TMI Blog2019 (1) TMI 1988X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 light of the policy existing on the date of death of the father of the petitioner, but in the light of the subsequent interpretation of law, as held by the Full Bench of this Court in the case of Manoj Kumar Deharia [ 2009 (10) TMI 987 - MADHYA PRADESH HIGH COURT] , it is held that the policy which was in existence on the date of consideration of the application would be applicable. This Court is of the considered opinion that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 policy dated 01/05/2000 shall be concluded within a period of 90 days from the date of receipt of a certified copy of this order. With aforesaid the writ petition stands allowed. No order as to costs. It is submitted that thereafter the matter was reconsidered by the respondents. The claim of the petitioner has been once again rejected by considering the policy dated 22/1/2007 and 18/8/2008, whereas the direction given by this Court was to consider the policy, which was in force on the date of death of the father of the petitioner. It is submitted by the counsel for the petitioner that the order under challenge is bad in the light of the earlier order passed by this Court. It is further submitted that once the matter was finally adjudicated by this Court by holding that the policy, which was in vogue on the date of death of the father of the petitioner would be applicable, therefore, the principle of res judicata would apply and the respondents cannot travel beyond the directions given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 appointment under dying in harness scheme issued by Circular No. 154/1993 w.e.f. 01.05.1993. The claim was resisted by the Bank on the ground that the financial condition of family members of the deceased employee was good and the said scheme was replaced with the scheme dated 14.02.2015 (HO Circular No. 35/2005) whereby the scheme of compassionate appointment was scrapped and in lieu of the same a new scheme of ex-gratia payment was introduced. However, the scheme of 2005 was also superseded by Scheme of 2014 which has revived the scheme providing for compassionate appointment. In para -14 of the judgment in Canara Bank (Supra) it was noted that the scheme of compassionate appointment was revived and therefore, it was held that the Bank was not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time. Thus the judgment passed by the Apex Court in the case of Canara Bank (Supra) is on consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 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. The doctrine of prospective overruling was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of prospective overruling the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rger 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 operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case No. II. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 declaration regarding the invalidity of a provision and the determination of the relief that should be 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 so as to advance the interest of justice. 12. Reference may also be made to the decision of this Court in Union of India v. Mohd. Ramzan Khan 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. 13. In Ashok Kumar Gupta v. State of U.P., a three-Judge Bench of this Court held that although Golak Nath case regarding unamendabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 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. 15. In Somaiya Organics (India) Ltd. v. State of U.P., 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 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: (SCC p. 532, para 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf. 35. In Ravi S. Naik v. Union of India, it has been laid down that there is retrospective operation of the decision of this Court. The interpretation of the provision becomes effective from the date of enactment of the provision. In M.A. Murthy v. State of Karnataka, it was held that the law declared by the Supreme Court is normally assumed to be the law from inception. Prospective operation is only exception to this normal rule. It was held thus: (M.A. Murthy case, SCC pp. 520-21, para 8) 8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 overruling would not apply in respect of the judgment passed by the Supreme Court unless and until it is expressly so mentioned in the judgment. Furthermore, there cannot be an estoppel against the statute. The Supreme Court in the case of Bengal Iron Corpn. v. CTO reported in 1994 Supp (1) SCC 310 has held as under: 18. ............... There can be no estoppel against the statute. .................. Law is what is declared by this Court and the High Court -- to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. Of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean. (See Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.) Thus, where the question of law has been settled by the Courts, then it has to be held that the said question of law was in existence right from day one. However, where the rights of a party ..... X X X X Extracts X X X X X X X X Extracts X X X X
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