THE STATE OF RAJASTHAN versus NEMI CHAND MAHELA AND OTHERS on 30 April 2019

[2019] 18 S.C.R. 995

THE STATE OF RAJASTHAN

v.

NEMI CHAND MAHELA AND OTHERS

(Civil Appeal No. 3873 of 2010)

APRIL 30, 2019

[L. NAGESWARA RAO AND SANJIV KHANNA, JJ.]

Precedents – Law of precedents – “Scarecrow” of a litigation– Conflicting decisions that fail to respect and follow the precedentset by Supreme Court cause uncertainty and chaos – On facts,conflicting opinions in different decisions of High Court of Rajasthancontrary to the true and correct interpretation of the principle ofprospective overruling given in decisions of the Supreme Court inKailash Chand Sharma v. State of Rajasthan and thereafter inManmohan Sharma v. State of Rajasthan and Others case has causedthis annoying and festering litigation to prolong since 1999, that incourse of time has become so complicated that no man knows whatit means.

Res judicata – Doctrine of res judicata and law of precedent –Difference between – Held: Res judicata operates in personam i.e.the matter in issue between the same parties in the former litigation,while law of precedent operates in rem i.e. the law once settled isbinding on all under the jurisdiction of the High Court and theSupreme Court – Res judicata binds the parties to the proceedingsfor the reason that there should be an end to the litigation andtherefore, subsequent proceeding inter-se parties to the litigation isbarred – Therefore, law of res judicata concerns the same matter,while law of precedent concerns application of law in a similarissue – In res judicata, the correctness of the decision is normallyimmaterial and it does not matter whether the previous decisionwas right or wrong, unless the erroneous determination relates tothe jurisdictional matter of that body – Precedents – Doctrines /Principles.

Constitution of India, 1950 – Art. 141 – Binding precedent –Appointment – To post of Primary School teachers in Zila Parishadsof various districts of the State of Rajasthan – Award of bonusmarks on basis of domicile to candidates seeking such appointments

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A– Challenged – Declared unconstitutional by Full Bench ofRajasthan High Court by decision dated 18-11-1999 in writproceedings – Supreme Court affirmed the decision in Kailash ChandSharma case, however, by applying the doctrine of prospectiveoverruling, it protected appointments made on or before 17-11-1999and confined relief only to those writ petitioners who had movedBthe High Court before 18-11-1999 – However, in several subsequentdecisions of Rajasthan High Court, reliefs were granted to writpetitioners who had not filed writ petition before the cut-off date of18-11-1999 fixed in Kailash Chand Sharma’s case – Some of thesedecisions were made even after the decision of Manmohan Sharma’sCcase on 01-04-2014 wherein the Supreme Court declined to enlargethe scope of directions issued in Kailash Chand Sharma’s case –Held: Authoritative pronouncements of the Supreme Court and HighCourt must be respected and followed as any departure therefromwould cause uncertainty, unnecessary and speculative litigation –

Directions given by Supreme Court in Kailash Chand Sharma’s caseDwere a binding precedent u/Art.141 which was affirmed andelucidated by Supreme Court in Manmohan Sharma’s case –Consequently, candidates who had not filed writ petitions on orbefore 17-11-1999 would not be entitled to appointment uponrecalculation of marks by exclusion of bonus marks from the marksEof the selected candidates – Such direction however would not applyto individual cases where decisions of High Court though contraryto the ratio in Kailash Chand Sharma case had attained finality andthus would operate as res judicata – Service Law – Appointment.

Doctrines / Principles – Doctrine of prospective overruling –FInvocation of – Held: Doctrine of prospective overruling can beinvoked for balancing of competing claims – Supreme Court inKailash Chand Sharma v. State of Rajasthan case while affirming thefindings of a Full Bench decision of Rajasthan High Court dated18-11-1999 held that award of bonus marks on basis of domicile tocandidates seeking appointment (as primary school teachers in ZilaGParishads in the State of Rajasthan) amounted to impermissiblediscrimination – However, keeping in view the factual matrix of thecase, the Supreme Court felt that there was a need to balancecompeting claims and thus partially applied the doctrine ofprospective overruling whereby notwithstanding the ratio,Happointments made before 18-11-1999 were left untouched and THE STATE OF RAJASTHAN v. NEMI CHAND MAHELA ANDOTHERS

saved – Ratio and direction invoking doctrine of prospectiveoverruling, applied in Kailash Chand Sharma’s case was affirmedand elucidated by Supreme Court in Manmohan Sharma’s case –Accordingly, all pending matters before High Court, to be decidedon basis of decisions in Kailash Chandra Sharma’s and ManmohanSharma’s cases and the instant cases, subject to condonation ofdelay, when justified and satisfactorily explained – Service Law –Appointment.

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Kailash Chand Sharma v. State of Rajasthan and Ors.(2002) 6 SCC 562 : [2002] 1 Suppl. SCR 317 andManmohan Sharma v. State of Rajasthan and Ors.(2014) 5 SCC 782 – affirmed.

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Deepak Kumar Suthar and Another v. State of Rajasthanand Ors. (1999) 2 Rajasthan Law Reporter 692 –distinguished.

Naval Kishore case (decided by Rajasthan High Courton 30-07-2012) - held, impliedly overruled.

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Makhija Construction and Engineering Private Ltd v.Indore Development Authority and Others (2005) 6 SCC304; Dwarikesh Sugar Industries Ltd. v. Prem HeavyEngineering Works (P) Ltd. (1997) 6 SCC 450 : [1997]1 Suppl. SCR 184; Bihar State Government SecondarySchool Teachers Association and Ors. v. BiharEducation Service Association and Others (2012) 13SCC 33 : [2012] 11 SCR 50 – relied on.

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Case Law Reference

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 3873of 2010.

From the Judgment and Order dated 24.05.2007 of the HighCourt of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal(Writs) No. 679/2007 in S.B. Civil Writ Petition No. 2519/2003.

BWITH

Civil Appeal No. 4491/2019

Dr. Manish Singhvi, Sr. Adv. (AAG), Ms. Priya Hingorani, Sr.Adv., Satyendra Kumar, Ms. Shailja Nanda Mishra, Ms. Ruchi Kohli,CK. L. Janjani, Pankaj Kumar Singh, Yunus Malik, Anish Maheshwari,Ms. Chitra Chaudhary, Ms. Khushali, Prashant Chaudhary, Mukul Kumar,Jayant Bhatt, Ms. Jyoti Sharma and Ms. Ruchi Kohli, Advs. for theappearing parties.

The Judgment of the Court was delivered by DSANJIV KHANNA, J.

1. Leave granted in Special Leave Petition (Civil) No. 4562 of

2012.

2. Predicament of candidates consequent to conflicting opinionsin different decisions of the High Court on true and correct interpretationEof principle of prospective overruling as directed in Kailash ChandSharma vs. State of Rajasthan and Ors.[1] is the cause of this agonisingand festering litigation since 1999. This “scarecrow” of a litigation, touse the words of Charles Dickens, “in course of time, [has] become socomplicated that no man alive knows what it means.”F

3. Award of bonus marks to candidates seeking appointment tothe post of Primary School Teachers in Zila Parishad of various districtsin the State of Rajasthan during the year 1998-99 was struck down anddeclared unconstitutional by a Full Bench of the Rajasthan High Courtvide judgment dated November 18, 1999 in Kailash Chand Sharma v.GState of Rajasthan in W.P.(C) No. 3928 of 1998, for the reason thatany kind of weightage and advantage in public employment in a Stateservice is not permissible on the ground of place of birth, residence or onthe ground of being a resident of urban or rural area. The Full Bench inKailash Chand Sharma’s case (supra) had followed an earlier Full Bench judgment in Deepak Kumar Suthar and Another v. State ofRajasthan and Others[2] wherein similar stipulations for grant of bonusmarks in selection of Grade II and Grade III teachers in the state cadrewere struck down as unconstitutional. However, in Deepak KumarSuthar’s case (supra), no consequential and substantive relief was grantedto the writ petitioners therein as first, they did not have a chance ofselection on merits even if award of bonus marks to successful candidateswas disregarded and secondly, the candidates so selected had not beenimpleaded as parties. Accordingly, the Full Bench in Deepak KumarSuthar’s case (supra), in the concluding paragraph, had given thefollowing directions:

“44. Instead of sending the matter to the appropriate bench, wethink it proper to dispose of this petition with a direction that norelief can be granted to the petitioners as they could not succeedto get the place in the merit list even by getting 10 bonus marksbeing residents of urban area, for which they are certainly notentitled. More so, the petitioners have not impleaded any personfrom the select list, not even the last selected candidate. Thus, norelief can be granted to them in spite of the fact that theappointments made in conformity of the impugned Circular havenot been in consonance with law. However, we clarify that anyappointment made earlier shall not be affected by this judgmentand it would have prospective application.”

4. These directions in Deepak Kumar Suthar’s case (supra)were followed by the Full Bench in Kailash Chand Sharma’s case(supra) and the batch of writ petitions were disposed of.

5. After the decision of the Full Bench in Kailash ChandSharma’s case (supra), a large number of writ petitions including oneby Naval Kishore were filed before the Rajasthan High Court. Some ofthem, notwithstanding the operative directions given by the Full Benchin Kailash Chand Sharma’s case (supra), were disposed of with adirection to the authorities to prepare and draw up a fresh merit list ofcandidates appointed on or after October 21, 1999 without the bonusmarks. For convenience we would refer to these cases as NavalKishore’s case. Naval Kishore’s case (supra) was decided on 30[th] July,2002.

2 (1999) 2 Rajasthan Law Reporter 692

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2 (1999) 2 Rajasthan Law Reporter 692

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A6. The decision of the Full Bench in Kailash Chand Sharma’scase (supra) and some of the judgments directing preparation of freshmerit list without bonus marks (but not in all cases where such directionswere issued) became subject matter of challenge in Special LeavePetitions which were granted and decided vide the judgment reportedas Kailash Chand Sharma’s case (supra) referred to by us in paragraphB2 above. Affirming the findings of the Full Bench of the Rajasthan HighCourt, this Court concluded that award of bonus marks to residents ofdistricts and residents of rural area amounts to impermissiblediscrimination as there was no rational basis for such preferentialtreatment. Thereafter this Court, in paragraph 36 onwards, in KailashCChand Sharma’s case (supra) had elaborately and expressly consideredthe question of relief after noticing operative directions in Deepak KumarSuthar’s case (supra). In view of the factual matrix and for severalreasons recorded, this Court felt that there was a need to balancecompeting claims and accordingly doctrine of prospective overruling waspartially applied vide paragraphs 45 and 46 of this decision, which readDas under:

“45. One more point which needs mention. Some of the learnedcounsel argued that the unsuccessful applicant should not beallowed to challenge the selection process to the extent it goesagainst their interest, after having participated in the selection andEwaited for the result. It is contended that the discretionary reliefunder Article 226 should not be granted to such persons. Reliancehas been placed on the decision of this Court in Madan Lal v.State of J&K (1995) 3 SCC 486 and other cases in support ofthis argument. On the other hand, it is contended that in a case ofFchallenge to unconstitutional discrimination, the doctrine ofacquiescence, estoppel and the like does not apply and the writpetitioners cannot be expected to know the constitutionalimplications of the impugned circular well before the selections.We are not inclined to go into this question for the reason thatsuch a plea was not raised nor was any argument advanced beforeGthe High Court.

46. Having due regard to the rival contentions adverted to aboveand keeping in view the factual scenario and the need to balancethe competing claims in the light of acceptance of prospectiveoverruling in principle, we consider it just and proper to confine H

the relief only to the petitioners who moved the High Court and tomake appointments made on or after 18-11-1999 in any of thedistricts subject to the claims of the petitioners. Accordingly, wedirect:

“1. The claims of the writ petitioners should be consideredafresh in the light of this judgment vis-à-vis the candidatesappointed on or after 18-11-1999 or those in the select list who are yet to be appointed. On such consideration, if those writpetitioners are found to have superior merit in case the bonusmarks of 10% and/or 5% are excluded, they should be offeredappointments, if necessary, by displacing the candidatesappointed on or after 18-11-1999.

2. The appointments made upto 17-11-1999 need not bereopened and re-considered in the light of the law laid down inthis judgment.

3. Writ Petition No. 542/2000 filed in this Court under Article32 is hereby dismissed as it was filed nearly one year after thejudgment of the High Court and no explanation has beentendered for not approaching the High Court under Article 226at an earlier point of time.”

7. Thus, notwithstanding the ratio, appointments made beforeNovember 18, 1999 were left untouched and saved. The writ petitionerswho had moved the High Court before November 18, 1999 were entitledto be considered afresh vis-à-vis candidates appointed on or afterNovember 18, 1999 or with those in the select list without giving suchappointed/selected candidates benefit of the bonus marks which hadbeen declared to be unconstitutional. Only such writ petitioners, if foundto be higher in the order of merit than those appointed after November18, 1999 or on select list, were to be offered appointments, if necessary,by removing such appointed candidates. The date November 18, 1999selected by the Supreme Court was the date on which the Full Bench ofthe Rajasthan High Court had pronounced its judgment in Kailash ChandSharma’s case (supra). As noticed above, after the Full Bench decisionin Kailash Chand Sharma’s case (supra), a number of writ petitionshad been filed before the High Court in which directions for preparationof a fresh merit list without bonus marks, appointment in terms of thenew selection list, etc., had been issued. These directions, being contraryto the ratio and directions given by this Court in Kailash Chand A

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ASharma’s (supra), were therefore rendered inconsequential. To thisextent, decision in Naval Kishore case (supra) and other similar caseswere overruled/impliedly overruled.

8. In spite of the aforesaid enunciation and directions in KailashChand Sharma’s case (supra), it is apparent that in several cases,Bdirections similar to Naval Kishore’s case (supra) for re-computationof marks after excluding bonus marks were issued in favour of candidateswho had approached and invoked jurisdiction of the High Court afterNovember 17, 1999. Even contempt petitions were filed and directionswere issued notwithstanding the fact that the said writ petitioners/petitioners had not filed writ petitions on or before November 17, 1999Ci.e. the date on which Kailash Chand Sharma’s case (supra) wasdecided by the Full Bench. In some decisions, it was held that this Courtin Kailash Chand Sharma’s case (supra) had not barred relief to allsuch candidates who may have filed writ petitions at any time afterNovember 18, 1999.D9. The controversy was set at rest beyond doubt by this Court inits decision in Manmohan Sharma v. State of Rajasthan and Others[3]and other connected matters. After extensively dealing with the factualmatrix and arguments in Manmohan Sharma’s case (supra), it washeld as under:E

“16. A careful reading of the above leaves no manner of doubtthat (a) this Court invoked the doctrine of prospective overrulingwhich implies that the law declared by this Court would applyonly to future selections and appointments, (b) that althoughprospective overruling left the appointments made before 18thFNovember, 1999 untouched, the writ-petitioners who had movedthe High Court had to be considered afresh vis-à-vis candidatesappointed on or after 18th November, 1999 or those in the selectlist without giving to such appointed/selected candidates the benefitof bonus marks under the circular, and (c) that upon suchconsideration of the writ-petitioners if they are found to be superiorGin merit than those appointed after 18th November, 1999 theyshall be offered appointments, if necessary, by removing the latter.

17. It was strenuously contended by learned counsel for theappellants that the expression “the appellants who moved the High H3 Civil Appeal No. 4294 of 2014, decided on April 01, 2014

Court” appearing in para 46 (supra) was wide enough and actuallycovered not only such of the writ-petitioners as had approachedthe High Court in the two batch of cases decided by this Court inKailash Chand Sharma’s case (supra) but also all such candidatesas may have filed writ petitions at any time after 18th November,1999 including those who filed such petition after 30th July, 2002when this Court decided the appeals in Kailash Chand Sharma’scase (supra) and connected matters.

18. We find it difficult to accept that contention. There is nothingin the judgment of this Court in Kailash Chand Sharma’s case(supra) or the directions that were issued in para 46 thereof tosuggest that this Court was either conscious of or informed ofpendency of any writ petition filed before the High Court after18th November, 1999. There is also nothing to suggest that thisCourt intended the benefit granted in terms of direction (1) underpara 46 to extend not only to the writ-petitioners who had movedthe High Court in Kailash Chand Sharma’s case (supra) and inthe writ petition filed by Naval Kishore and others but the samehas intended to benefit all those who had or may have moved theHigh Court at any point of time. On the contrary there is positiveindication of the fact that the Court did not intend to extend thebenefit to any appellant who had challenged the award of bonusmarks and the selection process on the basis thereof at any stageafter 18th November, 1999. This is evident from the fact that WritPetition No.542 of 2000 filed in this Court under Article 32 of theConstitution of India was dismissed by this Court in terms ofdirection (3) under para 46 on the ground that the same had beenfiled nearly one year after the judgment of the High Court. Theexpression “as it has been filed after the judgment of the HighCourt” appearing in direction (3) under Para 46 clearly suggestthat for the grant of relief this Court had only petitions filed beforethe judgment in Kailash Chand Sharma’s case (supra) in mindand not those filed after 18th November, 1999 when the saidjudgment was pronounced. The observation of this Court that thewrit-petitioners had offered no explanation for not approachingthe High Court under Article 226 of the Constitution at an earlierpoint of time too has two distinct facets, namely, (1) that the writ-petitioners in Writ Petition No.542 of 2000 should have ordinarilyapproached the High Court and (2) They should have done so at AB

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Aan earlier point of time. The latter of these reasons againemphasized the importance this Court attached to the delay in thefiling of the petitions in the matter of grant of relief for those whodid not challenge the selection process in good time were notgranted any relief.”

B10. The Bench in Manmohan Sharma’s case (supra) observedthat there were two categories of cases; Category 1 comprising of writpetitions which were filed after November 18, 1999 and before July 30,2002 and Category II comprising of writ petitions which were filed afterJuly 30, 2002. The date July 30, 2002 being the date of decision of theRajasthan High Court in the case of Naval Kishore’s case (supra).CRejecting the arguments raised on behalf of the two Categories, theBench observed that in Kailash Chand Sharma’s case (supra) thisCourt had recognized the need to balance competing claims by invokingdoctrine of prospective overruling, thereby, protecting appointments madeon or before November 17, 1999 and confining relief only to the writ

Dpetitioners who had moved the High Court before November 18, 1999.Further, the directions given in Kailash Chand Sharma’s case (supra)were a binding precedent under Article 141 of the Constitution. Withregard to the argument for grant of benefit on the principle of parity, i.e.similar benefits, as notwithstanding the judgment in Kailash ChandSharma’s case (supra) some of the candidates were appointed onEredrawing the merit list after exclusion of bonus marks, the Benchcomprehensively and squarely rejected the submission as being contraryto the dictum and binding directions of this Court in Kailash ChandSharma’s case (supra). In Manmohan Sharma’s case (supra), theBench observed that there was no need to enlarge the scope of the Fdirections issued in Kailash Chand Sharma’s case (supra) to othersand that the Court was not hearing a review petition nor could the Courtmodify the order passed by this Court in Kailash Chand Sharma’scase (supra). The contention of some petitioners in Category II who hadbeen appointed on re-computation of the result on merits after November 18, 1999 was rejected as illegal and impermissible in the light of theGjudgment of this Court in Kailash Chand Sharma’s case (supra). Theplea and contention of parity and similar treatment was also rejectedobserving that wrong appointments should have been challengedexpeditiously and not belatedly, and that such appointments would notconfer any right. That apart, it was recorded in Manmohan Sharma’sHcase (supra) that the State had filed an affidavit satisfactorily refutingthe factual submissions made at the Bar.

11. The learned counsel for the petitioners had drawn our attentionto paragraph 24 of the decision in Manmohan Sharma’s case (supra)which refers to the case of one Danveer Singh whose writ petition hadbeen allowed and the order had attained finality as it was not challengedbefore the Division Bench or before the Supreme Court. Termination ofservices in the case of Danveer Singh, it was accordingly held, was notjustified and in accordance with law. The reasoning given in paragraphs24 and 25 in Manmohan Sharma’s case (supra) relating to the case ofDanveer Singh would reflect the difference between the doctrine of resjudicata and law of precedent. Res judicata operates in personam i.e.the matter in issue between the same parties in the former litigation,while law of precedent operates in rem i.e. the law once settled is bindingon all under the jurisdiction of the High Court and the Supreme Court.Res judicata binds the parties to the proceedings for the reason thatthere should be an end to the litigation and therefore, subsequentproceeding inter-se parties to the litigation is barred. Therefore, law ofres judicata concerns the same matter, while law of precedent concernsapplication of law in a similar issue. In res judicata, the correctness ofthe decision is normally immaterial and it does not matter whether theprevious decision was right or wrong, unless the erroneous determinationrelates to the jurisdictional matter of that body. (See MakhijaConstruction and Engineering Private Ltd v. Indore DevelopmentAuthority and Others[4]). Learned counsel for the appellants had drawnour attention to several decisions of the Rajasthan High Court in whichreliefs have been granted to the writ petitioners who had not filed a writpetition before the cut-off date of November 18, 1999 fixed by this Courtin Kailash Chand Sharma’s case (supra). Some of these decisionswere made after the decision of Manmohan Sharma’s case (supra) onApril 01, 2014. This should have been avoided as authoritativepronouncements of the Supreme Court and High Court must be respectedand followed as any departure therefrom would cause uncertainty,unnecessary and speculative litigation as has been held in strong wordsin Dwarikesh Sugar Industries Ltd. v. Prem Heavy EngineeringWorks (P) Ltd.[5] and Bihar State Government Secondary SchoolTeachers Association and Others v. Bihar Education ServiceAssociation and Others[6] Consequently, we find that a number of 4 (2005) 6 SCC 304

4 (2005) 6 SCC 304

5 (1997) 6 SCC 450

6 (2012) 13 SCC 33

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Aimpleadment applications have been filed by aspirants anxiously waitingand hoping of favourable outcome in the foreclosed and covered litigation.They cannot succeed and these applications are dismissed. We wereinformed that there are a large number of vacant posts and, therefore, ithas been contended that the benefit should be extended. We do notagree and should not accept the said contentions as it would fall foul andBwould be clearly contrary to the ratio of Kailash Chand Sharma’s andManmohan Sharma’s cases (supra).

12. Our attention was also drawn to the case of Neeraj Saxena inwhose case the writ appeal filed by the State Government against theorder of the Single Judge was dismissed on the ground of delay andCinaction. The Special Leave Petition against the decision of the DivisionBench was also dismissed on the ground of delay. This decision of theDivision Bench in Neeraj Saxena and the dismissal of the Special LeavePetition on the ground of delay does not lay down any ratio in the formof precedent. At best, the decision of the Single Judge in the case ofDNeeraj Saxena as in the case of Danveer Singh would apply to thespecific candidates in whose case the decision would operate as resjudicata. This, however, would not be a ground to negate and nullify theratio and direction invoking doctrine of prospective overruling, applied inKailash Chand Sharma’s case (supra), which was thereafter affirmedand elucidated by this Court in Manmohan Singh’s case (supra).E

13. In view of the aforesaid discussion, we hold that the candidateswho had not filed writ petitions on or before November 17, 1999 wouldnot be entitled to appointment upon recalculation of marks by exclusionof bonus marks from the marks of the selected candidates. The aforesaiddirection would not apply to individual cases where the principle of resFjudicata would apply, i.e. wherein the decision of the Single Judge orthe Division Bench has become final since it was not challenged beforethe Division Bench or before this Court. All other pending writ petitionsand appeals, before the High Court, would be disposed of and decidedon the basis of decisions in Kailash Chandra Sharma’s, ManmohanGSharma’s cases (supra) and the present matter, subject to condonationof delay, when justified and satisfactorily explained.

14. The appeals and all pending applications are disposed of in theaforesaid terms.

HBibhuti Bhushan Bose