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Judgment
These revision petitions u/s 115 of the CPC have been filed from the order dated 4-12-1991 passed in M.A. E.A.T. No. 28 of 1989 on the file of the XIX Additional City Civil Judge, Bangalore City and Member of Educational Tribunal, Bangalore, partly allowing the appeal and ordering that the impugned seniority list Annexure-L dated 16-6-1988 and the memo dated 5-8-1989 vide Annexure-M and the communication dated 28-8-1989 was set aside as illegal and arbitrary. These revision petitions arise from this common order and these have been filed by persons aggrieved from the order of the Tribunal.
Heard the learned Counsel for the applicants and opposite parties.
These revisions have been filed u/s 115 of the CPC. Section 115, sub-section (1) reads as under:--
"Section 115. Revision.-
(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears.-
(a)to have exercised a jurisdiction not vested in it by law, or
(b)to have failed to exercise a jurisdiction so vested, or
(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit".
A reading of this section per se reveals that revision u/s 115 lies only from the order of the Court subordinate to High Court. For the purpose of Section 115 of the CPC, we have to look to Section 3 of the CPC. Section 115 specifically provides which are the Courts which may be subordinate to High Court. Section 115 of the CPC reads as under.-
"3. Subordination of Courts.--For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court".
A reading of this Section 115 clearly reveals that District Court is subordinate to High Court. The "district" has been defined u/s 2(4) to mean the local limits within the jurisdiction of a Principal Civil Court of original jurisdiction which has been referred to in the Act as "District Court". It also includes the local limits of the ordinary, original civil jurisdiction of a High Court. Section 8 of the Karnataka Private Institutions (Discipline and Control) Act, 1975 provides that, an employee aggrieved from the order of the Board of Management may within three months from the date of communication of the order, appeal against such order to the Educational Appellate Tribunal constituted u/s 10. So Section 8 provides an appeal to the Educational Appellate Tribunal as constituted u/s 10. Section 10 of the Act provides for the constitution of the Tribunal and it provides that Government may constitute one or more Educational Appellate Tribunal and specify the jurisdiction by notification. I mean to say territorial jurisdictional extent. Sub-section (2) specifies that only a person who is or has been, a Judicial Officer not below the rank of a District Judge shall be appointed to the Educational Appellate Tribunal. It means a person acting as a District Judge or a person who has retired from the post of District Judge, he may be appointed to the Educational Appellate Tribunal. The very important aspect of this provision is that it mandates that the District Judge shall act only as Educational Appellate Tribunal. It is one of the trite principles of law that intention of the Legislature has to be derived firstly from the expressions used by it and the Legislature uses this expression that District Judge shall act as Educational Appellate Tribunal as it clearly mandates as a Tribunal or an Educational Appellate Tribunal. It has nowhere stated that in respect of Educational Appellate Tribunal the District Judge would act as a Civil Court. Where the Legislature intended to so provide, it has very clearly provided. For instance, in the case of Family Courts Act it has been provided very clearly vide Section 10(2) of the Family Courts Act that the Family Court shall be deemed to be Civil Court. Section 10 of the Family Courts Act vide sub-section (1) provides that.-
"Subject to other provisions of this Act and Rules, the provision of Civil Court or any other law for the time being in force shall apply to suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure) before a Family Court and for the purpose of the provisions of the Code, the Family Court shall be deemed to be a Civil Court and shall act as a Civil Court".
This I have quoted from the Family Courts Act to indicate that where the legislative intent has been to constitute a Court or Tribunal as Civil Court, it has so specifically provided that it shall be deemed to be Civil Court. Section 10 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 does not so provide, instead the language used in the proviso to Section 10(2) clearly states that District Judge of each district shall act not as a Civil Court but as an Educational Appellate Tribunal. Legislation has not to be interpreted against the express legislative intent as used by the expression used. Further, Section 11 of the Act clearly provides and debars the jurisdiction of the Courts of civil jurisdiction as regards the matter covered by the Act and over which the Educational Appellate Tribunal have been given jurisdiction. Section 11 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975, reads.-
"No Civil Court shall have jurisdiction in respect of any matter in relation to which the Educational Appellate Tribunal is empowered by this Act to exercise any powers".
Thus, it provides that Civil Court in respect of matter over which power has been conferred on the Educational Appellate Tribunal shall not have nor shall exercise its powers. Therefore, if we take the District Judge as Civil Court, then it may create conflict between Section 11 and Section 10 proviso. A proviso cannot be permitted to render nugatory a principal provision of the Act nor it cannot be allowed to negate the clear mandate of the provisions of the Act itself. It clearly reveals that the District Judge even when dealing with matters under this Act, he has to act as an Educational Appellate Tribunal. Under our Constitution of India, if we look to the provisions of Chapters V and VI of Part VI of the Constitution including Article 227 on one hand and the provisions of Part 14-A (XIV-A) where the scheme or Tribunal has been provided vide Articles 323A and 323B, it appears that framers of the Constitution have maintained a distinction between two types of institutions, the Court and the Tribunal constituted within the framework of provisions of Part 14-A. Apart from that, clear mandate of proviso is that District Judge shall act as Tribunal and clear mandate u/s 11 is that no Civil Court shall have jurisdiction in respect of any matter in relation to which the Educational Appellate Tribunal is empowered by this Act to exercise any powers as well as looking to the provisions of Section 6 coupled with Section 8 which makes one thing clear that Tribunal under Educational Appellate Tribunal cannot be deemed to be a Civil Court, and particularly when there is no express provision to that effect that it has to be deemed to be a Civil Court as there is a provision u/s 10 of Family Courts Act. Looking to all these aspects of the matter and the relevant case law on the subject which have been referred to me, in my opinion, the judgment delivered in the case of Hungund Taluka Banjara Vidyavardaka Sangha, Kamatagi v Rachappa Channamallappa Chittawadagi and Another , in which I have also referred to a Full Bench''s decision in the case of M/s. Excellent Educational Society and Others v Smt. J. Shahida Begum and Others, have taken the view that said decision is per incuriam judgment. This Court has held that Karnataka Educational Appellate Tribunal is not the Court. It is only the Tribunal. So the revision u/s 115 is not maintainable. In M/s. Excellent Educational Society''s case, supra, the attention of the Hon''ble Judges has not been invited to Section 8 and to Section 11 of the Act itself as well as to the expressions used in the proviso to sub-section (2) of Section 10 of the Act to the effect that "District Judge shall act as Educational Appellate Tribunal" which clearly mandate that they shall act as only Tribunal. Further, the Hon''ble Judges attention has not been drawn to scheme of the Constitution under which Tribunals and Courts have been treated as a distinct entity and have been provided distinctly. It appeared to me that above Full Bench''s decision being per incuriam judgment in view of the Supreme Court''s decision in the case of A.R. Antulay Vs. R.S. Nayak and Another, , the said decision case referred is not binding as a precedent as appears to be denude of precedent value. A decision is per incuriam or which has been arrived at in ignorance or forgetfulness of material provisions of the Act or of decision or without relevant provisions being brought to the notice of the Court and such decision i.e., per incuriam judgment cannot be said to be a binding precedent. I have held in the above revision petitions that no revision is maintainable from the order of Educational Appellate Tribunal which is nothing but a Tribunal and not a Civil Court. That decision covered the question involved in the present case. In view of the decision in Ban-jam''s case, supra, and for the reasons indicated above as well as therein, I hereby hold that present revisions are not maintainable as Educational Appellate Tribunal is not a Court. Revision, as such, has to be dismissed. No doubt, this Court is not expressing any opinion on the merits of the case. Revisions are dismissed on the preliminary ground that no revision lies against the order of the Tribunal. So it is always open to the petitioner to avail any other remedy in accordance with law if available.
Subject to above observations, revision petitions are dismissed.