Rajasthan High Court - Jaipur
Bhensreadgarh Panchayat Samiti Iii ... vs State Of Rajasthan And Anr. on 3 March, 1992
Equivalent citations: 1992(1)WLN289
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1. This reference has been made by the Hon'ble Chief Justice to this Full Bench finding conflict between the decisions given in the case of Kalu Ram v. State of Rajasthan and Anr. D.B. Civil Writ Petition No. 2029 of 1989 decided on 12.4.1991) and Kanti Lal and Ors. v. State of Rajasthan and Anr. S.B. Civil Writ Petition No. 1656 of 1989, decided on 16.12.1989 and Sarada Panchayat Samiti III Gr. Teachers Association v. State of Rajasthan and Anr. S.B. Civil Writ Petition 2709/1991, decided on 12-11-1991, in order to lay down the correct position regarding these Illrd Grade Teachers working in various Panchayat Samities all over Rajasthan and the matter may be finally decided by a larger bench so that no conflict remains on the subject.
2. It is not necessary to give the facts in detail as the same are contained in the S.B. Civil Writ Petition No. 2709/1991: Sarada Panchayat Samiti's case (supra). It will be worthwhile to recapitulate the past history of the litigation involved regarding these teachers.
3. All these Illrd Grade Teachers who were working in the various Panchayat Samities all over Rajasthan used to be employed by the Panchayat Samities for academic sessions on a fixed remuneration of Rs. 400/-per month and thereafter services of these teachers used to be terminated at the end of the academic session and they were not paid salary during the vacation period. Thereafter, they were again employed in the next academic session. Therefore, a batch of writ petitions first came to be filed before this Court in the case of Chanda Tamboli v. The Panchayat Samiti, Mandal and Anr. D.B. Civil Writ Petition No. 2795/87 and others. These writ petitions came to be disposed of by a Division Bench of this Court by the order dated 15.6.1988 and detailed instructions for this purpose were given to the Government which read as under:
In the result, all these writ petitions are allowed and we direct that all the petitioners whose services have been terminated shall be entitled to one month's salary in the minimum pay scale admissible to the cadre with Dearness Allowance or Additional Dearness Allowance admissible in accordance with law but will not be entitled to grade increment and they will be re-employed in the next academic session to continue till the regular selections take place (of course subject to availability of vacancies). Amongst these class of persons if trained teachers are available then priority shall be given to the trained teachers. These teachers who are already serving shall be paid the minimum of pay scale admissible to the particular cadre concerned with Dearness Allowance or Additional Dearness Allowance admissible according to law. They will continue till regular selections take place. They will not be entitled to any grade increments. However, they will be entitled to salary for the vacation period as well. The State Government is also directed to get the untrained teachers trained in view of the communication referred to above so that these lowly paid teachers may improve their prospects for the employment in phased programme. No orders as to costs.
4. The decision given in the case of Chanda Tamboli (supra) was challenged before the Hon'ble Supreme Court by other untrained teachers by filing a Special Leave Petition No. 1198/88 along with the writ petition filed by Ram Sukh and others. All these petitions were disposed of by the decision of the Hon'ble Supreme Court in the case of Ram Sukh and Ors. v. State of Rajasthan and Ors. .
5. Thereafter, some remaining batch of the writ petitions also came to be disposed of by the learned Single Judge in the case of Kanti Lal and Ors. v. The State of Raj. and Anr. S.B. Civil Writ Petition No. 1656/1989 decided on 16.12.1989 wherein the learned Single Judge following the decision of Chanda Tamboli (supra) which was affirmed in the Special Leave Petition filed in the case of Ram Sukh (supra) disposed of this batch of writ petitions and observed as under:
So far as these untrained teachers are concerned and who are still continuing in service, the Panchayat and Development Department is directed to obtain a list of these teachers from the respective Panchayat Samities and to prepare a phased programme for their training looking the vacancies available with then by 30th April, 1990: This order will be subject to this condition that these persons who will got the training through the Government will have no right be kept in service if selected candidates by the Distt. Establishment Committee or trained candidates are made available to the Panchayat Samiti and are appointed by them. The training will be at the cost of the candidates who may be sent for training throught the correspondence course and it will be imparted to only these who apply for it through the Panchayat Samiti concerned by 28th Feb. 1990. All arrears of the salary which are payable to such teachers should be by 31st March, 1990.
6. Then, again some writ petitions came to be filed before this Court in, the case of Kalu Ram and Ors. and this came to be listed before Hon'ble the Chief Justice and the Hon'ble Chief Justice vide judgment dated 12.4.1991 allowed the writ petition and observed as under:
In the result, the petition succeeds and is allowed. Impugned order dated 11.5.1989, annexure P/3 to the writ petition is set aside and the respondents are directed to pay the petitioner all consequential benefits including back wages for the period between his termination and re-appointment (excepting the period in which he himself did not work). Parties shall bear their own costs.
7. This judgment was given on the basis of the decision of their Lordships of the Hon'ble Supreme Court rendered in the cases of Bhagwati Prasad v. Delhi State Mineral Development Corporation wherein the Hon'ble Supreme Court held that three years' experience, ignoring artificial break in service for short period created by the management in the circumstances would be sufficient for confirmation.
8. The Hon'ble Chief Justice also referred to the decision of the Hon'ble Supreme Court given in the case of U.P. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors. 1987 (Supp.) SCC 658 wherein the Hon'ble Supreme Court directed regularisation of services of the contingent paid staff in Income-tax Department working as Class IV employees for several years on daily wages basis.
9. Thereafter, the remaining batch of writ petitions was argued before a learned Single Judge and the learned Single Judge after referring to all these decisions including that of Kalu Ram (supra) dismissed the writ petitioner and distinguished the judgment of Kalu Ram on the ground that in the case of Kalu Ram the decision of the Hon'ble Supreme Court in the case of Ram Sukh (supra) was not brought to the notice of the Hon'ble Chief Justice which had direct bearing on the subject.
10. Therefore, in these circumstances this larger bench is constituted by the Hon'ble Chief Justice for resolving the controversy arising on account of conflicting judgments.
11. We have heard learned Counsel for the parties and perused the writ petitions.
12. The principal submission, which has been urged before us, is that whether the decision given by the Hon'ble Supreme Court in the case of Ram Sukh (supra) is binding or not. It is submitted that the decision of the Hon'ble Supreme Court in the case of Ram Sukh should be treated as a decision per incuriam as while deciding the case of Ram Sukh the Hon'ble Supreme Court did not take into consideration the various provisions of the Rajasthan Panchayat Samities and Zila Parishads Services Rules, 1959.
13. The contention of the learned Counsel is absolutely misconceived. The concept of per incuriam is not applicable in the cases decided by the Hon'ble Supreme Court. Article 141 of the Constitution lays down that the law declared by the Hon'ble Supreme Court shall be the law of the land. Therefore, once the law has been laid down by the Hon'ble Supreme Court then it is the law of the land and the same cannot be impeached on the ground that certain provisions of law were not brought to the notice of the Hon'ble Supreme Court. The principle of per incuriam is only applicable to the coordinating bench and it is not applicable to the decisions of the Hon'ble Supreme Court. The law laid down by the Hon'ble Supreme Court is the law of the land and it cannot be argued that either some provisions of law were not brought to the notice of the Hon'ble Supreme Court or the Hon'ble Supreme Court has not referred to its earlier decision. If this is permitted to be impeached by the courts all over the country then it will affect the hierarchy of the judicial system and the finality attached to the judgments of the Hon'ble Supreme Court. Therefore, the framers of the Constitution in their wisdom have clearly laid down in Article 141 that the law declared by the Hon'ble Supreme Court shall be binding on all the courts in the territory of India. In this connection, our attention was invited to the decision given in the case of A.R. Antulay v. R.S. Nayak and Anr. and Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. .
14. We may briefly refer the position of law so far as the principle of per incuriam is concerned. The meaning of the expression 'per incuriam' as defined in Law Lexicon Cum Digest Vol. II reads as under:
Per incuriam : By ignorance of a previous decision of its own or of a court of coordinate or higher jurisdiction; by ignorance of the terms of a statute or of a rule having the force of a statute.
15. Therefore, so far as the principle of per incuriam is concerned, one coordinating, bench can say for the another coordinating bench that the decision of the higher court was not brought to its notice resulting in delivery of judgment contrary to that of higher court or against a statute or any provisions of the statute. But it is not open for the High Court to say that the decision given by the Hon'ble Supreme Court is per incuriam, if that is open then it will lead to disatrous result and the binding effect of the decision of the Hon'ble Supreme Court will ceased to be effective and it will run contrary to the provisions of Article 141 of the Constitution of India. As back as in the year 1970 the Hon'ble Supreme Court in the case of Ballabhdas Mathuradas Lakhani and Ors. v. Municipal Committee, Malkapur has observed as under:
The decision was binding on High Court and the High Court could not ignore it because they thought that relevant provisions were not brought to the notice of the Court.
16. The same principles was reiterated by the Hon'ble Supreme Court in the case of A.R. Anutlay (supra) wherein their Lordships of the Hon'ble Supreme Court observed as under:
It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case. See Halsbury's Laws of England, 4th edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8,11 and 15; Dias on Jurisprudence 5th edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. Also see the observations of Lord Goddard in Moore v. Hewitt and Penny v. Nicholas. "Per incuriam" are those decisions given in ignorance or forget fulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd.. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
17. Likewise in the case of Punjab Land Development (supra), it was observed as under:
Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when considered justified. Section 212 of the Government of India Act, 1935 and Article 141 of the Constitution of India were enacted to make the law declared by the Supreme Court binding on all courts in the country excluding, as is now being interpreted, the Supreme Court itself. The doctrine of ratio decidendi has also to be interpreted in the same line. In England a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted In ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. It has been said that the decision of the House of Lords mentioned above, refers to a decision subsequent to that of the Court of Appeal. However, "a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam." But if the prior decision had been cited to the Court of Appeal and that court had misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House to rectify the mistake. In Halsbury's Laws of England (4th ed., Vol. 10, Para 745), it has been said:
"While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so. Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle. Only in rare cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the facts.
18. Similarly, in the case of The Direct Recruit Class II Engineering Officers" Association and Ors. v. State of Maharashtra and Ors. , their Lordships of the Supreme Court observed as under:
Decision dealing with important questions concerning particular service--Rendering of decision after careful consideration--It should be respected--Scrutiny for finding out possible error--Not proper.
19. Therefore, once the law has been laid down by the Hon'ble Supreme Court, it is binding and it is not open for the parties to argue that the decision given in the case of Ram Sukh was in the ignorance of the provisions of the statute. Therefore, it is a decision per incuriam. More-so, it is not correct because in the case of Ram Sukh the Hon'ble Supreme Court was seized with the entire history 5f the case and the decision given in the case of Chanda Tamboli was before the Hon'ble Supreme Court. Therefore, it is absolutely incorrect to say that the Hon'ble Supreme Court decided the matter in ignorance of the provisions of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 [hereinafter referred to as 'the Rules').
20. Thus, the principle of per incuriam is concerned, it is only applicable to the coordinating bench and it is not open for this Court to say that the decision given by the Hon'ble Supreme Court is per incuriam.
21. Now, coming to the merit of the matter regarding the so- called conflict between the decisions given in the case of Kanti Lal, Kalu Ram and in the case of Sarada Panchayat Samiti.
22. So far as Kanti Lal's case (supra) is concerned, the same was decided on the basis of the judgment given in the case of Chanda Tamboli and with reference to Ram Sukh's case (supra). The learned Single Judge only followed the decision of Chanda Tamboli and observed that teachers who want themselves to be trained the Panchayat Samiti may prepare a list and permit those teachers to get training. But it was clearly mentioned that those trained teachers will have no right to be appointed in the service. These observations were made in view of the observations made by their Lordships of the Hon'ble Supreme Court in the case of Ram Sukh (supra). But when the individual writ petition of Kalu Ram was argued before the Hon'ble Chief Justice neither the decision given in the case of Kanti Lal nor the decision given by the Hon'ble Supreme Court in the case of Ram Sukh (supra) was brought to the notice of the Hon'ble the Chief Justice and the attention of the Hon'ble Chief Justice was invited to the decisions given by their Lordships of the Supreme Court in the cases of Bhagwati Prasad and U.P. Income Tax Department Contingent Paid Staff Welfare Association's case (supra). Therefore, the decision was a batch of writ petitions came up before the learned Single Judge in the case of Sarda Panchayat Samiti, his attention was also invited to the decision given in the case of Kalu Ram. The learned Single Judge observed that the decision given in the case of Kalu Ram is per incuriam as the attention of the Hon'ble Chief Justice was not invited to the direct decision given in the case of Ram Sukh (supra) by the Hon'ble Supreme Court. Therefore, the learned Single Judge disposed of all batch of writ petitions and dismissed the same relying on the decision of the Hon'ble Supreme Court given in the case of Ram Sukh (supra). In the case of Ram Sukh the decision given in the case of Chanda Tamboli was affirmed and it was clearly mentioned that the untrained teachers can never be a better substitute to trained teachers and the Hon'ble Supreme Court refused to grant any relief to those untrained teachers.
23. We have considered the decision given by the learned Single Judge in the case of Sarda Panchayat Samiti and we affirm that this decision correctly lays down the law.
24. Our attention was also invited to the cases of untrained teachers of Shergarh. Since the decision given in the case of Sarada Panchayat Samiti correctly lays down the law, therefore, no relief in this writ petition can be granted and Mr. Ojha, learned Deputy Government Advocate has invited our attention to the order passed by the Vikas Adhikari and Administrator, Panchayat Samiti, Shergarh that the services of the untrained teachers were terminated on account of the fact that the selected candidates have been made available.
25. Mr. Purohit, learned Counsel appearing for the petitioners, submitted that the services of these untrained teachers were terminated by the order dated 18.11.1991 on the basis of so-called opinion given by the Deputy Government Advocate. But after reading both these orders, it appears that since all these batch of writ petitions were disposed of by the decision given in the case of Sarada Panchayat Samiti, therefore, the services of these untrained teachers have been terminated on account of the availability of duly selected teachers. Thus, no relief can be given to these teachers.
26. This writ petition along with other similar matters [including special appeals) mentioned in the schedule appended to this order are dismissed.