JUDGMENT Hon’ble Sunil Hali, J.—After completion of Special B.T.C. Course petitioner had applied for the post of Assistant Teacher under the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (in short referred to as U.P. Act No. 4 of 1993). She claims to be grand-daughter of freedom fighter of Nathu Ram Gandhi. There is no dispute that grand-father of the petitioner was freedom fighter and on the basis of this strength petitioner was appointed. However, it was specifically stated that she was not entitled to be appointed on the strength of being a Freedom Fighters as she did not come within the definition of dependents of freedom fighters enshrined under Section 2(b) of the U.P. Act No. 4 of 1993. 2. The word ‘dependent’ is defined under Section 2(b) of the Act. According to it a son or a daughter (married or unmarried), or a son of son or an unmarried daughter of a son, of a freedom fighter is a dependent. Petitioner is a married grand-daughter of the freedom fighter. She does not come under the category of dependents as indicated as a result of which her appointment was cancelled vide order dated 25.2.2008. It was stated in the impugned order that petitioner was married grand-daughter of freedom fighter as such not included in the definition of dependent of freedom fighter defined under Section 2(b) of the U.P. Act No. 4 of 1993. Recovery to the tune of Rs. 23931/- is also sought from her. It is this order which is subject-matter of challenge before this Court. 3. Ground of challenge is that while including the grand son and unmarried grand-daughter in the category of dependents the petitioner who was married grand-daughter of the deceased freedom fighter was excluded even though she constituted same homogeneous class with dependents as defined under the Act and while excluding married grand-daughter from the definition of dependents an artificial classification has been made with no intelligible differentia and has no nexus with the object which is sought to be achieved by the Act. The intent and purpose of the Act of 1003 is to provide reservation for dependents of freedom fighter. 4. During pendency of the writ petition, State Government issued an amendment in the Act of 1993 on 19.8.2009. The said amendment act came into force on June 16, 2009. The intent and purpose of the Act of 1003 is to provide reservation for dependents of freedom fighter. 4. During pendency of the writ petition, State Government issued an amendment in the Act of 1993 on 19.8.2009. The said amendment act came into force on June 16, 2009. The following amendment have been effected which is as under : “In Section 2 of the U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act 1993, hereinafter referred to as the principal Act, in clause (b), in sub clause (ii) for the words “unmarried grand-daughter (daughter of a son)” the words “grand-daughter (daughter of a son) (married or unmarried)” shall be substituted.” The aforesaid amendment is in the nature of substitution by including the grand-daughter both married or unmarried instead of unmarried grand-daughter. 5. It is contended that the effect of substitution is that the earlier provision is repealed by substitution and thus the newly amended provisions shall always be deemed to have been in force from the date the Act came into force. What is being contended by the learned counsel for the petitioner that in view of the changed circumstances petitioner had become eligible to be considered in the reserved category of freedom fighters as a result of this substitution. The effect of substitution shall always be retrospective as it tends to repeal the earlier provision. 6. On the other hand stand of the learned counsel for the respondents is that this infact is not substitution but addition of category in the definition of dependents. By virtue of amendment and addition of unmarried grant daughter married daughter also has been included and it shall always have prospective operation not retrospective operation. Every act is prospective in nature unless legislature intends to make it prospective. It is clearly visible from the Act itself that the present act does not make any provision for retrospective operation. 7. Heard learned counsel for the parties and perused the material on record. Petitioner was selected on the strength of reservation made in favour of the Freedom fighter as being married grand-daughter of the freedom fighter. On the date of her selection she was not eligible to be considered against the said category as being a married grand-daughter who was excluded from the definition of dependents of freedom fighter. Her selection was rightly cancelled by the respondents in the year 2008. On the date of her selection she was not eligible to be considered against the said category as being a married grand-daughter who was excluded from the definition of dependents of freedom fighter. Her selection was rightly cancelled by the respondents in the year 2008. Challenge has been thrown by the petitioner to the Section 2(b) of the Act of 1993 on the ground that by excluding a married grand-daughter a class within the class has been created. Both unmarried and married grand-daughter constitute one class as such artificial classification made has no intelligible differentia with the object sought to be achieved. The Act of 1993 has been amended during the pendency of the writ petition as a result of which earlier definition of unmarried grand-daughter has been replaced by unmarried and married grand-daughter of freedom fighter. This substitution has the effect of repealing the earlier provision. The effect of substitution is that the earlier provision does not subsist and the same is replaced by the new provision. Consequence of this is that the replaced rule shall always deemed to be in force from the date the act has been made applicable. Intention of the said substitution is not to keep the old rule alive by replacing the new rule. The legislature seems to have realized the need for substitution on becoming aware of the anomalies and absurdities to which the provision without such substitution may lead to, even resulting, at times, in repugnancy with the main provision and virtually defeating the intention of the legislature. The modification of the provision, as carried out by the substitution ordered, when found to be needed and necessitated to implement effectively the legislative intention and to prevent a social mischief against which the provision is directed, a purposive construction is a must and the only inevitable solution. 8. Hon’ble Apex Court in Bhagat Ram Sharma v. Union of India’s case AIR 1988 SC 740 , has pointed out the distinction between ‘repeal’ and ‘amendment’. While interpreting the meaning of the words ‘repeal’ and ‘amendment’, it was laid down in paragraphs 17 and 18 as follows : “It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. While interpreting the meaning of the words ‘repeal’ and ‘amendment’, it was laid down in paragraphs 17 and 18 as follows : “It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new 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 amendment. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing statute. If the amendment of 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 inferred. Therefore, when the amendment is extensive, it repeals a law and re-enacts it. “ It was also held that when one provision is deleted and a new provision is substituted, it will have the effect of repealing of the existing provision. If the amendment herein is thus construed, there is no deletion of the relevant provision. The omission alone is supplied. In that view of the matter, it cannot be said that there is a repeal of the existing provision as known to law. 9. The scope of the expression ‘substituted’ was considered by the Hon’ble Apex Court in Ramkanali Colliery of BCCL’s case (2001) 4 SCC 236 . Therein also, it was held that when there is a repeal and introduction of another provision in its place, by a single exercise, the expression substituted is used. In para 8 of the judgment the relevant principles have been stated thus and reliance is placed upon the decision of the Apex Court in Bhagat Ram Sharma’s case AIR 1988 SC 740 , which is as under : “What we are concerned with in the present case is the effect of the expression substituted; used in the context of deletion of sub- Sections of Section 14, as was originally enacted. In Bhagat Ram Sharma v. Union of India (supra) this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. In Bhagat Ram Sharma v. Union of India (supra) this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression substituted; is used. Such deletion has the effect of the repeal of the existing provision and also provides for introduction of a new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such.” Therefore, when there is a deletion, it has the effect of repealing of the existing provision. The Apex Court held that when, in such cases, there is an introduction of a new provision, there is no real distinction between repeal or amendment or substitution. 10. In a later decision in Zile Singh v. State of Haryana and others, (2004) 8 SCC 1 , the principles relating to retrospective operation of the Statutes and the question whether any curative or declaratory provision will be retrospective or not, was considered. Paragraphs 13 and 14 of the judgment laid down the proposition thus : “13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only “nova constitutio futuris formam imponere debet non-praeteritis”—a new law ought to regulate what is to follow, nor the past. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only “nova constitutio futuris formam imponere debet non-praeteritis”—a new law ought to regulate what is to follow, nor the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn. 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid. p. 440). The test for considering the retrospective nature of the provision was laid down in para 15 as follows : “Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular Section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant : (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated. (p.388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p.392). Therefore, in the absence of express words, the true intention of the legislature will have to be considered. (p.388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p.392). Therefore, in the absence of express words, the true intention of the legislature will have to be considered. Finally, with respect to a Statute which is passed for the purpose of supplying an obvious omission in a former statute or to explain a former statute, it was held thus in para 16 which is as under : “Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to “explain” a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. Finally, the legislative device of substitution was also adverted to in paragraphs 24 and 25 in the following words : “24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision.” “25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid. p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P., (2002) 2 SCC 645 ; State of Rajasthan v. Mangilal Pindwal, (1996) 5 SCC 60 ; Koteswar Vittal Kamath v. K. Rangappa Baliga and Co., (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael, AIR 1963 SC 933 . In West U.P. Sugar Mills Assn. case, a three-Judge Bench of this Curt held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case, this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case, a three-Judge Bench of this Court emphasised the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps : first, the old rule is made to case to exist and, next, the new rule is brought into existence in its place. 11. It is thus clear that the word ‘substitution’ really results in repeal of an earlier provision and enactment of a new provision. Therefore, even though the learned counsel for the respondents submitted that this infact is not substitution but addition of category in the definition of dependents. By virtue of amendment and addition of unmarried grand-daughter married daughter also has been included and it shall always have prospective operation not retrospective operation. It is not a case where the old rule has ceased to exist and a new rule is brought into force. Evidently, the idea was only to supply an omission and therefore the amendment is only a clarificatory and curative one and therefore the provision will relate back to the time when the prior provision was introduced. 12. Hon’ble Apex Court in Indian Tobacco Association’s case { (2005) 7 SCC 396 } also has emphasised, the meaning of the term substituted in para 15 which is as under : “The word “substitute” ordinarily would mean “to put (one) in place of another” or “to replace.” In Black’s Law Dictionary, 5th Edn. at p. 1281, the word substitute has been defined to mean to put in the place of another person or thing, or to exchange. at p. 1281, the word substitute has been defined to mean to put in the place of another person or thing, or to exchange. In Collins English Dictionary, the word substitute has been defined to mean to serve or cause to serve in place of another person or thing and to replace (an atom or group in a molecule) with (another atom or group); or a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague. On the facts of the said case, it was held in para 16 that only an obvious mistake was sought to be removed by the amendment and there was no substitution. Finally, the effect of supplying an omission was laid down thus in para 27 which is as under : “There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed. (See Attorney General v. Pougett, (1816) 2 Price 381.” 13. The decision in Zile Singh’s case (supra) was relied upon by the Apex Court in Shakti Tubes Ltd.’s case (2009) 7 SCC 673 , wherein the principles regarding retrospective operation of statutes as reiterated in paragraphs 15 and 16 of Zile Singh’s case (supra) was affirmed. In an earlier decision of the Apex Court in Channan Singh v. Jai Kaur, AIR 1970 SC 349 , while considering the retroactive nature of a provision which explains a former one, it was held in para 5 as under : “It is well settled that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. Therefore, the legal position with regard to the retroactive nature of a curative provision cannot be doubted.” 14. The amendment which was introduced in the year 2009, going by the explanatory note therein, was to provide some more benefits and to remove the discrimination between daughter and grand-daughter it was decided to amend the said Act to include the married grand-daughter of a freedom fighter in the definition of the word dependent. The amendment which was introduced in the year 2009, going by the explanatory note therein, was to provide some more benefits and to remove the discrimination between daughter and grand-daughter it was decided to amend the said Act to include the married grand-daughter of a freedom fighter in the definition of the word dependent. Therefore, the object of the amendment was to benefit the employees by liberalising the scheme. It is a welfare measure also. Therefore, an interpretation which promotes the object will have to be attempted. 15. Learned counsel for the respondents submitted that retrospective effect will not normally be granted to a provision which affects the vested rights. The provision can therefore only be prospective, contended the learned Standing Counsel. 16. The legal position in that regard admits of no doubt. Normally prospective operative alone can be given to a statute which affects a vested right, as held by the Apex Court in the various decisions. Every statute is prima facie prospective unless expressly or by necessary implication, made to have a retrospective operation. To find out whether the provision will have effect or relation back to the date on which it was introduced, it will have to be assessed whether it is an attempt to supply an omission and it is curative. Herein, it is not a case where there is a real substitution of the provision, as noted already. A mischief was sought to be remedied by the present amendment introduced in the year 2009. Therefore, clearly it is a case where an obvious omission of the former statute is sought to be supplied which is not a case of substitution of a provision. As such, it is not the introduction of a new provision after repeal of an existing provision. In that view of the matter, it can only be the interpretation that the present amendment will be retrospective in nature. In view of above, the writ petition is allowed. The order cancelling the petitioner’s candidature in the reserved category of dependents of freedom fighter is set aside. The respondents are directed to reinstate the petitioner from the date she has been terminated and this shall be construed to be continuity of her service from the date her services have been terminated. However, she will not be entitled to back wages. The respondents are directed to reinstate the petitioner from the date she has been terminated and this shall be construed to be continuity of her service from the date her services have been terminated. However, she will not be entitled to back wages. This may be done, if possible, within a period of three months from the date certified copy is served on them. ——————