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35. Whenever a provision, whether principal or subordinate legislation, is struck down, being ultra vires and/or violative of any provision of Constitution, and, in particular, fundamental rights under Part-III of the Constitution, in view of declaration contained in Article 13(2) of the Constitution, such provision is void-ab-initio. It is like a stillborn provision incapable of repeal or substitution of an existing provision.
36. In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 considering the doctrine of still-born piece of legislation a Constitution Bench said:
"If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment."
37. In Sagir Ahmad Vs. The State of U.P. & Ors AIR 1954 SC 728 the Court examined challenge to the Constitutional validity of U.P State Transport Act, 1951 under which the State was enabled to run Stage Carriage Service to the exclusion of others. In exercise of its power under the Act, the State Government made a declaration extending the Act to a particular area and frame a scheme for operation of stage carriage service on certain routes. At the relevant time, State did not have the power to deny citizen of his right to carry on transport service. However, after the Constitution (First) Amendment Act of 1951, the State became entitled to carry on any trade or business either by itself or through Corporation, owned or controlled by it, to the exclusion of private citizens wholly or in part. One of the question raised was whether Constitution (First) Amendment Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and therefore it was stillborn and could not be vitalized by a subsequent amendment of the Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for the Court referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said:
"a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted".
38. The Hon'ble Court further observed that it is of the view that this is a sound law.
39. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where the Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made in spite of the prohibition is a still-born law.
40. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view in para 22 of the report. It says,
"..it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis added)
41. This view has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1.
42. Once a Rule is struck down as arbitrary, unreasonable and violative of Article 14, the effect is as if such a provision was never in effect, being 'stillborn'. Even if, in a given case, in subsequent amendment, there is a reference of such provision which has been struck down, yet it cannot be followed being non-est. The mere fact that before being struck down, it has been referred to in a subsequent amendment, would make no difference.
43. Respondents-authorities, in my view, therefore were not entitled to prepare list of candidates selected for appointment in accordance with Rule 14(3) of Fifteenth Amendment Rules, 2012, read with Appendix which has been referred to as Appendix-I in Sixteenth Amendment Rules, 2012, since the Appendix which has been subsequently referred to as Appendix-I in Sixteenth Amendment Rules, 2012, has rendered non-est. Rule 14(3) of Fifteenth Amendment Rules, 2012 in its entirety having been struck down by this Court as arbitrary and unreasonable, it disappears, as if, it never existed. Hence list prepared by taking into account aforesaid Appendix is clearly illegal.
44. The next question, which is though necessary but incidental, and of utmost importance arises whether Sub-rule (3) of Rule 14 as it stood before Fifteenth Amendment Rules, 2012 would stand revived or after striking down Rule 14(3) of Fifteenth Amendment Rules, 2012 it would result in a gap in the Rules requiring an appropriate legislation so as to bring on the Statute-book, valid Rule 14 (3).
45. In B.N. Tiwari Vs. Union of India and others AIR 1965 SC question came up for consideration was, whether old Rule revives after substituted Rule is struck down. The Central Services Rules of 1952 provided for carry forward rule whereby unfilled reserved vacancies of a particular year could have been carried forward for one year. In 1955, the said Rules of 1952 were amended by substitution and another Rules providing that unfilled unreserved vacancies of a particular year can be carried forward for two years was brought in. 1955 amendment of Rule was declared ultra vires. The question was, whether this declaration would result in revival of 1952 Rules. A Constitution Bench said that 1952 Rules having already been repealed and substituted by 1955 Rules, after striking down of 1955 Rules, old Rule would not revive.
46. In Firm A. T. B. Mehtab Majid and Co. v. State of Madras AIR 1963 SC 928 also the Court held, where an old Rule has been substituted by a new Rule, it ceases to exist and would not get revive when the new Rule is held invalid.
47. In West U.P. Sugar Mills Association and others Vs. State of Uttar Pradesh and others 2002 (2) SCC 645, following the authorities in B.N. Tiwari (supra) and A. T. B. Mehtab Majid and Co. (supra) a three-Judge Bench also took the same view by showing its total agreement with the statement of law declared in the aforesaid decisions. The Court also said, if there would be still a modification in existing law and subsequent modification is held to be void, it would mean as if earlier law has never been modified or repealed and may continue to be in force but where the earlier provision is repealed by substitution and another provision is brought in, earlier provision will not revive when subsequent provision is struck down. Para 15 of judgment in West U.P. Sugar Mills Association (supra) reads as under:
"15. It would have been a different case where a subsequent law which modified the earlier law held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded with the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State government under Section read with Section of the Act, has power to frame rule prescribing the society commission. The State government by substituting new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by new Rule 49 and, therefore, we are of the view that after new Rule 49 ceased to be operative, the old Rule 49 did not revive." (emphasis added)
48. When a provision is substituted by replacing another provision, substitution results in repeal of existing provision. Insertion of another provision brings the effect of replacement to new provision. When the Legislature substitute an existing provision by new one, it means it did not intend to keep alive old rule. There is a distinctions between "supercession" and "substitution". "Substitution" has two steps. First the old rule is made cease to exist, and next, the new rule is brought into existence in its place, while supercession has single stroke of overriding the existing provision. This distinction has been discussed by a three-Judge Bench in Koteswar Vittal Kamath Vs. K. Rangappa Baliga & Co. 1969 (3) SCR 40 and followed in Zile Singh Vs. State of Haryana 2004 (8) SCC 1.
49. Therefore, Rule 14 (3) of Fifteenth Amendment Rules, 2012 having been struck down will not revive the earlier provision and Rule 14 (3) (a) of Sixteenth Amendment Rules, 2012 having referred to a provision, i.e. Appendix, which has already been struck down, is inoperative and cannot be acted upon.
UPTET / टीईटी / TET - Teacher EligibilityTest Updates / Teacher Recruitment / शिक्षक भर्ती / SARKARI NAUKRI NEWS 36. In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 considering the doctrine of still-born piece of legislation a Constitution Bench said:
"If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment."
37. In Sagir Ahmad Vs. The State of U.P. & Ors AIR 1954 SC 728 the Court examined challenge to the Constitutional validity of U.P State Transport Act, 1951 under which the State was enabled to run Stage Carriage Service to the exclusion of others. In exercise of its power under the Act, the State Government made a declaration extending the Act to a particular area and frame a scheme for operation of stage carriage service on certain routes. At the relevant time, State did not have the power to deny citizen of his right to carry on transport service. However, after the Constitution (First) Amendment Act of 1951, the State became entitled to carry on any trade or business either by itself or through Corporation, owned or controlled by it, to the exclusion of private citizens wholly or in part. One of the question raised was whether Constitution (First) Amendment Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and therefore it was stillborn and could not be vitalized by a subsequent amendment of the Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for the Court referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said:
"a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted".
38. The Hon'ble Court further observed that it is of the view that this is a sound law.
39. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where the Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made in spite of the prohibition is a still-born law.
40. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view in para 22 of the report. It says,
"..it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis added)
41. This view has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1.
42. Once a Rule is struck down as arbitrary, unreasonable and violative of Article 14, the effect is as if such a provision was never in effect, being 'stillborn'. Even if, in a given case, in subsequent amendment, there is a reference of such provision which has been struck down, yet it cannot be followed being non-est. The mere fact that before being struck down, it has been referred to in a subsequent amendment, would make no difference.
43. Respondents-authorities, in my view, therefore were not entitled to prepare list of candidates selected for appointment in accordance with Rule 14(3) of Fifteenth Amendment Rules, 2012, read with Appendix which has been referred to as Appendix-I in Sixteenth Amendment Rules, 2012, since the Appendix which has been subsequently referred to as Appendix-I in Sixteenth Amendment Rules, 2012, has rendered non-est. Rule 14(3) of Fifteenth Amendment Rules, 2012 in its entirety having been struck down by this Court as arbitrary and unreasonable, it disappears, as if, it never existed. Hence list prepared by taking into account aforesaid Appendix is clearly illegal.
44. The next question, which is though necessary but incidental, and of utmost importance arises whether Sub-rule (3) of Rule 14 as it stood before Fifteenth Amendment Rules, 2012 would stand revived or after striking down Rule 14(3) of Fifteenth Amendment Rules, 2012 it would result in a gap in the Rules requiring an appropriate legislation so as to bring on the Statute-book, valid Rule 14 (3).
45. In B.N. Tiwari Vs. Union of India and others AIR 1965 SC question came up for consideration was, whether old Rule revives after substituted Rule is struck down. The Central Services Rules of 1952 provided for carry forward rule whereby unfilled reserved vacancies of a particular year could have been carried forward for one year. In 1955, the said Rules of 1952 were amended by substitution and another Rules providing that unfilled unreserved vacancies of a particular year can be carried forward for two years was brought in. 1955 amendment of Rule was declared ultra vires. The question was, whether this declaration would result in revival of 1952 Rules. A Constitution Bench said that 1952 Rules having already been repealed and substituted by 1955 Rules, after striking down of 1955 Rules, old Rule would not revive.
46. In Firm A. T. B. Mehtab Majid and Co. v. State of Madras AIR 1963 SC 928 also the Court held, where an old Rule has been substituted by a new Rule, it ceases to exist and would not get revive when the new Rule is held invalid.
47. In West U.P. Sugar Mills Association and others Vs. State of Uttar Pradesh and others 2002 (2) SCC 645, following the authorities in B.N. Tiwari (supra) and A. T. B. Mehtab Majid and Co. (supra) a three-Judge Bench also took the same view by showing its total agreement with the statement of law declared in the aforesaid decisions. The Court also said, if there would be still a modification in existing law and subsequent modification is held to be void, it would mean as if earlier law has never been modified or repealed and may continue to be in force but where the earlier provision is repealed by substitution and another provision is brought in, earlier provision will not revive when subsequent provision is struck down. Para 15 of judgment in West U.P. Sugar Mills Association (supra) reads as under:
"15. It would have been a different case where a subsequent law which modified the earlier law held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded with the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State government under Section read with Section of the Act, has power to frame rule prescribing the society commission. The State government by substituting new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by new Rule 49 and, therefore, we are of the view that after new Rule 49 ceased to be operative, the old Rule 49 did not revive." (emphasis added)
48. When a provision is substituted by replacing another provision, substitution results in repeal of existing provision. Insertion of another provision brings the effect of replacement to new provision. When the Legislature substitute an existing provision by new one, it means it did not intend to keep alive old rule. There is a distinctions between "supercession" and "substitution". "Substitution" has two steps. First the old rule is made cease to exist, and next, the new rule is brought into existence in its place, while supercession has single stroke of overriding the existing provision. This distinction has been discussed by a three-Judge Bench in Koteswar Vittal Kamath Vs. K. Rangappa Baliga & Co. 1969 (3) SCR 40 and followed in Zile Singh Vs. State of Haryana 2004 (8) SCC 1.
49. Therefore, Rule 14 (3) of Fifteenth Amendment Rules, 2012 having been struck down will not revive the earlier provision and Rule 14 (3) (a) of Sixteenth Amendment Rules, 2012 having referred to a provision, i.e. Appendix, which has already been struck down, is inoperative and cannot be acted upon.
UP-TET 2011, 72825 Teacher Recruitment,Teacher Eligibility Test (TET), 72825 teacher vacancy in up latest news join blog , UPTET , SARKARI NAUKRI NEWS, SARKARI NAUKRI
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UPTET 72825 Latest Breaking News Appointment / Joining Letter | Join UPTET Uptet | Uptet news | 72825 Primary Teacher Recruitment Uptet Latest News | 72825 Teacher Recruitment Uptet Breaking News | 72825 Primary Teacher Recruitment Uptet Fastest News | Uptet Result 2014 | Only4uptet | 72825 Teacher Recruitment Uptet News Hindi | 72825 Teacher Recruitment Uptet Merit cutoff/counseling Rank District-wise Final List / th Counseling Supreme Court Order Teacher Recruitment / UPTET 72825 Appointment Letter on 19 January 2015A | 29334 Junior High School Science Math Teacher Recruitment,
CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET ,
Rajasthan TET / RTET, BETET / Bihar TET, PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
