George & Ors Vs. State of Kerala & Ors  Insc 68 (23 January 2007)
Sinha & Markandey Katju [Arising Out Of S.L.P. (Civil) No.8305 of 2006] with
Civil Appeal No. 323 of 2007 [Arising out of S.L.P. (Civil) No.8744 of 2006] S.B.
Sinha, J :
of the doctrine of prospective overruling in service matters is in question in
these appeals which arises out of a judgment and order dated 31.03.2006 passed
by a Division Bench of the Kerala High Court whereby and whereunder on
interpretation of a Full Bench decision in Subaida Beevi v. State of Kerala
[2005 (1) KLT 426] it was held to have no prospective operation.
were working in the Government Presses, Kerala. The Government of Kerala framed
rules for the employees of Kerala Government Presses Subordinate Services to
which cadre the appellants belonged. It consisted of several branches.
Admittedly, there are several categories and sub-categories of employees
working therein The mode of appointment as also the qualifications therefor has
been prescribed in the rules. By reason of a Government order dated 01.07.1980,
the rule framed in terms of SRO No. 1030 of 1976 was amended prescribing a
ratio of 1 : 1 for the purpose of promotion between diploma-holders and certificate-
holders by adding a Note thereto, which reads as under :
: Promotion of persons qualified under Item 2(a) and 2(b) above shall be made
in the ratio 1 : 1 starting with promotion of persons qualified under Item
2(a). If no person qualified under Item 2(a) is available for promotion, the
turn of promotion will be given to the person qualified under Item 2(b) and
that no senior diploma holder shall be superseded by a junior certificate
holder and provided that the benefit of turn under the ratio of 1 : 1 forfeited
by the certificate holder by virtue of the promotion the senior diploma holder,
shall be restored to the certificate holder in the arising vacancy." A
further proviso was appended thereto by a Government order dated 30.08.1984 in
term of SRO No. 1044 of 1984, which reads as follows :
further that the benefit of the ratio of 1 :
forfeited by the certificate holder by virtue of the promotion of the senior
diploma holder shall be restored to the certificate holder in the next arising
vacancy." Constitutionality of the said provision was challenged before
the Kerala High Court, whereupon a Division Bench thereof in Daniel v. State of
Kerala [1985 KLT 1057], declared the same
to be ultra vires, stating :
the light of the decisions of the Supreme Court in A.I.R. 1974 SC 1, AIR 1974
SC 1631, 1983 KLT 987, 1983 KLT 878, 1981 (2) Kerala 527 and 1975 KLT 1, we
have no doubt at all that this classification on microscopic distinction could
not be allowed. We would therefore strike down the notes to Branch Nos. 1 and 9
to Ex. P-2" The correctness of the said decision was questioned before
another Division Bench of the said Court in Writ Appeal No.149 of 1990. By a
judgment dated 14.01.1992, Paripoornan, J. (as His Lordship then was), held :
heard counsel at length, we are of the view, that since the service involved in
the present cases is the same as the one which came up for consideration in
Daniel's case (1985 KLT 1057) and the Rules are also the same, the judgments
appealed against, do not require interference. It is agreed that the Bench
decision in Daniel's case (1985 KLT 1057) considered the identical rules in the
same service (Government Presses Subordinate Service), which in issue in these
well. Even so, learned Government Pleader, Mr. V.C.
very forcefully submitted that the Bench decision in Daniel's case (1985 KLT
1057) is not good law, or, at any rate, requires reconsideration in view of the
later Bench decision of this Court in Balakrishnan v. State of Kerala (1990 (1)
KLT 66). We are unable to accept this plea for more reasons than one. The
service rules, which came up for consideration in the later decision, Balakrishnan's
case (1990 (1) KLT 66) is "Engineering Service (Radio and Electrical
Branches) Rules, 1967".
import and impact in evaluating and upholding the reason for fixing the ratio
in the later case are entirely different. The perspective is also different.
That apart, the earlier bench decision in Daniel's case (1985 KLT 1057) does
not appear to have been brought to the notice of the learned Judges, who
rendered the decision in Balakrishnan's case (1990 (1) KLT 66). Prima facie,
the later decision should be considered to be one rendered per inqurium. In
these circumstances, we are satisfied that the ratio of the earlier bench
decision in Danil's case (1985 KLT 1057) should govern the fate of the present
two Original Petitions. That is what has been done by the two learned Judge of
these circumstances, we are of the view that no interference is called for in
these writ appeals. The judgments appealed against are confirmed. The writ
appeals are dismissed. There shall be no order as to costs." It is,
however, not in dispute that Jagannadha Rao, J. (as the His Lordship then was)
in Ravindran v. State of Kerala [1992 (1) KLT 524], took a different view,
the present case the Government has filed a counter stating that after
considering various aspects, the Government prescribed the necessary
qualification for the various supervisory posts 'according to the requirement
of duties and functions of the post'. It is also stated that special rules were
made for the petitioner and other similarly situated persons. It is also stated
that Government considered that seniors who are not diploma holders may be
prejudiced by the rules as they stood in 1976, and that the ratio of 1 : 1
fixed for promotion between the certificate holders and diploma holders is
quite reasonable and rational and hence valid. Having regard to the technical
nature of the posts in the government presses we do not think that the ratio
prescribed between diploma holders and certificate holders is in any way
unreasonable. In view of the subsequent decision of the Supreme Court in Roop Chand's
case, AIR 1989 SC 307, and also in view of the two judgments of the Division
Bench in Balakrishnan's case and in Cheru's case, O.P. No. 1851 of 1984, we are
not inclined to follow the decision of the Division Bench in Daniel v. State of
Kerala, 1985 KLT 1057." The conflict in the said decisions was noticed and
eventually referred to a Full Bench in the Subaida Beevi (supra) by another
Division Bench of the said Court. By a judgment dated 04.11.2004, the Full
Bench held that the amended special rules for the Government Presses
Subordinate Services Rules were not suffering from any infirmity and fixation
of ratio of 1 : 1 for promotion to higher posts between diploma-holders and
certificate-holders needs no interference. Whereas the decision in Daniel
(supra) was expressly overruled, the decision in Ravindran (supra) was upheld, holding
hold that the impugned amendment made in the Special Rules for the Government
Presses Subordinate Service providing ratio of 1 : 1 for promotion to higher posts
between diploma holders and certificate holders is not discriminatory and it is
not violative of articles 14 and 16 of the Constitution of India. Government is
bound to effect promotions on the basis of the amended Special Rules." A
special leave petition filed thereagainst was dismissed by this Court by an
order dated 04.03.2005.
were issued notices as to why they shall not be reverted from the post of
Assistant Superintendent pursuant to or in furtherance of the said decision of
the Full Bench of the Kerala High Court. Legality of the said notices was
questioned by the appellants herein in a writ petiton. By reason of the
impugned judgment, the said writ petition has been dismissed by the High Court,
the Government has accepted the Full Bench decision and has taken steps, but,
did not implement the same, only because of the stay order passed in the other
writ petitions and has undertaken, since the vacation of the stay order, the
judgment would be implemented, the contempt petitions are closed recording the
undertaking that the judgment will be implemented within three months from
today. With the above observations, all the writ petitions are dismissed and
the contempt court petitions are closed." Mr. C.S. Rajan, learned Senior
Counsel appearing on behalf of the appellants, submitted that the High Court
committed a manifest error insofar as it failed to take into consideration that
in service matters ordinarily doctrine of prospective overruling would apply.
Reliance in his behalf has been placed on Managing Director ECIL, Hyderabad v.
B. Karunakar [(1993) 4 SCC 727], R.K. Sabharwal v. State of Punjab [(1995) 2
SCC 745], Union of India and Others v. Virpal Singh Chauhan and Others [(1995)
6 SCC 684], Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201], Ajit
Singh-II v. State of Punjab [(1999) 7 SCC 209], Baburam v. C.C.
[(1999) 3 SCC 362], E.A. Sathyanesan v. V.K. Agnihotri and Others [(2004) 9 SCC
165], M. Nagaraj & Others v. Union
of India & Others [(2006)10 SCALE 301].
furthermore submitted that the promotions were given to the appellants when the
law laid down by the Kerala High Court in Daniel (supra) and Ravindran (supra)
were in force and, thus, as the law was declared by the Full Bench only in the
year 2005, the same was not applicable in their case.
U. Lalit, learned Senior Counsel appearing for the respondents, would, however,
support the judgment.
the views we propose to take, it is not necessary for us to consider all the
decisions relied upon by Mr. Rajan. The legal position as regards the
applicability of doctrine of prospective overruling is no longer res integra.
Court in exercise of its jurisdiction under Article 32 or Article 142 of the
Constitution of India may declare a law to have a prospective effect. The
Division Bench of the High Court may be correct in opining that having regard
to the decision of this Court in L.C. Golak Nath and Others v. State of Punjab
and Another [AIR 1967 SC 1643) the power of overruling is vested only in this
Court and that too in constitutional matters, but the High Courts in exercise
of their jurisdiction under Article 226 of the Constitution of India, even
without applying the doctrine of prospective overruling, indisputably may grant
a limited relief in exercise of their equity jurisdiction.
are, however, in this case not concerned with such a situation.
law was in a state of flux in the sense that as far back as in the year 1992,
the two Division Benches took contrary views; while one applied the ratio laid
down in Daniel's (supra), another refused to follow the same.
Full Bench of the Kerala High Court upheld the views of the Division Bench of
the said Court in Ravindran (supra) and overruled Daniel (supra).
Full Bench of the High Court indisputably did not say that the promotions which
had already been granted would not be disturbed. The judgment of the Full Bench
attained finality as special leave petition filed thereagainst was dismissed.
Rules as amended by the State of Kerala on 01.07.1980 and 30.08.1984 were upheld.
said Rules ultimately were held to be constitutional, it was required to be
given effect to. The law declared by a court is ordinarily affects the rights
of the parties. A court of law having regard to the nature of adversarial
system of our justice delivery system exercises adjudicatory role.
consequences are determined in respect of the matters which had taken place in
be true that when the doctrine of stare decisis is not adhered to, a change in
the law may adversely affect the interest of the citizens. The doctrine of
prospective overruling although is applied to overcome such a situation, but
then it must be stated expressly. The power must be exercised in the clearest possible
term. The decisions of this Court are clear pointer thereto.
would be noticed by us hereafter in Dr. Suresh Chandra Verma and Others v. The
Chancellor, Nagpur University and Others [(1990) 4 SCC 55], this Court held :
second contention need not detain us long. It is based primarily on the
provisions of Section 57(5) of the Act. The contention is that since the
provisions of that section give power to the Chancellor to terminate the
services of a teacher only if he is satisfied that the appointment "was
not in accordance with the law at that time in force" and since the law at
that time in force, viz., on March 30, 1985 when the appellants were appointed,
was the law as laid down in Bhakre's case which was decided on December 7,
1984, the termination of the appellants is beyond the powers of the Chancellor.
The argument can only be described as naive. It is unnecessary to point out
that when the court decides that the interpretation of a particular provision
as given earlier was not legal, it in effect declares that the law as it stood
from the beginning was as per its decision, and that it was never the law
otherwise. This being the case, since the Full Bench and now this Court has
taken the view that the interpretation placed on the provisions of law by the
Division Bench in Bhakre's case was erroneous, it will have to be held that the
appointments made by the University on March 30, 1985 pursuant to the law laid
down in Bhakre's case were not according to law. Hence, the termination of the
services of the appellants were in compliance with the provisions of Section
57(5) of the Act." The ratio laid down by this Court, as noticed
hereinafter, categorically shows the effect of a decision which had not been
directed to have a prospective operation. The legal position in clear and
unequivocal term was stated by a Division Bench of this Court in M.A. Murthy v.
State of Karnataka & Others [(2003) 7 SCC 517] in the following terms :
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 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 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. In Managing Director,
ECIL, Hyderabad and Ors., v. B. Karunakar and Ors.,
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 the 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 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 U.P.
v. C.C. Jacob. It is for this Court to indicate as to whether the decision in
question will operate prospectively. In other words, there shall be no
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.
The doctrine of binding precedent helps in promoting certainty and consistency
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 casa No. II.
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 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.
effect of declaration of law, the rue of stare decisis and the consequences
flowing from a departure from an earlier decision has been considered in great
details by the House of Lords in National Westminster Bank plc v. Spectrum Plus
Limited and Others [(2005) UKHL 41]: [2005 (3) WLR 58], opining :
generally conduct their affairs on the basis of what they understand the law to
be. This 'retrospective' effect of a change in the law of this nature can have
disruptive and seemingly unfair consequences. 'Prospective overruling',
sometimes described as 'non-retroactive overruling', is a judicial tool
fashioned to mitigate these adverse consequences. It is a shorthand description
for court rulings on points of law which, to greater or lesser extent, are
designed not to have the normal retrospective effect of judicial decisions.
overruling takes several different forms. In its simplest form prospective
overruling involves a court giving a ruling of the character sought by the bank
in the present case. Overruling of this simple or 'pure' type has the effect
that the court ruling has an exclusively prospective effect.
ruling applies only to transactions or happenings occurring after the date of
the court decision. All transactions entered into, or events occurring, before
that date continue to be governed by the law as it was conceived to be before
the court gave its ruling.
Other forms of prospective
overruling are more limited and 'selective' in their departure from the normal
effect of court decisions. The ruling in its operation may be prospective and,
additionally, retrospective in its effect as between the parties to the case in
which the ruling is given. Or the ruling may be prospective and, additionally,
retrospective as between the parties in the case in which the ruling was given and
also as between the parties in any other cases already pending before the
are other variations on the same theme.
Recently Advocate General Jacobs
suggested an even more radical form of prospective overruling.
suggested that the retrospective and prospective effect of a ruling of the
European Court of Justice might be subject to a temporal limitation that the
ruling should not take effect until a future date, namely, when the State had
had a reasonable opportunity to introduce new legislation: Banco Popolare di Cremona
v Agenzia Entrate Uffficio Cremona (Case C-475/03, 17 March 2005), paras
72-88." [See also Lord Rodger of Earsferry - 'A Time for Everything under
the Law : Some Reflections on Retrospectivity' [(2005) 121 LQR 55, 77].
Nicholls of Birkenhead speaking for the House of Lords
clearly held that the power to apply prospective overruling is available to the
House of Lords also.
Queen (on the Application of Ernest Leslie Wright) v. Secretary of State for
the Home Department [(2006) EWCA Civ. 67], it was observed :
"The English law in this
respect is developing rapidly. Prospective rulings seemed anathema to Lord
Wilberforce in Launchbury v Morgans  AC 127, 137 and Lord Goff of Chieveley
in Kleinwort Benson Ltd v Lincoln City Council  2 AC 349, 379. By the
time of Regina v Governor of Brockhill Prison, ex p Evans (No. 2)  2 AC
19, Lord Slynn at p. 26 H considered that the effect of judicial rulings being
prospective might in some situations be "desirable and in no way
unjust", though Lord Steyn at p. 28 B thought the point was a "novel
one". With some perspicacity Lord Hope of Craighead foresaw at p.
that "the issue of retrospectivity is likely to assume an added importance
when the Human Rights Act 1998 is brought into force". Lord Hobhouse at
p.48 F would have none of it. The latest in this line of authority seems to be
In re Spectrum Plus Ltd (in liquidation)  UKHL 41,  3 WLR 58 where
the danger was acknowledged that prospective overruling "would amount to
judicial usurpation of the legislative function", per Lord Nicholls at para.
28 but nonetheless he noted that, especially in the human rights field, "
'Never say never' was a wise judicial precept", (para. 42).
The question has attracted interest
in the academic journals. See Arden L.J.,
"Prospective Overruling", (2004) LQR 7; Lord Rodger of Earlsferry,
"A Time for Everything under The Law;
Reflections on Retrospectivity", (2005) 121 LQR 57 and Duncan Sheehan and
T. T. Arvind, "Prospective Overruling and Fixed/Floating Charge
Debate", (2006) 122 LQR 20." In service matters, this Court on a
number of occasions have passed orders on equitable consideration. But the same
would not mean that whenever a law is declared, it will have an effect only
because it has taken a different view from the earlier one. In those cases it
is categorically stated that it would have prospective operation.
not oblivious that in Union of India v. Madras Telephone SC & ST Social
Welfare Association [2006) 9 SCALE 626], this Court observed that where the
rights had been determined in favour of some employees in a duly constituted
proceeding, which determination had attained finality, a subsequent judgment of
a Court or Tribunal taking a contrary view would not adversely affect the
applicants in whose cases the orders had attained finality.
rights of the appellants were not determined in the earlier proceedings.
According to them, merely a law was declared which was prevailing at that point
of time; but the appellants were not parties therein.
no decision was rendered in their favour nor any right accrued thereby.
E.A. Sathyanesan (supra), a Division Bench of this Court) of which one of us
was member) noticed :
view of the aforementioned authoritative pronouncement we have no other option
but to hold that the Tribunal committed a manifest error in declining to
consider the matter on merits, upon, the premise that Sabharwal and Ajit
Singh-I had been given a prospective operation. The extent to which the said
decisions had been directed to operate prospectively, as noticed above, has
sufficiently been explained in Ajit Singh-II and reiterated in M.G. Badappanavar
(spura)." Moreover, the judgment of the Full Bench has attained finality.
The special leave petition has been dismissed. The subsequent Division Bench,
therefore, could not have said as to whether the law declared by the Full Bench
would have a prospective operation or not. The law declared by a court will
have a retrospective effect if not otherwise stated to be so specifically. The
Full Bench having not said so, the subsequent Division Bench did not have the
jurisdiction in that behalf.
therefore, do not find any merit in these appeals, which are dismissed
accordingly. However, in the facts and circumstances of the case, there shall
be no order as to costs.