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Friday, May 9, 2014

Doctrine of Prospective= Art. 309 and 371 D of the Constitution GoMs No.14 and 22 - inter-department transfer by promotion - V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. (2001) 10 SCC 401 - Declared as unconstitutional - Tribunal held that that judgment is prospective in application - where as High court set aside the order of Tribunal - Apex court held that In the result, we allow these appeals, set aside the orders passed by the High Court and hold that while GoMs No.14 and 22 have been rightly declared to be ultra vires of the Presidential Order by the State Administrative Tribunal, the said declaration shall not affect the promotions and appointments made on the basis of the said GoMs prior to 7th November, 2001, the date when Jagannadha Rao’s was decided by this Court. Parties are left to bear their own costs. = K. Madhava Reddy & Ors. …Appellants Versus Govt. of A.P. & Ors. …Respondents =2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41488

 Doctrine of Prospective Art. 309 and 371 D of the Constitution  GoMs  No.14  and  22 - inter-department transfer by promotion - V. Jagannadha Rao and Ors. v.  State  of  Andhra  Pradesh  and Ors. (2001) 10 SCC 401 - Declared as unconstitutional - Tribunal held that that judgment is prospective in application - where as High court set aside the order of Tribunal - Apex court held that  In the result, we allow these appeals, set aside the orders passed  by the High Court and hold that while GoMs  No.14  and  22  have  been  rightly declared  to  be  ultra  vires  of  the  Presidential  Order  by  the  State Administrative  Tribunal,  the  said  declaration  shall  not   affect   the promotions and appointments made on the basis of the said GoMs prior to  7th November, 2001, the date when Jagannadha Rao’s was decided  by  this  Court. Parties are left to bear their own costs. =

 whereby
the High Court has set aside the order  passed  by  the  State  Administrate
Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment  of
this Court in V. Jagannadha Rao and Ors. v.  State  of  Andhra  Pradesh  and
Ors. (2001) 10 SCC 401, to be  prospective  in  its  application. 

  In Jagannadha Rao’s case (supra), the  petitions  were  filed  in  the
year  1987.   The  State  Administrative  Tribunal  had  declared  the  rule
providing for inter-department transfer by promotion to be bad by its  order
dated 17th April, 1995.  
The legal position eventually came  to  be  settled
by the decision of this Court in  the  case  on  7th  November,  2001.   
The
petitions in the present case were filed  before  the  State  Administrative
Tribunal in the year 1997.   
The  Tribunal  had  on  the  authority  of  the
judgment aforementioned struck down the rules  providing  for  ex-cadre/zone
promotions by its order dated 27th March, 2003,  but  saved  the  promotions
already made.  
The judgment of the High Court of Andhra Pradesh  challenging
the order passed by the Tribunal to  the  extent  it  saved  the  promotions
earlier made was pronounced on 9th March, 2007.  
The review  petition  filed
by those affected  by  the  striking  down  to  the  rules  and  facing  the
prospects of reversion were dismissed by the High  Court  on  3rd  November,
2010. 
Promotions made before the pronouncement of the  order  in  Jagannadha
Rao’s case (supra) i.e. before 7th November, 2001 have, thus, continued  for
nearly ten years till the review  petition  filed  by  the  petitioners  was
dismissed and the matter brought up before  this  Court.   
We  had  in  that
backdrop  asked  learned  counsel   for   the   respondent-State   to   take
instructions whether the State Government was ready to create  supernumerary
posts to accommodate  the  petitioners  and  prevent  their  reversion.   An
additional affidavit filed by the  Commissioner  of  Labour,  Government  of
Andhra Pradesh, however, does not appear to be supportive of what  could  be
a solution to the stalemate  arising  out  of  the  impugned  judgment.  
The
affidavit states that there is no need  to  create  supernumerary  posts  to
accommodate the petitioners in their original posts i.e.  Senior  Assistants
and senior stenographers. 
It also declines creation of  supernumerary  posts
in the Directorate for the petitioners who were working as Assistant  Labour
Officers, Assistant Commissioners of  Labour  and  Deputy  Commissioners  of
Labour. 
The affidavit states that the petitioners while  working  as  Senior
Assistants and senior stenographers had opted  to  go  as  Assistant  Labour
Officers outside the regular line on executive posts  where  the  incumbents
enforce the labour laws.  
The affidavit suggests as though  the  petitioners
had taken a calculated risk in  going  out  of  their  cadres  by  accepting
higher positions as Assistant Labour Officers in another zone.   Suffice  it
to say that the  respondent-State  has  not  expressed  its  willingness  to
create supernumerary  positions.  
We  have,  therefore,  no  option  but  to
examine the question of invoking the doctrine of prospective  overruling  on
the merits of the case having regard  to  the  facts  and  circumstances  in
which the question arises. 
While doing so we must  at  the  threshold  point
out that the respondents  are  not  correct  in  suggesting  as  though  the
petitioners had taken any  deliberate  or  calculated  risk  by  opting  for
promotion outside their cadres.  
The  respondents  have  while  making  that
assertion ignored the fact that promotions were ordered  by  the  State  and
not snatched by the petitioners. 
That apart on the date the promotions  were
made there was no element of risk nor were the promotions  made  subject  to
the determination of any legal controversy as  to  the  entitlement  of  the
incumbents to such promotion. 
Not only that, the  incumbents  who  had  been
sent out on promotion as Assistant Labour  Officers  had  subsequently  been
promoted as Assistant Labour Commissioners or Deputy  Labour  Commissioners.
Such being the position reverting these officers at this  distant  point  of
time, to the posts of Senior Stenographers in their parent  cadre  does  not
appear to us to be either just,  fair  or  equitable  especially  when  upon
reversion the  State  does  not  propose  to  promote  them  to  the  higher
positions within their zone/cadre because such higher posts are occupied  by
other officers, most if not all of whom are junior to  the  petitioners  and
who may have to be reverted to make room for the petitioners to  hold  those
higher posts.  Reversion  of  the  petitioners  to  their  parent  cadre  is
therefore bound to have a cascading effect, prejudicing even those  who  are
not parties before us.   
The fact that the petitioners were not  arrayed  as
parties before the Tribunal or before the High Court also  brings  the  fact
situation of the present  case  closer  to  that  in  Kailash  Chand’s  case
(supra).  
The law in the present  case  was,  as  in  Kailash  Chand’s  case
(supra), in a state of flux.  Such being the position, we see no reason  why
the doctrine of prospective overruling cannot  be  invoked  in  the  instant
case.   
Just  because,  this  Court  had  not  addressed  that  question  in
Jagannadha Rao’s case (supra) is also no reason for us to refuse  to  do  so
in the present case. 
That apart, Jagannadha Rao’s case (supra)  was  dealing
with a different set of norms comprising  GoMs  No.14  and  22  referred  to
earlier. 
While the basic question whether such GoMs permitting promotion  by
transfer from one department to the cadre or zone to another may  have  been
the same, it cannot be denied that the  rules  with  which  this  Court  was
concerned in Jagannadha Rao’s case (supra) were different  from  those  with
which we are dealing in the present case.  
We feel that on the  question  of
application  of  doctrine  of  prospective  overruling,  the   judgment   in
Jagannadha Rao’s case (supra) will not  stand  as  an  impediment  for  this
Court.

19.   In the result, we allow these appeals, set aside the orders passed  by
the High Court and hold that while GoMs  No.14  and  22  have  been  rightly
declared  to  be  ultra  vires  of  the  Presidential  Order  by  the  State
Administrative  Tribunal,  the  said  declaration  shall  not   affect   the
promotions and appointments made on the basis of the said GoMs prior to  7th
November, 2001, the date when Jagannadha Rao’s was decided  by  this  Court.
Parties are left to bear their own costs.

Contempt Petitions (C) No.445-449 of 2013

      In the light of the above order passed by us,  we  see  no  reason  to
continue with these proceedings which are hereby  closed  and  the  contempt
petitions dismissed.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41488
 T.S. THAKUR, C. NAGAPPAN

                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                 CIVIL APPEAL NOS.   4947-4951      OF 2014
             (Arising out of S.L.P. (C) Nos.36274-36278 of 2010)


K. Madhava Reddy & Ors.                      …Appellants

           Versus

Govt. of A.P. & Ors.                               …Respondents

WITH
Contempt Petitions (C) No.445-449 of 2013





                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    These appeals are directed against an  order  dated  9th  March,  2007
passed by the High Court of Judicature, Andhra Pradesh at Hyderabad  whereby
the High Court has set aside the order  passed  by  the  State  Administrate
Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment  of
this Court in V. Jagannadha Rao and Ors. v.  State  of  Andhra  Pradesh  and
Ors. (2001) 10 SCC 401, to be  prospective  in  its  application.  An  order
dated 3rd November, 2010 passed  by  the  High  Court  dismissing  a  review
petition filed by the appellants  against  the  said  order  has  also  been
assailed.  The facts in the backdrop are as under:




3.    In V. Jagannadha Rao and Ors. v. State  of  Andhra  Pradesh  and  Ors.
(2001) 10 SCC 401, a three-Judge Bench was examining whether  Special  Rules
framed by the Governor of Andhra Pradesh under proviso  to  Article  309  of
the Constitution to the extent the same permitted “appointment by  transfer”
to  a  higher  category  on  the  basis  of  seniority-cum-efficiency   were
violative of para 5(2) of the Presidential Order issued under Article  371-D
of  the  Constitution  of  India,  1950.  Answering  the  question  in   the
affirmative this Court held that the Presidential Order dated 18th  October,
1975 issued under Article 371-D of the Constitution was aimed  at  providing
equitable opportunities and facilities to the people belonging to  different
parts of the State in the matter of public employment,  education  etc.  and
that the Rules framed by the State Government under proviso to  Article  309
whereby UDCs of the Labour Department, and Factories and Boilers  Department
were made eligible for recruitment by transfer to  the  posts  of  Assistant
Inspector of Labour/Assistant Inspector of Factories were violative  of  the
Presidential Order. The question  had  arisen  on  account  of  a  challenge
mounted by the Ministerial employees of the Labour Department  against  GOMs
No.72 dated 25th February,  1986  and  GOMs  No.117  dated  28th  May,  1986
whereunder UDCs in the Labour Department and those working in Factories  and
Boilers Department were made eligible for recruitment  by  transfer  to  the
posts  of  Assistant  Inspectors  of  Labour  and  Assistant  Inspectors  of
Factories. A full Bench of Tribunal before whom the challenge  came  up  for
consideration declared that the impugned Rules to the  extent  they  enabled
the Ministerial employees of the Factories and  Boilers  Department  or  any
other department to be considered  for  appointment  to  the  posts  in  the
Labour Department were violative of paras 3 and 5 of the Presidential  Order
and hence void.  The view taken by the Tribunal was questioned  before  this
Court by the aggrieved employees. Dismissing the appeals,  this  Court  held
that according to the scheme of the Presidential Order, local cadre was  the
unit under  para  5(1)  thereof  for  recruitment,  appointment,  seniority,
promotion and transfers.  This Court  further  held  that  while  para  5(2)
authorised the  State  Government  to  make  provisions  for  ‘transfer’  in
certain specified circumstances,  yet  the  term  ‘transfer’  could  not  be
enlarged in its amplitude so as to include promotional aspects.  This  Court
observed:

           “18. We find that para 5(2) of the Presidential Order speaks  of
           transfer and not of promotion. It would be hazardous  to  accept
           the contention of the appellants that promotion is  included  in
           the expression “transfer” and no assistance can be availed  from
           the distinction made in para 5(1) of the Order. No provision  or
           word in a statute has to be read  in  isolation.  In  fact,  the
           statute has to be read as a whole. A statute is an edict of  the
           legislature. It cannot be said  that  without  any  purpose  the
           distinction was made in para 5(1) between transfer and promotion
           and such distinction was not intended to be  operative  in  para
           5(2). The intention  of  the  legislature  is  primarily  to  be
           gathered from the language  used,  which  means  that  attention
           should be paid as to what has been said as also to what has  not
           been said. (See Mohd. Ali Khan v. CWT  (1997)  3  SCC  5111  and
           Institute of Chartered Accountants of India v. Price  Waterhouse
           (1997) 6 SCC 312.)


           19. We, therefore, find no reason to accept this  stand  of  the
           appellant that the expression “transfer” takes within its  scope
           a promotion”.


4.    Overruling the decisions rendered by this Court  in  State  of  Andhra
Pradesh and Anr. v. V. Sadanandam and Ors. 1989 Supp. (1) SCC  574,  and  in
Govt. Of A.P. and Anr. v. B. Satyanarayana  Rao  (Dead)  by  Lrs.  And  Ors.
(2000) 4 SCC 262, this Court held that in terms of  Article  371-D  (10)  of
the  Constitution  any  order  made  by  the  President  shall  have  effect
notwithstanding anything in any other provision of the  Constitution  or  in
any law for the time being in force. This implies that if  the  Presidential
Order prohibits consideration of employees from  the  feeder  category  from
other units then any rule made by the Governor in exercise of powers  vested
in him under the proviso to Article 309 of the Constitution will be  bad  in
law, hence, liable to be struck down. So also if the State Government  makes
any provision  which  is  outside  the  purview  of  the  authority  of  the
Government under para 5(2) of the Order, any such provision  shall  also  be
legally bad and liable to be struck down.  This Court on that logic held:

           “In the case in hand, the impugned provisions do not  appear  to
           have been framed in exercise of powers under para  5(2)  of  the
           Presidential Order and as such the same being a Rule made  under
           proviso to Article 309 of  the  Constitution,  the  Presidential
           Order would prevail, as provided under Article 371-D(10) of  the
           Constitution. Even if it is construed to be an order made  under
           para 5(2) of the Presidential Order, then also the same would be
           invalid being beyond the permissible limits provided  under  the
           said paragraph. In this view of the matter, the Tribunal rightly
           held the provision to the extent it provides  for  consideration
           of employees of the Factories and Boilers Units to  be  invalid,
           for the purpose of promotion to the higher post  in  the  Labour
           Unit and as such we see no justification  for  our  interference
           with the  said  conclusion  of  the  Tribunal  and  the  earlier
           judgment of this Court in Sadanandam case 1989 Supp (1) SCC  574
           must  be  held  to  have  not  been  correctly  decided.  As   a
           consequence, so would be the case with  Satyanarayana  Rao  case
           (2000) 4 SCC 262.”




5.    The current controversy does not  relate  to  GOMs  No.72  dated  25th
February, 1986  and  GOMs  No.117  dated  28th  May,  1986  which  fell  for
consideration before this Court in V. Jagannadha  Rao’s  case  (supra).  The
case at hand arises out of slightly  different  though  essentially  similar
circumstances.  The present batch of cases relates to G.O.M.  No.14,  Labour
Employment & Training (Ser. IV) Department, dated 26th  November,  1994,  as
amended by G.O.M. No.22 dated 9th May,  1996.   These  two  G.O.Ms.  provide
that while  Senior  Assistants  and  Senior  Stenographers  working  in  the
Subordinate Offices of the Labour Department constitute the feeding  channel
under Rule 3 of Andhra Pradesh  Labour  Subordinate  Service  Rules,  Senior
Assistants and Senior Stenographers working in the Head Offices  shall  also
be eligible for appointment by transfer to  the  post  of  Assistant  Labour
Officer. Aggrieved by the G.O.Ms.  some  of  the  employees  approached  the
Andhra Pradesh  Administrative  Tribunal  for  redressal.   Their  grievance
primarily was that since the post of Assistant Labour  Officer  is  a  zonal
post, employees working in the respective zones alone were  entitled  to  be
included in  the  feeding  channel.   Inclusion  of  other  categories  from
outside the zone in  the  feeding  channel  for  purposes  of  promotion  or
appointment by transfer was offensive to paras 3(3) and 5(1) of  the  Andhra
Pradesh Public Employment (Organisation of Local  Cards  and  Regulation  of
Direct Recruitment) Order, 1975 referred to hereinabove as the  Presidential
Order against the employees. These petitions  were  partly  allowed  by  the
Tribunal in terms of its order dated  7th  March,  2003  and  G.O.M.  No.14,
dated 26th November, 1994, as amended by G.O.M. No.22 dated  9th  May,  1996
struck down as unconstitutional to the extent the same  provided  a  channel
for Senior Assistant and Senior Stenographer in Andhra  Pradesh  Ministerial
Service working in the Head  Offices  of  Labour  Department  and  those  in
Factories and Boiler Departments besides those in  the  Subordinate  Offices
in the  said  Departments  for  appointment  by  transfer  to  the  post  of
Assistant Labour Officer. The Tribunal also struck down  related  provisions
in the impugned G.O.Ms.  stipulating  quota  and  rotation  etc.  for  these
categories as being in violation of the Presidential Order with a  direction
that the respondents shall not give effect to the said  provisions.   Having
said that the Tribunal directed that  the  striking  down  of  the  impugned
G.O.Ms. would only be prospective and that any action  taken  in  compliance
with the said Rules till 7th November, 2001 shall not be disturbed  nor  any
employee promoted on the basis of the legal position that prevailed  earlier
to the decision of this Court in V. Jagannadha Rao’s case (supra)  reverted.


6.    The aggrieved  employees,  who  had  approached  the  Tribunal  having
succeeded but only in part, filed Writ Petitions No.6163 and  6068  of  2004
whereby they challenged the judgment of the Tribunal to the extent it  saved
the promotions already made on  the  basis  of  the  impugned  G.O.Ms.  Writ
Petition No.16890 of 2006 was also filed against the very same  judgment  by
some of the employees who felt aggrieved by the view taken by  the  Tribunal
that the impugned G.O.Ms. were in violation of the Presidential Order  hence
unconstitutional. A Division Bench of the High Court of Andhra Pradesh  has,
in terms of the judgment and order under challenge before us,  allowed  Writ
Petitions No.6123 and 6068 of 2004 but dismissed Writ Petition  No.16890  of
2006 relying upon certain decisions rendered by this Court.  The High  Court
has taken the view that the doctrine  of  prospective  overruling  could  be
invoked only by the Apex Court and not by other Court including High  Courts
exercising powers under Article 226 of the Constitution. The net  effect  of
the view taken by the High Court,  therefore,  is  that  not  only  are  the
impugned G.O.M. held to be unconstitutional, but any action  taken  pursuant
thereto is also declared to be unconstitutional.



7.    The appellants in these appeals are employees who were not arrayed  as
parties to the writ petition filed before the High Court. Feeling  aggrieved
of the judgment and order passed by the High Court they  filed  Review  WPMP
No.3576 of 2010, inter alia, contending that the judgment under  review  had
been passed without impleading employees like the appellants as  parties  to
the case even though they  were  bound  to  be  adversely  affected  by  any
modification that the High Court may have made. It was  contended  that  the
review petitioners-appellants before us  in  these  appeals  were  necessary
parties not only to the O.As filed before the State Administrative  Tribunal
but even to the writ petitions filed before the High Court and that  in  the
absence of necessary parties to the proceedings  the  petitions  challenging
the Rules were  liable  to  be  dismissed.  That  contention  was,  however,
rejected by the High Court on the  ground  that  the  order  passed  by  the
Tribunal ought to have been challenged in a separate  and  independent  writ
petition by anyone  aggrieved  by  the  same.  The  review  petitions  were,
accordingly, dismissed and the prayer for grant of leave to appeal  to  this
Court rejected. The present appeals have been filed  by  the  appellants  in
the above backdrop to assail  the  correctness  of  the  two  judgments  and
orders passed by the High Court.


8.    We have heard learned counsel for the parties at length. The  doctrine
of prospective overruling has its origin in American jurisprudence.  It  was
first invoked in this country in C. Golak Nath & Ors. v. State of  Punjab  &
Anr. AIR 1967 SC 1643, with  this  Court  proceeding  rather  cautiously  in
applying the doctrine, was conscious of the fact that the doctrine  had  its
origin in another country and had been invoked in  different  circumstances.
The Court sounded a note of caution in the application of  the  doctrine  to
Indian conditions as is evident from  the  following  passage  appearing  in
Golak Nath’s case (supra) where this Court laid down the  parameters  within
which the power could be exercised.  This Court said:

           “As this Court for the first time has been called upon to  apply
           the doctrine evolved in  a  different  country  under  different
           circumstances, we would like to move warily in the beginning. We
           would lay down the following propositions: (1) The  doctrine  of
           prospective overruling can be invoked only  in  matters  arising
           under our Constitution; (2)  it  can  be  applied  only  by  the
           highest court of the country, i.e., the Supreme Court as it  has
           the constitutional jurisdiction to declare law  binding  on  all
           the courts in India; (3) the scope of the retroactive  operation
           of the law declared by the Supreme Court superseding its earlier
           decisions is left to its discretion to be moulded in  accordance
           with the justice of the cause or matter before it.”


9.    It is interesting to note that the doctrine has not remained  confined
to overruling of  earlier  judicial  decision  on  the  same  issue  as  was
understood in Golak Nath’s case (supra). In several  later  decisions,  this
Court has invoked the doctrine in different situations  including  in  cases
where an issue has been examined and determined for  the  first  time.   For
instance in India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. (1990)  1
SCC 12, this Court not only held that the levy of the cess was  ultra  vires
the power of State legislature brought  about  by  an  amendment  to  Madras
Village Panchayat Amendment Act, 1964  but  also  directed  that  the  State
would not be liable for any refund of the amount  of  that  cess  which  has
been paid or already collected.  In Orissa Cement Ltd. v. State of Orissa  &
Ors. 1991 Suppl. (1) SCC 430,  this  Court  drew  a  distinction  between  a
declaration regarding the invalidity of a provision  and  the  determination
of the relief that should be granted in  consequence  thereof.   This  Court
held that it was open to the Court to grant, mould or  restrict  the  relief
in a manner most appropriate to the situation before it in such a way as  to
advance the interest of justice.


10.   Reference may also be made to the decision of this Court in  Union  of
India & Ors. v. Mohd. Ramzan Khan (1991) 1 SCC 588 where  non-furnishing  of
a copy of the enquiry report was taken as violative  of  the  principles  of
natural justice and any disciplinary action based on  any  such  report  was
held liable to be set aside.  The declaration of law as  to  the  effect  of
non supply of a copy of the report was, however, made  prospective  so  that
no punishment already imposed upon a delinquent employee would  be  open  to
challenge on that account.



11.   In Ashok Kumar Gupta & Anr. V. State of U.P. & Ors. (1997) 5 SCC  201,
a three Judge Bench of this Court  held  that  although  Golak  Nath’s  case
regarding unamendabiltiy of fundamental rights  under  Article  368  of  the
Constitution had been overruled  in  Kesavananda  Bharati  Sripadagalvaru  &
Ors. v. State of Kerala (1973) 4 SCC 225 yet  the  doctrine  of  prospective
overruling was upheld and followed in several later decisions.   This  Court
further held that the  Constitution  does  not  expressly  or  by  necessary
implication provide against the doctrine of  prospective  overruling.  As  a
matter of fact Articles 32(4) and 142 are designed with words  of  width  to
enable the Supreme Court to declare the law and to give such  directions  or
pass such orders as are  necessary  to  do  complete  justice.   This  Court
observed:

           “54.…….So, there is no acceptable reason as to why the Court  in
           dealing with the law in supersession of the law declared  by  it
           earlier could not restrict the operation of law, as declared, to
           the future and  save  the  transactions,  whether  statutory  or
           otherwise, that were effected on the basis of the  earlier  law.
           This Court is, therefore, not impotent to adjust  the  competing
           rights of parties by  prospective  overruling  of  the  previous
           decision in  Rangachari  ratio.  The  decision  in  Mandal  case
           postponing the operation for five years from  the  date  of  the
           judgment is an instance of, and an extension to the principle of
           prospective overruling following the principle evolved in  Golak
           Nath case”.




 12.  Dealing with the nature of the power exercised by  the  Supreme  Court
under Article 142, this Court held that the  expression  ‘complete  justice’
are words meant to meet myriad situations  created  by  human  ingenuity  or
because of the operation of Statute or law declared under Articles  32,  136
or 141 of the Constitution.  This Court observed:

           “60….. The power  under  Article  142  is  a  constituent  power
           transcendental to statutory prohibition. Before exercise of  the
           power  under  Article  142(2),  the  Court   would   take   that
           prohibition (sic provision)  into  consideration  before  taking
           steps under Article 142(2) and we  find  no  limiting  words  to
           mould the relief or when this Court takes  appropriate  decision
           to mete out justice or to remove injustice. The phrase “complete
           justice” engrafted in  Article  142(1)  is  the  word  of  width
           couched with elasticity to meet  myriad  situations  created  by
           human ingenuity or cause or result of operation of  statute  law
           or  law  declared  under  Articles  32,  136  and  141  of   the
           Constitution  and  cannot  be  cribbed  or  cabined  within  any
           limitations or phraseology. Each case needs examination  in  the
           light of its backdrop and the indelible effect of the  decision.
           In the ultimate analysis, it is for this Court to  exercise  its
           power to do complete justice or prevent injustice  arising  from
           the exigencies of the cause or matter before it. The question of
           lack of jurisdiction or nullity of the order of this Court  does
           not arise. As held earlier, the power under  Article  142  is  a
           constituent power within the jurisdiction of this Court. So, the
           question of a law being void ab initio or  nullity  or  voidable
           does not arise.”



13.   In M/s Somaiya Organics (India) Ltd. etc. etc.  v.  State  of  U.P.  &
Anr. 2001 (5) SCC 519, this Court held  that  the  doctrine  of  prospective
overruling was in essence a recognition of  the  principle  that  the  Court
moulds the relief claimed to meet the justice of the case and that the  Apex
Court in this country expressly enjoys that power under Article 142  of  the
Constitution which allows this Court to pass such decree or make such  order
as is necessary for doing complete justice in any  case  or  matter  pending
before this Court.  This Court observed:

           “In the ultimate analysis, prospective overruling,  despite  the
           terminology, is only a recognition of  the  principle  that  the
           court moulds the reliefs claimed to meet the justice of the case
           - justice not in its logical but in its equitable sense. As  far
           as this country is  concerned,  the  power  has  been  expressly
           conferred by Article 142 of the Constitution which  allows  this
           Court to “pass such decree or make such order  as  is  necessary
           for doing complete justice in any cause or matter pending before
           it”. In exercise of this power, this Court has often denied  the
           relief claimed despite holding in the claimants’ favour in order
           to do “complete justice”.




14.   The ‘Doctrine of Prospective Overruling’ was, observed by  this  Court
as a rule of judicial  craftsmanship  laced  with  pragmatism  and  judicial
statesmanship as a useful tool to  bring  about  smooth  transition  of  the
operation of law without unduly affecting  the  rights  of  the  people  who
acted upon the  law  that  operated  prior  to  the  date  of  the  judgment
overruling the previous law.


15.   In Kailash Chand Sharma v. State of Rajasthan &  Ors.  (2002)   6  SCC
562, the constitutional validity of rules providing for weightage  based  on
domicile of the candidates was assailed before the High Court of  Rajasthan.
The High Court while reversing its earlier decisions,  upholding  the  grant
of such weightage declared the rule to be unconstitutional.   In  an  appeal
before this Court one of the  questions  that  fell  for  consideration  was
whether the selection made on the basis of the impugned rule could be  saved
by invoking the doctrine of prospective overruling.  Answering the  question
in the affirmative, this Court cited two distinct reasons for  invoking  the
doctrine.  Firstly, it was pointed out that the law on the subject was in  a
state of flux inasmuch as the previous  decisions  of  the  High  Court  had
approved the award of such weightage.   This  Court  observed  that  on  the
date, the selection process started and by the time it  was  completed,  the
law as declared in the earlier decisions of the High Court held  the  field.
Reversal of  that  legal  position  on  account  of  a  subsequent  decision
overruling the earlier decisions was considered to be  a  sufficient  reason
for complying with the  doctrine  of  prospective  overruling  to  save  the
selection process and the appointments made on the basis  thereof.  Reliance
in support was placed upon the decision of this Court in Managing  Director,
ECIL Hyderabad v. B. Karunakar (1993) 4  SCC  727.    Secondly,  this  Court
held that candidates who stood appointed  on  the  basis  of  the  selection
process had not been  impleaded  as  parties  to  the  writ  petitions  that
challenged the rules providing for  marks  based  on  the  domicile  of  the
candidates.  That being so a judgment treading a new path should not as  far
as result in detriment to the candidates already  appointed.  The  following
observations made by this Court are apposite in this regard:

           “By the time the selection process was initiated and  completed,
           these decisions were holding the field. However, when  the  writ
           petitions filed by Kailash Chand and others came up for  hearing
           before a learned Single Judge, the correctness of the view taken
           in those two decisions was doubted and he directed  the  matters
           to be placed before the learned Chief Justice for constituting a
           Full Bench. By the time this order was passed on  19-7-1999,  we
           are informed that the select lists of candidates were  published
           in many districts. On account of the stay granted for  a  period
           of three months and for other valid reasons, further lists  were
           not published. It should be noted that in a case where  the  law
           on the subject  was  in  a  state  of  flux,  the  principle  of
           prospective overruling was invoked by this Court.  The  decision
           in Managing Director, ECIL v. B. Karunakar15 is illustrative  of
           this viewpoint.  In  the  present  case,  the  legality  of  the
           selection process with the addition of  bonus  marks  could  not
           have been seriously doubted either by the appointing authorities
           or by the candidates in view of the judicial precedents. A cloud
           was cast on the said decisions only after the selection  process
           was completed and the results  were  declared  or  about  to  be
           declared. It is, therefore, a fit case to apply the judgment  of
           the  Full   Bench   rendered   subsequent   to   the   selection
           prospectively. One more aspect which is to be taken into account
           is  that  in  almost  all  the  writ  petitions  the  candidates
           appointed, not to speak of the  candidates  selected,  were  not
           made parties before the High Court.  Maybe,  the  laborious  and
           long-drawn exercise of serving notices on each and  every  party
           likely to be affected need not have been gone through. At least,
           a general notice by newspaper publication could have been sought
           for or in the alternative, at least a few of the last candidates
           selected/appointed could have been put on notice; but, that  was
           not done in almost all the cases. That is the added  reason  why
           the judgment treading a new path should not as far  as  possible
           result in detriment to the candidates already appointed.”


16.   There was some debate at the Bar whether the  High  Court  could  have
invoked  the  doctrine  of  prospective  overruling  even   if   the   State
Administrative Tribunal was incompetent to do so. It was  contended  by  the
counsel appearing for the respondents that  the  predominant  legal  opinion
emerging from the pronouncements of this Court limited  the  application  of
the doctrine of prospective overruling only by the  Supreme  Court.  Neither
the Tribunal nor the High Court could, according  to  the  learned  counsel,
have invoked the doctrine assuming that  there  was  any  justification  for
such invocation in the facts and circumstances of the case.

17.   Mr. Jayant Bhushan, learned senior counsel appearing on behalf of  the
respondent, on the other hand, argued and, in our opinion, rightly  so  that
it was unnecessary for this Court  to  go  into  the  question  whether  the
doctrine of prospective overruling was available even  to  the  High  Court.
He urged that there could be no manner of doubt that even if the High  Court
was not competent to invoke the doctrine, nothing prevented this Court  from
doing so having regard to the fact that those promoted  under  the  impugned
rules had held their respective positions for a considerable length of  time
making reversion  to  their  parent  zone/cadre  not  only  administratively
difficult but unreasonably harsh and unfair.  It was argued  by  Mr.  Jayant
Bhushan that the law as to  the  validity  of  the  rules  impugned  in  the
present case was in a state of flux till  the  judgment  of  this  Court  in
Jagannadha Rao’s case (supra) finally declared that provisions like the  one
made by the rules in the instant  case  are  constitutionally  impermissible
being in violation of the Presidential Order.  That apart no  promotion  had
been made after the 7th November, 2001, the date when the judgment  of  this
Court in  Jagannadha  Rao’s  case  (supra)  was  pronounced.   Such  of  the
promotions as were already made could therefore be saved to  balance  equity
and prevent miscarriage of justice vis-à-vis those who had on the  basis  of
a rule considered valid during the relevant  period  been  promoted  against
posts outside their zone/cadre.




18.   In Jagannadha Rao’s case (supra), the  petitions  were  filed  in  the
year  1987.   The  State  Administrative  Tribunal  had  declared  the  rule
providing for inter-department transfer by promotion to be bad by its  order
dated 17th April, 1995.  The legal position eventually came  to  be  settled
by the decision of this Court in  the  case  on  7th  November,  2001.   The
petitions in the present case were filed  before  the  State  Administrative
Tribunal in the year 1997.   The  Tribunal  had  on  the  authority  of  the
judgment aforementioned struck down the rules  providing  for  ex-cadre/zone
promotions by its order dated 27th March, 2003,  but  saved  the  promotions
already made.  The judgment of the High Court of Andhra Pradesh  challenging
the order passed by the Tribunal to  the  extent  it  saved  the  promotions
earlier made was pronounced on 9th March, 2007.  The review  petition  filed
by those affected  by  the  striking  down  to  the  rules  and  facing  the
prospects of reversion were dismissed by the High  Court  on  3rd  November,
2010. Promotions made before the pronouncement of the  order  in  Jagannadha
Rao’s case (supra) i.e. before 7th November, 2001 have, thus, continued  for
nearly ten years till the review  petition  filed  by  the  petitioners  was
dismissed and the matter brought up before  this  Court.   We  had  in  that
backdrop  asked  learned  counsel   for   the   respondent-State   to   take
instructions whether the State Government was ready to create  supernumerary
posts to accommodate  the  petitioners  and  prevent  their  reversion.   An
additional affidavit filed by the  Commissioner  of  Labour,  Government  of
Andhra Pradesh, however, does not appear to be supportive of what  could  be
a solution to the stalemate  arising  out  of  the  impugned  judgment.  The
affidavit states that there is no need  to  create  supernumerary  posts  to
accommodate the petitioners in their original posts i.e.  Senior  Assistants
and senior stenographers. It also declines creation of  supernumerary  posts
in the Directorate for the petitioners who were working as Assistant  Labour
Officers, Assistant Commissioners of  Labour  and  Deputy  Commissioners  of
Labour. The affidavit states that the petitioners while  working  as  Senior
Assistants and senior stenographers had opted  to  go  as  Assistant  Labour
Officers outside the regular line on executive posts  where  the  incumbents
enforce the labour laws.  The affidavit suggests as though  the  petitioners
had taken a calculated risk in  going  out  of  their  cadres  by  accepting
higher positions as Assistant Labour Officers in another zone.   Suffice  it
to say that the  respondent-State  has  not  expressed  its  willingness  to
create supernumerary  positions.  We  have,  therefore,  no  option  but  to
examine the question of invoking the doctrine of prospective  overruling  on
the merits of the case having regard  to  the  facts  and  circumstances  in
which the question arises. While doing so we must  at  the  threshold  point
out that the respondents  are  not  correct  in  suggesting  as  though  the
petitioners had taken any  deliberate  or  calculated  risk  by  opting  for
promotion outside their cadres.  The  respondents  have  while  making  that
assertion ignored the fact that promotions were ordered  by  the  State  and
not snatched by the petitioners. That apart on the date the promotions  were
made there was no element of risk nor were the promotions  made  subject  to
the determination of any legal controversy as  to  the  entitlement  of  the
incumbents to such promotion. Not only that, the  incumbents  who  had  been
sent out on promotion as Assistant Labour  Officers  had  subsequently  been
promoted as Assistant Labour Commissioners or Deputy  Labour  Commissioners.
Such being the position reverting these officers at this  distant  point  of
time, to the posts of Senior Stenographers in their parent  cadre  does  not
appear to us to be either just,  fair  or  equitable  especially  when  upon
reversion the  State  does  not  propose  to  promote  them  to  the  higher
positions within their zone/cadre because such higher posts are occupied  by
other officers, most if not all of whom are junior to  the  petitioners  and
who may have to be reverted to make room for the petitioners to  hold  those
higher posts.  Reversion  of  the  petitioners  to  their  parent  cadre  is
therefore bound to have a cascading effect, prejudicing even those  who  are
not parties before us.   The fact that the petitioners were not  arrayed  as
parties before the Tribunal or before the High Court also  brings  the  fact
situation of the present  case  closer  to  that  in  Kailash  Chand’s  case
(supra).  The law in the present  case  was,  as  in  Kailash  Chand’s  case
(supra), in a state of flux.  Such being the position, we see no reason  why
the doctrine of prospective overruling cannot  be  invoked  in  the  instant
case.   Just  because,  this  Court  had  not  addressed  that  question  in
Jagannadha Rao’s case (supra) is also no reason for us to refuse  to  do  so
in the present case. That apart, Jagannadha Rao’s case (supra)  was  dealing
with a different set of norms comprising  GoMs  No.14  and  22  referred  to
earlier. While the basic question whether such GoMs permitting promotion  by
transfer from one department to the cadre or zone to another may  have  been
the same, it cannot be denied that the  rules  with  which  this  Court  was
concerned in Jagannadha Rao’s case (supra) were different  from  those  with
which we are dealing in the present case.  We feel that on the  question  of
application  of  doctrine  of  prospective  overruling,  the   judgment   in
Jagannadha Rao’s case (supra) will not  stand  as  an  impediment  for  this
Court.

19.   In the result, we allow these appeals, set aside the orders passed  by
the High Court and hold that while GoMs  No.14  and  22  have  been  rightly
declared  to  be  ultra  vires  of  the  Presidential  Order  by  the  State
Administrative  Tribunal,  the  said  declaration  shall  not   affect   the
promotions and appointments made on the basis of the said GoMs prior to  7th
November, 2001, the date when Jagannadha Rao’s was decided  by  this  Court.
Parties are left to bear their own costs.

Contempt Petitions (C) No.445-449 of 2013

      In the light of the above order passed by us,  we  see  no  reason  to
continue with these proceedings which are hereby  closed  and  the  contempt
petitions dismissed.



                                                         …………………….……….…..…J.
                                                               (T.S. THAKUR)



                                                        ………….…………………..…..…J.
                                                               (C. NAGAPPAN)
New Delhi
April 29, 2014

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