Dismissed

Kerala Public Service Commission v. Jeeva.C.v.

Kerala HC10 Mar 2016WA/618/2012

Case brief

AI extract

What is this about?

This writ appeal challenged the High Court judgment that declared Rule 5A of the Kerala State and Subordinate Services Rules unconstitutional. The Supreme Court upheld the Single Judge's decision, reasoning that granting weightage based on district residency violates Article 16. The Court also held that the retrospective effect of the ruling triggered the doctrine of prospective overruling.

What did the court decide?

The appeals filed by the Kerala Public Service Commission and the State of Kerala against the declaration of unconstitutionality of Rule 5A were dismissed; the judgment of the Single Judge stands uphe

Kerala Public Service Commission Vs Jeeva.C.v. — Specific Performance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937

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WA.No. 618 of 2012 () IN WP(C).11650/2011

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------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 11650/2011 of HIGH COURT OF KERALA DATED 18-01-2012

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APPELLANT(S)/R3 & 4:

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1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.

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2. THE DISTRICT OFFICER

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KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE

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DEVALOKAM, MUTTAMBALAM P.O., KOTTAYAM-686004.

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BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC

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RESPONDENT(S)/PETITIONER & RESPONDENTS 1-2 & 5-7 :

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1. JEEJA.C.V. MANALODIPPARAMBIL HOUSE FATHIMAPURAM NORTH TOWER P.O. CHANGANACHERRY FROM THEKKE CHERAYIL KUDAVECHOOR P.O., VAIKOM, KOTTAYAM.

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2. STATE OF KERALA

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REPRESENTED BY ITS LAND REVENUE SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT THIRUVANANTHAPURAM.

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3. THE COMMISSIONER OF LAND REVENUE AND STATE BOARD OF REVENUE, REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM-695914.

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4. THE VILLAGE OFFICER VECHOOR VILLAGE OFFICE, VAIKOM KOTTAYAM DISTRICT-686004.

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5. THE VILLAGE OFFICER CHANGANASSERY VILLAGE OFFICE, CHANGANASSERY KOTTAYAM-686101.

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6. THE VILLAGE OFFICER MARARIKULAM NORTH VILLAGE OFFICE, MARARIKULAM P.O. CHERTHALA, ALAPPUZHA-688 544.

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R1 BY ADV. SRI.M.K.PRADEEPKUMAR R2-6 BY SPL.GOVERNMENT PLEADER SRI.T.TMUHAMOOD

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 5-02-2016, ALONG WITH WA NO.1449/2012 AND CONNECTED CASES, THE COURT ON 10/3/2016 DELIVERED THE FOLLOWING:

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ASHOK BHUSHAN, C.J. “C.R.” & A.M. SHAFFIQUE, J.

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================

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W.A. Nos. 618 /2012 1449/2012, 1811/2013 & 719/2014

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===========================

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Dated this, the 10^th day of March, 2016

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J U D G M E N T

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Shaffique, J.

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WA No.618/2012 has been filed by respondents 3 and 4, viz., the Kerala Public Service Commission (for short KPSC) and its District Officer, Kottayam challenging judgment dated 18/01/2012 in WP(C) No. 11650/2011. WA No.719/14 is filed by respondents 1, 2, 3 and 6 to 8 in the writ petition, viz., the State of Kerala and its various departments and officers. WA No.1449 of 2012 is filed by a third party after seeking leave of court challenging judgment dated 18/01/2012 in WP(C) No. 4900/2011. WA No. 1811/2013 is filed by the State of Kerala and its officers, respondents 3 and 4 in WP(C) No. 28055/10. All these appeals are arising from a common judgment by which the learned Single Judge had decided a batch of cases. However, appeals are limited only to a few cases viz., against the judgment in WP(C) Nos. 11650/2011, 4900/11 and 28055/10. The reason for challenging the judgment in WP(C) No.

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W.A. No.618/12 & conn.cases

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11650/11 is on account of the fact that the learned Single Judge while considering the batch of cases quashed Rule 5A of KS & SSR as unconstitutional and void. In the other set of cases which include WP(C) Nos. 28055/10 and 4900/11, the learned Single Judge observed that the benefit of Rule 5A is available only to candidates who are natives of the concerned District.

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First of all, we shall deal with the contentions urged in WP(C) No.11650/11 and the appeals arising from the said judgment viz. WA Nos.618/12 and 719/2014. The facts as disclosed in the writ petition would show that the petitioner is one among the candidates who had applied for the post of last grade servant in various departments under Kottayam Revenue District. The recruitment is District wise through KPSC. Petitioner attended the examination and was expecting high rank. According to her, she was born and brought up in Alappuzha District and after marriage, she migrated to Kottayam District and since her marriage, on 17/5/1999, she has been residing in her matrimonial home, which is in Kottayam District.

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As per Rule 5A of KS & SSR, 5 marks is awarded as

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W.A. No.618/12 & conn.cases

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weightage for the candidates belonging to the District where the recruitment is made on District wise basis. However, the candidate will have to produce along with the application a nativity certificate issued by the competent authority in order to get the benefit of Rule 5A. Petitioner approached the Village Officer of Vechoor Village where her matrimonial home is situated and Village officer of Chenganacherry where her husband has properties and where she resides. Both the officers refused to issue such certificate on the basis of the School Leaving Certificate which showed that the petitioner was born at Mararikulam North Village of Cherthala Taluk which is in Alappuzha District. Petitioner contends that she being married and residing with her husband had migrated to Kottayam District and therefore she is a native of Kottayam District and was entitled to get a nativity certificate. Petitioner relied upon Ext.P9 guidelines by which Government had issued certain directions for providing nativity certificate. According to the petitioner, when it is stated in Ext.P9 guidelines that nativity certificate can be issued to persons having permanent residence in a particular District,

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W.A. No.618/12 & conn.cases

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petitioner is also entitled for the same. Petitioner also contended that women who have migrated to her matrimonial home would neither get the nativity certificate from the District of their parent's home on account of not being a permanent resident nor from the matrimonial home on account of not being born in that

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place. Hence, according to the petitioner, the Rule is discriminatory and is unconstitutional. Unless and until the word 'nativity' in the proviso to Rule 5A is interpreted in its larger view to include the word 'domicile', the Rule is liable to be declared as unconstitutional. Petitioner therefore sought for the following reliefs;

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“i) declare that 'Nativity Certificate' indicated in proviso to Rule 5A to establish one who belongs to that district include the domicile Certificate also or else the Rule 5A is liable to be declared as unconstitutional.

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ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent 1 & 2 to make necessary amendment in proviso to Rule 5A to rectify the deficiency and accordingly pass necessary orders and guidelines to issue necessary Certificate to establish 'one who belongs to that district'.

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iii) issue a writ of mandamus or any other

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W.A. No.618/12 & conn.cases

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appropriate writ, order or direction commanding respondent 3 & 4 to make necessary modifications in their records and forms in respect of awarding weightage marks under Rule 5A to the petitioner.

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iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondent 5 or 6 to issue necessary certificate to the petitioner to get the benefit of Rule 5A and respondent 7 to cancel Ext.P6 certificate as petitioner is not a permanent resident of that place and the same is inconsistent with Ext.P9 Government Order.”

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Counter affidavit is filed on behalf of respondents 3 and 4, viz., the KPSC contending that Rule 5A had undergone an amendment as per Government Order dated 28/2/2011 and the present rule reads as under:

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“Where the method of recruitment to any post of any service class or category is by direct recruitment on district wise basis, such candidate belonging to that district shall be given a weightage of 5 marks for selection.

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Provided that candidates who are eligible to get the above weightage marks shall produce a nativity certificate issued by a competent authority not below the rank of a Tahsildar of the concerned district as and when called for.”

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It is contended that in so far as the weightage is given

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W.A. No.618/12 & conn.cases

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to persons belonging to the same District, when selection is made on District wise basis, there cannot be any discrimination. It is stated that the uniform method is specified with reference to all the Districts and therefore, the rule is not ultra vires the Constitution. It is also contended that the nativity apparently means the place of birth and when the rules provide for nativity certificate, it only means place of birth and not any other place. Further, it is stated that for the purpose of selecting LD Clerk, the average number of applications received from a District itself comes to more than 1 lakh and above and in a place like State of Kerala where there exists high competition for public employment, the candidate cannot be given any benefit or relaxation or additional advantage which they are otherwise not entitled. The learned Single Judge after evaluating the relevant aspects involved in the matter found that Rule 5A cannot be understood to give benefit of weightage on place of residence and hence the contention that the nativity certificate has to be issued based on the place of residence was negatived. However, while considering the question regarding constitutionality of Rule 5A,

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W.A. No.618/12 & conn.cases

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after referring to Article 16 of the Constitution of India and the judgment of the Apex Court in Kailash Chand Sharma v. State of Rajasthan [(2002) 6 SCC 562], it was held that Rule 5A of KS & SSR is unconstitutional and void. It was however made clear that the judgment shall not affect recruitments already made or any candidate who has already been appointed to any service giving the benefit of the said rule.

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WA No.1449/12 has been filed by certain third parties seeking leave of Court inter alia contending that once the Rule had been declared to be unconstitutional, the question of prospective overruling should not have been adhered to. It is contended that the ranked list prepared by KPSC to the extent it granted weightage marks to the candidate is to be set aside and the KPSC should be directed to reset the rank list by deleting the five marks already awarded.

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In WA No.1811/2013, which arises from WP(C) No. 28055/2010, the State has challenged the declaration of unconstitutionality of Rule 5A of KS & SSR. In fact, no such contention was urged regarding the constitutionality of Rule 5A of

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W.A. No.618/12 & conn.cases

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Part II KS & SSR and the said challenge has been made only in WP (C) No. 11650/2011.

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The questions to be considered in these appeals are therefore two fold. One is whether the learned Single Judge was justified in declaring Rule 5A of Part II KS & SSR as unconstitutional and secondly, if the judgment of the learned Single Judge is upheld, whether the Court was justified in declaring the unconstitutionality only prospectively.

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The main contention urged on behalf of the learned Government Pleader appearing on behalf of the State and the learned standing counsel appearing on behalf of the KPSC is that when a selection is made by KPSC District wise granting five marks as a weightage for natives of the said District, it is not discriminatory. It is contended that in each District, the very same benefit is given to the natives of that District and therefore, none of the candidates who apply on District wise basis are discriminated. That apart, whenever an application is called for to any post by KPSC on District wise basis, several thousands of candidates and more than a lakh used to apply and while

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W.A. No.618/12 & conn.cases

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evaluating the respective merit, giving a weightage to the natives of the District cannot be termed as unconstitutional on the ground of it being discriminatory.

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Reference is made by the learned Government Pleader on the explanatory note which forms part of the notification, and it is contended that it is under such special circumstances that the weightage has been granted, which is extended to other Districts as well. The learned Government Pleader also placed reliance on the judgment of the Supreme Court in Ashutosh Gupta v. State of Rajasthan [(2002) 4 SCC 34] to contend that there were no pleadings to substantiate that the Rule was ultra vires the Constitution. That was a case in which the appellant was recruited to the Rajasthan Administrative Service by the Rajasthan Public Service Commission on 5/6/1975 under the Rajasthan Administrative Service Rules, 1954. The service rules underwent amendment. A seniority list was published by the State Government on 2/6/1980. Certain persons recruited under the Recruitment Rules of 1976 were shown as senior to directly recruited officers during the previous years. A batch of writ

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W.A. No.618/12 & conn.cases

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petitions came to be filed before the High Court which were dismissed by the learned Single Judge. The Division Bench also confirmed the view taken by the learned Single Judge. The Apex Court considered the issue in Para 5, which being relevant, reads as under:

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“5. Article 14 of the Constitution secures equal protection to government servants and Article 16 is a particular application of general guarantee provided in Article 14. The doctrine of equality before law is a necessary corollary to concept of rule of law accepted by the Constitution. It is a wellsettled principle that if a person complains of unequal treatment, the burden squarely lies on that person to place before the court sufficient materials from which it can be inferred that there is unequal treatment. Where, however, the necessary materials have not been placed to show how there has been an unequal treatment, the plea of provisions being violative of Article 14 cannot be entertained. We record this conclusion of ours, as in the course of hearing of this matter Mr Jain, learned counsel appearing for the appellant, had often repeated that the provision of the Emergency Recruitment Rules has permitted even a betel shopowner with the minimum income as indicated therein to appear and compete at the test and on being selected, the period for which he had been

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W.A. No.618/12 & conn.cases

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earning the aforesaid amount could be taken into account for the purpose of seniority in the cadre even though there has been no nexus between that period and the service to which he has been recruited. Apart from making such submission on a hypothetical basis, no material has been produced to indicate if any one of the persons recruited under the Emergency Recruitment Rules has reaped any undue advantage in respect of his past experience by adoption of the formula in the Emergency Recruitment Rules for the purpose of allotting the year of allotment as 1976-N-1 + half of N-2. In the absence of an iota of material on this aspect, we are not required to examine the correctness of the said submission of Mr Jain, on an assumption that the provisions of the Recruitment Rules might have enabled the professionals on being recruited to count their past experience for reckoning their seniority in the cadre of administrative service even though the said experience might not have any correlation with the administrative service. Even otherwise, the entire experience of such recruits could not have been totally wiped off and therefore the rule-making authority while making the rules for recruitment on emergency basis did make the provisions contained in Rule 25 which is also in pari materia with similar provisions available elsewhere including the one which was meant for emergency recruitment to the Indian Administrative Service. Where the challenge is made to a statutory

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W.A. No.618/12 & conn.cases

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provision being discriminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. There is always a presumption in favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience. The claim of equal protection under Article 14, therefore, is examined with the aforesaid presumption that the State Acts are reasonable and justified. If we examine the challenge to the impugned provision from the aforesaid standpoint, we have no hesitation to hold that the appellants have utterly failed to establish any material from which grievances about the discrimination alleged can be said to have been made.”

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The first question to be considered in these appeals is whether the learned Single Judge was justified in quashing Rule

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W.A. No.618/12 & conn.cases

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5A as unconstitutional. The learned Single Judge relied upon Kailash Chand Sharma (supra) and held that residence by itself either within a State, region, District, or lesser area within a District cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3) and therefore, the rule does not survive on account of the restrictions imposed under Article 16 of the Constitution of India. Article 16 of the Constitution of India reads as under:

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“16. Equality of opportunity in matters of public employment - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

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(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such

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W.A. No.618/12 & conn.cases

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employment or appointment.

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(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

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(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

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(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.]

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(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the

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W.A. No.618/12 & conn.cases

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affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”

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It is evident from the above constitutional provision that no citizen shall be discriminated against any employment or office under the State on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them. The argument raised by the appellant is that no discrimination has been meted out against any citizen on the ground of place of birth or residence whereas only certain weightage is provided for persons applying in the same District especially when appointments are made on District wise basis. The explanatory note to the notification by which amendment has been made reads as under:

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“ Explanatory Note

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(This does not form part of the notification, but is intended to indicate its general purport).

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A weightage of 5 marks was awarded to native candidates of each district on district-wise recruitment to Last Grade and Sub-clerical posts mentioned in the Annexure to Rule 5A. Kerala Public Service Commission has proposed that awarding 5 marks as weightage to those candidates who qualify for interview or become

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W.A. No.618/12 & conn.cases

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qualified to be included in the Ranked List alone is quite inadequate to do justice to the intention of Rule 5A. Candidate belonging to the backward districts fail to qualify as above and secure the weightage marks. So the Commission is of the view that natives of the districts are to be awarded weightage of 5 marks so as to enable them to qualify for interview or become qualified to be included in the Ranked List. Provided that candidates who are eligible to get the above weightage marks shall produce a nativity certificate issued by a competent authority not below the rank of a Tahsildar of the concerned district along with the application as and when called for and that the Annexure to Rule 5A shall be deleted. Government accepted the proposal of Kerala Public Service Commission and decided to amend the Kerala State and Subordinate Services Rules, 1958 suitably for the purpose.

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This notification is intended to achieve the above object”.

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In Kailash Chand Sharma (supra), the Apex Court was considering the selections and consequential appointments made to the post of primary school teachers by Zila Parishads of various districts in the State of Rajasthan during the year 1998-1999. The issue considered was whether fixation of bonus marks for domicile

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W.A. No.618/12 & conn.cases

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was in violation of Article 16 of the Constitution of India. In that case, determination of merit was based on educational qualification as well as the bonus marks for domicile. Persons who are domiciles of Rajasthan were granted 10 marks, residents of the particular District were given 10 marks and residents of rural area of that District were given 5 marks. Some of the candidates hailing from different Districts or Towns who were not eligible for bonus marks filed the writ petition under Article 226 of the Constitution of India questioning the circular issued by the State Government prescribing such bonus marks. They challenged the same after appearing in the interview and in the meantime, the select list was published. Matter was considered by a Full Bench of Rajasthan High Court. Against judgment of the Full Bench, Special Leave Petitions were filed. The matter was considered by the Apex Court. After considering the entire factual issues, the Apex Court decided the matter in paras 33 and 34 as under:

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“33. The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and the residents of the rural areas of the district amounts to impermissible discrimination. There is no rational basis for such

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W.A. No.618/12 & conn.cases

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preferential treatment on the material available before us. The ostensible reasons put forward to distinguish the citizens residing in the State are either non-existent or irrelevant and they have no nexus with the object sought to be achieved, namely, spread of education at primary level. The offending part of the circular has the effect of diluting merit, without in any way promoting the objective. The impugned circular dated 10-6-1998 insofar as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court.

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34. One more serious infirmity in the impugned circular is that it does not spell out any criteria or indicia for determining whether the applicant is a resident of rural area. Everything is left bald with the potential of giving rise to varying interpretations thereby defeating the apparent objective of the rule. On matters such as duration of residence, place of schooling etc., there are bound to be controversies. The authorities, who are competent to issue residential certificates, are left to apply the criteria according to their thinking, which can by no means be uniform. The decision in State of Maharashtra v. Raj Kumar is illustrative of the problem created by vague or irrelevant criteria. In that case a rule was made by the State of Maharashtra that a candidate will be considered a rural candidate if he had passed SSC Examination held from a village or a town having only ‘C’ type

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W.A. No.618/12 & conn.cases

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municipality. The object of the rule, as noticed by this Court, was to appoint candidates having full knowledge of rural life so that they would be more suitable for working as officers in rural areas. The rule was struck down on the ground that there was no nexus between the classification made and the object sought to be achieved because “as the rule stands any person who may not have lived in a village at all can appear for SSC Examination from a village and yet become eligible for selection” (SCC p. 314, para 2). The rule was held to be violative of Articles 14 and 16. When no guidance at all is discernible from the impugned circular as to the identification of the residence of the applicants especially having regard to the indefinite nature of the concept of residence, the provision giving the benefit of bonus marks to the rural residents will fall foul of Article 14.”

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12. The principles laid down by the Apex Court in Kailash

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Chand Sharma (supra) clearly indicates that the grant of bonus marks on the basis of District violates Article 16 of the Constitution of India. However, the argument of the appellants are two fold. One is that there is reason for granting such a benefit on District wise basis which is evident from the explanatory note. But a reference to the explanatory note indicates that the purpose of

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W.A. No.618/12 & conn.cases

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awarding 5 marks as weightage was on account of the fact that candidates belonging to the backward Districts failed to qualify in the examinations. So the KPSC recommended that the natives of Districts are to be awarded weightage of 5 marks to enable them to qualify for interview or become qualified to be included in the ranked list. But, a perusal of Rule 5A does not indicate that it is given to promote candidates from backward Districts alone. Therefore, such an argument cannot be sustained. Hence, having regard to the clear legal principle laid down by the Apex Court, we have no hesitation to come to the conclusion that the learned Single Judge had correctly appreciated the factual and legal aspects involved in the matter and was justified in quashing Rule 5A.

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Another contention urged is that sufficient pleadings were not available in the writ petition in order to challenge the constitutionality of Rule 5 A. The principle laid down in Ashutosh Gupta (supra) clearly indicates that where the challenge is made to a statutory provision being discriminatory, allegations in the writ petition might be specific, clear and

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W.A. No.618/12 & conn.cases

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unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. This is based on the principle that the presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. Substantial contention urged by the petitioner in WP(C) No. 11650/2011 is that the nativity certificate should be issued to persons who were born in the District and also who have migrated on account of marriage and other reasons. However, in ground (E), it is stated as under:

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“E. Strict interpretation of nativity would narrow down the Rule 5A, it would liable to be declared unconstitutional for many reasons such as volatile of fundamental rights of the petitioner and similarly placed others under Article 14, 15, 16, 19 & 21 of constitution of India.”

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From among the relief prayed for, first relief is to

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declare the rule unconstitutional, which is extracted in the earlier portion of this judgment. In fact, there is no difficulty in

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W.A. No.618/12 & conn.cases

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understanding the facts from the pleadings in so far as the challenge is with reference to the grant of weightage marks for residence in a District. When the pleadings are clear and the constitutionality is challenged by contending that the Rule violates Article 16 of the Constitution, we are of the view that sufficient pleadings are available for challenging the vires of the rule.

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Coming to the contention urged in W.A.No.1449 of 2012, the learned Single Judge has taken a view that the judgment shall apply only prospectively in so far as several candidates were already appointed in the interregnum period. Apparently such a view has been taken considering the hardship that may cause to candidates who were already appointed giving benefit of Rule 5A. When such a discretion had been exercised by the learned Single Judge, we do not think that we will be justified in considering the same.

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The principle of the doctrine of prospective overruling has been considered in a long line of judgments. In K.Madhava Reddy v. State of A.P. [(2014) 6 SCC 537], the Apex court had

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W.A. No.618/12 & conn.cases

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occasion to consider these issues. After referring to Kailash Chand Sharma (supra), it was held in paragraphs 16 and 17 as under:

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“ 16. 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.

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17. In Kailash Chand Sharma v. State of Rajasthan, the constitutional validity of the 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:

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17.1. 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

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W.A. No.618/12 & conn.cases

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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 ECIL v. B. Karunakar.

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17.2. 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 possible result in detriment to the candidates already appointed. The following observations made by this Court are apposite in this regard: (Kailash Chand Sharma case, SCC p. 590, para 42)

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“42. … 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

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W.A. No.618/12 & conn.cases

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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 ECIL v. B. Karunakar 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

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W.A. No.618/12 & conn.cases

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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.”

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Having regard to the fact that the law in this matter is clearly explained by the above judgment, we do not think that the above writ appeal on that ground can be entertained. Therefore, this appeal is also liable to be dismissed.

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In the result, we do not find any ground to interfere with the judgment of the learned Single Judge and accordingly the appeals are dismissed.

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Sd/- ASHOK BHUSHAN, CHIEF JUSTICE

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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//True Copy//

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