Karnataka High Court
The Hungund Taluka Ranjara ... vs Rachappa Chanamallappa And Ors. on 29 May, 1998
Equivalent citations: ILR1998KAR3104
ORDER Hari Nath Tilhari, J.
1. By these Revision Petitions which have been moved under Section 115 of the Code of Civil Procedure, the revisionist applicants have challenged the orders dated April 15, 1993 and 3rd July 1993 in E.A.T. Appeal Nos.5/92 and 6/92 respectively passed by the Educational Appellate Tribunal No. 1, Bijapur.
2. The facts of the case in brief are that the teacher who is also an employee of the respondent-institution, having felt aggrieved from inaction of the Management-Board in not paying his salary from 1.6.1989 till 1.3.1992, the Management having replied to the notice issued by the employee, filed an appeal under Section 8 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and the Tribunal, after having considered the matter, issued the following directions:-
"In the result, the appeal is allowed. Acting under Section 10(4) of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 the following order is passed:-
Board of Management/respondent No. 1 is directed to pay the salary, dearness allowance and increments of appellant from 1,6.1989 till the date of appeal: appellant to submit splitwise bills for payment as stated above,"
3. Feeling aggrieved by the order of the Educational Appellate Tribunal No. 1, Bijapur the Management of the Institution has filed these revision petitions under Section 115 of the C.P.C. Preliminary objection to the maintainability of this Court revision under Section 115 CPC has been raised to the effect that no revision is maintainable from order passed by Educational Appellate Tribunal, as it is not 'Court' for the purpose of Code as per Section 3 of CPC read with Section 8, 10 and 11 of Karnataka Private Educational Institutions (D.C) Act 1975. This objection has wholly been contested by learned Counsel for applicant who submitted the Educational Tribunal under the Act being moaned by District Judge in Court and revision is maintainability Section 115 of the C.P.C. as per the relevant part thereof reads as follows:-
"Section 115: REVISION: (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity".
the High Court may make such order in the case as it thinks fit. For initiating proceedings under Section 115 of the C.P.C. and to call upon the Court to exercise its revisional power under Section 115 the revisionist applicant has to and establish the following conditions:
"First and foremost important condition is that the order which shall be challenged should have been passed by a Court, and that court should not have been subordinate, shown to be subordinate to High Court, and order should amount to be a case decided.
That no appeal is maintainable from that order and then the order of the Civil Court should be shown to have suffered from jurisdictional error namely, from exercise of jurisdiction not vested or order resulting failure to exercise jurisdiction vested or that the subordinate Court should be shown to have been acted in exercise of the jurisdiction illegally or with material irregularity and an additional condition that if order impugned is not reversed or set aside it has got the tendency to occasion in failure of justice or it may cause irreparable loss and injury. So the first initial condition that has to be established is that the authority passing the order impugned is a Court and is to be shown by the revision applicant, that order has been passed in its capacity as the Court within the purview of the expression 'Court'. Section 3 of the C.P.C. defines the Court subordinate, Section 3 specifically provides that for the purpose of this Code (i.e., Code of Civil Procedure) the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court Small Causes is subordinate to the High Court and District Court. Section 3 of the C.P.C. is very specific and clear about it. That every District Court is subordinate to the High Court and every Civil Court of a grade inferior that of District Court is subordinate to High Court and District Court and it further provides that every Small Cause Court is also subordinate to High Court and District Court. It does not either provided the Criminal or revenue Court or Tribunal also to be a Court subordinate to High Court for the purpose of the Civil Procedure Code. A reading of Sub-section (4) of Section 2 along with Section 3 of Code clearly reveals that Court refers to Civil Courts and the Principal Civil Court of the District is known as district Court. That every subordinate Civil Courts as well as Small Causes Court is subordinate to District Courts. These sections do not reveal that for the purpose of Code we have to include the Tribunal within the frame work of Court subordinate to High Court for the purpose of Code of Civil Procedure. Section 10 of the Karnataka Private Educational Institutions (Discipline and Control Act), 1975 whereunder appeal has been filed before the Tribunal provides for the constitution of the Educational Appellate Tribunal. Before I quote Section 10 it appears appropriate and just also to refer Section '8' of Karnataka Private Educational Institution (D&C) under which the appeal is provided:
"Section 8; (1) Any employee aggrieved by an order of the Board of Management may within three months from the date of communication of the order appeal against such order to the Educational Appellate Tribunal constituted under Section 10. The provisions of Sections 4 and 5 of the Limitation Act 1963 shall be applicable to such an appeal.
(2) xx xx A perusal of this Section per se that language very clearly reveals that the legislative intent that Appeal will lie to Educational Appellate Tribunal. Section 10 reads as under:
"The State Government shall by notification constitute one or more Educational Appellate Tribunals for the adjudication of appeals preferred under Section 8 and where more than one Tribunal is constituted, the State Government shall specify in the Notification the limit to which the territorial jurisdiction of each Tribunal extends.
(2) The Educational Appellate Tribunal shall consist of one person who is or has been a Judicial officer not below the rank of a District Judge.
provided that pending constitution of the Educational Appellate Tribunal under Sub-section (1) the District Judge of each District shall function as the Educational Appellate Tribunal of the District.
(3) xx xx xx (4) xx xx xx It will also be pertinent to refer Section 11 of the Act of 1975. Section 11:-
"Jurisdiction of Civil Court barred: No Civil Court shall have jurisdiction in respect of any matter in relation to which the Educational Appellate Tribunal is empowered by this Act to exercise any powers."
A reading of this Section per se reveals the legislative intent that no Civil Court shall exercise jurisdiction or power in relation to matters with which the Educational Appellate Tribunal is empowered to deal.
It has also to be kept in view that under our Constitution of India also the two sets of institutions i.e., Courts and Tribunals have been conceived distinct from each other vide the provisions of Chapter V and VI of the Part VI Constitution of India dealing with Courts on one hand and the provisions of Part XIV A i.e., Articles 323A and 323B specially Clause 'd' thereof as well, No doubt Article 227 confers power of Superintendence and Supervision over the Courts and Tribunals, on the, High Court.
Learned Counsel for the appellant tried to submit that the District Judge passed the order he should be favour to be acting as the Civil Court subordinate to High Court. There could have been some force in the contention, had the legislative intent not been expressly shown or indicated by this proviso to that for the time being when the District Judge is acting or District Judge deals with the appeals he shall be dealing with the appeals and exercising power under the Act of 1975 only as the Tribunal i.e.. an Educational Appellate Tribunal and not a Civil Court. Further the Constitution of the Appellate Tribunal clearly reveals that it may or has to consist of a person who is or has been a Judicial Officer not below the rank of District Judge. It does not say that the District Judge himself but provides one who is or has been a Judicial Officer not below the rank of District Judge. So any person of that rank could be appointed as member of the Tribunal. The language of Section 8 also does not say that appeal from the order of the Management shall lie to the District Judges but it says shall lie to the Education Appellate Tribunal. So reading of this Section per se reveals that legislature intended that Civil Judge, District Judge or any other person such as Additional District Judge etc., exercising power under this Act he shall be taken to be acting as the Tribunal and not as the Civil Court. That if language of Section 8(b) of the Act would have been that appeal shall lie to the Dist. Judge, only then it could have been well contended that District Judge is not referred to a person or person designated but as the Civil Court constituted under the Karnataka Civil Courts Act. But here the legislature specifically provides and reveals its intention by use of clear expression that the authority District Judge dealing with the appeal will be acting as the Tribunal and not as the Civil Court. If we accept the contention of the Learned Counsel for the revisionist that the Dist Judge is to be taken as the Civil Court and therefore being subordinate to High Court would be revisable. This Court may said to entering in to field of legislation. In the case of H.C.D. MATHUR, SECRETARY OF THE NATIONAL FEDERATION OF RAILWAY v. E.I. RAILWAY ADMINISTRATION THROUGH ITS GENERAL MANAGER a Full Bench of Allahabad High Court sitting at Lucknow dealt with the question of authority invested with jurisdiction under Payment of Wages Act whether it was the Court subordinate to High Court. In para-11 the Full Bench observes:- "that the Word "Court' is not a term of art having a fixed meaning: it indicates a large number of entirely divergent things. So far as a Court of law, in the wider sense of the word, is concerned, the tests (aid down by the Acting Chief Justice in WORKS MANAGER, CARRIAGE AND WAGON SHOPS, MOGALPURA v. K.G. HASHMAT, AIR (33) 1946 Inh. 315 at page 318 might well be applied, and it might be held that any person or body of persons, called upon to decide any question of right in accordance with judicial principles and which is a 'tribunal which exercises jurisdiction by reason of the sanction of the law' is a Court. It does not, however, follow from this that every such Tribunal is a Court of Civil Jurisdiction, to which alone Section 115 Civil Procedure Code applies. Their Lordships further observed as a matter of fact, the question as to what are and what are not Civil Courts falls to be determined under two enactments relating to the constitution of Civil Court in the province: Their Lordships there after having quoted Section 15 of the Payment of Wages Act observed as under:
"Thereafter the person appointed, is throughout referred to in the Act as the 'authority' and not as the "Court' vide in particular Sections 19 and 21. But the conclusive test is provided by Sections 22 which excludes the jurisdiction of 'court' in respect of matters entrusted to the jurisdiction of the authority under Section 15. If the legislature intended to constitute that authority into a "court' those words would lead to an impasse and the jurisdiction of the authority would also be excluded, which would make the whole Act absurd. In such a state of affairs, we would atleast expect to find some such saving words as 'except as otherwise provided by this Act in Section 22. But such words are not to be found. Clearly, therefore, the Legislature intended that the authority constituted under Section 15,. payment of Wages Act should not be a Court."
This observation of the Full Bench of the Judges of the Allahabad High Court as well is apply to the present case. Section 22 of the Payment of Wages Act lays same principle and bar which has been clearly indicated and provided by Section 11 of the Karnataka Private Educational Institutions Act, and the above quoted observation made in the above case H.C.D. MATHUR E.I. RAILWAY ADMINISTRATION do apply. The Learned Counsel for the petitioner made a reference to a decision another Full Bench decision of the Allahabad High Court in the case of CHATUR MOHAN AND ORS. v. RAM BEHARI DIXIT submitted that the Full Bench of the Allhabad High Court has expressed the opinion that the Munsiff when exercised the power under Section 7E of the plaintiff of 1947 he was described not as a persons designate but as a Civil Court. So he contended that the District Judge when exercised power as the Educational Appellate Tribunal and should be taken to be acting as a Civil Court. The case of Chaturhoman is of no assistance to the present case. No doubt as laid down under Section 7E of the U.P. Act 3/47 Munsiff acted as the Civil Court; But this decision by itself is based on the own language of this Section 7E. Section 7E of Act 3/47 provides and lays down that if the landlord neglects to carry out the repairs which he is bound to make them the tenant may apply to the Munsiff having jurisdiction, for an order to the landlord for carrying out of the same. Sub-section (8) of Section 7-E is to the effect that "no appeal shall lie from the order of the Munsiff passed under subSection (5) and (6) which shall be final. Thus it will be very clear that U.P. legislature in there Sections clearly provided that an application under Section 7-E shall lie to the Munsiff it did not provide anything such as to the authority or to the Tribunal. The Hon'ble Chief Justice M.C. Desai of the Allahabad High Court delivered the majority Judgment clearly observes as under:
"In the Act we come across three different expressions: (1) the Munsiff having jurisdiction, (ii) the Munsiff having territorial jurisdiction and (iii) the Court of the Munsiff having jurisdiction. The three expressions appear to have been used in the Act indiscriminately. The three expressions refer to the same authority. The expression "the Court of the Munsiff having jurisdiction" obviously refers to the authority as a Civil Court. The other two expressions also appear to have been used in the same sense. The expression 'Munsiff having jurisdiction' used in sub-section (4) of Section 7-E of the Act is equivalent to the expression "the Court of the Munsiff having territorial jurisdiction."
A perusal of the above paragraph will clearly reveal that expression "Munsiff' no doubt has been used as the Civil Court and Section 7E provided an application under Section 7-E shall lie to the Munsiff means Munsiff as the Court of Civi! Court constituted under Bengal, Agra and Assam Civil Courts Act. In this view of the matter, in my opinion this Full Bench decision relied by the Learned Counsel for the revision petitioner namely Chatur Mohan's case is of no help to the learned Counsel for the revisionist applicant that such a question also did arise before the Andhra Pradesh High Court with reference to the interpretation of Section 8 of the Madras Estates Abolition and conversion into Ryotwars Act 26/48 and the question before the Andhra Pradesh .High Court has been whether the Tribunal constituted under the Act 26/48 was a Court. Sub-section (2) of Section 8 was referred and quoted which indicates that Sub-section (2) to fee providing that the Tribunal which was to consist of a single member which shall either to be District Judge. The Andhra Pradesh High Court relying on a full Bench decision of the Madras High Court in the case of Lakshman Chethar S. Kannapur Full Bench and also referring to an earlier Division Bench of its own Court in the case of JAGANNATHA v. VENKATESWAR held that if a District Court or person designated appointed as the Tribunal then it is not a Court subordinate to the High Court. The Andhra Pradesh High Court observes that Criteria for judging whether the High Court can exercise jurisdiction over any other Court therein hunged on the preposition whether the Court or Tribunal is subordinate to High Court under the code and for this purpose language of Section 3 of the C.P.C. has been relied on. Thus it js clear it is not the application of C.P.C., to the proceedings justest whether the Tribunal occupies vis-a-vis High Court the petition Subordinate Court that too constitute real test. Therefore, the procedure contained in the C.P.C. is also to be followed by the Tribunal it cannot be considered to postulate conferring upon the Tribunal the position and status of the Court.
Sri S.P. Kulkarni further made a reference to a decision of the Supreme Court in the case of ROSHAN LAL MEHRA v. ISHWAR DASS . That in that case under the Delhi and Ajmer Merwara Rent Control Act 19 of 1947 a question had arisen whether the appellate order passed by the District Judge was revisable and the Court held that the revision was maintainable but it opined that the finding of fact recorded by the District Judge could not be interfered with under Section 115 of the C.P.C. The learned Counsel referred to the relevant observation and on that basis he contended that as order passed by the Dist. Judge such as Rent Control Act was revisable under Section 115 of Civil Procedure Code why not the appellate order passed by the District Judge under Section 8 of the Present Act sought to be not revisable under Section 115 C.P.C. The contention on its face appears to be attractive. But as I had mentioned earlier that as per Section 8 of Karnataka Private Educational Institutions (D&C) Act 1975 that appeal under Section 8 of the Act shall lie to Educational Appellate Tribunal. It does not provide the appeal shall lie to the District Judge under the Act. Section 11 excludes the jurisdiction of the Civil Court. The case of Roshan Lal referred to above makes vast difference particularly as per the perusal of Section 11 of the Delhi and Ajmer Merwara Rent Control Act 19/1947. A perusal of Section 11 of Delhi and Ajmer -Merwara Rent Control Act 19/1947 reveal that the appeal from the order of the Rent Controller is to lay to the District Judge and not to anybody or the Rent Control Tribunal, Section 11 reads thus:
"Any person aggrieved by an order of the Rent Controller may, within thirty days from the date on which the order is communicated to him, appeal to the District Judge, Delhi."
A reading of this Section reveals that the District Judge has been referred to as the Court of District Judge, Delhi as a Civil Court and a District Judge or an Additional District Judge is nothing but a Civil Court subordinate to the High court. It is in this context, revision might have been entertained. No doubt the Supreme Court further took a view that the finding, of fact recorded by the District Judge and the- Rent Controller could not be interfered with by the High Court under Section 115 CPC particularly when in support of the finding there, was clear and abundant evidence which was carefully considered and accepted by both the Rent Controller and District Judge. This decision of Roshan Lal is of no assistance or help to the Learned Counsel for the petitioner.
On behalf of the applicants, learned Counsel for the applicants made a reference to two others decisions of Their Lordships of the Supreme Court namely in the case of THE KERALA STATE ELECTRICITY BOARD, TRIVANDRUM v. T.P. KUNHALIUMMA and to the decision of the Supreme Court in the case of CHHAGAN LAL v. THE MUNICIPAL CORPORATION, INDORE . That case has been relied by the Learned Counsel for the applicant to submit that the Supreme Court has taken the view that for the purpose Section 16 proceedings it has been held that when the District Judge exercised powers under Section 10 and 15 of the Act, it acted as a Civil Court, and reference to it was that of District Court. In my opinion, these two case are distinguishable and are not of much help to the revision petitioners. So far as in the case of THE KERALA STATE ELECTRICITY BOARD, THRIVANDRUM v. T.P. KUNHALIUMMA is concerned, it has been observed in that case that the applications contemplated under Section 16(3) are applications made to the District Judge within whose jurisdiction the property is situated. It will be just and proper to quote Section 16 Sub-section 3, 4 and 5 thereof which themselves revealed the legislative intent for the purpose of that Act. Section 16(3), (4) and (5) of the Indian Telegraph Act, 1885 reads as under; -
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, Clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of District Judge such amount as he deems sufficient or, where ail the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under Sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under Sub-section (3), or Sub-section (4) shall be final."
The legislature has very clearly revealed the position of the District Judge namely as a Civil Court when it uses the expression, "District Judge within whose jurisdiction the property is situate." But, so far as the present Act the Educational Appellate Tribunal mentioned. Section 8 provides for appeals to Educational Appellate Tribunal and not to District Judge. The intention of the legislature has been that appeal shall lie to the Educational Appellate Tribunal which is to be constituted under Section 10. As a temporary measure, District Judge has been required to act, but only in the capacity as the Educational Appellate Tribunal uses the expression in proviso to Section 10(2) "shall function as Educational Appellate Tribunal", clearly reveal the legislative intent that the District Judge is to act only as a Tribunal and not as Civil Court, it is one of the well settled principle of interpretation of statute that legislative intention is to be gathered from the language used by the Legislature in statute. A reference in this regard may be made to the decision of Hon'ble Supreme Court in the case of B.N. MUTTO v. T.K. NANDINI where it has been observed:-
"The Court has to determine the intention of legislature as expressed by words used in the statute. If the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their natural "and ordinary sense."
If it is taken-that though legislative enactment provides appeal to Tribunal in clear terms and requires that when and for the time being as an intergram arrangement, i.e., till its constitution, the District Judge shall act as Educational Appellate Tribunal i.e., not as a Civil Court, it has to be taken to be acting as Civil Court, in my opinion such an interpretation may, lead to reversing the legislative intent as expressed in clear terms, in the Act and its provisions and further the jurisdiction to district Judge, as Civil Court will stand excluded by Section 11 of the above of Act of 75, as Section 11 of the Act bars the jurisdiction of Civil Court from entertaining the matters in respect of which Educational Appellate Tribunal has been conferred jurisdiction to deal. That it is well settled that provisions of an Act have to be harmoniously construed. If two interpretations are possible, the one which lead to absurdity is to be avoided. If it is to be held that till District Judge acts as Tribunal it acts as Civil Court, it would have a tendency to create conflict between Section 8, Section 10 and Section 11, and it is always necessary to interpret and give that meaning of the sections which hormonias and avoid conflict and absurdity.
Thus considered, it appears when the legislature itself has directed the District Judge to act as ah Educational Appellate Tribunal, it intended to provide that it has to act as a Tribunal only. This case of the Kerala State Electricity Board has no relevance nor is of any help or assistance to the applicants in the matter of construction of Sections 8, 10 and 11 of Act of 1975. The other case of CHHAGANLAL v. MUNICIPAL CORPORATION is also distinguishable on its facts. The observations in paragraph 8 perse reveal that Section 149 of the Madhya Pradesh Municipal Corporation Act, 1956, provided that an appeal shall lie from the decision of the Municipal Commissioner to the District Court and Sub-section (1) of Section 149 further provided that the decision of the District Court shall be final. The Madhya Pradesh Legislature uses the expression that, "an appeal shall lie from the decision of the Municipal Commissioner to the District Court". District Court is referred to as a principal Court of Civil jurisdiction as per the provisions of Code of Civil Procedure. So this case of CHHAGANLAL v. MUNICIPAL CORPORATION, INDORE, is also of no assistance in the interpretation of the Section-8 to 11 of Act, to the Learned Counsel, for applicants. The learned Counsel for the applicants made a further reference to the Full Bench decision, not reported so far as stated by him and the counsel opposite, which had been given in the case of M/s. EXCELLANT EDUCATIONAL SOCIETY AND ORS. v. SMT. J. SHAHIDA BEGUM AND OTHERS WA Nos.1101 to 1103 of 1987 and contended that in this case, the Full Bench has taken the view that the order passed by the District Judge under proviso to Sub-section (2) to Section 10 of the Act being the District Court continued to be the Court subordinate to the High Court and revision did lie. I have gone through this judgment as well. Ordinarily, a Full Bench judgment is binding on a Single and Division Bench and even on a Full Bench provided it does not amount to be perincuriam judgment i.e., it does not suffer from what is known as perincuriam. A decision which itself suffers from something which may be said to render "subsilentio" or "perincurian", it has been well laid by their lordships of the Supreme Court in the following case - that such a decision looses its precedentry value and would not be binding as a precedent and the Court can ignore it. "Per-incurian" are those decisions which are given in ignorance or forgetfulness of relevant material statutory provisions or some authority binding. See A.R. ANTULEY v. R. NAIK and MUNICIPAL CORPORATION DELHI v. GURNAM KAUR .
With all due respects to the Hon'ble Judges constituting the Full Bench, I find that the attention of the Hon'ble Judges was not invited to Section 8, which provides that appeal from the order of the Management shall lie to the Educational Appellate Tribunal constituted under Section 10. It may not consists of District Judge, but it may consists of a person or a judicial officer of the rank equivalent to District Judge or a retired District Judge. So the question before the Court is whether the revision under Section 115 CPC is maintainable from the order of the Tribunal and the Tribunal which is constituted under the Act can be said to be Civil Court. Proviso to section cannot be taken to render the scheme of the Act nugatory. The scheme of the Act is that the appeal has to be entertained and heard by the Tribunal and proviso has made an interim arrangement till the members of the Tribunal are not appointed, and then expression used "shall act as an Educational Tribunal" clearly shows as mentioned earlier that the District judge will be taken to be acting as a Tribunal and not as a Court. This very expression, which is used Section 10(2) Proviso is very material and the use of expression "shall act as an Educational Tribunal" is of great significance. The attention of the Hon'ble Judges of the Full Bench was also not been invited to Section 11 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975. Section 11 clearly bare the jurisdiction of the Civil Court. Can the proviso be so read as to render Section 11 nugatory. The principle is that if more than one interpretation is possible then harmonious construction is to be adopted. Looking to that, in my opinion, when by the proviso it is provided and it has specifically said, "shall act as Educational Tribunal" means that District Judge is to act as a Tribunal and the order passed is that of the Tribunal and not of the District Judge as Civil Court. As the attention of the Court was not invited to Section 8 and Section 11 of the Act of 1975 which were material sections for consideration along with Section 10 and proviso to Section 10(2), the unreported decision of the Full Bench in the case of M/S. Excellent Educational Society and Ors. v. Smt. J. Shahida Begum and Ors., by the Hon'ble Judges constituting the full Bench relied by the Learned Counsel for applicant is a per-incuriam decision and the decision which suffers from what renders it to be per-incuriam as held by the Supreme Court in the cases of A.R. Antuley v. R. Naik and Delhi Municipal Corporation v. Gurnam Kaur does not operate as a binding precedent.
In this view of the matter, in my opinion, the orders passed by the Educational Appellate Tribunal, whether passed in regular course or passed by the District Judges during the interview, period as per proviso to Section 10(2) of the act are passed by them in the capacity of the Member of the Educational Tribunal and not as Civil Court. The proviso only says that District Judge shall act and perform the function of the Educational Appellate Tribunal and when the legislation says so that the District Judge shall act as Educational Tribunal, it means that it has clear and unambiguous intentions and it means that they shall act not as Civil Court but as Tribunal. Mad it been the legislative intent that Educational Appellate Tribunal is to be deemed to be Civil Court, it could have been so provided in the Act of 75 as it can be so found in certain Act such as 'Family Court's Act as per Section 10, thereof wherein it has specifically be provided "the family Court is to be deemed to be Civil court". Thus considered in my opinion, the order impugned even if it was passed by the District Judge, but it is to be taken that he has acted only in the capacity of the Educational Appellate Tribunal and not as a Civil Court and when it is the order of Educational Appellate Tribunal, it does not come within the purview of this expression "Sub-ordinate Civil Court" as per Section 3 of C.P.C. and the revision is not maintainable. I may also point out that before the Full Bench no reference appears to have been made even to Section 3 of CPC which says for the purpose of this Court what will be the subordinate Court. So, for the purpose of C.P.C. the Court that has been mentioned in Section 3 as a subordinate Civil Court namely the District Court in subordinate to High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. This Section 3 being clear also supports my view. But I feel sorry this section also has not been referred to the Hon'ble Judges of Full Bench. Therefore, in 'my opinion as mentioned earlier, the Full Bench's decision cannot be taken to be binding precedent as it is a decision per-incuriam.
As the first essential condition of maintainability of revision has not been satisfied by the Learned Counsel for the petitioners, the order impugned is one passed by 'the Court' subordinate, is not one which had been passed by Tribuna.
Thus considered, the revision has to be and is hereby dismissed with liberty to the petitioners to avail any remedy if available under law and which he may be advised by his Learned Counsel to persue.
The revision is hereby dismissed. No costs.