In BN Tewari v. Union of India , 1965 (2) SCR 421, which was a writ petition under Article 32 filed on the heels of the decision of Supreme Court in T Devadasan v. Union of India , 1964 (4) SCR 680; 1963 INSC 183. The case concerned a Union Public Service Commission (UPSC) notification reserving 12.5 per cent of seats for candidates from the Scheduled Castes and 5 per cent of seats for candidates from the Scheduled Tribes.
In 1952, the UPSC instituted a carry-forward rule whereby unfilled reserved seats each year were added to the subsequent year’s reserved seats for up to two years. This rule was subsequently amended in 1955, challenged in T Devadasan, where the carry forward rule “as modified in 1955” was struck down as unconstitutional. In BN Tewari, the petitioners contended that it was only the 1955 substitution that was invalidated, and as a result the 1952 carry-forward rule was revived and continued to be in effect.
Justice KN Wanchoo, speaking for a Constitution Bench of Supreme Court, negatived this contention by noting:
“6. … It is true that in Devadasan case, the final order of Supreme Court was in these terms:
“In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.”
That however does not mean that Supreme Court held that the 1952-rule must be deemed to exist because Supreme Court said that the carry forward rule as modified in 1955 was declared invalid. The carry forward rule of 1952 was substituted by the carry forward rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule in 1955, the Government of India itself cancelled the carry forward rule of 1952. When therefore Supreme Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive it.
So after the judgment of Supreme Court in Devadasan case there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by Supreme Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place.”
The Court in BN Tewari found that after the rule was amended in 1955, the 1952 rule ceased to exist and even after the 1955 rule was struck down, the 1952 rule did not revive as it had been repealed by the Government itself.
At first glance, the decision in BN Tewari also supports the “Pen and Ink” theory however, this case also demonstrates the practical difficulties that may arise if an unconstitutional provision revives. In T Devadasan, the Court had held the underlying basis for the carry forward rule to be unconstitutional. If the Court in BN Tewari had found the carry forward rule stood revived, it would have resulted in the revival of a rule that was (at the time) ex-facie unconstitutional and repugnant to the holding in the T Devadasan. Thus, in addition to the narrower issue of whether a pre-existing rule is revived, the Court in BN Tewari was also mindful of the relationship between the unamended provision and the decision to invalidate the amendment. BN Tewari is an example of where allowing the unamended rule to revive would have revived a (at the time) unconstitutional rule.