REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3873 OF 2010

THE STATE OF RAJASTHAN …..            APPELLANT(S)

VERSUS

NEMI CHAND MAHELA AND OTHERS …..        RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 4491 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 4562 OF 2012)

J U D G M E N T

Sanjiv Khanna, J.

Leave granted in Special Leave Petition (Civil) No. 4562 of

2012.

2. Predicament of candidates consequent to conflicting opinions in

different  decisions  of  the  High  Court  on  true  and  correct

interpretation of principle of prospective overruling as directed in

Kailash Chand Sharma vs. State of Rajasthan and Ors.1 is the

cause of this agonising and festering litigation since 1999. This

“scarecrow” of a litigation, to use the words of Charles Dickens, “in

1 (2002) 6 SCC 562 Civil Appeal No. 3873 of 2010 & Anr. Page 1 of 15

course of time, [has] become so complicated that no man alive

knows what it means.”

3. Award of bonus marks to candidates seeking appointment to the

post  of  Primary  School  Teachers  in  Zila  Parishad of  various

districts in the State of Rajasthan during the year 1998-99 was

struck down and declared unconstitutional by a Full Bench of the

Rajasthan High Court vide judgment dated November 18, 1999 in

Kailash Chand Sharma  v. State of  Rajasthan in  W.P.(C)  No.

3928  of  1998, for  the  reason  that  any  kind  of  weightage  and

advantage  in  public  employment  in  a  State  service  is  not

permissible on the ground of place of birth, residence or on the

ground of being a resident of urban or rural area. The Full Bench

in Kailash Chand Sharma’s case (supra) had followed an earlier

Full Bench judgment in Deepak Kumar Suthar and Another  v.

State of Rajasthan and Others2 wherein similar stipulations for

grant  of  bonus  marks  in  selection  of  Grade  II  and  Grade  III

teachers in the state cadre were struck down as unconstitutional.

However,  in Deepak  Kumar  Suthar’s  case (supra),  no

consequential  and  substantive  relief  was  granted  to  the  writ

petitioners therein as first, they did not have a chance of selection

on merits even if award of bonus marks to successful candidates

2 (1999) 2 Rajasthan Law Reporter 692 Civil Appeal No. 3873 of 2010 & Anr. Page 2 of 15

was disregarded and secondly,  the candidates so selected had

not  been  impleaded  as  parties.  Accordingly,  the  Full  Bench  in

Deepak  Kumar  Suthar’s case  (supra),  in  the  concluding

paragraph, had given the following directions:

“44.  Instead of sending the matter to the appropriate bench, we think it proper to dispose of this petition with a  direction  that  no  relief  can  be  granted  to  the petitioners as they could not succeed to get the place in the merit list even by getting 10 bonus marks being residents of urban area, for which they are certainly not entitled.  More so, the petitioners have not impleaded any  person  from  the  select  list,  not  even  the  last selected candidate. Thus, no relief can be granted to them in spite of the fact that the appointments made in conformity of the impugned Circular have not been in consonance  with  law.  However,  we  clarify  that  any appointment made earlier shall not be affected by this judgment and it would have prospective application.”

4. These directions in  Deepak Kumar Suthar’s  case (supra) were

followed  by  the  Full  Bench  in  Kailash  Chand  Sharma’s case

(supra) and the batch of writ petitions were disposed of.  

5. After the decision of the Full Bench in Kailash Chand Sharma’s

case (supra), a large number of  writ  petitions including one by

Naval Kishore were filed before the Rajasthan High Court. Some

of them, notwithstanding the operative directions given by the Full

Bench in Kailash Chand Sharma’s case (supra), were disposed

of with a direction to the authorities to prepare and draw up a fresh

merit  list  of candidates appointed on or after  October 21,  1999

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without  the  bonus  marks.   For  convenience  we would  refer  to

these  cases  as  Naval  Kishore’s case.  Naval  Kishore’s case

(supra) was decided on 30th July, 2002.

6. The decision of the Full Bench in Kailash Chand Sharma’s case

(supra) and some of the judgments directing preparation of fresh

merit  list  without bonus marks (but not in all  cases where such

directions  were  issued)  became subject  matter  of  challenge  in

Special Leave Petitions which were granted and decided vide the

judgment  reported  as  Kailash  Chand  Sharma’s  case  (supra)

referred to by us in paragraph 2 above. Affirming the findings of

the Full Bench of the Rajasthan High Court, this Court concluded

that award of bonus marks to residents of districts and residents of

rural area amounts to impermissible discrimination as there was

no rational basis for such preferential  treatment. Thereafter this

Court,  in  paragraph 36  onwards,  in  Kailash Chand Sharma’s

case (supra)  had  elaborately  and  expressly  considered  the

question  of  relief  after  noticing  operative  directions  in  Deepak

Kumar Suthar’s case (supra). In view of the factual matrix and for

several reasons recorded, this Court felt that there was a need to

balance competing claims and accordingly doctrine of prospective

Civil Appeal No. 3873 of 2010 & Anr. Page 4 of 15

overruling was partially applied vide paragraphs 45 and 46 of this

decision, which read as under:

“45.  One more point  which needs mention.  Some of the learned  counsel  argued  that  the  unsuccessful  applicant should not be allowed to challenge the selection process to the  extent  it  goes  against  their  interest,  after  having participated in the selection and waited for the result. It is contended  that  the  discretionary  relief  under  Article  226 should not be granted to such persons. Reliance has been placed on the decision of this Court in Madan Lal v. State of J&K (1995) 3 SCC 486 and other cases in support of this argument. On the other hand, it is contended that in a case of challenge to unconstitutional discrimination, the doctrine of acquiescence, estoppel and the like does not apply and the  writ  petitioners  cannot  be  expected  to  know  the constitutional  implications  of  the  impugned  circular  well before the selections.  We are not  inclined to go into this question for the reason that such a plea was not raised nor was any argument advanced before the High Court.

46. Having due regard to the rival contentions adverted to above and keeping  in  view the  factual  scenario  and the need  to  balance  the  competing  claims  in  the  light  of acceptance  of  prospective  overruling  in  principle,  we consider  it just and proper to confine the relief only to the petitioners  who  moved  the  High  Court  and  to  make appointments made on or after 18-11-1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct:

“1.  The claims of the writ  petitioners should be considered  afresh  in  the  light  of  this  judgment vis-à-vis the candidates appointed on or after 18- 11-1999 or those in the select list who are yet to be  appointed.  On  such  consideration,  if  those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary,  by  displacing  the  candidates appointed on or after 18-11-1999.

2.  The  appointments  made  upto  17-11-1999 need not be reopened and re-considered in the light of the law laid down in this judgment.

3. Writ Petition No. 542/2000 filed in this Court under Article  32 is  hereby  dismissed  as  it  was

Civil Appeal No. 3873 of 2010 & Anr. Page 5 of 15

ratio  and  directions  given  by  this  Court  in  Kailash  Chand

Sharma’s (supra),  were therefore  rendered inconsequential.  To

this  extent,  decision  in  Naval  Kishore  case  (supra)  and  other

similar cases were overruled/impliedly overruled.

8. In  spite  of  the aforesaid  enunciation  and directions in  Kailash

Chand  Sharma’s case  (supra),  it  is  apparent  that  in  several

cases, directions similar to  Naval Kishore’s case (supra) for re-

computation of marks after excluding bonus marks were issued in

favour of candidates who had approached and invoked jurisdiction

of  the  High  Court  after  November  17,  1999.  Even  contempt

petitions were filed and directions were issued notwithstanding the

fact  that  the  said  writ  petitioners/petitioners  had  not  filed  writ

petitions on or before November 17, 1999 i.e. the date on which

Kailash Chand Sharma’s case (supra) was decided by the Full

Bench. In some decisions, it was held that this Court in  Kailash

Chand Sharma’s  case (supra) had not barred relief to all  such

candidates  who may have  filed  writ  petitions  at  any  time after

November 18, 1999.

9. The controversy was set at rest beyond doubt by this Court in its

decision  in  Manmohan  Sharma  v. State  of  Rajasthan  and

Civil Appeal No. 3873 of 2010 & Anr. Page 7 of 15

Others3 and other  connected matters.  After  extensively  dealing

with the factual matrix and arguments in  Manmohan Sharma’s

case (supra), it was held as under:

“16.  A careful reading of the above leaves no manner of doubt that (a) this Court invoked the doctrine of prospective overruling which implies that the law declared by this Court would apply only to future selections and appointments, (b) that although prospective overruling left  the appointments made  before  18th  November,  1999  untouched,  the  writ- petitioners  who  had  moved  the  High  Court  had  to  be considered afresh vis-à-vis candidates appointed on or after 18th  November,  1999  or  those  in  the  select  list  without giving to such appointed/selected candidates the benefit of bonus  marks  under  the  circular,  and  (c)  that  upon  such consideration of the writ-petitioners if they are found to be superior in merit than those appointed after 18th November, 1999 they shall be offered appointments, if necessary, by removing the latter.  

17. It  was strenuously contended by learned counsel  for the  appellants  that  the  expression  “the  appellants  who moved the High Court” appearing in para 46 (supra) was wide enough and actually covered not only such of the writ- petitioners as had approached the High Court  in the two batch  of  cases  decided  by  this  Court  in  Kailash  Chand Sharma’s case (supra) but also all such candidates as may have filed writ  petitions at any time after 18th November, 1999 including those who filed such petition after 30th July, 2002 when this Court decided the appeals in Kailash Chand Sharma’s case (supra) and connected matters.  

18. We find it  difficult  to accept that  contention. There is nothing  in  the  judgment  of  this  Court  in  Kailash  Chand Sharma’s case (supra) or the directions that were issued in para  46  thereof  to  suggest  that  this  Court  was  either conscious of or informed of pendency of any writ  petition filed  before  the  High  Court  after  18th  November,  1999. There is also nothing to suggest that this Court intended the benefit  granted in terms of direction (1) under para 46 to extend not only to the writ-petitioners who had moved the High Court in Kailash Chand Sharma’s case (supra) and in the writ petition filed by Naval Kishore and others but the same has intended to  benefit  all  those who had or  may have moved the High Court  at  any point  of  time. On the contrary there is positive indication of the fact that the Court did not intend to extend the benefit  to any appellant who

3 Civil Appeal No. 4294 of 2014, decided on April 01, 2014 Civil Appeal No. 3873 of 2010 & Anr. Page 8 of 15

had challenged the award of bonus marks and the selection process  on  the  basis  thereof  at  any  stage  after  18th November,  1999.  This  is  evident  from  the  fact  that  Writ Petition No.542 of 2000 filed in this Court under Article 32 of the  Constitution  of  India  was  dismissed  by  this  Court  in terms of direction (3) under para 46 on the ground that the same had been filed nearly one year after the judgment of the High Court. The expression “as it has been filed after the judgment of the High Court” appearing in direction (3) under Para 46 clearly suggest that for the grant of relief this Court had only petitions filed before the judgment in Kailash Chand Sharma’s case (supra) in mind and not those filed after  18th  November,  1999 when the said judgment  was pronounced.  The  observation  of  this  Court  that  the  writ- petitioners had offered no explanation for not approaching the High Court under Article 226 of the Constitution at an earlier point of time too has two distinct facets, namely, (1) that  the  writ-petitioners  in  Writ  Petition  No.542  of  2000 should have ordinarily approached the High Court and (2) They should have done so at an earlier point of time. The latter of  these reasons again emphasized the importance this Court attached to the delay in the filing of the petitions in  the  matter  of  grant  of  relief  for  those  who  did  not challenge  the  selection  process  in  good  time  were  not granted any relief.”

10. The Bench in  Manmohan Sharma’s case (supra) observed that

there were two categories of cases; Category 1 comprising of writ

petitions which were filed after  November 18,  1999 and before

July 30, 2002 and Category II comprising of writ petitions which

were filed after July 30, 2002. The date July 30, 2002 being the

date of decision of the Rajasthan High Court in the case of Naval

Kishore’s case (supra). Rejecting the arguments raised on behalf

of the two Categories, the Bench observed that in Kailash Chand

Sharma’s case (supra)  this  Court  had  recognized the  need to

balance  competing  claims  by  invoking  doctrine  of  prospective

Civil Appeal No. 3873 of 2010 & Anr. Page 9 of 15

overruling,  thereby,  protecting appointments made on or  before

November 17, 1999 and confining relief only to the writ petitioners

who  had  moved  the  High  Court  before  November  18,  1999.

Further,  the directions given in  Kailash Chand Sharma’s case

(supra)  were  a  binding  precedent  under  Article  141  of  the

Constitution. With regard to the argument for grant of benefit on

the principle of parity, i.e. similar benefits, as notwithstanding the

judgment in Kailash Chand Sharma’s case (supra)  some of the

candidates  were  appointed  on  redrawing  the  merit  list  after

exclusion  of  bonus  marks,  the  Bench  comprehensively  and

squarely rejected the submission as being contrary to the dictum

and binding directions of this Court in Kailash Chand Sharma’s

case (supra). In  Manmohan Sharma’s case (supra), the Bench

observed  that  there  was no  need to  enlarge  the  scope of  the

directions  issued in  Kailash Chand Sharma’s case  (supra)  to

others and that the Court was not hearing a review petition nor

could the Court modify the order passed by this Court in Kailash

Chand  Sharma’s case  (supra).  The  contention  of  some

petitioners  in  Category  II  who  had  been  appointed  on  re-

computation of the result on merits after November 18, 1999 was

rejected as illegal and impermissible in the light of the judgment of

this Court  in  Kailash Chand Sharma’s case (supra).  The plea

Civil Appeal No. 3873 of 2010 & Anr. Page 10 of 15

and contention of parity and similar treatment was also rejected

observing that wrong appointments should have been challenged

expeditiously and not belatedly, and that such appointments would

not confer any right. That apart, it  was recorded in  Manmohan

Sharma’s case  (supra)  that  the  State  had  filed  an  affidavit

satisfactorily refuting the factual submissions made at the Bar.

11. The learned counsel for the petitioners had drawn our attention to

paragraph  24  of  the  decision  in  Manmohan  Sharma’s case

(supra) which refers to the case of one Danveer Singh whose writ

petition had been allowed and the order had attained finality as it

was  not  challenged  before  the  Division  Bench  or  before  the

Supreme Court. Termination of services in the case of Danveer

Singh, it was accordingly held, was not justified and in accordance

with  law.  The  reasoning  given  in  paragraphs  24  and  25  in

Manmohan  Sharma’s case  (supra)  relating  to  the  case  of

Danveer Singh would reflect the difference between the doctrine

of res  judicata  and law of  precedent.  Res judicata  operates  in

personam i.e. the matter in issue between the same parties in the

former litigation, while law of precedent operates in rem i.e. the

law once settled is binding on all under the jurisdiction of the High

Court and the Supreme Court.  Res judicata binds the parties to

the proceedings for the reason that there should be an end to the Civil Appeal No. 3873 of 2010 & Anr. Page 11 of 15

litigation and therefore, subsequent proceeding inter-se parties to

the litigation is barred. Therefore, law of res judicata concerns the

same matter, while law of precedent concerns application of law in

a similar issue. In  res judicata, the correctness of the decision is

normally immaterial and it does not matter whether the previous

decision was right or wrong, unless the erroneous determination

relates  to  the  jurisdictional  matter  of  that  body.  (See Makhija

Construction  and  Engineering  Private  Ltd  v. Indore

Development Authority and Others4). Learned counsel for the

appellants  had  drawn our  attention  to  several  decisions  of  the

Rajasthan High Court in which reliefs have been granted to the

writ petitioners who had not filed a writ petition before the cut-off

date of November 18, 1999 fixed by this Court in Kailash Chand

Sharma’s case (supra). Some of these decisions were made after

the decision of  Manmohan Sharma’s case  (supra) on April 01,

2014.  This  should  have  been  avoided  as  authoritative

pronouncements of the Supreme Court and High Court must be

respected and followed as any departure therefrom would cause

uncertainty,  unnecessary and speculative litigation as has been

held in strong words in Dwarikesh Sugar Industries Ltd. v. Prem

Heavy  Engineering  Works  (P)  Ltd.5 and  Bihar  State

4 (2005) 6 SCC 304

5 (1997) 6 SCC 450 Civil Appeal No. 3873 of 2010 & Anr. Page 12 of 15

Government  Secondary  School  Teachers  Association  and

Others  v. Bihar  Education  Service  Association  and Others6

Consequently, we find that a number of impleadment applications

have  been  filed  by  aspirants  anxiously  waiting  and  hoping  of

favourable outcome in the foreclosed and covered litigation.  They

cannot succeed and these applications are dismissed.  We were

informed  that  there  are  a  large  number  of  vacant  posts  and,

therefore,  it  has  been  contended  that  the  benefit  should  be

extended.  We  do  not  agree  and  should  not  accept  the  said

contentions as it would fall foul and would be clearly contrary to

the ratio of Kailash Chand Sharma’s and Manmohan Sharma’s

cases (supra).

12. Our attention was also drawn to the case of  Neeraj  Saxena in

whose case the writ appeal filed by the State Government against

the order of  the Single Judge was dismissed on the ground of

delay  and  inaction.  The  Special  Leave  Petition  against  the

decision of the Division Bench was also dismissed on the ground

of delay. This decision of the Division Bench in Neeraj Saxena and

the dismissal of the Special Leave Petition on the ground of delay

does not lay down any ratio in the form of precedent. At best, the

decision of the Single Judge in the case of Neeraj Saxena as in

6 (2012) 13 SCC 33 Civil Appeal No. 3873 of 2010 & Anr. Page 13 of 15

the case of Danveer Singh would apply to the specific candidates

in whose case the decision would operate as  res judicata. This,

however, would not be a ground to negate and nullify the ratio and

direction  invoking  doctrine  of  prospective  overruling,  applied  in

Kailash  Chand  Sharma’s case  (supra),  which  was  thereafter

affirmed and elucidated by this Court in Manmohan Singh’s case

(supra).

13. In view of the aforesaid discussion, we hold that the candidates

who had not filed writ petitions on or before November 17, 1999

would not be entitled to appointment upon recalculation of marks

by  exclusion  of  bonus  marks  from  the  marks  of  the  selected

candidates. The aforesaid direction would not apply to individual

cases where the principle of res judicata would apply, i.e. wherein

the  decision  of  the  Single  Judge  or  the  Division  Bench  has

become  final  since  it  was  not  challenged  before  the  Division

Bench or before this Court.  All  other pending writ  petitions and

appeals, before the High Court, would be disposed of and decided

on  the  basis  of  decisions  in  Kailash  Chandra  Sharma’s,

Manmohan  Sharma’s  cases  (supra)  and  the  present  matter,

subject to condonation of delay, when justified and satisfactorily

explained.

Civil Appeal No. 3873 of 2010 & Anr. Page 14 of 15

14. The appeals and all pending applications are disposed of in the

aforesaid terms.

......................................J. (L. NAGESWARA RAO)

......................................J. (SANJIV KHANNA)

NEW DELHI; APRIL 30, 2019.

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