Calcutta High Court
Lakshmi Kanta Kahar vs State Of West Bengal & Ors. on 30 November, 2000
Equivalent citations: (2001)1CALLT324(HC), 2000(2)CHN880
Author: P.K. Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT P.K. Chattopadhyay, J.
1. Petitioner herein has challenged the validity and/or legality of the panel prepared by the Selection Committee of Salipur Higher Secondary School, Haroa. 24 Parganas in respect of non-teaching Group-D post of the said School. According to the petitioner his name was sponsored by the Employment Exchange alongwith the eligible candidates. It has also been submitted by the petitioner that the name of the respondent No.5 was not sponsored by the Employment Exchange but he was allowed to appear before the Selection Committee at the Interview alongwith other eligible candidates duly sponsored by the Employment Exchange. Thereafter, a panel was prepared by the Selection Committee wherein the name of the respondent No.5 was placed at the first position. It has been submitted by the petitioner that the respondent No.5 appeared at the interview pursuant to an order passed by the learned single Judge of this Court.
2. According to the petitioner, in view of the Special Bench Judgment of this Court reported In 1998(2) CLJ, Page 1 (Debasis Dutta v. State of West Bengal) principles laid down in the case of Excise Superintendent v. K.B.N. Vlsheswar Rao. , do not apply in the matter of appointment of teaching and non-teaching staff in a Secondary School as recruitment of staff, both teaching and non-teaching, of a Secondary School should be made strictly in terms of the recruitment rules and no deviation therefrom is permissible.
3. Learned counsel for the petitioner submitted that respondent No.5 should not have been allowed to appear at the Interview before the Selection Committee as his name was not sponsored by the Employment Exchange in compliance of the provisions of the Recruitment Rules. It was further submitted on behalf of the petitioner that the panel is vitiated by irregular inclusion of the name of the respondent No.5 who was, according to the petitioner, not entitled to appear even at the interview before the Selection Committee in terms of the Recruitment Rules.
4. The petitioner has claimed that he has secured second position in the panel and is entitled to be appointed after re-casting the panel in question by deleting the name of respondent No.5 from the said panel as the said respondent No.5 was illegally permitted to appear at the interview inspite of not being sponsored by the Employment Exchange as per recruitment rules.
5. Learned Advocate for the petitioner submitted that the School Authority should not have allowed the respondent No.5 to appear before the Selection Committee at the Interview even after pronouncement of the aforesaid judgment of the Special Bench of the Hon'ble High Court at Calcutta in the matter of Debasis Dutta v. State of West Bengal (supra).
6. It has been further submitted by the learned Advocate of the petitioner that In view of the decision of Special Bench, D.I. of Schools could not have acted in terms of the order passed by the learned single Judge permitting the respondent No.5 to appear at the interview particularly when the said interview was held after the pronouncement of the Special Bench Judgment where the State Government is a party and the D.I. of schools is a responsible officer of the State Government.
7. The question that calls for consideration in this case is : what is effect of the order of the learned single Judge permitting the petitioner to appear in the interview particularly when the order of the learned single Judge has been implemented and given effect to. No appeal has been filed from the said order nor any proceeding for recalling, reviewing, setting aside or in any way modifying the said order. Subsequently the Special Bench of this Hon'ble Court in the case reported in 1998 Vol. 2 CLJ page 1 (Debasts Dutta v. State of West Bengal held that :
"No direction can be issued by this Court upon the Managing Committee of the School to allow any and every person to appear in the interviews although his name has not been sponsored by the Employment Exchange. The orders issued in this behalf by some of the benches of this Court do not lay down the correct law and must be overruled."
8. It is to be noted that the hearing before the Special Bench took place by virtue of a reference made by Samaresh Banerjea, J. and not from the said order with which we are concerned.
9. High Courts in India are Courts of Record, which means they have a right to determine their own Jurisdiction. As has been mentioned elsewhere in this judgment, it cannot be disputed that Calcutta High Court had the Jurisdiction to entertain the writ Application. Does the order passed by the learned single Judge of the High Court lose It's validity subsequently because it was based on a principle of law declared to be erroneous by a larger Bench but not in any appeal from the order in question? in this connection we may profitably refer to the view of the Supreme Court in the case :
"The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every Judicial function. The characteristic attribute of a Judicial act is that it binds whether it be right or it be wrong. In Malkarjun v. Narahari, (1900)27 Ind App 216 the executing Court had quite wrongly, held that a particular person represented the estate of the deceased judgment-debtor and put the properly for sale in execution. The Judicial committee said ;
"In dong so, the Court was exercising its jurisdiction. It made a sad mistake, it is true: but a Court has Jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course' prescribed by law for setting matters right and if that course is not taken the decision, however wrong, cannot be disturbed."
In the course of the arguments there were references to the Antsminic case (1969-1 All ER208). In my view, reliance on the anisminic principle as wholly misplaced in this case. That case related to the powers of Tribunals of limited jurisdiction. It would be a mistake of first magnitude to import these inhibitions as to Jurisdiction into the concept of the jurisdiction of Superior Courts. A finding of a Superior Court even on a question of its own Jurisdiction, however grossly erroneous it may, otherwise, be, is not a nullity; nor one which could at all be said to have been reached without Jurisdiction susceptible to be Ignored or to admit of any collateral attack. Otherwise, the adjudications of Superior Courts would be held-up to ridicule and the remedies generally arising from and considered concomitants of such classification of Judicial errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to be stability of administration of Justice."
10. In the same case the Supreme Court further observed at paragraph 126 "a Judgment, inter parties, is final and concludes the parties".
11. In the same case, the Supreme Court has given some examples of cases where motions to set aside judgments are permitted.
12. In paragraph 130 and 131 the Supreme Court states as follows :
" 130. But in certain cases, motions to set aside Judgments are permitted where, for instance a Judgment was rendered in ignorance of the fact that a necessary party has not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary-party had died and the estate was not represented. Again a Judgment obtained by fraud could not subject to an action for setting it aside. Where such a Judgment obtained by fraud tended to prejudice a non-party, as in the case of Judgments in rem such as for divorce, or jactitation or probate etc. even a person, not eo nomine a party to the proceedings, could seek a setting aside of the judgment.
Where a party has had no notice and a decree is made against him, he can approach the Court for setting aside the decision. In such a case the party is said to become entitled to relief ex debito Justltlae, on proof of the fact that there was no service. This is a class of cases where there is no trial at all and the Judgment is for default. D.N. Gordan, in his "Actions to set aside judgments." (1961) 77 Law Quarterly Review 358) says :
"The more familiar applications to set aside judgments are those made on motion and otherwise summarily. But these are judgments obtained by default, which do not represent a Judicial determination. In general, Judgments rendered after a trial are conclusive between the parties unless and until reversed on appeal. Certainly in general Judgments of Superior Courts cannot be overturned or questioned between the parties in collateral actions Yet there is a type of collateral action known as an action of review, by which even a Superior Court's judgment can be questioned, even between the parties, and set aside......"
Cases of such frank failure of natural justice are obvious cases where relief is granted as of right. Where a person is not actually served but is held erroneously, to have been served, he can agitate that grievance only in that forum or in any further proceeding therefrom. In Issac's case (198-1)3 All ER 140 Privy Council referred to :
"...... a category of orders of such a Court which a person affected by the order is entitled to apply to have set aside ex debito Justitiae in exercise of the inherent jurisdiction of the Court without needing to have recourse to the Rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make."
In the present case by the order dated 5-4-1984 () a five Judge bench set out, what according to it, was, the legal basis and source of Jurisdiction to order transfer. On 17.4.1984 (reported In AIR 1984 SC 1358) appellant's writ petition challenging that transfer as a nullity was dismissed. These orders are not which appellant is entitled to have set aside ex-debito Justitiae by another Bench. Reliance on the observations in Issac's case is wholly misplaced.
The decision of the Privy Council in Rajtinder Narain Rae v. Bijal Govind Singh. (1837-41)2 Moo Ind App 181 illustrates the point. Referring to the taw on the matter, Lord Brougham said :
"It is unquestionably the strict rule, and ought to be distinctly understood as such, that no cause in this Court can be re-heard and that an Order once made, that is, a report submitted to His Majesty and adopted, by being made an Order in Council, is final, and cannot be altered. The same is the case of the Judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parliament as it sometimes expressed, the only other Supreme Tribunal in this country. Whatever, therefore, has been really determined in these Courts must stand, there being no power of re-hearing for purpose of changing the Judgment pronounced; nevertheless, if by misprison in embodying the Judgments errors have been introduced, these Courts possess, by common law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in. The Courts of Equity may correct the Decrees made while they are in minutes; when they are complete they can only vary them by re-hearing; and when they are asigned and enrolled they can no longer be re-heard, but they must be altered, if at all, by Appeal. The Courts of new, after the term in which the Judgments are given can only alter them so as to correct misprisions. a power given by the Statutes of Amendment. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own Judgments and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of Judgments; or have supplied manifest defects, in order to enable the Decrees to be enforce, or have added explanatory matter, or have reconciled inconsistencies. But with the exception of one case in 1669, of doubtful authority, here, and another in Parliament of still less weight in 1642 (which was an Appeal from the Privy Council to Parliament, and at a time when the Government was in an unsettled state), no instance, It is believed, can be produced of a rehearing upon the whole cause, and an entire alteration of the Judgment once pronounced..."
131. The second class of cases where a Judgment is assailed for fraud, is illustrated by the Duchess of Kingston's case (1776)2 Smt. L.C. 644 (13th Ed.). In that case, the Duchess was prosecuted for bigamy on the allegation that she entered into marriage while her marriage to another person, a certain Hervey, was still subsisting. In her defence, the Duchess relied upon a decree of jactitation from an ecclesslastical Court which purported to show that she had never been married to Hervey. The prosecution sought to get over this on the allegation the decree was obtained in a sham and collusive, proceeding. The House of Lords held the facts established before Court rendered the decree nugatory and was incapable of supplying theat particular defence. De Grey C.J. said that the collusive decree was not be impeached from within; yet like all other acts of the highest authority, It is impeachable from without, although it is not permitted to show that the Court was mistaken. It may be shown that they were misled. Fraud which affected the Judgment was described by the learned Chief Justice as an "extrinsic collateral act, which vitiates the most solemn proceeidngs of Courts of justice".
13. In the case (Madan Mohaii Pathak v. Life Insurance Corporation and Ors.] one of the questions which came for consideration before the Supreme Court was whether the writ of mandamus Issued by the Calcutta High Court directing the Life Insurance Corporation to pay bonus for the particular year remained untouched and was not governed by the Life Insurance Corporation (Modification of Settlement of Claims) Act. It will appear from the facts of that case that after the Calcutta High Court directed payment of Bonus, the said Life Insurance Corporation (Modification of Settlement of Claims) Act was passed effecting certain retrospective alterations of factual or legal situation on the basis of which the judgment of Calcutta High Court had been delivered. In other words, the factual and legal foundations stood altered retrospectively by reason of the provisions of the said Life Insurance Corporation (Modification of Settlement of Claims) Act. In this back ground, Supreme Court pronounced as follows :
"If by reason of retrospective alteration of the factural or legal situation, the judgment is rendered erronlous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or Ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of Mandamus Issued by the Calcutta High Court and to pay annual cash bonus for the year 1st April, 1975 to 31st March, I97G to Class III and class IV employees."
14. In the case (Shiv Chander Kapoor v. Amar Base) the Supreme Court while considering the question of validity of an order passed by the controller under the provisions of Delhi Rent Control Act (59 of 1958), observed as follows :
"There is another aspect of the matter. The Controller's permission when granted to creat a limited tenancy under section 21 of the Act is presumed to be valid unless declared otherwise. It is, therefore, for the person assailing its validity to get such a declaration from a proper forum in a proper proceeding. Unless this is done, the order remains enforceable. The duty is clearly on the tenant himself of raise the plea of Invalidity and unless the order is declared invalid at his instance, its inforce ability cannot be doubted.
In Wade's Administrative Law, 6th, Edn. at pp. 351-353, there is an illuminating discussion of this topic. It has been pointed out that Void' is meaningless in an absolute sense; and 'unless the necessary proceedings are taken at law to establish the cause of Invalidity and to get it quashed or otherwise upset, It will remain as effective for its ostensible purpose as the most impeccable of orders'. In words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue".
15. Therefore in this case, as also in other cases, Supreme Court made it very clear that an order cannot be considered to be bad or invalid just because it is erroneous and the same principle applies even if the order is without jurisdiction.
16. In the case the Supreme Court was considering what would be the effect of a void order passed by an a administrative body. It should be remembered that orders passed by an administrative body stand on a much weaker, footing than an order passed by a High Court which being a Court of Record has a right to determine its own Jurisdiction. The Supreme Court made certain observation which are relevant in this context. Relevant portion of Paragraph 8 of the said Judgment reads as follows :
"......... Similarly, Wade and Forsyth in Administrative Law, Seventh Edn.. 1994. have stated the law thus at pp. 341-342 :
"......... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a wellknown passage Lord Radcliffe said :
'An order, even if not made in good faith, is still an act capable of legal consequence. it bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the Court. The necessity of recourse to the Court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."
17. Fazal All, J. speaking for the Constitution Bench of the Hon'ble Supreme Court In the case observed as follows :
"It is well settled that if a Ct. acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. to which it would lie if its order was with Jurisdiction."
18. The Judgment of the Constitution Bench was also referred to in the case .
19. From the aforesaid, it must be held that this Court had the Jurisdiction to entertain and try the writ petition. Even if it be held that the order of the learned single Judge was erroneous in fact or in law, the order is valid and binding. The fact that a Judgment is erroneous does not mean that the order passed therein is not binding. If that is so, it will be an invitation to the litigants to disobey orders of Court on the ground that the same is erroneous in law and as such not binding.
20. It has been contended that in view of the Judgment of the Special Bench reported in 1988 Vol. II CLJ Page 1 the judgment of the learned single Judge stands over-ruled.
21. However, one must remember the distinction between over-ruling a Judgment and setting aside a judgment and order. A judgment and order is set aside only in appeal or in a review or revision, as the case may be. In fact a Judgment and order can be set aside/modified in the manner following and no other :--
(a) Court passing the order recalls it on sufficient cause being shown or in exercise of it's inherent power; (if it applicable in the facts of the case)
(b) The Court passing the order recalls/modifies it upon review application being filed,
(c) The order is set aside on appeal:
(d) In special and rare cases, the order can be set aside on the ground of fraud in an Independent proceeding filed specifically for the purpose of challenging the order e.g. an ex-parte decree can be challenged by filing a separate suit on the ground that the decree had been obtained by fraudulent suppression of summons.
22. If a Judgment and order is set aside by adopting any of the modes mentioned above, only then it ceases to exist in the eye of law.
23. However, this is not the same as over-ruling ajudgment. Ajudgment is over-ruled when a Superior Court disagreed with the legal reasoning contained in a particular judgment. A judgment may be over-ruled specifically or implledly but an order of this Court cannot be set aside implledly in another proceeding.
24. In this case the Judgment, which is dis-approved by the Superior Court ceases to be "good law" can no longer be cited as a binding precedent. It however, does not mean that the order passed ceases to be valid. It continues to bind the parties and otherwise remains valid since the overruling of the Judgment does riot have the effect of setting aside the order. In the instant case the order passed by the learned single Judge has not and could not have been set aside ana, therefore, remains valid. No doubt the special Bench has disapproved of the reasoning on the basis of which the order had been passed but the order stands. The order was not Impugned in the proceeding before the Special Bench as mentioned before.
25. It cannot be contended that Just because ajudgment is erroneous the order is valid or of no effect. In this connection one can profitably repeat what Sabyasachi Mukharji, J. (as His Lordship then was) held In that the "authority to decide embodies a privilege to bind despite error, a privilege which is Inherent in and Indispensable to. every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong."
26. If the law had been otherwise it will lead to Judicial anarchy and chaos. Orders passed by High Courts all over India can be said to become of no effect and sought to be Ignored on the ground that the Supreme Court has delivered a recent judgment which is inconsistent with thousands of judgments and orders passed by various High Courts all over India.
27. This certainly cannot be so. In fact a judgment passed by a Court which is clearly inconsistent with the judgment of the Superior Court will bind the parties but it is liable to be set aside on appeal. If the parties do not file an appeal such order will continue to be binding.
28. The writ petitioner contends that respondent school authorities could not have allowed the respondent No.5 to appear in the interview since the order permitting the said respondent to appear in the interview was based on a reasoning disapproved in the judgment delivered by the Special Bench subsequently. However, that does not render the order of this Court invalid in any manner. It remained and still remains binding on the school authorities. The school authorities had no choice but to follow the order of this Court. The school authorities have not done anything illegal nor can it be said that the respondent No.5 had done anything illegal either. There is no case of fraud or lack of jurisdiction involved here.
29. It also cannot be contended that the respondent No.5 approached this Court fraudulently or obtained the order by practicing fraud or deceit.
30. The procedure followed by the writ petitioner is misconceived and unknown in law. The decisions of the Supreme Court in Gurdeep Singh v. State of J.K. and Prabhat Kumar Sharma v. State of U.P. and Ors. referred to and relied upon by the petitioner are not applicable in the facts of the present case. This Court can not sit in appeal against the said order of the learned single Judge. If the writ petition is allowed it would mean that whenever a Superior Court delivers a judgment one can reopen proceedings which can be said to be against the Superior Court's orders. This will open a floodgate of undesirable litigation and will unsettle a settled position. The order passed by a learned single Judge of this Hon'ble Court exercising his jurisdiction under section 115 of the Civil Procedure Code or under Article 227 of the Constitution of India will permit hundreds and thousands of litigants to file proceedings in the District Court for setting aside, recalling of orders based in proceeding unconnected with the judgment in question. The order passed by Division Bench will similarly permit litigants to file proceedings for setting aside orders of learned single Judge of this Hon'ble Court on the ground that a subsequent judgment of the Division Bench has taken a different view of the law.
31. It is to be noted that the Order XLVII Rule 1(2) (explanation) of the Civil Procedure Code reads as follows :
'The fact that the decision on a question of law on which the judgment of the Court is based has reversed or modified by the subsequent decision of a Superior Court in any other case, shall not be a ground for the review of such Judgment".
32. Although the Code of Civil Procedure is not specifically applicable to writ proceedings, the principles embodied are sound.
33. The Counsel for the petitioner has also relied on the case reported in (1999)2 Cal LT 158(HC): 1999 WBLR (Cal) 252 (Muktipada Matty v. State of West Bengal & Ors.) and in particular paragraph 4 thereof. Paragraph 4 of the said judgment reads as follows :
"In this view of the matter, the petitioner cannot be said to have appeared at the interview, on his own right Inasmuch as, the aforementioned order dated 17.7.97 passed by a learned single Judge of this Court, although had not been questioned by any other person, will be deemed to have overruled. Furthermore, the apex Court as also this Court in various other decisions clearly held that any appointment made in violation of the Recruitment Rules shall be void and nullity. Recruitment must be made strictly in terms of the procedure laid down in the Recruitment Rules framed by the Director of School Education in exercise of its power conferred upon it in clause (i) and (ii) of sub-rule (i) and clause (i) of sub-rule (4) of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969".
34. The Circumstances of and the points argued in Mukiipada Matty's case are entirely different and cannot advance the contention of the writ petitioner.
35. First of all, the judgment of the Hon'ble Supreme Court and the opinion of the Privy Council mentioned above concerning the validity of an order were not cited before the Division Bench nor were the same argued before the Division Bench. It is significant that nobody placed the aforesaid Supreme Court Ruling before the Division Bench pointing out the validity and effect of orders passed by Courts.
36. Furthermore, the Division Bench did not observe that any order passed in another proceeding stood set aside by virtue of the Judgment of the Special Bench. The Division Bench stated that the order of the learned single Judge was "overruled" (Emphasis Applied) meaning thereby the Judgment or reason. In view of the clear observations of the Hon'ble Supreme Court, the Division Bench obviously could not have set aside an order collaterally. Any such observations would have been contrary to the law laid down by the Supreme Court.
37. The differences in law between "set aside" and "overruled" has been mentioned above and as such it is apparent that in the facts of the present case, the order' of the learned single Judge not having been "set aside" in appeal or in any other competent or appropriate proceeding, continued to remain operative. Indeed, the school authorities would have committed contempt of this Hon'ble Court if they had not implemented the order. It would be a dangerous situation if a party to a legal proceeding is given the right or has to decide whether an order should be implemented or not because the reasons for passing the order had been directly, indirectly or impltedly overruled by a superior Court in another proceeding.
38. It has been argued that the appointment of the respondent No,5 is contrary to Rec'rultment Rules and as such void. It is to be noted that the respondent No.5 appeared in the Interview pursuant to the order of the learned single Judge. That order stands and has not been set aside. It was not even appealed against. It may be that the Special Bench took a different view of the legal position hut order remained and remains valid even now.
39. The petitioner cannot challenge the validity and legality of the said order of the learned single Judge in this proceeding. This Court cannot sit in appeal over the said order of the learned single Judge.
40. Therefore, the school authorities were bound in law to consider the candidature/application of the respondent No.5. Any other course of action would have amounted to violation of the order passed by the learned single Judge.
41. If after considering the application/candidature of the respondent No.5 the school authorities found him to be the fittest candidate, it was not open to them to deny him appointment to the post of non-teaching staff. Any other view will lead to manifest illegality and uncertainly.
42. Furthermore, the contention that the appointment of the respondent No.5 is illegal since it allegedly violates the Recruitment Rules, proceeds on the basis that the order of the learned single Judge, though judicially not set aside, should have been ignored by the school authorities. This is a dangerous path. How does a litigant gain right to decide that an order directing him to take certain steps can be ignored?
43. After the order of the learned single Judge was passed right of the parties were governed and regulated by that order even though some may call the order erroneous. Erroneous it may be (1 do not go into that question) but invalid it is not,
44. In any view of the matter the observations of the Division Bench are clearly obiter whereas I am bound by the clear and categorical pronouncement of various judgments of the Hon'ble Supreme Court and by the high persuasive authority of the opinion of the Privy Council.
45. For the aforesaid reasons, I do not find any merit in the present writ petition. In my opinion, the writ petition is mis-conceived and not maintainable and accordingly, the same is dismissed.
Having regard to the facts and circumstances of the present case, there will be, however, no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied on priority basis.
46. Petition dismissed ORDER The aforesaid judgment delivered in writ petition being W.P. No. 13830(W) 1998 will also govern this writ petition as the facts and the points of law are similar. Accordingly, this writ petition also fails and the same is dismissed.
In the facts and circumstances of the case, there will" be, however, no order as to costs.
Let a xerox certified copy of this order alongwith the judgment delivered in W.P. No. 13830 (W) of 1998 be made available to the respective parties, if applied for, on urgent basis.