Central Administrative Tribunal - Delhi
R A Khan S/O Shri A A Khan vs Nct Of Delhi Through The Chief Secretary on 9 September, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1453/2009 This the 9th day of September 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. R A Khan s/o Shri A A Khan r/o Nirman Chhaya Staff Complex Hari Nagar, New Delhi-64 2. Ms. Sadhna Singh d/o Shri S R Singh r/o 149-B Pocket E, GTB Enclave Dilshad Garden, Delhi-93 3. Kuldeep Singh s/o Shri Digambar Singh r/o H No.146, Sector 2, Chiranjeev Vihar Ghaziabad (UP) 4. Ramesh Chandra Maurya s/o Shri Ranjeet Maurya r/o B 7/23 Sector 15 Rohini, Delhi 5. Ms. Symphony d/o late Shri Inder Mohan Singh r/o 29-B CPWD Complex, Vasant Vihar, New Delhi 6. Ms. Gouri Mukerjea d/o Shri Deepal Bandyopadyay r/o A-32m Kailash Colony, New Delhi 7. Ms. Humra Khalid d/o Shri Prof. Nisar Ahmad r/o V-203 Taj Enclave, Geeta Colony, Delhi 8. Ms. Alia Saeed w/o Shri Mangoor Saeed r/o A-16, 2nd Floor, Jundpura Ext. New Delhi-24 All applicants are working to the post of Welfare Officer In Social Welfare Department of Govt. of NCT of Delhi ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. NCT of Delhi through the Chief Secretary New Sectt, New Delhi 2. The Secretary Social Welfare Department, Govt. of NCT of Delhi GLNS Complex, Delhi Gate, Delhi 3. The Secretary / Chairman Union Public service Commission Dholpur House, Shahjahan Road New Delhi-59 4. The Joint Secretary to the Govt. of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) New Delhi ..Respondents (By Advocates: Ms. Renu George for respondents 1 & 2 Shri Anita Kalkal for Shri Naresh Kaushik for respondent 3 None for respondent 4) O R D E R
Shri Shanker Raju:
Applicants, Welfare Officers in Social Welfare Department of Govt. of NCT of Delhi, through this OA, have sought relaxation by increasing the upper age limit for direct recruitment to the post of Superintendent / CDPO by two years, i.e., from 30 to 32 years. Also assailed is a Note appended to Rule 4 of Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998 (for short Upper Age Limit Rules 1998) being ultra vires.
2. Applicants, in pursuance of an advertisement against direct recruitment quota through Union Public Service Commission (UPSC) for a selection to the post of Superintendent, applied for the same whereby as per recruitment rules of 1989, the prescribed age limit was 30 years relaxable for government service upto 5 years. However, with an increase in the retirement age from 58 to 60 years by an amendment carried effective from 1.4.1999, following provision was added in the Upper Age Limit Rules 1998:-
4. Increase in the upper age limit:-
The upper age-limit for recruitment by the method of Direct open Competitive Examination to the Central Civil Services and Civil posts specified in the relevant Service / Recruitment rules on the date of commencement of the Central Civil Services and Civil posts (Upper Age-limit for direct Recruitment) Rules 1998, shall be increased by two years.
Note:- Direct open Competitive Examination for the purpose of these rules shall mean direct recruitment by open Competitive Examination conducted by the Union Public Service Commission or the Staff Selection commission or any other authority under the Central Government and it shall not include recruitment, through Limited Departmental Examination or through shortlisting or by interview or by contract or by absorption or transfer or deputation.
4. As per Rule 5, if any question arises to interpretation of these rules, the same has to be decided by the Central Government. Applicants, despite granting the relaxation, are still above the upper age limit. A communication by the respondents, i.e., Department of Social Welfare dated 24.12.2008 in respect of the applicants sought increasing the upper age limit from 30 to 32 years through a corrigendum to be issued by UPSC.
5. Shri Yogesh Sharma, learned counsel for applicants, at the outset, states that the upper age limit of 32 years shall apply to all Central Civil Services and Civil Posts and as the posts of Superintendent are the direct recruitment posts and are to be filled up by direct open competitive examination from open market, the upper age limit has to be considered.
6. Learned counsel would contend that as the interview is one of the examinations as per the methodology laid down in clause 3 of the advertisement issued by the UPSC, the Note given below Upper Age Limit Rules 1998 is totally illegal and arbitrary. He has relied upon the decision of a Division Bench of High Court of Delhi in Archaeological Survey of India & another v. Niraj Kumar Sinha, (WP (C) No.14838-39/2006) decided on 20.9.2006 wherein a similar controversy in the mode of interview for examination conducted by the UPSC when raised, the same was held to be direct open competitive examination and age relaxation was found admissible as per Govt. of Indias instructions and rules without attracting the Note.
7. On the other hand, learned proxy counsel for respondent 3 UPSC vehemently opposed the contentions and stated that a subsequent decision of Division Bench of High Court on 12.5.2009 in WP (C) No.6676/2008 has given interpretation to the Note wherein Rule 3 has been held to be for age relaxation and would not be applicable if the recruitment is made by interview. It is stated that as the mode of selection by the UPSC is only interview and not being a direct open competitive examination, age relaxation is not admissible to the applicants.
8. We have carefully considered the rival contentions of the parties and perused the records.
9. As per the recruitment rules for the post of Superintendent, which is a general central service Group B gazetted post, the mode is selection with an essential requirement and the selection is to be held by the UPSC in case of direct recruitment. The High Court of Delhi in an anterior point of time in Niraj Kumar Sinhas case (supra) in a controversy where the Tribunal in OA-547/2004 made entitled the petitioners therein for benefit of increase in upper age limit by two years in Rule 3 of Upper Age Limit Rules 1998, upheld the same despite an objection by the respondents, which has been mutatis mutandis taken before us by the learned proxy counsel for UPSC. Following are the observations made in the said order:-
3. Increase in the upper age limit:-
The upper age limit for recruitment by the method of Direct Open Competitive Examination to the Central Civil Services and Civil Posts specified in the relevant Service / recruitment rules on the date of commencement of the Central Civil Services and Civil Posts (Upper Age limit for Direct Recruitment) Rules, 1998, shall be increased by two years.
Note:- Direct Open Competitive Examination for the purpose of these rules shall mean direct recruitment by Open Competitive Examination conducted by the Union Public Service Commission or the Staff Selection Commission or any other authority under the Central Government and it shall not include recruitment through Limited Departmental Examination or through shortlisting or by interview or by contract or by absorption or transfer or deputation.
11. The aforesaid Rule provides for increase of upper age limit by two years. The pre-requisite for its application is that method of recruitment should be Direct Open Competitive Examination to the Central Civil Services and Civil Posts. The Note gives the meaning of the expression Direct Open Competitive Examination for the purpose of the Rules. It is required to be a case of direct recruitment by open competitive examination conducted by the U.P.S.C. This being an advertisement taken out by the U.P.S.C., the condition of direct recruitment through the prescribed agency is specified. The crucial words and phrases for interpretation are Open Competitive Examination and the exclusions that are provided. The exclusion provided are recruitment through any one of:- Limited Departmental Examination, shortlisting, interview, contract, absorption, transfer or deputation. In the present case, we have to consider whether the selection by interview to be done by U.P.S.C. would fall within the ambit of Direct Open Competitive Examination or the said mode of selection would be excluded under recruitment by interview.
12. Ms. Rekha Palli appearing for the petitioner submits that Rule 3 excludes recruitment through limited department examination, shortlisting or by interview. According to her, as the method of selection was interview, it goes out of the purview of definition of Direct Open Competitive Examination. Once it ceases to be Direct Open Competitive Examination, the benefit of upper age limit would not be available. In support of her contention, she places reliance on a judgment of the High Court of Karnataka dated 29th October, 2001 in Dr. J.C. Sharma Vs. Union of India and ors. She submits that recruitment in the said case was also through advertisement by UPSC followed by an interview. The Karnataka High Court held that relaxation in upper age limit would not be admissible in view of embargo on recruitment through limited departmental examination or by shortlisting or by interview.
13. Upon consideration of the matter, we are not persuaded to accept and follow the judgment of the Karnataka High Court dated 29th October, 29001 for the reasons hereinafter recorded. We are not persuaded that when public advertisements are issued inviting applications for direct recruitment but the method of selection could be screening which is followed by interview, it ipso facto would take it out of the purview of Direct Open Competitive Examination. It would be seen that a common thread which runs through the various species of exclusions is the restrictive nature of selection therein. In other words, it is the anti thesis of Open Competitive Examination e.g. Limited Departmental Examination, where the number of candidates are small, short listing or recruitment by interview or by contract or by deputation or filling up vacancies by deputation or by transfer. These species of exclusion provided are those where recruitment is being done amongst internal or Departmental candidates or specified classes of candidates such as departmental candidates, deputationists, transferee etc. and not through competition open to the public. We are of the view that expression interview appearing in the Note has to take its context and meaning from other words namely Departmental Examination, short listing, contract, absorption or deputation. The interview being confined to these species or classes. It would not cover interview as a method of selection where candidates are invited through open advertisement and the same is duly published. Selection by interview of such candidates would not fall within the exclusion. The exclusion provided in the Note, in our view, has to be restricted in the light of principles of Ejusdem Generis.
14. The matter may be considered from another perspective. If the submission of the Petitioner, that interview as a method of recruitment would, as such stand excluded from the definition of Direct Open Competitive Competition, is accepted then differential treatment would be accorded to candidates for posts where the Direct Open Competitive Examination is written vis a vis those where the Direct Open Competitive Examination is oral i.e. interview / viva voce examination. Such differential treatment, for the purpose of granting relaxation in upper age limit as provided in Rule 3 is sans any rational reasoning or justification.
15. We may also note that as per the terms of the Advertisement, UPSC was authorized to resort to any of the following methods for restricting the number of candidates to be called for interview:-
Adopting as a criteria, higher qualifications and experience than the minimum qualifications prescribed in the advertisement;
On the basis of experience in the relevant field;
By counting experience before or after the acquisition of essential qualifications or By holding a screening test.
16. The UPSC could adopt any of the above methods for choosing most suitable candidates out of the candidates in the Direct Open Competitive Examination for final selection through interview. It would also be relevant, in our view, to consider the legislative intent, purpose and object for which the Rule had been introduced. In this context, for the post, qualifications prescribed are of high level, being a Masters degree in Indian History / Archaeology or in other specialized subject with Diploma in Archaeology from the Archaeological Survey of India or equivalent or two years research experience. This would show that the post is of specialized nature with exceptionally high qualifications required in the candidates with specialization in their respective fields. The candidates, who may be selected are to be put on probation and to undergo training and prior to confirmation, they are to pass a departmental examination. These prima facie tend to show that essential educational qualifications and experience are of a nature where their intellectual ability or level already stands determined and established and is not required to be assessed by a written examination particularly when the recruitment age is also between 35 to 40 years. The increase in upper age limit is also correlated to the increase in the age of superannuation of Government employees from 58 to 60 years.
17. Reference may also be usefully made to the decision of the Supreme Court in K.H. Siraj Vs High Court of Kerala and Ors. Reported in (2006) 6 SCC 395, where the Supreme Court dealt with interview as a mode of assessing the suitability of a candidate for a particular position. It was observed that while the written examination will testify the candidates academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. Again the Supreme Court in Lila Dhar Vs State of Rajasthan, 1981 4 SCC 159 observed that object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job avoiding patronage and favourtism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. The Supreme Court had quoted with approval that the written examination assess the mans intellect and the interview tests the man himself. In case of services to which recruitment has necessarily to be made from persons of mature personality, interview may be the only way, subject to basis and essential academic and professional requirement being satisfied. To subject such persons to a written examination may yield unfruitful and negative results apart from it being an act of cruelty to those persons.
18. In view of the foregoing discussion, it cannot be said that having regard to the qualifications, experience and requirements for the post of Deputy Superintending Archaeologist, resorting to interview as a method of selection would be arbitrary or result in taking it out of the purview of Direct Open Competitive Examination. In fact the submission of the respondent that with these qualifications, experience and requirements for the post, interview was the appropriate method of selection is a convincing submission. The method of examination is by interview and it would be for the UPSC to constitute a Selection Committee with the requisite talent, qualifications and credentials to choose the most suitable candidates. Selection by interview through a constitutional body like UPSC would not render the process non competitive in nature. It is not necessary to dwell further on this aspect as the Central Government and the UPSC have considered holding the selection by interview as the appropriate method for selection to the senior posts. We find no reason for questioning the wisdom of the said decision or to hold that because of selection by interview, it would cease to be Direct Open Competitive Examination. Moreover, there is also merit in the submission of respondent that petitioner had given the benefit of upper age limit to the post of Assistant, Archaeologist while omitting to do the same to Deputy Superintending Archaeologist. Explanation that, it was a one time exception does not appear to hold good in view of the fact that even the subsequent and recent advertisement for the said posts contains the same relaxation. In view of the foregoing discussion, we hold that the respondent is eligible to upper age relaxation in terms of Rule 3 of the Rules. Writ petition has no merit and is dismissed. Interim order is vacated.
10. However, in a subsequent decision by the High Court whereby the earlier decision of the Division Bench of High Court in Niraj Kumar Sinhas case (supra) was not taken into consideration the case where the Tribunal allowed the relaxation of age. Following observations have been made:-
It is clear from the reading of the impugned judgment that the Tribunal has only taken into consideration the impact of Rule 3 without caring to read the note below. The upper age limit is increased by two years in those cases where the method of recruitment is? Direct Open Competitive Examination? To the Central Civil Services and Civil Posts. However, the question is whether the method of recruitment is? Direct Open Competitive Examination or not? The same has also been answered to. That mean only direct recruitments by an Open Competitive Examination which are conducted by the UPSC or SSC or other authority under the Central Government except the recruitment through:
Limited Departmental Examination.
Short listing By interview By contract and By absorption or transfer on deputation In the present case, it is not in dispute that the method of recruitment is by interview. In case where the method of recruitment is by interview, such a recruitment is not included within the expression? Direct Open Competitive Examination? and, therefore the benefit of Rule 3 would not admissible. In the impugned judgment the Tribunal has considered only the aforesaid aspect and allowed the O.A. Since Rule 3 has not been given a proper interpretation, in view of reasons explained by us above, the impugned judgment is hereby set aside. The matter is remanded back to the Tribunal to consider every submissions made by the respondents in his OA. The parties shall appear on 27th May, 2009.
The respondent, who appears in person states that he is going to retire within three months. In these circumstances, we would request the Tribunal to decide the case as expeditiously as possible.
11. In our considered view, in the former decision, if in a holistic manner the ratio decidendi of the decision is perused, which is binding, is a reliance on the decisions of Apex Court as to the importance of the interview in Lila Dhar v. State of Rajasthan & others, (1981) 4 SCC 159 and K.H. Siraj v. High Court of Kerala & others, (2006) 6 SCC 395. A detailed examination with reasons had brought about the conclusion that an interview held by the UPSC has a devise to find out with the requisite talent, qualifications and credentials for choosing the most suitable candidates will not render the process. It is ruled that even in case of an interview, direct open competitive examination nomenclature would not alter. Whereas in the latter decision, simply reading the rules when recording details and reasons and conclusion arrived at, which is per incuriam of the earlier decision of co-strength Bench after reproducing the rule and Note, finding has been recorded and the matter is remitted back to the Tribunal to consider the submissions made by the respondents.
12. In the doctrine of precedent and stare decisis, the Apex Court in MMMD Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority & another, 2005 SCC (L&S) 198 ruled that non-speaking order of the High Court does not constitute a precedent. Though the reasons have been recorded by reproducing the rules and Note, yet the decision of High Court is binding on subordinate Courts and has to be carried out, as ruled by the Apex Court in Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 753.
13. As ruled by the Apex Court in Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur, (2007) 13 SCC 807 that when a decision of coordinate Bench is not deliberated the decision of another coordinate Bench, it cannot take a contra view and is bound for want of disagreement as rule of precedent in an important aspect of legal certainty in the rule of law, as ruled in Honda Siel Power Products Ltd. V. Commissioner of Income Tax, Delhi, (2007) 12 SCC 596.
14. While on a disposal of a case by the High Court without realizing the factual position and without relying on an earlier decision, this approach would be casual and the decision would be per incuriam, as ruled in Municipal Corporation Faridabad v. Durga Prasad, (2008) 5 SCC 171 by the Apex Court.
15. Insofar as the ratio decidendi of a case is concerned, an observation made by superior Court is not binding. Such a decision should be arrived at upon entering into the merits of the case, as ruled in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & another, (2008) 11 SCC 753.
16. The Apex Court in U.P. Gram Panchayat Adhikari Sangh & others v. Dayal Ram Saroj & others, (2007) 2 SCC 138 and also in Maharasthra University of Health Sciences represented by Deputy Registrar v. Paryani Mukesh Jawaharlal & others, (2007) 10 SCC 201 ruled that Judicial discipline is self discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a co-ordinate Bench of the same High Court is brought to the notice of the Bench, it is respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then often is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity. The aforesaid ratio also is an authority to the fact that if a judgment is not brought into notice and the decision is taken by a coordinate Bench ignoring the same it would be per incuriam decision. The Apex Court at a great length laid emphasis on the doctrine of precedent in Official Liquidator v. Dayanand & others, (2009) 1 SCC (L&S) 943 with the following observations:
75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/ daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees - Indian Drugs and Pharamaceuticals Ltd. vs. Workmen [2007 (1) SCC 408], Gangadhar Pillai vs. Siemens Ltd. [2007 (1) SCC 533], Kendriya Vidyalaya Sangathan vs. L.V. Subramanyeswara [2007 (5) SCC 326], Hindustan Aeronautics Ltd. vs. Dan Bahadur Singh [2007 (6) SCC 207]. However, in U.P. SEB vs. Pooran Chand Pandey [2007 (11) SCC 92] on which reliance has been placed by Shri Gupta, a two-Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi vs. Union of India [1978 (1) SCC 248].
76. The facts of U.P. SEB vs. Pooran Chand Pandey (supra) were that the respondents (34 in number) were employed as daily wage employees by the Cooperative Electricity Supply Society in 1985. The Society was taken over by Uttar Pradesh Electricity Supply Board in 1997 along with daily wage employees. Earlier to this, the Electricity Board had taken a policy decision on 28.11.1996 to regularize the services of its employees working on daily wages from before 4.5.1990, subject to their passing the examination. The respondents moved the High Court claiming benefit of the policy decision dated 28.11.1996. The learned Single Judge of the High Court held that once the employees of the society became employees of the Electricity Board, there was no valid ground to discriminate them in the matter of regularization of service. The Division Bench approved the order of the Single Bench. A two-Judges Bench of this Court dismissed the appeal of the Electricity Board. In para 11 of its judgment, the two-Judges Bench distinguished Secretary, State of Karnataka vs. Uma Devi (supra) by observing that the ratio of that judgment cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution. The two-Judges Bench then referred to State of Orissa vs. Sudhanshu Sekhar Misra [AIR 1968 SC 647], State of Gujarat vs. Ambica Quarry Works [1987 (1) SCC 213], Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. [2003 (2) SCC 111], Bharat Petroleum Ltd. vs. N.R. Viramani [2004 (8) SCC 579] and observed:
"16. We are constrained to refer to the above decisions and principles contained therein because we find that often Umadevi (3) case is being applied by courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University and Bharat Petroleum Corpn. Ltd. a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Umadevi (3) case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Umadevi (3) case inapplicable to the facts of that case."
18. "We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi vs. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
[Emphasis supplied]
77. We have carefully analyzed the judgment of the two-Judges Bench and are of the considered view that the above reproduced observations were not called for. The only issue which fell for consideration by two-Judges Bench was whether the daily wage employees of the society, the establishment of which was taken over by the Electricity Board along with the employees, were entitled to be regularized in terms of the policy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Court simply adverted to the facts of the case and held that once the daily wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularization. Therefore, the two-Judges Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in Secretary, State of Karnataka vs. Uma Devi (supra).
78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia vs. Administrator General of W.B. [1960 (3) SCR 578], this Court observed:
"19 If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court." [Emphasis added]
79. In Lala Shri Bhagwan vs. Ram Chandra [AIR 1965 SC 1767], Gajendragadkar, C.J. observed:
"18.. It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such mattes and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."
80. In Union of India vs. Raghubir Singh [1989 (2) SCC 754], R.S. Pathak, C.J. while recognizing need for constant development of law and jurisprudence emphasized the necessity of abiding by the earlier precedents in following words :
"9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."
81. In Sundarjas Kanyalal Bhatija and others vs. Collector, Thane [1989 (3) SCC 396], a two- Judges Bench observed as under :
"22.. In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Sub-ordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute."
82. In Dr. Vijay Laxmi Sadho vs. Jagdish [2001 (2) SCC 247], this Court considered whether the learned Single Judge of Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held :
"33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well-settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
83. In Pradip Chandra Parija and others vs. Pramod Chandra Patnaik and others [2002 (1) SCC 1], the Constitution Bench noted that the two learned Judges denuded the correctness of an earlier Constitution Bench judgment in Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha [2001 (4) SCC 448] and reiterated the same despite the fact that the second Constitution Bench refused to reconsider the earlier verdict and observed "3. We may point out, at the outset, that in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha(2001 (4) SCC 448) a Bench of five Judges considered a somewhat similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges.
* * *
5. The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges -- a proposition that learned counsel for the appellants did not dispute. The learned Attorney-General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India (1992 (4) SCC 97) where it has been said that "no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench" (SCC p. 98, para 5). The learned Attorney-General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar (1991 Supp. (2) SCC 506) was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar, could have referred the case to a Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.
Emphasis supplied]
84. In State of Bihar vs. Kalika Kuer and others [2003 (5) SCC 448], the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.
85. In State of Punjab vs. Devans Modern Breweries Ltd. [2004 (11) SCC 26], the Court reiterated that if a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter has to be referred to a larger Bench.
86. In Central Board of Dwaoodi Bohra Community vs. State of Maharashtra [2005 (2) SCC 673], the Constitution Bench interpreted Article 141, referred to various earlier judgments including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha (supra), Pradip Chandra Parija and others vs. Pramod Chandra Patnaik and others (supra) and held that "the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be immediate casualty"
87. In State of U.P. and others vs. Jeet S. Bisht and another [2007 (6) SCC 586], when one of the Hon'ble Judges (Katju, J.) constituting the Bench criticized the orders passed by various Benches in the same case, the other Hon'ble Judge (Sinha, J.) expressed himself in the following words :
"100. For the views been taken herein, I regret to express my inability to agree with Brother Katju, J. in regard to the criticisms of various orders passed in this case itself by other Benches. I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. Judicial Discipline and respect for the Brother Judges."
88. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj [2007 (2) SCC 138], the Court noted that by ignoring the earlier decision of a coordinate Bench, a Division Bench of the High Court directed that part-time tube-well operators should be treated as permanent employees with same service conditions as far as possible and observed :
"26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity."
89. It is interesting to note that in Coir Board, Ernakulam vs. Indira Devi P.S. [1998 (3) SCC 259], a two-Judges Bench doubted the correctness of the seven-Judges Bench judgment in Bangalore Water Supply & Sewerage Board vs. A. Rajappa [1978 (2) SCC 213] and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three-Judges Bench headed by Dr. A.S. Anand, C.J., refused to entertain the reference and observed that the two-Judges Bench is bound by the judgment of the larger Bench - Coir Board, Ernakulam, Kerala State vs. Indira Devai P.S. [2000 (1) SCC 224].
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board vs. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.
17. In K.G. Arumugham & others v. K.A. Chinnappan & others, (2005) 2 SCC 793, the Apex Court held that High Court cannot sit in appeal in an earlier order passed by it in the same matter, which has already attained finality and set aside that order. The doctrine of precedent is well explained by observing that a coordinate Bench of the High Court is bound by another coordinate Bench where the order has attained finality.
18. In the above view of the matter, as we find that while the latter decision of the High Court has more precedent value, yet it passed per incuriam of the earlier decision, which is a reasoned one. The reasoning is based on a decision of the Apex Court and has more precedent value than the decision in later point of time relied upon by the respondents.
19. While dealing with the merits, the open competition, whatever maybe the source, i.e., adoption of methodology available to UPSC, yet by holding interview and by not holding competitive examination, the nomenclature of the selection is processed, i.e., direct open competitive would not be altered. If any contrary view is taken, it will be absurd, illegality and make the very basis of holding interview by an expert body as otiose. In K.H. Sirajs case (supra), the Apex Court with regard to the importance of interview in a case pertaining to judiciary clearly ruled as under:-
54. In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates' academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a judicial officer.
55. We may usefully refer to a decision of this Court in Sahkari Ganna Vikas Samiti Ltd. Vs. Mahabir Sugar Mills (P) Ltd., (1981) 4 SCC 149 in which this Court observed as under:
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services.
The ideal in recruitment is to do away with unfairness.
*************** A system of recruitment almost totally dependent on assessment of a person's academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development, with people, and with novel situations cannot serve the needs of today, much less of tomorrow. We venture to suggest that out recruitment procedures should be such that we can select candidates who cannot only assimilate knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative approach to the solution of problems. It is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview-test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity.
*************.
"While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power."
56. In Mohan Kumar Singhania & Ors. Vs. Union of India & Ors., (1992) suppl. 1 SCC 594 , S.Ratnavel Pandian, J. speaking for the Bench, observed as under: "Hermer Finer in his textbook under the caption The Theory and Practice of Modern government states:
"The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere. The British Civil Service experiments with the interview."
19. The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission's pamphlet:
"Viva Voce .. the examination will be in matters of general interest : it is intended to test the candidate's alertness, intelligence and intellectual outlook. The candidate will be accorded an opportunity of furnishing the record of his life and education."
20. It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus:
".the written papers permit an assessment of culture and intellectual competence. This interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities."
21. This Court in Lila Dhar vs. State of Rajasthan, (1984) 2 SCC 159 while expressing the view about the importance and significance of the two tests, namely, the written and interview has observed thus:
"..the written examination assess the man's intellect and the interview test the man himself and the 'the twain shall meet' for a proper selection."
57. The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association vs. Union of India & Ors., (2002) 10 SCC 159. A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the contention of the appellants/petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets 0 marks may still find it a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a bench mark for the oral interview, a bench mark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court.
20. In the above view of the matter, we are of the considered view that the decision in Niraj Kumar Sinhas case (supra) is applicable in the facts and circumstances of the case and covers, in all fours, the present controversy. It is though orally stated by learned counsel for respondents without any material that the aforesaid decision has been challenged before the Apex Court, in that event, law shall take its own course. Accordingly, we hold that applicants cannot be denied the benefit of increase in upper age limit by two years as per the notification under Upper Age Limit Rules 1998.
21. Resultantly, OA is allowed. Respondents are directed to consider the claim of the applicants for appointment against the post of Superintendent / CDPO within a period of two months from the date of receipt of a copy of this order. The methodology adopted shall be devised as per the available rules and instructions by the UPSC and other respondents. In such an event, law shall take its own course. Having decided so, we are not going into the vires of Note appended to concerned rule in Upper Age Limit Rules 1998. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/