The Supreme Court in the case Manoj Parihar vs State of Jammu and Kashmir observed and the court considered one of the questions that was whether the judgment in the case Bimlesh Tanwar v. State of Haryana, wherein it was held in the judgement in the case P.S. Ghalaut v. State of Haryana, is not a good law, is retrospective?
It was observed in Bimlesh Tanwar, in terms of Article 16 (4) of the Constitution, an affirmative act meant for providing a representation of class of citizenry who are socially or economically backward. It was stated that Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak about fixation of seniority. Thus, the Seniority is not to be fixed in terms of the roaster points. Further, if that is done, the affirmative rule action would not be extended which would strictly not be in consonance of the constitutional schemes. The court is of the opinion that the decision in P.S. Ghalaut case does not lay a good law.
It was observed by the court in Bimlesh Tanwar (supra) actually there was a declaration of law.
Furthermore, the bench said that the same will have retrospective effect, in the case P.V. George v. State of Kerala, wherein the court stated that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically. The consciousness of the court be seen on the fact from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens but still it was stated by the court that the power to apply the doctrine of prospective overruling so as to remove the adverse effect must be exercised in the clearest possible term as stated. The Court made it clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), the court cannot stand since this this Court did not apply the doctrine of prospective overruling in the case Bimlesh Tanwar (supra) in express terms.
