Calcutta High Court (Appellete Side)
Dr. Biswanath Khilar vs Navodaya Vidyalaya Samiti & Ors on 6 September, 2017
1 6.09.17
Srimanta 03(S/L) W. P. No. 16044 (W) of 2017 Dr. Biswanath Khilar
-Vs.-
Navodaya Vidyalaya Samiti & Ors.
Mr. Pratik Dhar, Sr. Adv., Mr. Tarun Kumar Das, Mr. Dilip Kumar Shyamal Mr. D. Ghorai.
...for the Petitioner.
Mr. Kausik Chanda, Mr. Kausik Roy, Mr. R. Sarkar.
...for the Union of India.
Mr. Chanda, the learned Additional Solicitor General has raised an issue about the maintainability of the writ petition submitting that the Judgment relied on by the petitioner on June 29, 2017 has been declared practically per incuriam and definitely as contrary to the law declared by the Supreme Court in two subsequent petitions being WPCT 351 of 2007 and WPCT 93 of 2011.
I have perused that Judgment delivered by a Division Bench and found that the Division Bench was of the view that since the earlier Division Bench order was clearly against the principles of law decided by the Supreme Court that Judgment is not binding. In other words the subsequent Division Bench declared the Judgment relied on by the petitioner in the case of Kendriya Vidyalaya Sangathan represented by the Joint Commissioner -Vs.- Prem Narayan 2 Pandey, reported in 2012 (2) CHN (Cal) 269 to be practically without any precedential value.
Mr. Dhar, the learned Senior Counsel for the petitioner has tried to justify the Judgment in the case of Kendriya Bidyalaya Sangathan. His primary submission is when a notification has been declared ultra vires it cannot be easily thrown out by a subsequent Division Bench. The effect of declaring an act or a notification or a circular, as the case may be, ultra vires is that the notification or the instrument so declared becomes virtually non-est and that aspect has to be taken into account by the subsequent Benches. Mr. Dhar further submitted that a subsequent Division Bench could not differ from the earlier Division Bench and if at all Their Lordships had to differ it was necessary for referring the matter to the Hon'ble Chief Justice for constitution of a Larger Bench. Mr. Dhar particularly drew my attention to paragraph 69 of the Judgment in Kendriya Bidyalaya Sangathan (Supra) and submitted that after considering the submissions of the learned Additional Solicitor General the Court expressed its opinion that the amending provision were without jurisdiction and ultra vires Article 323A of the Constitution and accordingly wherever the word 'society' had been incorporated it was set aside and quashed.
These are all with regard to the findings made by the Division Bench in the first case. Shortly thereafter a similar point cropped up for consideration before another Division Bench where, it appears from the Judgement and order of the subsequent Division Bench, that all the learned Advocates appearing in 3 respective petitions had in one voice submitted that the earlier Division Bench order was contrary to the law declared by the Supreme Court. It was also pointed out that none of the parties did raise the issue but Their Lordships themselves framed an issue and heard the learned Additional Solicitor General. The subsequent Division Bench, much assertion to the contrary did not throw the earlier Division Bench Judgment very easily as contended by Mr. Dhar. Their Lordships had taken up the issue for consideration to decide whether the Judgment in the case of Kendriya Vidyalaya Sangathan (Supra), could be sustained in terms of the law settled by the Supreme Court. There has been an elaborate discussion on the point, both considering the Judgment of the Supreme Court as well as the earlier Division Bench Judgment of this Court and ultimately Their Lordships held that the decisions of the Supreme Court squarely covered the issue and were binding upon the High Court.
There is some degree of confusion about whether the sentence in the third line of page 14 of the Judgment, i.e. "such notification was admittedly not under challenge" referred to the Judgment before the Supreme Court or in the earlier Division Bench. Undoubtedly in the Judgment delivered in connection with which the earlier Division Bench passed the order the notification was not under challenge. It is quite possible, and I also hold that in view of the specific stand taken by all the learned Advocates simultaneously that the point was not under challenge before the earlier Division Bench, the subsequent Division Bench referred to the absence of challenge in the Judgement delivered by this Court in the case of Kendriya Vidyalaya Sangathan (Supra). Otherwise it does not match 4 with the subsequent statement that this notification was held to be valid by the Apex Court in the case of Subhas Sharma, reported in 2002 (4) SCC 145.
The subsequent Division Bench had virtually declared the Judgment of the earlier Division Bench to be contrary to the Judgment in the case of Subhas Sharma (Supra).
Thus if a Judgment is declared to be against settled law of a superior authority it becomes a Judgment per incuriam. The effect of declaring a Judgment as against the law of the superior Court is to take from it all precedential value. In other words, it does not operate as a valid precedent to be relied upon by a subsequent Bench. It may be mentioned that Salmond is classical treatise on jurisprudence had included per incuriam under the heading of a Judgment as weakening or taking away the binding nature of a precedent.
Thus the exercise taken by the subsequent Division Bench is very different from differing with an earlier Bench and giving Their Lordships own opinion without referring the matter to the appropriate authority for constitution of a Larger Bench. The power of declaring a Judgment as contrary to law inheres in every Court, and not only a Court of Co-ordinate Bench. Mr. Dhar challenged the findings of the subsequent Division Bench which a learned Single Judge cannot decide sitting singly. It is not that Their Lordships had expressed a different view, it is that Their Lordships saying that in view of the earlier Judgment the first Judgement is not binding.
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In such view of it, I consider the second Judgment to be binding on a Single Judge and in view of what has been decided therein the jurisdiction to entertain the writ petition lies with the relevant Tribunal. The High Court as a Court of first instance lacks jurisdiction to entertain the case. The writ petition is thus found to be not maintainable on the ground of jurisdiction. Consequently, the earlier order relating to the affidavits and reports stand automatically re-called. The writ petition is dismissed as not maintainable.
Liberty for taking proper steps before the appropriate forum.
(Dr. Sambuddha Chakrabarti, J.)