Orissa High Court
State Of Odisha & Others vs Purna Chandra Chand ... Opposite Party on 31 May, 2021
Equivalent citations: AIRONLINE 2021 ORI 149
IN THE HIGH COURT OF ORISSA, CUTTACK
RVWPET No.255 of 2013
In the matter of an application under Chapter VIII Rule 23 of
Orissa High Court Rules, 1948 read with Order XLVII Rule 1 of the
Code of Civil Procedure, 1908.
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State of Odisha & Others ... Petitioners
-Versus-
Purna Chandra Chand ... Opposite Party
For Petitioners - Mr. Sandeep Parida
Senior Standing Counsel
(S&ME)
For Opposite Party - Mr. Manoj Kumar Mohanty
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CORAM:
JUSTICE KUMARI SANJU PANDA
JUSTICE S.K. SAHOO
Date of Judgment: 31.05.2021
S.K. SAHOO, J. The petitioners, who were the opposite parties nos. 1 to 3
in the writ petition i.e. W.P.(C) No. 456 of 2013 filed by the opposite party Purna Chandra Chand, have sought for review of the order dated 24.04.2013 passed by a learned Division Bench of this Court while disposing of the writ petition.
// 2 // The operative portion of the order dated 24.04.2013 is extracted herein below for ready reference:-
".....In view of the aforesaid law laid down, this Court is of the opinion that the petitioner is entitled to the salary of Headmaster for the period, for which he has worked as in-charge Headmaster, the opposite parties are directed to calculate his entitlements at the scale of pay of Headmaster for the period, for which he has worked and as stated, he is continuing as such and to pay such salary to him deducting the amount already received by him. The entire exercise shall be completed within a period of three months from the date of communication of this order."
2. The factual matrix in the case at hand, is that the opposite party Purna Chandra Chand herein, as the writ petitioner filed W.P.(C) No.456 of 2013 seeking for a direction to the petitioners of this review petition to pay him the Headmaster scale of pay with effect from 01.06.1994 till the date he was holding the post of Headmaster of Madhabananda Sikshya Niketan, Mahulia (hereafter 'Sikshya Niketan') in the district of Balasore with all the consequential financial and service benefits accrued out of the same.
The case of the opposite party (writ petitioner) is that in a due process of selection, he was appointed as a Trained Graduate Teacher (CBZ) by the Managing Committee of the Sikshya Niketan vide resolution no.40 dated 20.08.1989 which was an unaided Page 2 of 33 // 3 // recognized educational institution and pursuant to the said resolution, the Secretary of Sikshya Niketan issued appointment letter on the very same day and accordingly, the petitioner joined the service on 21.08.1989. Due to the vacancy caused in the post of Headmaster, as per the resolution of the Managing Committee of the Sikshya Niketan, the petitioner was appointed as Headmaster of the Sikshya Niketan and joined his duty as such on 01.10.1993. While the petitioner was functioning as Headmaster, the Sikshya Niketan was notified as an aided educational institution as defined under section 3(b) of the Odisha Education Act, 1969 (hereafter '1969 Act') with effect from 01.06.1994. As per the requirement of the State authorities, the Managing Committee of the Sikshya Niketan submitted the proposal for approval of the services of the teaching and non-teaching staff of the Sikshya Niketan including the writ petitioner as Headmaster in order to enable them to receive their salary from the State Government as per Rule 9 of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter "1974 Rules"). The Inspector of Schools vide order dated 28.08.1997 approved the appointment of the teaching and non-teaching staff of the Sikhya Niketan and the services of the writ petitioner was approved as Headmaster in-charge of the Sikshya Niketan against the post of Headmaster with effect from 01.10.1994 instead of 01.06.1994. In view of the mistake in the date of approval, the Sikshya Niketan Page 3 of 33 // 4 // brought to the notice of the Inspector of Schools for modification in the order of approval. Accordingly, the Inspector of Schools vide office order dated 17.09.1998 modified the earlier order and approved the services of the writ petitioner as the Headmaster in-charge of the Sikshya Niketan with effect from 01.06.1994, but the writ petitioner was not given the Headmaster's scale of pay, rather he was given the Trained Graduate Scale of pay. The case of the writ petitioner was that he had worked for more than eighteen years in the post of Headmaster without the scale of pay attached to the said post and he made several representations to the State authorities for grant of Headmaster's scale of pay with effect from 01.06.1994, but the same yielded no result.
3. At the time of admission of the writ petition, notice was issued to the petitioners of this review petition on 21.02.2013 and the learned counsel for School and Mass Education Department (S&ME) entered appearance for them and accepted notice. Three extra copies of writ petitions were directed to be served on him and he was directed to obtain necessary instruction in the matter. The matter was next listed on 19.03.2013 on which date, the learned counsel for S&ME sought for time to file counter affidavit and accordingly, two weeks time was granted as last chance to file the counter affidavit. The matter came up next on 24.04.2013, but no counter affidavit was filed and accordingly, the case was disposed of on that day passing Page 4 of 33 // 5 // the order under review. From the order, it is not clear whether the learned counsel for S&ME was present on that day or not. Factual details have not been noted in the order, however, it is mentioned that the service of the petitioner as in-charge Headmaster was approved from 01.06.1994 but he was not paid salary of the Headmaster and was continuing in the salary of a trained graduate teacher. The learned Division Bench relying upon the ratio laid down by the Hon'ble Supreme Court in the case of Selva Raj -Vrs.- Lt. Governor of Island, Port Blair and others reported in A.I.R. 1999 S.C. 838 and of this Court in the case of Dillip Kumar Sahoo and others -Vrs.- State of Odisha and others reported in 2008 (I) Orissa Law Reviews 162 allowed the writ petition vide order dated 24.04.2013, operative portion of which has been extracted in Para 1 in directing the State authorities, the petitioners herein, to calculate the entitlements of the writ petitioner at the scale of pay of Headmaster for the period for which he had worked as Headmaster in-charge and was also continuing as such and to pay such salary to him deducting the amount already received by him, with a further direction to complete the entire exercise within a period of three months from the date of communication of the said order.
4. Challenging the aforesaid order dated 24.04.2013 of this Court, the State of Odisha preferred Special Leave petition before the Hon'ble Supreme Court bearing Special Leave to Appeal (Civil) No.18803 of 2013 which was dismissed as withdrawn granting liberty Page 5 of 33 // 6 // to the review petitioners to approach this Court by filing a review petition within four weeks as per order dated 18.11.2013.
5. Mr. Sandeep Parida, learned Senior Standing Counsel (S&ME) appearing for the petitioners, at the outset pressing the interim application filed under section 5 of the Limitation Act vide I.A. No. 178 of 2018 argued to condone the delay of one day in filing the review petition in the interest of justice. He contended that since the opposite party was not having B.Ed. degree or any training qualification, his appointment was approved in the Trained Intermediate scale of pay i.e. Rs.1350-2200/- from 01.06.1994 to 30.09.1994 and from 01.10.1994 onwards in the Trained Graduate scale of pay on publication of B.Ed. result of the opposite party and therefore, the direction given by the Division Bench of this Court to pay him his entitlements in the scale of Headmaster for the period he had worked as in-charge Headmaster, is contrary to the Regulation 17(2) of Chapter IX of the Regulations of Board of Secondary Education, Odisha which stipulates that for appointment of Headmaster, a trained graduate in Arts or Science with minimum seven years experience after training is necessary. He placed heavy reliance upon the ratio laid down by the Hon'ble Supreme Court in the case of Pabitra Mohan Dash -Vrs.- State of Orissa and others reported in A.I.R. 2001 Supreme Court 560 wherein it has been held that a person who has been appointed as Headmaster in-charge cannot claim any right on the basis of that appointment even if the Page 6 of 33 // 7 // same might have been approved by any Competent Educational Authority as the in-charge Headmaster is not the same as the Headmaster of the School and it merely entitles a person to remain in charge and discharge the duties of a Headmaster. According to him, where the appointment itself has been made to the post of Headmaster as in-charge and such appointment has been approved, obviously the said appointee cannot claim to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster. He further submitted that the appointment/promotion of the writ petitioner in the post of Headmaster of the Sikshya Niketan by the Managing Committee is contrary to the law laid down by the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (Supra). It is further contended that the writ petitioner acquired B.Ed. training qualification with effect from 01.10.1994 and as per Regulation 17(2) of the Boards' Regulations, the opposite party became eligible for promotion to the post of Headmaster only on completion of seven years of teaching experience as trained graduate teacher w.e.f. 01.10.2001. He further contended that as per Rule 8(3) of the 1974 Rules, the vacancies in the posts of Headmasters of Aided Boys' High Schools and Headmistresses of Girls' High Schools can be filled up by the eligible trained graduate teachers from the select list prepared by the Selection Board in the manner prescribed in the Regulation framed by the Selection Board for the purpose and such selection shall be made Page 7 of 33 // 8 // on the basis of seniority in the common feeding cadre and performance. According to Mr. Parida, the opposite party was never promoted to the post of Headmaster rather he was functioning as Headmaster in-charge of the Sikshya Niketan on a stop gap arrangement and therefore, he is not entitled to the Headmaster's scale of pay. It was urged that while passing the order under review, the Division Bench of this Court has not taken into consideration the judgment of the larger Bench of the Hon'ble Supreme Court in the case of Ramakant Shripad Sinai Advalpalkar -Vrs.- Union of India reported in A.I.R. 1991 Supreme Court 1145, wherein a contrary view was taken to the ratio laid down in the case of Selva Raj (supra) upon which the Division Bench placed reliance and therefore, the judgment relied on by the Division Bench is a judgment per incuriam. He further submitted that the eligibility condition for appointment of Headmaster and entitlement of the Headmaster in- charge to the scale of pay attached to the post of Headmaster has been decided by the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) which is a 'ratio decidendi' and since there is mistake and error is apparent on the face of the record, therefore, the order passed by the learned Division Bench of this Court needs to be reviewed.
6. Mr. Manoj Kumar Mohanty, learned counsel for the opposite party on the other hand submitted that the scope of review of the order of the Division Bench is very limited in nature and when Page 8 of 33 // 9 // the impugned order passed by the learned Division Bench dated 24.04.2013 was not interfered with by the Hon'ble Supreme Court, this Court should not entertain the review petition particularly when it was filed beyond the stipulated period of four weeks as fixed by the Hon'ble Supreme Court while dismissing the Special Leave Petition on 18.11.2013. He further submitted that the observation of the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) that the in-charge Headmaster, even if such appointment has been approved, is not entitled to get the scale of pay attached to the post of Headmaster, is obiter dicta as the same was not the issue in that case. In support of his submission, he has relied upon the decisions of the Hon'ble Supreme Court in the cases of Selva Raj (supra), Smt. P. Grover -Vrs.- State of Haryana reported in (1983) 4 Supreme Court Cases 291, Arun Kumar Aggarwal -Vrs.- State of Madhya Pradesh reported in (2014) 13 Supreme Court Cases 707, Union of India -Vrs.- M.V. Mohanan Nair reported in (2020) 5 Supreme Court Cases 421, Pandurang Ganapati Chaugule -Vrs.- Vishwasrao Patil Murgud Sahakari Bank Ltd. reported in (2020) 9 Supreme Court Cases 215 and of this Court in the case of Dillip Kumar Sahoo (supra).
7. Adverting to the contentions raised by the learned counsel for the respective parties, it is not in dispute that Hon'ble Supreme Court dismissed the Special Leave Petition and granted liberty to the review petitioners to file a review petition before this Court within four Page 9 of 33 // 10 // weeks. The order was passed on 18.11.2013 and this review petition was filed on 17.12.2013. So far the delay of one day in filing the review petition is concerned, after perusing the grounds taken in the interim application and on going through the counter affidavit filed by the opposite party, we are of the humble view that in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice. Of course, condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. In the facts and circumstances, we are of the view that in the interest of justice, the delay of one day in filing the review petition as per the order dated 18.11.2013 of the Hon'ble Supreme Court passed in Special Leave to Appeal (Civil) No.18803 of 2013 needs to be condoned. Accordingly, the delay in filing present the review petition is condoned. The prayer made in I.A. No.178 of 2018 is allowed.
8. Prior to the enactment of the 1969 Act, the educational activities in the State of Odisha were being regulated through a collection of executive instructions issued by the Government from time to time and those instructions had been embodied in a Code, called 'Education Code'. The provisions of the Code had no statutory support and, as such, the Government was not able to exercise effective control over the management of the Non-Government Page 10 of 33 // 11 // educational institutions. The managements of such institutions were playing hire and fire with the services of the teachers of the institution. The Odisha Legislature felt that such employees of the Non-Government Educational Institutions need to be protected from the exploitation by the management and Government also should have some control over those Non-Government institutions so that conditions of the institutions would not deteriorate. It is with the object to provide for better organization and development of educational institutions in the State, 1969 Act was enacted which came into force w.e.f. 15.10.1969 and since then, it has been amended from time to time to suit the needs of the hour. Much prior to the enactment of the 1969 Act, Orissa Secondary Education Act, 1953 (hereafter '1953 Act') was in force. 1969 Act has a Savings provision in section 28, which stipulates, inter alia, that the provisions contained in 1969 Act shall be in addition to and not in derogation of the provisions contained in 1953 Act and in the case of any inconsistency or repugnancy; the provisions of 1969 Act shall prevail. 1953 Act intended to establish a Board to regulate, control and develop Secondary Education in the State of Odisha. The expression 'prescribed' has been defined in section 2(i) of the 1953 Act to mean prescribed by regulations made by the Board under the Act. Section 3 of the 1953 Act casts a duty on the State Government to constitute a Board called the Board of Secondary Education to regulate, control and develop Secondary Education in the State of Odisha. Section 2(k) Page 11 of 33 // 12 // of the 1953 Act defines 'recognition' to mean recognition for the purpose of admission to the privileges of the Board including its examination. Section 2(l) of the 1953 Act defines 'Regulation' to mean regulation made or deemed to have been made by the Board under the Act. Section 21 of the 1953 Act confers powers on the Board to make regulations for the purpose of carrying into effect the provisions of the Act. Chapter IX of the Board's Regulations deals with certain pre-conditions in respect of the educational institutions. Regulation 17(2) of the Board's Regulations which comes under Chapter IX deals with the Headmaster who should be a trained graduate in Arts or Science with minimum seven years experience after training. It is this condition prescribed under the Regulation for being appointed as Headmaster of an aided educational institution. In exercise of power under section 27 of the 1969 Act, 1974 Rules have been framed. Rule 8(3) of 1974 Rules, inter alia, lays down the procedure for filling up the vacancies in the posts of Headmasters of aided Boys' High Schools and Headmistresses of Girls' High Schools.
9. In the case in hand, the opposite party joined as the Headmaster of Sikshya Niketan on 01.10.1993 on the basis of issuance of appointment letter as per the resolution of the Managing Committee. The Sikshya Niketan was notified as an aided educational institution as defined under section 3(b) of the 1969 Act with effect from 01.06.1994. The Inspector of Schools vide order dated 28.08.1997 approved the appointment of the teaching and non- Page 12 of 33
// 13 // teaching staff of the Sikshya Niketan, but the services of the writ petitioner was approved as Headmaster in-charge of the Sikshya Niketan against the post of Headmaster w.e.f. 01.10.1994 which was subsequently modified as per office order dated 17.09.1998 to be w.e.f. 01.06.1994. Since the opposite party was not having B.Ed. degree or any training qualification, his appointment was approved in the Trained Intermediate scale of pay i.e. Rs.1350-2200/- from 01.06.1994 to 30.09.1994. On publication of B.Ed. result of the opposite party, from 01.10.1994 onwards he was allowed to draw trained graduate scale of pay.
A two-Judge Bench of the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) after considering the first Full Bench Judgment of this Court in the case of Golakh Chandra Mohanty -Vrs.- State of Orissa reported in 1993 (I) Orissa Law Reviews 303 (FB), subsequent Full Bench Judgment of this Court in the case of Priti Ranjan Pradhan -Vrs.- State of Orissa reported in 1996 (I) Orissa Law Reviews 145 (FB) and also the five-Judge Bench of this Court in the case of Priti Ranjan Pradhan -Vrs.- State of Orissa reported in Vol.87 (1999) Cuttack Law Times 272, observed as follows:
".....It is not disputed that with effect from 29.5.1977, Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a trained graduate and must have Page 13 of 33 // 14 // seven years of teaching experience as a trained graduate teacher. If subsequent to 29.5.1977, any appointment has been made to the post of Head Master contrary to the aforesaid provisions of the Regulation then the said appointment would be invalid appointment and would not confer any right on the appointee."
Since the opposite party became a trained graduate from 01.10.1994 and allowed to draw trained graduate scale of pay from that date, as per the ratio laid down in the case of Pabitra Mohan Dash (supra), he became eligible for promotion to the post of Headmaster on completion of seven years of teaching experience as trained graduate teacher w.e.f. 01.10.2001.
10. The preliminary objection raised by Mr. Mohanty to the maintainability of this review petition is on the ground that the impugned order of learned Division Bench dated 24.04.2013 was not interfered with by the Hon'ble Supreme Court and it was dismissed. It can be lost sight of the fact that the Special Leave Petition was dismissed as withdrawn and liberty was granted to the review petitioners to approach this Court by filing a review petition. There is no adjudication on merit in favour of the opposite party by the Hon'ble Supreme Court. Therefore, the objection is overruled.
Order XLVII of Code of Civil Procedure, 1908 (hereafter 'CPC') deals with review of judgment. An order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 of Page 14 of 33 // 15 // CPC. The review proceedings are not by way of an appeal nor can an appellate power be exercised in the guise of power of review. Review is not re-hearing of an original matter. The power of review jurisdiction cannot be exercised as an inherent power and can be exercised for the correction of a mistake and not to substitute a view. Every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of CPC though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of CPC, the error/mistake must be apparent on the face of the record of the case.
In the case of Parsion Devi and Ors. -Vrs.- Sumitri Devi and Ors. reported in (1997) 8 Supreme Court Cases 715, the Hon'ble Supreme Court held as under:
"9. Under Order 47 Rule 1 Code of Civil Procedure, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1 Code of Civil Procedure, it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."Page 15 of 33
// 16 // In Haridas Das -Vrs.- Usha Rani Banik (Smt.) and Ors. reported in (2006) 4 Supreme Court Cases 78, the Hon'ble Supreme Court held as follows:
"13....The parameters are prescribed in Order 47 Code of Civil Procedure and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the Rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection...."
In the case of State of West Bengal and Ors. -Vrs.- Kamal Sengupta and Anr. reported in (2008) 8 Supreme Court Page 16 of 33 // 17 // Cases 612, the Hon'ble Supreme Court held as follows:
"21. At this stage, it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier."
In the case of Kamlesh Verma -Vrs.- Mayawati and Ors. reported in (2013) 8 Supreme Court Cases 320, the Hon'ble Supreme Court after analysing number of decisions on scope of review, laid down its conclusions, which read as follows:-
"Summary of the principles
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;Page 17 of 33
// 18 //
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki : AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius : AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. : (2013) 8 SCC 337.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.Page 18 of 33
// 19 //
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
Keeping in view the ratio laid down in the aforesaid decisions relating to maintainability of review petition and the power and scope of review jurisdiction, since it is urged before us by the learned Senior Standing Counsel (S&ME) that there is mistake and error is apparent on the face of the impugned judgment for which this review petition is maintainable in view of the ratio laid down in the case of Kamlesh Verma (supra), we are to analyse the same point wise.
11. The crux of the matter lies whether the observation of the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) that the in-charge Headmaster, even if such appointment has been approved by the Competent Educational Authority, is not entitled to get the scale of pay attached to the post of Headmaster, is obiter dicta as contended by the learned counsel for the opposite party as the same was not the issue in that case or a 'ratio decidendi' as argued by the Senior Standing Counsel (S&ME).
In the case of Pabitra Mohan Dash (supra), in two Civil Appeals, the judgment of five-Judge Bench of this Court in the case of Priti Ranjan Pradhan (supra) was under challenge, in which in para Page 19 of 33 // 20 // 19, inter alia, the following conclusions were arrived at:
"(a) The decision of the Full Bench of the Court in Golakh Chandra Mohanty's case (supra) as contained in sub-paras (2), (3) and (4) of paragraph 26 is contrary to law. In paragraph 26(2) of the judgment, use of expression 'appointments' is admittedly improper as there is no question of direct appointment. In paragraph 20, the Full Bench itself observed that all posts were to be filled up as required by Rule 8(3) of the Rules. Regulation 17(2) of Chapter IX of Board's Regulations is applicable to both aided and unaided institutions and only when a person is a trained graduate with minimum of seven years of experience after training is eligible to become as Headmaster.
(b) In Priti Ranjan's case (supra), the second Full Bench observed that the date 3-6-1988 has rational nexus with the object sought to be achieved by the provisions. The conclusion is indefensible in view of the analysis made above. The basis for such conclusion was enactment of Rule 8(3). In view of the analysis made that the Regulation 17(2)(i) operated at all times, the basis for such conclusion does not hold good. The conclusion in Golakh Chandra Mohanty's case (supra) as followed in Priti Ranjan Pradhan's case (supra) that in cases where prescribed qualifications had not been acquired by 3-6-1988, but were acquired subsequently were to be approved is clearly without any basis.Page 20 of 33
// 21 //
(c) The orders of approval passed by the Inspectors of Schools are of no consequence and do not have any force on the question of promotion in terms of Rule 8(3)."
The Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) did not find any infirmity with the conclusions arrived at by the five-Judge Bench of this Court and accordingly dismissed both the Civil Appeals. We find after analysing judgments rendered by five- Judge Bench of this Court in the case of Priti Ranjan Pradhan (supra) as well as by the Hon'ble Supreme Court in the case of Pabitra Mohan Dash (supra) that whether in-charge Headmaster, even if such appointment has been approved by the Competent Educational Authority, is entitled to get the scale of pay attached to the post of Headmaster was never an issue in those cases.
At this juncture, it would be appropriate to note as to what is "obiter dicta"? The expression "obiter" means 'by the way', 'in passing', 'incidentally'. Obiter dictum is the expression of opinion stated in the judgment by a Judge which is unnecessary of a particular case. Obiter dicta is an observation which is either not necessary for the decision of the case or does not relate to the material facts in issue.
Explaining 'obiter dicta', the Hon'ble Supreme Court in Municipal Corporation of Delhi -Vrs.- Gurnam Kaur reported in (1989)1 Supreme Court Cases 101, made following observation in Page 21 of 33 // 22 // paragraphs 10 and 11:
"10.....The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.....
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative....."
The Constitution Bench of the Hon'ble Supreme Court in the case of Sarwan Singh Lamba -Vrs.- Union of India reported in A.I.R. 1995 S.C. 1729, held that normally even an 'Obiter Dictum' is expected to be obeyed and followed. In Oriental Insurance Co Ltd. -Vrs.- Meena Variyal reported in (2007) 5 Supreme Court Cases 428, the Hon'ble Supreme Court, in Paragraph No. 26, has held as follows:-
".....An Obiter Dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But, as far as this Court is concerned, though not binding, it does have clear persuasive authority."
In the case of Director of Settlements -Vrs.- M.R. Apparao reported in (2002) 4 Supreme Court Cases 638, the Hon'ble Supreme Court extensively elaborated upon the principle of binding precedent. The relevant para 7 is reproduced hereunder: Page 22 of 33
// 23 // "7....Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts.
It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law", it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight..."
In the case of Arun Kumar Aggarwal (supra), it is held as follows:-
Page 23 of 33
// 24 // "34....it is well settled that obiter dictum is a mere observation or remark made by the Court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment."
In the case of M.V. Mohanan Nair (supra), it is held as follows:-
"48. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India, i.e. the pronouncement of the law on the point shall operate as a binding precedent on all Courts within India. Law declared by the Supreme Court has to be essentially understood as a principle laid down by the Court and it is this principle which has the effect of a precedent. A principle as understood from the word itself is a proposition which can only be delivered after examination of the matter on merits. It can never be in a summary manner, much less be rendered in a decision delivered on technical grounds, without entering into the merits at all. A decision, unaccompanied by reasons can never be Page 24 of 33 // 25 // said to be a law declared by the Supreme Court though it will bind the parties inter-se in drawing the curtain on the litigation."
In the case of Pandurang Ganapati Chaugule (supra), a five-Judge Constitution Bench while adjudicating the moot question regarding the applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the co-operative banks, held as follows:-
"13.7. The ratio of the judgment is material. The obiter relates to the finding of Court on an issue that arises in the matter but is not required to be decided for the final decision of the case. Thus, the finding of an issue is considered as an obiter. In contrast to ratio and obiter, the opinion of the Court on an issue that does not arise is a casual or passing observation."
We are of the humble view that Mr. Mohanty is right in his submission that whether the in-charge Headmaster, whose appointment has been approved by the Competent Educational Authority, is entitled to get the scale of pay attached to the post of Headmaster was never raised by any of the side either in the case of Priti Ranjan Pradhan (supra) or in the case of Pabitra Mohan Dash (supra) and therefore, when the same was never an issue in those cases, the observation made in the case of Pabitra Mohan Dash (supra) that the in-charge Headmaster, even if such appointment has been approved, is not entitled to get the scale of pay Page 25 of 33 // 26 // attached to the post of Headmaster, is a casual or passing observation which is not relevant, pertinent or essential to decide the issues involved in the said case and therefore, as held in the case of Arun Kumar Aggarwal (supra), such casual or passing observation does not form the part of the judgment of the Court and have no authoritative value.
12. Now, we are to adjudicate whether there is any mistake or error apparent on the face of the impugned judgment for which the same needs to be interfered with in exercise of the review jurisdiction.
Since in view of Regulation 17(2) of Chapter IX of Board's Regulations and Rule 8(3) of 1974 Rules and as per the ratio laid down in the case of Pabitra Mohan Das (supra), the opposite party became eligible for promotion to the post of Headmaster on completion of seven years of teaching experience as trained graduate teacher w.e.f. 01.10.2001, we are of the humble view that the direction of the learned Division Bench in the impugned order dated 24.04.2013 that the petitioner is entitled to the salary of Headmaster for the entire period, for which he had worked as in-charge Headmaster, is an error apparent on the face of such judgment. The learned Division Bench has neither noted the factual details nor even considered as to from which date, the opposite party became eligible for promotion to the post of Headmaster. Reliance was placed in the impugned judgment upon the cases of Selva Raj (supra) and Dillip Page 26 of 33 // 27 // Kumar Sahoo (supra) but the factual scenario in those two cases are completely different. In those cases, the respective petitioners were having required eligibility criteria to hold the higher posts in which they were discharging their duties temporarily and in an officiating capacity. However, in the case in hand, the Inspector of Schools approved the services of the opposite party as Headmaster in-charge of the Sikshya Niketan with effect from 01.06.1994 but as on that date, the opposite party was having no eligibility criteria for promotion to the post of Headmaster. He was not having B.Ed. degree or any training qualification and only on publication of B.Ed. result, he became a trained graduate on 01.10.1994 and allowed to draw trained graduate scale of pay from that date and obviously, he became eligible for promotion to the post of Headmaster on completion of seven years of teaching experience as trained graduate teacher w.e.f. 01.10.2001. The question of his being considered for promotion to the post of Headmaster would not arise prior to 01.10.2001. Law is well settled as held in the case of V.B. Prasad
-Vrs.- Manager, P.M.D.U.P. School and Ors. reported in A.I.R. 2007 S.C. 2053 that eligibility condition must be satisfied before a person is considered for promotion/appointment in respect of a particular post.
The reliance placed by Mr. Mohanty in the case of Smt. P. Grover (supra) is no way helpful to the opposite party, as in that case the appellant Smt. P. Grover who was promoted as Acting Page 27 of 33 // 28 // District Education Officer claimed her entitlement to the pay of a District Education Officer which was allowed.
In the case in hand, the opposite party could not have been considered for promotion to the post of Headmaster from 01.06.1994 till 30.09.2001 as he was not satisfying the eligibility condition for such post and he was merely asked to discharge the duties in the higher post of Headmaster which was a stop gap arrangement. The very notion of appointment of the opposite party as Headmaster in-charge is that he is not the Headmaster in strict sense of the term but is merely to perform the duties of that office as an interim arrangement.
For deciding the entitlement of amount of salary, we are to segregate the entire period, for which the opposite party had worked as in-charge Headmaster into two parts i.e. firstly, from 01.06.1994 till 30.09.2001 during which period he was not having eligibility criteria for promotion to the post of Headmaster and getting trained intermediate scale of pay first and then trained graduate scale of pay after publication of B.Ed. result and secondly, from 01.10.2001 onwards during which period he is having eligibility criteria for promotion to the post of Headmaster and he is getting trained graduate scale of pay.
In the case of Ramakant Shripad Sinai Advalpalkar (supra), a three-Judge Bench of the Hon'ble Supreme Court held that Page 28 of 33 // 29 // the distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantially holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case, he does not get the salary of the higher post; but gets only what in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.
The Division Bench in the case of Selva Raj (supra), has not taken into account the ratio laid down in the case of Ramakant Shripad Sinai Advalpalkar (supra) which is a three-judge Bench decision. 'Per incuriam' means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. 'Incuria' literally means 'carelessness'. In practice, 'per incuriam' appears to mean per ignoratium.
In the case of Union of India -Vrs.- Raghubir Singh (dead) by L.Rs. and Ors. reported in (1989) 2 Supreme Court Page 29 of 33 // 30 // Cases 754, the Constitution Bench has held that a pronouncement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.
A Constitution Bench of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community -Vrs.- State of Maharashtra reported in (2005) 2 Supreme Court Cases 673 has observed that the law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
In the case of Siddharam Satlingappa Mhetre -Vrs.- State of Maharashtra reported in (2011) 1 Supreme Court Cases 694, while addressing the issue of per incuriam, a two-Judge Bench held that the analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of co-equal strength.
In the case of Unicorn Industries -Vrs.- Union of India and Ors. reported in (2020) 3 Supreme Court Cases 492, it is held as follows:-
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// 31 // "51. Thus, it is clear that before the Division Bench deciding SRD Nutrients (P) Ltd. and Bajaj Auto Ltd., the previous binding decisions of three-Judge Bench in Modi Rubber Ltd. and Rita Textiles (P) Ltd. were not placed for consideration. Thus, the decisions in SRD Nutrients (P) Ltd. and Bajaj Auto Ltd. are clearly per incuriam. The decisions in Modi Rubber Ltd. and Rita Textiles (P) Ltd. are binding on us being of Coordinate Bench, and we respectfully follow them."
In view of the foregoing discussions, we are of the humble view that the ratio laid down in the case of Ramakant Shripad Sinai Advalpalkar (supra) is binding on us. Therefore, the opposite party is not entitled to get the salary of the post of Headmaster for the period from 01.06.1994 till 30.09.2001 in which period he was functioning as Headmaster in-charge of Sikshya Niketan, however, he is entitled to get only 'charge allowance' as admissible for the said period.
So far the period from 01.10.2001 onwards is concerned, it is not disputed at the Bar that during this period, the opposite party is having eligibility criteria for promotion to the post of Headmaster. He has been discharging his function as Headmaster in-charge for more than nineteen and half years after having acquired such eligibility criteria and at present also he is continuing to discharge his duty as such but receiving only trained graduate scale of pay. Mr. Parida, learned Senior Standing Counsel (S&ME) fairly submits that Page 31 of 33 // 32 // the Select List as mentioned in Rule 8(3) of 1974 Rules has not yet been prepared by the Selection Board even though such rule came into force w.e.f. 03.06.1988. The State Government in its capacity as a model employer in a welfare State, is not expected to take advantage of its position rather it has the constitutional obligation to see that the opposite party is not deprived in getting Headmaster's scale of pay from 01.10.2001 onwards particularly when it is on account of laches on the part of the State Government that the Select List in terms of the Rule 8(3) of 1974 Rules could not be prepared till date, even though such rule came into force for about thirty three years back. Therefore, we are of the view that the opposite party is entitled to get the Headmaster scale of pay from 01.10.2001 onwards i.e. the period in which he has been functioning as in-charge Headmaster in Sikshya Niketan in spite of fulfilling the eligibility criteria for promotion to the Headmaster.
13. Accordingly, the review petition filed by the petitioners is allowed in part. We direct the petitioners to pay 'charge allowance' as admissible to the opposite party Purna Chandra Chand for the period from 01.06.1994 till 30.09.2001 in addition to the salary which he is stated to have received in the trained intermediate scale of pay from 01.06.1994 to 30.09.1994 and in the trained graduate scale of pay from 01.10.1994 till 30.09.2001.
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// 33 // The petitioners shall also pay the salary to the opposite party in the scale of pay of Headmaster from 01.10.2001 onwards during which period he has been functioning as in-charge Headmaster in Sikshya Niketan having the eligibility criteria for promotion to the post of Headmaster and as stated at the Bar he is getting trained graduate scale of pay.
The petitioners shall calculate the entitlements of the opposite party as per the above observation and disburse the same to the opposite party deducting the amount already paid to him.
The enhanced amount shall also carry interest at the rate of seven per cent per annum from the date of filing of the writ petition by the opposite party before this Court till the date of actual payment.
14. In the result, the review petition is allowed in part and the impugned order dated 24.04.2013 passed by the learned Division Bench is modified to the extent as indicated hereinabove, but without any order as to costs.
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S.K. Sahoo
Judge
S. PANDA, J. I agree.
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S. Panda
Judge
Orissa High Court, Cuttack
The 31st May 2021/PKSahoo
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