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TMI Blog2019 (1) TMI 1988X X X X Extracts X X X X X X X X Extracts X X X X ..... intment on compassionate ground on 6/6/2005 and at the time of death of the father of the petitioner, policy dated 1/5/2000 was in vogue. The claim of the petitioner is that as the application for appointment on compassionate ground was rejected by respondent no.2 ignoring the policy dated 1/5/2000, therefore, the petitioner filed a writ petition before this Court, which was registered as Writ Petition No.3774/2007 (s) and the said writ petition was allowed by order dated 22/7/2009 and order dated 13/7/2007 passed by respondent no.2 was quashed and the following order was passed:- "Resultantly, without commenting upon the merits of the case, as this Court is of the considered opinion that the policy issued in the year 2007 has wrongly been applied in the case of petitioner, the impugned order dated 13/07/2007 passed by the respondent/Collector is hereby set aside. The matter is remitted back to the respondent/Collector to consider the case of the petitioner afresh taking into consideration the earlier policy issued by the State Government dated 01/05/2000 enclosed as Annexure P/26. The aforesaid exercise of considering the case of the petitioner and passing a fresh order as per p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable. However, thereafter, there were some diversant views in the light of the judgment passed by the Supreme Court in the case of Canara Bank and another Vs. M. Mahesh Kumar reported in (2015) 7 SCC 412 and accordingly, the matter was considered by the Full Bench of this Court and the controversy has been rest to peace by judgment passed by this Court in the case of State of M.P. and others Vs. Laxman Prasad Raikwar reported in 2018 (4) MPLJ 657. Heard learned counsel for the parties. The question that whether the policy in existence on the date of death of a Government employee or the policy which is in existence on the date of consideration of the application for compassionate ground would be applicable, is no more res integra. The Full Bench of this Court by judgment passed in the case of Laxman Prasad Raikwar (supra) has held as under:- "8. In the case of Canera Bank Vs. M. Mahesh Kumar (Supra), the Bank has challenged the order passed by the High Court directing for consideration on the application for compassionate appointment as per scheme dying in "harness scheme, 1993". The Apex Court has taken note of the facts that initially there was a scheme of compassionate appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the policy which was in vogue on the date of death of the father of the petitioner. It is further submitted the principle of res judicata is applicable to Writ Petitions filed under Article 32 or 226 of the Constitution of India also and once it was already directed by the Court in the first round of litigation that the policy which was in vogue on the date of death of the Government employee would prevail and the application for grant of compassionate appointment should be considered on the basis of the said policy, therefore, the said judgment would apply as res judicata. It is well established principle of law that the principle of prospective overruling of judgment, does not apply except where, it is specifically mentioned. The Supreme Court in the case of Sarwan Kumar and Another Vs. Madan Lal Aggarwal reported in (2003) 4 SCC 147 has held as under:- "15. For the first time this Court in Golak Nath v. State of Punjab accepted the doctrine of "prospective overruling". It was held: (AIR p. 1669, para 51) "51. As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move wari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 overruling 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 v. State of Punjab. In Managing Director, ECIL v. B. Karunakar the view was adopted. Prospective overruling 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. and Baburam v. C.C. Jacob.) It is for this Court to indicate as to whether the decision in question will o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly by the highest court of the country i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its 'earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before it." 11. It is interesting to note that the doctrine has not remained confined to overruling of earlier judicial decision on the same issue as was understood in Golak Nath case. In several later decisions, this Court has invoked the doctrine in different situations including in cases where an issue has been examined and determined for the first time. For instance in India Cement Ltd. v. State of T.N., this Court not only held that the levy of the cess was ultra vires the power of the State Legislature brought about by an amendment to the Madras Village Panchayat Amendment Act, 1964 but also directed that the State would not be liable for any refund of the amount of that cess which has been paid or already collected. In Orissa Cement Ltd. v. State of Orissa, this Court drew a distinction between a declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Article 142, this Court held that the expression "complete justice" are words meant to meet myriad situations created by human ingenuity or because of the operation of statute or law declared under Articles 32, 136 or 141 of the Constitution. This Court observed: (Ashok Kumar Gupta case, SCC pp. 250-51, para 60) "60. ... The power under Article 142 is a constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142(2), the Court would take that prohibition (sic provision) into consideration before taking steps under Article 142(2) and we find no limiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase 'complete justice' engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, in the case of reversal of the judgment. This Court in P.V. George v. State of Kerala 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 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: (P.V. George case, SCC pp. 565 & 569, paras 19 & 29) "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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 case. 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." The Supreme Court in the case of P.V. George Vs. State of Kerala reported in (2007) 3 SCC 557 has held as under : "27. The 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. Thus, no decision was rendered in their favour nor any right accrued thereby." Thus, it is clear that the principle of prospective overrulin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner. As already observed, this Court had held that since, the policy which was in vogue on the date of the death of the Govt. employee would be applicable, therefore, the respondents were directed to reconsider the case of the petitioner in the light of the said policy. However, there was no determination of the right of the petitioner. The petitioner was not declared entitled for appointment on compassionate ground. Thus, this Court is of the view that the process for consideration of the application for appointment on compassionate was still in progress and there was no final adjudication of the right of the petitioner, and under this circumstance, the principle of Res Judicata would not apply in the light of non-application of the principle of prospective overruling. The law declared in the subsequent judgment, thereby overruling the earlier judgment, has to be considered as a law, to be in force from the very inception. Therefore, this Court is of the considered opinion that although this Court in the first round of litigation might have directed the respondents to consider the application of the petitioner for appointment on compassionate ground in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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