
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(ii) According to the writ petitioner, pursuant to the regularization of his services as Lab Assistant, he had not been in receipt of annual increment and all the monetary benefits applicable to the said post. It appears that an objection was raised by the Audit Department stating that his promotion to the post of Lab Assistant from the cadre of Cook was irregular and not in accordance with the rule and he was recommended for cancellation of promotion as Lab Assistant.
(iii) In response of the audit objection, it appears that the District Adi Dravidar and Tribal Welfare Officer, Namakkal, the third respondent/appellant had forwarded a proposal on 20.12.2006 stating that the post of Lab Assistant remained vacant during the relevant time and based on the existing Government Order at that time, the petitioner was appointed as Lab Assistant and the District Adi Dravidar and Tribal Welfare Officer, Namakkal, the third respondent/appellant requested for necessary approval for such appointment.
According to the petitioner, no further steps were taken by the authorities concerned for clearing the objection raised by the audit authorities and no further orders were passed for regularization of the appointment of the petitioner as Lab Assistant.
(iv) While the matter stood thus, it appears that in view of the audit http://www.judis.nic.in 3/24 WA No.3376 of 2019 CMP No.21651 of 2019 objections, the authorities concerned stopped granting annual increment and revision of scale of pay from time to time as applicable to the post of Lab Assistant, particularly after recommendation of VI Pay Commission. The petitioner learnt that the audit objection was raised on the ground that G.O.Ms.No.87, Adi Dravidar and Tribunal Welfare Department dated 26.7.2006, which provides for appointment of various categories of persons like Record Clerk, Office Assistant etc., to the post of Lab Assistant before considering the cadre of Cook for such promotion. Though the said G.O. was passed on 26.07.2006, the same was deemed to have come into force with effect from 19.06.1986. Therefore, the objection of the audit authorities was that, the petitioner was promoted out of turn by overlooking the seniority of other category of persons and such appointment therefore was not approved and in such circumstances, the authorities rightly have not granted admissible monetary benefits applicable to the post of Lab Assistant.
(v) In view of the above objections respondent filed WP No.3675 of 2012, for a writ of mandamus, directing the appellants to pass appropriate orders to regularise his service from the date of his initial appointment, declare his probation and further direct the appellants to give annual increment and revised scale of pay as per the VI Pay Commission recommendation within a time limit that may be stipulated by this Court.
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(vi) Before the writ Court, appellants filed counter affidavit and objected to the relief sought for by the writ petitioner.
(vii) After hearing the learned counsel for the parties, the writ Court, allowed WP No.3675 of 2012,vide order dated 01.03.2018. Relevant portion of the order reads thus.
"8.At this, the learned counsel for the petitioner would submit that the same G.O., clause - 5, is reproduced below:
3.Appointment -A Appointment to the post shall be made follows:
i) by direct recruitment or
ii) by recruitment by transfer from the categories of Record Clerk in the Tamil Nadu General Subordinate Services Office Assistant Cook and Watchman in the Tamil Nadu Basic Service in the Adi Dravidar and Tribunal Welfare Department."
9. Saving: Nothing contained is those rules shall adversely affect any person holding the post the date of issue of these rules.
9.In view of the above, the promotion granted to the petitioner cannot be set at naught by applying the said G.O.and the promotion was given as early as on 1997 as Lab Assistant. In any event, the learned counsel would submit that there was no misrepresentation on the part of the petitioner and only in the interest of the Department, the promotion was offered and as regards the eligibility of the petitioner, it has not been disputed by the department. Therefore, the original order of regularization of service of the petitioner dated 21.04.1999 has to be given effect to in all respects. According to the petitioner counsel, the said order has not been cancelled as on date and the petitioner continues to be treated as Lab Assistant and has also been paid salary for http://www.judis.nic.in 5/24 WA No.3376 of 2019 CMP No.21651 of 2019 the said post all these years. However, only the other monetary benefits viz. Annual increments, etc. have not been granted and also no revision of scale of pay, particularly after the VI Pay Commission, was given.
10.This Court has considered the rival submissions of the counsel counsel for the parties and perused the materials and pleadings placed on record.
11.There is a considerable force in the contentions raised on behalf of the petitioner that as early as in 1999, the petitioner came to be promoted as Lab Assistant on the basis of existing orders. In fact, subsequently his appointment was regularized by proceedings of the third respondent dated 21.04.1999 regularizing the service of the petitioner with effect from 28.12.1997. After the regularization of the petitioner, it would certainly not open to the department to deny whatever financial monetary benefits as admissible to the post of Lab Assistant from time to time.
12.The so called objections raised by the authorities on the basis of the subsequent G.O.Ms.N.86 dated 26.07.2006, cannot also made applicable to the case of the petitioner particularly in view of the saving clause as contained in para-9 of the said G.O., which is extracted supra. In any event, once promotion has been regularized and such promotion was not found to be illegal, even as per the counter statement on behalf of the respondents, the action of the respondents denying the monetary benefit to the petitioner, is without any justification and cannot be countenanced in law.
13.As rightly contended by the learned counsel for the petitioner that the eligibility for the petitioner is not in dispute and that being the case, this Court does not see any justification on the part of the authority concerned to deny the monetary benefits to the petitioner on the basis of the audit objection and which objection according to them is, misconceived.
14.For the above said reasons, this Court is of the considered view http://www.judis.nic.in 6/24 WA No.3376 of 2019 CMP No.21651 of 2019 that the prayer sought for in the writ petition, as such, is allowed. There shall be a direction to the respondents to give effect the order of regularization passed by the third respondent and grant all monetary benefits as applicable to the post of Lab Assistant from time to time including annual increments etc., The petitioner shall be entitled to the arrears of monetary benefits as admissible. The direction shall be complied with by the respondents within a period of eight weeks from the date of receipt of a copy of this order.
15.With the above direction, this Writ Petition stands allowed. No costs."
3. Aggrieved by the abovesaid order, the respondents therein have filed the instant writ appeal on the following grounds.
(i) writ Court ought to have considered the fact that the respondent herein was appointed as a cook in ADW Hostel only on 27.06.1997. In the post of ‘cook’ he has not even completed the period of probation and no orders were issued declaring his period of probation.
Under such circumstances, in a quick move, he was hurriedly appointed on 23.12 1997 to the post of Lab Assistant without observing any of the Rules for such appointment and therefore it is illegal.
(ii) writ Court ought to have considered the fact that in a routine manner on completion of two years in the post of Lab Assistant, his services were regularised on 21.04.1999. The Audit has rightly held that http://www.judis.nic.in 7/24 WA No.3376 of 2019 CMP No.21651 of 2019 the very appointment from the post of cook to the Post of Lab Assistant is not in accordance with law, since the post of cook and the post of Lab Assistant are distinct categories and there is no relation between these two posts of giving elevarion from the lower Category. Otherwise it is to be pointed out that they are separate category of Posts.
(iii) writ Court ought to have considered the fact that it is customary and binding for any department, when Audit raises an objection, the Section/Department should answer or clarify the objection and get orders from the Audit, dropping the particular Audit objection. The then Officers have not acted on these principles.
(iv) writ Court ought to have considered the fact that instead, despite, Audit objection, the then Officials forwarded a proposal to the Government (1st Respondent) to ratify the action of the 3rd Respondent.
When an Officer sends a proposal to higher ups, praying for ratification, it means that the Officer who sent that proposal has committed an error.
(v) writ Court ought to have considered the fact that G.O.Ms.No.22 P&AR Dept. Dated 28.2.2006 applies to ‘Daily wage workers’ and not to the post which carries scale of pay posts as in the case of cook.
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(vi) writ Court ought to have considered the fact that there is no seniority since the respondent is only eligible to the next promotional post. Therefore the appointment as Lab Assistant is illegal. The then 3rd respondent was right in not sanctioning the increments etc., to the Respondent herein in the post when Audit objection was pending.
(vii) writ Court ought to have considered the fact that in the Counter filed by the respondents in the Writ Petition viz. W.P.No.3675 of 2012 a reference to the Government Order G.O.Ms.No.87 A.D W-7 Department dated 26.07.2006, wherein it is clearly stated that the promotion shall be provided in the ascending order from the Post of ‘Cook” to watchman, then O.A. lastly, as Records clerk and that this procedure has not been followed in this instant case. No seniority list was ever prepared in this case. No rules were followed.
(viii) writ Court ought to have considered the fact that the Petitioner in the Writ Petition filed a Writ of Mandamus for a direction to dispose of his representation dated 27.12.2011, in which the writ Court in a routine manner issued directions.
(ix) writ Court ought to have considered the fact that in the same http://www.judis.nic.in 9/24 WA No.3376 of 2019 CMP No.21651 of 2019 counter, it was stated that Audit objection is still pending and to depromote the Petitioner viz. (Saravanan) to the Post of ‘Cook’ as there is no vacancy in the post of ‘Record Clerk'. In the Writ Petition it was strongly contended that the Petitioner viz. Saravanan is not deserving for any incremental arrears etc. Since his very appointment as Lab Assistant as illegal and prayed for dismissal of the Writ Petition.
(x) writ Court cmmitted an error in issuing the directions in the Writ Petition to the respondents to regularise the service of the Petitioner (in the Writ Petition) from his initial appointment (i.e. Cook) and to sanction all increments with arrears etc. which is not sustainable in law, since in the initial appointment of Cook, he continued only for six months and not completed probation and the Promotion/appointment to the post of Lab Assistant was irregular even when Audit Objection was pending and charges also pending.
4. Heard the learned counsel for the parties and perused the materials available on record.
(i) Appointment order of the respondent in Roc.No.D2/15759/1997 dated 27.06.1997 in the post of Cook in the Government Adi Dravidar Welfare Hostels, reads as under:
http://www.judis.nic.in 10/24 WA No.3376 of 2019 CMP No.21651 of 2019 Proceedings of the District Adi Dravidar and Tribal Welfare Officer, Namakkal.
Present : Thiru. C.S.Raman
Roc.No.D2/15759/1997 Date: 27.06.1997
Sub Adi-Dravidar and Tribal Welfare Dept -
Establishment - Filling up of the vacant post in the Hostels run by the Adi Dravidar and Tribal Hostel - Ordered.
Ref 1. Letter No.15894/1997 dt. 02.06.1997 from the District Employment Officer, Salem.
2. Letter No.54/1997 dt. 10.06.1997 from the Deputy Employment Office, Metur.
3. Letter No.53/1997 dt. 25.06.1997 from the Deputy Employment Officer, Metur.
Orders:
The name of the following person was selected and appointed for the posts of cook vacant in the government Adi Dravidar Welfare Hostels in Rajai District, out of the lists sent by the Salem and Metur district employment office in the time scale of Rs.750-12-870-14-940.
S.No. Employment Name and Address Name of the School / Hostel in
Exchange No. which to be appointed
1 34917/1997 P.Saravan Government of Tribal Residential
S/o.Palaniappan School,
Thuthikulam, Valavandhinadu,
Thottipatty, Kollihills.
Namakkal District (In the vacant place.)
This appointment is purely temporary and does not confer any right with this. If do not join in the appointed place within 15 days the appointment order will be cancelled.
District Adi Dravidar and Tribal Welfare Officer, Namakkal.
(ii) Appointment order of the respondent in Roc.No.D2/1084/1997 dated 23.12.1997 in the post of Laboratory Assistant, reads as under:
Proceedings of the District Adi Dravidar and Tribal Welfare Officer, Namakkal.
http://www.judis.nic.in 11/24 WA No.3376 of 2019 CMP No.21651 of 2019 Present : Thiru. N.Kahadar Meera Sahib Roc.No.D2/1084/1997 Date: 23.12.1997 Sub Adi-Dravidar and Tribal Welfare Dept - Namakkal District Government Tribal Residential School - Laboratory Assistant - Filling up of the post -
Temporarily - Order Ref 1. G.O. (Page No.155, ADWTW (ADW Department date: 09.09.1997)
2. Relevant Correspondence files.
Orders:
In the Government orders cited, the post of the Laboratory Assistant which was vacant in the Tribal Residential School, Valavandhinadu, Namakkal was revived and ordered to fill up the post. Further it was also ordered to fill up the post with suitable persons and the District Adi Dravidar Welfare Officer was ordered accordingly.
In accordance with the Government Order the qualifications of the persons working in this department viz record clerk, office assistant, watchman and cooks were reviewed and foound that Thiru.Sarabanan who is working as cook in the Tribal Residential School, Valavandhi Nadu, was known qualified for the post.
Thiru.P.Saravanan, Cook Government Tribal Residential School, Valavandhinadu is appointed as Laboratory Assistant in the newly created post in the time scale of pay Rs.950-20-1150-25-1600 purely on temporary basis with the condition he should not claim any right of priority.
The Headmaster, Government Tribal Residential School should intimate the joining of Thiru.P.Saravanan immediately to this office.
District Adi Dravidar and Tribal Welfare Officer, Namakkal http://www.judis.nic.in 12/24 WA No.3376 of 2019 CMP No.21651 of 2019
(iii) G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department dated 28.02.2006, reads thus:
ABSTRACT Public Services Employees working on daily wages-Bringing into regular establishment on completion of ten years of service as on 01.01.2006 Orders issued.
PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT G.O. Ms. No.22 Dated 28.02.2006.
ORDER:
The Hon'ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 08.02.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 01.01.2006 will be regularised.
2. Based on the announcement made by the Hon'ble Chief Minister on 08.02.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 01.01.2006 be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post.
3. The Departments of Secretariat may therefore, be directed to pursue action to regularize the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 01.01.2006 as ordered in para 2 above in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government.
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4. This order issued with the concurrence of Finance Department vide its U.O. No.985/FS/P/2006 Dated 28.02.2006.
(BY ORDER OF THE GOVERNOR) N.NARAYANAN CHIEF SECRETARY TO GOVERNMENT
(iv) G.O. MS.No.87, Adi Dravidar and Tribal Welfare Department, dated 26.07.2006, reads as under:
Abstract Public Services - Tamil Nadu Adi Dravidar and Tribal Welfare - Subordinate Service Rules - Post of Laboratory Assistant in Adi Dravidar and Tribal Welfare Department - Framing of Adhoc Rules Orders issued.
Read 1. G.O. Ms.No:405, Home Department, DT:
02.02.1963.
Read 2. G.O. Ms.No:2390, Social Welfare Dept, Dt:
also 07.05.1982.
3. G.O. Ms.No:l547, Social Welfare Department, Dt: 19.06.1986.
4. From the Director of Adi Dravidar and Tribal Welfare, Chennai-5. Letter No.Ro.G2/14657/
91. Dated: 30 11.1992 and 10.08.1995 and letter No.G2/41372/1995 dated: 27.11.1998, 03.07.1999, 24.04.2003 and 21.12.2004.
ORDER:
The Following Notification will be published in the Tamil Nadu Government Gazette.
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following Rules:-
2. The rules, hereby made shall be deemed to have come force on and from the 19th June 1986.
RULES The General and the Special Ftules applicable to the holders of the http://www.judis.nic.in 14/24 WA No.3376 of 2019 CMP No.21651 of 2019 permanent post in the Tamil Nadu Adi Dravidar and Tribal Welfare Subordinate Services shall apply to the holders of the temporary post of Laboratory Assistant in the Schools of Adi Dravidar and Tribal Welfare Department, Subject to the modification specified in the following rules:-
2. Constitution The post shall constitute a separate category in a distinct Class of the said service.
3. Appointment:- A Appointment to the post shall be made follows:-
I. by direct recruitment or II. by recruitment by transfer from the categories of Record Clerk in the Tamil Nadu General Subordinate Service Office Assistant, Cook and Watchman in the Tamil Nadu Basic service in the Adi Dravidar and Tribal Welfare Department.
4. Appointment Authority:- The appointing authority for the post shall be the District Adi Dravidar and Tribal Welfare Officer.
5. Qualification:
a) Age: No person shall be eligible for appointment to the post by direct recruitment, if he has completed 30 years of age of age on the first day of July of the year in which the selection for appointment is made
b) Other Qualification a. Must have passed secondary schools leaving Certificate.
b. No person shall be eligible for appointment to the post by recruitment by transfer unless he was complete three years of regular Service in the respective category.
6. Probation: Every person appointed to the post by direct recruitment shall from the date on which he joins duty be on probation for a total period of two years on duty within a continuous period of three years.
Provided that every person appointed to the post by recruitment by transfer shall from the date on which he joins duty, be on probation for a http://www.judis.nic.in 15/24 WA No.3376 of 2019 CMP No.21651 of 2019 total period of one year on duty within a continuous period of two years.
7. Pay:- There shall be paid to the holders of the post a monthly pay calculated in the scale of pay of Rs.3200-85-4900(as on 1986 Rs.610-20- 730-25- 955-30-1075)
8. Preparation of annual List of Approved Candidates:- for the purpose of drawing up the annual list of approved candidates for appointment to the post in the service the crucial date on which the candidate should be qualified shall be the 1st March of every year.
9. Saving:-Nothing contained is these rules shall adversely affect any person holding the post the date of issue of these rules.
(By Order of the Governor) Sd.P.A.Ramiah Secretary to Government //Forwarded By Order// Sd/Section Officer Ent D.DIS/4137295/13. Dated:17.08.2006. Office of the Directorate of Adi Davidar Welfare Office, Chennai-5.
Copy conformated to all District Adi Dravidar and Tribal Welfare Officers for necessary action.
For Director of Adi Dravidar Welfare To The All District Adi Dravidar & Tribal Welfare Officers, Copy to: 11,12,C5,TD, Sections Copy to: SF
5. Material on record discloses that the respondent was appointed as Cook in Namakkal District, Adi Dravidar Department on 27.06.1997.
He was posted as Lab Assistant on 23.12.1997, as per G.O. (Page No.155ADWTW Adi Dravidar Welfare Department dated 09.09.1997. He was regularised as Lab Assistant on 21.04.1999. Government have framed http://www.judis.nic.in 16/24 WA No.3376 of 2019 CMP No.21651 of 2019 adhoc rules for the post of Lab Assistants in G.O.Ms.No.87, Adi Dravidar Welfare Department dated 26.07.2006.
6. As per the adhoc rules, promotion made be given in ascending manner as Cook, Watchman, Office Assistant and Record Clerk.
According to the appellants such method was not followed and thereore regularisation of the services of the respondent in the post of Lab Assistant is illegal, thus audit objections have been made.
7. Saving clause in G.O.Ms.No.87, Adi Dravidar Welfare Department dated 26.07.2006 protects the interest of those in service. Effect of saving clause is thus considered.
(a) In Hasan Nurani Malak Vs. S.M.Ismail, Assistant Charity Commissioner Nagpur and Others, reported in (1967) 1 SCR 110 : AIR 1967 SC 1742, the Hon'ble Supreme Court at paragraph No.10 held as follows:
"10. The words “anything duly done” in sub-clause (a) are very often used by the legislature in saving clauses such as we have in Section 86(3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the thing done before a particular date from which http://www.judis.nic.in 17/24 WA No.3376 of 2019 CMP No.21651 of 2019 the repeal of such a pre-existing law takes effect. In Universal Imports Agency v. Chief Controller [(1961) 1 SCR 305] construing the words “things done” used in para 6 of the French Establishments (Application of Laws) Order, 1954, this Court held that on a proper interpretation the expression “things done” was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. ..."
(b) In Qudrat Ullah Vs. Municipal Board, Bareilly, reported in (1974) 1 SCC 202, the Hon'ble Supreme Court at paragraph Nos.18, 22 & 27 held as follows:
"18. Certain propositions are clear regarding the consequence of repeal of a statute. The general principle is that an enactment which is repealed is to be treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any savings which may be made, expressly or by implication, by the repealing enactment (vide Halsbury's Laws of England, Vol. 36 para 714). The U.P. General Clauses Act (Act 1 of 1904) provides for the consequences of a repeal under Section 6. The relevant parts of which may be reproduced here:
“6. Effect Of Repeal.—Where any (Uttar Pradesh) Act repeals any enactment hitherto made or thereafter to be made, then, unless a different intention appears, the repeal shall not—
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(e) affect any remedy, or any investigation of legal proceeding commenced before the repealing Act shall have come into operation http://www.judis.nic.in 18/24 WA No.3376 of 2019 CMP No.21651 of 2019 in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid:
and any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed.” If a contrary intention appears from the repealing statute, that prevails. It was pointed out to us that Section 2 of the later Act specifically states that:
“Nothing in this Act shall apply to—
(a) any building belonging to or vested in ... any local authority.” Even so, we have to read this provision in conformity with Section 43 which repealed the Act viz. U.P. Act No. 3 of 1947. Section 43(2) is the saving clause. If the repealing enactment, as in this case, makes a special provision regarding pending or past transactions it is this provision that will determine whether the liability arising under the repealed enactment survives or is extinguished. [Chakko Bhai Ghelabhai v. State of Orissa, AIR 1956 Ori 7 : ILR 1955 Cut 529Narayan Shenoi v. Subordinate Judge, ILR 1963 (1) Ker 402 : 1963 Ker LT 308; Model Electric Oil Mills v. Corpn. of Calcutta, AIR 1960 Cal 388.] Section 6 of the General Clauses Act applies generally in the absence of a special saving provision in the repealing statute, for when there is one then a different intention is indicated. In any case where a repeal is followed by a fresh legislation on the subject, the Court has to look to the provisions of the new Act to see whether they indicate a different intention.
22. Moreover, the nature of the Act being temporary, the right, if we can attribute that quality to a disability of the other party to enforce his right unless additional grounds were made out, comes to an end when the temporary Act expires at least by afflux of time, if not by premature repeal. The so-called right is short-lived and its longevity where it is http://www.judis.nic.in 19/24 WA No.3376 of 2019 CMP No.21651 of 2019 derived under a temporary statute, cannot exceed the duration of the statute itself.
27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinary law may not necessarily be transmuted into a substantive right in the defendant, (b) that rights of a statutory tenant created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal, any right to rebuff the plaintiff's claim for eviction, and (d) that Section 6 of the General Clauses Act does not justify anything larger or for any time longer than Section 2 of the Act confers or lasts. It is appropriate for a court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A Court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The far-fetched submission has hardly any substance and we reject it. "
(c) In State of Punjab Vs. Harnek Singh, reported in (2002) 3 SCC http://www.judis.nic.in 20/24 WA No.3376 of 2019 CMP No.21651 of 2019 481, the Hon'ble Supreme Court at paragraph Nos.15 & 16 held as follows:
"15. The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. The object of this Act is to shorten the language of Central Acts, to provide as far as possible, for uniformity of expression in the Central Acts, by giving definition of series of terms in common use, to state explicitly certain convenient rules for the construction and interpretation of the Central Acts, and to guard against slips and oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act. In other words, the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded. Even in cases where the provisions of the Act do not apply, courts in the country have applied its principles keeping in mind the inconvenience that is likely to arise otherwise, particularly when the provisions made in the Act are based upon the principles of equity, justice and good conscience.
16. The words “anything duly done or suffered thereunder” used in clause (b) of Section 6 are often used by the legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered thereunder. This Court in Hasan Nurani Malak v. S.M. Ismail, Asstt. Charity Commr., Nagpur [AIR 1967 SC 1742] has held that the object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect. In Universal Imports Agency v. Chief Controller of Imports and Exports [AIR 1961 SC 41 : (1961) 1 SCR 305] this Court while construing the words “things done” held that a proper interpretation of the expression “things http://www.judis.nic.in 21/24 WA No.3376 of 2019 CMP No.21651 of 2019 done” was comprehensive enough to take in not only the things done but also the effect of the legal consequence flowing therefrom."
8. While considering the facts of this case, writ Court has rightly adverted to clause 9 of G.O.Ms.No.87, Adi Dravidar and Tribal Welfare Department, dated 26.07.2006 and allowed the writ petition. Though serval grounds have been raised, we find no ground to interfere with the decision of the writ Court.
9. In view of the above discussion, the instant writ appeal is dismissed. No Costs. Consequently the connected Civil Miscellaneous Petition is closed.
[S.M.K., J.] [D.K.K., J.]
03.10.2019
Index : Yes/No.
Internet : Yes
Speaking/Non-speaking order
ars
http://www.judis.nic.in
22/24
WA No.3376 of 2019
CMP No.21651 of 2019
To
1. The Secretary to Government,
State of Tamil Nadu
Adi Dravidar and Tribal Welfare Department, Fort St. George, Chennai - 600 009.
2. The Commissioner, Adi Dravidar and Tribal Welfare Department, Chepauk, Chennai - 600 005.
3. The District Adi Dravidar and Tribal Welfare Officer, Namakkal, Namakkal District.
http://www.judis.nic.in 23/24 WA No.3376 of 2019 CMP No.21651 of 2019 S. MANIKUMAR, J.
AND D. KRISHNAKUMAR, J.
ars WA No.3376 of 2019 CMP No.21651 of 2019 03.10.2019 http://www.judis.nic.in 24/24