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Jammu & Kashmir High Court - Srinagar Bench

Irfana Ahmad vs State Of J&K; & Another on 23 April, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                            ...

SWP no.2810/2015 MP no.01/2016 MP no.01/2015 Date of order: 23 .04.2018 Irfana Ahmad v.

State of J&K and another Coram:

Hon'ble Mr Justice M. K. Hanjura, Judge Appearing Counsel: 
For Petitioner(s):    Mr G.A.Lone, Advocate
For Respondent(s):    Mr Z.A.Shah, Senior Advocate with Mr A. Hanan, Advocate
                      Mr M.I. Dar, AAG
Whether approved for reporting?                    Yes/No
1. Smt Irfana Ahmad, petitioner herein, is a member of the Drug and Food Control (Gazetted) Service. Her initial appointment as the Drug Inspector came about in the year 1989 in the Drug and Food Control Organisation (for brevity "DFCO"), after she was recommended by the J&K Services Selection Board. Promotion was accorded in her favour, elevating her to the post of the Senior Drug Inspector. By the Government Order no.01-HME of 2002 dated 01.01.2002, amongst others, she was promoted as the Incharge Assistant Drug Analyst Laboratory, Srinagar, in her own pay and grade. The Departmental Promotion Committee/Public Service Commission vide letter no.PSC/DPC/Drug/94/23 dated 28.12.2006, cleared and recommended the promotion of the five Senior Drug Inspectors / Senior Scientific Officers to the posts of the Assistant Controller Drug/Assistant Drug Analysts against the promotion quota. The said recommendation was brought to a halt by this Court in a writ petition, being SWP no.02/2007 titled Nazir Ahmad Wani v. State and others. However, a Bench of this Court, later on, when SWP no.2810/2015 Page 1 of 41 the learned counsel for the parties agreed, permitted the respondent department to make arrangements for smooth functioning of the department, however, subject to the rights of the parties. As a subsequence thereof, the sanction was accorded to the confirmation of the five officers against the posts of the Assistant Controller Drugs and Assistant Drug Analysts in the pay scale of Rs.7500-

12000. The petitioner figures at Serial no.03, amongst the beneficiaries of the Government order no.265-HME of 2008 dated 25.03.2008.

2. Smt. Lotika Khajuria (respondent no.2 herein), on the recommendations of the Public Service Commission made vide letter no.PSC/DR/3/Asstt Drug Controller / 2K dated 21.10.2002, was appointed as the Assistant Drug Controller/Assistant Drug Analyst in the pay scale of Rs.7500-12000, as a direct recruit vide Government Order no.260-HME of 2003 dated 20.03.2003, albeit, she was initially appointed as the Drug Inspector and promoted as the Senior Drug Inspector along with the petitioner in the respondent department. As claimed by the petitioner, given her appointment to the post of the Assistant Controller Drug/Assistant Drug Analyst in March 2002, the petitioner is senior to the respondent no.2.

3. The petitioner maintains that the respondent no.2 had filed a series of writ petitions, being SWP no.1528/2005, 2220/2012, 1054/2015, questioning the retrospective promotion of the petitioner. The question qua the retrospective promotion to the petitioner and others has, however, been put at rest by this Court when it delivered a judgement dated 29.07.2010 in SWP no.1654/2009 connected with SWP no.02/2007 and SWP no.1619/2006, holding the retrospective promotion valid. It is also asserted that the respondent no.2, among other petitions, had also filed SWP no.2878/2014, which was SWP no.2810/2015 Page 2 of 41 disposed of vide order dated 24.11.2014. Thereagainst the respondent no.2 preferred an Appeal, which was diarised and registered as LPA (SW) no.01/2015. The petitioner was not made party respondent, so she sought her impleadment. She was arrayed as the party respondent by the Order dated 20.04.2015. The Division Bench of this Court, vide judgement dated 13.05.2015, directed the State Public Service Commission to consider the proposal to be received from the respondents for filling up the posts of the Deputy Controller, DFCO, on the substantive basis and conclude the matter by eight weeks after the Commission was constituted and once the posts of the Deputy Controllers were filled up on the regular basis, the respondents would consider the eligible Deputy Drug Controllers for filling up the posts of the Controller, DFCO, and complete the process within eight weeks, after the Deputy Drug Controllers were in place on the substantive basis. The respondents were also directed to consider all the incharge Drugs Deputy Controllers in accordance with the rules, regulations, Government instructions, for placement of one of them as incharge Controller, DFCO, and the officer so placed would hold such position till the State Government, on the recommendation of the PSC, takes a decision as regards the filling up of the posts of the Deputy Controllers on the substantive basis. The respondents were also directed that for the intervening period, i.e. the date the posts of the Deputy Drug Controllers were filled up on the substantive basis and the date the post of the Controller Drugs was so filled up, that stop- gap charge of the Controller Drugs to senior most Deputy Drug Controller would be given, but such arrangement shall not extend beyond a period of eight weeks and by that time the Controller Drugs must necessary be in place.

SWP no.2810/2015 Page 3 of 41

4. The Health and Medical Education Department, Human Resource Branch, Civil Secretariat, Jammu, issued Government Order no.817- HME of 2015 dated 22.12.2015, temporarily giving the charge of the post of Controller, Drugs and Food Control Organisation, J&K, to the respondent no.2, till further orders. It is this order, of which the petitioner is aggrieved and exhorts quashment thereof. She also implores a direction to the respondents allowing her to perform the duties and discharge the responsibility of the Controller, DFCO.

5. The respondent no.1, in his Reply, maintains that the petitioner is the senior most official in the cadre of the Drug Analyst as per the Final Seniority List issued vide Circular no.HMe/HRM/06/2014 dated 22.04.2014, in which she figures at the serial no.03 and the respondent no.2 figures at serial no.04. A writ petition, bearing SWP no.2220/2012 has been filed by the respondent no.2 before the Jammu Wing of this Court, in which an ad interim direction has been passed, providing that the private respondent therein shall not be considered for further promotion. The respondent department has already filed its response to the maintainability of the writ petition filed by the respondent no.2. The Government Order no.550-HME of 2014 dated 01.10.2014, asking Shri Nazir Ahmad Wani, to look after the charge of the post of the Controller Drugs, was challenged by the respondent no.2 before the Jammu Wing of this Court, which was disposed of vide judgement dated 24.11.2014. The Letters Patent Appeals, being LPA (SW) nos. 11/2015 and 12/2015 were filed, which were disposed of vide judgement dated 13.05.2015. It is insisted that Shri Nazir Ahmad Wani was allowed to continue as alteration or modification in the existing arrangement would multiply the litigation which was sought to be obviated. The Administrative Department allowed the existing arrangement to SWP no.2810/2015 Page 4 of 41 continue till the PSC furnishes its recommendations to the level of the Deputy Controller for filling up the post of the Deputy Controller on the substantive basis and in terms of the judgement passed on 13.05.2015, the arrangement, which continued on the date, was allowed to continue, so that a final decision would be taken while waiting for final squaring off the writ petition (SWP no.222/2012). It is also contended that the respondent no.2 filed Contempt Petition no.247/2015, and in view of the order dated 14.12.2015 passed therein, the impugned Government Order no.817-HME of 2015 dated 22.12.2015 came to be issued. It is admitted that Shri Nazir Ahmad Wani was figuring at the serial no.05 in the Seniority List and the respondent no.2 at the serial no.04, whereas the petitioner figures at the serial no.03. The only impediment found by the Department in giving the charge to the petitioner, is the interim direction dated 04.10.2012 passed by a Bench of this Court at Jammu Wing and in sequel thereto the respondent department has acted in a good faith to avoid being embroiled in contempt. Now as per the instant proceedings, it has been agitated by the petitioner that the interim directions were not continued. In this behalf, it is submitted by the respondent no.1 that the respondent no.2 has submitted a representation dated 26.02.2016, addressed to the respondent no.1, wherein it has been submitted that the order passed by this Court on 04.10.2012 in SWP no.2220/2012 in the case titled Lotika Khajuria v. State and others, is still in force and has also produced Xerox copy of the order dated 01.01.2016, which provides that meanwhile interim direction to continue.

6. The respondent no.2 has filed the objections in opposition to the writ petition on hand. Her stand is that in pursuance to the Government Order no.550-HME of 2014 dated 01.10.2014, one Shri Nazir SWP no.2810/2015 Page 5 of 41 Ahmed Wani, I/C Deputy Controller, Drugs and Food Control Organisation, was asked to look-after the charge of the post of the Controller, Drugs and Food Control Organisation, J&K, notwithstanding he being junior to the respondent no.2. Thus, she was constrained to knock at the portals of this Court with a writ petition, bearing SWP no.2878/2014. It is insisted that the present petitioner never questioned the aforementioned Government order, meaning thereby that she was not aggrieved thereof insofar it handed over the charge of the post of Controller, Drugs, to the aforesaid Shri Nazir Ahmed Wani. The writ petition (SWP no.2878/2014) was disposed of vide judgement dated 24.11.2014. Thereagainst the respondent no.2 and Shri Nazir Ahmad Wani directed the LPA. During the pendency of the Appeals, the Division Bench of this Court allowed the arrangement made vide Government Order no.550-HME of 2014 dated 01.10.2014 to continue till disposal of the appeal and finally the LPAs were disposed of vide judgement dated 15.05.2015. A Review Petition was filed by the aforesaid Shri Nazir Ahmad Wani, which was dismissed. Shri Nazir Ahmad Wani also preferred a Special Level Petition, which too was dismissed on 16.07.2015. Non-implementation of the Division Bench's judgement is said to have exacted the respondent no.2 to file a Contempt Petition bearing COA(SWP) no.247/2015. During pendency thereof, it is next insisted, the respondents implemented the judgement of the Division Bench of this Court and gave charge of the post of Controller, Drugs, to the respondent no.2. The claim of the respondent no.2 was considered in accordance with the directions of the Division Bench of this Court. The Government order, impugned in the petition, as claimed by the respondent no.2, has been passed strictly in compliance to the judgement passed by SWP no.2810/2015 Page 6 of 41 the Division Bench of this court and the claims of all the eligible incharge Deputy Controller, Drugs, have been considered and the respondent no.2 has been given the charge on the basis of her merit inasmuch as otherwise also in terms of Rules the post of the Controller is a selection post.

7. Rejoinder affidavit has been filed by the petitioner. She claims that the impugned order suffers from serious non-application of mind and is de hors the direction dated 13.05.2015 passed by the Division Bench of this Court in LPA(SW) nos.11/2015 and 12/2015, inasmuch as the impugned order is in direct conflict with the judgement delivered by the Division Bench. It is averred that it is settled preposition of law that no one can be allowed to take the benefit of an order, which is in violation of the judgement/order passed by a Court. It is also stated that the respondent no.2 has taken a stand that the order in her favour has been passed on the basis of the merit and is in tune with the directions passed by the Division Bench of this Court and her further stand is that the petitioner has not earlier objected the incharge arrangement made to the post of the Controller, DFCO, by one Shri Nazir Ahmad and that the order in favour of the respondent no.2 has been issued on the basis of the directions issued by the Division Bench. The petitioner submits that the impugned order has taken into consideration all the aspects of the case including the seniority and the position held by the petitioner and other candidates, including the respondent no.2 and has rightly held the petitioner to be the senior most in the department. The order impugned portrays that given the seniority and other circumstances, the petitioner was entitled to be put as Incharge Controller, DFCO, as per the judgement of the Division Bench of this Court, but on the irrelevant and extraneous SWP no.2810/2015 Page 7 of 41 considerations, an interim direction passed in SWP no.2220/2012, way back on 04.10.2012, has been brought into aid to help the respondent no.2, in violation of the clear direction of the Division Bench of this Court. The said direction was not in existence at the time of the passing of the order impugned and it has lost its life way back in the year 2014, when it was not extended by the Court as is admitted by the respondent no.2 in her application made for its extension vide MP no.01/2015 in SWP no.2220/2012. It is claimed that a subsequent order passed by the Court regarding the continuance of the direction issued in SWP no.2220/2012, does not improve the case of the respondent no.2, inasmuch as the impugned order has to stand on its own leg and it cannot be allowed to be supported by the crutches. The interim direction, on which the impugned order is sought to sustain, was admittedly not in existence on the date of passing of the order and therefore, subsequent order passed in this behalf is of no help. It is maintained that the merit and suitability of the respondent no.2 can be better judged by her involvement in a serious misconduct amounting to scandal in regard to the purchase of drugs for supply to the Government Hospitals while she was a member of the Purchase Committee, leading to the filing of the case FIR no.10/2013 of Police Station Crime Branch Jammu, under Section 420, 465, 467, 471, 120-B RPC and 5(2) of the Prevention of Corruption Act and on account of her political and bureaucratic support, she was let off by the Investigating Officer on the ground that insufficient evidence has been found against her and was given the benefit as provided by Section 169 Cr.P.C. The case was produced against her co-accused, who had raised a strong plea that the Investigating Officer of the case has in league with the respondent no.2, indulged in destruction of evidence and the learned SWP no.2810/2015 Page 8 of 41 Special Judge, Anticorruption, Jammu, while hearing the case on the question of framing of charges, found the respondent no.2 involved in the commission of offence. Since the said respondent was found to be in service, therefore, the Investigating Officers were directed to obtain sanction against her for her prosecution. This being the conduct of the respondent no.2, which, according to the petitioner, is highly dangerous to put her as Incharge Controller of the Drugs and Food Control Organisation, J&K. It is further averred that the petitioner has unblemished record of service. She has been found to be the senior most in the hierarchy by the Government and the seniority list already issued also shows the petitioner senior to the respondent no.2. On these bases, she alone was required to be put on incharge basis to look after the work of the Controller, Drugs, as per the directions issued by the Division Bench. The order impugned is a clear violation of the directions. It is also maintained that the respondent no.2 has raised certain issues regarding violation of quota rule in regard to the appointment of petitioner. These questions have already been settled by the judgement delivered by this Court in SWP no.1654/2009 clubbed with SWP nos.02/2007 and 1619/2006, which has become final. The respondent no.2 cannot claim seniority over the head of the petitioner because respondent no.2 and Shri Nazir Ahmad Wani have been appointed on the same date by virtue of Order no.260-HME of 2003 dated 20.03.2002 and this position has been so upheld by this Court. The petitioner has been appointed against her own quota. Even otherwise also Rule 5 of the Drug Control Rules of 1997, provides that if a candidate, in a particular feeding service for the appointment to the post of Assistant Controller Drug/Assistant Drug Analyst, is not available, the same can be filled up from other feeding service and vice-versa. The SWP no.2810/2015 Page 9 of 41 question of violating the quota rule does not arise because the respondent no.2 was not in the Gazetted Service when appointment of the petitioner was ordered to be made retrospectively from 30.06.2002. The respondent no.2 has also admitted her seniority and it is the petitioner, who was directed by the Division Bench of this Court to be given the charge as Controller, Drugs and Food Organisation, on incharge basis. The interpretation sought to be placed by the respondent no.2 is imaginary and not supported either by the direction of this Court or by the impugned order, which shows that because of an order dated 04.10.2012, passed in SWP no.2220/2012, the department thought it advisable to handover the charge of the Controller, DFCO, to the respondent no.2. The Division Bench judgement has been passed on merits, after considering the rival contentions, whereas the interim order has been passed in ex parte and is interim in nature. The petitioner asserts that the respondent no.2 in her objections has raised a half-baked plea that the petitioner did not object to the handing over of the charge of the Controller, DFCO, on incharge basis in favour of Shri Nazir Ahmad Wani, earlier by the Government, and according to the respondent no.2, the petitioner has no reason to put the order impugned under challenge. It is submitted that at the time of handing over of the charge of the Controller, DFCO, on incharge basis to Shri Nazir Ahmad Wani, the petitioner had approached the Government that she being senior most in the department, is entitled to the appointment as Incharge Controller, DFCO. The Government had assured her that as soon as the case pending before this Court, in which challenge had been put to the appointment of Shri Nazir Ahmad Wani as Incharge Controller, DFCO, is decided, she being senior most, will be considered for such appointment. The petitioner SWP no.2810/2015 Page 10 of 41 remained satisfied about the assurance extended and was advised not to engage the department in litigation. The question of the petitioner showing any remissness is untrue and the appointment made in favour of Shri Nazir Ahmad Wani, was in fact void ab initio and this Court has rightly decided the matter in controversy. The decision of the Division Bench of this Court, it is stated, is binding upon all the parties and the refuge taken under an interim direction passed in SWP no.2220/2012 is wholly illegal and unjustified.

8. Respondent no.2, to controvert what the petitioner averred in the writ petition and the Rejoinder, has filed Supplementary Affidavit aiming at to bolster her case. She avers that the short question, which arises for consideration, is whether the writ petitioner is entitled to the retrospective promotion from 30.06.2002, in terms of the Government Order no.265-HME of 2008 dated 25.03.2008. The total number of posts in the cadre of Assistant Controller Drugs/Assistant Drug Analyst, under the Rules, were Eight in the year 1997, when the Rules were sanctioned and same was the position in the year 2002, which were to be filled up 60% from Senior Drug Inspector/Instrument Technician, 20% from Senior Scientific Officer, and 20% from direct recruit. Having regard to the said ratio, only five posts fell to the share of the Senior Drug Inspectors/Instrument Technicians and out of the remaining three posts, the two posts fell to the share of the direct recruits and one post to the share of the Senior Scientific Officer. The respondent no.2 came to be appointed as a direct recruit on 20.03.2002, pursuant to the recommendations of the Public Service Commission and the second post of the direct recruit was taken by Shri Nazir Ahmad Wani. Out of the six posts, five posts, which fell to the share of the Senior Drug Inspectors/ Instrument Technicians, who were senior to SWP no.2810/2015 Page 11 of 41 the writ petitioner, came to be promoted pursuant to the recommendations of the Departmental Promotion Committee vide Government Order no.265-HMe of 2008 dated 25.03.2008 and the remaining one post had to be filled up from amongst the Senior Scientific Officers. It is maintained that the Government did not promote any person from the said category, instead one more officer belonging to the category of the Senior Drug Inspectors/Instrument Technician was promoted against the post. In this manner, one post, at the level of the Assistant Controller Drugs/Assistant Drug Analyst, came to be usurped by the Senior Drug Inspectors. The writ petitioner was elevated in the status as Assistant Controller Drugs/ Assistant Drug Analyst on 01.01.2000, in her own pay and grade vide Government order no.01-HME of 2002 dated 01.01.2002 and she continued as such till the year 2008, when pursuant to the recommendations of the Departmental Promotion Committee, she was promoted from 01.07.2002 vide Government Order no.265- HME of 2008 dated 25.03.2008. The respondent no.2 also submits that on 01.07.2002, there was no post available in the cadre of Assistant Controller Drugs/Assistant Drug Analyst, against which the petitioner could have been promoted on regular basis. From amongst the six officers, who had previously been promoted as Assistant Controller Drugs/Assistant Drug Analyst, one of the posts in the said cadre became available only in December 2003, consequent to the further promotion of Shri M.K.Bakshi on regular basis as Deputy Drug Controller and the petitioner could have been adjusted only against the resultant vacancy. The petitioner, it is next assertions of the respondent no.2, cannot claim seniority in the category of the Assistant Controller Drugs / Assistant Drug Analyst, above the respondent no.2. She has questioned the grant of SWP no.2810/2015 Page 12 of 41 retrospective promotion to the writ petition in SWP no.2220/2012, which is pending adjudication. It is claimed that the first seniority list was issued in the year 2009, in which the petitioner was not shown because she was holding the post of the Assistant Controller Drugs/Assistant Drug Analyst in her own pay and grade. Another seniority list was issued in the year 2014, in which, based on the retrospective promotion, the petitioner was shown senior to the respondent no.2. The seniority list was issued despite the objections filed by the respondent no.2. She has questioned the seniority list in SWP no.1054/2014, which is also pending adjudication before the Jammu Wing of this Court.

9. I have heard the learned counsel for the parties and considered the matter.

10.The petitioner was appointed as Drug Inspector in DFCO in the year 1989. She was promoted as Senior Drug Inspector in the year 1992. She was promoted on incharge basis as Assistant Drug Controller/ Assistant Drug Analyst on 01.01.2002.

11.The services of the employees of DFCO, including the petitioner and the respondent no.2, were governed by the Health and Family Welfare Rules till the Drug Control Rules of 1997 were promulgated vide SRO 56 dated 03.02.1997. In terms whereof, the eligibility criteria fixed for the promotion/appointment of the Assistant Drug Controller/Assistant Drug Analysts were as under: 

        (i)     20% by direct recruitment
        (ii)    80% by promotion from amongst Senior Scientific Officers

and Senior Drug Inspectors, Instrument Technicians in the following ratio:

a) Senior Scientific Officer 20%
b) Senior Drug Inspector/Instrument Technician 60%

12.The Rule 5 provided that in case the suitable candidates from amongst the feeding service for the promotion to the post of the SWP no.2810/2015 Page 13 of 41 Assistant Controller Drug/Assistant Drug Analyst were not available, the posts would be filled up by direct recruitment and vice- versa with the prior approval of the Public Service Commission. On the basis of the recommendations of the Public Service Commission, the service of the petitioner was confirmed as the Assistant Controller Drug/Assistant Drug Analyst, vide Government Order no.265-HME of 2008 dated 25.03.2008. The petitioner's appointment was made effective from 30.06.2002, i.e. the date from which she was promoted in her own pay and grade to the said post. The respondent no.2 did not figure in the said order. She has been appointed as Assistant Controller Drug/Assistant Drug Analyst as a direct recruit against the post available in the year 2003, vide Government Order no.260-HME of 2003 dated 20.03.2003. Shri Nazir Ahmad Wani was also appointed on the said date.

13.Earlier as well a bunch of writ petitions, being SWP nos.1654/2009, 02/2007, and 1619/2006, filed by Shri Nazir Ahmad Wani and the respondent no.2, was decided by a Bench of this Court vide judgement dated 29.07.2010. Two questions were framed and squared off by this Court as to the outlook of this Court the answer to these questions set at rest the controversy involved in those writ petitions. The questions were:

(i) Whether posts of Assistant Controller Drugs/Assistant Drug Analysts were available in promotional quota on the dates wherefrom the private respondents were regularised vide Government order no.265-HME of 2008 dated 25.03.2998
(ii) Whether the respondents 1&2 while directing retrospective regularisation of private respondents as Assistant Controller Drugs/Assistant Drug Analyst exceeded the promotional quota.
SWP no.2810/2015 Page 14 of 41

14.After verbose discussion, this Court held that the retrospective effect to the promotion of Shri R.L.Dass and five others, was governed by the Service Recruitment Rules of 1970 and the Rules of 1997 did not stand in the way of the respondent department to order the regularisation retrospectively, more particularly when the regularisation was made strictly in compliance of the judgement dated 03.11.2001 delivered in SWP no.256/2000. It was unequivocally held that Ms Lotika Khajuria (respondent no.2 herein) and Shri Nazir Ahmad Wani opted for the direct recruitment route and therefore S/Shri Ashok Gupta, Satish Gupta, Ms Irfana and S.L. Bhat, continued to work as the Assistant Drug Controllers in their own pay and grade pending clearance from the Departmental Promotion Committee/Public Service Commission. Ms Lotika Khajuria and Shri Nazir Ahmad Wani, it was, thus, held, cannot claim the seniority earlier to the date of their appointment i.e. 20th March 2003. It was also held that the respondent department did not exceed the promotion quota nor did the private respondents usurp the quota. This Court lastly held that Ms Lotika Khajuria and Shri Nazir Ahmad Wani belonged to the different source and they cannot claim any right to question the regularisation of the ad hoc/stop gap promotees against the promotion quota.

15.The matter went in the Letters Patent Appeal, bearing LPA(SW) no.11/2015 against the judgement dated 24.11.2014 passed in SWP no.2878/2014 titled Lotika Khajuria v. State and another. The Division Bench of this Court passed the following directions while disposing of LPA(SW) nos.11/2015 and 01/2015:

a. The State Public Services Commission shall, immediately after it is constituted, accord consideration to the proposal received from respondents for filling up SWP no.2810/2015 Page 15 of 41 the posts of Deputy Controller, Drugs and Food Control Organization on substantive basis and conclude the matter latest by eight weeks after the Commission is constituted.

b. The respondents, once the posts of Deputy Controllers are filled up on regular basis shall accord consideration to the eligible Deputy Drugs Controllers for filling up the post of Controller, Drugs and Food Control Organization, and complete the process within eight weeks, after Deputy Drug Controllers are in place on substantive basis.

c. The respondents shall within four weeks, from today, accord consideration to all the In-charge Drugs Deputy Controllers in accordance with the rules, regulations, Government Instructions issued in this behalf, for placement of one of them as Incharge Controller, Drugs and Food Control Organization and the officer so placed shall hold such position till the State Government on recommendation of PSC takes a decision as regards filling of posts of Deputy Controllers on substantive basis.

d. The respondents for the intervening period i.e. the date posts of the Deputy Drug Controller are filled up on Substantive basis and the date Post of Controller Drugs is so filled up, shall give the stop-gap charge of Controller Drugs to senior most Deputy Drug Controller. However, this arrangement shall not extend beyond a period of Eight weeks, and as by that time Controller Drugs must necessary be in place."

SWP no.2810/2015 Page 16 of 41

16.The learned counsel for the petitioner states that while implementing the directions of the Division Bench of this Court, in aforesaid LPA, the Government has unfairly made the appointment of the respondent no.2 as Incharge Controller, DFCO, vide Government order no.817-HME of 2015 dated 22.12.2015, on the pretext of the interim direction dated 04.10.2012, passed in SWP no.2220/2012. He also strenuously argues that while taking refuge under the interim direction, the respondent department has violated the final judgement passed by the Division Bench of this Court in LPA(SW) no.11/2015, besides in violation of the seniority. He also draws attention of this Court to the stand taken by the respondent no.1 in its Reply that the respondent no.2 has been appointed as the Controller, DFCO, on the incharge basis in view of the interim direction. He vehemently avers that based on the writ issued by the learned Single Bench as also the judgement of the Division Bench, the respondent department is under obligation to fill up the post of the Controller, DFCO, on the basis of the seniority and for that matter, the petitioner is senior to the respondent no.2, thus, entitled to be given the charge of the Controller, DFCO. The decision/outcome of the aforementioned writ petitions and appeal is binding on both the petitioners as well as the respondents inasmuch as it is not necessary in the law that the petitioner or the private respondent should have been parties in those cases. In furtherance to this submission, learned counsel also strenuously avows that the learned Single Bench and the learned Division Bench, while dealing with the controversy that has been again scooped up by the respondents while issuing the impugned order, have declared the law qua the determination of the seniority and it is no more res integra SWP no.2810/2015 Page 17 of 41 for the respondents to do away with the judgements rendered by the learned Single Bench as also the Division Bench.

17.From the above discussion, the controversy constricts to the application of the judgement(s) passed by the learned Single Bench and the Division Bench, and the legal position laid down therefrom having binding impact on all concerned, including the petitioner and respondents herein. To better understand, it would be advantageous to have an exploration of the judicial pronouncements qua the application and bindingness of the settled law as a result of judicial pronouncement of the Court.

18.India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of the binding precedent is a cardinal feature of its jurisprudence. It used to be disputed that the Judges make the law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts. "There was a time: observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law--They only declare it ........ But we do not believe in fairy tales anymore"

The Judge as law Maker" p. 22." In the countries, such as the United Kingdom, where the Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role played by the judicial law making is limited. In the first place the function of the courts is restricted to the interpretation of laws made by the Parliament, and the courts have no power to question the validity of Parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful. In the second place, the law enunciated in every decision of the courts in SWP no.2810/2015 Page 18 of 41 England can be superseded by an Act of Parliament. As Cockburn CJ. observed in Exp. Canon Selwyn, [1872] 36 JP 54:
"There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any Court of Law".

19.And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779 referred to a Parliamentary statute as "the highest form of law .....which prevails over every other form, of law." The position is substantially different under a written Constitution, such as the one which governs us. The Constitution of India, which represents the Supreme Law of the land, envisages the three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. Broadly, while the Parliament and the State Legislature in India enact the law and the Executive government implements it, the judiciary sits in the judgment not only on the implementation of the law by the Executive but also on the validity of the Legislation sought to be implemented. One of the functions of the superior judiciary in India is to examine the competence and validity of the legislation, both in point of the legislative competence as well as its consistency with the Fundamental Rights. In this regard, the courts in India possess a power not known to the English Courts. Where a statute is declared invalid in India, it cannot be reinstated unless the constitutional sanction is obtained, therefore, by a constitutional amendment or an appropriately modified version of the statute is enacted, which accords with the constitutional prescription. The range of the judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even SWP no.2810/2015 Page 19 of 41 an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution. [See: His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, 1973 Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj Narain (1976) 2 SCR 347; Minerva Mills Ltd. and others v. Union of India and others (1980) 2 SCC 591; and S.P. Sampath Kumar etc. v. Union of India and Ors., (1987) 1 SCR 435. With this impressive expanse of the judicial power, it is only the right that the superior courts in India should be conscious of the enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system, the law declared it is, by Article 141 of the Constitution, binding on all the courts within the territory of India.

20.Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by the Courts should be certain, clear and consistent. It is commonly known that the most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in the future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law. The doctrine of the binding precedent has the merit of promoting a certainty and consistency in the judicial decisions, and enables an organic development of the law, besides providing the assurance to the individual as to the consequence of the transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of the legal principle in the decisions of a Court. But like all the principles SWP no.2810/2015 Page 20 of 41 evolved by man for the regulation of the social order, the doctrine of the binding precedent is circumscribed in its governance by the perceptible limitations, the limitations arising by reference to the need for the readjustment in a changing society, a readjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that "the life of the law has not been logic it has been experience". Oliver Wendell Holmes, "The Common Law" p. 5 and again when he declared in another study that Oliver Wendell Holmes, "Common Carriers and the Common Law", (1943) 9 Curr. L.T. 387, 388, "the law is forever adopting new principles from life at one end," and "sloughing off" old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of the new extra-legal propositions emerging from the experience to serve as premises, or by the experience-guided choice between the competing legal propositions, rather than by the operation of the logic upon the existing legal propositions, that the growth of the law tends to be determined. Julius Stone, "Legal Systems & Lawyers Reasoning", pp. 58-59.

21.The legal compulsions cannot be limited by the existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting the judicial scrutiny and the judicial choice-making, which could well affect the validity of the existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among the competing propositions of law, or the competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness", but also among the propositions from outside the SWP no.2810/2015 Page 21 of 41 ruling law, corresponding to the empirical knowledge or accepted values of the present time and the place, relevant to the dispensing of the justice within the new parameters.

22.The universe of the problems presented for the judicial choice- making at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of the past judicial choice may be large. Yet the areas newly presented for still further choice, because of changing social, economic and technological conditions, are far from inconsiderable. It has also to be remembered, that the many occasions for the new options arise by the mere fact that no generation looks out on the world from quite the same vantage point as its predecessor, nor for the matter with the same perception. A different vantage-point or a different quality of perception often reveals the need for the choice-making where formerly no alternatives, and no problems at all, were perceived. The extensiveness of the areas for the judicial choice at a particular time is a function not only of the accumulation of the past decisions, not only of the changes in the environment, but also of new insights and perspectives both on old problems and on the new problems thrown up by the changes entering the cultural and social heritage.

23.Not infrequently, in the nature of things there is a gravity-heavy inclination to follow the groove set by precedential law. Yet a sensitive judicial conscience often persuades the mind to search for a different set of norms more responsive to the changed social context. The dilemma before the Judge poses the task of finding a new equilibrium, prompted not seldom by the desire to reconcile the opposing mobilities. The competing goals, according to Dean Roscoe Pound, invest the Judge with the responsibility "of proving to mankind that the law was something fixed and settled, whose SWP no.2810/2015 Page 22 of 41 authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires. [Roscoe Pound, "an Introduction to the Philosophy of Law" p. 19]. The reconciliation suggested by Lord Reid in "The Judges as Law Maker" pp. 25-6, lies in keeping the both objectives in view, "that the law shall be certain, and that it shall be just move with the times." An elaboration of his opinion is contained in Myers v. Director of Public Prosecutions, L.R. 1965 A.C. 1001, where he expressed the need for change in the law by the court and the limits within which such change could be brought about. He said:

"I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty."

24.Whatever the degree of the success in resolving the dilemma, the Court would do well to ensure that although the new legal norm chosen in response to the changed social climate represents a departure from the previously ruling norm, it must, nevertheless carry within it the same principle of certainty, clarity and stability. The profound responsibility which is borne by the Court in its choice between earlier established standards and the formulation of a new code of norms is all the more sensitive and significant because the response lies in relation to a rapidly changing social and economic society. In a developing society, such as India, the law SWP no.2810/2015 Page 23 of 41 does not assume its true function when it follows a groove chased amidst a context, which has long since crumbled. There will be found among some of the areas of the law norms selected by a judicial choice educated in the experience and values of a world, which passed away forty years ago. The social forces, which demand the attention in the cauldron of the change from which a new society is emerging, appear to call for the new perceptions and the new perspectives. The recognition that the times are changing and that there is occasion for a new jurisprudence to take birth, is evidenced by what the Supreme Court said in The Bengal Immunity Company Limited v. The State of Bihar and others (1955) 2 SCR 603, when it observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of the changing times. The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of the binding precedent, and therefore, the certainty and finality in the law, while permitting the necessary scope for the judicial creativity and the adaptability of the law to the changing demands of the society. The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court overturn its own pronouncements.

25.In the examination of this question it would perhaps be appropriate to refer to the response of other jurisdictions, especially those with which the judicial system in India has borne the historical relationship. The House of the Lords in the England provides the extreme example of a judicial body which disclaimed the power to overrule itself. It used to be said that the House of the Lords did SWP no.2810/2015 Page 24 of 41 never overrule itself but only distinguished its earlier decisions. An erroneous decision of the House of Lords could be set right only by an Act of Parliament. [See: Street Tramways v. London County Council, [1898] A.C. 375 and Radcliffe v. Ribble Motor Services Ltd., [1939] A.C. 215,245]. Apparently bowing to the pressure of a reality forced upon it by the reason of a rapidly gathering change in the socio-economic structure, on 26 July, 1966, Lord Gardiner, L.C., made the following statement on behalf of himself and the Lords of the Appeal in Ordinary:

"Their lordship regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal Law."

26.Since then the House of the Lords has framed the guidelines in a series of the cases decided up to 1975 and the guidelines have been summarised in Dr. Alan Paterson's "Law Lords" 1982: pp. 156-157. He refers to the several criteria articulated by Lord Reid in those cases.

1) The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the 'use sparingly' criterion) (Jones v. Secretary of State for Social Services, [1972] A.C. at 966.

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2) A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations' criterion) (Ross Smith v. Ross-Smith, [1963] A.C. 280, 303 and Indyka v. Indyka, [1969] I A.C. 33, 69.)

3) A decision concerning the questions of the construction of the statute or other documents ought not to be overruled except in the rare and exceptional cases (the 'Construction' criterion) Jones, at

966.

4) (a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it (the 'unforseeable consequences' criterion) (Steadman v. Steadman, [1976] A.C. 536,542).

(b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a comprehensive reform of the law. Such changes are best done 'by legislation following on a wide survey of the whole field' (the 'need for comprehensive reform' criterion) (DPP v. Myers, [1965] A.C. 1001, 1022; Cassell v. Broome, [1972] A.C. 1027, 11086 and Haughton v. Smith, [1975] A.C. 476,500).

5) In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion) Knuller v. DPP, [1973] A .C. 435,455;

6) A decision ought to be overruled if it causes such great uncertainty in practice that the Parties' advisers are unable to give any clear indication as to what the courts will hold the law to be SWP no.2810/2015 Page 26 of 41 (the 'rectification of uncertainty' criterion) Jones, at 966; Oldendroll & Co. v. Tradex Export, S.A. 1974 479,533,535.

7) A decision ought to be overruled if .in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded' criterion) ibid Conway v. Rimmer, [1968] A.C. 910,938. Dr Paterson noted that between the years 1966 and 1988 there were twenty-nine cases in which the House of Lords was invited to overrule one of its own precedents, that the House of Lords did so in eight of them, while in a further ten cases at least one of the Law Lords was willing to overrule the previous House of Lords precedent. In a considerable number of other cases, however, the Law Lords seemed to prefer to distinguish the earlier decisions rather than overrule them.

27.The High Court of the Australia, the highest Court in the Commonwealth, has reserved to itself the power to reconsider its own decision, but has laid down that the power should not be exercised upon a mere suggestion that some or all the members of the later Court would arrive at a different conclusion if the matter were res integra. In the Tramways case, [1914] 18 C.L.R. 54, Griffith, C.J., while doing so administered the following caution:

"In my opinion, it is impossible to maintain as an abstract proposition that Court is either legally or technically bound by previous decisions. Indeed, it may, in a proper case, be its duty to disregard them. But the rule should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a mere suggestion, that some or all of the members of the later Court SWP no.2810/2015 Page 27 of 41 might arrive at a different conclusion if the matter was res integra. Otherwise there would be great danger of want of continuity in the interpretation of law."

28.In the same case, Barton, J. observed at p. 69:

" ..... I would say that I never thought that it was not open to this Court to review its previous decisions upon good cause. The question is not whether the Court can do so, but whether it will, having due regard to the need for continuity and consistency in the judicial decision. Changes in the number of appointed Justices can, I take it, never of themselves furnish a reason for review ..... But the Court can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an overruling is that a decision is manifestly wrong and its continuance is injurious to the public interest".

29.The Judicial Committee of the Privy Council also took the view that it was not bound in the law by its earlier decisions, but in In re Compensation to Civil Servants, L.R. 1929 A.C. 242; A.I.R. 1929 P.C. 84, 87, it declared that it "would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a similar issue for determination" and reiterated that reservation in the Attorney-General of Ontario v. The Canada Temperance Federation, L.R. 76 Q.A. 10 and Phanindra Chandra Neogy v. The King [1953] SCR 1069.

30.These cases from England, Australia and the United States were considered by the Supreme Court in The Bengal Immunity Company Limited case (supra), perhaps the first recorded instance of the Supreme Court in this country being called upon to consider whether it could overrule an earlier decision rendered by it. A Bench of Seven Judges assembled to consider whether the majority decision of a Constitution Bench of Five Judges in State of Bombay v. The United Motors (India) Ltd [1953] S.C.R. 1069, should be reconsidered. The Four Judges of the Bench of Seven said it should SWP no.2810/2015 Page 28 of 41 and voted to overrule the majority decision in the United Motors, (supra). The remaining three voted to the contrary. Das, Acting C.J., speaking for himself and on behalf of Bose, Bhagwati and Jafar Imam, JJ, preferred the approach adopted by the United States Supreme Court since, in the view of that learned Judge, the position in India approximated more closely to that obtaining in the United states rather than to the position in England, where Parliament could rectify the situation by a simple majority, and to that in Australia, where the mistake could be corrected in appeal to the Privy Council. The learned Judge observed: "There is nothing in our Constitution which pre- vents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." And reference was made to the circumstance that Article 141 of the Constitution made the law declared by the Supreme Court binding on all Courts in India. Speaking with reference to the specific case before the Court, the learned Judge referred to the far-reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and that the error committed in the earlier decision would result in perpetuating a tax burden erroneously imposed on the people, giving rise to a consequence "manifestly and wholly unauthorised." The learned Judge observed:

"It is not an ordinary pronouncement declaring the rights of two private individuals inter se. It involves an adjudication on the taxing power of the States as against the consuming public generally. If the decision is erroneous, as indeed we conceive it to be, we owe it to the public to protect them against the illegal tax burdens which the States are seeking to impose on the strength of that erroneous recent decision".
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31.Cautioned that the Court should not differ merely because a contrary view appeared preferable, the learned Judge affirmed that "we should not lightly dissent from a previous pronouncement of this Court." But if the previous decision was plainly erroneous, he pointed out, there was a duty on the Court to say so and not perpetuate the mistake. The appeal to the principle of stare decisis was rejected on the ground that (a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and (b) the doctrine of stare decisis was not an inflexible rule, and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof. Since then the question as to when should the Supreme Court overrule its own decision has been considered in several cases. Relying on the Bengal Immunity case, Khanna, J. remarked that certainly in the law, which was an essential ingredient of the Rule of Law, would be considerably eroded if the highest court of the land lightly overruled the view expressed by it in earlier cases. One instance where such overruling could be permissible was a situation where contextual values giving birth to the earlier view had altered substantially since.

32.In Manganlal Chhaganlal (P) Ltd v. Municipal Corporation of Greater Bombay and others, [1975] 1 SCR 1, he explained:

"Some new aspects may come to light and it may become essential to cover fresh grounds to meet the new situations or to overcome difficulties which did not manifest themselves or were not taken into account when the earlier view was pro- pounded. Precedents have a value and the ratio decidendi of a case can no doubt be of assistance in the decision of future cases. At the same time we have to, as observed by Cardozo, guard against the notion that because a principle has been SWP no.2810/2015 Page 30 of 41 formulated as the ratio decidendi of a given problem, it is therefore to be applied as a solvent of other problems, regardless of consequences, regardless of deflecting factors, inflexibly and automatically, in all its pristine generality (see Selected Writings, p. 31). As in life so in law things are not static."

33.In Lt. Col. Khajoor Singh v. The Union of India & another [1961] 2 SCR 828, the majority of the Supreme Court emphasised that the court, should not depart from an interpretation given in an earlier judgment of the court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong. In Keshav Mills Company v. Commissioner of Income Tax [1965] 2 SCR 908, the Supreme Court observed that a revision of its earlier decision would be justified if there were the compelling and substantial reasons to do so. In Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933, the Supreme Court laid down the test: 'Is it absolutely necessary and essential that the question already decided should be reopened?', and went on to observe: 'the answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view.' There can be no doubt, as was observed in Girdhari Lal Gupta v. D.H.Mill [1971] 3 SCR 748, that where an earlier relevant statutory provision has not been brought to the notice of the court, the decision may be reviewed, or as in Phillani Investment Corporation Ltd v. I.T.O. 'A' Ward, Calcutta & another, [1972] 2 SCR 502, if a vital point was not considered. A more compendious examination of the problem was undertaken in Keshav Mills Company case (supra) where the Court pointed out:

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"It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:-- What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of the Bench of five learned Judges of this Court."

34.Much importance has been laid on observing the finality of the decisions rendered by the Constitution Bench of the Supreme Court, and in Ganga Sugar Company v. State of Uttar Pradesh [1980] 1 SCR 769, the Court held against the finality only where the subject was 'of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong'. It is not necessary to refer to all the cases on the point. The broad guidelines are easily deducible from what has gone before. The possibility of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of the law may make a consensual pattern possible. But that lies in the future.

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There was some debate on the question whether a Division Bench of the Judges is obliged to follow the law laid down by a Division Bench of a larger number of the Judges. Doubt has arisen on the point because of the certain observations made by O. Chinnappa Reddy, J. in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra AIR 1985 SC 23. Earlier, a Division Bench of the two Judges, of whom he was one, had expressed the view in T.V. Vatheeswaran v. The State of Tamil Nadu, AIR 1983 SC 361, that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle a person under sentence of death to invoke Article 21of the Constitution and demand the quashing of the sentence of death. This would be so, he observed, even if the delay in the execution was occasioned by the time necessary for filing an appeal or for considering the reprieve of the accused or some other cause for which the accused himself may be responsible. This view was found unacceptable by a Bench of three Judges in Sher Singh & others v. State of Punjab, AIR 1983 SC 465, where the learned Judges observed that no hard and fast rule could be laid down in the matter. In direct disagreement with the view in T.V. Vatheeswaran case (supra), the learned Judges said that account had to be taken of the time occupied by proceedings in the High Court and in the Supreme Court and before the executive authorities, and it was relevant to consider whether the delay was attributable to the conduct of the accused. As a member of another Bench of two Judges, in Javed Ahmed Abdul Hamid Pawala, case (supra), O. Chinnappa Reddy, J. questioned the validity of the observations made in Sher Singh case (supra) and went on to note, without expressing any concluded opinion on the point, that it was a serious question "whether a Division Bench of three Judges could SWP no.2810/2015 Page 33 of 41 purport to overrule the judgment of a Division Bench of two Judges merely because there is larger than two. The Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. [Vide Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All ER 293]. It may be otherwise where a Full Bench or a Constitution Bench does so." It is pertinent to record here that because of the doubt cast on the validity of the opinion in Sher Singh case (supra), the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of the Five Judges, and in Triveniben v. State of Gujarat AIR 1989 SC 142, the Constitution Bench overruled T.V. Vatheeswaran case (supra). What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of the work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in the Divisions, each Division being constituted of the Judges whose number may be determined by the exigencies of the judicial need, by the nature of the case including any statutory mandate relative thereto, and by SWP no.2810/2015 Page 34 of 41 such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of the inconsistent decisions on the points of law by the different Division Benches that the rule has been evolved, in order to promote the consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of the Judges. This principle has been followed in India by the several generations of the Judges. I may refer to a few of the cases on the point. In John Martin v. The State of West Bengal [1975] 3 SCR 211, a Division Bench of the three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal [1975] 1 SCR 778 decided by a Division Bench of the Five Judges, in preference to Bhut Nath Mate v. State of West Bengal AIR 1974 SC 806, decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Shri Raj Narain [1976] 2 SCR 347, Beg, J. held that the Constitution Bench of the Five Judges was bound by the Constitution Bench of the Thirteen Judges. In Ganapati Sitaram Balvalkar & another v. Waman Shripad Mage (Since Dead) through LRs [1981] 4 SCC 143, the Supreme Court expressly stated that the view taken on a point of law by a Division Bench of the Four Judges of the Supreme Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal [1975] 1 SCR 127, the Supreme Court specifically observed that where the view expressed by two different Division Benches of the Supreme Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. The SWP no.2810/2015 Page 35 of 41 Supreme Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. etc. v. The State of Gujarat & Ors., [1975] 2 SCR 317, that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other-wise of the views of the other. The principle was reaffirmed in Union of India & others v. Godfrey Philips India Ltd [1985] 4 SCC 369, which noted that a Division Bench of two Judges of the Supreme Court in Jit Ram v. State of Haryana [1980] 3 SCR 689 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P. [1979] 2 SCR 641 on the point whether the doctrine of the promissory estoppel could be defeated by invoking the defence of the executive necessity, and holding that to do so was wholly unacceptable; the reference was made to the well-accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

35.From the above verbose discussion, I am of the opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of the 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.

36.Be that as it may, the contention of some of the learned counsel appearing on behalf of the parties, that as some of them were not party in the earlier writ petitions/appeals, the judgment(s) rendered therein were not binding on them, is specious and phoney. It is not necessary in law that the petitioners or for that matter the parties SWP no.2810/2015 Page 36 of 41 hereunto this controversy should have been parties in the aforesaid cases. It is well settled law that generally legal positions laid down by the Court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given. The subject-matter of instant writ petition has been dealt with and put at rest not only by the learned Single Judge in SWP nos.1654/2009 c/w SWP nos. 02/2007 & 1619/2006, but also by the learned Division Bench in LPA(SW) no.11/2015 c/w LPASW no.01/2015. It has been unequivocally made clear that: the State Public Service Commission shall consider the proposal received from the respondents for filling up the posts of the Deputy Controller, Drugs and Food Control Organisation, on the substantive basis; the respondents, once the posts of the Deputy Controllers are filled up on the regular basis, shall consider the eligible Deputy Drugs Controllers for filling up the post of Controller, Drugs and Food Control Organisation; the respondents shall consider all the incharge Drugs Deputy Controllers in accordance with the rules, regulations, Government instructions, issued in this behalf, for placement of one of them as Incharge Controller, Drugs and Food Control Organisation and the officer so placed shall hold such position till the State Government on the recommendation of the Public Service Commission takes a decision as regards filling up of the posts of the Deputy Controllers on the substantive basis; and the respondents for the intervening period, i.e. the date the posts of the Deputy Drug Controller are filled up on the substantive basis and the date the post of the Controller Drugs is so filled up, shall give the stop-gap charge of the Controller, Drugs, to the senior most Deputy Drug Controller.

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37.During the course of argumentation one more debateable contention came about for discourse that the judgement(s) and order(s) rendered by both the learned Single Judge and the Division Bench are per incuriam and also sub silentio. This assertion requires survey of the expression "per incuriam". According to the Black's Law Dictionary (Fourth Edition, 1891), per incuriam, means through inadvertence. The word 'incuria' literally means 'carelessness', as observed by the House of the Lords in Young v. Bristol Aeroplane Company Limited (supra). In practice per incuriam appears to mean per ignoratium. The purport of the doctrine of per incuriam is that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute, or of a rule having the force of a statute. Lord Godard, C.J., in Huddersfield Police Authority v. Watson, 27 (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 'Per incuriam' means 'through want of care'; a decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam, that is, without the Court's attention having been drawn to the relevant authorities or the statutes. The 'per incuriam' rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. An important caveat that is required to be borne in the mind at all times is that the non-reference of the earlier decisions in the judgment does not indicate non- consideration of those cases in the judgment. A decision/judgment can be per incuriam, when any provision in a statute, rule or regulation, was not brought to the notice of the court. A decision / judgment can also be per incuriam if it is not possible to reconcile SWP no.2810/2015 Page 38 of 41 its ratio with that of a previously pronounced judgment of a co-equal or larger bench; or if the decision of a High Court is not in consonance with the views of the Supreme Court. It is a settled rule that if a decision has been given per incuriam, the court can ignore it.

38.In the case of Buta Singh v. Union of India (1995) 5 SCC 284, it was held that, when a two-judges Bench without noticing or ignoring the binding decision of a three-judges Bench renders a decision, then such a decision is per incuriam. Similarly, in the case of K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395, it was held that, when a decision is rendered by the High Court without having regard to the relevant line of decisions rendered by the Supreme Court, then such a decision of the High Court is per incuriam. In the case of Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh) (1990) 3 SCC 682, it was held that the problem of judgment per incuriam when it actually arises should present no difficulty as the Supreme Court of India can lay down the law afresh, if two or more of its earlier judgments cannot stand together. It is important to note that the non-consideration of an irrelevant provision cannot make the ratio of the decision per incuriam. In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd, (2001) 6 SCC 356, it was held that unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment per incuriam; it has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam. In the case of Jai Singh v. M.C.D. (2010) 9 SCC 385, it was held that, judicial SWP no.2810/2015 Page 39 of 41 discipline and propriety demands that, there should be consistency in the views as regards the decisions rendered by co-equal benches on the same issue; however, subsequent bench is to follow the decision rendered by the earlier Coordinate Bench.

39.It is important to take note of the ratio laid down in the case of K.G. Derasari v. Union of India (2001) 10 SCC 496. In this case the Supreme Court categorically observed that if the tribunal has not looked into the previous decision of the Supreme Court which is the law of the land and by which it was bound, the remedy available to the aggrieved person was to file an application for review. In the case of Chandra Prakash v. State of U.P. AIR 2002 SC 1652, it was held that in case a two-judge Bench finds fault with the decision rendered by a three-judge bench, then, in that case, the two-judge Bench must restrain itself from referring the matter to the Constitution Bench, as judicial discipline and propriety as also the doctrine of binding precedent demands that a two-judge Bench must follow the decision given by a three-judge Bench. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgement of a larger strength is binding on a judgement of smaller strength but the judgement of a co-equal strength is also binding on a Bench of judges of co-equal strength. Having said so, the doctrine of binding precedent is of the utmost importance in the administration of our judicial system. It promotes the certainty and consistency in the judicial decisions. The judicial consistency promotes the confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of the Court.

40.From the above effusive survey, it is luculent that a judicial decorum and discipline is paramount and, therefore, a coordinate Bench has SWP no.2810/2015 Page 40 of 41 to respect the judgments and orders passed by another coordinate Bench and a pronouncement of law by a Division Bench of the Court is binding on a Division Bench of the same or a smaller number of Judges as well, and in result such decision(s) rendered in SWP nos.1654/2009 c/w SWP nos. 02/2007 & 1619/2006, but also by the learned Division Bench in LPA(SW) no.11/2015 c/w LPASW no.01/2015, shall hold good qua the present case as well.

41.The cumulative effect of all that has been said and done above, is that the writ petition on hand is disposed of, by providing that whatever has been observed and held by the learned Single Bench in SWP nos.1654/2009 c/w SWP nos. 02/2007 & 1619/2006, and also by the learned Division Bench in LPA(SW) no.11/2015 c/w LPASW no.01/2015, is also applicable to the present case and the respondents shall proceed ahead in the matter in accordance with the decision rendered by the Division Bench of this Court in the aforementioned LPAs. No order as to costs.

( M. K. Hanjura ) Judge Srinagar 23.04.2018 Ajaz Ahmad SWP no.2810/2015 Page 41 of 41