{"id":214169,"date":"2007-04-25T00:00:00","date_gmt":"2007-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nadia-distt-primary-school-vs-sristidhar-biswas-ors-on-25-april-2007"},"modified":"2018-06-09T07:03:29","modified_gmt":"2018-06-09T01:33:29","slug":"nadia-distt-primary-school-vs-sristidhar-biswas-ors-on-25-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nadia-distt-primary-school-vs-sristidhar-biswas-ors-on-25-april-2007","title":{"rendered":"Nadia Distt. Primary School … vs Sristidhar Biswas & Ors on 25 April, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nadia Distt. Primary School … vs Sristidhar Biswas & Ors on 25 April, 2007<\/div>\n
Author: A Mathur<\/div>\n
Bench: A.K. Mathur, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  1020 of 2005\n\nPETITIONER:\nNadia Distt. Primary School Council & Anr\n\nRESPONDENT:\nSristidhar Biswas & Ors\n\nDATE OF JUDGMENT: 25\/04\/2007\n\nBENCH:\nA.K. Mathur & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nA.K. Mathur, J.\n<\/p>\n
\tThis appeal is directed against order dated 11th June, 2004
\npassed by the Division Bench of Calcutta High Court whereby the
\nDivision Bench affirmed the order of learned Single Judge directing
\nthat all the 55 writ petitioners be appointed as teachers within a
\nperiod of six weeks.  Aggrieved against this order, the Nadia District
\nSchool Council filed an appeal before the Division Bench.  The
\nDivision Bench affirmed the order of learned Single Judge by order
\ndated 11th June, 2004 and hence the present appeal.
\n\tIn order to dispose of this appeal, few facts may be
\nrecapitulated.  A panel for appointment of primary teachers was
\nprepared in 1980 for the District of Nadia in which 1965 candidates
\nwere included in the panel.  Out of this panel, only 600 were trained
\ncandidates.  Rule 3(d) of the Recruitment Rules provided that while
\npreparing the panel for appointment to the post of primary teachers,
\npreference shall be given to the trained candidates in such a manner
\nthat all additional posts sanctioned by the Government from time to
\ntime due to enhancement in roll strength in existing schools and at
\nleast 5- per cent of the normal vacancies in such schools are filled up
\nby trained candidates only, if sufficient number of trained candidates
\nare available.  By Notification dated 26th October, 1971, the
\nGovernment of West Bengal recognized the training as an additional
\nqualification for appointment as Assistant Teacher.  Then again by
\nNotification dated 5th September, 1973, it was provided that while
\ngiving appointment out of the panel already prepared, preference
\nshould be given to the trained candidates for appointment to all the
\nadditional posts.  The preparation of panel omitting to include trained
\ncandidates was challenged by Sirazul Haque Mallick and 107 other
\ncandidates in C.R. No.2522(W) of 1981.  That writ petition was
\nallowed on 17th September, 1987.  Aggrieved by that order, an appeal
\nwas preferred being F.M.A.T. No.159 of 1988 by the State.  The order
\npassed in the writ petition was modified by the Division Bench by its
\norder dated 14th February 1989 directing to give appointment to the
\npetitioners in the existing vacancies and in vacancies arising in
\nimmediate future and that appointment would not be offered to any
\none other than the petitioners.  This order was passed on concession
\ngiven by the State.  This order was not complied with.  Therefore, a
\ncontempt petition was filed and on 30th June, 1989 in the Contempt
\nPetition in case of Sirazul Haque Mallick and 107 others, they were
\ngiven appointment.  Thereafter on 16th July, 1989, one Dibakar Pal
\nand 87 others moved a writ petition being C.O. No.11154(W) of 1989.
\nThis writ petition was also allowed by the order dated 13th March,
\n1991 on the ground that the petitioners are similarly circumstanced as
\nin the case Sirazul Haque Mallick and 107 others.  Therefore, no
\ndifferent treatment can be given and they were also given benefit of
\nappointment.  Against this order, an appeal was preferred before the
\nDivision Bench which was dismissed.  Thereafter, a contempt petition
\nwas filed,  in pursuance to that,  an order dated 23rd June, 1999 was
\npassed and Dibakar Pal and 87 others were given appointment.
\n\tThereafter the present writ petition was filed on 2nd August,
\n1989.  This writ petition was also allowed by order dated 17th January
\n2001 on the basis of the judgments in Sirazul Haque Mallick and
\nDibakar Pal’s cases.  The petitioners in this petition, i.e., petitioner
\nand 54 others were trained candidates.  Therefore, the learned Single
\nJudge directed appointment of these 55 persons on the same
\nrationale as in the case of Sirazul Haque Mallick and Dibakar Pal.
\nHowever, the learned Single Judge did not allow similar relief to other
\npersons who were added as parties between 1999 and 2000.
\nAggrieved by this order, an appeal was filed before the Division
\nBench and an objection of delay was raised.  However, the Division
\nBench overruled the objection of delay but declined to give any
\nbenefit to the persons who were added in this writ petition in 1999
\nand 2000 and held that no relief to these persons can be given as
\nthey approached belatedly but gave benefit to 55 persons on the
\nground that the State did not want to expose irregularity and illegality
\ncommitted in selection in Sirazul Haque Mallick’case and on similar
\nreasoning Dibakar Pal’s petition was also allowed and soon after
\nDibakar Pal’s case, the present petition was filed in 1989.  Therefore,
\nthe Court held that the petitioners approached on 2nd August, 1989
\nsoon after the disposal of Dibakar Pal’s writ petition dated 16th July,
\n1989.  Hence, there is no delay in the appeal.  Secondly, it was also
\ncontended that since the life of panel has been exhausted, the
\nappointment cannot be made.  This was also overruled.  It was
\ncontended that Sirazul Haque Mallick’s case and Dibakar Pal’s case
\nalso cannot be treated as a precedent because in Sirazul Haque
\nMallick, the order was passed by concession.  But this objection was
\noverruled by the Division Bench.  Next, it was contended on the basis
\nof principle of sub-silentio that a decision which has not been given
\non consideration of merits and issues involved therein, that cannot be
\nlaw declared by the Court and cannot have binding effect. This
\nobjection was also overruled by the High Court.  Lastly, it was
\ncontended that even if any irregularity or illegality has been
\ncommitted, that cannot be perpetuated.  But this submission was also
\noverruled by the Division Bench.  Hence the Division Bench
\ndismissed the appeal filed by the State affirming the order of learned
\nSingle Judge to give appointment to 55 persons.  Justice Sinha,
\nanother member of the Division Bench, agreed with  the view taken
\nby the senior Judge, but  observed that though the order passed in
\nSirazul Haque Mallick’s case in 1982 and the series of litigation,
\nthese persons did not approach the court because they might be
\nengaged in other avocations and the Court further observed that law
\nand equality help the vigilant and not the indolent.  However, the
\nlearned Judge agreed with the senior Judge and directed that only
\nthose 55 persons would be given the relief.  Aggrieved by this order,
\npresent appeal was filed by the State.\n<\/p>\n
\tWe have heard learned counsel for the parties.  Learned
\ncounsel for the appellants submitted that the persons who had not
\napproached the Court in time and waited for the result of the decision
\nof other cases cannot  stand to benefit.  The Court only gives the
\nbenefit to the persons who are vigilant about their rights and not who
\nsit on fence. Mallick’s case was decided in 1982,  in 1989 Dibakar Pal
\nfiled the petition and thereafter in 1989 respondents herein filed the
\nwrit petition. Thereafter petition filed by Dibakar Pal challenging the
\npanel of 1980 was hopelessly belated. Likewise the present writ
\npetition filed by the respondents herein.  The explanation that the
\nrespondents waited for the judgment in Mallick’s case or Dibakar’s
\ncase, is hardly relevant.  In this connection, learned counsel invited
\nour attention to a recent decision of this Court in Chairman, U.P. Jal
\nNigam and Anr. Vs. Jaswant Singh and Anr. [JT 2006 (10) 500].
\nIn that case, referring to various decisions of this Court, it was
\nobserved that those who sit on the fence and wait for a favourable
\norder  and thereafter wake up to take up the matter,  are not entitled
\nto any relief.  In para 13 of the judgment, this Court concluded as
\nfollows:\n<\/p>\n
 “In view of the statement of law as summarized
\nabove, the respondents are guilty since the
\nrespondents have acquiesced in accepting the
\nretirement and did not challenge the same in time.
\nIf they would have been vigilant enough, they
\ncould have filed writ petitions as others did in the
\nmatter. Therefore, whenever it appears that the
\nclaimants lost time or while away and did not rise
\nto the occasion in time for filing the writ petitions,
\nthen in such cases, the Court should be very slow
\nin granting the relief to the incumbent. Secondly, it
\nhas also to be taken into consideration the
\nquestion of acquiescence or waiver on the part of
\nthe incumbent whether other parties are going to
\nbe prejudiced if the relief is granted. In the present
\ncase, if the respondents would have challenged
\ntheir retirement being violative of the provisions of
\nthe Act, perhaps the Nigam could have taken
\nappropriate steps to raise funds so as to meet the
\nliability but by not asserting their rights the
\nrespondents have allowed time to pass and after a
\nlapse of couple of years, they have filed writ
\npetitions claiming the benefit for two years. That
\nwill definitely require the Nigam to raise funds
\nwhich is going to have serious financial
\nrepercussion on the financial management of the
\nNigam. Why the Court should come to the rescue
\nof such persons when they themselves are guilty
\nof waiver and acquiescence.”\n<\/p>\n
 In the present case, the panel was prepared in 1980 and the
\npetitioners approached the court in 1989 after the decision in Dibakar
\nPal’s case.  Such persons should not be given any benefit by the
\nCourt when they allowed more than nine years to elapse.  Delay is
\nvery significant in matters of granting relief and Courts cannot come
\nto the rescue  of the persons who are not vigilant of their rights.
\nTherefore, the view taken by the High Court condoning the delay of
\nnine years cannot be countenanced.\n<\/p>\n
\tNow, coming to the question of merit, learned counsel for the
\nappellants submitted that subsequent two Division Benches in case
\nof Dibakar Pal and in the present case have not properly appreciated
\nMallick’s case. Mallick’s case was firstly decided on concession and
\nsecondly, it was clearly mentioned that  it shall not be treated as
\nprecedent. Despite that treating Mallick’s case as precedent
\nsubsequent two Division Bench followed it and decided the matter. In
\norder to appreciate the argument of learned counsel we recapitulate
\nthe history of Mallick’s case.\n<\/p>\n
\tLearned counsel invited our attention to the order passed by
\nlearned Single Judge in writ petition filed by Mallick  which reads as
\nunder :\n<\/p>\n
“After hearing learned advocates appearing
\nfor the parties and considering the facts and
\ncircumstances of the case I dispose of the
\nabove Rule on the following terms\n<\/p>\n
a)\tThe State respondents are directed to
\ncreate and\/or sanction the posts for
\nappointment of the petitioners as
\nprimary teachers in the District of Nadia
\nsince it was submitted on behalf of the
\nDistrict School Board, Nadia, that there
\nis no vacancy to appoint the petitioners;\n<\/p>\n
b)\tThe President, District School Board is
\ndirected to appoint and\/or absorb the
\npetitioners as Primary Teachers in
\ndifferent schools under the District of
\nNadia either in the post of created
\nand\/or sanctioned by the Government in
\nterms of this order or in the existing
\nvacancy, if any;\n<\/p>\n
c)\tSuch creation and\/or sanction of posts
\nof primary teachers would be made by
\nthe Government four weeks from the
\ndate of communication of this order and
\nthe appointment of the petitioners as
\nprimary teachers by the District School
\nBoard, Nadia would be made four
\nweeks thereafter, after observing all the
\nformalities as required under the law.\n<\/p>\n
d)\tLeave is granted to the petitioners to
\ncorrect the addresses and the number
\nof the Interview Card sent by the
\nEmployment Exchange Card of the
\npetitioner No.4 and correct the address
\nof the petitioner No.1 and they are
\ndirected to communicate the same
\nbefore the authority concerned.”\n<\/p>\n
Aggrieved by this order dated 17th September, 1987, the
\nmatter was taken up in appeal and on 14th February, 1989,
\nDivision Bench passed the following order:
\n “By consent of parties, the impugned
\ndecision is vacated and it is substituted
\nby the directions issued in the following
\nterms\n<\/p>\n
1.\tThat writ petitioners will be offered
\nemployment in the order in which
\ntheir names appeared in the cause
\ntitle of the writ petition in the posts of
\ntrained primary teachers in Nadia
\nDistrict in the existing vacancies and
\nin the existing vacancies arising in
\nimmediate future, none other that the
\nwrit petitioners shall be offered
\nemployment in those vacancies until
\nthe petitioners have been first offered
\nsuch appointment.\n<\/p>\n
2.\tIn order to give effect to this direction,
\nrelaxation in the Rules\/Orders will be
\npace it necessary and none of such
\nRules\/Orders shall be pleaded as a
\nbar to the giving of the offer of
\nappointment to any of the writ
\npetitioners pursuant hereto.\n<\/p>\n
3.\tThose of the writ petitioners who
\naccept the offer shall be actually
\nappointed within leave days of such
\nacceptance.  As undertaking to given
\nto the Court by the first respondent
\n(State of West Bengal) and the fourth
\nrespondent (Director of School
\nPrimary Education, West Bengal)
\nthrough their counsel Mr. Sankar
\nMukherjee, which undertaking is duly
\naccepted, that the aforesaid
\ndirections shall be punctually
\nimplemented.  The Secretary to the
\nGovernment of West Bengal in the
\nEducation Department will register in
\nthe Registry an affidavit incorporating
\nthe undertaking in the record of the
\npresent case upon its being field.\n<\/p>\n
The learned counsel for the first and
\nfourth respondents has clarified that
\nhis clients have agreed to an order
\nbeing passed in the aforesaid terms
\nas a special case and that it may not
\nbe treated as a precedent.”\n<\/p>\n
When this order was not complied with, a contempt
\npetition was filed and in that contempt petition, the Division
\nBench on 30th June, 1989 passed the following order :
\n“In the existing eighty-two vacancies as on
\nJune 30, 1989, appointments will be offered to
\nthe writ petitioners on and from July 1, 1989
\nas per directions No.1 contained in the Appeal
\nBench decision rendered on February 14,
\n1989 in Appeal from original Tender No.159 of
\n1988; in order to give effect to this direction,
\nnecessary relaxation in the existing
\nrules\/orders including the rules\/orders relating
\nto reservation of vacancies and appointment
\non compassionate grounds, will be deemed to
\nhave been made in view of the direction No.2
\nissued in that behalf in the decision
\naforementioned.\n<\/p>\n
The first eighty-two writ petitioners will report
\nat the office of the District School Board,
\nNadia at Krishnagar on or before July 7, 1989
\nbetween 12 noon and 4 p.m. in order to collect
\nthe appointment letters and they will join duty
\non or before July 10, 1989 at the station at
\nwhich they are posted.\n<\/p>\n
In the vacancies occurring hereafter, none
\nother than the writ petitioners shall be offered
\nemployment until all the petitioners have been
\nfirst absorbed; the same direction with respect
\nto the relaxation in existing rules\/orders, which
\nwere issued in the decision rendered on
\nFebruary 14, 1989 will apply to such
\nappointments, which shall be made within
\nseven days of the occurrence of each
\nvacancies.  It is clarified that the bar against
\nappointment of any other person will cover
\nalso appointment by way of adjustment as per
\nGovernment order dated November, 29, 1982.
\nLiberty is reserved to the District School Board
\nto direct any of these writ petitioners to whom
\nappointment is offered to produce the identity
\nslip from their Advocate on record, after
\njoining duty, in case there is any doubt as to
\nhis identity.”\n<\/p>\n
\tAfter this, another writ petition was filed by Dibakar Pal and
\nothers.  An order in that case was passed based on the decision of
\nSirazul Haque Mallick’s case following the observations made in K.I.
\nShephard & Ors. etc. v. Union of India [AIR 1988 SC 686] and  the
\nwrit petition was allowed in the following terms :
\n“This writ petition in my view is an instance of
\nmultiplicity of proceedings and the State
\nrespondents and the Council should have
\nallowed the petitioners the came benefits as
\nare made applicable to those petitioners in the
\naforesaid Civil Rule.  In view of the
\npronouncement by this Court in the aforesaid
\nappeal on the basis of the judgment of the
\nSingle Judge, I grant similar benefits to the
\npetitioners by directing the respondents to
\nappoint the petitioners as primary teachers
\nagainst the available vacancies within a period
\nof three months from date.”\n<\/p>\n
Aggrieved by the order of the learned Single Judge dated 13th
\nMarch, 1991, an appeal was preferred before the Division Bench and
\nthe Division Bench by order dated 26th June, 1997 dismissed the
\nappeal on the preliminary objection regarding maintainability of the
\nappeal, i.e., that the appeal was preferred by Primary School Council
\nor by the Chairman,  Ad hoc Committee, Nadia District Primary
\nSchool Council was held to be not maintainable due to Section 37 of
\nthe West Bengal Primary Education Act, 1970 read with Section 93
\nand the Notification issued by the Government of West Bengal dated
\n30th June, 1990.  It was  contended that the Primary School Council
\nwas not formed as yet and the Ad hoc Committee is still discharging
\nits functions in terms of Notification in 1990.  Therefore, this objection
\nwas sustained and the order of learned Single Judge was upheld by
\nthe Division Bench.  However, the order passed in Dibakar Pals
\njudgment was not followed resulting in filing of the contempt petition.
\nThereafter, the appointment was given and accordingly the contempt
\npetition was disposed of.  Then a review application was filed against
\nthe order dated 26th June, 1997 and this came to be disposed of on
\n30th June, 1999.  In the review petition also the Court held that the
\norder passed on 26th June, 1997 will be without prejudice to the rights
\nand contentions of the parties and will not be treated as a precedent
\nby its own force in any other matter and the point remained open to
\nbe decided by any appropriate proceedings in future as all the
\npetitioners have been given appointment in the matter.  Learned
\ncounsel submitted that, in fact, the whole exercise in giving
\nappointment starts from the order dated 30th June, 1989 in Sirazul
\nHaque Mallick’s case and in that case it was clearly mentioned that
\nthis will not be treated as a precedent.  Despite this, Sirazul Haque
\nMallick’s judgment has been used subsequently in Dibakar Pal’s case
\nand Dibakar Pal’s judgment has been followed in the present
\nSristidhar Biswas’s case.  This clearly goes to show that  both
\nDivision Bench did not apply their mind to the clear observation in
\nSirazul Haque Mallick’s case that this case shall not be treated as a
\nprecedent.  Sirazul Haque Mallick’s case never examined the validity
\nof the panel.  It was only on account of the concession the matter was
\ndecided and it was clearly qualified that it shall not be treated as a
\nprecedent.  We fail to understand how can Sirazul Haque Mallick’s
\ncase be treated to be a blank cheque for passing appointment orders
\nin subsequent writ petitions in the case of Dibakar Pal and Sristidhar
\nBiswas (impugned order in the present case) despite the fact that in
\nSirazul Haque Mallick’s case, the Division Bench presided by the
\nChief Justice Desai (as he then was) clearly clarified that the order is
\npassed on concession.  Such order on concession followed with
\nclarification that it shall not be treated as precedent,  can be taken as
\nbinding precedent to be followed.  We do not want to comment
\nfurther, but we must make it very clear that any order passed on
\nconcession does not lay down the law and it cannot be followed as a
\nprecedent.  But regretfully the Single Judge and the Division Bench
\nsubsequently have taken it to be a law and followed the precedent
\ngiving relief to the persons leaving behind large number of persons
\nwho were on the panel and who were not parties before the Court.
\nThe Court should keep restrain before passing order saddling State
\nGovernment with financial burden. A panel of 1980 was kept alive up
\nto 2004 without realizing  that by this time many more aspirants are
\nwaiting in queue. That was not the correct approach and we cannot
\ncountenance such action.\n<\/p>\n
This Court in the case of  Mittal Engineering Works (P) Ltd.  v.
\nCollector of Central Excise, Meerut<\/a> reported in (1997) 1 SCC 203
\nhas  observed as follows:\n<\/p>\n
” A decision cannot be  relied upon in support of a
\nproposition that it  did not decide.”\n<\/p>\n
\tLikewise, in the  case of  Arnit Das  v.  State of Bihar<\/a>  reported
\nin (2000) 5 SCC488, this  Court has observed  as follows:
\n\t“When a particular point of law is not consciously
\ndetermined by the Court,  that does not form part of ratio
\ndecidendi and is not binding.”\n<\/p>\n
\tTherefore, the judgment  given in Mallick’s case   is not binding
\nas it does not decide the law.  It cannot be treated as  binding
\nprecedent.\n<\/p>\n
As a result of our above discussion, we are of the opinion that
\nthe view taken in the present case   (Sristidhar Biswas’s case),
\nrelying on the judgments of Sirazul Haque Mallick and Dibakar Pal,
\ncannot be upheld as the judgment given in Sirazul Haque Mallick’s
\ncase was on concession and it was clearly mentioned that it shall not
\nbe treated as a precedent.  Hence, we set aside the impugned order
\nof the Division Bench dated 11.6.2004.\n<\/p>\n
The appeal filed by the appellants is allowed.  There shall be no
\norders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nadia Distt. Primary School … vs Sristidhar Biswas & Ors on 25 April, 2007 Author: A Mathur Bench: A.K. Mathur, Dalveer Bhandari 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-214169","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNadia Distt. 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