Holding

Regulation 8(3) is not retrospective; Punjab is not liable for a legislative‑assembly pension; the High Court’s dismissal of the claim against Himachal Pradesh stands.

Summary

Bhagat Ram Sharma, a former member of the Punjab Legislative Assembly and later a member of the Punjab State Public Service Commission (PSPC) who retired in 1959, sought pension benefits under Punjab PSPC Regulation 8(3) and under the Himachal Pradesh Legislative Assembly (Allowances & Pension of Members) Act, 1971. The Punjab High Court granted him a pension of Rs.400 per month from the date Regulation 8(3) came into force (10 August 1972) but denied any pension from his retirement date and dismissed his claim against Himachal Pradesh for lack of jurisdiction. On appeal, the Supreme Court held that Regulation 8(3) was not retrospective and could not be applied back to 1959, that Punjab could not be liable for a legislative‑assembly pension because the constituency now fell within Himachal Pradesh, and that the High Court’s dismissal of the claim against Himachal Pradesh was correct. Consequently, the appeal was dismissed.

Issues considered

Whether Regulation 8(3) of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958, can be given retrospective effect to grant pension from the appellant’s retirement date in 1959.
Whether the State of Punjab is liable to pay a legislative‑assembly pension to the appellant for service rendered from a constituency that, after reorganisation, now lies in Himachal Pradesh.
Whether the State of Himachal Pradesh is liable to pay pension under section 6B of the Himachal Pradesh Legislative Assembly (Allowances & Pension of Members) Act, 1971 for the appellant’s service prior to the formation of Himachal Pradesh.
Whether the Punjab & Haryana High Court had jurisdiction under Article 226 of the Constitution to entertain the claim against Himachal Pradesh.

Legislation cited

Constitution of Indias. Art. 170, s. Art. 226, s. Art. 318
Himachal Pradesh Legislative Assembly (Allowances & Pension of Members) Act, 1971s. s.6B(1), s. second proviso
India Independence Act, 1947
Punjab (Provincial Legislature) Order, 1947
Punjab Reorganisation Act, 1966
Punjab State Legislature Members (Pension & Medical Facilities Regulation) Act, 1977s. proviso, s. s.3(1)
Punjab State Public Service Commission (Conditions of Service) Regulations, 1958s. Regulation 8(1), s. Regulation 8(3)
State of Himachal Pradesh Act, 1970s. s.10(2), s. s.10(3)
States Reorganisation Act, 1956

Subjects

pensionpublic service commissionlegislative assemblyretrospective legislationjurisdictionArticle 226state reorganisationHimachal PradeshPunjabstatutory construction

Judgment

BHAGAT RAM SHARMA
A v.
UNION OF INDIA & ORS

NOVEMBER 13, 1987

[A.P. SEN AND B.C. RAY, JJ.]
1
Claim for pension-Under Regulation 8(3) of the Punjab State
Public Service Commission (Conditions of Service) Regulations, 1958
and proviso to sub-section ( 1) of section 6B of the Himachal Pradesh 4
Legislative Assembly (Allowances & Pension of Members) Act, 1971. ~
c The appellant was elected foom the Kangra district West General ,
Constituency, as a member of the Punjab Legislative Assembly in the
elections held in 1937 and 1946. By virtue of section 5 of the Punjab
(Provincial Legislature) Order, 1947, he became a member of the Joint
Punjab Legislative Assembly. He continued to be a member of the Joint
D Punjab Legislative Assembly as he had contested election again after
the Assembly was dissolved in June, 1951. On January 3, 1953, he was
appointed a member of the Punjab State Public Service Commission
and retired as such on January 2, 1959.

The district of Kangra was transferred to the new State of Punjab .,,...,
E formed under the States Reorganisation Act, 1956, w.e.f. November 1,
1956. Thereafter, the Kangra district was added to the Union Territory
of Himachal Pradesh w.e.f. November 1, 1%6. Himachal Pradesh was

F
established as a State w.e.f. January 25, 1971, and the Kangra West
General Constituency from which the appellant had been elected all
along, stood transferred to the State of Himachal Pradesh, and he was
deemed to have been elected to the Legislative Assembly of Himachal
Pradesh-under the provisions of the State of Himachal Pradesh Act,
1
1970.

The appellant made representations both to the Chief Ministers of
Punjab and H.imachal Pradesh for the grant of pensionary benefits to
G him either as a member of the Punjab State Public Service Commission
or as a member of the State Legislative Assembly. The State Govern-
ment Qf Punjab replied that the appellant could not be granted pension )-'-
as a retired member of the Punjab State Public Service Commission.
The State government of Himachal Pradesh replied that the appellant
was not eligible to pension under the provisions of the State ofHimachal
H Pradesh Act.
1034
B.R. SHARMA v. U.0.1. 1035

The appellailt then moved the High Court of Punjab and Haryana
for relief by a Writ Petition. The High Court partly allowed the writ
A
petition and ordained the State government of Punjab to pay a monthly
pension (of Rs.400 to the appellant as a retired member of the Punjab
State Public Service Commission, under Regulation 8(3) of the Punjab
State Public Service Commission (conditions of service) Regulations,
1958, with effect from August IO, 1972-the date when the said provi- B
1' sion was introduced. The appellant's claim for pension w.e.f. January

- 2, I95~he date of his retirement-was disallowed. His claim for
pension as a member of the State Assembly under the provisions of the
Himachal Pradesh Legislative Assembly (Allowances and Pension of
Members) Act, 1971, was also disallowed on the ground that no part of
·, the cause of action against the State .or Himachal Pradesh arose within
. the territorial jurisdiction of the High Court of Punjab & Haryana
C

under Article 226 of the Constitution. The appellant appealed to this
Court by Special Leave against the order of the High Court.

Dismissing the appeal, the Court,
D
HELD: L It is extremely doubtful whether the appellant can
claim pension as a member of the State Legislative Assembly from the
State of Punjab in view of the constitutional changes brought about.
The Kangra West General Constituency from which the appellant was
elected to the Punjab Legislative Assembly and later to the Joint Punjab
Legislative Assembly, is by reason of sub-section (2) of Section 10 of the E
State of Himachal Pradesh Act, 1970, deemed to be a constituency of
the Legislative Assembly of the State of Himachal Pradesh. The liability
to pay pension to a member of the State Legislative As~embly elected
from a constituency which now forms part of the Legislative Assembly
of the Himacbal Pradesh, cannot possibly be saddled on the State of
Punjab. [1043D-F] F

2. As regards the liability of the State of Himachal Pradesh to pay
pension to the appellant under section 6B (1), read with the second
proviso, of the Himachal Pradesh Act, the High Court has rightly
declined to grant relief as no part of the cause of action arose within its
territorial jurisdiction under Art. 226 of the Constitution; the Himachal G
Pradesh Act is operative within the territories of the State of Himachal
Pradesh. No interference with the judgment of the H_igh Court, dismis-
sing the Writ Petition against the State of Hlmachal Pradesh is called
for. [1043F-G]

3. The claim of the appellant that be was entitled to pension, as a H
1036 SUPREME COURT REPORTS [1988) I S.C.R.

A retired member of the Public Service Commission, from January 2, Y-
1959--the date of his superannuation-and not August 10, 1972-the
date when Regulation 8(3) of the Punjab State Public Service Commis·
sion (Conditions of Service) Regulations, was introduced, cannot be
accepted. ll044G-H]

B OBSERVATION: The appellant clearly answers the description
of a Member as defined in section 2(c) oftbe State ofHimachal Pradesh 1-
Act. Admittedly, he had continuously been a Member of the State
Legislative As.sembly, representing the Kangra West General Consti- ._
tuency from the year 1937 to January 2, 1953, on which date he resig-
ned his membership from the Joint Punjab Legislative Assembly to J
assume the office of a Member of the Punjab State Public Service Com- .· ( ' - -
C mission. Thus, the appellant had been a member of the State Legislative ·
Assembly for a period of about 16 years, and his case appears to be
covered by section 6B (l)(a) and (e) of the State of Himachal Pradesh
Act, read with its second proviso. There is no provision in the Himachal
Pradesh Act which disentitles a member to the benefit of the period
D during which he was a member of the State Legislative Assembly prior
to the partition of the country. In accordance with the view taken by
this Court in D.S. Nakara & Ors. v. Union of India, [1983) 2 SCR
165-the appellant would prima facie be entitled to the benefit of sec-
tion 6B (1) read with the second proviso of the Himachal Pradesh Act.
In view. of this position, the appellant is at liberty to move the State y
E Government of Himachal Pradesh afresh for the grant of pension nnder

--
section 6B(l) of the Himachal Pradesh Act, read with the second pro-
viso, failing which, he may file a petition in the Himachal Pradesh High
Court under Art. 226 of the Constitution for the grant of appropriate
writ or direction. [1044B-Fl

F The State of Maharashtra v. The Central Provinces Manganese
Ore Co. Ltd., [1977) 1SCR1002; Firm A. T.B. Mehtab Majid & Co. v.
State of Madras, [1963) Suppl. 2 SCR 435; Koteshwar Vittal Karnath
v. K. Rangappa Balica & Co., [1969] 3 SCR 40, and Halsbury's
Laws of England, 3rd Edition, vol 36, p. 474, referred to.

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 30QP
of 1987.

From the Judgment and Order dated 31.5.1984 of the Punjab
and HaryanaHigh. Court in C.W.P. No. 5440 of 1982.

H M.R. Sharma, R.S. Yadav and H.M. Singh for the Appellant.
B.R. SHARMA v. U.0.1. [SEN, J.] 1037

R.S. Sodhi, for the Respondents.
A
The Judgment of the Court was delivered by

SEN, J. This appeal by special leave directed against the judg-
ment and order of the Punjab & Haryana High Court dated May 31,
1984, raises a question of some importance. By the judgment, a B
( learned Single Judge (Tiwana, J.) party allowed the writ petition filed
by the appellant and ordained the State Government of Punjab to pay
a pension of Rs.400 per mensem to the appellant as a retired Member
of the Punjab State Public Service Commission under Regulation 8(3)

l. 1
of the Punjab State Public Service Commission (Conditions of Service)
Regulations, 1958 w.e.f. August 10, 1972, the date when the said
provision was first introduced. While disallowing his claim for pay-
c
ment of such pension from January 2, 1959 i.e. from the date of his
retirement, the learned Single Judge disallowed the appellant's claim
for pension as a Member of the State Legislative Assembly under the
proviso to sub-s. (1) of s. 6B of the Himachal Pradesh Legislative
Assembly (Allowances & Pension of Members) Act, 1971 on the D
ground that no part of the cause of action against the State of Hima-
cha! Pradesh arose within the territorial jurisdiction of the High Court
under Art. 226 of the Constitution .
..,; The facts. The appellant herein Bhagat Ram Sharma, has had a
very distinguished record of public1service. In 1937, he was enrolled as E
an Advocate at Dharamshala and in thai year he contested the general
elections to the Punjab Legislative Assembly as an independent
candidate from the Kangra West General Constituency. He was re-
turned successfully and later joined the Indian National Congress.
After the outbreak of the second world war, the Assembly had a
longer life than its normal tenure and it was not till 1946 that fresh F
~ elections were lield. The appellant contested the election from the
same constituency and was again returned as the successful candidate
to the newly-elected Assembly. Before the expiry of the normal terms
of that Assembly the partition of the country having taken place, the
appellant by virtue of s. 5 of the Punjab (Provincial Legislatures)
Order, 1947 issued under s. 9 of the India Independence Act, 1947, G

.,became a Member of the Joint Punjab Legislative Assembly. On July
17, 1948 the appellant was appointed to be Parliamentary Secretary .
This Assembly was dissolved on June 19, 1951 and reconstituted on
May 3, 1952. Prior to its dissolution, the appellant resigned from the
post of Parliamentary Secretary on March, 29, 1951 and. contested
elections to the reconstituted Assembly and was elected as aMember. H
1038 SUPREME COURT REPORTS (!988] l S.C.R.

He continued to be a Member of the Joint Punjab Legislative Assem-
A bly till January 2, 1953 when, according to him, he resigned the Mem-
bership of the Assembly as directed by the Congress High Command
to become a Member of the Punjab State Public Service Commission
w .e.f. January 3, 1953. He continued to be such Member of the Public
Service Commission for a period of six years i.e. till January 2, 1959,
B the date of his superannuation.

As from the appointed day under the States Reorganisation Act,
1956 i.e. November 1, 1956, the district of Kangra was transferred to
the new State of Punjab. By virtue of cl.(a) of sub-s. (1) of s. 5 of the ~
Punjab Reorganisation Act, 1966, on and from the appointed day i.e. ,-A
November 1, 1966, the district of Kangra was added to the Union •
C Territory of Himachal Pradesh. The State of Himachal Pradesh was
established under the State of Himachal Pradesh Act, 1970 w.e.f.
January 25, 1971, the appointed day. Sub-s. (2.) of s. IO of the Act
provides that the territorial constituencies of the existing Union Terri-
tory of Himachal Pradesh shall be deemed to be the constituencies of
D the Legislative Assembly of the State of Himachal Pradesh. Sub-s. (3)
thereof provides that every sitting Member of the Legislative Assem-
bly of the existing Union Territory of Himachal Pradesh representing a
territorial constituency which, on the appointed day, by virtue of the
provisions of sub-s. (2), becomes a constituency of the State of Hima: y
cha! Pradesh, shall be deemed to have been elected under Art. 170 to
E the Legislative Assembly of State of Himachal Pradesh from that con-
stituency. As a result of these constitutional changes, the Kangra West
General Constituency is a constituency of the Legislative Assembly of
the State of Himachal Pradesh.

At the time when the appellant was elected to the Punjab LegiS-
F lative Assembly from the Kangra West General Constituency in the ...-J
year 1937, no monthly allowance or pension was payable to the Mem- \
bers of the Legislative Assembly. Similarly, when th<; appellant was
appointed to be a Member of the Punjab State Public Service Commis-
sion, there was no provision for grant of pension to a Member of the
Public Service Commission, who at the date of his appointment was
. G not in the service of the Central or a State Government. However,
with the passage of time, two important changes were brought about
with-respect to pensionary benefits. The Himachal Pradesh Legislative >---
Assembly (Allowances & Pension of Members) Act, 1971 ('Himachal
Pradesh Act' for short) was brought into force w.e.f. January 25, 1971.
1;Jie expression 'Member' is defined ins. 2(c) to mean a member of the
H Assembly, other than a Minister, Deputy Minister, Speaker or Deputy
B.R. SHARMA v. U.0.1. (SEN, J.] 1039

Speaker. Section 6B was inserted by the Himachal Pradesh Legislative A
Assembly (Allowances of Members) (Amendment) Act, 1976 and
consequential changes were brought about. The Act was first intituled
as the Himachal Pradesh Legislative Assembly (Allowances of Mem-
bers) Act, 1971 and with the amendment of 1976, was changed to the
Himachal Pradesh Legislative Assembly (Allowances & Pension of
Members) Act, 1971 by introduction of the words 'allowances and B
pension'. Sub-s. (I) of s. 6B of the Act, insofar as relevant, provides:

"6B. Pension. (1) There shall be paid a pension of Rs. 300
per mensem to every person who has served for a period of
not less than five years whether continuous or not as-

(a) a member of Assembly; or
c
••• ••• ••• ***

(e) partly as a member of the Assembly and partly as a
member of the Legislative Assembly ............... of D
the erstwhile State of Pun jab, as the case may be;"

The second proviso reads:

"Provided further that where any person has served as
aforesaid for a period exceeding five years, there shall be £
paid to him an additional pension of Rs. 50 per mensem for
every year in excess of five, so, however, that in no case the
pension payable to such person shall exceed Rs.500 per
mensem."

Similarly, the Punjab Legislative Assembly enacted the Punjab F
State Legislature Members (Pension & Medical Facilities Regulation)
Act, 1977 to provide for pension and medical facilities to persons who
had been Members of the Punjab Legislative Assembly. The expres-
sion 'member' as defined ins. 2 of the Act unless the context otherwise
requires, means a person who, after the commencement of the Constitu-
tion of India, has been a Member of (i) the Punjab Legislative Assem- G
bly; or (ii) the Punjab Legislative Council; or (iii) the Legislative
Assembly .of the erstwhile State of Patiala and East Punjab States
Union; or (iv) partly as a Member of one and partly as a Member of
the other. It would be seen that in the corresponding definition of
'member' in s. 2(c) of the Hlmachal Pradesh Act, the words 'after the
commencement of the Constitution of India' are not there. But that H
1040 SUPREME COURT REPORTS [1988] 1 S.C.R.

should not make any difference in principle as to the liability of the
A State of Punjab under s. 3(1) of the Act, if at all applicable. Section
3(1) reads as follows:

"3. ( 1) From the date of commencement of this Act, there
shall be paid to every person who has served as a member
B for a period of five years, whether continuous or not, a
pension of three hundred rupees per mensem: 1-
Provided that where any person has served as afore-
said for a period exceeding five years, there shall be paid to

c
him an additional pension of fifty rupees per mensem for
every year in excess of five, so, however, that in no case
pension payable to such person shall exceed five hundred
-~
rupees per mensem."

After the conclusion of the hearing, we find that the amount of
pension payable to a Member of the State Legislative Assembly has
D been increased both in the State of Himachal Pradesh as well as in the
State of Punjab. By the Himachal Pradesh Legislative Assembly (Allo-
wances & Pension of Members) (Amendment) Act, 1986, the mini-
mum pension as provided by s. 6B has been raised to Rs.500 and the
maximum pension as specified in the second proviso thereto from
y;
Rs.500 to Rs.1000. The Punjab Legislative Assembly has enacted the
E Punjab State Legislature Members (Pension and Medical Facilities
Regulation) (Amendment) Act, 1986 and by a new sub-s. (lB) the
pension of Rs.300 as specified ins. 3(1), has been enhanceo to Rs.500
and the maximum pension of Rs.500 as specified in the proviso,
,
enhanced toRs.1000.

F There was also a change in the Punjab State Public Service Com-
mission (Conditions of Service) Regulations, 1958 which were brought --\
on the statute book on March 10, 1958. But the Regulations by a
deeming clause in Regulation 1(2) were brought into force w.e.f.
November 1, 1956. To begin with, pensionary benefits were conferred
by Regulation 8( 1) upon a Member who at the date of his appointment
G was in the service of the Central or a State Government. Later on, it
was realised that a person who was not in Government service on the
date of his appointment as such Member should also be extended the )'---
pensionary benefits. To achieve this end, the Regulations were
amended by an order dated August 10, 1972 issued by the Governor of
Punjab in exercise of the powers under Art. 318 of the Constitution
H and all other powers enabling him in that behalf. Clauses (2) and (3) of
B.R. SHARMA v. U.0.1. [SEN, J.] 1041

the Punjab State Public Service Commission (Conditions of Service)
A
(First Amendment) Regulatious, 1972 were in these terms:

"(2) In the Punjab State Public Service Commission
(Conditions of Service) Regulations, 1958 (herein-
after referred to as the said regulations), for regula-
tion 8, the following regulation shall be substituted, B
namely:-

8( 1) In the case of Member who at the date of his
appointment was in the service of the Central or a
State Governmeht, seyvice as Member shall count for
pension under the rui~s applicable to the Service to
which such Member belonged ............. " c
"3(i). A Member, who at the date of his appointment as
such was not in the service of the Central or a State
Government shall, on his ceasing to hold office as such
Member, be paid a pension of four hundred rupees per D
month;

Provided that no such pension shall be payable to a
Member:

(a) unless he has completed not Jess than three years E
of service for pension as such Member; or

*** ' ••• ••• ***"
It appears that the appellant made representations both to the
Chief Minister of Punjab as well as to the Chief Minister o~ Himachal F
Pradesh in the matter of grant of pensionary benefits to him either as a
Member of the State Legislative Assembly or as a Member of the
Punjab State Public Service Commission, but in vain. The State
Government of Punjab by letter dated August 30, 1982 regretted that
the appellant could not be granted pension as a retired Member of the
Punjab State Public Service Commission on the basis of Regulation G
8(3) introduced by way of amendment on August 10, 1972 i.e. long
after he had ceased to hold office as such Member. It was pointed out
that the amendment made in 1972 was not given any retrospective
effect. The State Government of Himachal Pradesh by letter of the
Secretary to the Himachal Pradesh Vidhan Sabha dated October 26,
1982 intimated the decision of the State Government that he was not H,
1042 SUPREME COURT REPORTS [ 1988] 1 S.C.R.

A eligible to the grant of pension under s. 6B of the Himachal Pradesh y-
Act. For the redressal of his grievances, the appellant approached the
High Court under Art. 226 of the Constitution.

As already adumbrated, the learned Single Judge has partly
allowed the writ petition directing the State Government of Punjab to
B pay a pension of Rs.400 per mensem to the appellant w.e.f. August 10,
1972 i.e. the date on which Regulation 8(3) was brought into force. He }-
however repelled his claim for payment of such pension as such
Member from January 2, 1959, the date of his retirement, on the
ground that in the absence of any provision giving to it a retrospective
effect, Regulation 8(3) merely because it had been 'substituted' could
j
not be treated to relate back to the appointed day i.e. November 1, ,, ,
C 1956. He also declined to grant any relief against the State of Himachal
Pradesh based upon s. 6B of the Himachal Pradesh Act on the ground
that no part of the cause of action arose within the territorial jurisdic-
tion of the High Court under Art. 226 of the Constitution. Hence this
appeal by special leave.
D
During the course of the arguments, learned counsel for the
appellant was fair enough to accept that the appellant could not, in any
event, claim more than one set of pension of Rs.500 per mensem either
as a member of the State Legislative Assembly or as a retired M.ember
of the Punjab State Public Service Commission. The High Court
E having partly allowed the writ petition and directed payment of Rs.400
per mensem to the appellant under Regulation 8(3) of the Regulations
as a retired Member of the Public Service Commission w.e.f. August
10, 1972, the controversy is now limited to the payment of Rs.100
more and the period for which such pension could be claimed.

f The submission on behalf of the appellant before us, as was in
the High Court, is that the appellant was entitled to receive pension of
Rs.500 per mensem as a Member of the State Legislative Assembly
under s. 6B( 1) of the Act read with the second proviso thereto fronr
the State of Himachal Pradesh and that Regulation 8(3)(i) of the Pun-
jab State Public Service Commission (Conditions of Service) Regula-
G tions, 1958 having been 'substituted' by an order of the Governor
under Art. 318 of the Constitution, must be deemed to have come into
effect from November 1, 1956, the appointed day, and therefore the
appellant was upon that basis entitled to draw pension of Rs.400 per
mensem from the State of Punjab as a Member of the Punjab·State
Public Service Commission w.e.f. January 2, 1959, the date of his
ff superannuation. During the course of the arguments, it transpired' that
B.R. SHARMA v. U.0.1. (SEN, J.] 1043
....,, the Punjab Legislative Assembly had also enacted the Punjab State
Legislature Members (Pension & Medical Facilities Regulation) Act, A
1977 to provide for pension and medical facilities to persons who had
been Members of the Punjab Legislative Assembly. That being so, the
response of the learned counsel to this was that the appellant was in
any view entitled to receive pension of Rs.500 per mensem ·as a
Member of State. Legislative Assembly either from the State of Hima- B
-{ cha! Pradesh or the State of Punjab. The matter is not so simple. The
question still remains whether th(>-appellant can claim pension as a
Member of the State Legislative Assembly against the State of Punjab

l under s. 3(1) of the Punjab Act.

We shall first deal with the question of payment of pension to the
appellant as a Member of the State Legislative Assembly. As regards
the liability of the State of Punjab to pay such pension to the appellant
c
under s. 3(1) read with the proviso of the Punjab Act, we find that the
appellant has laid no foundation for any such claim in the writ petition.
There is no such point taken in the special leave petition as well. It is
extremely doubtful whether the appellant can claim pension as a D
Member of this State Legislative Assembly from the State of Punjab in
view of the constitutional changes brought about. The Kangra West
General Constituency from which the appellant was elected to the
Punjab Legislative Assembly and later to the Joint Punjab Legislative
Assembly, is by reason of sub-s. (2) of s.10 of the State of Himachal
Pradesh Act, 1970 deemed to be a constituency of the Legislative E
Assembly of the State of Himachal Pradesh. The liability to pay pen-
,.. sion to a Member of the State Legislative Assembly elected from a
constituency which now forms part of the Legislative Assembly of
Himachal Pradesh, cannot possibly be saddled on the State of Punjab.
As regards the liability of the State of Himachal Pradesh to pay pen-

r-· sion to the appellant under s. 6B( 1) read with the second proviso of the
Himachal Pradesh Act, the learned Single Judge has in our view
rightly declined to grant any such relief inasmuch as no part of the
F

cause of action arose within the territorial jurisdiction of the High
Court under Art. 226 of the Constitution. It is needless to stress that
the Himachal Pradesh Act is operative within the territories of that
State. No exception can be taken to the view expressed by the learned G
Single Judge and we affirm the same. No interference with the judg-
ment of the High Court dismissing the writ petition against the State of
Himachal Pradeshjs therefore called for.

It appears that the State Government of Himachal Pradesh
repudiated the claim of the appellant to pension as a Member of the H
1044 SUPREME COURT REPORTS I 1988) 1 S.C.R.
A State Legislative Assembly under s. 6B( 1) read with the second pro-
viso on the ground that the period during which he was a Member of
the Punjab Legislative Assembly and the Joint Punjab Legislative
Assembly prior to the partition of the country i.e. prior to August 15,
1947 when the Dominion of India came into existence under the India
Independence Act, 1947, could not be counted for purposes of his
B entitlement to pension under s. 6B of the Act, which appears to be
prima facie erroneous. The appellant clearly answers the description of
a Member as defined ins. 2(c) of the Act. Admittedly, the appellant
had continuously been a Member of the State Legislative Assembly
representing the Kangra West General Constituency from the year
1937 to January, 2, 1953, on which date he resigned his Membership
C from the Joint Punjab Legislative Assembly to assume the office of a
Member of the Pubjab State Public Service Commission. Thus, the
appellant had been a Member of the State Legislative Assembly for a
period of nearly 16 years and his case appears to be covered by
s. 6B( l)(a) and (e) of.the Act read with the second proviso. There is no
provision in the Himachal Pradesh Act which disentitles a Member to
D the benefit of the period during which he was a Member of the State
Legislative Assembly prior to the partition of the country. According
to the view taken by this Court in D.S. Nakara & Ors. v. Union of
India, [ 1983] 2 SCR 165 the appellant would prima facie be entitled to
the benefit of s. 6B( 1) read with the second proviso of the Himachal
Pradesh Act. Inasmuch as the State of Himachal Pradesh has chosen
E not to enter appearance in these proceedings, we refrain from expres-
sing any final opinion on the question.

In view of the foregoing, the appellant is at liberty to move the
State Government of Himachal Pradesh afresh for grant of pension
under s. 6B(l) of the Act read with the second proviso, failing which
F he may file a petition in the Himachal Pradesh High Court under Art.
226 of the Constitution for grant of an appropriate writ or direction.
-..., I

That takes us to the next and last contention of the appellant that
Regulation 8(3) of the Regulations having been 'substituted' by cl. (3)
of the Punjab State Public Service Commission (Conditions of Service)
G (First Amendment) Regulations, 1972 must be read along with Regula-
tion 1(2) and therefore deemed to have come into force on November
l, 1956, the appointed day, and consequently, the appellant was en-
titled to pension as a retired Member of the Public Service Commis-
sion from January 2, 1959, the date of his superannuation, and not
August 10, 1972, the date when the amendment came into effect. We
H are affraid, we are unable to accept this contention.
B.R. SHARMA v. U.0.1. [SEN, J.] 1045

-,' In order to appreciate the point involved, we may reproduce the A
operative part of the order dated August 10, 1972 issued by the Gover-
nor of Punjab under Art. 318 of the Constitution bringing about a
change in the law, which reads as follows:

"In exercise of the powers conferred by Article 318 of the
Constitution of India and all other powers enabling him in B
{ that behalf, the Governor of Punjab is pleased to make the
following Regulations further to amend the Punjab State
Public Service Commission (Conditions of Service) Regu-

~
lations, 1958, namely:"

A close look at the aforesaid order manifests an intention to enact a c
regulation to further amend the Regulations. It would be noticed that
the new Regulation 8(1) has been 'substituted' for the old Regulation
8( 1) and both deal with pensionary benefits to a Member who at the
date of his appointment as such Member was in the service of the
Central or a State Government. In contrast, Regulation 8(3) is a
'newly-added' provision conferring pensionary benefits on a person D
who at the date of his appointment was not in Government service. It
may be recalled that while pensionary benefits under Regulation 8(1)
were conferred upon a person who at the date of his appointment as a
Member was in the service of the Central or a State Government, and
'-../ his service as such Member was to count for pension under the rules _
applicable to the service to which he belonged, there was no corres- E
ponding provision for conferral of pensionary benefits on a person
who at the date of his appointment as such Member was not in the
service of the Central or a State Government. The newly-added provi-

,_
sion contained in Regulation 8(3) is therefore a remedial measure to
remove the anomaly then existing. Regulation 8(3) being a remedial
measure, must receive a beneficial construction and if it is capable of F
two interpretations, the Courts must prefer that construction which
permits the beneficent purpose behind it. When language of a statute
is free from ambiguity, no duty is cast upon the C9urt to do anything
more than to give effect to the word or words used. We do not mean to
say that there might not be something in the context of an Act of
Parliament, or to be collected from its language, which might give to G
words prima fade prospective a larger operation, but that ought not to
receive a larger operation unless you find some reason for giving it.
-f Now, it would be seen that cl.(5) similarly 'substituted' new Regula-
lion 6( 1) dealing with the salary and allowances payable to the
Chairman and other Members of the Public Service Commission, and
underneath appears the following: H
1046 SUPREME COURT REPORTS [ 1988) I S.C.R.

"Notwithstanding anything contained in the Regulations,
A
clause (i) of the proviso to sub-regulation (I) shall be
deemed to have come into effect from 1. 11. 1956."

Nothing prevented the Governor while issuing the aforesaid order
dated August 10, 1972 from making a similar provision with regard to
s. the newly-added Regulations 8(3). It is therefore manifest that the
newly-added Regulation 8(3), in the absence of any provision giving it 1
a retrospective operation, cannot prima facie bear a greater retro-
active effect than intended.

It is a matter of legislative practice to provide while enacting an
amending law, that an existing provision shall be deleted and a new · ;
j
c provision substituted. Such deletion has the effect of repeal of the
existing provision. Such a law may also provide for the introduction of
a new provision. There is no real distinction between 'repeal' and an
'amendment'. In Sutherland's Statutory Construction, 3rd edn., vol. 1
at p. 477, the learned author makes the following statement of law:
D
"The distinction between repeal and amendment as these
terms are used by the Courts, is arbitrary. Naturally the use
of these terms by the Court is based largely on how the
Legislatures have developed and applied these terms in 'y
labelling their enactments. When a section is being added
E to an Act or a provision added to a section, the Legislatures
commonly entitle the Act as an amendment ..... When a
provision is withdrawn from a section, the Legislatures call
the Act an amendment, particularly when a provision is
added to replace the one withdrawn. However, when an
entire Act or section is abrogated and no new section is
F added to replace it, Legislatures lebel the Act accomplish- .--.t.'
ing this result a repeal. Thus as used by the Legislatures, l
amendment and repeal may differ in kind-addition as
opposed to withdrawal or only in degree-abrqgation of
part of a section as opposed to abrogation of a whole sec-
tion or Act; or more commonly, in both kind and degree-
G addition of a provision to a section to replace a provision
being abrogated as opposed by abrogation of a whole sec-
tion of an Act. This arbitrary distinction has been followed ~
by the Courts, and they have developed separate rules of
construction for each. However, they have recognised that
frequently an Act purporting to be an amendment has the'
H same qualitative effect as a repeal-the abrogation of an
B.R. SHARMA v. U.0.1. (SEN, J.( 1047

existing statutory provision-and have therefore applied A
the term 'implied repeal' and the rules of construction
applicable to repeals to such amendments."

Amendment is, in fact, a wider term and it includes abrogation
or deletion of a provision in an existing statute. If the amendment of B
-{ an existing law is small, the Act professes to amend; if it is extensive, it
repeals a law and re-enacts it. An amendment of substantive law is not
retrospective unless expressly laid down or by necessary implication
c inferred.

_/j _ For the sake of completeness, we wish to add that the mere use c
of the word 'substitution' does not imply that Regulation 8(3) must
relate back to November 1, 1956, the appointed day. The problem
usually arises in case of repeal by substitution. In the case of executive
instructions, the bare issue of a fresh instrument on the same subject
would replace a previous instrument. But in the case of a legislative
enactment, there would be no repeal of an existing law unless the D
substituting act or provision has been validly enacted with all the re-
quired formalities. In State of Maharashtra v. The Central Provinces
Manganese Ore Co. Ltd., [1977] 1 SCR 1002 a three Judges Bench
repelled the argument that since the word 'substituted' was used in the
~ Amending Act of 1949. It necessarily followed that the process
embraces two distinct steps, one of repeal and another of a fresh E
enactment. In that case, the whole legislative process termed 'substitu-
tion' proved to be abortive inasmuch the Amending Act did not
- receive the assent of the Governor General under s. 107 of the
Government of India Act, 1935 and was thus void and inoperative.
Distinguishing the two earlier decisions is Firm A. T.B. Mehtab Majid
F
"t- & Co. v. State of Madras, [1963] Suppl. 2 SCR 435 and Koteshwar
Vittal Karnath v. K. Rangappa Balica & Co. [1969] 3 SCR 40 the Court
observed that the mere use of the word 'substituted' does not ipso
facto or automatically repeal a provision until the provision which is to
take its place is constitutionally permissible and legally effective. It
relied upon the following principle of construction stated in Halsbury's
Laws of England, 3rd edn., Vol. 36. p. 474: G

'-'-1 "Where an Act passed after 1850 repeals wholly or par-
tially any former enactment and substitutes provision for
the enactment repealed, the repealed enactment remains in
force until the substituted provisions come into operation." H
1048 SUPREME COURT REPORTS [1988] I S.C.R.

A And observed:

"We do not think that the word substitution necessarily or
always connotes two severable steps, that is to say, one of
repeal and another of a fresh enactment even if it implies
two steps. Indeed, the natural meaning of the word "sub-
B
stitution" is to indicate that the process cannot be split up
into two pieces like this. If the process described as sub-
stitution fails, it is totally ineffective so as to leave intact
what was sought to be displaced. That seems to us to be the
ordinary and natural meaning of the words 'shall be substi-
tuted'."
c
The underlying fallacy of the argument is that lies in the assump-
tion that Regulation 8(3) had been 'substituted'. What had been
substituted is the new Regulation 8(1), and Regulation 8(3) is newly-
added by way of amendment to remove an existing anomaly.
D
We therefore find no justification to interfere with the judgment
of the High Court. The appeal must accordingly fail and is dismissed.
There shall be no order as to costs.

S.L. Appeal dismissed.