Thursday, 2 May 2019

What is distinction between res judicata and precedent?

 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

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.

fREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3873 OF 2010

THE STATE OF RAJASTHAN Vs NEMI CHAND MAHELA 

Coram: 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
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 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
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 recomputation
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 writpetitioners
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 writpetitioners
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 writpetitioners
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 recomputation
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

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

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

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.

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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