M.A. MURTHY

STATE OF KARNATAKA AND ORS.

SEPTEMBER 2, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Service Law : Qualification acquired after prescribed date-Effect of-Advertisement of posts-Appellant and respondents 4 & 5 applying for the same-Respondents 4 & 5 permitted to appear for written test despite not being qualified on the last date of submission of application- Respondents 4 & 5 being eligible on the date of interview-Selection of C respondent 4 and respondent 5 put in waiting list-Petition before High Court challenging the same-Dismissal of-High Court placing reliance on a previous Supreme Court judgment holding that the said judgment held the field on the date of selection and not applying the subsequent review judgment overruling the previous one-Held, High Court was in error in D holding that the judgment which operated on the date of selection was operative and not the subsequent review judgment-Candidates who acquired qualification subsequently were ineligible for appointment being not qualified on the last date of submission of application-However their appointments not set aside on the facts of the case, but the person eligible E on the prescribed date though appointed subsequently shall rank senior to them.

Doctrine of Prospective overruling-Explained-There shall be no prospective overruling unless it is so indicated in the particular decision.

Applications were invited by way of advertisement for recruitment to two posts prescribing the age and the requisite qualifications therein.

Appellant and respondents 4 and 5 applied in response thereto. Though respondents 4 and 5 were not qualified on the last date of submission

of application, they were permitted to appear for written test. However, G on the date of interview they were eligible. While respondent no. 4 was selected, respondent no. 5 was placed in the waiting list. Against the same, appellant preferred a writ petition before High Court which was dismissed. High Court relied upon judgment of Supreme Court wherein it was held that if the applicant had acquired qualification by the time of interview, that is sufficient.

H 327

A An appeal was preferred before Division Bench of High Court, which was again dismissed. A review application was filed before High Court inter alia on the ground that the Supreme Court judgment relied upon by High Court was overruled subsequently. However, the review application was dismissed on the ground that on the date of selection B of respondent no. 4, the first judgment of Supreme Court held the field and therefore the selection of the respondent no. 4 could not be questioned. Hence the present appeals.

Allowing the appeals, the Court

C HELD : 1.1. The High Court was in error in holding that the judgment which operated on the date of selection was operative and not the review judgment overruling the said judgment. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment D rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. (332-B-D]"

Ashok Kumar Sharma and Anr. v. Chander Shekhar and Anr., (19931 Supp. 2 SCC 611 and Ashok Kumar Sharma and Ors. v. Chander Shekhar E and Anr., (1997) 4 sec 18, explained and relied upon.

1.2. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court F is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding Jaw declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent G multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest.

The law as declared applies to future cases. (331-E-H)

H J.C. Golak Nath and Ors. v. State of Punjab and Anr., AIR (1967)

SC 1643; Managing Director, ECJL, Hyderabad and Ors. v. B. Karunakar A and Ors., [1993) 4 SCC 727; Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 and Baburam v. C.C. Jacob, (1999) 3 SCC 362, referred to.

1.3. It is for this Court to indicate as to whether the decision in

qustion will operate prospectively. In other words, there shall be no B prospective over-ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. [331-H, 332-A)

2. The appellant shall rank senior to respondent No. 4 by treating C his appointment to be with effect from the date of selection of respondent no. 4. This shall be only for the purpose of fixing the seniority and continuity of service and not for entitlement to any salary or other financial benefits. As respondent No. 5 was only in the waiting list, and it is stated that he has been subsequently appointed, he will D also rank below the appellant and respondent no. 4. [332-E, F)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6913- 6914 of 2003.

From the Judgment and Order dated 16.1.2002 and 28.1.2002 of the E Kamataka High Court in W.A. No. 479/78 and R.P. No. 53/2002 in W.A.

No. 479 of 1998.

R. Mohan, Kashi Vishweshar and G. Ramakrishna Prasad for the Appellant.

Mrs. Lalita Kaushik, Naresh Kaushik, Ms. Shilpa Chohan, Sanjay R.

Hegde, E.C. Vidya Sagar and Dr. Sushi! Balwanda for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. : Leave granted.

Both these appeals have common factual matrix, and legal panorama and, therefore, are dealt with by this common judgment.

Factual backdrop in a nutshell is as follows:

A Karnataka State Financial Corporation (hereinafter referred to as the 'Corporation') invited applications for recruitment to two posts of Manager (Finance and Accounts) by advertisement dated 18. 7.1995. The advertisement inviting applications for the two posts of Manager (Finance and Accounts), one post for general and one post of scheduled caste, B prescribed the requisite <!ducational qualification. It was stipulated in the advertisement that the age and other qualifications were to be reckoned as of 31.7.1995. It was also indicated that the applications in the prescribed format with complete information should reach the prescribed authority before 29th July, 1995 and incomplete applications and applications C without necessary enclosures were to be rejected.

Appellant and respondents 4 and 5 were applicants in response to the advertisement. Though respondent No.4 was not qualified on the last date of submission of application, he was permitted to attend and appear for the written test. However, on the date of interview he was eligible. The written D test was conducted on 1.10.1995 and the viva vice was conducted on

25.11.1995. Similar was stated to be the position vis-a-vis respondent No.5.

When respondent No.4 was selected, appellant challenged his selection to be not in accordance with law. It is to be noted that waiting list is prepared and respondent No.5 was placed in the waiting list.

E A writ application was filed before the Karnataka High Court at Bangalore challenging the selection of respondent N o.4 and placing respondent No.5 in the waiting list. Though, learned Single Judge of the High Court held that respondent No.4 was ineligible as on the date of employment, he held that in public interest the selection was to be F maintained.

A reference was made to the decision of this Court in Ashok Kumar Sharma and Anr. V. Chander Shekher and Anr., [1993] Supp. 2 sec 611 (described hereinafter as Ashok Kumar Sharma - case No.I) where it was G held that ifthe applicant had acquired qualification by the time of interview that is sufficient.

A writ appeal was filed before the Division Bench. The view of the learned Single Judge was affirmed by the Division Bench. A review application was filed inter a/ia taking the stand that the view in Ashok H Kumar Sharma 's case No.I has been later on over-ruled in Ashok Kumar

Sharma and Ors. v Chander Shekhar and Anr., [1997] 4 sec 18, A (described hereinafter as Ashok Kumar Sharma - case No.II). Therefore, a review of the judgment of the Division Bench was necessary. The High Court by the impugned judgment held that though admittedly on 18.7 .1995 i.e. on the date of advertisement the respondent No.4 was not qualified to make an application, yet few dates and facts are relevant. He had appeared B for the M.B.A. examination in April 1995 and the results were declared on 4.9.1995. The written examination was held on I.I 0.1995 and viva voce was conducted on 25.11.1995. At least by the time the written examination and the viva voce tests were held, he had acquired the requisite qualification.

Judgment in Ashok Kumar Sharma 's case No. I was delivered on 18.12.1992 and decision in the review petition in the said case was rendered on C 10.3.1997. The appointment of respondent No.4 was made when the earlier decision of Ashok Kumar Sharma 's case No.I held the field. It was, therefore, held that on the date of selection, the first judgment held the field; and, therefore, by applying logic of that decision the selection of respondent No.4 cannot be questioned.

Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle oflaw is applicable to all cases irrespective its stage ofpendency E because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr., AIR (1967) SC 1643. In Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors.,·· F [1993] 4 SCC 727, the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable G litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of

UP., [1997] 5 SCC 201, Baburam v. CC Jacob, [1999] 3 SCC 362. It is for this Court to indicate as to whether the decision in question will H

A operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision . .It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and consistency B in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma 's case No.II. All the more so when the subsequent judgment is by C way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.

D That brings us to the ticklish question as to how the reliefs can be moulded. It is not in dispute that subsequently the appellant has also been appointed on 9.11.2002. Though it was permissible for this case to set aside the appointments of respondent no.4 and respondent no.5, on the peculiar E facts of this case, we consider it to be not called for and the rights of parties instead could be adjusted by working out equities, in the interests of substantial justice by adopting a different course. The appellant shall rank senior to respondent No.4 by treating his appointment to be with effect from the date of selection of respondent No.4. This shall be only for the F purpose of fixing the seniority and continuity of service only not for entitlement to any salary or other financial benefits. As respondent No.5 was only in the waiting list, and it is stated that he has been subsequently appointed, he will also rank below the appellant and respondent No.4. The appeals are accordingly allowed. There shall be no order as to costs.

M.P.

Appeals allowed.