I.D. Sharma and Another vs State of Himanchal Pradesh and Others

V.D. Misra, C.J.—This writ petition raises an interesting, and indeed an important question. The Petitioners seek a direction from this Court prohibiting the State from preparing seniority list according to Division Bench decision of this Court, dated 7th October, 1977, in Civil Writ Petition No. 227 of 1974-P.S. Chandel and Ors. v. State and Ors.

The Petitioners were appointed by promotion to the Himachal Pradesh Forest Service Class II (referred to as Class II Service) with effect from 1st May, 1958. They were subsequently duly confirmed. At that time there were no statutory rules governing the conditions of Class II Service. There were, however, executive directions fixing the proportion of direct recruits and promotees. 60 per cent of the posts were to go to the direct recruits and 40 per cent were to go to the promotees. The Himachal Pradesh Forest Service Class II (Recruitment, Promotion and Certain Conditions of Service) Rules, 1966 ( referred to as Statutory Rules) were framed and enforced on 28/29th January, 1966. These, inter alia, provided that 25 per cent of the posts will be filled by direct recruitment whereas 75 per cent of the posts will be filled by promotion. Before the rules came into force, tentative seniority list of 20 officers belonging to Class 11 Service was pre pared and circulated. Pending finalization of this list Statutory Rules came into force. Now a new list of 20 officers of the cadre was prepared and circulated on 21st March, 1968. It may be noticed that whereas in the first tentative seniority list the ratio of 60 percent direct recruits and 40 percent promote was followed, the second list was prepared in accordance with the Recruitment Rules keeping the ratio of 25 percent by direct recruitment and 75 per cent by promotion. One Amin Chand Karwasra, a direct recruit, challenged the list dated 21st March, 1968, by Civil Writ Petition No. 37 of 1969 in the High Court of Delhi, Himachal Pradesh Bench. He claimed that the list should be prepared in accordance with the executive directions and not according to the Statutory Rules since they had no retrospective operation. P.N. Khanna, J., by his judgments dated 19th October, 1970, allowed the petition directing the Government of Himachal Pradesh "to prepare the seniority list wherein the seniority of the Petitioner and also of the other candidates shall be fixed in the ratio of 60 per cent direct recruits and 40 per cent promotees which was the ratio governing the recruitment of candidates on the date of the Petitioner''s joining the service." The State as well as two Respondents filed Letters Patent Appeals Nos. 39 and 40 of 1970 against the judgment of the learned single Judge. The appeals were allowed by a Division Bench in the following words:

The result is that we allow these appeals to the extent that we set aside the order of the learned single Judge giving a direction to apply as proposed rule or order fixing a quota of 60 : 40 as between direct recruits and promotees. While maintaining the order of the learned Judge quashing the impugned seniority list, which appeared to us to be based on no intelligible or explicable and justifiable policy, we leave the Government of Himachal Pradesh free to act in accordance with law, as found in the rules of 1966 in preparing a future list.

Amin Chand Karwasra filed a SLP (Civil) No. 57 of 1973 in the Supreme Court against tho decision of the Division Bench but this was dismissed on 12th March, 1974.

One P.S. Chandel along with others, who were all Class II Officers, filed Civil Writ Petitions Nos. 227 of 1974 and 6 of 1975. In the first petition the Petitioners claimed that their, promotions/appointments to Class-II Service were made on regular basis and not as "ad-hoc". In the second petition seniority list, dated 28th December, 1974, which was prepared in the ratio of 40 : 60 between promotees and direct recruits was challenged. These were heard by a Division Bench and decided on 7th October, 1977. It is apparent from the judgment that during the course of hearing a settlement was arrived at between the Petitioners and some of the Respondents. The judgment records.

It is evident from the above statements made by the learned Advocate of the Petitioners that so far as the Petitioners are concerned they now do not dispute the fact that before the recruitment rules of 1966 were framed appointment to Class II service of the Forest Department was consistently made on the basis of 40 per cent from the promotees and 60 per cent from the direct recruits.

The judgment shows that the attention of the Division Bench was drawn to the earlier Division Bench judgment in Letters Patent Appeals Nos. 39 and 40 of 1970 (hereinafter referred as Karwasra''s case). Finding that the State had now placed more documents which were not available to the L.P.A. Bench, it observed:

However, in view of the additional material now placed before us we are convinced that till the rules of 1966 were framed the Government followed a consistent policy of recruitment to Class II of Forest Department in the ratio of 40 : 60.

The Bench while allowing the writ petitions and setting aside the impugned order and the seniority list, proceeded to direct:

We, however, direct the Government to regularise the services of the Petitioners on the basis of the ratio of 40 per cent from services and 60 per cent from direct sources before 30th April, 1966, and thereafter in the ratio of 25 % from direct sources and 75 per cent from the ser vices by working out the roster in accordance with the directions already given above.

The Government proceeded to implement the directions given by the Bench in the case of Chandel. Seniority list (Annexure-PF) showing "seniority list of officers belonging to Himachal Pradesh as it stood on 31st October, 1966, and provisional joint integrated seniority list as it stood on 1st November, 1966,-H.P.F.S.-11" was issued on 2nd March, 1979. In this list the names of the present Petitioners Nos. 1 and 2 went down considerably in this seniority list as compared to the "final joint seniority list of the Himachal Pradesh Forest Service Class-II Officers as it stood on 1st November, 1966" issued on 21st July, 1973 (Annexure-PD-1). The Petitioners duly submitted their objections to the present seniority list but have apprehension that since the State has categorically stated in para No. 5 of the seniority list (Annexure-PF) that it is following the said judgment of this Court in Chandel''s case, their objections are bound to be dismissed.

It may be noticed at this stage that the present Petitioners were not parties to Chandel''s case though they were parties to the previous case of Karwasra. When the present writ petition came up for admission the Petitioners were directed to make all officers likely to be affected by the decision in this writ petition as parties. After the Petitioners made them the Respondents the case was directed to be placed before a Full Bench and that is bow the matter is before us.

Mr. Inder Singh, learned Advocate General, raised a preliminary objection about the maintainability of the petition on the ground that the Petitioners could not ask for a declaration that the previous judgment of this Court was a nullity. It was contended that principles of constructive res judicata bars the present petition. In this connection it was submitted that validity of the Statutory Rules was challenged in the case of Karwasra in which the Letters Patent Bench set aside the judgment of the learned single Judge upholding the ratio of 40 per cent for promotees and 60 per cent for direct recruits though up-holding the decision quashing the seniority list. Consequent action taken by the State was quashed and set aside by the Division Bench in Chandel�s case.

Mr. Chhabil Dass, Advocate for some of the Respondents, also raised preliminary objections. The first objection was that the first Petitioner has been promoted to the Indian Forest Service on 28th May, 1976 whereas the second Petitioner has been confirmed in the Indian Forest Services with effect from 1st July, 1977, and so they are not adversely affected. The second objection was raised on the ground of laches. It was submitted that one of the Petitioners was a party to the writ petition in the case of one S.C. Sharma which was withdrawn on 25th October, 1977, in terms of the judgment delivered in Chandel''s case. It is stated that since this Petitioner knew the judgment in Chandel''s case he should not have waited for practically three long years before filing the present petition.

Miss Kamlesh Sharma, learned Counsel for the Petitioners, submits, with reference to the preliminary objections, that the Petitioners are not claiming a redecision but are only praying for a writ of prohibition since the judgment of the sub sequent Division Bench in Chandel''s case is without jurisdiction and nonest. It is cotended that since the Petitioners were not a party to Chandel''s case so they had no right to challenge that decision by way of an appeal and, therefore, there was no question of any constructive res judicata. With regard to the preliminary objections raised by Mr. Chhabil Dass, it is submitted that the Petitioners have been adversely affected by the implementation of the judgment in Chandel''s case since their seniority has gone down. In of the allegation of laches, it is submitted that the Petitioners only came to know about the implications of the judgment in Chandel''s case on 21st March, 1979, when the impugned list was circulated.

It is not disputed that the Petitioners were not a party to Chandel''s case. In these circumstances they had no right to file any appeal against the decision given in Chandel''s case.

The decision in Chandel''s case being by a Division Bench adversely affecting the Petitioner, he could only appeal to the Supreme Court. Before one can approach the Supreme Court in appeal against the judgment of the High Court one has to ask the High Court to certify that the case is a fit one for appeal to the Supreme Court. Before a certificate can be granted by the High Court it is necessary that the applicant was a party in the case before the High Court Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, . It is true that a person who is not a party to a decision before the High Court and, therefore, cannot ask for certificate of fitness to appeal to the Supreme Court, may approach the Supreme Court for Special Leave to Appeal and the powers of the Supreme Court to grant the Special Leave are not limited to those who were a party to the proceedings before the High Court. But then Article 136 of the Constitution does not confer any right on such a person to appeal to the Supreme Court as a matter of right.

The learned Advocate General cites various decisions to support his contention that the Petitioners could have appealed. We will now notice them.

In the The Province of Bombay Vs. Western India Automobile Association, Bhagwati, J., observed:

A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the CPC or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases.

It was made clear that the question whether such leave should be granted or not lay within the discretion of the Court of appeal. Similar view was taken by a Division Bench of the Rajasthan High Court in Heersingh and Ors. v. Veerka and Anr. AIR 1958 Raj 181; a Full Bench of Andhra Pradesh High Court in Dimmiti Pullayya and Ors. v. Abdebolu Nagabhushanam and Ors. AIR 1962 AP 140 ; a Division Bench of Kerala High Court in Executive Officer, Sri Padmanabhaswamy Temple Vs. Raghavan Pillai and Another,

The Supreme Court in Smt. Jatan Kumar Golcha Vs. Golcha Properties (P) Ltd., while dealing with a case under Sections 483, 446 and 457 of the Companies Act, observed:

It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.

However, it will be noticed that a person who is not a party to a proceeding but has been affected adversely by its judgment cannot approach the appellate Court as a matter of right. Therefore, he cannot be said to be bound by that judgment on the principles of constructive res judicata. Before this principle can be applied a person has either to be a party to a proceeding or has a right to appeal against the judgment affecting a person adversely.

The decision by the Full Bench of the Madras High Court in K. Manathunainatha Desikar Vs. Sundaralingam and Others, is of no help to the present question. In that case the father of the Plaintiff was a party to the former suit and on the death of the father his legal representatives were brought on record though the Plaintiff of the subsequent suit, who was the son of the deceased father, was not brought on record as a legal representative. The only ground on which the binding nature of the prior suit was challenged was that the present Plaintiff was not brought on record in the former suit when pending the appeal his father died. The issue in controversy between the parties in the former suit was "as to the mode of devolution of the office of Dharmakartha and its validity, the then Plaintiff claiming that descendants in the female line were entitled to function as trustees along with descendants in the male line."It was in these circumstances that the Bench decided that the decision in the former suit had become final and would bind the Plaintiff and bar him from reagitating the issues.

The decision of the Supreme Court in Sahu Madho Das and Others Vs. Mukand Ram and Another, has no bearing on the question raised before us. In that case the Privy Council had construed a will in a previous litigation to which the subsequent Plaintiff was not a party. It was observed by the Supreme Court that though the Plaintiff was not a party to the previous litigation and the previous decision does not bind him "but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree." The judgment shows that the Supreme Court construed the will again and reached the same decision.

In K. Dheenadhayalan v. The State of Tamil Nadu and Anr. 1980 (2) S.L.R. 409, which was a decision by the Supreme Court, the facts were these. The Petitioner was a direct recruit to the cadre of Joint Commercial Tax Officer. After training he was on probation and was thereafter confirmed. He was later on promoted to the post of Commercial Tax Officer which was followed by another promotion to the post of Assistant Commissioner. One of the Respondents joined the post of Joint. Commercial Tax Officer as a transferee recruit and his period of probation started immediately. He was also later on duly promoted. A seniority list of directly recruited and the transferee Joint Commercial Tax Officers was prepared. In this list the Petitioner was shown at serial No. 43 while the Respondent was shown at serial No. 52. Some officers challenged the seniority list. The Petitioner was not a party to those writ petitions. The Madras High Court quashed the seniority list and directed a fresh determination of the inter se seniority on the principle enunciated in the judgment. As a result a fresh seniority list was prepared. Now the Petitioner went down to serial No. 49 while the Respondent came up at serial No. 48 and thus became senior to the petition The Petitioner filed a writ petition challenging the latter seniority list and inter alia contending that he was not bound by the decision of the High Court in the earlier writ petitions. The Supreme Court went into the facts and reached the same conclusion as was reached by the High Court in the previous writ petitions. However, the Court proceeded to repel the contentions of the Petitioner that he was not bound by the previous decision of the High Court and observed:

The principles propounded by the High. Court are principles of general application and drawn from the rules governing the service and the concepts implied therein. They are not principles applicable peculiarly only to the parties to the writ petitions. Indeed, we find no fault with the terms in which the principles have been enunciated. They are principles which could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers. Having due regard to the considerations mentioned above, we are of opinion that the places assigned in the second seniority list to the Petitioner and the second Respondent truly represent their relative seniority.

It will thus be seen that before repelling the contentions of the Petitioners the Supreme Court had reached the same conclusion as was reached by the High Court.

In the instant case the facts are otherwise. As already stated, in Karwasra''s case the Division Bench specifically set aside the single Judge''s decision laying down ratio of 40:60 between direct recruits and promotees and left the State free to prepare a fresh seniority list according to law. To this decision Petitioner No. 1 was a party. But in the subsequnet Division Bench judgment in Chandel''s case, to which the Petitioners were not a party, the Bench after analysing the decision of the Division Bench in Karwasra''s case directed the State to prepare the seniority list in the ratio of 40:60 between direct recruits and promotees. It may be clarified at this stage that the question of seniority between direct recruits and promotees in both the cases had arisenin respect of the persons recruited to Class-Il service before the Statutory Rules came into force laying down the pro portion of 25:75 between direct recruits and promotees. This Supreme Court, decision, therefore, will be of no help in the facts of the present case.

Preliminary objections raised by Mr. Chhabil Dass have no force. Simply because the Petitioners have since been promoted to Indian Forest Services does not mean that they are not adversely affected. It is not disputed that the fixation of the seniority of the Petitioners according to the ratio of 40:60 is likely to affect them adversely as distinguished from the fixation of seniority according to ratio 25:75. We also do not find any force in the objection that the petitions should be thrown out on the ground of laches.

Now we will deal with the contentions of the learned Counsel for the Petitioners on merits. The first contention is that the second Division Bench judgment in Chandel''s case is a nullity because it violated judicial propriety/precedent and also since it had no jurisdiction to over-rule the previous Division Bench judgment. In support of this contention it is submitted that the decision of the first Division Bench had merged into the order of the Supreme Court and had become final. It is also submitted that the decision of the first Division Bench operates as constructive res judicata between the State and all members of the service, and that the second Division Bench was bound by the first Division Bench. In support of this contention the learned Counsel for the Petitioners refers to various decisions which we will now notice.

In a Full Bench of the Madras High Court in Gunda varapu Seshamma v. Kornepati Venkata Narasimharao and Ors. AIR 1940 Mad 356, Leach, C.J., observed:

While a Judge of the High Court sitting alone is not bound on a question of law the decision of another Judge sitting alone this principle goes no further. The Division Bench is the final Court of Appeal in Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. If a Division Bench does not accept as correct the decision on a question of law of another Division Bench, the only right and proper course to adopt is to refer the matter to a Full Bench for which the rules of this Court provide. If this course is not adopted the Courts subordinate to the Court are left without guidance. Apart from the impropriety of an Appellate Bench refusing to regard itself bound by a previous decision on a question of law of an Appellate Bench of equal strength and the difficulty placed in the way of Subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time.

The Supreme Court decision in Saliti Madho Das (supra) is cited in support of the contention that the decision in Karwasra''s case should have been treated as a judicial precedent for persons-4 who were not parties in the first case. It may be repeated that in that case a will came to be construed by the Judicial Committee of the Privy Council and the Supreme Court came to the conclusion that this decision amounted to a judicial precedent about the construction of the will, "a precedent with which we respectfully agree". But this judgment shows that the Supreme Court had given a finding of its agreement with the judicial precedent.

In Mahadeolal Kanodia Vs. The Administrator-general of West Bengal, the Court observed:

We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajin Debi and Another Vs. Satyadhyan Ghosal and Others, , was cited before the learned judges who heard the present appeal they took on them selves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. 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 co-ordinate 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 could 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.

As far as we are aware it is the uniform practice in the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.... But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts in such matters.

But this judgment does not say that the decision of the subsequent Division Bench overruling the decision of the previous Bench is to be treated as one without jurisdiction or even as per incuriarn. It may also be noticed that the Supreme Court had u the decision or the subsequent Division Bench which had overruled the previous Division Bench on a question of law.

In Jaisri Sahu Vs. Rajdewan Dubey and Others, the Supreme Court, while reiterating its view in Mahadeolal Kanodia''s case, quoted with approval the following from Haisbury''s Laws of England, third edition, Vol. 22, para 1687, pp. 799-800:

The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords.

The Court also noticed the view of the High Courts of Andhra Pradesh and Nagpur in the following words:

In Katragadda Virayya Vs. Katragadda Venkata Subbayya, , it has been held by the Andhra High Court that under the circum stances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in AIR 1943 340 (Nagpur) The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other.

It will be noticed that the Supreme Court again left the question open whether the decision of the subsequent Bench would be per incuriam or not.

The decision of the Supreme Court in Smt. Somavanti and Others Vs. The State of Punjab and Others, , does not seem to have any relevance to the question raised before us. In that case the Supreme Court was considering whether its previous decisions need reconsideration because of the fact that a particular argument was not advanced and considered in those decisions. The Court while holding that the previous decisions were binding on it observed:

The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was sub sequently advanced was actually decided. That point has been specifically decided in the three decisions referred to above.

It may, however, be added that this decision does not imply that the Supreme Court cannot differ from its previous decisions.

In Shri Bhagwan and Another Vs. Ram Chand and Another, the Supreme Court again reiterated its view and emphasized:

....considerations of judicial propriety and decorum require that if a learned singe 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 re-considered, 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.

Once again there was no pronouncement about the decision of the learned single Judge being without jurisdiction or per incuriam. The same view was reiterated by the Supreme Court in Tribhuvandas Purshottamdas Thakur Vs. Ratilal Motilal Patel, In Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. and Others Vs. State of Andhra Pradesh and Others, the Supreme Court had to express its displeasure in similar circumstances where a subsequent Division Bench, whose decision was under appeal, had ignored a previous decision of another Bench. Again it may be noticed that the decision under appeal was up-held. The Supreme Court in K. Balakrishna Rao and Others Vs. Haji Abdulla Sait and Others, , reiterated the same principle.

A Division Bench of the Bombay High Court in Baburao Govindrao Shirbhate and Others Vs. The Collector, Amravati and Others, , refused to entertain a fresh writ petition in respect of the same cause and for similar relief for which an earlier writ petition had been dismissed though in the latter writ petition some of the persons, who were parties now, were not parties in the previous petition, on the ground:

The judicial propriety in such matters require to uphold the orders made by the co-ordinate division of the High Court and not to permit any circumvention thereof by successive writ petitions.

In Sidheswar Ganguly Vs. The State of West Bengal, the Supreme Court found that while one Division Bench of the Court had dismissed a criminal appeal, another Division Bench of the Court had granted ''leave to appeal'' to the Supreme Court after criticising the decision of the previous Bench. In these circumstances the Supreme Court observed that the subsequent Bench acted "contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench." It was in the aforementioned peculiar facts that the Supreme Court observed that the subsequent Division Bench had no jurisdiction to sit in judgment on the decision of another Division Bench. This was held because the parties in the matter remained the same and the subsequent Division Bench while exercising jurisdiction in order to find out whether the matter could be certified as fit for appeal to the Supreme Court went beyond its jurisdiction to hold that the decision of the previous Division Bench was indeed wrong. The Supreme Court never ruled that where a subsequent Division Bench differs from the earlier Division Bench on a question of law, the decision of the subsequent Division Bench is without jurisdiction or per incuriam. It may be reiterated that a decision of a Bench on facts has no relevance to another case coming up for decision before another Bench.

Now the principle of per incuriam which was noticed by the Supreme Court from the Haisbury''s Laws of England has been enunciated in various English decisions. In Young v. Bristol Aeroplane Co. Ltd. 1944 (2) AELR 293, the Court of Appeal held that it is bound to "follow previous decisions of its own as well as those of Courts of co ordinate jurisdiction with three exceptions:

(a) It may choose between two conflicting decisions of its own:

(b) it must refuse to follow a decision of its own which, though not expressly overruled, is inconsistent with a decision of the House of Lords;

(c) it is not bound to follow a decision of its own given per incuriam."

In Huddersfield Police Authority v. Watson 1947(2) AELR 193, King''s Division Bench, after referring to Young''s case, observed:

What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute.

In Morelle, Ltd. v. Wakeling 1955 (1) AELR 708, a decision by the Court of Appeal, Sir Raymond Evershed, M.R., observed:

As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision, or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, consistently with the stare decisis rule, which is an essential feature of our law, be of the rarest occurrence.

In Oscroft and Ors. v. Benabo and Anr. 1967(2) AELR 548, a decision by the Court of Appeal, Diplock, L.J., observed:

A Court may lack "jurisdiction" to hear and determine a particular action or application because (i) of the composition of the Court (for example, the bias of the judge), or (ii) the subject-matter of the proceedings (for example, title to foreign land), or (iii) the parties to the proceedings (for example, diplomatic immunity), or, although having jurisdiction to hear and determine the proceedings, it may lack jurisdiction to make the kind of order made....

Before we go into the question whether the decision of first or second Bench can be said to be per incuriam we would like to dispose of other questions raised by Miss Sharma. What is the effect of dismissal of a petition for special leave to appeal to the Supreme Court? This question has been raised by the Petitioners to show that the judgment of this Court in Karwasra''s case had the seal of approval of the Supreme Court.

We may straightaway point out that the order refusing special leave to appeal under Article 136 of the Constitution does not amount to a judgment of the Supreme Court in that case. The leave may be refused not only because the impugned judgment decides a question of fact or law correctly but for other reasons also. It may be remembered that leave is asked for only when a person has no right to appeal. Of course, where a person has a right of appeal and this appeal is dismissed in limine the position would be different. Such a dismissal will have a seal of approval of the appellate Court.

A Division Bench of the Madras High Court in the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras and Anr. AIR 1958 Mad 398, rejected the contention "that once the aggrieved party had recourse to Article 136 of the Constitution though it failed, this Court would have no jurisdiction to grant a rule nisi under Article 226 of the Constitution." It, however, proceeded to observe:

"That the Supreme Court declined to exercise its discretion in favour of the Petitioner appears to us to be a factor that ought to be taken into account and given due weight, when we are called upon to exercise our discretion in favour of interference with the award of the Tribunal on some of the very grounds specified in the application for leave to appeal that failed." The Court expressly ruled that an appeal as a matter of right has to be distinguished from the application for leave to appeal because unless the leave is granted there is no appeal before the Supreme Court.

Our attention has been drawn to a decision of the Supreme Court in Raja Jagannath Baksh Singh Vs. The State of Uttar Pradesh and Another, in support of the Petitioners contention that the dismissal of a petition for special leave to appeal to the Supreme Court would amount to res judicata. We are afraid that this decision does not support the Petitioners contention at all. In that case the Petitioner obtained a certificate to appeal to the Supreme Court from the High Court but failed to deposit necessary security as required by the rules of High Court. The consequence was that the certificate was cancelled. Subsequently a writ petition was filed in the Supreme Court by the Petitioner under Article 32 of the Constitution of India. The Supreme Court ruled that under these circumstances the Petitioner will be bound by the principle of res judicata. The reason seems to be simple. The moment the certificate was granted the result was that an appeal came to be pending and the revocation of the certificate amounted to a dismissal of the appeal for non prosecution. This has no bearing to the question raised before us.

The decision of the Supreme Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, , has no relevance. In that case the Petitioner asked for special leave to appeal against the decision of the Labour Court. When the SLP came up for admission, the Supreme Court rejected the SLP with regard to the relief of reinstatement but granted leave limited to the relief to the grant of full back wages. While arguing the Counsel for the Appellant tried to argue on the question on which the special leave had been refused. In these circumstances the Court observed "Once leave against relief of reinstatement was rejected, the order of the Labour Court holding that retrenchment was invalid and it was motivated and the relief of reinstatement must follow, has become final. Under no pretext or guise it could now be reopened." It was further observed that the scope and ambit of Article 136 of the Constitution cannot be so construed as to confer a right of appeal to a party when he has none under the law. It may at this stage be repeated that the later decision of the Division Bench in Chandel''s case was given between persons some of whom were not parties to the decision of the previous Division Bench in Karwasra''s case.

Similarly the judgment of the Division Bench of the Delhi High Court in Ram Gopal v. Union of India and Ors. 1972 S.L.R. 258, has no relevance since the question before the Division Bench was about the effect of the writ petition being dismissed in limine.

The next question raised by the learned Counsel for Petitioners is that the Division Bench in Chandel''s case had no jurisdiction to decide the matter. What is meant by jurisdiction has been the subject matter of various decisions. A Full Bench of the Nagpur High Court in Govindprasad and Anr. v. Pawan Kumar AIR 1952 Nag 278, after reviewing various decisions, observed:

There is a clear distinction between the jurisdiction of the Court to try and determine a matter and the erroneous action of such Court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the Court does act. Therefore, the question whether a condition necessary for the exercise of that power exists or not is a matter included in the conception of jurisdiction and is not related to the exercise of jurisdiction.

The Supreme Court in Smt. Ujjam Bai v. State of Uttar Pradesh and Anr. AIR 1962 S.C. 1621, clarified the concept of jurisdiction thus:

Jurisdiction means authority to decide. Whenever ajudicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion of the inquiry.

....A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e. has jurisdiction) to determine....

The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

The decision of the Supreme Court in Ittavira Mathai Vs. Varkey Varkey and Another, illustrates the distinction between jurisdiction to try and determine the matter, and the erroneous exercise of that jurisdiction. In that case the Court had proceeded to pass a decree in a suit which was barred by limitation. It was contended before the Supreme Court that u/s 3 of the Limitation Act it was the duty of the Court to give effect to this provision even though the provision of limitation was not referred to in the pleadings. It was ruled that it cannot be said that "where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." It was also ruled that where a Court having jurisdiction over the subject matter and the party passes a decree it cannot be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by time.

In Raja Soap Factory and Others Vs. S.P. Shantharaj and Others, the Court observed:

By "jurisdiction" is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding; its exercise can not be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it.

In Official Trustee, West Bengal and Others Vs. Sachindra Nath Chatterjee and Another, the Supreme Court, while answering the question as to what is meant by jurisdiction, after quoting with approval the observations of Mukherjee Acting C.J., in Hirday Nath Roy v. Ramchandra Barna Sarma ILR 48 Cal. 138, concluded thus:

From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. Therefore, the fact that Ramfry, J., had jurisdiction to pass certain orders either under the Indian Trusts Act, 1882, or under the Official Trustees Act, 1913, or under the Trustees and Mortgagees Powers Act, 1866, or under his inherent power is not conclusive of the matter. What is relevant is whether he had the power to grant the relief asked for in the application made by the settlor. That we think is the essence of the matter. It cannot be disputed that if it is held that the learned Judge had competence to pronounce on the issue presented for his decision then the fact that he decided that issue illegally or incorrectly is wholly besides the point.

It is no doubt true that the High Court while ''exercising its jurisdiction under Article 226 of the Constitution cannot so exercise its powers as to convert itself into a Court of appeal sitting in judgment over every Tribunal or Body discharging its quasi-judicial function (see Veerappa Pillai Vs. Raman and Raman Ltd. and Others, and Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, But in case the Court in exercising its jurisdiction erroneously acts as a Court of appeal, it does not mean that the judgment of the Court would be termed as without jurisdiction and non est. It will be a case of erroneous exercise of jurisdiction.

The second Division Bench while deciding Chandel''s case was exercising jurisdiction under Article 226 of the Constitution. It had the jurisdiction to decide the matter before it. It is true that this Bench did notice the earlier Bench decision in Karwasra''s case and it did proceed to observe that in the latter case all the relevant documents were not placed before it and, therefore, gave a differing judgment. It may be that the ''better course would have been to refer the matter to a larger Bench in view of the decision in Karwasra''s case and also to make the present Petitioners, who were parties to that case, parties to C''handel''s case for final determination. But all said and done it cannot be held that the Bench deciding Chandel''s, case was acting without jurisdiction or that decision was per incurium which can be ignored by the State. Various decisions discussed above lay down the proper procedure, to be followed whenever a question of law, already decided by a Bench, comes up for decision before another Bench of the same High Court. In the instant case we are not called upon to decide a question which has already been decided by the two Benches. It is, therefore, not for us to say which of the two decisions is correct. That would be exercising an appellate jurisdiction.

Reference has been made to a Full Bench of the Punjab and Haryana High Court in Indo Swiss Time Limited Vs. Umrao and Others, which observed that when judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. A Full Bench of the Karnataka High Court in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and Anr. AIR 1980 Kar 92, ruled that if two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. And in case both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts. It will be seen that both these rulings refer to the binding nature of the decisions of a superior Court when these are contradictory to each other. The question before us does not relate to a decision of a superior Court. Before us there are two decisions of two Benches of this Court which are contrary and we are to decide if the later decision is without jurisdiction and not binding on the State.

We may now look into the facts which the second Bench took into considertion while departing from the decision of the first Bench. The later Bench observed that all the necessary documents were not before the previous Bench when it decided the matter. The first Division Bench observed thus:

We are unable to find from the correspondence placed before us between the Assistant Secretary (Forests) to Himachal Pradesh Adminis tration and the Secretary to the Union Public Service Commission, anything which had taken the form of even an executive direction to anybody. We are, therefore, un able to hold that this correspondence proved that there was any rule or course of conduct formulated by the Administration of Himachal Pradesh even as a matter of some policy. Nor are we able to gather the exact reasons why this particular proportion had been proposed and agreed to.

In another part of the judgment the first Division Bench summarised the result thus:

The result is that we agree with the view taken by the learned Judge of the Himachal Bench of the Delhi High Court that the impugned list, with the background and context and contents of it, seems to us to be devoid of a just and reason able basis. It results in unjustifiable discrimination. It was, therefore, rightly quashed by the learned Judge. But we are not prepared to substitute the basis of 60% direct recruits against 40% promotees as necessarily correct for the purpose of giving the direction issued by the learned Judge. We think, with due respect, that such a direction amounts to a formulation of a rule on such a matter by the learned Judge himself which was not open to this Court.

While allowing the appeals the Court ordered:

The result is that we allow these appeals to the extent that we set aside the order of the learned single Judge giving a direction to apply a sup posed rule or order fixing a quota of 60:40 as between direct recruits and promotees. While maintaining the order of the learned Judge quashing the impugned seniority list, which appeared to us to be based on no intelligible or explicable and justifiable policy, we leave the Government of Himachal Pradesh free to act in accordance with law, as found in the rules of 1966 in preparing a future list.

Now the judgment of the learned single Judge reveals that letters numbers Ft. 45-167/56, dated 14th January, 1957; F/2/66/65-R III, dated February 20, 1957; 2/11/60 Apptt. dated December 6, 1962; and Ft. 3/24-A(5)59-PS, dated January 22, 1963, were considered by him. Out of these the first two letters find reference by the first Division Bench. However, the trend of the judgment, which refers to "the correspondence placed before us", shows that all the four letters must have been taken into consideration by the first Division Bench. The second Division Bench had before it additional correspondence consisting of documents which were before that Bench as Annexures R-7(A) to R-(7) (I). It is true that the second Division Bench was not correct in saying that letters dated 6th December, 1962 and 22nd January, 1963 (referred to by this Bench as Annexures R-3-C/3 and R-3/C-4) were also the additional correspondence before them, since as already stated, these were before the learned single Judge and were thus avail able to the first Division Bench though not expressly referred to in their judgment. We may now extract the relevant part of the judgment of the second Division Bench with advantage. It reads:

Our attention is, however, drawn to the judgment given by a Division Bench of this Court in Mr. Karuwasra''s writ petition which is found at Annexure ''C'' in C.W.P. No. 6 of 1975. It is observed in this judgment that this recruitment ratio of 40:60 cannot be considered as a rule by which the recruitment policy of the Government was governed so far as Class II service of the Forest Department was concerned. We, however, find that the said decision was based on two letters which are found in the record of C.W.P. No. 227 of 1974 at Annexures R-3-C/l (Page 114) and R-3-C/2 (Page 116). However, in these writ petitions the Government have produced some more correspondence to show that before the Rules of 1966 were framed and put into force, appoint merit to Class Ii Service of the Forest Department was always made in the ratio of 40:60, as a result of a decision to that effect already taken by the Government. This further correspondence is found at Annexures R3-C/3 and R3-C/4, as well as other Annexures found at R-7(A) (Page 64), R-7(B) (Page 65), R-7 (C) (Page 66), R-7 (D) (Page 67), R-7(E) (Page 68), R-7(F) (Page 69), R-7 (G) (Page 70), R-7(H) (Page 71), R-7(1) (Page 72). This additional material which is produced before us in these writ petitions was not before the Division Bench when it decided Mr. Karwasra''s case. After going through this additional material we find that there is no escape from the conclusion that before the Rules of 1966 were put into force the appointment and recruitment to the Class II service of the Forest Department was made in the ratio of 40 per cent from services and 60 per cent from the direct sources. This particular practice of making the appointment in this ratio is found to have remained in vogue right from the year 1957 to the year 1968. The additional material which is produced before us in this writ petition clearly indicates that the Petitioners'' appointments on the higher posts were made ad-hoc simply because it was not possible for the Department to carry out the above stated ratio of 40:60. However, when ever it was possible to fill in the vacancies in the quota of the direct recruits the Government have done so. But for various reasons, at different times, the filling of the quota of the direct recruits was not possible and, therefore, the Government recruited the Petitioners even though there was no vacancy in the quota allotted to the services. It was for this reason that the Petitioners'' promotions'' were initially made adhoc. Since the Division Bench which decided Mr. Karwasra''s case had not before it the advantage of this additional material, the Division Bench came to its own conclusion as regards this ratio. But in view of the additional evidence which is produced before us we find that the recruitment and appointment to Class II posts in the Forest Service was, openly and within the knowledge of all concerned persons, made only in the ratio of 40 percent from services and 60 percent from the direct sources. In absence of any statutory rules of recruitment and appointment to Class II service in the Forest Department, it was open to the Government to act under Article 162 of the Constitution and to adopt a particular policy and this policy is clearly evident from the documents produced in these cases.

After making a detailed reference to Annexures R-C/1 and R-3-C/2, the second Division Bench observed:

These two letters were produced before the Division Bench which decided Mr. Karwasra''s case. However, from these two letters the Division Bench could not find that this quota of 40:60 was fixed persuant to any rule made by the Government. In other words, the Division Bench was not satisfied about the existence of any established practice amounting to rule as regards this quota from this correspondence between an Assistant Secretary and the Public Service Commission. The Government have, therefore, produced further documents in these cases to convince us that this quota was adopted at Government level in exercise of its executive powers under Article 162 as a rule of recruitment. We shall, therefore, now refer to this further correspondence.

After referring to Annexures R-3-C/3 and R-3-C/4, the Bench observed:

The above referred two documents Annexures R-3-C/3 and R-3-C/4 thus conclusively show that the ratio of 40:60 was fixed at the Government level in exercise of Government''s executive power , and was adopted as a rule of recruitment till the, formal statutory rules were finalised and notified according to law, and that till the direct recruits were actually available to fill their quota, persons from lower grade were promoted adhoc to Class II service for the purpose of running the administration. This correspondence between the Chief Secretary and the Commission, which conclusively establishes the policy of the Government, was not placed before the Division Bench in the case of Mr. Karwasra.

In another part of the judgment the Bench reiterated its view that because of additional material placed before them they were convinced that till the Rules of 1966 were framed the Government followed a consistent policy of recruitment to Class II service of the Forest Department in the ratio of 40:60. Reference was again made to other documents Annexures R-7 (A) to R-7(I) and it was observed:

These documents leave no doubt in our mind that the ratio of 40:60 was worked upon and remained in existence for a number of years and it was for that reason that the ad hoc and temporary promotions of service recruits were required to be extended from time to time with the approval of Union Public Service Commission.

In other words, the judgment of the second Division Bench leaves no doubt that it had taken a contrary view specifically on the ground that certain documents which were placed before it were not available to the first Division Bench.

In the cirucumstances detailed above we cannot hold that the subsequent Division Bench had no jurisdiction to decide the question which was raised before it. It had duly taken notice of the previous decision in Karwasra''s case and had proceeded to give its reason for giving a different judgment. The subsequent Bench in Chandel''s case had the jurisdiction to decide the matter which was raised before it and it decided. Even if it decided erroneously (which is not for us to say since we are not sitting in Appeal) it cannot be said to be not binding on the State which was a party to it. It would be noticed that whereas in Karwasra''s case the Division Bench did not give any specific directions. to the State and left it "free to act in accordance with law as found in the rules of 1966 in preparing a future list" of the persons recruited to Class II Service of the Forest Department before the statutory rules came into force, however, the subsequent Division Bench in Chandel''s case proceeded to give a specific direction to the State which was binding on it.

We may repeat with advantage the decision of the Madras High Court in K.S. Nageswara Ayyar v. S. Ganesa Ayyar AIR 1942 Mad 675, that a distinction has always to be made between the competency to make an order and correctness of the order on the merits where the Court had the jurisdiction to decide the question. In that case a debtor, who was actually residing in Tenjore falsely stated in his petition and affidavit in the High Court that he was residing within the territorial limits of that Court''s original civil jurisdiction. By making this false allegation he gave jurisdiction to the Court to decide the insolvency application. The decision was challenged as without jurisdiction on the ground that a false averment cannot give jurisdiction to the Court. It was ruled that finding involved a question of fact whether the person was residing within the territorial limits of the Court''s original civil jurisdiction and simply because this fact has been wrongly decided does not affect the jurisdiction of the Court.

The decision of the Bench in Karwasra''s case cannot be termed as judgment in rem which was binding on all persons. Sections 40 - 44 of the Indian Evidence Act deal with the relevance of the evidence and it is Section 41 which talks about the judgments in rem and makes them as conclusive proof. Admittedly in this case the decision cannot be called as judgment in rem.

Mr. Kapil Dev Sood, learned Counsel for the Petitioner in C.W.P. No. 141 of 1980, submits in the alternative that we should recall the decision of the second Division Bench in Chandel''s case since the Petitioners were not parties to the same. He seeks support from the Supreme Court decision in Shivdeo Singh and Others Vs. State of Punjab and Others, We find that this decision does not help him. In that case a learned single Judge of the Punjab High Court after deciding the first writ petition concerning the allotment of land in a particular village under the Administration of Evacuee Property Act, 1950, had proceeded to review his previous order in the subsequent writ petition filed by other allottees of the land who were adversely affected by the previous judgment. It was contended on behalf of the Appellants before the Court that the Judge had no power to review its own order and subsequent judgment was without jurisdiction. Repelling this contention the Court observed:

It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interest of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the Respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J.

If at all, this judgment may seem to support the Respondents that the subsequent Division Bench in Chandel''s case had the jurisdiction to redecide the question decided in Karwasra''s case because of the additional evidence which was placed before that Bench.

The result is that we cannot accept the prayer of the Petitioners that the State be asked not to follow the decision of the subsequent Division Bench in Chandel''s case for preparing seniority list in respect of the persons who were promoted to Class II Service of the Forest Department before the statutory rules came into force. The petition is, therefore, dismissed. In the circumstances of the case the parties are left to bear their own costs.