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 Others

2

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

Civil Appeal No. 3873 of 2010 & Anr. Page 3 of 15

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 30

th

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

filed nearly one year after the judgment of the

High Court and no explanation has been

tendered for not approaching the High Court

under Article 226 at an earlier point of time.”

7.Thus, notwithstanding the ratio, appointments made before

November 18, 1999 were left untouched and saved. The writ

petitioners who had moved the High Court before November 18,

1999 were entitled to be considered afresh vis-à-vis candidates

appointed on or after November 18, 1999 or with those in the

select list without giving such appointed/selected candidates

benefit of the bonus marks which had been declared to be

unconstitutional. Only such writ petitioners, if found to be higher in

the order of merit than those appointed after November 18, 1999

or on select list, were to be offered appointments, if necessary, by

removing such appointed candidates. The date November 18,

1999 selected by the Supreme Court was the date on which the

Full Bench of the Rajasthan High Court had pronounced its

judgment in Kailash Chand Sharma’s case (supra). As noticed

above, after the Full Bench decision in Kailash Chand Sharma’s

case (supra), a number of writ petitions had been filed before the

High Court in which directions for preparation of a fresh merit list

without bonus marks, appointment in terms of the new selection

list, etc., had been issued. These directions, being contrary to the

Civil Appeal No. 3873 of 2010 & Anr. Page 6 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

Others

3

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 Others

4

). 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 Others

6

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.

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