Allowed

Union of India and Others v. Indrajeet and Others

Allahabad HC10 Dec 2019WRIA/61227/2009

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a Tribunal order that exempted respondents from typing tests. The Court held the Tribunal erred in law by relying on a prior judgment rendered per incuriam. Existing Railway Board Circulars mandated typing skill with provisional promotion. The Court set aside the Tribunal order, denying exemption.

What did the court decide?

Judgment and order dated 29.05.2009 passed by Central Administrative Tribunal in O.A. No. 734 of 2006 is set aside.

Union of India and Others Vs Indrajeet and… — Pension and Retirement Benefits | Allahabad HC (2019)

AF.R

Court No. - 34

Case :- WRIT - A No. - 61227 of 2009

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Petitioner :- Union Of India And Others Respondent :- Indrajeet And Others Counsel for Petitioner :- A.K.Gaur,Rajnish Kumar Rai Counsel for Respondent :- S.C.,Ram Gopal Tripathi

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajnish Kumar Rai, learned counsel for petitioners and Mr. Ram Gopal Tripathi, learned counsel representing respondents -1 and 2.

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This writ petition under Article 226 of Constitution of India has been filed against judgment and order dated 29.05.2009 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as "Tribunal") in Original Application No. 734 of 2006 (Indrajeet and another Vs. The General Manager, North Eastern Railway and others) (hereinafter referred to as OA) whereby aforesaid OA filed by respondents-1 and 2 has been allowed with the following directions:

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“ 7. Accordingly, we find that orders dated 08.06.2006/ Annexure-12, 18.06.1998/ Annexure-4, 14.09.2000/ Annexure-5 AND 22.05.2000/ Annexure-6 cannot be sustained and are, accordingly, set aside, with direction to the respondents to consider the Applicants and all other persons, (who are similarly situated as the applicants), to be considered and treated similarly as jai Prakash, Nagendra Nath, Jai Singh and Ramphal Prasad and others as per order dated 03.06.2006 (Annexure-11-Compilation-II) and should not be compelled to rush to Tribunal/Court.”

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Case set up by applicants-respondents-1 and 2 is that they were initially appointed on the post of Khalasi which is a Group 'D' Cadre Post and working in North Eastern Railway, Gorakhpur. They were promoted on the post of Junior Clerks which fall in the cadre of Group-C, against vacancies, which occurred up to 31^st March, 1997. Selection process commenced vide notification dated 20.08.1997. Applicants-respondents-1 and 2 were selected pursuant to aforesaid notification. Ultimately selections so made were notified on 29.05.1998. However, as applicantsrespondents-1 and 2 did not possess typing qualification, their promotions were made provisional.

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Applicants-respondents-1 and 2 claimed to be be exempted from typing test as per judgement of this Court in Writ Petition No. 65560 of 2005, Jai Prakash and others Vs. Central Administrative Tribunal, Allahabad Bench and others, decided on 17.10.2005. According to applicants-respondents-1 and 2, since similarly situated Group-D, employees namely Jai Prakash, Ramphal Prasad, Jai Singh and Nagendra Nath, who were also promoted as Junior Clerks from Group D, were exempted from typing test, they (applicantsrespondents 1 and 2) were also entitled to the same benefit. Petitioners did not agree to aforesaid request of applicants- respondents-1 and 2. Therefore, applicant-respondents 1 and 2 filed O.S. No. 734 of 2006 (Indrajeet and another Vs. The General Manager, North Eastern Railway and others), which has been allowed vide judgement and order dated 29.05.2009. Thus feeling aggrieved by judgement and order dated 29.08.2009 passed by Tribunal, petitioners have now approached this Court by means of present writ petition.

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Learned counsel for petitioners contended that prior to promotion of applicants-respondents-1 and 2, on the post of Junior Clerk, which is a Group-C post, there was already, in existence, a Railway Circular dated 07.04.1994 . Aforesaid Circular provides that typing skill is compulsory for the post of Junior Clerk in the Cadre of Group-C. Such candidates,

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who get selected for promotion to the post of Junior Clerk in Cadre of Group-C but do not possess typing skill, be granted provisional promotion and shall have to acquire typing skill within two years of promotion. Relevant extract of Circular dated 07.04.1994 reads as under:

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“ In case of promotion from group 'D' to group 'C' in the ministerial cadre and promotion of clerks as Senior Clerks against LDCE quota, the employees will henceforth be required to acquire the typing skill within a period of two years and their promotion will be provisional subject to acquiring the prescribed typing qualification within the stipulated period. ”

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(Emphasis added)

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The aforesaid Board's Circular was substituted by another Circular dated 20^th August, 1997 wherein it was provided that in respect of all the vacancies of clerks, which fell vacant upto 31^st March, 1997, selection for promotion from Group D to Group C employees shall be made after holding written test and Hindi or English typing test. It also provided that in case a candidate does not possess typing qualification, he will have to acquire the same within two years. The relevant extract of Board's Circular dated 20.08.1997 reads as under:-

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Þ [k.M ßxß & vH;kFkhZ dks Vad.k xfr fgUnh esa 25 'kCn ;k vaxzsth esa 30 'kCn izfr feuV gksuk pkfg,A bl ekeys dks jsy ifj"kn ds i= la0 bZ ¼,u0th0½ 1&96@lh0,Q0ih0@19 f nukad 03-02-1997 ds vuqlkj p;fur vH;fFkZ;ksa dks nks o"kZ ds vUnj Vad.k dh vgZrk iwjh dj foHkkxh; VsLV esa mRrh.kZ gksuk iMsxkA tks vlQy ik;s tk;sxsa mUgsas iqu% muds iwoZ in ij inkouhr dj inLFkkfir dj fn;k tkosxkA

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Vad.k dh vgZrk le; lhek ds vUnj iwjh u djus ij mudh inLFkkiuk @inksUufr Ik ij vUkfUre izkfotuy ekuh tk;sxhAß

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Applicants-respondents-1 and 2 appeared in the selection held in 1998 and were granted promotion on provisional basis.

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The question whether applicants-respondents 1 and 2 were entitled for exemption from typing test has been answered by Tribunal in favour of applicant-respondents-1 and 2 by relying on the judgement dated 17.10.2005 of this Court in CMWP NO. 65560 of 2005 (Jai Prakash and others Vs. Central Administrative Tribunal, Allahabad Bench and others) wherein candidates promoted on the post of Junior Clerks (Group-C post) from Group -D posts were exempted from typing test. Accordingly, Tribunal held that applicants-respondents-1 and 2 are also entitled for the same protection as extended to other candidates by Railways granting exemption from typing test vide order dated 08.06.2006.

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Learned counsel for petitioners submitted that High Court's judgement dated 02.09.2005 was passed in ignorance of Board's Circulars dated 07.04.1994 and 20.08.1997 as same were not placed before this Court. According to learned counsel for petitioners aforesaid Circulars, cover the field and very much in existence but unfortunately could not be considered. Therefore, aforesaid judgement in Jai Prakash and others (Supra) rendered by this Court is per incuriam. Even otherwise, if the view taken by this Court vide judgement dated 17^th October, 2005, is applied, it covers vacancies which occurred upto 31.03.1997, and promotions made against such vacancies. In that eventuality, Board's Circular dated 20.08.1997 is liable to be ignored since it is a subsequent Law. While earlier vacancies shall be governed by old Rules new vacancies shall be governed by new Rules. Since on the date of accrual of vacancies, notification dated 20.08.1997 was not in existence, therefore same was not required to be complied with in respect of promotions made against earlier vacancies upto 30.03.1997.

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Admittedly, Board's Circular dated 07.07.1994 was in force at the time of accrual of vacancies on 31.03.1997. Therefore, these vacancies were

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required to filled up in accordance with Board's Circular dated 07.07.1994. Since aforesaid circular clearly provided holding of typing test and in case, any candidate does not possess the same, he would be required to obtain typing skill within two years, it has to be followed and cannot be ignored.

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Notification dated 20.08.1997 only reiterates the conditions prescribed in Board's Circular dated 07.07.1994. Thus typing skill was mandatory. Tribunal having ignored this aspect has erred in law in allowing O.A. filed by applicant-respondents1 and 2.

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Mr. Ram Gopal Tripathi, learned counsel representing applicantrespondents-1 and 2 contends that since benefit has been granted to others, therefore, applicants-respondents-1 and 2 are also entitled to the same benefit but, we do not agree with the submission made by learned counsel for applicants-respondents-1 and 2.

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Record reveals that even at the time of earlier judgement dated 02.05.2005 passed by this Court in Writ Petition No. 65560 of 2005, Board's Circular Dated 07.07.1994 was in existence and operating, but same was not considered by this Court. It appears that the same was not brought to the notice of this Court. Thus the above judgement suffers from the vice of per 'ignorantia' & per 'incuriam' or 'sub silentio' and cannot be held to be a binding law.

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A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. This doctrine was referred to in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., (1941) 1 KB 675 . Earlier in Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 the question of priority of claimant's debt was argued and only on this argument the order was passed by the Court. There was no consideration to the question whether a garnishee order could properly be made on an account standing in the

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name of the liquidator. In a subsequent case when this point was raised the Court held that the earlier decision would not be binding since the question that which it was confronted was not considered therein. Sir Wilfrid Greene, M. R. , said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He further observed that point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. The Court said:

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"Precedents sub silentio and without argument are of no moment."

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This principle has been recognised and followed since then in several authorities and in India also.

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In Salmond's Jurisprudence, 12th Edn. , Professor P. J. Fitzgerald explains the concept of sub silentio in the following manner:

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"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."

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This passage has been quoted as such with approval by Apex Court in Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 SC 38. Same principles has been followed in State of U.P. and Anr. Vs. Synthetics and Chemicals Ltd. and Anr., 1991(4) SCC 139; Arnit Das v. State of Bihar, AIR 2000 SC 2264; M/s. A- One Granites Vs. State of U.P. and others, AIR 2001 SC 1203; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd., AIR 2003 SC 511; Divisional Controller, K.S.R.T.C. Vs. Mahadeva Shetty, AIR 2003 SC 4172; Cement Corporation of India Ltd. Vs Purya & Ors., 2004 (8) SCC 270; Deb Narayan Shyam & Ors Vs. State of West Bengal & Ors, JT 2004(10) SC 320; State of Punjab and Anr. Vs. Devans Modern Brewaries Ltd. and Anr., 2004(11) SCC 26; Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, AIR 2005 SC 947; Zee Tele Films Ltd., M/s. Vs. Union of India, AIR 2005 SC 2677; and, State of U.P. & Ors Vs. Jeet S. Bisht & Anr, 2007(6) SCC 586.

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This doctrine of sub silentio is an exception to the rule of precedent. 19. Then comes the doctrine of per incurium. What constitute "per incurium" need not detain our attention since time and again it has been explained by Apex Court. Recently a Full Bench of this Court in Farhat Hussain Azad Vs. State of U.P. and others, 2005 ALJ 647 after referring to the law with respect to "per incurium" laid down by Supreme Court in catena of decisions, has observed as under:-

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"The concept of "per in curium" has been considered by the Apex Court time and again explaining that the expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court after pondering over the issue in depth would not be precedent binding on the Courts. Per incurium are decisions given in ignorance or forgetfulness of

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some statutory provisions or where the Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where Court presumes something contrary to the facts of the case. (Vide Mamleshwar Prasad & Anr. Vs. Kanahaiya Lal (Dead), (1975) 2 SCC 232; Rajpur Ruda Meha & Ors. Vs. State of Gujrat, AIR 1980 SC 1707; A.R. Antule Vs. R.S. Nayak, AIR 1988 SC 1531; Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 SC 38; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; State of West Bengal Vs. Synthetics and Chemicals Ltd., (1991) 1 SCC 139; Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd & Anr. Vs. Employees' Union & Anr., 1994 Supp (3) SCC 385; Pawan Alloys & Casting Pvt Ltd, Meerut Vs. U.P. State Electricity Board & Ors., (1997) 7 SCC 251; Ram Gopal Baheti Vs. Girdharilal Soni & Ors., (1999) 3 SCC 112; Sarnam Singh Vs. Dy. Director of Consolidation & Ors., (1999) 5 SCC 638; Govt. of Andhra Pradesh Vs. B. Satyanarayana Rao, AIR 2000 SC 1729; Arnit Das Vs. State of Bihar (2000) 5 SCC 488; M/s. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., AIR 2001 SC 2293; A-One Granites Vs. State of U.P. & Ors., (2001) 3 SCC 537; Suganthi Suresh Kumar Vs. Jagdeeshan, AIR 2002 SC 681; Director of Settlements A.P. & Ors. Vs. M.R. Apparao & Anr., (2002) 4 SCC 638; S. Shanmugavel Nadar Vs. State of T.N & Anr.., (2002) 8 SCC 361; State of Bihar Vs. Kalika Kuer Kalika Singh & Ors., AIR 2003 SC 2443; and Manda Jaganath Vs. K.S. Rathnam & Ors., (2004) 7 SCC 492).

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In B. Shyama Rao Vs. Union Territory of Pondichery &

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Ors., AIR 1967 SC 1480, the Constitution Bench of the Supreme Court observed as under:-

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"It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein."

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In State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. (1991) 4 SCC 139, the Apex Court followed the aforesaid judgment in B. Shyama Rao and held as under:-

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"Any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......A conclusion without reference to relevant provision of law is weaker than even casual observation."

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Similar view has been reiterated in Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr., (2003) 7 SCC 197, observing that casual expressions in a judgment carry no weight at all, nor every passing remark, however eminent, can be treated as an ex-cathedra statement having the weight of authority."

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In N. Bhargavan Pillai Vs. State of Kerala, AIR 2004 SC 2317 (para 14) Court said that if a view has been expressed without analysing the statutory provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. The same law has been reiterated in Faujdar Vs. Deputy Director of Education and others, 2006 (3) AWC 2243 .

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In Civil Misc. Writ Petition No. 47754 of 2005 (M/s J.K. Construction Engineers and others Vs. Union of India and others) decided on 28.02.2006, a Division Bench of this Court held:-

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"The doctrine of per incuriam is applicable where by

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inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court."... (Para 106)

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Similar view has been taken by another Division Bench in Brahma Prakash Vs. State of U.P. & other- 2006 (2) ESC 1017 . In para 40 of the judgment this Court held as under-

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"Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta's case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment, nor discussed, as to how the factual situation fits in with the fact and situation of the decision on which reliance was placed. Contrary to it the decision of Hon'ble Apex Court which requires consideration of various factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law."

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In the judgements referred to above, the aforesaid doctrine of per incuriam has been discussed in detail and it has been held that a judgment per incuriam does not lay down a binding precedent.

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Even otherwise, directive of the Tribunal reads as under:

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“ In view of the above, as the notification-dated 20.08.1997 does not operate retrospectively, the issue requires to be examined as on what date the vacancy occurred and then to proceed in accordance with law. In case, the vacancy had occurred prior to the date of issuance of the said notification, the respondents cannot insist for passing the typing test but if the vacancy occurred subsequent to the same, the judgement and order of the Tribunal does not require any interference.”

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(Emphasis Added)

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Above quoted observation clearly reveals that the law as available or operating on the date of accrual of vacancies had to be applied. Admittedly, Board's Circulars dated 07.04.1994, which provided for promotion from Group D to Group C Cadre was in force. Thus Railway Board's Circular dated 07.04.1994 was already operating which provided that typing skill is a necessary qualification and same has to be acquired by promoted candidate. Therefore, applicants-respondents-1 and 2 could not have claimed exemption from aforesaid requirement i.e. typing skill in absence of any provision contemplating such exemption..

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Tribunal has thus erred in law in exempting respondents 1 and 2 from typing test.

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We also find that in a subsequent matter, a Division Bench in Jai Prakash and others Vs. Union of India and others, decided on 17.07.2018 had an occasion to examine this aspect and it has observed as under:

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“No doubt, in the earlier round of litigation, the circular dated 7.4.1994 was not brought to the notice of either the Tribunal or the writ court and therefore the writ court, under the belief that on the date of vacancy, which was claimed to have arisen in the year 1997, there may not have been requirement to pass typing test had directed to consider eligibility for promotion as prevailing on the date of vacancy, b ut that, by itself, would not be a ground to ignore the existence of the circular dated 7.4.1994 when the same was produced in the second round of litigation. Moreover, the order of the High Court was complied by the railway administration by observing that the writ court's order was without taking cognizance of railway circular dated 7.4.1994 but in due respect to the writ court's order exemption

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from typing test was provided as a one time exemption. ”

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(Emphasis added)

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Learned counsel appearing on behalf of applicants-respondents-1 and 2, then contended that since benefit of exemption has been granted to other selected candidates therefore, applicants-respondents-1 and 2 are also entitled to same benefit. It is further submitted that some other persons, who did not possess typing skill, have been regularized. Submission so made is wholly misconceived. We have already discussed the effect of Railway Board's Circular dated 07.04.1994 and also Circular dated 20.08.1997. Applicants-respondents-1 and 2 cannot claim any right dehors the aforesaid circulars. Applicants-respondents-1 and 2 are claiming perpetuity in illegality. It is well settled that two wrongs will not make one right. (See State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306 ; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983 ; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303 ; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 565 ; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 ).

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A Division Bench of this Court (in which one of us Hon'ble Sudhir Agarwal,J. was a member) in Special Appeal No.375 of 2005 Shiv Raj Singh Yadav Vs. State Of U.P. And Others , decided on 27.05.2011 , has considered this aspect in detail and in paragraph no.22, has held:

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"22. Once it is established that the petitioner had no legal right of regularisation, merely because some irregularities and illegalities have been observed by the respondents in some other cases with respect to regularisation, that would not confer any right upon the petitioner to claim parity. The right

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of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. (See Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317; Punjab National Bank by Chairman and Anr. Vs. Astamija Dash, AIR 2008 SC 3182; Punjab State Electricity Board and others Vs. Gurmail Singh, 2008(7) SCC 245; M/s. Laxmi Rattan Cotton Mills Ltd. Vs. State of U.P. and others, 2009(1) SCC 565; Panchi Devi Vs. State of Rajasthan and others, 2009(2) SCC 589; State of Bihar Vs. Upendra Narayan Singh, 2009(5) SCC 65; State of Uttaranchal Vs. Alok Sharma and others, JT 2009(6) SC 463; State of Punjab and another Vs. Surjit Singh and others, 2009(11) SCALE 149; State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619; Shanti Sports Club and another Vs. Union of India and others, 2009(11) SCALE 731; Ghulam Rasool Lone Vs. State of J & K and others, JT 2009(13) SC 422."

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(Emphasis Added).

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In the light of aforesaid, we find that impugned judgementand and order dated 29.05.2009 passed by Tribunal cannot be sustained. Writ petition is accordingly allowed. Judgment and order dated 29.05.2009 passed by Tribunal in O.A. No. 734 of 2006 (Indrajeet and another Vs. The General Manager, North Eastern Railway and others) is hereby set aside.

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No costs.

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Order Date :- 10.12.2019 YK

Union of India and Others v. Indrajeet and Others

Case brief

What is this about?

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Union of India and Others v. Indrajeet and Others

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