Patna High Court - Orders
Kashi Nath Singh vs The State Of Bihar on 30 August, 2024
Author: Anjani Kumar Sharan
Bench: Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9327 of 2022
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1. Kashi Nath Singh Son of Chandra Mohan Singh, Resident of Village-
Ramnagar Andar Dhala, Siwan, P.O.-Main Post Office, P.S.-Town Siwan,
District-Siwan, Bihar-841226.
2. Shiv Kumar, Son of America Ram, Resident of Village and P.O.-Hathaura,
P.S. Hussainganj, District-Siwan, Bihar-841237.
3. Akhilesh Kumar Singh, Son of Chandra Mohan Singh, Resident of Village-
Ramnagar Andar Dhala, Siwan, P.O.-Main Post Office, P.S.-Town Siwan,
District-Siwan, Bihar-841226.
4. Sunil Kumar, daughter of Chhotelal Prasad, resident of Village and P.O.-
Barhariya, P.S.-Barhariya, District-Siwan, Bihar-841232.
5. Munna Prasad, son of Ram Swarup Prasad, resident of Village-Shri Nagar,
Mairwa, P.O. and P.S.-Mairwa, District-Siwan, Bihar-841239.
6. Shashi Kumar, Son of Shambhu Prasad, resident of Village-Makhadum Sarai
Math, Siwan, P.O. Main Post Office, P.S.-Town Siwan, District-Siwan,
Bihar-841226.
7. Pranav Kumar Ray, Son of Narwadeshwar Ray, resident of Village and P.O.-
Titra, P.S.-Mairwa, District-Siwan, Bihar-841245.
8. Indardev Yadav, Son of Late Sukhdeo Yadav, resident of Village-Tenghara,
P.O. Malepur, P.S.-Barhat, District-Jamui, Bihar-811313.
9. Khagendra Kumar, Son of Sri Hemnarayan Singh, resident of Sultan Pokhar,
Ward No. -2, P.O. and P.S. Forbesganj, District-Araria, Bihar-854318.
10. Piyush Raj, Son of Late Santosh Kumar, resident of Surendra Singh Tola,
Barhaua, P.O. Maujara, Jogta, P.S. Ranjiganj, District-Araria, Bihar-854334.
... ... Petitioners
Versus
1. The State of Bihar
2. The State of Bihar through the Additional Chief Secretary, Education
Department, Government of Bihar, Patna.
3. Director, Mid-day Meal, Bihar.
4. Director, Pradhan Mantri Poshan Yojana, Bihar.
5. Director, Bihar State Project Education council and Sarv Shiksha Abhiyan,
4, Saidpur Road, Naya Tola, Bhikhana Pahari, Patna, Bihar-800004.
6. The District Magistrate-cum-Chairman, District Level Contractor Selection
Committee, Siwan.
7. The District Magistrate-cum-Chairman, District Level Contractor Selection
Committee, Araria.
8. The District Magistrate-cum-Chairman, District Level Contractor Selection
Committee, Jamui.
9. The District Programme Officer-cum-Member Secretary, District Level
Contractor Selection Committee, Siwan.
10. The District Programme Officer-cum-Member Secretary, District Level
Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024
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Contractor Selection Committee, Araria.
11. The District Programme Officer-cum-Member Secretary, District Level
Contractor Selection Committee, Jamui.
... ... Respondents
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Appearance :
For the Petitioners : Ms. Shristi Singh, Advocate
Mr. Pranav Kumar, Advocate
For the Respondent State: Mr. P.K.Shahi, Advocate General
Mr. Vikash Kumar, Advocate
For the Respondent (MDM Comm.) Mr. Girijesh Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
C.A.V. ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 30-08-2024
This Larger Bench has been constituted to consider the
reference made by a Division Bench by its order dated 04.01.2023,
on the following points, which are being reproduced hereinbelow:-
(i) Whether the basic principle of any Executive
decision of the object to be achieved having a nexus with
the action taken is lacking in the present transaction, for
example, the overall monitoring through GPS system and
lesser rates for such work could have been negotiated with
the existing contractors so as to address the reason taken by
the authorities to take such drastic action?
(ii) Whether during Court proceedings where
such decision was being questioned under judicial review,
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the authorities could have supplemented the reason for
taking such decision by filing affidavit, which is contrary to
the settled law starting from Mohinder Singh Gill (supra)
and 63 Moons Technologies Ltd. (supra), as also the ground
that under the Policy, 2006, Clause 3.8 requires supply of
food grains from the FCI godowns to the designated
authority at the taluk/block level by the Agency and not
from the taluk/block level to each school?
(iii) Whether the reliance on the decision of the
Hon'ble Supreme Court in Jagdish Mandal (supra) is
erroneous for the reason that it relates to a situation where a
contract has to be awarded at its inception and further
whether, in the same judgment, the broad parameters set for
judicial review stand fulfilled in the present case?
(iv) Whether, in the facts of the present case,
principles of natural justice of giving a show-cause notice
before termination of a vested interest/contract between the
parties cannot be said to be a mere formality and were
applicable?
(v) Whether, on facts, once a High Powered
Committee of the Department had taken a decision that
GPS would be installed in the vehicles by which the Mid
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Day Meal materials were to be transported from the
B.S.F.C. godowns to schools through an agency to be
chosen by them and the contracts being subsequent to that
date and till date no such agency being
nominated/designated by the authorities, non-compliance of
installing GPS by the existing contractors can be a ground
for cancellation, more so, without giving them an
opportunity to do so within a fixed time frame, as also with
the agencies so designated?
(vi) Whether the so-called policy decision of the
State Government purportedly to bring it in line with the
provisions of National Food Security Act, 2013 could have
been achieved by merely transferring the control and
management with regard to the present exercise to the
BSFC from the control of the Mid Day Meal authorities?
(vii) Whether the existing contractors having
altered their position for performing the nature of job
assigned to them under the contract can suddenly be left in
a position where they suffer huge losses for no justifiable
reason, as they could have also performed the same job, as
per the requirement of the concerned department/BSFC?
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(viii) Whether once vested right has accrued
between the parties, more so, when on the one hand it is the
State and on the other side a private citizen, any change in
the position can only be after following the due procedure
of law and in accordance with law?
(ix) Whether even otherwise the orders impugned
unsustainable, as they are in violation of the terms of
contract between the parties?
FACTUAL MATRIX OF THE CASE
2. The case of the petitioners is that Pradhanmantri
Poshan Shakti Nirman Yojana (hereinafter referred to as 'P.M.
Poshan Yojna') has been launched by the Central Government.
Through the said scheme, nutritious food is to be provided to the
children studying in primary classes. The objective is that instead
of just providing food to the children studying in the school,
nutritious food will be arranged. The said Mid-day Meal Scheme is
to be executed State-wise. In the State of Bihar, the said Scheme
comes under the Education Department and, therefore, Bihar State
Mid-day Meal Scheme Committee has been constituted for the
said purpose. In this context, the State Government has issued
letter dated 20.11.2017, in which Guidelines have been stipulated
in connection with lifting/distribution of grain for implementation
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of Mid-day Meal Scheme at the Block level. Through these
guidelines, it has been stipulated that for every district, there will
be a committee constituted for selection of a contractor for
lifting/distribution and handling of food grains. The guidelines
further mention the conditions that will govern the selection and
also the terms of agreement executed for implementation of the
Mid-day Meal Scheme. Paragraph 2 of the guidelines requires the
contractor to furnish earnest security money of Rs.50,000/-.
Paragraph 13 of the Guidelines provides the conditions in relation
to the vehicles to be enrolled by the contractor for execution of
Mid-day Meal Scheme. Paragraph 21 of the Guidelines specifies
that the period of the contract will be for two years, which can be
extended only under exceptional circumstances as provided for in
the Guidelines. The petitioners have further stated that on the basis
of the Guidelines issued by the Director, Mid-day Meal Scheme,
Notice Inviting Tender (NIT) was published in different districts in
relation to lifting of food grains from the godown of BSFC and
distribution to the stores of schools at the Panchayat level within
the Block. The petitioners herein are the contractors for the
districts of Siwan, Araria and Jamui.
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2.1. It is further stated that for the aforesaid
districts, NIT was published on different dates as stated in
paragraph 6 of the memo of the petition.
2.2. The petitioners participated in the said process
pursuant to the NIT and thereafter the respondent authorities
entered into individual agreement for execution of the work of
lifting and distribution of the mid-day meal grains. Petitioners No.
1 to 7 entered into agreement with the concerned respondent
authorities on 02.09.2020. Petitioner No. 8 entered into agreement
on 27.12.2021, whereas petitioners No. 9 and 10 entered into
agreement on 08.12.2021 and 04.08.2021 respectively. It is also
stated that these agreements, which were executed for a period of
two years, stipulated the grounds on which the agreements could
be terminated.
2.3. In terms of the NIT, one of the essential
conditions is that the tenderer for 15 Panchayats under one Block
must have five trucks/pick-ups/other small vehicles and for more
than 15 Panchayats, eight trucks/pick-ups/other small vehicles
should be available with the contractor at the time of agreement.
Another important condition stipulated in the NIT was that for
being eligible for participation in the NIT, two vehicles must be
registered in the name of tenderer. In terms of the NIT, most of the
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petitioners made substantial investment towards purchase of the
vehicles for being a successful tenderer. Some of the petitioners
took loan for purchase of the vehicles from different
Banks/Financial Institutions. Thus, they altered their position for
fulfilling the terms of the NIT published by the respondent
Committee.
2.4. Petitioners have also stated that decision dated
25.03.2022was taken in the meeting of Bihar State Mid-day Meal Scheme Committee under the signature of the Additional Chief Secretary-cum-Chairman, Bihar State Mid-day Meal Scheme Committee, on 31.03.2022, by which against agenda No. 2, it was concluded that Global Positioning System (GPS) will be installed in the vehicles used for lifting of grains and thereafter distribution of grains under P.M. Poshan Yojna will be carried out by the contractors of Bihar State Food and Civil Supplies Corporation ('BSFC' for short). Thereafter, on 28.03.2022, a meeting of the Committee was held under the chairmanship of the Chief Secretary, Bihar, in presence of Additional Chief Secretary, Education Department, along with other officials. In the said meeting, it was decided that since the vehicles used by the BSFC are installed with GPS and their handling charges are relatively less, the lifting/distribution of grains under the P.M. Poshan Yojna Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 9/48 is to be executed through BSFC contractors. The last date by which the work was to be taken through the contractor of BSFC was fixed as 30.06.2022. Thereafter, the grains under the P.M. Poshan Yojna was resolved to be distributed through the BSFC contractors.
2.5. At this stage, it is relevant to note that in paragraph 15 of the memo of the petition, the petitioners have referred the petition being C.W.J.C. No. 6489 of 2022 filed by similarly situated contractors and in paragraph 17 of the memo of petitions, the petitioners have referred to interim order dated 17.05.2022 passed by this Court by which the Court directed to maintain status quo as on that date so far as the petitioners of the said petition were concerned. The present petitioners, therefore, in paragraph 18 of the memo of petition, contended that a representation was made before the concerned respondent authorities that benefit of the order dated 17.05.2022 be also extended to the present petitioners. It is also stated that, in the said representation, the petitioners also stated that the Government should extend the benefit of order of status quo passed in the aforesaid petition to all other contractors because the agreement is similar for all of them and the impugned order is common and governs all the contractors. However, when the representation filed Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 10/48 by the petitioners was not favourably considered by the respondent authorities, the petitioners have filed the present petition on various grounds referred in the memo of petition.
2.6. The present petitioners have challenged the decision dated 25.03.2022, taken by the Bihar State Mid-day Meal Committee, issued under the signature of the Additional Chief Secretary-cum-Chairman, Bihar State Mid-day Meal Committee, by which it was decided that since the vehicles used by the BSFC are installed with GPS and their handling charges are relatively less and their fair price shops are situated in every village, therefore, the lifting/distribution of grains under P.M. Poshan Yojna would be executed through BSFC contractors, so that consistency will be maintained.
2.7. The petitioners have prayed that the aforesaid decision be quashed and set aside. The petitioners have also prayed that decision of the Bihar State Mid-day Meal Committee dated 28.03.2022, bearing Memo. No. 649 dated 06.04.2022, issued under the chairmanship of the Chief Secretary, Bihar, wherein it was decided that since the vehicles used by the BSFC are installed with GPS and their handling charges are relatively less, therefore, the lifting/distribution of grains under P.M. Poshan Yojna would be executed through BSFC contractors, be quashed and set aside. Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 11/48
3. Similarly situated persons to that of petitioners also affected by the same decision taken by the concerned respondent authorities also preferred C.W.J.C. No. 8807 of 2022 and allied matters. The Division Bench of this Court vide common order dated 11.10.2022 dismissed the said petitions.
3.1. Being aggrieved and dissatisfied with the order dated 11.10.2022 passed by the Division Bench of this Court, the concerned petitioners of the said petitions filed S.L.A. (C) No. 21466 of 2022 and allied matters. The Hon'ble Supreme Court vide order dated 13.12.2022 dismissed the said petitions seeking special leave to appeal.
3.2. At this stage, it is pertinent to note that the present petition was listed before another Division Bench of this Court. It appears from the record that learned counsel for the present petitioners, who was also appearing with Senior Counsel in the previous batch of petitions, did not point out about dismissal of S.L.A's. filed by the similarly situated persons by the Hon'ble Supreme Court. Thus, when the present petition was listed before another Division Bench on 04.01.2023, the second Division Bench after recording submissions of learned counsel for the parties and being unaware about the dismissal of the S.L.A's. filed by the similarly situated persons recorded the submissions of the parties Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 12/48 and when the second Division Bench was not agreeable with the view taken by the first Division Bench, referred the aforesaid points for consideration by a Larger Bench.
3.3. The present petition is, therefore, listed before the Larger Bench in view of the aforesaid circumstances.
4. We have heard Ms. Shristi Singh, learned counsel appearing on behalf of the petitioners and Mr. P.K.Shahi, learned Advocate General, Bihar, assisted by Mr. Vikash Kumar and Mr. Girijesh Kumar, learned counsels on behalf of the State of Bihar.
ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS
5. Learned counsel for the petitioners, at the outset, submitted that Special Leave to Appeal (C) Nos. 21466 of 2022 with S.L.P. (C) Nos. 21629 of 2022 and 22877 of 2022 were preferred against the decision of the first Division Bench, the said S.L.P's. were dismissed in limine by the Hon'ble Supreme Court by order dated 13.12.2022, however, in limine dismissal of S.L.A. and S.L.P's. does not amount to affirmation of the judgment of the first Division Bench and the judgment of the first Division Bench does not stand merged with the order passed by the Hon'ble Supreme Court. It is further submitted that for the purpose of adjudication by this Court, it would be presumed as if no S.L.A. or Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 13/48 S.L.P's. existed at all. Therefore, when the second Division Bench has referred the other matter to the Larger Bench for considering the points referred in the order dated 04.01.2023, the Larger Bench may decide the same on its own merits. In support of the said contention, learned counsel has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Indian Oil Corpn. v. State of Bihar, reported in (1986) 4 SCC, 146 and Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., reported in (2019) 4 SCC 376.
5.1. Learned counsel for the petitioners would thereafter contend that it is permissible for the subsequent Division Bench to differ from the decision taken by the first Division Bench on the issue involved by referring to the Larger Bench. The only judicially recognized limitation is that the second Division Bench cannot deliver a contrary judgment and should, in the event of different opinion on the subject, refer the matter to a Larger Bench. It is further submitted that reference can be made on a point of law or the whole case as also to determine the applicability of a decision to the facts of the case. It is contended that the second Division Bench has, therefore, referred various questions, including the applicability of the judgments relied upon by the first Division Bench rendered by the Hon'ble Supreme Court in the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 14/48 case of Mohinder Singh Gill v. Chief Election Commr., reported in (1978) 1 SCC 405.
5.2. At this stage, it is also submitted that it is permissible for a subsequent Division Bench to refer the entire matter to a Larger Bench for consideration, even when a previous coordinate Bench has already decided the earlier matter and not just a point of law. In support of the aforesaid contention, learned counsel for the petitioners has placed reliance upon the following decisions: -
(i) Kalpana Rani v. State of Bihar reported in 2014(2) PLJR 665[FB],
(ii) Narendra Mishra v. The State of Bihar reported in 2015(1) PLJR 650 [FB],
(iii) Asstt. Collector of Estate Duty, Madras v. V. Devaki Ammal (Smt.) Madras, reported in 1995 Supp (2) SCC 39,
(iv) State of Punjab v. Salil Sabhlok, reported in (2013) 5 SCC 1 and
(v) P.V. George v. State of Kerala, reported in (2007) 3 SCC 557.
5.3. Learned counsel further submits that if the present Larger Bench decides in favour of the present petitioners, Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 15/48 it would overrule the judgment of the first Division Bench. Consequently, the judgment, which will be rendered by the Larger Bench in the present case, would govern the previous writ petitions, which were decided by the first Division Bench. In support of the said contention, learned counsel has once again placed reliance upon the decisions rendered in the case of Narendra Mishra (supra) and P.V. George (supra).
5.4. Learned Advocate for the petitioners submits that when the present petition was filed, contract period of all the petitioners was in subsistence and, in fact, the petitioners have also prayed for restoration of the contract with consequential benefit and compensation. However, at this stage, it is contended that when the matter was referred to the Larger Bench by second Division Bench by order dated 04.01.2023, the contract period of seven out of ten petitioners had lapsed. It is fairly submitted that now when the matter has been taken up before the Larger Bench on 22.07.2024, the contract period of all the petitioners have lapsed. However, it is contended that the mere fact that the contract period had lapsed would not be an obstacle in either adjudicating the case or granting the consequential relief of restoration, if the impugned orders are held to be illegal. Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 16/48 5.5. It is also submitted that the powers of the High Court under Article 226 of the Constitution of India to grant specific relief specially when a public law element is involved is not barred. It is contended that, in the present case, no opportunity was extended to the petitioners before issuance of the impugned orders passed by the respondent authorities.
In support of the aforesaid submissions, learned counsel has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court in the case of: -
(I) State of U.P. v. Ram Swarup Saroj, reported in (2000) 3 SCC 699, (II) Soma Isolux NH One Tollway (P) Ltd. v. Harish Kumar Puri, reported in (2014) 6 SCC 75 and (III) State of U.P. v. Sudhir Kumar Singh, reported in (2021) 19 SCC 706.
5.6. Alternatively, learned counsel for the petitioners would contend that even if this Larger Bench is of the opinion that the contract of the petitioners cannot be restored due to lapse of time, the petitioners would still be entitled to compensation in the form of exemplary damages under Article 226 of the Constitution of India. In support of the said contention, learned counsel has placed reliance upon the following decisions: -
Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 17/48 (I) United Air Travel Services v. Union of India, reported in (2018) 8 SCC 141 and (II) S. Nihaal Ahamed v. Velammal Medical College Hospital & Research Institute, reported in (2016) 1 SCC 662.
5.7. Learned counsel for the petitioners thereafter argued the case of the petitioners on merits. Learned counsel submits that the concerned respondent authorities have taken a stand in the counter affidavit that the impugned decision of the authorities is a valid decision of the State Government having the approval of the Chief Secretary of Bihar, which is for the welfare of the children studying in Class-I to VIII, eligible for P.M. Poshan Yojna scheme. It is contended that the first Division Bench has also proceeded with the assumption that the impugned decision was also a policy decision. It is contended by learned counsel for the petitioners that for the first time during the proceedings the said stand was taken by the respondent State that the policy decision was of the Mid-day Meal Committee and not the State and that the first Division Bench has referred to the Nutritional Support to Primary Education, 2006 as the policy decision, which was of the Union. Learned counsel would submit that the contention taken by the respondent State is contrary to the records. Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 18/48 5.8. It is contended that the impugned orders passed by the respondent authorities are not policy decisions as the impugned orders are not passed expressly in the name of the Hon'ble Governor and, therefore, the said order cannot be said to be made on behalf of the State Government. Learned counsel, at this stage, also referred to the Rules of Executive Business, 1979, which have been framed under Article 166(3) of the Constitution of India. It is contended that, as per the provisions of the said Rules, a decision cannot be said to be a policy decision if the same is not having approval of Hon'ble the Chief Minister and the Cabinet. Further, cases raising question of policy and cases of administrative importance, which are not governed by the Third (IIIrd) Schedule, approval of Minister In-charge and also the Hon'ble Chief Minister is required. Thus, in the present case, the decision taken by the Chief Secretary cannot be treated as policy decision.
Learned counsel has placed reliance upon the following decisions in support of this contention: -
(i) APM Terminals B.V. v. Union of India, reported in (2011) 6 SCC 756,
(ii) Jaipur Development Authority v. Vijay Kumar Data, reported in (2011) 12 SCC 94 and Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 19/48
(iii) Sime Darby Engg. SDN. BHD. v. Engineers India Ltd., (2009) 7 SCC 545.
5.9. Learned Advocate also contended that the first Division Bench has concluded on the basis of the contentions taken by the respondents that there was pilferage and that the handling charges were lesser to conclude that the decision was taken in public interest. Further, it has been submitted by learned counsel that the first Division Bench did not appreciate that the decision taken by the authorities cannot be supplemented later by way of an affidavit. The ground of pilferage and less handling charges, these two things were not referred by the respondent authorities in the impugned decisions and the same was supplemented by way of affidavit filed before the Court. Thus, the first Division Bench has not properly considered the decision rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) and 63 Moons Technologies Ltd. v. Union of India, reported in (2019) 18 SCC 401.
5.10. At this stage, it is submitted that once the agreements have been executed between the parties, respondent authorities could not rescind the same by relying upon old letter dated 29.05.2015, where BSFC agents were agreeable to execute the agreement at Rs.38.40 per quintal. It is also contended that Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 20/48 public interest cannot conflated with an evaluation of the monetary gain or loss alone. In support of the aforesaid contentions, learned counsel has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. and Another Versus Shishir Realty Private Limited and Others reported in 2021 SCC OnLine SC 1141 and M.P. Power Management Co. Ltd. v. Sky Power Southeast Solar India (P) Ltd., reported in (2023) 2 SCC 703.
5.11. The next contention taken by learned counsel for the petitioners is that the writ petition would be maintainable even in a contractual matter and more particularly under three circumstances, firstly, if the action is illegal and without jurisdiction; secondly, if the principles of natural justice have been violated and, thirdly, if fundamental rights have been violated. It is also contended that once the State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably, which is the requirement of Article 14 of the Constitution of India. When the State acts in contravention, then the writ court can interfere. Further, breach of fundamental rights contains a public law element when the action is arbitrary and there is a breach of natural justice. It is also submitted that violation of natural justice Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 21/48 is a ground signifying the presence of a public law element. Learned Advocate has placed reliance upon the following decisions in support of the aforesaid contentions: -
(I) M.P. Power Management Co. Ltd. (supra);
(II) State of U.P. v. Sudhir Kumar Singh (supra);
(III) Shrilekha Vidyarthi (Kumari) v. State of U.P., reported in (1991) 1 SCC 212;
(IV) Food Corpn. of India v. SEIL Ltd., reported in (2008) 3 SCC 440 and (V) Popcorn Entertainment v. City Industrial Development Corpn., reported in (2007) 9 SCC 593.
5.12. Learned Advocate for the petitioners further submits that the petitioners had furnished a security deposit of Rs.50,000/- and had also entered into agreements for securing additional vehicles for transportation of food-grains and thereby altered their positions. Thus, now the Government be estopped from taking the decision, which is detrimental to the petitioners. The doctrine of promissory estoppel may be applied against the Government where the interest of justice, morality and common fairness dictate such a course. Learned counsel has placed reliance upon the decision rendered in the case of Monnet Ispat & Energy Ltd. v. Union of India, reported in (2012) 11 SCC 1. Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 22/48 5.13. Learned counsel would contend that one of the clauses in the agreement was that the vehicles would be installed with GPS, but in view of there being an internal decision by the Department that such GPS would be with the Agency which would be designated by the Department and would be communicated to the concerned contractors, which till date has not been done and, therefore, non-installation of GPS in the vehicles of the petitioners cannot be a valid or justified ground for termination of the agreements. It is also contended that the petitioners were not given even the basic courtesy, which was their right, to show cause with regard to any violation of the terms and conditions of the contract or for making changes with regard to the operation of the contract, which the authorities thought were in the larger public interest.
5.14. Learned counsel has contended that the first Division Bench has committed an error while concluding that the respondents were justified in terminating the contract as the petitioners were in violation of the agreement for not installing the GPS. Learned counsel has referred to letter No. 481 dated 16.03.2018.
5.15. Learned Advocate further submits that the first Division Bench did not appreciate the fact that while the agreements were in subsistence for a period of two years in favour Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 23/48 of the petitioners, no person other than the petitioners can be assigned the works and, hence, the petitioners had the fundamental right to carry out the assigned work to the exclusion of any other party.
5.16. It is submitted that in the impugned orders, including the order dated 09.05.2022 passed by the respondent authorities, direction for termination of the agreements entered into with the petitioners by 30.05.2022 in accordance with the conditions stipulated therein so that the new process can be adopted for allotment of work. Thus, the respondent authorities were cognizant of the fact that the legal rights vested with the petitioners. Therefore, without terminating the contracts in accordance with the conditions stipulated therein, the Government could not have proceeded with the alternative agreement. Thus, when the petitioners were having vested right, the respondent authorities ought not to have terminated the contract of the petitioners without giving them opportunity of hearing.
5.17. Lastly, it has been contended that the impugned orders passed by the authorities did not make any reference to the National Programme of Nutritional Support to the Primary Education, 2006 and more particularly Clause 3.8 of the Policy. However, the same has been referred and relied upon by Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 24/48 the first Division Bench. However, reliance upon the said policy is misconceived. It is contended that 2006 Policy would not be applicable to the facts of the present case.
5.18. Learned counsel for the petitioners, therefore, urged that the first Division Bench has committed serious error while dismissing the batch of petitions filed by similarly situated contractors to that of the present petitioners and, therefore, the second Division Bench has rightly referred the entire matter for consideration by Larger Bench. Learned counsel, therefore, urged that the present petition be allowed and thereby appropriate directions be issued to the respondent authorities.
ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENT STATE
6. On the other hand, Mr. P.K.Shahi, learned Advocate General, Bihar, appearing for the respondent State has, at the outset, contended that the present reference made by the second Division Bench to the Larger Bench itself is misconceived and it appears that the matter has been referred to the Larger Bench because of the fact that the petitioners did not point out before the second Division Bench that the S.L.A. and S.L.P's. filed by other contractors/similarly situated persons have been dismissed by the Hon'ble Supreme Court vide order dated 13.12.2022. Thus, second Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 25/48 Division Bench was not aware about the dismissal of S.L.A. and S.L.P's. filed by the concerned contractors when the reference was made on 04.01.2023.
6.1. Learned Advocate General would further submit that since period of agreement/contract is already over, no relief can be granted at this stage in favour of the petitioners. It is also submitted that if the petitioners are aggrieved by the termination of the agreement, it is always open for the petitioners to file appropriate proceeding before the competent civil court claiming compensation.
6.2. Learned Advocate General further submits that the petitioners themselves have in the memo of petition stated that case of the present petitioners and the other contractors is on identical footing and, therefore, the benefit of interim order dated 17.05.2022 passed by this Court in favour of the concerned contractors in C.W.J.C. No.6489 of 2022 be given to the present petitioners also. When the first Division Bench has finally dismissed the petition filed by the other similarly situated contractors including C.W.J.C. No. 6489 of 2022, now, at this stage, the petitioners are finding fault with the reasoning recorded by the first Division Bench at the time of arguing their case before the second Division Bench and that too when the order passed by Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 26/48 the first Division Bench was not interfered with by the Hon'ble Supreme Court. Thus, the conduct of the petitioners may also be kept in mind while considering the case of the petitioners.
6.3. Learned Advocate General has referred to Section 5 of the Food Security Act, 2013 as well as the Guidelines under the National Programme of Nutritional Support to Primary Education, 2006, issued by the Ministry of Human Resources Development, Department of School Education and Literacy, and more particularly referred to Clause 3.8 of the said Guidelines. It is submitted that the aforesaid provisions as narrated in the Act of 2013 as well as Guidelines issued under 2006 in public interest and the policy were framed by the concerned Government and, therefore, now the decision has been taken for distribution of grains under P.M. Poshan Yojna through BSFC and the policy has been implemented. Thus, the respondent authorities have not committed any illegality while passing the impugned orders.
6.4. Learned Advocate General has also referred to the reasoning recorded by the first Division Bench while dismissing the writ petition filed by approximately 424 similarly situated contractors and thereafter contends that the first Division Bench has discussed in detail how the concerned petitioners were not entitled to claim the relief prayed for. It is also contended that Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 27/48 when the said order was not interfered with by the Hon'ble Supreme Court while dismissing the S.L.A. and the S.L.P's., the present petition filed by the present petitioners may not be entertained, otherwise, indirectly the other 424 petitioners, whose petitions have been dismissed and order of the first Division Bench was not interfered with by the Hon'ble Supreme Court, will get the benefit through the present petitioners, which is not permissible in the facts of the present case. Thus, those 424 petitioners of the other petitions who could not get the relief at the relevant point of time are now trying to get the relief through the present 10 petitioners.
6.5. Learned Advocate General, therefore, urged that the present petition may not be entertained and no law point is involved in the present case. The factual aspects have already been dealt with by the first Division Bench and, therefore, the present petition be dismissed.
7. Mr. Girijesh Kumar, learned counsel appearing on behalf of Mid-day Meal Committee has adopted the submissions canvassed by the learned Advocate General. However, he has contended that, as a policy, the Government has decided to give the responsibility of monitoring and transportation of food grains to the BSFC and the contract being between the Mid-Day Meal Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 28/48 and the contractor has been terminated to give the BSFC a free hand in deciding the next course of action and not to encumber BSFC with any liability of existing contract and allocation of the work covered under the contract with the petitioners has been given to the contractor of the BSFC for justifiable purpose; as such contractors already have GPS installed in their vehicles enabling them effective control and monitoring of such transportation, which the present petitioners lack.
7.1. Learned counsel has further contended that allocating the transportation work to the BSFC contractors is in larger public interest as they are handling similar work with up to date GPS monitoring system which will not only check the pilferage, but would ensure timely delivery of food grains to the designated centers and their rate is also lesser than the petitioners.
DISCUSSION
8. Having heard learned counsel for the parties and having gone through the materials placed on record as well as the decisions upon which reliance has been placed, it would emerge that the present petition has been filed by 10 petitioners challenging the decision of the Bihar State Mid Day Meal Committee dated 28.03.2022, bearing Memo. No. 649 dated 06.04.2022, issued under the chairmanship of the Chief Secretary, Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 29/48 Bihar, wherein it was decided that since the vehicles used by the BSFC are installed with GPS and their handling charges are relatively less, therefore, the lifting/distribution of grains under P.M. Poshan Yojna would be executed through BSFC contractors, be quashed and set aside. The petitioners have also prayed for other reliefs as stated hereinabove.
8.1. It is not in dispute that other similarly situated 424 persons/contractors filed various petitions being C.W.J.C. No. 8807 of 2022 and allied matters challenging the same decision of respondent authorities. A Division Bench of this Court vide order dated 11.07.2022 dismissed the said petitions.
8.2. At this stage, it is relevant to note that in paragraph 15 of the memo of the petition, the petitioners have referred the petition being C.W.J.C. No. 6489 of 2022 filed by similarly situated contractors and in paragraph 17 of the memo of petitions, the petitioners have referred to interim order dated 17.05.2022 passed by this Court by which the Court directed to maintain status quo as on that date so far as the petitioners of the said petition were concerned. The present petitioners, therefore, in paragraph 18 of the memo of petition, contended that a representation was made before the concerned respondent authorities that benefit of the order dated 17.05.2022 be also Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 30/48 extended to the present petitioners. It is also stated that, in the said representation, the petitioners also stated that the Government should extend the benefit of order of status quo passed in the aforesaid petition to all other contractors because the agreement is similar for all of them and the impugned order is common and governs all the contractors.
8.3. It is pertinent to observe at this stage that learned counsel appearing on behalf of the present petitioners filed mentioning form/slip for urgent listing of the present petition with C.W.J.C. No. 8807 of 2022. The said form/slip was filed before the Registry/Office on 11.07.2022. The learned Advocate appearing for the present petition has specifically stated in the said form/slip as under: -
"Some of the contractors had approached this Hon'ble Court in C.W.J.C. No. 6489 of 2022, wherein vide order dated 17.05.2022, an order of status quo as far as the petitioners therein were concerned was passed. The matter may be tagged with CWJC 8807 of 2022 (Mithilesh Kumar Yadav & Ors. vs. The State of Bihar & Ors.), which is pending on the same issue before the Hon'ble DB-III."
8.4. Thereafter, permission was granted to circulate the matter and it was observed "List on 18.07.2022 before appropriate Bench if not listed before any Bench". It would be Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 31/48 further revealed from the record that thereafter on 18.07.2022, the Division Bench passed an order wherein it has been observed that Registry has pointed out several defects in the matter. The petitioners were, therefore, directed to remove the defects as pointed out by the Registry. It is further revealed from the record that once again on 22.09.2022, similar type of mentioning form/slip for urgent listing and tagging with CWJC No. 8807 of 2022 was filed by the learned counsel for the present petitioners, therefore, it was directed to list the case on 28.09.2022.
8.5. Thereafter, it appears that petition being CWJC No. 8807 of 2022 and allied matters were listed before the first Division Bench, which has dismissed all the petitions vide order dated 11.10.2022. However, for the reasons best known to the present petitioners, the present petition was not listed with the aforesaid batch of petitions.
8.6. Now, the first Division Bench dismissed the petitions being CWJC No. 8807 of 2022 vide order dated 11.10.2022, against which the concerned petitioners, i.e., 424 contractors filed S.L.A. (C) No.21466 of 2022 and allied matters. It is pertinent to note here that Hon'ble Supreme Court vide order dated 13.12.2022 dismissed the said petitions seeking special leave to appeal.
Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 32/48 8.7. At this stage, it is most important to note that the Hon'ble Supreme Court dismissed the S.L.P's. filed by the concerned petitioners on 13.12.2022, thereafter the present petition was listed before the second Division Bench on 04.01.2023. The aforesaid important aspect of dismissal of S.L.P's. by the Hon'ble Supreme Court was not brought to the notice of the second Division Bench on 04.01.2023. It appears from the record that the learned counsel for the petitioners herein re-argued the entire case as if the first Division Bench has committed an error while dismissing the other batch of petitions filed by the similarly situated contractors. Further, when the relevant aspect of dismissal of S.L.P's. by the Hon'ble Supreme Court on 13.12.2022 was not brought to the notice of the second Division Bench, it appears that the second Division Bench has considered the submissions canvassed by the learned counsels and thereafter referred certain points as stated hereinabove.
8.8. Here, at this stage, we feel it expedient to take note that had the fact of dismissal of S.L.Ps., challenging the order dated 11.10.2022 passed by the first Division Bench in CWJC No. 8807 of 2022 and allied matters, by the Hon'ble Supreme Court by order dated 13.12.2022 in limine, been brought to the notice of the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 33/48 second Division Bench, the consideration and appreciation of the matter would have altogether been different.
8.9. Now, it is the contention of learned counsel for the petitioners that in limine dismissal of S.L.A. and S.L.P's. does not amount to affirmation of the judgment of the first Division Bench and the judgment of the first Division Bench does not stand merged with the order passed by the Hon'ble Supreme Court. In support of the said contention, learned counsel for the petitioners has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Indian Oil Corporation Limited (supra) and Khoday Distilleries Ltd. (supra).
8.10. However, we are of the view that what would be the effect of dismissal of S.L.Ps. in limine by the Hon'ble Supreme Court has not been considered by the second Division Bench as the aspect of dismissal of S.L.Ps. in limine was not brought to the notice of second Division Bench. Further, the second Division Bench has not referred the said point to the Larger Bench for its consideration and, therefore, we are of the view that the aforesaid submissions canvassed by learned counsel for the petitioners are misconceived. It is not open for the Larger Bench to decide this issue when the same is not referred to it by the Division Bench. At this stage, we would like to refer decision rendered by Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 34/48 the Hon'ble Supreme Court in the case of Kerala State Science & Technology Museum v. Rambal Co. reported in (2006) 6 SCC
258. Hon'ble Supreme Court has observed in paragraph 8 as under: -
"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."
Thus, when the issue with regard to consequence of dismissal of S.L.P. in limine has not been referred by the Division Bench, it is not open for us to examine the said issue. However, it is open for the petitioners to contend before the Division Bench about the consequences of dismissal of S.L.Ps. in limine by the Hon'ble Supreme Court before the Division Bench. Thus, we are not dealing with this aspect in this judgment/order.
8.11. The second contention repeatedly canvassed by learned counsel for the petitioners is that the entire matter has been referred by the second Division Bench to the Larger Bench and, therefore, this Larger Bench shall decide the entire matter including the factual aspects. We are of the view that the aforesaid contention taken by the petitioners is misconceived. From the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 35/48 referral order dated 04.01.2023 of the second Division Bench, it transpires that the second Division Bench has framed total nine points for consideration by the Larger Bench. Thus, when the second Division Bench has formulated the points and referred the said points for decision, it is not open for the petitioners to contend that the entire matter has been referred by the second Division Bench to the Larger Bench.
8.12. At this stage, we would like to refer Rule 1 of Chapter V of the Rules of the High Court of Patna, which provides as under: -
Chapter V- Reference to a Full Bench-
1. Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in any case a Division Bench differs from any other division Bench upon a point of law or usage having the force of law, such case shall be referred for decision by a Full Bench."
Thus, from the aforesaid provision, it can be said that that a matter can be referred to a Full Bench by a Division Bench under two circumstances; firstly, whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or secondly, whenever in any case a Division Bench differs from any other Division Bench upon a Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 36/48 point of law or usage having the force of law, such case shall be referred for decision by a Full Bench.
8.13. It would further reveal from the aforesaid Rule that at any point of time when a Division Bench desires and the Hon'ble Chief Justice consents any case can be referred to a Full Bench. Thus, in such circumstances, it is not necessary for a Division Bench to differ from any other Division Bench and to refer the matter to Full Bench. However, if the Division Bench differs from any other Division Bench upon a point of law or usage having the force of law, then only matter is required to be referred for decision by a Division Bench.
8.14. In the present case, the second Division Bench has not considered the matter for the first time and referred the entire matter to the Full Bench as contended by learned counsel for the petitioners. From the referral order dated 04.01.2023, it is clear that the second Division Bench has framed nine points and thereafter referred the matter to the Larger Bench. Thus, we are of the view that the present case does not fall under first part of Rule 1 of Chapter V of the Rules of the High Court at Patna, but falls under second part of the Rule 1 of Chapter V of the said Rules. Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 37/48 8.15. Now, we would like to refer to the decision upon which reliance has been placed by the learned counsel for the petitioners on the aforesaid aspects.
8.16. In the case of Kalpana Rani vs. The State of Bihar and Others reported in 2014(2) PLJR 665 [F.B.], an L.P.A. was filed by the concerned party before the Division Bench against the order passed by a learned Single Judge in a writ petition. The Division Bench referred the matter to the Full Bench by observing that 'considering that large number of cases are arising on the aforesaid issue, it is desirable that this appeal be heard by Full Bench ....'. Thus, the L.P.A. was listed before the Full Bench. In the said case, the Full Bench, after relying upon the decision of the Hon'ble Supreme Court, held that there is no bar shown whereby Bench is precluded from referring the entire case for decision by the Larger Bench depending entirely on the reference made.
Thus, in the aforesaid case, the Division Bench referred the entire matter to the Full Bench with observation that considering that larger number of cases are arising on certain issue, it is desirable that the said appeal be heard by a Full Bench. Thus, it was not a case that second Division Bench was not agreeable with the view taken by the first Division Bench. Thus, the said case falls under first part of Rule 1 of Chapter V of the Rules of Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 38/48 the High Court at Patna. In the present case, from the points framed by the second Division Bench, it cannot be said that the entire matter has been referred to the Larger Bench.
8.17. At this stage, we would like to refer to the decision rendered by the Division Bench of this Court in the case of Narendra Mishra (supra) decided by Full Bench. In the said case, the first PIL was filed by the concerned party before the Division Bench of the High Court with regard to dumping of solid municipal waste causing environmental pollution and health hazard. In the said matter, affidavit was filed by the concerned Municipal Commissioner and interim orders were passed by the Division Bench as a result of which the State Government has taken steps for superseding the concerned Municipal Corporation and the concerned Municipal Commissioner was ordered to be suspended. In the meantime, second PIL was filed, in which the concerned petitioner's grievance was in respect of a particular multi storied building being constructed in violation of the Building Bye-laws within the territorial area of a particular Municipal Corporation. First PIL was listed before one Division Bench, where, in pre-lunch session, on 15.12.2020, the Division Bench has passed an order in respect to suspension of a particular officer noticing that his suspension cannot be made a subject Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 39/48 matter of PIL and he could pursue his remedy in an independent writ petition, if so advised. However, thereafter in second PIL listed before another Division Bench, in the post-lunch session, an I.A. was moved and the second Division Bench granted protection to the said officer. In this background of the facts, the Hon'ble Acting Chief Justice on administrative side took the decision to list both the PIL's before the Full Bench and thereby both the PIL's were listed before the Full Bench. In this background, the Full Bench observed in paragraph 57 as under: -
"57. Thus, in my view, the stand that the reference to Full Bench was incompetent on the grounds aforesaid has to be rejected. I would, therefore, hold that there being a difference of opinion and a real conflict of orders between the two Division Benches in respect of the same issue, as rightly submitted by the learned Principal Additional Advocate General, the cases were rightly ordered to be placed before a Full Bench; rather, in such a situation, it was the duty of the Acting Chief Justice to do so to arrest the conflicting orders to continue. I may add that the ultimate decision taken by the Chief Justice is an administrative decision upon reference by a Division Bench or even suo motu."
We are of the view that both the aforesaid decision rendered by the Full Bench will not be helpful to the petitioners in Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 40/48 the facts of the present case. It is pertinent to note that in the case of Narendra Mishra (supra), the Full Bench has observed in paragraph 45 as under: -
45. Now, I would like to deal with the objection of Mr. Y.V. Giri, learned Senior Counsel, and Mr. Jyoti Ranjan Jha, Advocate, with reference to the Patna High Court Rules not permitting reference to Full Bench in the present factual matrix.
First reliance has been placed on Rules 11 and 12 of Chapter II of Patna High Court Rules, as also Rule 1 of Chapter V of Patna High Court Rules. The said Rules, for convenience, are quoted hereunder : -
"Chapter II- Constitution of Benches and Powers of Benches and of the Registrar-
xx xx xx xx xx xx "11. Notwithstanding anything to the contrary in the rules the Chief Justice may direct that any application, petition, suit, appeal or reference shall be heard by a full Bench.
12. A Full Bench shall be a Bench of any number not less than three Judges Chapter V- Reference to a Full Bench-
1. Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 41/48 any case a Division Bench differs from any other division Bench upon a point of law or usage having the force of law, such case shall be referred for decision by a Full Bench."
Thus, in the case of Narendra Mishra (supra), the Hon'ble Acting Chief Justice, while exercising the power under Rule 11 of Chapter II of the Rules of the High Court at Patna, referred the matter to a Full Bench and that too while exercising administrative powers, whereas in the present case, as discussed hereinabove, the reference to the Full Bench has been made under Rule 1 of Chapter-V of the Rules of the High Court at Patna. Once again we may observe here that when the Division Bench differs from any other Division Bench upon a point of law or usage having the force of law, such case can be referred for decision by a Larger Bench as per second part of Rule 1 of Chapter-V of the Rules of the High Court at Patna.
Thus, we are of the view that reliance made by learned counsel for the petitioners on the aforesaid decision is also misconceived.
8.18. In the case of Asstt. Collector of Estate Duty, Madras (supra), the Hon'ble Supreme Court observed that once a Division Bench of the High Court has held that Section 34(1)(c) of the Estate Duty Act, 1953, was not violative of Article 14 of the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 42/48 Constitution of India, it is not open to another Division Bench to hold that the said provision is unconstitutional and violative of Article 14. It was observed by the Hon'ble Supreme Court that judicial discipline demands that one Division Bench of a High Court should, ordinarily, follow the judgment of another Division Bench of that High Court. In extraordinary cases, where the latter Division Bench finds it difficult, for stated reasons, to follow the earlier Division Bench judgment, the proper course is to order that the papers be placed before the learned Chief Justice of the High Court for constituting a larger Bench.
From the aforesaid decision, it can be said that judicial discipline demands that one Division Bench of the High Curt should ordinarily follow the decision of another Division Bench of that High Court, however, in extraordinary case wherein the latter Division Bench finds it difficult to follow the earlier Division Bench judgment, the matter can be referred to a Larger Bench. In the said case, one Division Bench declared particular provision of law as unconstitutional and violative of Article 14 of the Constitution of India and when the other Division Bench was not agreeable with the said law laid down by the first Division Bench, the matter was referred to the Larger Bench. The facts of the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 43/48 present case, as discussed hereinabove, are different and, therefore, this decision would not render any assistance to the petitioners.
8.19. In the case of P.V. George (supra), issue before the Hon'ble Supreme Court was with regard to doctrine of prospective overruling in service matters. A Division Bench of Kerala High Court in the said case held that the Full Bench decision has no prospective operation. The Hon'ble Supreme Court has, therefore, observed in paragraph 29 as under: -
29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf.
We are of the view that, in the facts of the present case, the aforesaid decision will not render any assistance to the petitioners.
8.20. In the case of State of Punjab v. Salil Sabhlok (supra), the Hon'ble Supreme Court has observed in paragraphs 137 to 140 as under: -
Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 44/48 "137. The learned counsel supporting the appointment of Mr Dhanda submitted that the Full Bench could not expand the scope of the reference made to it by the Division Bench, nor could it frame additional questions.
138. Generally speaking, they are right in their contention, but it also depends on the reference made.
139. The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again:
139.1. The decisions include Kesho Nath Khurana v. Union of India [1981 Supp SCC 38 :
1981 SCC (Cri) 674] : (SCC p. 39, para 1) "1. ... The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law."
139.2.Kerala State Science & Technology Museum v. Rambal Co. [(2006) 6 SCC 258] : (SCC p. 262, para 8) "8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 45/48 larger Bench cannot adjudicate upon an issue which is not the question referred to."
139.3.T.A.Hameed v. M.Viswanathan [(2008) 3 SCC 243] : (SCC p. 245, para 12) "12. ... Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits."
139.4. And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra [(2010) 9 SCC 93 : (2010) 3 SCC (Cri) 1146] : (SCC p. 102, para 15) "15. ... Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the answers given by the larger Bench."
140. There is no bar shown whereby a Bench is precluded from referring the entire case for decision by a larger Bench--it depends entirely on the reference made. In any event, that issue does not arise in this appeal and so nothing more need be said on the subject.
Thus, from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that when reference is made on specific issue either by learned Single Judge or by the Division Bench to a Larger Bench, the Larger Bench cannot adjudicate Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 46/48 upon an issue which is not the question referred to. Further, when only reference was made to the Full Bench, the Full Bench should answer the question referred to it and remit the matter to Division Bench for deciding the matter on merits. Further, after answering the reference by the Larger Bench, it was the reference Bench to decide the merits on the answers given by the Larger Bench. Thereafter, the Hon'ble Supreme Court has observed in paragraph 140 that Bench is not precluded from referring the entire case for decision by a Larger Bench and it depends entirely on the reference made.
However, in the present case, as observed hereinabove, the second Division Bench has not referred the entire case to the Larger Bench and certain points were framed and referred for decision of the Larger Bench and, therefore, reliance placed by learned counsel for the petitioners on this decision is also misconceived.
8.21. In view of the aforesaid discussion, we are of the view that when the second Division Bench has referred nine points for consideration of the Larger Bench, it was not brought to the notice of the second Division Bench about dismissal of the S.L.P's. by the Hon'ble Supreme Court qua similarly situated persons/contractors and it was, therefore, that the present reference Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 47/48 has been made. Further, it cannot be said that the entire matter has been referred by the second Division Bench to the Larger Bench, as nine points have been formulated and referred for decision of the Larger Bench. It is also revealed from the points framed and referred by the second Division Bench that most of the points are on factual aspects and, therefore, in view of Rule 1 of Chapter-V of the Rules of the High Court at Patna, on factual aspects matter cannot be referred to a Larger Bench or Full Bench. The same can be referred for consideration when the Division Bench differs from the other Division Bench on the point of law of usage having the force of law.
9. Thus, in view of the aforesaid discussions, we are of the view that when the consequences of dismissal of S.L.P's. in limine by the Hon'ble Supreme Court in case of similarly situated contractors/petitioners has not been examined by the second Division Bench, as the said aspect was not brought to the notice of the second Division Bench, we deem it proper to remit the matter back to the Division Bench so that the aforesaid aspect can be examined by the Division Bench and thereafter appropriate order can be passed on the said aspect.
9.1. Further, coming to the points under reference, we are of the considered view that all the referred points contain Patna High Court CWJC No.9327 of 2022(11) dt.30-08-2024 48/48 mostly the factual aspects, which can be decided by the Division Bench itself and any consideration by this Larger Bench would be unwarranted.
9.2. In view of the aforesaid, we remit the matter back to the Division Bench for deciding the present petition keeping in view the aspects discussed hereinabove.
(Vipul M. Pancholi, J)
Anjani Kumar Sharan, J : I Agree.
(Anjani Kumar Sharan, J)
Rudra Prakash Mishra, J: I Agree.
(Rudra Prakash Mishra, J)
Pawan/-
AFR/NAFR AFR
CAV DATE 23.07.2024
Uploading Date 30.08.2024
Transmission Date N/A