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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.   4947-4951      OF 2014 (Arising out of S.L.P. (C) Nos.36274-36278 of 2010)

K. Madhava Reddy & Ors. …Appellants

Versus

Govt. of A.P. & Ors. …Respondents

WITH Contempt Petitions (C) No.445-449 of 2013

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals are directed against an order dated 9th  

March, 2007 passed by the High Court of Judicature, Andhra  

Pradesh at Hyderabad whereby the High Court has set aside  

the order passed by the State Administrate Tribunal in OA  

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No.6334 of 1997 to the extent the same holds the judgment  

of this Court in V. Jagannadha Rao and Ors. v. State of   

Andhra  Pradesh and Ors.  (2001) 10 SCC 401, to  be  

prospective in its application. An order dated 3rd November,  

2010 passed by the High Court dismissing a review petition  

filed by the appellants against the said order has also been  

assailed.  The facts in the backdrop are as under:

3. In V. Jagannadha Rao and Ors. v. State of Andhra   

Pradesh  and  Ors.  (2001)  10  SCC  401, a  three-Judge  

Bench was examining whether Special Rules framed by the  

Governor of Andhra Pradesh under proviso to Article 309 of  

the  Constitution  to  the  extent  the  same  permitted  

“appointment by transfer” to a higher category on the basis  

of seniority-cum-efficiency were violative of para 5(2) of the  

Presidential  Order  issued  under  Article  371-D  of  the  

Constitution of India, 1950. Answering the question in the  

affirmative this Court held that the Presidential Order dated  

18th October,  1975  issued  under  Article  371-D  of  the  

Constitution was aimed at providing equitable opportunities  

and facilities to the people belonging to different parts of the  

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State  in  the matter  of  public  employment,  education  etc.  

and that the Rules framed by the State Government under  

proviso  to  Article  309  whereby  UDCs  of  the  Labour  

Department,  and  Factories  and  Boilers  Department  were  

made  eligible  for  recruitment  by  transfer  to  the  posts  of  

Assistant  Inspector  of  Labour/Assistant  Inspector  of  

Factories  were  violative  of  the  Presidential  Order.  The  

question had arisen on account of a challenge mounted by  

the Ministerial employees of the Labour Department against  

GOMs No.72 dated 25th February, 1986 and GOMs No.117  

dated  28th May,  1986  whereunder  UDCs  in  the  Labour  

Department  and  those  working  in  Factories  and  Boilers  

Department were made eligible for recruitment by transfer  

to the posts of Assistant Inspectors of Labour and Assistant  

Inspectors of Factories. A full Bench of Tribunal before whom  

the challenge came up for consideration declared that the  

impugned Rules to the extent they enabled the Ministerial  

employees of the Factories and Boilers Department or any  

other department to be considered for appointment to the  

posts in the Labour Department were violative of paras 3  

and 5 of the Presidential Order and hence void.  The view  

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taken by the Tribunal was questioned before this Court by  

the aggrieved employees. Dismissing the appeals, this Court  

held that according to the scheme of the Presidential Order,  

local  cadre  was  the  unit  under  para  5(1)  thereof  for  

recruitment,  appointment,  seniority,  promotion  and  

transfers.   This  Court  further  held  that  while  para  5(2)  

authorised  the  State  Government  to  make  provisions  for  

‘transfer’  in  certain  specified  circumstances,  yet  the  term  

‘transfer’  could not  be enlarged in  its  amplitude  so as to  

include promotional aspects.  This Court observed:

“18. We find that para 5(2) of the Presidential Order   speaks of transfer and not of promotion. It would be   hazardous to accept the contention of the appellants   that  promotion  is  included  in  the  expression   “transfer” and no assistance can be availed from the  distinction  made  in  para  5(1)  of  the  Order.  No   provision  or  word  in  a  statute  has  to  be  read  in   isolation.  In fact,  the statute has to be read as a   whole.  A  statute  is  an  edict  of  the  legislature.  It   cannot  be  said  that  without  any  purpose  the   distinction was made in para 5(1) between transfer   and promotion and such distinction was not intended   to be operative in para 5(2).  The intention of  the   legislature  is  primarily  to  be  gathered  from  the   language used, which means that attention should   be paid as to what has been said as also to what has   not been said. (See Mohd. Ali Khan v. CWT (1997) 3  SCC 5111 and Institute of Chartered Accountants of   India v. Price Waterhouse (1997) 6 SCC 312.)

19.  We,  therefore,  find  no  reason  to  accept  this   stand of the appellant that the expression “transfer”   takes within its scope a promotion”.  

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4. Overruling  the  decisions  rendered  by  this  Court  in  

State of Andhra Pradesh and Anr. v. V. Sadanandam  

and Ors. 1989 Supp. (1) SCC 574, and in Govt. Of A.P.  

and Anr. v. B. Satyanarayana Rao (Dead) by Lrs. And   

Ors. (2000) 4 SCC 262,  this Court held that in terms of  

Article 371-D (10) of the Constitution any order made by the  

President shall have effect notwithstanding anything in any  

other provision of the Constitution or in any law for the time  

being  in  force.  This  implies  that  if  the  Presidential  Order  

prohibits  consideration  of  employees  from  the  feeder  

category  from  other  units  then  any  rule  made  by  the  

Governor  in  exercise  of  powers  vested  in  him under  the  

proviso to Article 309 of the Constitution will be bad in law,  

hence,  liable  to  be  struck  down.  So  also  if  the  State  

Government  makes  any  provision  which  is  outside  the  

purview of the authority of the Government under para 5(2)  

of the Order, any such provision shall also be legally bad and  

liable to be struck down.  This Court on that logic held:

“In the case in hand, the impugned provisions do not   appear to have been framed in exercise of powers   under  para  5(2)  of  the  Presidential  Order  and  as   such the same being a Rule made under proviso to   Article 309 of the Constitution, the Presidential Order   

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would prevail, as provided under Article 371-D(10)   of the Constitution. Even if it is construed to be an   order  made  under  para  5(2)  of  the  Presidential   Order,  then also  the same would  be invalid  being   beyond  the  permissible  limits  provided  under  the   said  paragraph.  In  this  view  of  the  matter,  the   Tribunal  rightly  held the provision to the extent  it   provides  for  consideration  of  employees  of  the  Factories  and  Boilers  Units  to  be  invalid,  for  the   purpose  of  promotion  to  the  higher  post  in  the   Labour Unit and as such we see no justification for   our  interference  with  the  said  conclusion  of  the   Tribunal  and the earlier  judgment of  this  Court  in   Sadanandam case 1989 Supp (1) SCC 574 must be  held  to  have  not  been  correctly  decided.  As  a   consequence,  so  would  be  the  case  with  Satyanarayana Rao case (2000) 4 SCC 262.”

5. The current controversy does not relate to GOMs No.72  

dated 25th February, 1986 and GOMs No.117 dated 28th May,  

1986  which  fell  for  consideration  before  this  Court  in  V.  

Jagannadha Rao’s case (supra). The case at hand arises  

out  of  slightly  different  though  essentially  similar  

circumstances.  The present batch of cases relates to G.O.M.  

No.14, Labour Employment & Training (Ser. IV) Department,  

dated 26th November, 1994, as amended by G.O.M. No.22  

dated 9th May, 1996.  These two G.O.Ms. provide that while  

Senior Assistants and Senior Stenographers working in the  

Subordinate Offices of the Labour Department constitute the  

feeding  channel  under  Rule  3  of  Andhra  Pradesh  Labour  

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Subordinate  Service  Rules,  Senior  Assistants  and  Senior  

Stenographers  working  in  the  Head  Offices  shall  also  be  

eligible for appointment by transfer to the post of Assistant  

Labour  Officer.  Aggrieved  by  the  G.O.Ms.  some  of  the  

employees  approached the Andhra Pradesh Administrative  

Tribunal for redressal.   Their grievance primarily was that  

since the post of Assistant Labour Officer is a zonal post,  

employees  working  in  the  respective  zones  alone  were  

entitled to be included in the feeding channel.  Inclusion of  

other  categories  from  outside  the  zone  in  the  feeding  

channel  for  purposes  of  promotion  or  appointment  by  

transfer was offensive to paras 3(3) and 5(1) of the Andhra  

Pradesh Public Employment (Organisation of Local Cards and  

Regulation  of  Direct  Recruitment) Order,  1975 referred to  

hereinabove  as  the  Presidential  Order  against  the  

employees.  These  petitions  were  partly  allowed  by  the  

Tribunal  in  terms of  its  order  dated  7th March,  2003 and  

G.O.M. No.14, dated 26th November, 1994, as amended by  

G.O.M.  No.22  dated  9th May,  1996  struck  down  as  

unconstitutional to the extent the same provided a channel  

for  Senior  Assistant  and  Senior  Stenographer  in  Andhra  

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Pradesh Ministerial  Service working in the Head Offices of  

Labour  Department  and  those  in  Factories  and  Boiler  

Departments besides those in the Subordinate Offices in the  

said Departments for appointment by transfer to the post of  

Assistant  Labour  Officer.  The  Tribunal  also  struck  down  

related provisions in the impugned G.O.Ms. stipulating quota  

and rotation etc. for these categories as being in violation of  

the Presidential Order with a direction that the respondents  

shall not give effect to the said provisions.  Having said that  

the Tribunal directed that the striking down of the impugned  

G.O.Ms. would only be prospective and that any action taken  

in compliance with the said Rules till  7th November,  2001  

shall not be disturbed nor any employee promoted on the  

basis  of  the  legal  position  that  prevailed  earlier  to  the  

decision of this Court in V. Jagannadha Rao’s case (supra)  

reverted.  

6. The  aggrieved  employees,  who  had  approached  the  

Tribunal  having  succeeded  but  only  in  part,  filed  Writ  

Petitions  No.6163  and  6068  of  2004  whereby  they  

challenged  the  judgment  of  the  Tribunal  to  the  extent  it  

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saved  the  promotions  already  made  on  the  basis  of  the  

impugned G.O.Ms. Writ Petition No.16890 of 2006 was also  

filed  against  the  very  same  judgment  by  some  of  the  

employees  who  felt  aggrieved  by  the  view  taken  by  the  

Tribunal that the impugned G.O.Ms. were in violation of the  

Presidential Order hence unconstitutional. A Division Bench  

of the High Court of Andhra Pradesh has, in terms of the  

judgment and order under challenge before us, allowed Writ  

Petitions  No.6123  and  6068  of  2004  but  dismissed  Writ  

Petition  No.16890  of  2006  relying  upon  certain  decisions  

rendered by this Court.  The High Court has taken the view  

that the doctrine of prospective overruling could be invoked  

only by the Apex Court and not by other  Court  including  

High  Courts  exercising  powers  under  Article  226  of  the  

Constitution. The net effect of the view taken by the High  

Court, therefore, is that not only are the impugned G.O.M.  

held to be unconstitutional, but any action taken pursuant  

thereto is also declared to be unconstitutional.  

7. The  appellants  in  these  appeals  are  employees  who  

were not arrayed as parties to the writ petition filed before  

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the High Court. Feeling aggrieved of the judgment and order  

passed by the High Court they filed Review WPMP No.3576  

of  2010,  inter  alia,  contending  that  the  judgment  under  

review had been passed without impleading employees like  

the appellants as parties to the case even though they were  

bound to be adversely affected by any modification that the  

High  Court  may  have  made.  It  was  contended  that  the  

review  petitioners-appellants  before  us  in  these  appeals  

were necessary parties not only to the O.As filed before the  

State Administrative Tribunal but even to the writ petitions  

filed  before  the  High  Court  and  that  in  the  absence  of  

necessary  parties  to  the  proceedings  the  petitions  

challenging  the  Rules  were  liable  to  be  dismissed.  That  

contention was, however, rejected by the High Court on the  

ground that the order passed by the Tribunal ought to have  

been challenged in a separate and independent writ petition  

by  anyone  aggrieved  by  the  same.  The  review  petitions  

were,  accordingly,  dismissed  and  the  prayer  for  grant  of  

leave to appeal to this Court rejected. The present appeals  

have been filed by the appellants in the above backdrop to  

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assail  the  correctness  of  the  two  judgments  and  orders  

passed by the High Court.  

8. We  have  heard  learned  counsel  for  the  parties  at  

length. The doctrine of prospective overruling has its origin  

in  American  jurisprudence.   It  was  first  invoked  in  this  

country in  C. Golak Nath & Ors. v. State of Punjab &  

Anr. AIR 1967 SC 1643, with this Court proceeding rather  

cautiously in applying the doctrine, was conscious of the fact  

that the doctrine had its origin in another country and had  

been invoked in different circumstances.  The Court sounded  

a note of caution in the application of the doctrine to Indian  

conditions  as  is  evident  from  the  following  passage  

appearing in  Golak Nath’s case (supra) where this Court  

laid down the parameters within which the power could be  

exercised.  This Court said:  

“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  warily  in  the  beginning.  We  would  lay  down  the   following  propositions:  (1)  The  doctrine  of  prospective  overruling  can  be  invoked  only  in   matters arising under our Constitution; (2) it can be  applied only 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   

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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.”

9. 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’s case  

(supra). 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. & Ors. v. State  

of Tamil Nadu & Ors. (1990) 1 SCC 12, this Court not  

only held that the levy of the cess was ultra vires the power  

of  State  legislature  brought  about  by  an  amendment  to  

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 &  

Ors. 1991  Suppl.  (1)  SCC  430, this  Court  drew  a  

distinction between a declaration regarding the invalidity of  

a provision and the determination of the relief that should be  

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granted in consequence thereof.  This Court held that it was  

open to the Court to grant, mould or restrict the relief in a  

manner most appropriate to the situation before it in such a  

way as to advance the interest of justice.

10. Reference  may also  be made to  the  decision  of  this  

Court in  Union of India & Ors. v. Mohd. Ramzan Khan  

(1991) 1 SCC 588 where non-furnishing of a copy of the  

enquiry  report  was taken as  violative  of  the  principles  of  

natural justice and any disciplinary action based on any such  

report was held liable to be set aside.  The declaration of law  

as to the effect of non supply of a copy of the report was,  

however, made prospective so that no punishment already  

imposed  upon  a  delinquent  employee  would  be  open  to  

challenge on that account.   

11. In  Ashok Kumar Gupta & Anr. V. State of U.P. &  

Ors. (1997) 5 SCC 201, a three Judge Bench of this Court  

held  that  although  Golak  Nath’s case  regarding  

unamendabiltiy  of fundamental rights under Article 368 of  

the  Constitution  had  been  overruled  in  Kesavananda  

Bharati  Sripadagalvaru  &  Ors.  v.  State  of  Kerala   

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(1973)  4  SCC  225 yet  the  doctrine  of  prospective  

overruling  was  upheld  and  followed  in  several  later  

decisions.  This Court further held that the Constitution does  

not  expressly  or  by  necessary  implication  provide  against  

the doctrine of prospective overruling. As a matter of fact  

Articles 32(4) and 142 are designed with words of width to  

enable the Supreme Court to declare the law and to give  

such directions or pass such orders as are necessary to do  

complete justice.  This Court observed:

“54.…….So, there is no acceptable reason as to why  the Court in dealing with the law in supersession of   the law declared by it earlier could not restrict the   operation of law, as declared, to the future and save   the  transactions,  whether  statutory  or  otherwise,   that were effected on the basis of the earlier law.   This Court is, therefore, not impotent to adjust the   competing rights of parties by prospective overruling   of  the  previous  decision  in  Rangachari ratio.  The  decision in Mandal case postponing the operation for   five  years  from  the  date  of  the  judgment  is  an   instance  of,  and  an  extension  to  the  principle  of   prospective overruling following the principle evolved   in Golak Nath case”.

12. Dealing with the nature of the power exercised by the  

Supreme Court 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  

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the operation of Statute or law declared under Articles 32,  

136 or 141 of the Constitution.  This Court observed:

“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   analysis, it is for this Court to exercise its power to   do complete justice or prevent injustice arising from  the exigencies of the cause or matter before it. The   question of lack of jurisdiction or nullity of the order   of  this  Court  does  not  arise.  As  held  earlier,  the   power  under  Article  142  is  a  constituent  power   within the jurisdiction of this Court. So, the question   of a law being void ab initio or nullity or voidable   does not arise.”

13. In M/s Somaiya Organics (India) Ltd. etc. etc. v.   

State of U.P. & Anr. 2001 (5) SCC 519, this Court held  

that the doctrine of prospective overruling was in essence a  

recognition of the principle that the Court moulds the relief  

claimed to meet the justice of the case and that the Apex  

Court  in  this  country  expressly  enjoys  that  power  under  

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Article  142 of  the Constitution  which  allows this  Court  to  

pass such decree or make such order as is necessary for  

doing complete justice in any case or matter pending before  

this Court.  This Court observed:

“In  the  ultimate  analysis,  prospective  overruling,   despite the terminology, is only a recognition of the   principle that the court moulds the reliefs claimed to   meet the justice of the case - justice not in its logical   but in its equitable sense. As far as this country is   concerned, the power has been expressly conferred   by Article 142 of the Constitution which allows this   Court to “pass such decree or make such order as is   necessary for doing complete justice in any cause or   matter pending before it”. In exercise of this power,   this Court has often denied the relief claimed despite   holding  in  the  claimants’  favour  in  order  to  do   “complete justice”.

14. 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.

15. In Kailash Chand Sharma v. State of Rajasthan &  

Ors. (2002)  6 SCC 562, the constitutional validity of rules  

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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.  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 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  

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decision  of  this  Court  in  Managing  Director,  ECIL  

Hyderabad  v.  B.  Karunakar (1993)  4  SCC  727.  

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 result in detriment to the candidates  

already appointed. The following observations made by this  

Court are apposite in this regard:

“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 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  Managing  Director,  ECIL v.  B.  Karunakar15 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   

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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  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.”  

16. There was some debate at the Bar whether the High  

Court  could  have  invoked  the  doctrine  of  prospective  

overruling  even  if  the  State  Administrative  Tribunal  was  

incompetent  to  do  so.  It  was  contended  by  the  counsel  

appearing for  the respondents  that  the predominant  legal  

opinion  emerging  from the  pronouncements  of  this  Court  

limited  the  application  of  the  doctrine  of  prospective  

overruling only by the Supreme Court. Neither the Tribunal  

nor the High Court could, according to the learned counsel,  

have  invoked  the  doctrine  assuming  that  there  was  any  

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justification  for  such  invocation  in  the  facts  and  

circumstances of the case.   

17. Mr. Jayant Bhushan, learned senior counsel appearing  

on behalf of the respondent, on the other hand, argued and,  

in our opinion, rightly so that it  was unnecessary for this  

Court  to  go  into  the  question  whether  the  doctrine  of  

prospective overruling was available even to the High Court.  

He urged that there could be no manner of doubt that even  

if the High Court was not competent to invoke the doctrine,  

nothing prevented this Court from doing so having regard to  

the fact that those promoted under the impugned rules had  

held their respective positions for a considerable length of  

time making reversion to their parent zone/cadre not only  

administratively difficult but unreasonably harsh and unfair.  

It was argued by Mr. Jayant Bhushan that the law as to the  

validity of the rules impugned in the present case was in a  

state of flux till the judgment of this Court in Jagannadha  

Rao’s case (supra) finally declared that provisions like the  

one  made  by  the  rules  in  the  instant  case  are  

constitutionally  impermissible  being  in  violation  of  the  

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Presidential Order.  That apart no promotion had been made  

after the 7th November, 2001, the date when the judgment  

of  this  Court  in  Jagannadha  Rao’s  case  (supra)  was  

pronounced.  Such of the promotions as were already made  

could  therefore  be  saved  to  balance  equity  and  prevent  

miscarriage of justice  vis-à-vis  those who had on the basis  

of a rule considered valid during the relevant period been  

promoted against posts outside their zone/cadre.   

18. In Jagannadha Rao’s case (supra), the petitions were  

filed in the year 1987.  The State Administrative Tribunal  

had declared the rule providing for inter-department transfer  

by promotion to be bad by its order dated 17th April, 1995.  

The  legal  position  eventually  came  to  be  settled  by  the  

decision of this Court in the case on 7th November, 2001.  

The petitions in the present case were filed before the State  

Administrative Tribunal in the year 1997.  The Tribunal had  

on  the  authority  of  the  judgment  aforementioned  struck  

down the rules providing for ex-cadre/zone promotions by  

its order dated 27th March, 2003, but saved the promotions  

already made.  The judgment of the High Court of Andhra  

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Pradesh challenging the order passed by the Tribunal to the  

extent it saved the promotions earlier made was pronounced  

on  9th March,  2007.   The  review  petition  filed  by  those  

affected by the striking down to the rules and facing the  

prospects of reversion were dismissed by the High Court on  

3rd November,  2010.  Promotions  made  before  the  

pronouncement  of  the  order  in  Jagannadha  Rao’s  case  

(supra)  i.e.  before  7th November,  2001  have,  thus,  

continued for nearly ten years till the review petition filed by  

the petitioners  was dismissed and the matter  brought up  

before this Court.  We had in that backdrop asked learned  

counsel  for  the  respondent-State  to  take  instructions  

whether  the  State  Government  was  ready  to  create  

supernumerary posts  to  accommodate the petitioners  and  

prevent their reversion.  An additional affidavit filed by the  

Commissioner  of  Labour,  Government  of  Andhra  Pradesh,  

however, does not appear to be supportive of what could be  

a  solution  to  the  stalemate  arising  out  of  the  impugned  

judgment.  The  affidavit  states  that  there  is  no  need  to  

create supernumerary posts to accommodate the petitioners  

in  their  original  posts  i.e.  Senior  Assistants  and  senior  

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stenographers.  It  also  declines  creation  of  supernumerary  

posts in the Directorate for the petitioners who were working  

as  Assistant  Labour  Officers,  Assistant  Commissioners  of  

Labour and Deputy Commissioners of Labour. The affidavit  

states that the petitioners while working as Senior Assistants  

and  senior  stenographers  had  opted  to  go  as  Assistant  

Labour Officers outside the regular line on executive posts  

where the incumbents enforce the labour laws.  The affidavit  

suggests as though the petitioners had taken a calculated  

risk in going out of their cadres by accepting higher positions  

as Assistant Labour Officers in another zone.  Suffice it to  

say  that  the  respondent-State  has  not  expressed  its  

willingness  to  create  supernumerary  positions.  We  have,  

therefore, no option but to examine the question of invoking  

the doctrine of prospective overruling on the merits of the  

case having regard to the facts and circumstances in which  

the question arises. While doing so we must at the threshold  

point out that the respondents are not correct in suggesting  

as  though  the  petitioners  had  taken  any  deliberate  or  

calculated risk by opting for promotion outside their cadres.  

The respondents have while making that assertion ignored  

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the fact that promotions were ordered by the State and not  

snatched  by  the  petitioners.  That  apart  on  the  date  the  

promotions  were made there was no element  of  risk  nor  

were the promotions made subject to the determination of  

any  legal  controversy  as  to  the  entitlement  of  the  

incumbents  to  such  promotion.  Not  only  that,  the  

incumbents  who  had  been  sent  out  on  promotion  as  

Assistant Labour Officers had subsequently been promoted  

as  Assistant  Labour  Commissioners  or  Deputy  Labour  

Commissioners.  Such  being  the  position  reverting  these  

officers at this distant point of time, to the posts of Senior  

Stenographers in their parent cadre does not appear to us to  

be  either  just,  fair  or  equitable  especially  when  upon  

reversion the State does not propose to promote them to  

the higher  positions  within  their  zone/cadre because such  

higher posts are occupied by other officers, most if not all of  

whom are junior to the petitioners and who may have to be  

reverted  to  make  room for  the  petitioners  to  hold  those  

higher posts.  Reversion of the petitioners to their  parent  

cadre  is  therefore  bound  to  have  a  cascading  effect,  

prejudicing even those who are not parties before us.   The  

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fact that the petitioners were not arrayed as parties before  

the Tribunal or before the High Court also brings the fact  

situation  of  the  present  case  closer  to  that  in  Kailash  

Chand’s case (supra).  The law in the present case was, as  

in  Kailash Chand’s case (supra), in a state of flux.  Such  

being the position, we see no reason why the doctrine of  

prospective overruling cannot be invoked in the instant case.  

Just because, this Court had not addressed that question in  

Jagannadha Rao’s case (supra) is also no reason for us to  

refuse  to  do  so  in  the  present  case.  That  apart,  

Jagannadha  Rao’s  case  (supra)  was  dealing  with  a  

different  set  of  norms  comprising  GoMs  No.14  and  22  

referred to earlier.  While the basic question whether such  

GoMs permitting promotion by transfer from one department  

to the cadre or zone to another may have been the same, it  

cannot be denied that the rules with which this Court was  

concerned  in  Jagannadha  Rao’s case  (supra)  were  

different from those with which we are dealing in the present  

case.  We feel that on the question of application of doctrine  

of  prospective  overruling,  the  judgment  in  Jagannadha  

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Rao’s case (supra) will not stand as an impediment for this  

Court.   

19. In  the  result,  we allow these  appeals,  set  aside  the  

orders passed by the High Court and hold that while GoMs  

No.14 and 22 have been rightly declared to be ultra vires of  

the Presidential Order by the State Administrative Tribunal,  

the  said  declaration  shall  not  affect  the  promotions  and  

appointments made on the basis of the said GoMs prior to  

7th November, 2001, the date when Jagannadha Rao’s was  

decided  by  this  Court.  Parties  are  left  to  bear  their  own  

costs.   

Contempt Petitions (C) No.445-449 of 2013

In the light of the above order passed by us, we see no  

reason to continue with these proceedings which are hereby  

closed and the contempt petitions dismissed.    

…………………….……….…..…J.        (T.S. THAKUR)

     ………….…………………..…..…J.         (C. NAGAPPAN)

New Delhi

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April 29, 2014

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