Om Prakash Awasthi Vs. State of U.P. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/482868
SubjectService
CourtAllahabad High Court
Decided OnMay-19-2009
JudgeC.K. Prasad, C.J. and; Dilip Gupta, J.
Reported in2009(4)AWC3189
AppellantOm Prakash Awasthi
RespondentState of U.P. and ors.
DispositionAppeal dismissed
Cases ReferredP.V. George and Ors. v. State of Kerala and Ors.
Excerpt:
- - secondary education (service selection board (hereinafter referred to as 'the selection board') instead of advertising three posts of assistant teacher in english in the above grade, advertised only one post and pramod kumar singh was recommended by the selection board for appointment. awasthi was appointed as ad hoc teacher under act 1982 and rules made thereunder till the candidate recommended by the selection board joins the post. the contention is that since the provisions of that section give power to the chancellor to terminate the services of a teacher only if he is satisfied that the appointment 'was not in accordance with the law at that time in force' and since the law at that time in force, viz. all the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. the doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly.c.k. prasad, c.j. and dilip gupta, j.1. all these appeals arise out of a common judgment dated 16.4.2009, passed in civil misc. writ petition no. 60991 of 2006, civil misc. writ petition no. 54934 of 2006 and civil misc. writ petition no. 44499 of 2007 and as such they were heard together and are being disposed of by this order.2. shorn of unnecessary details, the facts giving rise to these appeals are that om prakash awasthi--writ petitioner-appellant (hereinafter referred to as 'the appellant') offered his candidature for appointment as assistant teacher on ad hoc basis in c.a.s. intermediate college, fareedpur, bareilly (hereinafter referred to as 'the college') in response to an advertisement dated 8th of june, 1998 as provided under u.p. secondary education service selection board act, 1982. he was appointed on 6th of july, 1998 as l.t. grade teacher in english on purely ad hoc basis till a regularly selected candidate joins the said post in the college. the committee of management of the college (hereinafter referred to as 'the management') sent requisition on 6th of december, 2005 for filling up seven posts of assistant teacher in l.t. grade including three vacancies of assistant teacher in english in the said grade. the u.p. secondary education (service selection board (hereinafter referred to as 'the selection board') instead of advertising three posts of assistant teacher in english in the above grade, advertised only one post and pramod kumar singh was recommended by the selection board for appointment. the district inspector of schools vide letter dated 8th of september, 2006 directed the management to appoint pramod kumar singh as assistant teacher in the college and accordingly pramod kumar singh was appointed.3. the ad hoc appointment of the petitioner came to an end after the appointment of pramod kumar singh as assistant teacher in the college in pursuance of the recommendation of the selection board. aggrieved by appointment of pramod kumar singh, the appellant filed civil misc. writ petition no. 54934 of 2006, om prakash awasthi v. state of u.p. and ors. who was arrayed as respondent no. 5 in the writ petition. it is relevant here to state that narain dutt sharma and bhagwat saran, respondents no. 6 and 7 in civil misc. writ petition no. 60991 of 2006, om prakash awasthi v. state of u.p. and ors. offered their candidature for appointment to the posts of assistant teacher (english) in l.t. grade in response to the advertisement of 2004 issued by the selection board. they were duly selected. narain dutt sharma and bhagwat saran were allotted vishnu intermediate college, bareilly and govind ballabh pant intermediate college, jigna, abhaipur, bareilly respectively and on the purported ground that the posts were not vacant in the aforesaid colleges, vide appointment letter dated 14th of february and 18th of may, 2006 respectively, both narain dutt sharma and bhagwat saran were adjusted in the present college.4. om prakash awasthi then filed civil misc. writ petition no. 60991 of 2006, challenging the appointments of narain dutt sharma and bhagwat saran, inter alia, contending that these selected candidates cannot be adjusted against the vacancies, which had not been advertised. this writ petition came up for consideration before a learned single judge on 8th of november, 2006, when the following interim order was passed:standing counsel accepts notice on behalf of respondents no. 1, 3 and 4. respondent no. 2 is represented by sri a.k. yadav, advocate.issue notice to respondents no. 5, 6 and 7 fixing 21.11.2006 as the date of appearance. petitioner to take steps by speed post, i.e., 14.11.2006.the issue with regard to the adjustment of teachers empanelled for a particular institution against vacancies, which have subsequently become available in other institutions and which have not been advertised is already engaging attention of this court in writ petition no. 46861 of 2005.on the next date fixed respondent no. 2 shall produce all the original records on the basis whereof the order dated 26.10.2006 has been issued.division bench of this court has already held that a selected candidate cannot be adjusted against a vacancy, which has not been advertisedpetitioner has made out a prima facie case for grant of interim order.till the next date of listing, no further action shall be taken in pursuance to the letter of the manager/principal of the institution dared 18.5.2006 and dated 14.2.2006 nor the respondent nos. 6 and 7 shall be paid their salary without leave of the court.list on 21.11.2006.5. the appellant, om prakash awasthi, after the aforesaid order dated 8th of november, 2006 was permitted to rejoin the college nearly after a lapse of one year vide order dated 1st of august, 2007.6. bhagwat saran, aggrieved by the same, challenged the aforesaid order in civil misc. writ petition no. 44499 of 2007, bhagwat saran v. state of u.p. and ors.7. it was contended before the learned single judge that narain dutt sharma and bhagwat saran were empanelled for different institutions but had been adjusted against the regular vacancy available in the college and since no advertisement was made with respect to those vacancies, which were intimated and notified to the selection board, their adjustment are illegal. in support of the submission, reliance was placed on a division bench of this court in satish kumar v. state of u.p. 2006 (4) esc 2786 (au-db) : 2006 (7) awc 7570. however, the plea by narain dutt sharma and bhagwat saran was that the judgment of the division bench in satish kumar (supra) shall govern the law prospectively and as narain dutt sharma and bhagwat saran were adjusted prior to pronouncement of the said decision on 22.9.2006, this decision will not cover their case. the aforesaid submission put forth on behalf of narain dutt sharma and bhagwat saran found favour with the learned single judge and in this connection he has observed:it is true that in the case of satish kumar (supra), decided on 22.9.2006, it was held that u.p. secondary education service selection board could not with the aid of government order dated 12.3.2001 order for adjustment in respect of the vacancies which has been intimated and notified, but not advertised. the judgment came into consideration before a learned single judge in jagdish prasad tiwari (supra), wherein it has been held that judgment of division bench will govern the law prospectively and not retrospectively. the said judgment was challenged in special appeal no. 1076 of 2007, however, the said special appeal was dismissed by this court on 27.8.2007. therefore, the judgment passed in jagdish prasad tiwari (supra), holding the judgment to be prospective, has been confirmed in aforesaid special appeal no. 1076/07 and has attained finality. admittedly, in the present case, n.d. sharma and bhagwat saran were appointed on 14.2.2006 and 18.5.2006, as assistant teacher in lt grade (english) in the college on the basis of recommendation of the selection board and the judgment in satish kumar (supra), was rendered on 22.9.2006, much, after the appointment of sri n.d. sharma and sri bhagwat saran, as such in view of the decision in jagdish prasad tiwari (supra), which has been further confirmed in special appeal, the appointment of n.d. sharma and o.p. awasthi cannot be questioned on the basis of judgment passed in satish kumar (supra). therefore, o.p. awasthi, the petitioner in writ petition nos. 60991/06 and 54934/06 cannot derive any advantage of the judgment in satish kumar (supra).8. it is relevant here to state that in writ petition no. 54934 of 2006, the appellant, om prakash awasthi had challenged the appointment of pramod kumar singh wherein he conceded and justified the appointment of narain diitt sharma and bhagwat saran but in writ petition no. 60991 of 2006, om prakash awasthi v. state of u.p. and ors. he had taken a complete uturn and justified the selection and appointment of pramod kumar singh but challenged the appointment of narain dutt sharma and bhagwat saran.9. on a consideration of the materials on record, the learned single judge dismissed the two writ petitions challenging the appointment of pramod kumar singh, narain dutt sharma and bhagwat saran. while doing so, the learned judge observed as follows:it is also relevant to note that o.p. awasthi was appointed as ad hoc teacher under act 1982 and rules made thereunder till the candidate recommended by the selection board joins the post. admittedly, all the three teachers, namely, pramod kumar, n.d. sharma and bhagwat saran were duly selected candidates by the selection board and will get preference over o.p. awasthi, who was merely an ad hoc teacher.10. however, writ petition no. 44499 of 2007, bhagwat saran v. state of u.p. and ors. was allowed with the following direction:writ petition no. 44499/07 is allowed and the authorities concerned are directed to permit n.d. sharma and bhagwat saran. to continue as assistant teachers, l.t. grade (english) in c.a.s. intermediate college, faridpur district bareilly and the claim for salary and other benefits of n.d. sharma and bhagwat saran may also be considered by the concerned authorities within a period of two months from the date of receipt of a certified copy of this order.11. shri shashi nandan, senior advocate appearing oh behalf of the appellant submits that the view taken by the learned single judge that the decision of the division bench in the case of satish kumar (supra), shall govern the case prospectively is erroneous in law. according to him, enunciation of law by this court shall mean that the law enunciated existed since inception. in support of the submissions, reliance has been placed on a decision of the supreme court the case of dr suresh chandra verma and ors. v. chancellor, nagpur university and ors. : 1990 (4) scc 55, and our attention is drawn to paragraph 15 of the judgment which reads as follows:the second contention need not detain us long. it is based primarily on the provisions of section 57(5) of the act. the contention is that since the provisions of that section give power to the chancellor to terminate the services of a teacher only if he is satisfied that the appointment 'was not in accordance with the law at that time in force' and since the law at that time in force, viz., on march 30, 1985 when the appellants were appointed, was the law as laid down in bhakre case which was decided on december 7, 1984, the termination of the appellants is beyond the powers of the chancellor. the argument can only be described as naive. it is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. this being the case, since the full bench and now this court has taken the view that the interpretation placed on the provisions of law by the division bench in bhakre case was erroneous, it will have to be held that the appointments made by the university on march 30, 1985 pursuant to the law laid down in bhakre case were not according to law. hence, the termination of the services of the appellants were in compliance with the provisions of section 57(5) of the act.(italicising ours)12. reliance has also been placed on a decision of the supreme court in the case of m.a. murthy v. state of karnataka and ors. : 2003 (7) scc 517. paragraph 8 of the judgment is relevant for the purpose which reads as follows: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 assumed that what is enunciated by the supreme court is, in fact, the law from inception. the doctrine of prospective overruling which is a feature of american jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in l.c. golak nath v. state of punjab. in managing director, e.c.i.l. v. b. karunukar the view was adopted. prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this court while superseding the law declared by it earlier. it is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. in other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. the law as declared applies to future cases. (see ashok kumar gupta v. state of u.p. and baburam v. c.c. jacob). it is for this court to indicate as to whether the decision in question will 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, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. the impugned judgments of the high court are, therefore, set aside.(italicising ours)13. shri irshad ali, however, appearing on behalf of respondents 6 and 7 contends that a learned single judge of this court in the case of jagdish prasad tewari v. joint director of education, vth region, varanusi and ors. 2007 (2) esc 812 (all), has held that the decision of the division bench in the case of satish kumar (supra), is prospective in nature and that judgment having been affirmed by the division bench in special appeal no. 1076 of 2007, we are bound to hold that the division bench judgment in the case of satish kumar (supra), operates prospectively. according to him, judicial discipline demands that we follow the same view and not take a contrary view.14. having appreciated the rival contentions, the submission of mr. li does not commend us at all either on first principle or precedent. true it is that learned single judge in the case of jagdish prasad tewari (supra) has held that the judgment of this court in the case of satish kumar (supra) will govern the law prospectively. the observation of the learned single judge in this regard is as follows:the division bench had passed the judgment on 22.9.2006 overruling the decision of the learned single judge which was passed on 9.7.2004. the recommendation made by the selection board in favour of paresh kumar gupta was made on 11.9.2004. consequently, this court is of the opinion that the appointment of sri paresh kumar gupta on the post of lecturer in history cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. this is on account of the fact that the recommendation made by the selection board was made in pursuance of a judgment of this court. even though the said judgment has been set aside by a division bench, in my view, the judgment of the division bench will govern the law prospectively and cannot be made with retrospective effect. even otherwise, the petitioner has neither challenged the appointment order of paresh kumar gupta nor the recommendation of the selection board and, consequently, the petitioner is not entitled for any relief in this regard.15. it is relevant here to state that alongwith the case of jagdish prasad tewari (supra) several other cases were also disposed of, including writ petition no. 54358 of 2005, lalji patel v. district inspector of schools, jaunpur. the aforesaid judgment of the learned single judge in the case of jagdish prasad tiwari (supra) was assailed in special appeal no. 1076 of 2007, lalji patel v. district inspector of schools, jaunpur and a division bench of this court had dismissed the appeal by order dated 27,8,2007. as the entire edifice of the submission is founded on this judgment, tire deem it expedient to reproduce the same in its entirety:1. heard, mr. indra raj singh, learned counsel for the appellant, mr. r.p. dubey, mr. d.s.m. tripathi and learned standing counsel appearing for the respondents.2. the appellant was tie of the two teachers, the other teacher being one jagdish prasad tewari who both seek promotion to the post of lecturer in different subjects. their contention was that the posts were to be filled by promotion.3. as against that, two other persons, i.e., one vineeta gupta and one paresh kumar gupta were appointed as direct recruits. their appointments were challenged by lalji patel and jagdish prasad tewari by filing two separate writ petitions.4. the learned single judge who heard the matter directed that the petitioners may make applications to the regional director of education for their promotion who will decide the question of the number of vacancies which are required to be; filled by promotion. the learned single judge also directed that if he finds that the vacancy exists and the petitioner is eligible, the officer will pass an appropriate order on the applications of the petitioners. he directed that the decision be taken within three months from the date of production of a certified copy of the order. the order is to be passed after hearing all the concerned parties.5. mr. indra raj singh, learned counsel for the appellant has many submissions to make with respect to the impugned order but having noticed that the appropriate arrangement has been done by the learned single judge, we are not inclined to interfere with this order.6. the interest of the appellant is adequately protected when the learned single judge has directed hearing to all concerned and also directed that the regional director of education will decide as to whether the vacancies ought to be filled by promotion or otherwise. we do not see any reason to interfere with this order. the appeal is dismissed.16. it is worth mentioning that the division bench in the case of satish kumar (supra) did not even whisper that the same will apply prospectively. we have our own reservation as to whether this court while rendering a decision can declare that the decision will operate prospectively, in view of the pronouncement of the constitution bench of the supreme court in the case of state of himachal pradesh and ors. v. nurpur private bus operators union and ors. air 1999 sc 3880, wherein it has been held as follows:the high court, in the judgment aforementioned, held that the levy and realization of tax on the basis which had been held to be invalid by it for the period between 1st april, 1991 and 30th september, 1992 shall not stand invalidated...we propose to direct that the declaration made by us today shall be applicable prospectively and with effect from october 1, 1992 alone.' some operators challenge the correctness of this. they are right, for the doctrine of prospective overruling cannot be utilized by the high court. once the high court came to the conclusion, rightly, that the concerned provisions were invalid, it was obliged to so declare and, consequently, the collections made thereunder stood invalidated.(italicising ours)17. however, we refrain ourselves from expressing concluded opinion in this regard as it has not been done so by the court rendering the judgment.18. even if we assume that such a course is open for this court, the division bench in the case of satish kumar (supra) has nowhere observed that the enunciation of law made shall apply prospectively. recourse to the principle of prospective overruling is not ordinarily resorted to and the court resorts to this as a device innovated to avoid reopening of settled issue, to prevent multiplicity of proceeding and to avoid uncertainty and avoidable litigation. the learned single judge in the case of jagdish prasad tewari (supra) more as a dictum, than as a principle held the decision to operate prospectively. no principles of law or precedents were considered to come to the aforesaid conclusion.19. true it is that the decision of the case of jagdish prasad tewari (supra), has been affirmed in special appeal no. 1076 of 2007, lalji patel v. district inspector of schools, jaunpur, but the division bench while dismissing the above special appeal has not gone into this question at all. we have reproduced the judgment of the division bench in special appeal and from its reading it is evident that no such submission was advanced or a question of prospective application of the judgment was adjudicated. it is trite that a decision is an authority for what it actually and explicitly decides and not for what logically flows from it. the enunciation of reason or principle alone is binding as precedent. it has been said long time ago that a case is only an authority for what it actually decides and not what logically flows from it. mere dismissal of the special appeal would in our opinion not mean that the view taken by the learned single judge in the case of jagdish prasad tewari (supra) that the judgment of the division bench in the case of satish kumar (supra) shall govern the law prospectively has been approved.20. in our opinion the decision of the court on a principle of law is applicable to all eases and the doctrine of prospective overruling is an exception to the normal principle of law. interpretation of law is presumed to be law at all times, right from inception. when the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as enunciated stood from the beginning and that it was never the law otherwise. the doctrine of prospective overruling when resorted to has to be stated expressively and this power must be exercised in the clearest possible terms. the authorities of the supreme court in the case of dr. suresh chandra verma (supra) and m.a. murthy (supra) relied on by mr. shashi nandan have been quoted in the preceding paragraph of the judgment. further the judgment of the supreme court in the case of p.v. george and ors. v. state of kerala and ors. : air 2007 sc 1034 : 2007 (5) awc 4470 (sc), do also lend support to the aforesaid view. in this case, it has been held as follows:18. if the said rules ultimately were held to be constitutional, it was required to be given effect to. the law declared by a court ordinarily affects the rights of the parties. a court of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. legal consequences are determined in respect of the matters which had taken place in the past.19. it may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. the doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. the power must be exercised in the clearest possible term. the decisions of this court are clear pointer thereto.21. it is useful to refer to the following passage from the book 'principles of statutory interpretation' (11th edition 2008) written by justice g. p. singh in this connection:the law declared by a court has retrospective effect, if not otherwise stated to be so. the supreme court may in rare cases resort to prospective overruling to avoid injustice in cases, where the earlier view had been acted upon. the high courts have no power of prospective overruling but they may without applying this doctrine grant limited relief in exercise of equity jurisdiction.22. we respectfully accept it as the correct statement of law but refrain ourselves from expressing any opinion in regard to the power of the high court of prospective overruling.23. from the principle and precedents as discussed above leave no manner of doubt that the enunciation of law by this court shall govern the field retrospectively if not otherwise stated to be so. the division bench in satish kumar's case (supra) had nowhere observed that the enunciation of law made by it shall apply prospectively. the division bench having not said so, in our opinion, the learned single judge in the case of jagdish prasad tewari (supra) erred in holding that the judgment of the division bench will govern the law prospectively and hence the same is overruled.24. in fairness to mr. shashi nandan, he states that the appellant legitimately cannot question the appointment of pramod kumar singh. however, he submits that the appointments of narain dutt sharma and bhagwat saran are not in accordance with law and their appointments deserves to be set aside. undisputedly, the appellant was appointed purely on ad hoc basis till a regularly selected candidate joins the said post in the college. pramod kumar singh had joined the college on the recommendation of the. selection board and the services of the appellant has come to an end on that account, we deem it inexpedient to go into the validity of appointment of narain dutt sharma and bhagwat saran at the instance of the appellant. the interim order dated 8.11.2006, passed in civil misc. writ petition no. 60991 of 2006, operated in different field and the learned single judge in the impugned order has rightly held that the appellant ought not to have been allowed to rejoin on the basis of the said order. no serious challenge was made to this conclusion of the learned judge and we concur with that.25. thus, the appellant succeeds in law but fails in securing any relief.26. in the result, we find no merit in these appeals and they are dismissed accordingly but without any order as to costs.
Judgment:

C.K. Prasad, C.J. and Dilip Gupta, J.

1. All these appeals arise out of a common judgment dated 16.4.2009, passed In Civil Misc. Writ Petition No. 60991 of 2006, Civil Misc. Writ Petition No. 54934 of 2006 and Civil Misc. Writ Petition No. 44499 of 2007 and as such they were heard together and are being disposed of by this order.

2. Shorn of unnecessary details, the facts giving rise to these appeals are that Om Prakash Awasthi--writ petitioner-appellant (hereinafter referred to as 'the appellant') offered his candidature for appointment as Assistant Teacher on ad hoc basis in C.A.S. Intermediate College, Fareedpur, Bareilly (hereinafter referred to as 'the College') in response to an advertisement dated 8th of June, 1998 as provided under U.P. Secondary Education Service Selection Board Act, 1982. He was appointed on 6th of July, 1998 as L.T. grade teacher in English on purely ad hoc basis till a regularly selected candidate joins the said post in the College. The Committee of Management of the College (hereinafter referred to as 'the Management') sent requisition on 6th of December, 2005 for filling up seven posts of Assistant Teacher in L.T. grade including three vacancies of Assistant Teacher in English in the said grade. The U.P. Secondary Education (Service Selection Board (hereinafter referred to as 'the Selection Board') instead of advertising three posts of Assistant Teacher in English in the above grade, advertised only one post and Pramod Kumar Singh was recommended by the Selection Board for appointment. The District Inspector of Schools vide letter dated 8th of September, 2006 directed the Management to appoint Pramod Kumar Singh as Assistant Teacher in the College and accordingly Pramod Kumar Singh was appointed.

3. The ad hoc appointment of the petitioner came to an end after the appointment of Pramod Kumar Singh as Assistant Teacher in the College in pursuance of the recommendation of the Selection Board. Aggrieved by appointment of Pramod Kumar Singh, the appellant filed Civil Misc. Writ Petition No. 54934 of 2006, Om Prakash Awasthi v. State of U.P. and Ors. who was arrayed as respondent No. 5 in the writ petition. It is relevant here to state that Narain Dutt Sharma and Bhagwat Saran, respondents No. 6 and 7 in Civil Misc. Writ Petition No. 60991 of 2006, Om Prakash Awasthi v. State of U.P. and Ors. offered their candidature for appointment to the posts of Assistant Teacher (English) in L.T. grade in response to the advertisement of 2004 issued by the Selection Board. They were duly selected. Narain Dutt Sharma and Bhagwat Saran were allotted Vishnu Intermediate College, Bareilly and Govind Ballabh Pant Intermediate College, Jigna, Abhaipur, Bareilly respectively and on the purported ground that the posts were not vacant in the aforesaid Colleges, vide appointment letter dated 14th of February and 18th of May, 2006 respectively, both Narain Dutt Sharma and Bhagwat Saran were adjusted in the present College.

4. Om Prakash Awasthi then filed Civil Misc. Writ Petition No. 60991 of 2006, challenging the appointments of Narain Dutt Sharma and Bhagwat Saran, inter alia, contending that these selected candidates cannot be adjusted against the vacancies, which had not been advertised. This writ petition came up for consideration before a learned single Judge on 8th of November, 2006, when the following interim order was passed:

Standing counsel accepts notice on behalf of respondents No. 1, 3 and 4. Respondent No. 2 is represented by Sri A.K. Yadav, advocate.

Issue notice to respondents No. 5, 6 and 7 fixing 21.11.2006 as the date of appearance. Petitioner to take steps by speed post, i.e., 14.11.2006.

The issue with regard to the adjustment of teachers empanelled for a particular institution against vacancies, which have subsequently become available in other institutions and which have not been advertised is already engaging attention of this Court in Writ Petition No. 46861 of 2005.

On the next date fixed respondent No. 2 shall produce all the original records on the basis whereof the order dated 26.10.2006 has been issued.

Division Bench of this Court has already held that a selected candidate cannot be adjusted against a vacancy, which has not been advertised

Petitioner has made out a prima facie case for grant of interim order.

Till the next date of listing, no further action shall be taken in pursuance to the letter of the Manager/Principal of the institution dared 18.5.2006 and dated 14.2.2006 nor the respondent Nos. 6 and 7 shall be paid their salary without leave of the Court.

List on 21.11.2006.

5. The appellant, Om Prakash Awasthi, after the aforesaid order dated 8th of November, 2006 was permitted to rejoin the College nearly after a lapse of one year vide order dated 1st of August, 2007.

6. Bhagwat Saran, aggrieved by the same, challenged the aforesaid order in Civil Misc. Writ Petition No. 44499 of 2007, Bhagwat Saran v. State of U.P. and Ors.

7. It was contended before the learned single Judge that Narain Dutt Sharma and Bhagwat Saran were empanelled for different institutions but had been adjusted against the regular vacancy available in the College and since no advertisement was made with respect to those vacancies, which were intimated and notified to the Selection Board, their adjustment are illegal. In support of the submission, reliance was placed on a Division Bench of this Court in Satish Kumar v. State of U.P. 2006 (4) ESC 2786 (AU-DB) : 2006 (7) AWC 7570. However, the plea by Narain Dutt Sharma and Bhagwat Saran was that the judgment of the Division Bench in Satish Kumar (supra) shall govern the law prospectively and as Narain Dutt Sharma and Bhagwat Saran were adjusted prior to pronouncement of the said decision on 22.9.2006, this decision will not cover their case. The aforesaid submission put forth on behalf of Narain Dutt Sharma and Bhagwat Saran found favour with the learned single Judge and in this connection he has observed:

It is true that in the case of Satish Kumar (supra), decided on 22.9.2006, it was held that U.P. Secondary Education Service Selection Board could not with the aid of Government order dated 12.3.2001 order for adjustment in respect of the vacancies which has been intimated and notified, but not advertised. The judgment came into consideration before a learned single Judge in Jagdish Prasad Tiwari (supra), wherein it has been held that judgment of Division Bench will govern the law prospectively and not retrospectively. The said judgment was challenged in Special Appeal No. 1076 of 2007, however, the said Special Appeal was dismissed by this Court on 27.8.2007. Therefore, the judgment passed in Jagdish Prasad Tiwari (supra), holding the judgment to be prospective, has been confirmed in aforesaid Special Appeal No. 1076/07 and has attained finality. Admittedly, in the present case, N.D. Sharma and Bhagwat Saran were appointed on 14.2.2006 and 18.5.2006, as Assistant Teacher in LT Grade (English) in the college on the basis of recommendation of the Selection Board and the judgment in Satish Kumar (supra), was rendered on 22.9.2006, much, after the appointment of Sri N.D. Sharma and Sri Bhagwat Saran, as such in view of the decision in Jagdish Prasad Tiwari (supra), which has been further confirmed in Special Appeal, the appointment of N.D. Sharma and O.P. Awasthi cannot be questioned on the basis of judgment passed in Satish Kumar (supra). Therefore, O.P. Awasthi, the petitioner in Writ Petition Nos. 60991/06 and 54934/06 cannot derive any advantage of the judgment in Satish Kumar (supra).

8. It is relevant here to state that in Writ Petition No. 54934 of 2006, the appellant, Om Prakash Awasthi had challenged the appointment of Pramod Kumar Singh wherein he conceded and justified the appointment of Narain Diitt Sharma and Bhagwat Saran but in Writ Petition No. 60991 of 2006, Om Prakash Awasthi v. State of U.P. and Ors. he had taken a complete Uturn and justified the selection and appointment of Pramod Kumar Singh but challenged the appointment of Narain Dutt Sharma and Bhagwat Saran.

9. On a consideration of the materials on record, the learned single Judge dismissed the two writ petitions challenging the appointment of Pramod Kumar Singh, Narain Dutt Sharma and Bhagwat Saran. While doing so, the learned Judge observed as follows:

It is also relevant to note that O.P. Awasthi was appointed as ad hoc teacher under Act 1982 and Rules made thereunder till the candidate recommended by the Selection Board joins the post. Admittedly, all the three teachers, namely, Pramod Kumar, N.D. Sharma and Bhagwat Saran were duly selected candidates by the Selection Board and will get preference over O.P. Awasthi, who was merely an ad hoc teacher.

10. However, Writ Petition No. 44499 of 2007, Bhagwat Saran v. State of U.P. and Ors. was allowed with the following direction:

Writ Petition No. 44499/07 is allowed and the authorities concerned are directed to permit N.D. Sharma and Bhagwat Saran. to continue as Assistant Teachers, L.T. Grade (English) in C.A.S. Intermediate College, Faridpur district Bareilly and the claim for salary and other benefits of N.D. Sharma and Bhagwat Saran may also be considered by the concerned authorities within a period of two months from the date of receipt of a certified copy of this order.

11. Shri Shashi Nandan, senior advocate appearing oh behalf of the appellant submits that the view taken by the learned single Judge that the decision of the Division Bench in the case of Satish Kumar (supra), shall govern the case prospectively is erroneous in law. According to him, enunciation of law by this Court shall mean that the law enunciated existed since inception. In support of the submissions, reliance has been placed on a decision of the Supreme Court the case of Dr Suresh Chandra Verma and Ors. v. Chancellor, Nagpur University and Ors. : 1990 (4) SCC 55, and our attention is drawn to paragraph 15 of the judgment which reads as follows:

The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment 'was not in accordance with the law at that time in force' and since the law at that time in force, viz., on March 30, 1985 when the appellants were appointed, was the law as laid down in Bhakre case which was decided on December 7, 1984, the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the Court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre case was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakre case were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57(5) of the Act.

(Italicising ours)

12. Reliance has also been placed on a decision of the Supreme Court in the case of M.A. Murthy v. State of Karnataka and Ors. : 2003 (7) SCC 517. Paragraph 8 of the judgment is relevant for the purpose which reads as follows:

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 assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab. In Managing Director, E.C.I.L. v. B. Karunukar the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob). It is for this Court to indicate as to whether the decision in question will 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, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.

(Italicising ours)

13. Shri Irshad Ali, however, appearing on behalf of respondents 6 and 7 contends that a learned single Judge of this Court in the case of Jagdish Prasad Tewari v. Joint Director of Education, Vth Region, Varanusi and Ors. 2007 (2) ESC 812 (All), has held that the decision of the Division Bench in the case of Satish Kumar (supra), is prospective in nature and that judgment having been affirmed by the Division Bench in Special Appeal No. 1076 of 2007, we are bound to hold that the Division Bench judgment in the case of Satish Kumar (supra), operates prospectively. According to him, judicial discipline demands that we follow the same view and not take a contrary view.

14. Having appreciated the rival contentions, the submission of Mr. li does not commend us at all either on first principle or precedent. True it is that learned single Judge in the case of Jagdish Prasad Tewari (supra) has held that the judgment of this Court in the case of Satish Kumar (supra) will govern the law prospectively. The observation of the learned single Judge in this regard is as follows:

The Division Bench had passed the judgment on 22.9.2006 overruling the decision of the learned single Judge which was passed on 9.7.2004. The recommendation made by the Selection Board in favour of Paresh Kumar Gupta was made on 11.9.2004. Consequently, this Court is of the opinion that the appointment of Sri Paresh Kumar Gupta on the post of Lecturer in History cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. This is on account of the fact that the recommendation made by the Selection Board was made in pursuance of a judgment of this Court. Even though the said judgment has been set aside by a Division Bench, in my view, the judgment of the Division Bench will govern the law prospectively and cannot be made with retrospective effect. Even otherwise, the petitioner has neither challenged the appointment order of Paresh Kumar Gupta nor the recommendation of the Selection Board and, consequently, the petitioner is not entitled for any relief in this regard.

15. It is relevant here to state that alongwith the case of Jagdish Prasad Tewari (supra) several other cases were also disposed of, including Writ Petition No. 54358 of 2005, Lalji Patel v. District Inspector of Schools, Jaunpur. The aforesaid judgment of the learned single Judge in the case of Jagdish Prasad Tiwari (supra) was assailed in Special Appeal No. 1076 of 2007, Lalji Patel v. District Inspector of Schools, Jaunpur and a Division Bench of this Court had dismissed the appeal by order dated 27,8,2007. As the entire edifice of the submission is founded on this judgment, tire deem it expedient to reproduce the same in Its entirety:

1. Heard, Mr. Indra Raj Singh, learned Counsel for the appellant, Mr. R.P. Dubey, Mr. D.S.M. Tripathi and learned standing counsel appearing for the respondents.

2. The appellant was tie of the two teachers, the other teacher being one Jagdish Prasad Tewari who both seek promotion to the post of Lecturer In different subjects. Their contention was that the posts were to be filled by promotion.

3. As against that, two other persons, i.e., one Vineeta Gupta and one Paresh Kumar Gupta were appointed as direct recruits. Their appointments were challenged by Lalji Patel and Jagdish Prasad Tewari by filing two separate writ petitions.

4. The learned single Judge who heard the matter directed that the petitioners may make applications to the Regional Director of Education for their promotion who will decide the question of the number of vacancies which are required to be; filled by promotion. The learned single Judge also directed that if he finds that the vacancy exists and the petitioner is eligible, the officer will pass an appropriate order on the applications of the petitioners. He directed that the decision be taken within three months from the date of production of a certified copy of the order. The order is to be passed after hearing all the concerned parties.

5. Mr. Indra Raj Singh, learned Counsel for the appellant has many submissions to make with respect to the Impugned order but having noticed that the appropriate arrangement has been done by the learned single Judge, we are not inclined to interfere with this order.

6. The interest of the appellant is adequately protected when the learned single Judge has directed hearing to all concerned and also directed that the Regional Director of Education will decide as to whether the vacancies ought to be filled by promotion or otherwise. We do not see any reason to interfere with this order. The appeal is dismissed.

16. It is worth mentioning that the Division Bench in the case of Satish Kumar (supra) did not even whisper that the same will apply prospectively. We have our own reservation as to whether this Court while rendering a decision can declare that the decision will operate prospectively, in view of the pronouncement of the Constitution Bench of the Supreme Court in the case of State of Himachal Pradesh and Ors. v. Nurpur Private Bus Operators Union and Ors. AIR 1999 SC 3880, wherein it has been held as follows:

The High Court, in the judgment aforementioned, held that the levy and realization of tax on the basis which had been held to be invalid by it for the period between 1st April, 1991 and 30th September, 1992 shall not stand invalidated...we propose to direct that the declaration made by us today shall be applicable prospectively and with effect from October 1, 1992 alone.' Some operators challenge the correctness of this. They are right, for the doctrine of prospective overruling cannot be utilized by the High Court. Once the High Court came to the conclusion, rightly, that the concerned provisions were invalid, it was obliged to so declare and, consequently, the collections made thereunder stood invalidated.

(Italicising ours)

17. However, we refrain ourselves from expressing concluded opinion in this regard as it has not been done so by the Court rendering the judgment.

18. Even if we assume that such a course is open for this Court, the Division Bench in the case of Satish Kumar (supra) has nowhere observed that the enunciation of law made shall apply prospectively. Recourse to the principle of prospective overruling is not ordinarily resorted to and the Court resorts to this as a device innovated to avoid reopening of settled issue, to prevent multiplicity of proceeding and to avoid uncertainty and avoidable litigation. The learned single Judge in the case of Jagdish Prasad Tewari (supra) more as a dictum, than as a principle held the decision to operate prospectively. No principles of law or precedents were considered to come to the aforesaid conclusion.

19. True it is that the decision of the case of Jagdish Prasad Tewari (supra), has been affirmed in Special Appeal No. 1076 of 2007, Lalji Patel v. District Inspector of Schools, Jaunpur, but the Division Bench while dismissing the above special appeal has not gone into this question at all. We have reproduced the judgment of the Division Bench in special appeal and from its reading it is evident that no such submission was advanced or a question of prospective application of the judgment was adjudicated. It is trite that a decision is an authority for what it actually and explicitly decides and not for what logically flows from it. The enunciation of reason or principle alone is binding as precedent. It has been said long time ago that a case is only an authority for what it actually decides and not what logically flows from it. Mere dismissal of the special appeal would in our opinion not mean that the view taken by the learned single Judge in the case of Jagdish Prasad Tewari (supra) that the judgment of the Division Bench in the case of Satish Kumar (supra) shall govern the law prospectively has been approved.

20. In our opinion the decision of the Court on a principle of law is applicable to all eases and the doctrine of prospective overruling is an exception to the normal principle of law. Interpretation of law is presumed to be law at all times, right from inception. When the Court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as enunciated stood from the beginning and that it was never the law otherwise. The doctrine of prospective overruling when resorted to has to be stated expressively and this power must be exercised in the clearest possible terms. The authorities of the Supreme Court in the case of Dr. Suresh Chandra Verma (supra) and M.A. Murthy (supra) relied on by Mr. Shashi Nandan have been quoted in the preceding paragraph of the judgment. Further the judgment of the Supreme Court in the case of P.V. George and Ors. v. State of Kerala and Ors. : AIR 2007 SC 1034 : 2007 (5) AWC 4470 (SC), do also lend support to the aforesaid view. In this case, it has been held as follows:

18. If the said Rules ultimately were held to be constitutional, it was required to be given effect to. The law declared by a Court ordinarily affects the rights of the parties. A court of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. Legal consequences are determined in respect of the matters which had taken place in the past.

19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the Interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto.

21. It is useful to refer to the following passage from the book 'Principles of Statutory Interpretation' (11th Edition 2008) written by Justice G. P. Singh in this connection:

The law declared by a Court has retrospective effect, if not otherwise stated to be so. The Supreme Court may in rare cases resort to prospective overruling to avoid injustice in cases, where the earlier view had been acted upon. The High Courts have no power of prospective overruling but they may without applying this doctrine grant limited relief in exercise of equity jurisdiction.

22. We respectfully accept it as the correct statement of law but refrain ourselves from expressing any opinion in regard to the power of the High Court of prospective overruling.

23. From the principle and precedents as discussed above leave no manner of doubt that the enunciation of law by this Court shall govern the field retrospectively if not otherwise stated to be so. The Division Bench in Satish Kumar's case (supra) had nowhere observed that the enunciation of law made by it shall apply prospectively. The Division Bench having not said so, in our opinion, the learned single Judge in the case of Jagdish Prasad Tewari (supra) erred in holding that the judgment of the Division Bench will govern the law prospectively and hence the same is overruled.

24. In fairness to Mr. Shashi Nandan, he states that the appellant legitimately cannot question the appointment of Pramod Kumar Singh. However, he submits that the appointments of Narain Dutt Sharma and Bhagwat Saran are not in accordance with law and their appointments deserves to be set aside. Undisputedly, the appellant was appointed purely on ad hoc basis till a regularly selected candidate joins the said post in the College. Pramod Kumar Singh had joined the College on the recommendation of the. Selection Board and the services of the appellant has come to an end on that account, we deem it inexpedient to go into the validity of appointment of Narain Dutt Sharma and Bhagwat Saran at the instance of the appellant. The interim order dated 8.11.2006, passed in Civil Misc. Writ Petition No. 60991 of 2006, operated in different field and the learned single Judge in the impugned order has rightly held that the appellant ought not to have been allowed to rejoin on the basis of the said order. No serious challenge was made to this conclusion of the learned Judge and we concur with that.

25. Thus, the appellant succeeds in law but fails in securing any relief.

26. In the result, we find no merit in these appeals and they are dismissed accordingly but without any order as to costs.