Patna High Court
Mohd. Nazimuddin And Anr. And Mohd. ... vs State Of Bihar And Ors. on 21 March, 1990
Equivalent citations: 1990(38)BLJR843
Bench: B.P. Singh, S.B. Sinha
JUDGMENT S. Roy, J.
1. On 18-9-1987 at the time of admission of C.W.J.C. No. 1302 of 1987(R) the Bench ordered that as the identical question was involved in that writ application and also in C.W.J.C. No. 754 of 1986(R), both the cases will be heard together. Both the cases were heard together and are being disposed of by this judgment.
2. The facts of both the cases are identical. In pursuance of an advertisement, copy of which is Annexure-2, the petitioners applied for the post of Urdu Assistant Teachers in Elementary Schools in the district of Ranchi. For Urdu Teachers, the academic qualification laid down was that the candidate must have passed the examination of Maulvi or Alini or Fazil. According to the petitioners, they have passed Fazil examination from Darul Uloom Deoband (U.P.). The petitioners were selected for appointment and by office order dated 10th April, 1982, a copy of which is Annexure-1, the petitioners were appointed as Assistant Teachers in Urdu in different schools in the district of Ranchi. They joined their respective schools in pursuance of the same. While they were so working, respondent No. 3 issued an office order terminating the services of the petitioners on the ground that the degree given by Darul Uloom, Deoband was not recognized by the State Government. A copy of that order is Annexure-3 to both the writ petitions. The validity of this has been challenged in both the writ applications.
3. Both the writ applications were listed for hearing before a learned Single Judge (B.P. Singh, J.) The learned Single Judge in his order dated 10-7-1989 observed that in view of a Division Bench decision of this Court with regard to some of the petitioners i.e., the petitioners in C.W.J.C. No. 1302 of 1987(R), the matter should be heard by Division Bench. The matter was listed before a Division Bench for hearing. The learned Judges of the Division Bench noticed the judgment of another Division Bench that in C.W.J.C. No. 1423 of 1985(R) in which some of the petitioners were parties, it was held that C.W.J.C. No. 1423 of 1985 (R) was barred by res judicata as those petitioners had moved this Court earlier in C.W.J.C. No. 384 of 1984(R) which was disposed of on 8-5-1984. The correctness of that finding was doubted by the Division Bench and it ordered that the matter should be listed before the larger Bench. It has been listed before this Bench for hearing.
4. Some more facts which are relevant to notice are that on 23-2-1984 respondent No. 3 issued a letter to the petitioners of C.W.J.C No. 1302 of 1987(R) by which the petitioners were informed that their degree from Darul Uloom, Deoband in Fazil was not recognised by the State Government and they were directed to produce documents to show that, it was recognised by the State Government. The validity of this was challenged by these petitioners in C.W.J.C. No. 384 of 1984(R). They also prayed for a direction on State Government to pay their salary which had been stopped. Prayer was also made for direction to the State Government to recognise the degree of Darul Uloom, Deobaad. The learned Single Judge by order dated 8-5-1984 disposed of that matter by passing the following order t The respondents shall pay the salary to the petitioners so long as they are in service of the respondents and are doing teaching work. This order being passed after hearing the parties. With this observation, the writ application is disposed of.
5. Thereafter, Annexure-3 to the writ applications was issued which was challenged by the petitioners of C.W.J.C. No. 1302 of 1987(R) by filing C.W.J.C. No. 1423 of 1985(R). The Division Bench of this Court by order dated 8-4-1986 dismissed the same at the admission stage, a copy of which is Annexure-A to the counter-affidavit, filed on behalf of respondent. No. 3 in C.W.J.C. No. V54 of 1986tR) The relevant portion of the order with which we ate concerned in this case and which, was noticed by the learned Single Judge and the learned Judges of the Division Bench when these cases were listed for hearing before them was thus reads as follows:
In our opinion, once this Court refused to interfere with that part of the order it shall not be proper exercise of discretion under Articles 726 and 227 of the Constitution to entertain a second writ application virtually for the same relief. Apart from that, it is for the State Government to recognize any degree of an institution within the State of Bihar or of any other State. This Court cannot issue a writ of mandamus directing the State of Bihar to recognize the degree of Darul Uloom, Dsoband (U.P.). Under the existing rule, the petitioners were required to hold a degree of any recognized institution before they could have been appointed. Under the circumstances, mentioned above, it is not possible to quash the order which is impugned in the present writ application.
6. The question which arises in these cases is: whether the finding recorded by the Division Bench is C.W.J.C. No. 1423 of 198S(R) that that writ application was not maintainable because the relief prayed for in that writ application had been refused in C.W.J.C. No. 384 of 1984{R). In other words, whether the. relief prayed for in C.W.J.C. No. 1423 of 1985(R) was barred by res judicata in view of the order;
passed in C.W.J.C. No. 384 of 1984(R).
7. We may immediately notice that so far the petitioners of C.W.J.C. No. 754 of 1986(11) ate concerned, they were neither the parties in C.W.J.C. No. 384 of 1984(R) in C.W.J.C. No. 1423 of 1985(R). The observation of the Division Bench; is C.W.J.C. No. 1423 of 1985(11) with regard to the effect that the order passed in C.W.J.C. No. 384 of 1984CR) shall not apply to the petitioners of 0, W. J. C. No. 754 of 1986(R), and the question of res judicata shall have ¦ to be decided only in relation to the petiti0oners in C.W.J.C. No. 1302 of 1987(R).
8. We have noticed in extenso the relief proved for in C.W.J.C. No. 384 of 1984(R) and the subject matter of the validity in that writ application. We have quoted the relevant order by which that writ petition was disposed of. It will appear that although in C.W.J.C. No. 384 of 1984(R) the petitioners had prayed for quashing the notice by, which they were directed to produce document to show that the degree of Darul Uloom, Deoband was recognised by the State Government and also for a direction that as the degree of that institution be recognised by the State Government, the learned Single Judge did not record any finding with regard to those relief. He confined, only with regard to the prayer of the petitioners for a direction on the respondents to pay their arrear as current salary. Direction in that regard was given to the respondents.
9. In view of the explanation to Section 141 of the Code of Civil Procedure (for short 'the Code'), its provisions will not apply to any proceeding under Article 226 of the Constitution. Notwithstanding this the Supreme. Court, in appropriate cases, has applied some of the principles of the Code as a matter of public policy in proceedings under Article 226 of the Constitution. The general principles of res judicata have been made applicable to proceedings under Article 226 of the Constitution. Learned Government Pleader No. II submitted that general principles off res judicata will also include the technicalities of Section 11 of the Code. Decisions of Supreme Court in Daryao v. State of U.P. ; Devilal Modi v. Sales Tax Officer ; Gulabchand Chotalal Parikh v. State of Bombay and Gut am Abbas v. State of U.P. lay down about the applicability of principles of res judicata in writ matter. The principles which emerge from the decisions are that finality should be attached to the binding decisions pronounced by court of competent jurisdiction and individuals should not be vexed twice over with the same kind of litigation. A matter may be barred because of constructive res judicata. Technical aspect of Section 11 will be immaterial when the general doctrine of res judicata is invoked.
10. In view of the reliefs prayed and the order passed in C.W.J.C. No. 384 of 1984(R), was any of the principles of res judicata attracted to C.W.J.C. No. 1423 of 1985(R)? The reliefs prayed for in C.W.J.C. No. 184 of 1984(R) were to quash the notice directing the petitioners of that case to produce document in support of the fact that degree of Darul Uloom was recognized by Bihar Government and for direction to State to pay salary. This Court by allowing the second relief disposed of the case. In other words, this Court did not interfere with the notice. In C.W.J.C. No. 1423 of 1985(R) relief prayed for was to quash the order of termination of service. This relief could not have been made in C.W.J.C. No. 384 of 1984(R) and this could not have been an issue in that case. The cause of action of the second writ petition was not and could not have been the cause of action of the first writ petition. The principles of res judicata had no application to C.W.J.C. No. 1423 of 1985(R) and that case could not have been dismissed on that ground.
11. The petitioners have asserted that the degree given by Darul Uloom Deoband are recognized by the State of Bihar. They further asserted that in the advertisement in pursuance of which applications were filed by them for the posts of Assistant Teacher in Urdu, the names of recognized institution were not stated. At the time of their appointment as far back ass in 1982, no objection was raised room any quarter that as the petitioners had obtained degree from Darul Uloom Deoband, they had not the requisite academic qualification for being considered for the appointment of Assistant Teacher in Urdu. Further, in these cases repeated opportunity was given to the State if produce the decision of the State 'Government showing the names of the recognized institutions. In their counter-affidavit, the respondent has annexed the order of the State Government dated 11-3-1977 (Annexure-C) and notification dated 1-8-1985) (Annexure-D) to show that the degree of Darul Uloom, Deoband was not recognized by the State Government. From Annexure-C, it appears that the State had notified the degrees of Madarsa Board which would be treated equivalent to the degree of School Final Examination or Universities. From perusal of Annexure-D, it appears that the State Government decided the order of priority to be given to persons holding particular degree. In none of these annexures, (there is any reference of any institution whose degree has been recognized by the State of Bihar.
12. It was submitted by learned Government Pleader No. II that in view of the fact that very appointment of the petitioners was illegal, the order terminating their services should not be interfered with. It is not the case of the State that the petitioners were appointed as Assistant Teachers in Urdu as the degree of Darul Uloom, Deoband was not recognized. If that would be the position, the contention of learned Government Pleader No. II might have been considered. In view of the facts already noticed with reference to the advertisement, letter of appointment, Annexure C and D, it cannot be held that the initial appointment of the petitioners were illegal, inasmuch as they had no requisite academic qualifications the petitioners were appointed as far back as in 1982 and the State-respondent has failed to prove that as yet the State was taken any decision with regard to the degree of Darul Uloom, Deoband.
13. In C.W.J.C. No. I3O2/87(R), it has been asserted that after the order was passed by this Court in the aforementioned C.W.J.C. No. 1423/ 84(R), the petitioners filed a Civil Review application, which was placed for admission before a Division Bench of this Court, and by an order dated 13-8-1987, passed in Civil Review application No. 6/86(R), and as contained in Annexure-10 of the said writ application, this Court passed the following order:
No Civil Review application is maintainable against an order passed in an application under Articles 226 and 227 of the Constitution of India.
If some fresh material or materials which were not known to the petitioners have come to light the petitioners will be well advised to file another writ application, It so advised they will be at liberty to file a fresh application, which shall be disposed of on its own merits, in accordance with law."
14. The said writ application being C.W.J.C. No. 1302 of 1987(R) was filed thereafter.
15. If is true that a writ court does not and cannot entertain a second writ, application when the ealier judgment passed there in is binding upon the parties.
16. In the instant case, however, it appears that the writ petition of the petitioner of C.W.J.C. No. 1302 of 1987(R) was dismissed on purely techniques, ground and on Disappreciation of the position of law. This Court in its order passed in the aforementioned C.W.J.C. No. 1423/85(R) merely held that in view of the earlier decision in C.W.J.C. No. 38 S/84(R), the second writ application was not maintainable.
In the instant case, this Court erroneously also did not entertain the Civil Review application filed on behalf of the petitioners. The petitioners were thus prejudiced ; as firstly, this Court in the earlier writ application being C.W.J.C. No. 1423 of 1985(R) applied erroneously the principles of res judicata, which as noticed herein before were not applicable and again refused to entertain the Civil Review application, simply on the ground that this Court has no jurisdiction to review its earlier order, passed traders Article 226 and 227 of the Constitution of India, despite the decision of the Supreme Court in Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909 to the contrary.
17. It is now well-known that a decision on a pure question of law touching the jurisdiction of the court does not operate as res judicata. Reference in this connection may be made to Chittoori Subbanna v. Kudappa and Ors. and in Mathura Prasad v. Dossibai Subbanna .
18. Supencer-Bower and Turner in 'The Doctrine of Resjudicata, stated the law in Article 114 thereof thus:
A Tribunal may exceed its jurisdiction either by embarking upon an enquiry outside its province, or, while confining its inquiry within the proper limits, by making an order in excess of its powers. In either case the result will be to nullify the decision as a res judicata in the former case, by the effect of the events, we have mentioned upon the declaratory part of the decision, and, in the second, by their effect upon its jussive or prohibitory provisions.
19. Refusal to exercise jurisdiction on an erroneous view of the law is also a question of law touching the jurisdiction of the Court.
20. Further, if the order passed was a nullity being wholly without jurisdiction, the same will also not operate as res judicata. Reference in this connection may be made to the case of Chief Justice, Andhra Pradesh v. L.V.A. Dikshitu , wherein the law was laid down in the following terms:
If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction, such a decision cannot be sustained merely by the doctrine of res judicata or estoppel, as urged in this case.
21. This aspect of the matter has also been recently considered by the Supreme Court in the case of A.C. Antuley v. R.S. Nayak . In that case it has been held that where by reason of the judgment of Supreme Court, fundamental rights of the petitioners therein, as enshrined under Articles 14 and 21 of the Constitution of India, were violated in ignorance of salutary principles of law, the judgment must be held to have been rendered per-incuriam and such a judgment is not binding upon a subsequent Bench. in that case, it was further held that a larger Bench is not bound by the decisions of a smaller Bench.
22. It is, therefore, clear that in view of the authoritative pronouncements of the Supreme Court, the decision of this Court is the aforementioned C.W.J.C. No. 1423 of 1985(R) as also the order dated 13-8-1987, passed in Civil Review No. 6 of 1986(R), are not binding upon this Bench.
23. In this connection, reference may also be made to a recent decision of the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur , wherein it has been held that a decision which is obiter-dicta or rendered per-incuriam or in sub-silent or with consent of the parties or with a reservation that the same should hot be treated as precedent, is not binding upon another Bench.
24. Further, in view of the fact that similar reliefs are bound to be granted to the petitioners of C.W.J.C. No. 754/86(R), in our opinion, discrimination would be caused by our pronouncement, if the same reliefs are not granted to the petitioners of C.W.J.C. No. 1302 of 1987(R).
25. In this view of the matter, we are inclined to grant similar relief's to the petitioner of C.W.J.C. No. 1302 of 1987(R).
26. We, therefore, allow these writ petitions and quash Annexure 3, but shall make no order as to costs.