Distt. Primary School Council & Anr Vs. Sristidhar Biswas & Ors  Insc 452
(25 April 2007)
A.K. Mathur & Dalveer Bhandari
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 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
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 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 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 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
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
"By consent of parties, the impugned decision is vacated and it is
substituted by the directions issued in the following terms
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
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 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
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 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 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
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