Calcutta High Court (Appellete Side)
(Secondary Education) Burdwan & Ors vs Abdul Barik Shaikh & Ors on 6 July, 2018
06.07.2018
01.03.ML.
AJ.
C.A.N. 9381 of 2017
in
M.A.T. 1626 of 2017
The District Inspector of Schools
(Secondary Education) Burdwan & Ors.
-Vs-
Abdul Barik Shaikh & Ors.
Mr. Tapan Kumar Mukherjee,
Mr. Subhrangshu Panda.
.....for the appellants/applicants.
Mr. Biswaroop Bhattacharya,
Md. Mojnu Sk.
.....for the respondent no. 1/
writ petitioner.
Mr. Biswarup Biswas, Mr. Ayub Ali Seikh.
.....for the respondent no. 2.
1. This intra-court appeal is directed against an order dated 28th April, 2017 passed by a learned Judge of this Court. By the said order, the District Inspector of Schools (S.E.), Burdwan [hereafter the D.I.] was directed to grant immediate approval to the appointment of the writ petitioner in the same way approval of appointment of one Md. Eyasin was directed to be made by another learned Judge of this Court, within eight weeks from the date of communication of the said order.
2. Perusal of the impugned order reveals that two orders passed by two learned Judges of this Court dated 1st October, 2013 and 30th July, 2014 on separate writ petitions had been placed before His Lordship. Those orders were passed on writ petitions at the instance of teachers, similarly situate like the writ petitioner. The learned Judges of the writ Court had passed orders for approval of their appointment, which had been implemented by the D.I. The learned Judge was, accordingly, of the view that the writ petitioner was entitled to similar treatment and similar order.
3. It is not in dispute that the writ petitioner was appointed sometime in April, 1993 as a teacher in a junior high madrasah for classes IX and X. In terms of the extant rules, a validly constituted managing committee of a junior high madrasah was entitled to appoint teaching and non-teaching staff within the sanctioned strength of teaching and non-teaching staff, either on a permanent basis or on a temporary basis. Such managing committee had no right to make any appointment beyond the sanctioned strength either on a permanent basis or on a temporary basis. It is further not in dispute that the writ petitioner was appointed beyond the sanctioned strength of teachers.
4. The question as to whether teachers appointed beyond the sanctioned strength in classes IX and X by the managing committees of junior high schools could claim approval of appointment came up for consideration in four appeals decided by three different Division Benches of this Court. On each such occasion, the relevant Bench held that the teachers who were appointed for classes IX and X by the managing committees of the junior high schools, without the authority of law, had no right to claim approval of appointment. The decisions are reported in :
1. (2006) 4 CHN 513 [Manindra Nath Sinha & ors. v. State of West Bengal & ors.];
2. 2008 (1) CHN 582 [State of West Bengal & ors.
v. Smritikana Maity];
3. 2008 (1) CLJ 453 [Headmistress, Garifa Arati Academy for Girls' v. Gita Banik]; and
4. (2008) 1 WBLR (Cal) 229 [State of West Bengal & ors. v. Gopal Singh & ors.].
Gita Banik (supra) and Gopal Singh (supra) were decided by the same Bench.
5. Pertinently, the decision in Manindra Nath Sinha (supra) was carried in appeal before the Supreme Court by the aggrieved teachers. By an order dated 4th December, 2014 passed in Civil Appeal No. 7897 of 2010, the Supreme Court was pleased to uphold the decision of the Division Bench by holding that the same does not call for any interference.
6. The managing committee of a junior high madrasah is entitled to exercise such power that a managing committee of a junior high school is authorized by law to exercise. Therefore, what applies to a managing committee of a junior high school applies proprio vigore to the managing committee of a junior high madrasah.
7. Mr. Bhattacharya, learned advocate for the respondent no. 1/writ petitioner, however, sought to contend that the decision of the Supreme Court dated 4th December, 2014 does not contain any reason and hence, the decision in Manindra Nath Sinha (supra) cannot be said to have merged in the order of the Supreme Court; consequently, it is open to the writ petitioner to contend that such decision of the Supreme Court is not a binding precedent within the meaning of Article 141 of the Constitution and considering the contentions he proposes to raise, we should reconsider and revisit the decision in Manindra Nath Sinha (supra).
8. We are of the considered view that the aforesaid submission is one in utter desperation. Perusal of the decision dated 4th December, 2014 would reveal that it was rendered in the exercise of the Supreme Court's appellate jurisdiction and not on a special leave petition. Once leave is granted on a special leave petition, the order under challenge before the Supreme Court becomes an order appealed against; and any order passed thereafter would be an appellate order in which the order under appeal would merge upon applicability of the doctrine of merger. It would make no difference if the order on the appeal is an unreasoned order, for, such order would nonetheless attract Article 141 of the Constitution. This is our understanding of the law laid down by the Supreme Court in its decision reported in (2000) 6 SCC 359 (Kunhayammed v. State of Kerala).
9. On the basis thereof, we hold as follows.
Notwithstanding that reasons were not assigned by the Supreme Court in its decision dated 4th December, 2014 for not interfering with the order under appeal passed by the Division Bench in Manindra Nath Sinha (supra), the decision under appeal was upheld by the Supreme Court with the result that such decision merged in the final decision of the Supreme Court; and the reasons assigned for dismissal of the intra-court appeal by the Division Bench were transformed into the reasons assigned by the Supreme Court for dismissal of the appeal before it, attracting Article 141 of the Constitution.
10. We are, thus, of the clear view, on the strength of the aforesaid authoritative decisions of coordinate Benches as well as the decision of the Supreme Court dated 4th December, 2014, that the writ petitioner was not entitled to even maintain the writ petition.
11. Mr. Bhattacharya vehemently contended next that since two other teachers similarly situate like the writ petitioner have been allowed to continue as teachers and their appointments approved by the D.I., subjecting the writ petitioner to a different treatment would result in discrimination being meted out to him. It was also contended that if we were of the view that approval of appointment of the other two teachers is bad, the same should be interfered with by us.
12. There are two reasons that stand in the way of acceptance of such argument. First, our Constitution does not guarantee equality in the abstract but guarantees equality before law and the equal protection of the laws. Thus, there cannot be negative application of Article 14 of the Constitution of India; and, a fortiori, a benefit to which the writ petitioner is not entitled in law cannot be extended to him on the specious ground that others have been extended that benefit. Secondly, the incumbent D.I. had approved the other two teachers' appointments in compliance with the orders of learned Judges of this Court dated 1st October, 2013 and 30th July, 2014, of which the order on Md. Eyasin's writ petition, being the latter order, was a consent order. It is true that the D.I. did not carry one of such orders in appeal and the appeal that was preferred against the consent order was dismissed as not maintainable, but in any event, not carrying the former order in appeal cannot operate as an impediment to subjecting the order dated 28th April, 2017 in appeal. Also, approval of appointment accorded in respect of the other two teachers is hardly relevant for deciding the case of the writ petitioner. In order to succeed in his writ petition, it was obligatory for the writ petitioner to establish before the writ court that he had a legally protected right which is capable of being judicially enforced. Not having any such right, the writ petition itself was not maintainable and we are of the clear opinion that the learned Judge erred in entertaining the writ petition and passing the impugned order directing approval of the writ petitioner's illegal appointment following a 'consent order'.
13. Mr. Biswas, learned advocate appearing for the respondent no. 2/madrasah referred to us the decision of another co-ordinate Bench reported in 2010 (4) CHN (CAL) 438 [State of West Bengal & ors. v. Husna Banu & ors.] wherein Their Lordships expressed inability to accept the decision in Smritikana Maity (supra) and proceeded to allow the claim for regularization based on the decision of the Supreme Court reported in 2008 (1) CLJ (SC) 87 [U.P. State Electricity Board v. Pooran Chandra Pandey].
14. We have noticed from the decision in Husna Banu (supra) that the decision of the Supreme Court reported in (2008) 10 SCC 1 [Official Liquidator v. Dayanand] had been cited on behalf of the appellant/State before Their Lordships. The Supreme Court in Dayanand (supra) had the occasion to observe as follows :
"92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
15. We are a little surprised that such observation of the Supreme Court escaped the notice of the Division Bench in Husna Basu (supra) and the decision in Pooran Chandra Pandey (supra), despite being held not to lay down good law, was treated as a binding precedent and applied for the purpose of making an order for regularisation of service. We hold, with all the humility at our command, that the decision in Husna Basu (supra) has been delivered overlooking paragraph 92 of the decision in Dayanad (supra) and cannot be regarded as a precedent worth following.
16. Mr. Biswas has also referred to us the decision of the Supreme Court reported in (2008) 9 SCC 24 [Maharaj Krishan Bhatt & anr. v. State of Jammu & Kashmir & Ors.] and placed heavy reliance on paragraph 17 thereof.
17. We have failed to comprehend the materiality of the said decision to the fact situation before us. In fact, rather than advancing the cause of the writ petitioner, the decision does more harm than good to his cause.
18. It appears on a reading of the said decision that a writ petition filed by one Abdur Rashid succeeded before a learned Judge of the relevant high court. In appeal, the Division Bench upheld the order under challenge. A special leave petition carried from the said order was dismissed and the order not interfered with. Thereafter, another writ petition came to be presented before the high court with similar grievance as espoused by the said Abdur Rashid. This writ petition was at the instance of the appellants who ultimately approached the Supreme Court feeling aggrieved by dismissal of their writ petition by a Division Bench, reversing the decision of a learned Judge granting relief claimed in the writ petition following the earlier decision of the Division Bench. It was in such a fact situation that the Supreme Court held that when the earlier decision of the high court had not been interfered with by the Supreme Court, it became a binding precedent for similar fact situations and the decision of the learned Judge in following the earlier decision of the Division Bench of the said court in similar fact situation should have been accepted by the respondents and not carried in appeal; even if appealed against, the subsequent Division Bench ought to have followed the earlier decision.
19. Applying the law laid down here, we hold that Manindra Nath Sinha (supra) having been affirmed by the Supreme Court, all Benches of this Court in cases involving similar fact situation are bound to follow the same as a binding precedent and any decision of a learned Judge or Judges, which runs counter to the dicta in Manindra Nath Sinha (supra), Smritikana Maity (supra), Gita Banik and Gopal Singh (supra), is not good law.
20. For the reasons aforesaid, the order of the learned Judge stands set aside. The writ petition stands dismissed.
21. The appeal is allowed, without any order for costs.
22. In view thereof, nothing survives for decision on the application for stay. The same too stands disposed of.
23. Urgent photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. (Asha Arora, J.) ( Dipankar Datta, J.)