N. D. Ojha, J. - (1.) THE petitioner was appointed permanent Assistant Registrar of the Agra University by a resolution of the Executive Council of the University dated 28th May, 1971. By a subsequent resolution dated 16th February, 1972 the Executive Council appointed the petitioner as Deputy Registrar. A representation under Section 35 of the Agra University Act was made by one Sanat Kumar to the Chancellor against the appointment of the petitioner as Deputy Registrar. After calling for the comments from the University and explanation from the petitioner the Chancellor by his order dated 22nd June, 1972, set aside the appointment of the petitioner as Deputy Registrar. THE Chancellor took the view that the Deputy Registrar and Assistant Registrar fall within the purview of the term "clerical staff" of the University and in view of Statute 6 of the Statutes framed under the Agra University Act, 1926 (hereinafter referred to as the Act) it was the Registrar and not the Executive Council of the University who could make appointment of the "clerical staff." He further held that the resolution of the Executive Council appointing the petitioner as Deputy Registrar was also invalid because the Executive Council did not invite the advice of the Finance Committee as contemplated by Section 18 (1-A) of the Act. THE appointment of the petitioner was found to be irregular by the Chancellor also on the ground that the Executive Council had not awaited the financial report of the Reorganisation Committee of the University. THE petitioner challenged this order of the Chancellor in this Court in Civil Misc. Writ Petition No. 4838 of 1972. A learned Single Judge of this Court dismissed the writ petition on 14th May, 1973. Aggrieved by that order the petitioner preferred Special Appeal No. 170 of 1973. A Division Bench of this Court dismissed the special appeal on 3rd September, 1973.
(2.) THEREAFTER another representation was made by Sanat Kumar to Chancellor against the appointment of the petitioner as an Assistant Registrar by the Executive Council by its resolution dated 28th May, 1971, mentioned above. The Chancellor again called for the comments of the University and the explanation of the petitioner and allowed this representation also by his order dated 22nd December, 1973. The petitioner's appointment as Assistant Registrar was set aside. The Chancellor reiterated his earlier view that the post of an Assistant Registrar came within the purview of "clerical staff" and appointment on this post could be made not by the Executive Council but by the Registrar and that since advice from the Finance Committee had not been taken by the Executive Council before appointing the petitioner as Assistant Registrar the appointment was illegal having been really made against a non-existent post. The Chancellor relied on the decision of this Court in the aforesaid Special Appeal No. 170 of 1973 mentioned above. On 29th December, 1973, the Registrar of the University passed a consequential order reverting the petitioner as Private Secretary to the Vice-Chancellor. It is these two orders which are sought to be quashed in the present writ petition. This writ petition came up for hearing before a Division Bench of this Court which was of the view that the decision in Special Appeal No. 170 of 1973 mentioned above required reconsideration and by an order dated 16th February, 19/8, referred the writ petition for decision by a larger Bench. It is thus that this writ petition has come up before this Bench. It was urged by counsel for the petitioner that neither the post of the Assistant Registrar nor the post of the Deputy Registrar fell within the purview of the terra "clerical staff" and that Statute 6 of the Statutes was consequently inapplicable. It has not been asserted before us that even if the post of the Deputy Registrar came within the purview of the term "clerical staff" the post of the Assistant Registrar would stand on a different footing. It is as such not disputed that either both posts would fall within the term "clerical staff" or none of them will fall within the said term. The question which, therefore, arises for consideration is as to whether the post of an Assistant Registrar can be said to fall within the purview of the term "clerical staff" used in Statute 6 of Chapter X of the Statutes of the Agra University which reads : " The Registrar may, subject to the previous approval of the Vice-Chancellor, appoint, suspend, dismiss or otherwise punish the clerical staff and inferior servants of the University Office excluding the Confidential Section : Provided that in every case action taken in the exercise of such power shall be reported to the Executive Council and any person adversely affected may appeal to the Executive Council within one month. "
(3.) BEFORE dealing with this question, however, we consider it necessary to dispose of certain technical pleas raised by counsel for the petitioner. It was pointed out that on 22nd December, 1973, when the Chancellor allowed the representation of Sanat Kumar the Act had already been repealed by the Uttar Pradesh State Universities Ordinance, 1973, which was promulgated on 12th June, 1973, and came into force on 18th June, 1973, in pursuance of the relevant notification issued under sub-section (2) of Section 1 of the Ordinance. This Ordinance was replaced by the Uttar Pradesh State Universities Act 1973 which came into force on 2nd September, 1973. The aforesaid Ordinance and the Act shall hereinafter be referred to as the Ordinance and the 1973 Act respectively. On its basis it was urged that since on the date when the Chancellor passed the impugned order the Act including Section 35 under which the representation of Sanat Kumar had been made stood repealed no representation in the eye of law remained pending before the Chancellor which could be decided by the impugned order. We find it difficult to agree with this submission. Before considering the decided cases on the point it would be useful to refer to Section 6 (e) and Section 24 of the U. P. General Clauses Act. They read " 6. Effect of repeal.-Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation 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." "24. Continuation of appointments, notifications, orders, etc., issued under enactment repealed and re-enacted. Where any enactment is repealed and re-enacted by an Uttar Pradesh Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, or statutory instrument or form, made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, or statutory instrument or form made or issued under the provisions so re-enacted." In State of Punjab v. Mohar Singh, AIR 1955 SC 84 it was held at page 88 : " Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law." The cruicial question which, in cases of repeal and re-enactment, arises for consideration is whether the repealing Act manifests an intention to destroy what is contained in Section 6 of the General Clauses Act. In Indira Sohan Lal v. Custodian of Evacuee Property, AIR 1956 SC 77 the view taken in the case of Mohar Singh (supra) was reiterated and on the language of sub-section (3) of Section 58 of Central Act 31, 1950, it was held that the said sub-section purported to indicate the effect of repeal both in negative and positive terms and that the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act.;