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
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
