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Declaration Of Law By Court Will Have Retrospective Effect If Not Otherwise Stated Specifically : Supreme Court

LIVELAW NEWS NETWORK
4 July 2022 9:24 AM GMT
Declaration Of Law By Court Will Have Retrospective Effect If Not Otherwise Stated Specifically : Supreme Court
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The Supreme Court reiterated that the declaration of law made by court will have retrospective effect, if not otherwise stated to be so specifically.

The bench comprising Justices Surya Kant observed thus while it upheld the order of the Jammu & Kashmir and Ladakh High Court that inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points.

One of the questions considered by the court was whether the judgment in Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604 which held that the judgment in P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] is not a good law, is retrospective?

In Bimlesh Tanwar, it was observed thus: "An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law."

The court observed that in Bimlesh Tanwar (supra) actually there was a a declaration of law.

Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this [22] Court held that "the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically". This Court was conscious of the fact, as could be seen from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term.. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms." the bench said.

Also read: Seniority Of Munsiff's Must Be Fixed On Basis Of Inter-Se Merit In Selection Test & Not Roster-Points : Supreme Court

Case details

Manoj Parihar vs State of Jammu And Kashmir | 2022 LiveLaw (SC) 560 | SLP(C) No. 11039 of 2022 | 27 June 2022

Coram: Justice Surya Kant and JB Pardiwala

Headnotes

Service Law - Judicial Service - Munisffs - The roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts - The roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter­ se seniority among those recruited. (Para 29)

Prospective Overruling - The law declared by a court will have retrospective effect, if not otherwise stated to be so specifically - Power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term - Referred to P.V. George v. State of Kerala, (2007) 3 SCC 557. (Para 26-28)

Service Law - Direct recruitment - The preparation of inter se merit list of the selected candidates is inevitable, even in the absence of an explicit provision in the rule or policy, the recruitment authority cannot place the candidates inter se in the select list under the rule of thumb or by adopting the methodology which is inconsistent with the spirit of Articles 14 and 16 of the Constitution. The inter se merit list of the selected candidates can be prepared as a combined effect of several factors like written test, objective test, viva­voce and/or other parameters as may have been prescribed keeping in view the special requirement of service. (Para 16)

Service Law - Promotion based on merit­ cum­ seniority - Seniority by itself is not the only qualification for promotion to a selection post - The comparative merit has to be evaluated in which seniority will be one of the factors only - Even a junior most person may steal a march over his seniors and jump the queue for accelerated promotion. (Para 16)





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