Sunil Kumar Verma vs State Of U.P.Thru ...
2017 Latest Caselaw 4613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Reserved
 
Court No. - 7 
 
Case :- SERVICE SINGLE No. - 18977 of 2017
 
Petitioner :- Sunil Kumar Verma
 
Respondent :- State Of U.P.Thru Prin.Secy.Secondary Edu.Civil Sectt.& Ors.
 
Counsel for Petitioner :- Girish Chandra Verma
 
Counsel for Respondent :- C.S.C.,Keshav Ram Chaurasia,Meenakshi Singh Parihar,Ravi Shanker Tiwari
 
Hon'ble Ashwani Kumar Mishra,J.

1. This petition seeks quashing of an order passed by the Regional Level Committee dated 25th July, 2017, whereby approval granted to petitioner's promotion to the post of lecturer on 30th December, 2016 has been withdrawn, purportedly in compliance of the judgement delivered by the larger Bench of this Court in Smt. Sadhna Vs. State of U.P. and Others, reported in 2017 (6) ADJ 418.

2. Facts, which are not in dispute, are that petitioner was selected by the U.P. Secondary Education Service Selection Board, as Assistant Teacher in L.T. Grade, on 29.11.2006, and he was placed in Baldev Vaidik Inter College, Paliya Kala, District Lakhimpur Kheri. He was thereafter transferred to Jai Ram Verma Bapu Smarak Inter College Nausanda, Ambedkar Nagar (hereinafter referred to as the 'institution'), and he joined on 18.10.2011. Although petitioner claims to have been selected as lecturer in Geography also, but he was not allowed to join pursuant thereto, and the issue in that regard is subjudice in different proceedings, with which this Court is not concerned in this petition. The issue involved is confined to legality and validity of petitioner's promotion to the post of lecturer alone.

3. In the transferred institution i.e. Jai Ram Verma, Bapu Smarak Inter College Nausanda, Ambedkar Nagar, one Ram Surat Verma retired from the post of lecturer, in Geography, on 30th June, 2011. Vacancy on the post of lecturer was thus created on 1.7.2011. Petitioner claims that since he possessed requisite qualification, he was allowed to work against such post. A resolution was subsequently passed by the Committee of Management to promote the petitioner to the post of lecturer, on 9.12.2014, treating the year of recruitment as beginning on 1.7.2013. This resolution was passed as nobody else was eligible/qualified for promotion to the post of lecturer. Papers were forwarded for grant of financial approval. This resolution, however, was rejected by the Joint Director of Education, on the ground that on the date of accrual of vacancy i.e. 1.7.2011, the petitioner did not fulfill the qualification of having five years teaching experience, in view of sub-rule (I) of Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998. As per the Rule eligibility/qualification has to be seen on the first day of the year of recruitment.

4. The order dated 9.7.2014 was challenged by filing Writ Petition No. 6567 (S/S) of 2014, which came to be dismissed on 19.11.2014. A review petition was thereafter filed relying upon the larger Bench judgement in Raeesul Hasan Vs. State of U.P. and Others, reported in 2015 (6) ADJ 778. Para 31 of the larger Bench judgement in Raeesul Hasan (Supra) reads as under:-

"We are unable to subscribe to the correctness of the view which has been expressed in the decision in Km. Poonam and in the earlier decisions which it followed. The duty of the Court, while interpreting any legislation, is to give effect to the plain meaning of the words used by the legislature. In the course of interpretation, it is not open to the Court, to re-write the words of the statute. Section 2 (l) of the Act specifically defines the 'year of recruitment' to mean a period of twelve months commencing from the first day of July of a calendar year. Rule 14 contains an express provision by which, where any vacancy is to be filled in by promotion, all teachers working in the trained graduates grade or Certificate of Teaching grade who possess the qualifications prescribed and have completed five years' continuous regular service on the first day of the year of recruitment shall be considered for promotion. The expression 'all' must be given its plain and natural meaning. Every teacher who fulfills the norm of eligibility on the first day of the year of recruitment has to be considered for promotion. A teacher who fulfills the prescribed norm cannot be excluded on the ground that he/she did not fulfill the condition of eligibility when the vacancy occurred at an anterior point in time. The Court cannot substitute the words "year in which the vacancy occurred" for the words "year of recruitment". That is not the function of the Court. The year of recruitment must mean what the legislature has defined it to mean. This must particularly hold good in the context of the history of the subordinate legislation. As we have noted, Rule 9 of the Rules of 1983 which related to promotion, defined 'eligibility' with reference to the date of the occurrence of a vacancy. Those words were specifically substituted when the Rules of 1995 were framed. In the Rules of 1998 as well, Rule 14, as we have noted, refers to the year of recruitment and not to the year in which the vacancy has occurred. There is no basis in the contention that the first proviso to Rule 10 would indicate a different interpretation. All that the proviso lays down, is that if in any year of recruitment, suitable and eligible candidates are not available for recruitment by promotion, the post may be filled in by direct recruitment. This proviso means that a post can be filled in by direct recruitment, if suitable and eligible candidates are not available in the year of recruitment for promotion. This does not indicate that the eligibility of candidates has to be determined not with reference to the year of recruitment, but with reference to the year in which the vacancy occurred. Such a construction would also be plainly contrary to the law laid down in the judgment of the Supreme Court in Balbir Kaur (supra). The Supreme Court has specifically held that the Rules of 1998 do not mandate that the selection or determination of vacancies must be year-wise. All vacancies which exist or are likely to fall vacant, during the year of recruitment, can be clubbed irrespective of the year of the occurrence of vacancies. The submission that the management can arbitrarily widen the zone of consideration, if this construction is adopted does not commend itself. The criterion for promotion under Rule 14 (2) is seniority subject to the rejection of the unfit. The position of a senior employee is adequately safeguarded by Rule 14 (2) subject to satisfaction of fitness. The authorities have sufficient powers to ensure that vacancies in the promotional stream are not kept unfilled to the detriment of the educational requirements of students."

5. Based upon the full Bench judgement in Raeesul Hasan (Supra), the review petition No. 871 of 2014 came to be allowed on 30th August, 2016 by following orders:-

"Heard learned counsel for the review-applicant and learned Standing Counsel for the respondents.

This review petition seeks review of the judgement and order dated 19.11.2014 passed in Writ Petition No.6567 (S/S) of 2014 wherein claim of the petitioner for promotion to the post of Lecturer in Geography was not found tenable.

The petitioner was initially appointed on the post of Assistant Teacher in LT Grade on 27.11.2006. Having been selected by U.P. Secondary Education Services Selection Board, he was appointed in Baldev Vaidik Inter College, Paliyankalan, District Kheri. Services of the petitioner were later on transferred to another recognized Intermediate College, namely, Jai Ram Verma Bapu Smarak Inter College Nausanda, Ambedkar Nagar. In the later institution i.e. Jai Ram Verma Bapu Smarak Inter College Nausanda, Ambedkar Nagar, vacancy in Lecturer's Grade occurred on 01.07.2011 on retirement of the regular incumbent on 30.06.2011. The case of the petitioner was considered by the Committee of Management and necessary papers were sent to the authorities for approval as per requirement of Rule 14 of U.P. Secondary Education Services Selection Board Rules, 1998 (for brevity "Rules, 1998").

The claim of the petitioner was rejected by the order dated 09.07.2014 passed by the Joint Director, Faizabad Division, Faizabad which was assailed in Writ Petition No.6767 (S/S) of 2014. The said writ petition has been dismissed observing therein that admittedly the petitioner had not completed five years' continuous regular service on 1st of July, 2011 i.e. on the date of occurrence of vacancy as such he was not eligible for promotion to the post in question.

Certain other contentions were also raised by learned counsel for the petitioner while arguing the matter which too were negatived by the order dated 19.11.2014 which is under review in this petition.

Rule 14 of the Rules, 1998 prescribes the procedure for recruitment by promotion which is quoted hereinbelow.

"14. Procedure for recruitment by promotion. -

(1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same.

Notes - For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2). The criterion for promotion shall be seniority subject to the rejection of unfit.

(3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the proforma given in Appendix "A".

(4) Within three weeks of the receipt of the list from the management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director.

(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.

(6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix 'F' to such candidate."

The afore-quoted Rule contains a phrase 'have completed five years continuous regular service as such on the first day of the year of recruitment'. The said phrase became subject matter of discussion before a Full Bench of this Court in the case of Raeesul Hasan vs. State of U.P. and others in Writ Petition No.1593 (S/S) of 2001. The Full Bench decided the issue raised before it vide judgment dated 14.05.2015. The Full Bench of this Court in the said case has held that it is not the date on which the vacancy has occurred, but the year of recruitment which is relevant for the determination of eligibility for promotion to the Lecturers' Grade under the Rules of 1998. After the aforesaid judgement rendered by the Full Bench of this Court, there does not remain any ambiguity as to the interpretation of the aforesaid phrase occurring in Rule 14 of the Rules, 1998.

The judgment under review in this petition is primarily based on the premise that the candidate concerned has to fulfill the eligibility criteria of five years continuous regular service on the first day of the year of recruitment, however, the first day of the year of recruitment has been treated to be 01.07.2011 which, in fact, is not the first day of the year of recruitment; rather it is the date on which the vacancy had occurred on account of retirement of the earlier incumbent. The Full Bench of this Court in the case of Raeesul Hasan (supra) has elaborately dealt with as to the meaning of the expression 'year of recruitment' and has also taken note of the chronological amendments made in the rules framed under U.P. Secondary Education Services Selection Board Act. The Full Bench in the said case has also referred to a jugdment of Hon'ble Supreme Court in the case of Malik Mazhar Sultan and another vs. U. P. Public Service Commission and others, reported in 2003 (2) ESC 171 (SC) wherein the expression year of recruitment occurring in Uttar Pradesh Judicial Services Rules, 2001 has been held to mean a period of twelve months commencing from the first day of July of the calendar year in which the process of recruitment is initiated by the appointing authority.

In the instant case, admittedly immediately after occurrence of vacancy on 01.07.2011, no process of recruitment was initiated by the management which is the appointing authority, rather the process of appointment by way of promotion against the post in question was initiated on 09.02.2014 by the committee of management by considering the case of the petitioner and by passing a resolution for appointing him on the post of Lecturer in Geography.

Thus, since the process of appointment was initiated not on 01.07.2011 but on 09.02.2014, hence the eligibility has to be considered on first July of the calendar year for the reason that 'year of recruitment' has been defined in Section 2 (l) of U.P. Secondary Education Service Selection Board Act, 1982 to mean a period of five twelve months commencing from first day of July of the calendar year.

In the instant case, the recruitment process said to have been initiated on 09.02.2014, as such the first day of the year of recruitment will be 01.07.2013.

Thus, in view of the aforesaid discussions, the order dated 19.11.2014 needs to be reviewed.

Accordingly, the review petition is allowed and the order dated 19.11.2014 passed in Writ Petition No.6567 (S/S) of 2014 is hereby set-aside. The said writ petition is also allowed and the order under challenge in the petition dated 09.07.2014 passed by the Joint Director of Education, Faizabad Division, Faizabad is also quashed.

The Joint Director of Education, Faizabad Division, Faizabad shall re-consider the entire matter relating to claim of the petitioner for his promotion to the post in question afresh in the light of observations made hereinabove and also take note of the judgment rendered by the Full Bench of this Court in the case of Raeesul Hasan (supra).

For the aforesaid purpose, the petitioner shall make a fresh representation before the authority concerned taking all the pleas which may be available to him and annexing therewith all the documents on which he intends to rely including the copy of the judgment rendered by Full Bench of this Court in the case of Raeesul Hasan (supra), within three weeks from today. On receipt of the said representation along with certified copy of this order, the case of the petitioner shall be considered and the decision shall be taken thereon afresh by the authority concerned within next four months.

Costs made easy."

6. Armed with the order passed in review petition, petitioner approached the authorities for grant of approval to his promotion. The Regional Level Committee accepted the petitioner's claim in light of the law laid down in Raeesul Hasan (Supra), vide its resolution dated 30th December, 2016. Directions were issued to undertake further steps in terms of the Rule 14 (6) of the Rules of 1998. Consequent orders were passed by District Inspector of Schools on 2nd January, 2017. Petitioner offered his joining on the post of lecturer on 2nd January, 2017.

7. Petitioner, however, was not satisfied. A claim was raised by him before the authorities for grant of approval w.e.f. 9th February, 2014 i.e. the date of passing of the resolution for grant of promotion. Such claim remained pending. A fresh petition was filed before this Court, being Service Single No. 10565 of 2017 (Sunil Kumar Verma Vs. State of U.P. Thru Prin. Secy. Secondary Edu. Civil Sectt. & Ors.), which came to be disposed of by following orders passed on 12th May, 2017:-

"As the issue of correction/modification in the order of promotion of the petitioner is to be examined by the Committee headed by the Joint Director of Education, Faizabad Region, Faizabad, the present writ petition is disposed of finally with the direction to the opposite party No.2-Joint Director of Education, Faizabad Region, Faizabad, to place the issue before the Regional Committee within a period of one month from the date of receipt of a certified copy of this order. The Regional Committee, thereafter, shall examine the issue for correction/modification of the order of promotion of the petitioner regarding the date of the promotion of the petitioner on the post in question, in the light of the observations made in writ petition No. 3887 of 2003 (SS) : Kashi Prasad Sharma Vs. The Committee of Management, DAV Inter College, Balrampur and five others, decided on 11.4.2016, expeditiously, say, within next two months. The decision so taken shall be communicated to the petitioner forthwith."

8. In the meantime, respondent no. 6 was selected for the post of lecturer in Hindi by the U.P. Secondary Education Selection Board on 2.10.2012. He was subsequently transferred, on his own request, under the orders of Director of Education dated 27.12.2016, to the institution concerned at Ambedkar Nagar, and he joined on 30th December, 2016. He challenged the grant of approval to petitioner's promotion, vide order dated 30.8. 2016 by way of representation made before the Regional Level Committee on 22.5.2017, on the ground that petitioner lacked essential qualification on the date of accrual of vacancy, and that the full Bench judgement in Raeesul Hasan (Supra) had already been referred to a larger Bench. By a subsequent representation dated 6.6.2017, respondent no. 6 brought on record the order passed by the larger Bench consisting of five Hon'ble Judges in Smt. Sadhna (Supra) decided on 30th May, 2017, whereby the larger Bench judgement in Raeesul Hasan (Supra) was held as not laying down the correct law. Paragraph 75 and 76 of the judgement delivered by majority, reads as under:-

"We are, therefore, of the considered opinion that the Full Bench in the case of Raeesul Hasan (Supra) does not lay down the correct law.

"For the aforesaid reasons, the answer to the questions as referred is as under:

(a) The year of recruitment both for the determination of vacancies for direct recruitment and for the purpose of Rule, 14 of Rules, 1998 for determining the eligibility of the candidates for promotion has to be one and the same. Full Bench judgment in the case of Raeesul Hasan (Supra) does not lay down the correct law

(b) With the determination of the vacancies for direct recruitment, the number of posts within the promotion quota stands determined and it is at this stage that the Committee with reference to Rule 14 of Rules, 1998 has to decide as to whether an eligible candidate for promotion within feeding cadre is available or not. If the answer is in negative, the vacancy has to be included within the quota for direct recruitment.

(c) The Full Bench in the case of Prashant Kumar Katiyar (Supra) has correctly held that the Management cannot be provided leverage in the matter of determination of the year of recruitment and in the matter of promotion, as it will lead to nepotism and favoritism.

(d) Determination of the vacancies for direct recruitment along with reservation to be applied has to be done by the Management within the time frame fixed under Rule 11 (2) of Rules, 1998.

(e) So far as the post within the promotion quota is concerned, the post remaining after determination of direct recruitment quota would fall therein."

9. The Joint Director of Education passed an order on 7th June, 2017, requiring the parties to appear for hearing upon the objection of respondent no. 6, in light of the judgment delivered by the larger Bench. Respondent no. 6 appeared and appears to have pressed his claim for revocation of approval to petitioner's promotion. It is in this context that the order impugned has been passed, withdrawing the approval granted to petitioner's promotion, and is challenged in this petition.

10. Learned counsel for the petitioner submits as under:-

(i) Once the approval to petitioner's promotion had been granted on 30th December, 2016, and the only direction issued by the writ Court was to consider the question of grant of approval from the date of resolution i.e. 9.2.2014, it was impermissible for the authorities to have revoked the approval granted on 30th December, 2016.

(ii) That the full Bench judgement in Smt. Sadhna (Supra) would apply prospectively, and would not effect the actions already undertaken. For such proposition, reliance is placed upon division Bench judgement of this Court in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, reported in 1998 (3) UPLBEC 1722.

(iii) It is also contended that the order withdrawing the approval could only be passed by Director, exercising his powers under Section 16 (E) 10 of the U.P. Intermediate Education Act, and not by the Regional Level Committee. It is also contended that the Regional Level Committee has no power to review its own judgement.

11. Submission of Sri G.C. Verma, learned counsel for the petitioner is supported by Sri H.G.S Parihar, learned Senior Counsel assisted by Smt. Meenakshi Singh Parihar, appearing for the Committee of Management of the transferred institution.

12. Sri Parihar, learned Senior Counsel has placed reliance upon various decisions to contend that as the law has now been settled by the larger Bench in Smt. Sadhna (Supra), as such, the previous actions taken would have to be saved, and the doctrine of prospective overruling need be pressed into service.

13. Learned Standing Counsel, as well as Sri R.S. Tiwari, learned counsel appearing for respondent no. 6 have opposed the petition.

14. On the basis of respective submissions, following questions arise for consideration in this case:-

(i) Whether the judgement in Smt. Sadhna (Supra) is prospective, and the promotions already made pursuant to earlier larger Bench judgement in Raeesul Hasan (Supra) would stand saved ?

(ii) Whether the order withdrawing grant of approval could be passed by the Regional Level Committee, since under the statute it is the Director alone who could do so by invoking powers under section 16 (E) 10 of the U.P. Intermediate Education Act?

15. Facts giving rise to this petition are not in issue. Promotion to the post of lecturer in a recognized Intermediate Institution is governed by provisions of U.P. Secondary Eduacation (Service Selection Board) Act, 1982, as well as Rules framed thereunder. Section 12 contemplates procedure for selection by promotion by a selection Committee. The procedure to be followed for promotion by the Committee of Management shall be such as may be prescribed. Rules have been framed under the Act of 1982, known as U.P. Secondary Education Service Selection Board Rules, 1998. The vacancy against which petitioner claims promotion came into existence on 1st July, 2011. Admittedly, petitioner was not working in the transferred institution on that day nor he possessed requisite qualification i.e. of five years teaching experience in terms of the Rule 14 of the Rules of 1998. Claim of petitioner, therefore, in terms of the Rule 14 was rejected by the Joint Director vide order dated 9th July, 2014. Such claim of petitioner, however, came to be allowed only in view of the law laid down by the larger Bench in Raeesul Hasan (Supra).

16. It would be relevant to note that even before the judgment in Raeesul Hasan (Supra) could be given effect to, by way of grant of approval to promotion on 30th December, 2016, another Division Bench had already referred the issue to a larger Bench vide order dated 15th July, 2016. It is on record that on the date the review petition of the petitioner was allowed on 30th August, 2016, the reference to larger Bench had already made. This aspect, however, does not appear to have brought to the notice of the Court. The question as to whether the larger Bench in Raeesul Hasan (Supra) has correctly interpreted the law, has been examined by a still larger Bench in Smt. Sadhna (Supra). It is held that the judgment in Raeesul Hasan (Supra) does not lay down the correct law.

17. Learned counsel for the petitioner, as well as Sri Parihar, learned counsel for the respondents, have essentially relied upon the doctrine of prospective overruling to save approval to petitioner's promotion. The Division Bench Jugement in Ashika Prasad (Supra) has been relied upon.

18. A full Bench of this Court in Radha Raizada and Others Vs. Committee of Management, Vidyawati Darbari Girl Inter College and others, reported in (1994) 3 UPLBEC 1551 conclusively held that procedure for notifying the short term vacancy should be the same as it is for adhoc appointment by direct recruitment in a substantive vacancy, under the first removal of difficulties order i.e. publication of vacancy in two newspapers, having wide circulation. The Division Bench in Ashika Prasad (Supra) dealt with the question as to whether the appointments already made, without following such procedure, would survive ? The law on the subject was elaborately considered. The doctrine of prospective overruling coined in Linkletter vs. Walker, reported in 381 US 618, adopted in Golak Nath Vs. State of Punjab, AIR 1967 SC 1643, as followed in Keshvanand Bharti Vs. State of Kerala, reported in AIR 1973 SC 461 and in Managing Director E.C.I.L. Hyderabad Vs. B. Karunakar, JT 1993 (6) SC 1 was examined.

19. The applicability of the principle, in the context of situation emerging therein was noticed in para 10 in following words:-

"10. However, the question of legal nicety that arises for consideration is as to whether the direct appointment made in a short-term vacancy prior to K. N. Dwiviedi or the Full Bench decision in Radha Raizada by notifying the vacancy only on the Notice-board of the Institution and without following the procedure of notifying the vacancy as prescribed in the First Removal of Difficulties Order would be void? in K. N. Dwivedi. a learned single Judge holding the provisions providing for ad hoc appointment by direct recruitment by merely notifying the vacancy on the Notice-board of the Institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short-term vacancies by merely notifying the same on the Notice-board of the Institution. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada and Radha Raizada has not overruled any previous decision of the Court on the question as to whether the appointment of a teacher by direct recruitment in a short-term vacancy made by notifying the vacancy on the Notice-board of the Institution sans any public notification would be void. Rather, some words have been read in the Statute (Second Removal of Difficulties Order) both in K. N. Dwivedi and Radha Raizada and the decisions therein are tantamount to amending the Statute by reading therein the requirement of giving public notice of the vacancy in addition to its notice on the Notice-board of the Institution with a view to saving the statute from being struck down as violative of Article 16(1) of the Constitution on one hand and advancing the object of the Act on the other. It cannot be repudiated that addition of words in the Statute by aid of judicial interpretation is permissible in certain situations, viz.. where it is considered necessary to do so in order to give effect to the intention of the Legislature or to avoid the particular provision being struck down as violative of any provisions of the Constitution. In a situation where addition of words is made in the Statute by Court, the 'doctrine of overruling' in its strict sense is not attracted. Instead, the Statute stands altered and/or modified as per the verdict of the Court. We are, therefore, of the considered view that the principle governing interpretation of legislative enactments vis-a-vis retroactivily. would apply to a situation where the Statute is altered by judicial verdict and the principle is that the change so brought about, would not project on the past events or transaction so as to affect vested rights unless the judicial verdict wreaking changes in the Statute by 'reading in' or 'reading down' is itself given retroactive operation."

20. The Division Bench interpreted the larger Bench jugement in Radha Raizada (Supra) to hold that some words have been read in the statute (second removal of difficulties order), and the decision is tantamount to amending the statute, by reading therein the requirement of publication of short term vacancy. Noticing it, the Division Bench observed that it was a case of addition of words in the statues by the Court, on account of which Doctrine of overruling in its strict sense is not attracted, and that principle governing interpretation of legislative engagements viz-a-viz retroactivity would apply where the statute is altered by judicial verdict. Such is not the case here. It is only the provision contained in Rule 14 which has been clarified in Smt. Sadhna (Supra). Even otherwise the larger Bench in Smt. Sadhna (Supra) has not made the interpretation, prospective.

21. In Dr. Suresh Chandra Verma And Ors Vs. Chancellor, Nagpur University and Ors, reported in 1990 AIR 2023, the Apex Court has observed as under:-

"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 have taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakare's case (supra), 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 Bhakare's case (supra), 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."

Where the Court decides that an earlier interpretation of law was not correct, it in effect, declares that law as it stood from the very beginning and that it was never the law otherwise. The full Bench judgment in Smt. Sadhna (Supra) has merely interpreted the provision as it stood on the statue book, and the declaration made by it, would be treated to be the position of law from the very beginning. The facts of the instant case are clearly covered by the judgement of Apex Court in Suresh Chandra Vernma (Supra) and the division Bench in Ashika Prasad (Supra), would have no applicability in the facts of the present case.

22. At this juncture, it would be appropriate to notice that the doctrine of prospective overruling is an exception only, and has to be specifically stated in clear terms. Judgment of the Apex Court in B.A.Linga Reddy and Ors. vs Karnataka State Transport Auth.& Others, reported in 2015 (4) SCC 515, is apposite in the facts of the present case. Para 34 of the report is reproduced:-

"34. The view of the High Court in Ashrafulla (supra) has been reversed by this Court. The decision is of retrospective operation, as it has not been laid down that it would operate prospectively; more so, in the case of reversal of the judgment. This Court in P.V. George & Ors. V. Stte of Kerala & Ors. [2007 (3) SCC 557] held that the law declared by a court will have a retrospective effect if not declared so specifically. Referring to Golak Nath v. State of Punjab [AIR 1967 SC 1643] it had also been observed that the power of prospective overruling is vested only in the Supreme Court and that too in constitutional matters. It was observed :

"19. It may 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.

29. 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."

23. In Kulwant Singh and Others Vs. Daya Ram and Others, reported in (2015) 3 SCC 177 following observations have been made by Apex Court in Para 37 and 44:-

"37. The principal assail of Mr. Patwalia is that the judgment and order passed in the year 1988 was the foundation of the decision dated 8.1.1990 and that decision could not have been the subject-matter of challenge before the High Court as per L. Chandra Kumar (supra). In L. Chandra Kumar (supra) the larger Bench, while opining that the question on which the tribunals have jurisdiction to decide its decision would be subject to scrutiny before the Division Bench of the respective High Courts, observed that the directions issued in the said case would come into effect prospectively, i.e., it would apply to decisions rendered after March 18, 1997, i.e., the date the decision in L. Chandra Kumar was rendered. The doctrine of prospective overruling was invoked to maintain the sanctity of judicial precedents and not to disturb a procedure in relation to decisions already rendered.

44. It is apt to note here that the real cause of grievance arose for the respondents on 23.9.1998 and on that ground the High Court repelled the submission of delay and laches. Mr. Patwalia, learned senior counsel for the appellants, has harped on the ground that the writ petition was not maintainable against such an order in view of L. Chandra Kumar (supra). First, we will look at the facet of non-impleadment which has been highlighted by Mr. Gupta. The said submission has two limbs. First, the mere awareness of pendency of litigation because it is mentioned "subject to decision in Original Application" does not make the order binding upon them and the second, by the time the judgment dated 8.1.1990 was pronounced all the respondent were sent for Lower School Course and promoted and, therefore, they were clearly identified as the ultimately affected parties and hence, were necessary parties for the purpose of adjudication of the lis. "

24. In Madhava Reddy and Others Vs. State of Andhra Pradesh and Others, reported in (2014) 6 SCC 537, the law has again been clarified to hold that it is with the object of eliminating uncertainty of law that the principle itself has been evolved.

25. In P.V. George and Others Vs. State of Kerala and Others, reported in 2007 (3) SCC 557, the Hon'ble Supreme Court has put fetters on the exercise of principle, by the High Court, contending that power to declare the ruling to be prospective is limited to the Supreme Court, and that the High Court may grant relief only by exercising its equity jurisdiction:-

"18. If the 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. Legal consequences are determined in respect of the matters which had taken place in the past.

19. It may 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.

20. As 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 :

"The 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."

21. 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 : "Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle 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 Gupra v. State of U.P. and Baburam 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. "

26. In light of the aforesaid position of law, it is apparent that the doctrine of prospective overruling would have no applicability in the facts of the present case, inasmuch as, only the position of law has been clarified in Smt. Sadhna (Supra), and necessary ingredients to invoke principles of prospective overruling do not exist here. The principles of equity would also not come to the rescue of petitioner, inasmuch as the petitioner's promotion was not approved initially and it was only on the basis of larger Bench Judgment in Raeesul Hasan (Supra) that the petitioner's promotion was approved, during the pendency of reference before the larger Bench. Once the law has been clarified by the larger Bench and the decision in Raseesul Hasan (Supra) is held not to be a good law, the position that stood earlier would stand restored. The principles of equity would have no play in the facts of the present case. The first question is thus answered holding that approval granted to the petitioner's promotion would not be saved by applying the principles of prospective overruling, and the judgement in Smt. Sadhna (Supra) would not be treated to be having prospective applicability. This is particularly so as the larger Bench has also not held its judgment to be prospective.

27. Learned counsel for the petitioner has also contended that it is the Director alone, who had jurisdiction to set aside the order of approval, and that the Regional Level Committee could not have reviewed its decision. The argument in that regard is noticed to be rejected for more than one reason. First and foremost, it is to be noticed that Regional Level Committee has merely corrected its stand to bring it in conformity with the provisions of law. Its earlier decision not to accord approval being in consonance with the law declared by larger Bench in Sadhna (Supra) has been restored. It is also relevant to note that the promotion of petitioner had already been challenged by respondent no. 6, by way of representation, and the Regional Level Committee had otherwise taken note of it, and all parties were put to notice in that regard. The subsequent order is otherwise in conformity with the position of law, as is interpreted by the larger Bench. The issue as to whether only the Director could pass such an order under Section 16 (E) 10, need not detain this Court any further, inasmuch as any interference with the decision of the Regional Level Committee, under challenge, would revive the approval granted to the petitioner's promotion on 30th December, 2016, based upon the judgement in Raeesul Hasan (Supra). Law is settled that this Court would not interfere with an order, which would revive an illegality. Such being the situation, I am of the opinion that approval to petitioner's promotion has rightly been withdrawn by the Regional Level Committee, in the facts and circumstances of the present case.

28. Writ petition consequently fails, and is dismissed.

Order Date :- 19.9.2017

Arshad