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CASE NO.: Appeal (civil)  1020 of 2005

PETITIONER: Nadia Distt. Primary School Council & Anr

RESPONDENT: Sristidhar Biswas & Ors

DATE OF JUDGMENT: 25/04/2007

BENCH: A.K. Mathur & Dalveer Bhandari

JUDGMENT: J U D G M E N T A.K. Mathur, J.         This appeal is directed against order dated 11th June, 2004  passed by the Division Bench of Calcutta High Court whereby the  Division Bench affirmed the order of learned Single Judge directing  that all the 55 writ petitioners be appointed as teachers within a  period of six weeks.  Aggrieved against this order, the Nadia District  School Council filed an appeal before the Division Bench.  The  Division Bench affirmed the order of learned Single Judge by order  dated 11th June, 2004 and hence the present appeal.         In order to dispose of this appeal, few facts may be  recapitulated.  A panel for appointment of primary teachers was  prepared in 1980 for the District of Nadia in which 1965 candidates  were included in the panel.  Out of this panel, only 600 were trained  candidates.  Rule 3(d) of the Recruitment Rules provided that while  preparing the panel for appointment to the post of primary teachers,  preference shall be given to the trained candidates in such a manner  that all additional posts sanctioned by the Government from time to  time due to enhancement in roll strength in existing schools and at  least 5- per cent of the normal vacancies in such schools are filled up  by trained candidates only, if sufficient number of trained candidates  are available.  By Notification dated 26th October, 1971, the  Government of West Bengal recognized the training as an additional  qualification for appointment as Assistant Teacher.  Then again by  Notification dated 5th September, 1973, it was provided that while  giving appointment out of the panel already prepared, preference  should be given to the trained candidates for appointment to all the  additional posts.  The preparation of panel omitting to include trained  candidates was challenged by Sirazul Haque Mallick and 107 other  candidates in C.R. No.2522(W) of 1981.  That writ petition was  allowed on 17th September, 1987.  Aggrieved by that order, an appeal  was preferred being F.M.A.T. No.159 of 1988 by the State.  The order  passed in the writ petition was modified by the Division Bench by its  order dated 14th February 1989 directing to give appointment to the  petitioners in the existing vacancies and in vacancies arising in  immediate future and that appointment would not be offered to any  one other than the petitioners.  This order was passed on concession  given by the State.  This order was not complied with.  Therefore, a  contempt petition was filed and on 30th June, 1989 in the Contempt  Petition in case of Sirazul Haque Mallick and 107 others, they were  given appointment.  Thereafter on 16th July, 1989, one Dibakar Pal  and 87 others moved a writ petition being C.O. No.11154(W) of 1989.   This writ petition was also allowed by the order dated 13th March,  1991 on the ground that the petitioners are similarly circumstanced as  in the case Sirazul Haque Mallick and 107 others.  Therefore, no  different treatment can be given and they were also given benefit of  appointment.  Against this order, an appeal was preferred before the  Division Bench which was dismissed.  Thereafter, a contempt petition  was filed,  in pursuance to that,  an order dated 23rd June, 1999 was

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passed and Dibakar Pal and 87 others were given appointment.         Thereafter the present writ petition was filed on 2nd August,  1989.  This writ petition was also allowed by order dated 17th January  2001 on the basis of the judgments in Sirazul Haque Mallick and  Dibakar Pal’s cases.  The petitioners in this petition, i.e., petitioner  and 54 others were trained candidates.  Therefore, the learned Single  Judge directed appointment of these 55 persons on the same  rationale as in the case of Sirazul Haque Mallick and Dibakar Pal.   However, the learned Single Judge did not allow similar relief to other  persons who were added as parties between 1999 and 2000.   Aggrieved by this order, an appeal was filed before the Division  Bench and an objection of delay was raised.  However, the Division  Bench overruled the objection of delay but declined to give any  benefit to the persons who were added in this writ petition in 1999  and 2000 and held that no relief to these persons can be given as  they approached belatedly but gave benefit to 55 persons on the  ground that the State did not want to expose irregularity and illegality  committed in selection in Sirazul Haque Mallick’case and on similar  reasoning Dibakar Pal’s petition was also allowed and soon after  Dibakar Pal’s case, the present petition was filed in 1989.  Therefore,  the Court held that the petitioners approached on 2nd August, 1989  soon after the disposal of Dibakar Pal’s writ petition dated 16th July,  1989.  Hence, there is no delay in the appeal.  Secondly, it was also  contended that since the life of panel has been exhausted, the  appointment cannot be made.  This was also overruled.  It was  contended that Sirazul Haque Mallick’s case and Dibakar Pal’s case  also cannot be treated as a precedent because in Sirazul Haque  Mallick, the order was passed by concession.  But this objection was  overruled by the Division Bench.  Next, it was contended on the basis  of principle of sub-silentio that a decision which has not been given  on consideration of merits and issues involved therein, that cannot be  law declared by the Court and cannot have binding effect. This  objection was also overruled by the High Court.  Lastly, it was  contended that even if any irregularity or illegality has been  committed, that cannot be perpetuated.  But this submission was also  overruled by the Division Bench.  Hence the Division Bench  dismissed the appeal filed by the State affirming the order of learned  Single Judge to give appointment to 55 persons.  Justice Sinha,  another member of the Division Bench, agreed with  the view taken  by the senior Judge, but  observed that though the order passed in  Sirazul Haque Mallick’s case in 1982 and the series of litigation,  these persons did not approach the court because they might be  engaged in other avocations and the Court further observed that law  and equality help the vigilant and not the indolent.  However, the  learned Judge agreed with the senior Judge and directed that only  those 55 persons would be given the relief.  Aggrieved by this order,  present appeal was filed by the State.         We have heard learned counsel for the parties.  Learned  counsel for the appellants submitted that the persons who had not  approached the Court in time and waited for the result of the decision  of other cases cannot  stand to benefit.  The Court only gives the  benefit to the persons who are vigilant about their rights and not who  sit on fence. Mallick’s case was decided in 1982,  in 1989 Dibakar Pal  filed the petition and thereafter in 1989 respondents herein filed the  writ petition. Thereafter petition filed by Dibakar Pal challenging the  panel of 1980 was hopelessly belated. Likewise the present writ  petition filed by the respondents herein.  The explanation that the  respondents waited for the judgment in Mallick’s case or Dibakar’s  case, is hardly relevant.  In this connection, learned counsel invited  our attention to a recent decision of this Court in Chairman, U.P. Jal  Nigam and Anr. Vs. Jaswant Singh and Anr. [JT 2006 (10) 500].   In that case, referring to various decisions of this Court, it was  observed that those who sit on the fence and wait for a favourable  order  and thereafter wake up to take up the matter,  are not entitled  to any relief.  In para 13 of the judgment, this Court concluded as

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follows:  "In view of the statement of law as summarized  above, the respondents are guilty since the  respondents have acquiesced in accepting the  retirement and did not challenge the same in time.  If they would have been vigilant enough, they  could have filed writ petitions as others did in the  matter. Therefore, whenever it appears that the  claimants lost time or while away and did not rise  to the occasion in time for filing the writ petitions,  then in such cases, the Court should be very slow  in granting the relief to the incumbent. Secondly, it  has also to be taken into consideration the  question of acquiescence or waiver on the part of  the incumbent whether other parties are going to  be prejudiced if the relief is granted. In the present  case, if the respondents would have challenged  their retirement being violative of the provisions of  the Act, perhaps the Nigam could have taken  appropriate steps to raise funds so as to meet the  liability but by not asserting their rights the  respondents have allowed time to pass and after a  lapse of couple of years, they have filed writ  petitions claiming the benefit for two years. That  will definitely require the Nigam to raise funds  which is going to have serious financial  repercussion on the financial management of the  Nigam. Why the Court should come to the rescue  of such persons when they themselves are guilty  of waiver and acquiescence."    In the present case, the panel was prepared in 1980 and the  petitioners approached the court in 1989 after the decision in Dibakar  Pal’s case.  Such persons should not be given any benefit by the  Court when they allowed more than nine years to elapse.  Delay is  very significant in matters of granting relief and Courts cannot come  to the rescue  of the persons who are not vigilant of their rights.   Therefore, the view taken by the High Court condoning the delay of  nine years cannot be countenanced.         Now, coming to the question of merit, learned counsel for the  appellants submitted that subsequent two Division Benches in case  of Dibakar Pal and in the present case have not properly appreciated  Mallick’s case. Mallick’s case was firstly decided on concession and  secondly, it was clearly mentioned that  it shall not be treated as  precedent. Despite that treating Mallick’s case as precedent  subsequent two Division Bench followed it and decided the matter. In  order to appreciate the argument of learned counsel we recapitulate  the history of Mallick’s case.         Learned counsel invited our attention to the order passed by  learned Single Judge in writ petition filed by Mallick  which reads as  under : "After hearing learned advocates appearing  for the parties and considering the facts and  circumstances of the case I dispose of the  above Rule on the following terms \026 a)      The State respondents are directed to  create and/or sanction the posts for  appointment of the petitioners as  primary teachers in the District of Nadia  since it was submitted on behalf of the  District School Board, Nadia, that there  is no vacancy to appoint the petitioners; b)      The President, District School Board is  directed to appoint and/or absorb the  petitioners as Primary Teachers in  different schools under the District of

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Nadia either in the post of created  and/or sanctioned by the Government in  terms of this order or in the existing  vacancy, if any; c)      Such creation and/or sanction of posts  of primary teachers would be made by  the Government four weeks from the  date of communication of this order and  the appointment of the petitioners as  primary teachers by the District School  Board, Nadia would be made four  weeks thereafter, after observing all the  formalities as required under the law. d)      Leave is granted to the petitioners to  correct the addresses and the number  of the Interview Card sent by the  Employment Exchange Card of the  petitioner No.4 and correct the address  of the petitioner No.1 and they are  directed to communicate the same  before the authority concerned."

Aggrieved by this order dated 17th September, 1987, the  matter was taken up in appeal and on 14th February, 1989,  Division Bench passed the following order:  "By consent of parties, the impugned  decision is vacated and it is substituted  by the directions issued in the following  terms \026 1.      That writ petitioners will be offered  employment in the order in which  their names appeared in the cause  title of the writ petition in the posts of  trained primary teachers in Nadia  District in the existing vacancies and  in the existing vacancies arising in  immediate future, none other that the  writ petitioners shall be offered  employment in those vacancies until  the petitioners have been first offered  such appointment. 2.      In order to give effect to this direction,  relaxation in the Rules/Orders will be  pace it necessary and none of such  Rules/Orders shall be pleaded as a  bar to the giving of the offer of  appointment to any of the writ  petitioners pursuant hereto. 3.      Those of the writ petitioners who  accept the offer shall be actually  appointed within leave days of such  acceptance.  As undertaking to given  to the Court by the first respondent  (State of West Bengal) and the fourth  respondent (Director of School  Primary Education, West Bengal)  through their counsel Mr. Sankar  Mukherjee, which undertaking is duly  accepted, that the aforesaid  directions shall be punctually  implemented.  The Secretary to the  Government of West Bengal in the  Education Department will register in  the Registry an affidavit incorporating

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the undertaking in the record of the  present case upon its being field.   The learned counsel for the first and  fourth respondents has clarified that  his clients have agreed to an order  being passed in the aforesaid terms  as a special case and that it may not  be treated as a precedent."

When this order was not complied with, a contempt  petition was filed and in that contempt petition, the Division  Bench on 30th June, 1989 passed the following order : "In the existing eighty-two vacancies as on  June 30, 1989, appointments will be offered to  the writ petitioners on and from July 1, 1989  as per directions No.1 contained in the Appeal  Bench decision rendered on February 14,  1989 in Appeal from original Tender No.159 of  1988; in order to give effect to this direction,  necessary relaxation in the existing  rules/orders including the rules/orders relating  to reservation of vacancies and appointment  on compassionate grounds, will be deemed to  have been made in view of the direction No.2  issued in that behalf in the decision  aforementioned. The first eighty-two writ petitioners will report  at the office of the District School Board,  Nadia at Krishnagar on or before July 7, 1989  between 12 noon and 4 p.m. in order to collect  the appointment letters and they will join duty  on or before July 10, 1989 at the station at  which they are posted. In the vacancies occurring hereafter, none  other than the writ petitioners shall be offered  employment until all the petitioners have been  first absorbed; the same direction with respect  to the relaxation in existing rules/orders, which  were issued in the decision rendered on  February 14, 1989 will apply to such  appointments, which shall be made within  seven days of the occurrence of each  vacancies.  It is clarified that the bar against  appointment of any other person will cover  also appointment by way of adjustment as per  Government order dated November, 29, 1982. Liberty is reserved to the District School Board  to direct any of these writ petitioners to whom  appointment is offered to produce the identity  slip from their Advocate on record, after  joining duty, in case there is any doubt as to  his identity."

       After this, another writ petition was filed by Dibakar Pal and  others.  An order in that case was passed based on the decision of  Sirazul Haque Mallick’s case following the observations made in K.I.  Shephard & Ors. etc. v. Union of India [AIR 1988 SC 686] and  the  writ petition was allowed in the following terms : "This writ petition in my view is an instance of  multiplicity of proceedings and the State  respondents and the Council should have  allowed the petitioners the came benefits as  are made applicable to those petitioners in the

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aforesaid Civil Rule.  In view of the  pronouncement by this Court in the aforesaid  appeal on the basis of the judgment of the  Single Judge, I grant similar benefits to the  petitioners by directing the respondents to  appoint the petitioners as primary teachers  against the available vacancies within a period  of three months from date."

Aggrieved by the order of the learned Single Judge dated 13th  March, 1991, an appeal was preferred before the Division Bench and  the Division Bench by order dated 26th June, 1997 dismissed the  appeal on the preliminary objection regarding maintainability of the  appeal, i.e., that the appeal was preferred by Primary School Council  or by the Chairman,  Ad hoc Committee, Nadia District Primary  School Council was held to be not maintainable due to Section 37 of  the West Bengal Primary Education Act, 1970 read with Section 93  and the Notification issued by the Government of West Bengal dated  30th June, 1990.  It was  contended that the Primary School Council  was not formed as yet and the Ad hoc Committee is still discharging  its functions in terms of Notification in 1990.  Therefore, this objection  was sustained and the order of learned Single Judge was upheld by  the Division Bench.  However, the order passed in Dibakar Pals  judgment was not followed resulting in filing of the contempt petition.   Thereafter, the appointment was given and accordingly the contempt  petition was disposed of.  Then a review application was filed against  the order dated 26th June, 1997 and this came to be disposed of on  30th June, 1999.  In the review petition also the Court held that the  order passed on 26th June, 1997 will be without prejudice to the rights  and contentions of the parties and will not be treated as a precedent  by its own force in any other matter and the point remained open to  be decided by any appropriate proceedings in future as all the  petitioners have been given appointment in the matter.  Learned  counsel submitted that, in fact, the whole exercise in giving  appointment starts from the order dated 30th June, 1989 in Sirazul  Haque Mallick’s case and in that case it was clearly mentioned that  this will not be treated as a precedent.  Despite this, Sirazul Haque  Mallick’s judgment has been used subsequently in Dibakar Pal’s case  and Dibakar Pal’s judgment has been followed in the present  Sristidhar Biswas’s case.  This clearly goes to show that  both  Division Bench did not apply their mind to the clear observation in  Sirazul Haque Mallick’s case that this case shall not be treated as a  precedent.  Sirazul Haque Mallick’s case never examined the validity  of the panel.  It was only on account of the concession the matter was  decided and it was clearly qualified that it shall not be treated as a  precedent.  We fail to understand how can Sirazul Haque Mallick’s  case be treated to be a blank cheque for passing appointment orders  in subsequent writ petitions in the case of Dibakar Pal and Sristidhar  Biswas (impugned order in the present case) despite the fact that in  Sirazul Haque Mallick’s case, the Division Bench presided by the  Chief Justice Desai (as he then was) clearly clarified that the order is  passed on concession.  Such order on concession followed with  clarification that it shall not be treated as precedent,  can be taken as  binding precedent to be followed.  We do not want to comment  further, but we must make it very clear that any order passed on  concession does not lay down the law and it cannot be followed as a  precedent.  But regretfully the Single Judge and the Division Bench  subsequently have taken it to be a law and followed the precedent  giving relief to the persons leaving behind large number of persons  who were on the panel and who were not parties before the Court.  The Court should keep restrain before passing order saddling State  Government with financial burden. A panel of 1980 was kept alive up  to 2004 without realizing  that by this time many more aspirants are  waiting in queue. That was not the correct approach and we cannot

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countenance such action.   This Court in the case of  Mittal Engineering Works (P) Ltd.  v.  Collector of Central Excise, Meerut reported in (1997) 1 SCC 203   has  observed as follows: " A decision cannot be  relied upon in support of a  proposition that it  did not decide."

       Likewise, in the  case of  Arnit Das  v.  State of Bihar  reported  in (2000) 5 SCC488, this  Court has observed  as follows:         "When a particular point of law is not consciously  determined by the Court,  that does not form part of ratio  decidendi and is not binding."

       Therefore, the judgment  given in Mallick’s case   is not binding  as it does not decide the law.  It cannot be treated as  binding  precedent.  As a result of our above discussion, we are of the opinion that  the view taken in the present case   (Sristidhar Biswas’s case),  relying on the judgments of Sirazul Haque Mallick and Dibakar Pal,  cannot be upheld as the judgment given in Sirazul Haque Mallick’s  case was on concession and it was clearly mentioned that it shall not  be treated as a precedent.  Hence, we set aside the impugned order  of the Division Bench dated 11.6.2004. The appeal filed by the appellants is allowed.  There shall be no  orders as to costs.