ORDER Shanker Raju, Member (J).
1. Having founded on similar facts involving an identical question of law, both these Original Applications are being disposed of by this common order.
2. In these Original Applications, Post Graduate Teachers (for short, PGTs) of Kendriya Vidyalaya Sangthan (for short KVS) have assailed respondents' orders whereby their deputation as Principal has been terminated and they have been repatriated to their substantive post of PGT. Orders passed by respondents terminating the services of the applicants, who had been regularized, have also been assailed.
3. Applicants, who are undisputedly PGTs working in different streams; in the wake of the Recruitment Notice published by the KVS inviting applications on all India basis to fill up the posts of Principal by deputation and also by direct recruitment to clear the backlog vacancies of SCs/STs, applied for the same. The notification inter alia included, as a condition precedent in the matter of selection, written examination and viva voce with a stipulation that selected candidates would be placed on probation for two years, which is extendable by one year. After the recommendations of Selection Committee, applicants were appointed on deputation basis initially for a period of one year with maximum period extendable to five years. A few of PGTs were also appointed, working on deputation basis, against temporary posts in Kendriya Vidyalaya on probation for two years all over India. Out of 340 deputationists, PGTSs, who were appointed on the post of Principal, about 140 of them had been regularized by appointment against temporary vacancies on probation.
4. About 20 Principles, few of them on regular basis assailed the decision of the Chairman whereby the appointment of the Commissioner has been purportedly cancelled and termination has taken effect vide order dated 18.11.2004 in O.A. No. 2801/ 2004 in Mrs. Radha G. Krishnan and Ors. v. Union of India and Ors., by an order dated 21.2.2004 by making an observation that applicants' appointment was on deputation. However, the fact that the termination had been given effect to at the dictate of Chairman whereas Commissioner is the appointing authority which has failed to apply its independent mind, the impugned orders were set aside with liberty to the respondents to take appropriate action.
5. On show cause notice issued to the applicants and pursuant to their replies resulted in dispensation of their services as a Principal and reversion to the substantive grade of PGTs, the order in the above OA was challenged before the High Court of Delhi by the applicants in C.W.P. No. 29-32 of 2005 in S.K. Sharma and Ors. v. Union of India and Ors.. By an order dated 21.5.2005, taking cognizance of the fact that in one of the Miscellaneous Applications the grounds had not been adverted to by the Tribunal, the case was remanded back to the Tribunal for a reasoned finding on the grounds alleged in the MAs as well as in the OA and to determine the status of the applicants whether they were appointed on deputation or were direct appointees. As a result thereof, the interim order had been continued as to the status of the applicants as Principal, giving rise to these OAs.
6. At the outset, learned Senior Counsel of the applicant Shri G.D. Gupta contended that when deputation cannot be a mode of recruitment or advancement of PGTs, the appointment of the applicants though with a nomenclature of promotion is nothing but direct recruitment after qualifying the process in the wake of an advertisement issued, applicants' services cannot be dispensed with the repatriation cannot take place. Learned Counsel states that out of 13, 8 PGTs have been regularized and as regards general category candidates, it is stated that by an order dated 29.05.2001, due to emergence of vacancies in general category, around 84 PGTs have been appointed on temporary posts of Principal in KVS on probation for two years. It is stated that out of 324 PGTs, 141 have already been regularized throughout India. Learned Counsel would contend that the stay was granted in those cases where candidates were regularized but in remaining eases no stay was granted.
7. Shri Gupta states that in CWP (Supra) by an order dated 21.05.2005 the finding of the Tribunal as to the status of the applicants as deputatioriists having been set aside, applicants in the matter of regularization as Principal had invidiously been discriminated.
8. Learned Counsel has taken several legal contentions, which would be discussed later on.
ACT AND RULES
9. No doubt KVS is a Society and is controlled for its governance by the Government of India, Ministry of Human Resources Development. Board of Governors of KVS is the Executive Body, which is headed by a Chairman then in lower hierarchy, Commissioner comes into picture. Article 11 of the Kendriya Vidyalaya Sangthan Code (hereinafter referred to KVS Code) provides for procedure for appointment of staff of the Sangthan and lays down conditions of service. Board of Governors is empowered under Rule 22 of the Rules of the Sangthan to frame K.V.S. (Appointment, Promotion, Seniority etc.) Rules, 1971. Article 37 of the Code ibid provides for appointment to the post of Principal.
10. Earlier, before the Recruitment Rules, 1971 had undergone an amendment on 5.7.2001 for the post of Principal, the following was prevalent :
Post Scale Age limit Educational and Whether age Method of of Pay for direct other qualific- & educatio- recruitment recruits ations for nal qualif- whether by direct recruits ications pr- direct recr- escribed for uitment or direct recru- by promotion its will app- or transfer ly in case of and percentage promotees of vacancies to be filled Pri- Rs.10, 35-50 yeas. 1 . At least 2nd No by various ncip- 000-3 Relaxable Class Master methods. In al Gr.25-15 to OBC/SC Degree (45% case of rec- A. 200/- /ST discha marks and above ruitment rged Defence considered as which promo- Ser vice equivalent) in tion transfer Personnel Math/Phys Chem is to be made. Govt. Serva- /Zoology/Botnay/ 1. 66.2/3% nts & empl- Engg./Hindi/(sic) by direct oyees of KVS /Geog/Comm/Eco/P.Sc. recruitment etc. as per / Comp. SC/Phy Ed./ on the basis rules. Music or Fine Arts. of all India 2. A degree or Post advertise- Grade Degree/Diploma ment. If sui- in Teaching table candi- Education. dates are not 3. At least 10 available by years experience this procedure, in Educational the Commissi- Institutes incl- oner may fill uding atleast up the vacan- 7 years teaching cies on deput- experience at ation basis Senior Secondary from amongst or Higher level the employees in (sic) institutions of GOI/State and (sic) years Govt./The experience in Union Territ- educational ories and Au- administration. tenomous Orga- 4. Three years nization and experience CWSE affili- in educational ated plus two administration schools provi- will be defined ded the candid as under : ate fulfill all (a) As Principal/HM the qualifi- of a High School/ cations as Higher Sec. School prescribed /Inter College/ for direct Degree College; OR recruits. 2. (b) As Vice Principal 33,1/3% by of a Higher Sec. promotion on School/Inter College the Principal /Degree College/ of merit with Head of a Department due regard to in a Degree College seniority from /Univ. Teachers Trg. amongst Vice Colleges; Principles who OR (c) As House have rendered a Master in Public minimum of 5 /Sainik School years should or as Officer in be in the grade Army Education of vice Principal. Corps; If suitable can- OR didates are not (d) As a Vice- available by Principal at KV this procedure. for 3 years or The Commissioner more; may fill up the OR vacancies on dep- (e) As a Vice utation basis Principal and/or from amongst the as PGT in KVS for employees of atleast 15 years; GOI/State Gove- OR rnment/Autonomous (f) As Vice Principal Organization and and/or as PGT CBSE affiliated in KVS for atleast 2 schools pr- 10 years in case ovided the can- of these who have didate fulfils passed the Depar- all the qualifi- tmental Examination. cations as pre- NOTE In case suffic- scribed for direct ient number of SC/ST recruits. candidates are not forthcoming to fill up vacancies, the competent authqrity can consider rela- xing administrative experience to the following extent; Five years educati- onal experience inclu- ding 3 years teaching experience at Sr. Sec. Ot. Higher Levels in recognized institutions and 2 years experience in educational adminis- tration. In case of exi- sting PGT & Vice Princi- pal in KVS belonging to SC/ST Communities, who have completed 10 years of service as PGT and/or Vice Principal, the requ- ired administrative expe- rience will be relaxed altogether. DESIRABLE I. Working knowledge of Hindi & English. II. Experience in Origanization Games & I Sports & Co- curricular activities. 1. Name of post Principal 2. No. of Post(s) As may be determined from time to time. 3. Classification Gr. A 4. Scale of pay Rs. 10000-325-15200 5. Whether Selection post Selection or non-selection post 6. Age limit for direct 35-50 years relaxable recruits upto five years in the case of employees of Kendriya Vidyalaya Sangathan, Age relaxation for SC/ST and other categories as applicable under Govt, of India Rules would be applicable. 7. Educational and other Essential Qualification : qualifications required for direct recruits. A. Educational i. Master's Degree from recognized University with atleast 50% marks in aggregate. ii. B.Ed, or equivalent teaching degree. B. Experience : i. Persons holding analogous post; or posts of Principals in the grade of Rs. 10000-15200; or ii. Vice Principals/Asstt. Education Officer in the pay scale of Rs. 7,500-12,000 with 6 years service in the aforesaid grade. iii. Persons holding group 'B' poss or the posts of PGTs or Lecturer in the pay scale of Rs. 6500-10500 or equivalent with atleast 10 years' regular service in the aforesaid grade. Desirable i. Knowledge of computer operation. 8. Whether age and educa- No tional qualification sprescribed for direct recruits will apply to promotees 9. Period of probation, Two years. if any. 10.Method of Recruitment 66.2/3% by direct recruitment whether by direct on the basis of all India recruitment or by advertisement and 33. promotion or by deput- 1/3% by ptomotion. ation/transfer & per- centage of the vacancies to be filled by various methods. 11.In case of Recruitment By Promotion : by promotion/ by deputat- On the principle of merit ion/ transfer grades with due regard to seniority from which promotion/ from amongst Vice-Principals, deputation/ transfer who have rendered a minimum to be made. of five years' service in the Kendriya Vidyalayas of which at least 3 years should in the grade of Vice-Principals. If suitable candidates are not available by this procedure, the Commissioner may fill up the vacancies on deputation basis for amongst employees of Government of India/State Governments Autonomous Organiz- ations including KVS and CBSE affiliated + 2 school provided the candidate fulfils all the qualifications prescribed for direct recruits. 12.If a DPC exists, what Commissioner, KSV-- Chairman is the composition, Jt. Commissioner (Admn.)-- Member Jt. Commissioner (Acad)-- Member DC/(Admn.)/DC(Pers.)-- Member
6. Recruitment.--(1) The method of filling up of the posts in the various grades of the service, age limit and other qualifications relating thereto shall be as specified In Schedule I (In case of posts not covered in Schedule I, procedure, qualifications and similar matters shall be determined by the Commissioner). Provided that the upper age limit prescribed for direct recruitment may be relaxed in the case of candidates belonging to the Scheduled Castes/Scheduled Tribes and other specified categories of persons in accordance with the orders issued In this behalf from time to time by the Central Government.
(2) Appointments by direct recruitment or by promotion of departmental candidates shall be made, except when there arc special reasons to be recorded In writing with the approval also of the Chairman, in the order in which the names of eligible candidates are included in the Select Panel of the appropriate grade prepared according to the procedure laid down in Rule 7.
7. Preparation of Selection Panels.
(1) In the case of posts being filled up by direct recruitment the appropriate selection authority shall, after test or interview or both, as the case may be. place the candidates considered suitable for appointment to the particular grade/post in a select panel in the order of their merit.
(2) In the case of posts being Oiled up by promotion on the principle of seniority subject to the rejection of the unfit, the Departmental Promotion Committee or other selection authorities will first decide the field of choice i.e. the number of eligible employees who are to be considered for inclusion in the Select Panel. From among such employees those who are considered unfit for promotion are to be excluded. The "Select Panel" will then be prepared by placing the names of the remaining employees without disturbing the seniority inter se.
(3) In the case of promotion on the basis of the seniority-cum-merit or on the principle of merit with due regard to seniority the field of choice will first be decided and the employees considered unfit excluded in the same way as in Sub-rule (2) above. The remaining employees are then to be classified as "outstanding" "very good" and "good" on the basis of merit, as determined by their respective records of service and also test or Interview if considered necessary. The "Select Panel" will thereafter be prepared by placing the names in the order of those categories, without disturbing the seniority inter se within each category.
(4) Where the posts are to be filled up partly by direct recruitment and partly by promotion, the select panel will be prepared as follows :
The appropriate selecting authority will first prepare two separate panels for the two categories in accordance with the procedure laid down above. The required panel will then be drawn up by combining these two separate panels according to the quota of posts reserved for each category. That is to say, the names of direct recruits will appear first, followed by the promotees. in proportion to the respective quota reserved for them.
(5) A reserve panel both for direct recruits and promotees to the extent of 50% of main panel shall also be prepared while preparing the panels of these selections, so as to cove the contingency of drop outs or refusals during the validity of the panel.
13. Probation and confirmation is provided under Rules 10 and 11 of the Rules, which are reproduced as under :-
10. Probation.--(1) Every direct recruit shall Initially be appointed on probation. The period of probation shall be two years from the date of appointment, which may be extended by another two years by the competent authority for reasons to be recorded in writing.
11. Confirmation of Probationers.--When an employee appointed to a post on probation has completed his/her probation to the satisfaction of the appointing authority, he/she shall be eligible for substantive appointment or continuance therein, as the case may be, and such substantive appointment shall be made in the order of seniority as indicated in the relevant select panel.
14. Having regard to the above, as we are concerned with the Rules of 2001 onwards, in the matter of direct recruitment for the post of Principal, apart from possession of Master Degree and B.Ed, or equivalent teaching qualification, the persons eligible were those holding analogous post of Principal or Vice Principals or Assistant Education Officers having six years regular service and apart from it persons holding the post of PGTs with ten years regular service in the grade. In the matter of direct recruitment, the quota fixed is 66.2/3% on the basis of all India advertisement. On the other hand, in case of promotion the feeder category is Vice Principal and in failing which clause when suitable candidates are not available vacancies are to be filed up on deputation from employees of even KVS fulfilling the qualifications of direct recruitment. However, in the matter of promotion, we do not find any selection process of test or interview or both but the promotion is to be on the basis of seniority-cum-merit.
15. Having regard to the position of Rules, now we advert to the appointments of applicants made by KVS.
16. On Recruitment Notice issued ibid. selection was held and on the recommendations of the Select Committee, applicants had been appointed on deputation basis for a period of one year with maximum deputation extendable up to 5 years without any claim for permanent absorption or regular 'appointment as Principal. In fact, respondents' letter dated 9.10.2002 shows that due to deputation of Principal outsides KVS there had been a shortage of required number of Principals to man the vacant posts. Accordingly, directions have been issued riot to allow any existing Principal to apply for outside employment.
17. However, the Board of Governors with the approval of competent authority vide Office Order issued on 18.11.2004, on examination of all the materials before them terminated the services of the applicants on the ground that the appointment of PGTs serving in the KVS was de hors the Rules. However, simultaneously around 140 PGTs, who had been appointed which included mostly the general category candidates on deputation their deputation has been later on transformed into appointment on regular basis. The respondents have not only dispensed with the services of those PGTs, who had been regularized, but also issued show cause notices to those who had been regularized, which led to spate of litigation before the Tribunal as well as before the High Court in different States.
BACKGROUND FACTS OF DIFFERENT PRONOUNCEMENTS ON ISSUE BY VARIOUS COURTS AND TRIBUNAL
18. High Court of Calcutta in W.P. (C) No. 63/2005 in Ram Singh and Ors. v. Union of India and Ors., on a decision by the Calcutta Bench of this Tribunal having followed the decision of the Principal Bench in Mrs. Radha G. Krishnan (supra) granting liberty to the respondents to pass fresh order, was subject-matter before the High Court and a specific finding has been recorded to the fact that there is no scope for promotion on the basis of deputation in KVS and appointment of petitioners therein as a Principal being PGTs is a direct recruitment. WP was disposed of on 11.08.2005 setting aside the termination and entitling the petitioners therein to continue in their appointment unless they are removed/dismissed in accordance with a valid proceeding according to law. Following the aforesaid decision, Bombay Bench of this Tribunal in O.A. No. 67/2005 George Thadathil v. Union of India and Anr., reiterated the aforesaid whereas in a finding given in several O As by the Jabalpur Bench of this Tribunal remanding the matter back to the respondents KVS, led to Tiling of W.'P. Nos. 5116, 5121, 5122, 5263, 5273, 5274, 5335, 5385, 5386 and 5387 of 2005 before the High Court of Madhya Pradesh at Jabalpur. The High Court of Madhya Pradesh at Jabalpur by an order dated 30.7.2005 rejected the above WPs with liberty to respondents therein to take all the contentions available in the replies to the show cause notices. There had been no discussion to the status of the respondents therein and their mode of appointment.
19. Jaipur Bench of this Tribunal in O.A. No. 27/2005 in Dr. Amita Chandra and Ors. v. Union of India and Ors., taking a view that the appointment on deputation as promotion being de hors the rules, rejected the O.A. upholding the termination.
20. The importance of citing these decisions is in the context of doctrine of precedent, One of the contentions raised by the learned Senior Counsel for the applicants is that there being a decision of the Calcutta High Court which has taken cognizance of decision of Jaipur Bench of the Tribunal holds the field and as there is no conflicting decision, which is diametrically opposite to the ratio laid down by the High Court of Kolkata by the Delhi High Court, which issue is no more res Integra and the ratio decidendi of Calcutta High Court would mutatis mutandis extend to the present case.
21. The issue determinable is whether decision of Calcutta High Court is binding or it is rendered per incuriam of the decision of Madhya Pradesh High Court and non-consideration of the reasoning of Jaipur Bench of this Tribunal would have an effect of referring this issue to the Larger Bench.
22. A three Judges' Bench of the Apex Court, while dealing with powers of Contempt of the CAT in T. Sudhakar Prasad v. Government of A.P. and Ors., 2001 (1) SCC 516, held that the Tribunal is subject to judicial, review and judicial superintendence of the respective High Courts with the following observations :
18. Subordination of Tribunals and Courts functioning within the territorial jurisdiction of a High Court can be either judicial or administrative or both. The power of superintendence exercised by the High Court under Article 227 of the Constitution is judicial superintendence and not under Article 235 of the Constitution over Subordinate Courts. Vide para 96 of L. Chandra Kumar case the Constitution Bench did not agree with the suggestion that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall, as our constitutional scheme does not require that all ad-judicatory bodies which fall within the territorial jurisdiction of any High Court should be subject to its supervisory jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution Bench in para 96 of the judgment is the supervision of the administrative functioning of the Tribunals as is spelt out by discussion made in paras 96 and 97 of the judgment.
19. Jurisdiction should not be confused, with status and subordination, parliament was motivated to create new adjudicatory for a to provide new, cheap and fast-track adjudicatory systems and permitting them to function by tearing off the conventional shackles of the strict rule of pleadings, strict rule of evidence, tardy trials, three/four-tier appeals, endless revisions and reviews--creating hurdles in the fast flow of the stream of justice. The Administrative Tribunals as established under Article 323-A and the Administrative Tribunals Act, 1985 are an alternative institutional mechanism or authority, designed to be not less effective than the High Court, consistently with the amended constitutional scheme but at the same time not to negate judicial review jurisdiction of constitutional Courts. Administrative Tribunals equates the Tribunal with the High Court insofar as the exercise of judicial authority over the specified matters is concerned. That, however, does not assign the Administrative Tribunals a status equivalent to that of the High Court nor does that mean that for the purpose of judicial review or judicial superintendence they cannot be subordinate to the High Court. It has to be remembered that what has been conferred on the Administrative Tribunal is not only jurisdiction of the High Court but also of the Subordinate Courts as to specified matters. The High Courts are creatures of the Constitution and their Judges hold constitutional office having been appointed under the Constitution. The Tribunals are creatures of statute and their members are statutorily appointed and hold statutory office. In State of Orissa v. Bhagaban Sarangi , it was held that the Administrative Tribunal is nonetheless a Tribunal and so it is bound by the decision of the High Court of the State and cannot side track or by pass it. Certain observations made in the case of T.N. Seshan, Chief Election Commr. of India v. Union of India, , may usefully be referred to. It was held that merely because some of the service conditions of the Chief Election Commissioner are akin to those of the Supreme Court Judges, that does not confer the status of a Supreme Court Judge on the CEC. This Court observed : (SCC Headnote) :
Of late it is found that even personnel belonging to other for a claim equation with High Court and Supreme Court Judges merely because certain jurisdictions earlier exercised by those Courts are transferred to them not realizing the distinction between constitutional and statutory functionaries.
We are therefore, clearly of the opinion that there is no anathema lo the Tribunal exercising jurisdiction of the-High Court and in that sense being supplemental or additional .to the High Court but at the same time not enjoying status equivalent to the High Court and also being subject to judicial review and judicial superintendence of the High Court.
23. So far as doctrine of precedence is concerned, as held by the Apex Court in Delhi Development Authority v. Ashok Kumar Behal, , the law laid down by the High Court is binding on all Courts within its jurisdiction.
24. Full Bench of this Tribunal in Dr. A.K. Dawar v. Union of India and Ors., (OA 555/2001) by an order dated 16.4.2004 recorded the following observations pertaining to the issue of conflicting decisions of different High Courts and the methodology to follow the same :
12. We are conscious of the decision of the Supreme Court in the case of East India Commercial Co. Ltd., Calcutta and Anr. v. Collector of Customs, Calcutta, . In the cited case, the appellant--East India Commercial Co. Ltd. had applied for grant of licence to import fluorescent-tubes and fixtures from the United States of America. The licence had been issued subject to the condition not to sell the goods so imported. Subsequently, some breach In the condition was noticed and a notice had been issued to the licence holder in this regard. One of the questions that came up for consideration before the Supreme Court was as to whether the decision of the High Courts would be binding on the Tribunals or not. The Supreme Court held it would be binding. The findings read :--
...Under Article 227 it has jurisdiction over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a Tribunal can do so, all the Subordinate Courts can equally do so, for there is no specific provision, Just like in the case of Supreme, making the law declared by the High Court binding on Subordinate Courts. It is implicit in the power of supervision conferred on a Superior Tribunal that all the Tribunals subject to the supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the Highest Court in the State is binding on superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.
13. In another decision rendered by the Supreme Court pertaining to Orissa State Administrative Tribunal reported as State of Orissa and Ors. v. Bhagaban Sarangi and Ors., , the Supreme Court in unambiguous terms held that the Tribunal is a Tribunal and is bound by the decision of the High Court of the State. The short judgment of the Supreme Court read :
1. In our opinion, it is not correct for the Tribunal to have stated that they are not prepared to accept the judgment of the Orissa High Court in Kunja Bheari Rath v. State of Orissa, O.J.C. No. 668 of 1969. We make it clear that the Tribunal in this case is nonetheless a Tribunal and it is bound by the decision of the High Court of the State. It is incorrect to sidetrack or bypass the decision of the High Court.
2. However, on merits of the matter, we do not think that there is any case for interference. The order of the Tribunal appears to be just. We accordingly dismiss the Special Leave Petition.
However, the question that stares glaringly at us which we have referred to above had not been the subject-matter of controversy before the Supreme Court. In fact while dealing with contradictory decisions, if any, of the Supreme Court itself, the Supreme Court in the case of Indian Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena, concluded that even when the decisions of the Apex Court are diametrically opposite, the High Courts should decide the matters on merits according to their own interpretation. The findings read :--
8. We have perused the impugned order of the High Court. We are unable to appreciate the approach of the High Court. Even when it was faced with diametrically apposite (sic opposite) interpretation of the judgment of this Court, it was expected of the High Court to decide the case (writ petition) on merit according to its own interpretation of the said judgment. Instead the High Court after referring to rival contentions of the parties.
14. The above said controversy seemingly had only arisen before the Monopolies and Restrictive Trade Practices Commission in the case of Director General (I and R) v. Holy Angels School, 1998 CTJ 129 (MRTPC), decided on 15.5.1998. At the outset, we may mention that as far as the Monopolies and Restrictive Trade Practices Commission, New Delhi are concerned, it has its seat at Delhi. It has jurisdiction throughout the country. It does not have different benches like this Tribunal, However, if the order of the Commission affects a party residing anywhere in India, such party can in- voke the jurisdiction of the High Court exercising the jurisdiction over that area with respect to the orders of the Commission. Thus, like this Tribunal the orders of the Commission are subject to judicial review in different High Courts except that it does not have different Benches like one we have already referred to above. However, somewhat similar situation had arisen and the Commission after broadly considering the same held :--
(1) If the order of this Commission affects or is likely to affect a party in, say. State A, and if there is a rulling of that High Court on the point involved in the matter. This Commission will be bound by that ruling of the said High Court.
(2) If the order of this Commission affects or is likely to affect a party in State A and there is no ruling of the High Court of that State on the point involved in the matter but there is a ruling of the High Court of State B on that point this Commission will be bound by the ruling of the High Court of State D on that point.
(3) if the order of this Commission affects or is likely to affect a party in State A and there is a ruling of the High Court of State ,A on the point involved in the matter and that ruling of the High Court of State A is in conflict with the ruling of any other High Court whether of a Single Bench, an equal Bench or a larger Bench, the ruling of the High Court of State A will be binding to this commission.
(4) If the order of this Commission affects or is likely to affect a party in State A and there is no ruling of the High Court of State A on the point involved in the matter and there are conflicting ruling of two or more different High Courts on that point, the Commission will be free to accept the ruling of either or any High Court for the purpose of deciding the case.
(5) If the order of this Commission affecting a party in State A is based on the ruling of the High Court in any other State on the point involved in the matter in absence of any ruling on that point by the High Court of State A and subsequently the High Court of State A gives a ruling on that point which might be in conflict with the decision of the High Court which was earlier followed by the Commission, in a subsequent case of a party who might be affected in State A, the subsequent ruling of the High Court of State A will be binding to this Commission.
(6) If the order of this Commission is likely to affect who different parties in two different States A and B and the High Court of either State has decided the point involved therein the decision of that High Court will be binding to this Commission. If the High Court of State A and B have decided the point separately and their rulings are in conflict with each other, the Commission will be free to follow the ruling of either High Court.
(7) If any ruling of a High Court is in conflict with any ruling of the Supreme Court, the ruling of the Supreme Court is always binding to this Commission.
(8) In the case of conflict of rulings of the same High Courts on a point of law which is Involved in a case before this Commission, the one which is given by a larger Bench will be binding to this commission. It the conflicting rulings of the same High Court are by coordinate Benches, ordinarily the ruling which is later in the point of time will be binding to this Commission.
15. We do not dispute the proposition enunciated by the above said Commission that if there is a judgment of the High Court, it would bind this Tribunal. However, if on that point, there is no judgment of the High Court having jurisdiction, this Tribunal would be bound by any other judgment of the other High Courts because we have already referred to above that this Tribunals one and its orders are subject to judicial review.
16. Keeping in view, the peculiar situation of this controversy which we have already referred to above particularly when one Bench of this Tribunal is at times under the territorial jurisdiction of more than one High Courts, it is with respect difficult to subscribe to the view that in case there is conflict between the judgments of two High Courts, the judgment of the High Court having territorial jurisdiction would be binding. In the peculiar situation in which we are placed that may result in an enigmatic situation because it was brought to the notice of this Tribunal that many a times different persons posted in different Benches belonging to the very same civil service or cadre file applications in different Benches and if the Bench considers that the decision of that particular High Court which is diametrically opposite to the decisions in the other High Courts is to be followed, this would even bring difficulties in the same cadre or service.
17. Consequently, we hold :
1. That if there is a judgment of the High Court on the point having territorial jurisdiction over this Tribunal, it would be binding :
2. That if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, this Tribunal would be bound by the decision of that High Court;
3. That if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding; and
4. That if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgment in the case of Indian Petrochemicals Corporation Limited (supra), this Tribunal would be free to take its own view to accept the ruling of either of the High Courts rather than expressing third point of view.
25. If one has regard to the above what has been discerned as a ratio from the above points, that a decision of High Court having no territorial jurisdiction shall be a precedent over any Bench of this Tribunal, if there is no conflicting decision of the High Court under whose jurisdiction the Bench concerned is functioning.
26. In order to dissuade us from following the above decision, the condition precedent is existence of some decision having a conflicting opinion on the issue dealt with by the Calcutta High Court or to demonstrate that the decision rendered by the Calcutta Bench is per incuriarn. In this light, it is relevant to quote the controversy and the relevant adjudication by the Calcutta High Court in the matter of disposal of the issue of nomenclature of the appointment of PGTs in KVS.
27. Facts are not disputed before the High Court. Petitioners therein were similarly circumstanced as of applicants. In rebuttal, learned Counsel of KVS had taken identical grounds before the High Court. In nutshell the contentions raised are summarized in the following paragraphs :
The learned Counsel for the writ petitioners submitted that the writ petitioners have been appointed on the basis of an open advertisement and after fulfilling the conditions of the advertisement both in terms of their qualification and also in terms of their qualifying in the written test and interview. Once the petitioners appointed to the post of Principals which is a selection post and when such appointment is made on the basis of written test; such appointment cannot be called an appointment on deputation. In Service Laws 'deputation' has a totally different meaning. By way of deputation an employee can be sent literally to a different post and there is normally a borrowing and a leading authority. When employee goes on deputation to the borrowing authority, invariably such employees retain a lien in the parent department but render service on deputation and such service in another department is sometimes called 'foreign service. When an employee is sent on deputation, promotion or selection is involved and once the borrowing department finds that service of the deputationists is no longer required, the employees is repatriated literally to his parent department. Sometimes, deputationist is absorbed is absorbed in foreign services and in such case of absorption the deputationists loses his/her lien in the parent department. But in the instant case the appointment to the post of Principals cannot be called by way of deputation since it is an appointment to a higher post on the basis of selection. It was contended that whatever nomenclature may have been used by KVS in the orders appointing the petitioners as Principals, the petitioners' appointment as Principals cannot be said to be on deputation. Therefore, the order of termination of the petitioners by treating that the petitioners were appointed on deputation is wholly erroneous. It was also submitted by the learned Counsel for the petitioners that as a result of being on deputation in the post of Principal, petitioners' chances of becoming Vice-Principals were lost. It was also stated that some of the petitioners wanted to leave the services of KVS and join elsewhere but the petitioners were not allowed to do so and now the threatened termination of the petitioners' services as Principals on the grounds that the petitioners' appointment was made on deputation basis is wholly illegal.
The learned Counsel for the respondents on the other hand repeatedly stated that in case of the appointment of the petitioners to the post of Principals, the recruitment rules have been violated and the constitutional provisions have also been breached but the learned Counsel did not point out which particular rule has been violated nor has he pointed out which provision of the constitution has been breached. The learned Counsel for KVS repeatedly urged that since the petitioners accepted the appointment to the post of Principals as deputationists and also accepted extensions of the period of deputation on two occasions, the petitioners cannot say now that their appointment is not by way of deputation. It was also urged that petitioners are all literate persons and since they accepted their appointment as deputationists the order of termination passed against them as deputationists cannot be held to be bad.
These are basically the rival contentions of the parties. In so far as KVS is concerned its structure and the powers and function of various authorities have been dealt with in Education Code.
28, The conclusion drawn thereof is reproduced as under :
In the instant case, the petitioners have been recruited to the post of Principal by way of direct recruitment and on the basis of all India advertisement. So the candidates are available and they have been recruited. The question of deputation does not arise. Therefore, the petitioners have been recruited in accordance with a valid recruitment process. Apart from that, Article 37 of the Code also provides that appointment to the post of Principal and all teaching and non-teaching staff except the post of Group-D for the Vidyalayas shall be made centrally and on the basis of all India advertisement and in accordance with the provisions of the said Rules. An exception can be made to the said recruitment procedure only in certain cases mentioned in Article 38. It is nobody's case that the explanation provided in Clauses (a) and (b) of Article 38 is attracted in the facts of this case.
From the perusal of the aforesaid Rules it is clear that the appointment of the petitioners to the post of Principal had taken place in accordance with, the provisions of the Code. The provisions of the Code are virtually statutorily in character. Specially, the recruitment rules referred to, above have been framed under Rule 22 of the Rules of the KVS.
Perusing the aforesaid Rules, this Court finds that the appointment of the petitioners to the post of Principal has been marie in accordance with those rules and under those rules and appointment of the petitioner has to he considered as direct appointment to the post of Principal. In ease of such direct appointment there is no scope for promotion on the basis of deputation. Such appointment may be on the basis of probation but cannot be on the basis of deputation.
In service law the word 'deputation' is used in the contest of appointing a person as a substitute. Normally deputation means service of the employee outside the parent department and after the expiry of the period of deputation, the deputationist normally comes back to the parent department. Normally a deputation does not take place without the consent of the person so deputed and such necessity to send a person on deputation arises in public interest in order to meet various exigencies. The word 'deputation' is not a concept which is akin to recruitment or appointment, on promotion on the basis of selection. On being newly recruited to a post a person may be placed on probation. That is why a person who is sent on deputation cannot be placed on probation. Normally when a person is sent on deputation there is no severance of ties with the parent department.
The concept of deputation has been very lucidly explained in the case of Sohan Lall v. Union of India, reported in 1978 Lab IC 1198. The learned Judge in that ease held that the concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It may also involve the consent of the employee who is to go on deputation. There can hardly be any direct recruitment by way of deputation. In all cases of deputation there must the a borrowing department and a lending department, otherwise the concept of deputation cannot be worked out.
So, going by these well known features of deputation in Service Law, this Court is of the opinion that the direct recruitment of the petitioner to the opinion that the direct recruitment of the petitioner to the selection post of Principal cannot be called recruitment by way of deputation.
Reference in this connection may be made to two judgments of the Supreme Court on the question of deputation. Reference is made first to the judgment of the Supreme Court in the case of State of Punjab and Ors. v. Inder Singh and Ors., . In para 18 of the said judgment, the concept of deputation has been explained. This Court sets out hereunder below the formulation of the learned Judges on the question of deputation as expressed in para 18 page 384 of the report :
The concept of "deputation" is well understood in service law and has a recognized meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee, to a post outside his cadre, that is to say, to another department on temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post.
In this connection, reference can also be made to the judgment of the Supreme Court in the case of" Umapati Choudhary v. State of Bihar and Anr., . In para 8 of the judgment the learned Judges explained the concept of deputation and in doing so the learned Judges relied on the decision in the case of State of Punjab (supra). This Court sets out hereunder below the relevant excerpts from para 8 of the judgment in Umapati Choudhary (supra) :
Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationists) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not.
Going by the aforesaid well settled norms and characteristics which are associated with the concept of deputation in service law, this Court cannot accept that the appointment of the petitioners to the selection post of Principal by direct Recruitment was by way of deputation.
Now, the question is that the respondent authorities have described the said appointment as by way of deputation in the appointment letters issued by them to the petitioners and subsequently also while purporting to extend the said period of deputation and the petitioners without objections, accepted those letters. From the aforesaid circumstances, can it be 'said that since the petitioners did not object to the use of the expression 'deputation' in the case of their appointment letters the appointments must be treated to have been made on deputation though in fact it is clear from the discussion above that the appointment cannot be made by way of deputation. This Court is unable to accept the argument made by the learned Counsel for the respondents.
The relationship between employer and employee in Government service or in services under 'State' or statutory corporation is not governed by pure relationship of master and servant and the relationship is not purely contractual. Such relationship is governed by statutes which confer on the employees a status under the relevant rules. It is well known that common law concept of master and servant is not attracted in such cases which are regulated by various statutory rules and regulations. Such rules and regulations are made in public interest in order of eliminate arbitrariness in cases of appointment and also in order to give the employees a sense of security in their services. It has been accepted by all Courts that while working in Government service and/or in services under the State, an employee should have a sense of security in his service and the employee should know, that the service conditions are regulated by rules and regulations and not on the whims and caprice of the employer.
About the status of Government employees; the Constitution Bench of the Supreme Court clarified the position as early as in 1967 in the case of Roshan Lal Tandon, . Justice Ramaswami, speaking for the Bench clarified the position in these words :
In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.
This well settled position is sometimes lost sight of and the Apex Court had to reiterate it in 1990 in another Constitution Bench judgment rendered in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, . The Apex Court, apart from reiterating the principles in Roshan Lal, extended the said principles also to cases of employees of the Statutory Corporation, Statutory authorities or instrumentalities under Article 12 and the Court held that the rights and obligations of the employees are governed by the relevant statutory provisions. [See para 240, page 186 of the report).] Under the Code or under 1971 Rules, there is no provision under which a person who is promoted to a selection post on the basis of a selection process and interview can be said to have been promoted on deputation. As discussed above, it is clear that the concept of promotion to a selection post on. the basis of a selection process and the concept of deputation are contradictory in terms. So the fact that the petitioners allegedly accepted promotion to the post of principal on deputation does not matter. The agreement of the parties, if there was any, is not of much consequence here. The concept of 'caveat emptor' in commercial transactions between private parties cannot be applied here where the relationship is governed by rules and regulations.
29. The High Court of Calcutta, while concluding observed as under :--
Petitioners who have been promoted to the post of Principal on the basis of a valid selection process and continued these for three years without any allegations cannot be asked to go on the basis of administrative whims and caprice. This is fundamentally opposed to the principle of rule of law. A citizen must know where does he stand. Predictability is one of the most essential facets of the rule of law which is enshrined under Article 14. This was pointed out by the Constitution Bench of the Supreme Court in 1967 in the case of S.G. Jaisinghani v. Union of India, , in paragraph 14, page 14 : 34 of the report and which is set out below :
That the absence or arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities must be confined within clearly defined limits. The rule of law from this point of view means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is take without any principle or without any rule it is unpredictable and such decision is the antithesis of a decision taken in accordance with the rule of law.
In support of his argument, the learned Counsel for KVS replied on various judgments which are discussed now.
Reliance was placed on the un-reported decision in the case of Dr. Amit Chanda and Ors. v. Union of India given by Central Administrative Tribunal, Jaipur Bench and it was argued that in almost similar situation, CAT, Jabalpur has held against the petitioners who were similarly appointed as Principals.
There is some factual difference between the cases. In the case of Amit Chanda, a plea of discrimination was raised and it was argued that some Principals appointed on deputation were regularized and some were not. Here that aspect is absent. Apart from that the arguments advanced in this case were not made in the case of Amit Chand CAT, Jaipur dismissed the case of the petitioners on the ground that they did not object to promotion by way of deputation and cannot subsequently assent that they cannot be sent on deputation when they are promoted. This Court, for reasons discussed above, cannot accept this plea of the respondents. So this Court is constrained to observe that the ratio in the case of Amit Chanda given by CAT, Jaipur, with respect to the members of the Tribunal, is not acceptance to this Court.
30. The writ petition was disposed of with the following observations :
For the reasons discussed above, this writ petition succeeds. The authorities of KVS cannot treat the petitioners' promotion to the post of Principal of different schools as promotion by way Of deputation. This is contrary to principles of deputation and also Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971. Under those rules, the respondents could have placed the petitioners on probation for a period of two years but that has not been done by them. Period of two years has expired since the appointment of the petitioners. Therefore, the appointment of the petitioners cannot be terminated in a manner which is unknown to law. This Court declares that the petitioners are entitled to continue in their appointment unless they are removed/dismissed in accordance with a valid proceeding according to law.
31. Before the High Court of Madhya Pradesh at Jabalpur in W.P. Nos. 5116 and Ors. (supra), following conclusions have been drawn :
8. We are of the view that it may not be necessary to remit the matters to the Tribunal. On account of the quashing of the orders of termination of deputation dated 18.11.2004, the petitioners are continuing as "Principals". They will be entitled to continue as Principals unless their appointment is terminated in a manner known to law. The Sangathan has already, issued show cause notices dated 17.6.2005 to the petitioners proposing to cancel the regular appointment. It is, therefore, open to the petitioners to file representations/objections contending that they are entitled to be continued as Principals. They can also urge all contentions which have been urged before us; that as in service candidates who were selected after undergoing a selection process, they cannot be treated as being on 'deputation', as these cannot be deputation from KVS to KVS itself where the appointing Authority is the same; that 'deputation' would apply to only those appointees who were from other institutions, and not to in-service candidates; that at all events in view of their subsequent regular appointment, several years ago, there can be no cancellation; that alternatively having regard to the experience gained by serving as Principals all these years and having regard to the fact that they had been selected as Principals after undergoing a regular selection process, they should be continued as Principals as long as vacancies exist in regard to the posts of Principal; and that by virtue of their service between the time they were selected as Principals on deputation and as on date, several of them have also become entitled to be considered for regular promotion to the post of Principal and therefore they should be considered for the post of Principal etc. Be that as it may.
9. We are also informed by the petitioners that the Sangathan is proposing taking a fresh look into the entire matter as a large number of PGTs (34) were appointed as Principals on deputation and as many as 140 out of them were subsequently appointed on regular Principals, their termination will upset the functioning of the Institutions.
10. For the reasons mentioned above, we find no reason to interfere with the order of the Tribunal in the cases of petitioners. Reserving liberty to raise all contentions available in their replies to the show cause notices, these petitions are disposed of. It is needless to say that the Sangathan will consider all aspects before taking any further decision or action in the matter.
32. If one has regard to the above, High Court of Madhya Pradesh has not dealt with the issue and rather upheld the conclusion of the Tribunal as to the quashing of the termination order and remand of the matter back to the respondents with liberty to raise all contentions by the petitioners thereof. This is no merit consideration and the precedent following this decision would not hold good and is not binding.
33. In so far as decision as precedent under Article 141 of the Constitution of India is concerned, this holds decision of the Apex Court as binding one but in so far as binding element in these decisions, which is none else but ratio decidendi, is also to be followed by the Tribunal in case of an order passed by the High Court concerned. In so far as ratio decidendi is concerned, a three Judges' Bench in Director of Settlements, A.P. v. M.R. Apparao, 2002 (4) SCC 628, ruled as under :--
In view of Article 141 of the Constitution, it is an essential function of the Supreme Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is that ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case.
34. Apex Court in Ram Prashad Sharma v. Mali Kumar Subba and Ors., , held that there is no precedent on facts and it is only legal position flowing from the judgment which has a binding effect.
35. A decision of the Constitution Bench in Islamic Academic of Education v. State of Karnataka, , held that what is important is the ratio decidendi in a decision which is an answer to the question to be derived from cumulatively reading the entire judgment. A casual observation and reasons are not to be read as a line here and there to extract ratio decidendi. A decision of the Higher Court cannot be interpreted as a statute.
36. Having in mind the above ratio, what has been laid down by the High Court of Madhya Pradesh at Jabalpur is not a ratio decidendi. There is no merit consideration. As such, having not been considered for appointment of any diametrically opposite orders passed by any High Court, the decision of the Calcutta High Court in the light of doctrine of precedent and following Bench's decision is a finding principle to be followed.
37. Learned Senior Counsel of the applicant mainly stressed upon the findings arrived at by the High Court of West Bengal at Kolkata by stating that in the Recruitment Rules a category lower in rung like PGT, which is not a feeder category for promotion to the post of Principal, the direct recruitment envisages consideration of even the departmental candidates working as PGT having requisite service to be eligible to apply for the post of Principal. By referring to the Advertisement Notice issued, it is stated that once the earlier decision to appoint on deputation one of the eligible candidates were PGTs with ten years regular service and having carried out the process of direct recruitment by holding an examination and viva voce as well, which is not followed by the DPC for promotion and by necessary implication when deputation is not one of the modes of appointment, it is only when requisite number of eligible candidates are not available for promotion i.e. Vice Principal to the post of Principal having no case that Vice Principals were not available. The notification, which subsequently, as per the reply filed before the Tribunal in OA No. 2801/2004 where it is an admission to the effect that 140 candidates had been regularized and whereas 187 persons working on deputation as Principal were regularized as well as on deputation occupying the posts meant for reserved and general category, the appointment letters of deputationists on regular basis against a temporary post an probation has an underline object of emergence of vacancies in general category, which clearly shows that the process adopted by the authorities was to fill up the general category vacancies. In this notification though earlier as an interim measure resorted to deputation but discontinued till direct vacancies were available and on availability the appointment of temporary post on probation is an implied appointment by direct recruitment to the post of Principal and as the applicants were eligible and have qualified have a right to be continued treating the appointment as direct recruitment.
38. Shri Gupta states that once others had been regularized, invidious discrimination to the applicants cannot be countenanced. It is stated that if departmental candidates are not eligible, they cannot be considered for appointment. This he refers to on the basis of DoP&T OM dated 3.10.1989 by stating that deputation is only an appointment outside the normal line and intra-departmental deputation is not permissible under rules. He refers to Appendix-V of FR 9(25) where appointment of serving Government employee is to be either made by promotion or by direct recruitment from open market candidates either on permanent or temporary basis, which cannot be nomenclatured as deputation.
39. Referring to the Jaipur Bench's decision of this Tribunal, it is stated that deputation though was an interim measure as 140 candidates were regularized is an understanding of the department and while examination be made of appointment and the process taken thereto by the respondents, it is only the substance and contents not the form, which is relevant.
40. On the other hand, learned Counsel for respondents Shri S. Rajappa vehemently opposed the contentions and at the outset stated that the decision of Calcutta Bench of the High Court is per incuriam where certain provisions of rules and instructions have not been taken into consideration. It is in this backdrop stated that as per the appointment letters issued to the applicants, the deputation was not on a permanent basis of other appointment and once tenure appointment on deputation has been accepted which is not permitted under the rules, thus the applicants have no indefeasible right to claim regular appointment on direct recruitment basis. As regularization was de hors the rules, show cause notices have been issued to the concerned.
41. Learned Counsel would contend that Board of Governors as a policy decision resorted to rectify the illegalities committed in the appointments, which is de hors the rules. As such, correction of an inadvertent error and invalid appointment against the rules vests no right in the applicants.
42. When ratio decidendi of Calcutta Bench in questioned and not adverting to the legal aspect of the matter, it: is stated that once the decision of Madhya Pradesh High Court is in conflict with the decision of the Calcutta High Court, the proper procedure, is to refer the matter to the Full Bench.
43. Learned Counsel has cited the decision of the Apex Court in A. Umarani v. Registrar, Cooperative Societies and Ors., , to contend that when regularization cannot be a mode of recruitment, an illegal appointment vests no right upon the applicants to stake their claim.
44. Smt. Rajappa, learned Counsel for the respondents, has also relied upon a decision of the Apex Court in Union of India and Anr. v. Moti Lal and Ors., , to contend that direct appointment to an exclusively promotional post even if continued for a considerable time does not vest right of regularization.
45. Shri Rajappa stated that the question whether the applicants were appointed on deputation on direct recruitment on promotion is to be adjudicated by this Tribunal.
46. Learned Counsel would contend that departure or deviation from the procedure laid down under the Rules is in fact infraction of the Rules. Adopting the reply field in. O.A. No. 2801/2004 and M.A. 2438/2004, learned Counsel states that KVS at no point of time appointed the applicants on regular basis as it is not permissible under the recruitments rules but yearly basis they had been continued on deputation and as the Commissioner, KVS had violated the rules bye-passing the requirement of recruitment rules, Board of Governors took a decision to correct the same. The Commissioner to the KVS had transgressed his powers and these corrective steps lead to the orders, which are legally sustainable. It is stated that had there been a direct recruitment and if this recruitment is treated as direct though he does not dispute availability of general candidates and emergent need to fill up the posts with persons from open market have been deprived of the continuance.
47. Regarding principle of natural justice is concerned, taking resort to doctrine of empty formality, it is stated that once no prejudice has been caused, observance of principle of natural justice would not ipso facto render. The order bad-in-law. Useless formalities theory is also propagated.
48. Referring to the powers of Board of Governors, it is stated that on a decision that Commissioner can appoint Principals on deputation basis only, the Commissioner had transgressed his powers which resulted in cancellation of appointments. It is stated that in the recruitment rules, there is no provision for regularization, which have been illegally done by the Commissioner. As regards promissory estoppel, it is stated that it does not apply against the statutory rules.
49. Learned Counsel would contend that Commissioner, who approves the quota for all the posts earmarked for general and other reserved categories, appointed Principals on deputation on regular basis, which is de hors the rules without following the due process of law. It is stated that in deputation reservation rules are not applicable when promotion quota of all categories of candidates have been utilized by the deputationists as the same is de hors the policy of reservations. Opportunity to the public at large had been denied.
50. Chairman of the KVS decided to cancel all the appointments and repatriation of deputationists with amendment to the rules to bring 45% qualifying marks in Master Degree for direct recruits as minimum qualification and backlog vacancies to be filled for SCs/STs.
51. By referring to the advertisement, it is stated that repatriation of deputationists can take place at any time without assigning any reasons and Rule 12 of the KVS Rules, which operates in its own field, would not support the applicants' case.
52. The basic thrust of the respondents is that appointment on deputation is no mode for appointment and Commissioner having exceeded its authority de hors the rules without seeking approval of the Chairman of KVS resorted to regular appointment which cannot be countenanced and as deeming the appointment of the applicants on direct recruitment basis has not followed the proper procedure. The decision of Calcutta Bench, which has not taken into consideration in its true letter and spirit the decision of the Bench of the Jaipur of this Tribunal and without adverting to the rule position, the decision is per incurium.
53. Before adverting to further, it is relevant to highlight the concept of decisions per incariam. The decision is per incuriam when it fails to take into consideration the statutory rules and law on the subject. However, when the possible aspect of the matter was not considered despite being raised cannot render a decision per incuriam. The Apex Court in State of Bihar v. Kalika Kuer, 2003 (5) SCC 448, explained the principle of per incuriam with the following observations :
5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England, 4th Edn., Vol. 26 : Judgment and Orders; Judicial Decisions as Authorities (pp. 297-98, para 578) we find it observed about per incuriam as follows :
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 coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow, or when it has acted, in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statue or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has ministerpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.
Lord Godard, CJ., in Huddersfield Police Authorities case observed that where a case or statute had not been brought to the Court's attention and the Court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
6. In a decision of this Court reported in Government of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262, it has been held as follows : SCC pp. 264-265, para 8).
The rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the Superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue.... We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to be good law only if it is shown that it is clue to any subsequent change in law.
7. According to the above decision, a decision of the coordinate Bench may be said to have ceased to be good law only if it is shown that it is due to any subsequent change in law.
8. In State of U.P. v. Synthetics and Chemicals Ltd., , this Court observed : (SCC pp. 162-62, para 40).
40. 'Incuria' literally means "carelessness". In practice per incuriam appears to mean per ignoratium. English Courts have developed this principles in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.), Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
9. In Fuerst Day Lawson Ltd. v. Junda Exports Ltd., , this Court observed : (SCC pp. 367 & 368, paras 19 and 23).
A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle, of judgment 'per incuriam'. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.
10. Looking at the matter, in view of what has been held to mean by per in-curiam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment; while saying that the decision in the case of Ramkrit Singh was rendered per incuriam. On the other hand, it was observed that in the case of Ramkrit Singh the Court did not consider the question as to whether the Consolidation Authorities are Courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways-cither to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt the earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition.
54. What has been discerned from the above is that when a judgment of the coordinate Bench or a higher Forum has not considered the statutory rules or ignored the decision, which is binding, is to be rendered as per incuriam loosing its precedent value.
55. In the light of above, while referring to the decision of the High Court of Madhya Pradesh (supra), for want of merit consideration and non-consideration of the rules or adjudication of the issue as to whether the applicants had been appointed on deputation or on direct recruitment, the same does not partake the character of a precedent to be followed. A controversy or issue, which has not been dealt with, this decision has not laid down any ratio decidendi to be followed. By no stretch, it is either in conflict or diametrically opposite to the decision of High Court of Calcutta Bench.
56. Another decision, which has been relied upon by the respondents, is a decision of Jaipur Bench of this Tribunal. Though this decision has been distinguished by the High Court of Calcutta, yet we find that the issue dealt with does not adjudicate the controversy whether the applicants therein were appointed on direct recruitment basis or not. Simply assuming without discussion of any statutory rules or the recruitment rules for appointment of Principals, a conclusion drawn as to appointment of the petitioners therein on deputation being de hors the rules simply because a decision that the order is void ab initio cannot be authenticated or ratified, assumes legal character. Propagation of the principle of a thing is to be done in the manner suggested under the rules cannot be said to be laying down any ratio decidendi. In the above view of the matter, when lis has not been adjudicated and there is no consideration of the statutory rules, the decision is per incuriani and has no binding effect and it has to be ignored in all fairness in consonance with law.
57. The above conclusion left us with only decision of High Court of Calcutta, which has neither been stayed nor modified nor overturned in appeal is worth binding in the light of doctrine of precedent as referred to in Dawar's case (supra), referred to in preceding paragraphs. However, so far as another decisions of Moti Lal and Uma Rani of the Apex Court, which lay down regularization not being a mode of appointment de hors the rules is held to be not vesting any right are concerned the decisions can be distinguished in the peculiar facts and circumstances of those cases wherein Cooperative Societies' Act and Rules were in question whereby staff was appointed by virtue of regularization has been found not to be one of the modes of appointment whereas factual situation is different. It is trite law in the light of observation as held by the Constitution Bench in Islamic Academic of Education (supra) that it is only the ratio decidendi, which has to be derived on cumulative reading of the facts and other views on merit consideration. The ratio decidendi of Uma Rani's case does not bind but the controversy here has been grounded on different set of rules and circumstances prevalent when the appointment were made.
58. Unless a wrong committed-by the respondents by appointing the PGTs on deputation on probation against a temporary post is found de hors the rules, the concept of negative equality cannot be pressed into consideration. This would have no applicability.
59. In our Constitution, a interpretation, doctrine or principle of exclusion is recognized. By necessary implication, certain statements are to be read.
60. The Apex Court in V. Jagannadha Rao v. State of A.P., (2001) 110) SCC 401, while laying down the mode of interpretation with the following observations held that while interpreting a statute or a rule what has been said but also what has not been said shall also be considered :
The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or words as meaningless, has to be avoided. It is contrary to all rules of construction to read words into an At is wrong and dangerous to proceed by substituting some other words for words for the statute. In other words, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding a particular case.
61. Purposive legislation & interpretation is also one of the modes defined and explained in Rao's case (supra). Legislature had inserted every part of the enactment with a purpose and with intention. Objection and preamble of the Act or rule is a paramount consideration.
62. As held by the Apex Court in Dilawar Balu Kurane v. State of Maharashtra, , a marginal note in the Rules of Act cannot restrict the meaning of a section which is clear and unambiguous.
63. Having in mind the above interpretation by adverting to the rules of appointment as amended in 2001 in the matter of filling of posts as per Schedule-I, one of the modes is by direct recruitment and other by promotion of departmental candidates. In case of direct recruitment, a condition precedent as an eligibility is subjecting the candidates to a selection process which includes a test and interview whereas in the case of promotion, the DPC would consider eligible feeder category candidates as 'fit' or 'unfit' and then panels are prepared. In case of direct recruitment, as per Clause 10 of the Rules, 1971, ibid, it is only direct recruits who have to be placed on probation for two years and then confirmed whereas in promotion probation and confirmation are restricted to at the entry level only.
64. In the Schedule in the matter of direct recruitment, apart from persons holding analogous post of Vice Principals and Assistant Education Officers, persons holding post of PGT with ten years service irrespective of their working elsewhere or departmental candidates, there is no impediment for participating in selection. Whereas in promotion, the only suitable candidates, as feeder category, are Vice Principals and failing if feeder category candidates are not available, deputation is permissible from among the KVS employees who fulfil the qualification prescribed for direct recruitment. The plain and contextual as well as grammatical meaning, as the rules are unambiguous, clearly shows that in the matter of deputation and promotion, no selection process has to be undertaken.
65. Having in mind the clear concept of direct recruitment and promotion, the advertisement issued by the respondents informing the public at large i.e. eligible candidates, posts of Principal were to be filled up by deputation and also by direct recruitment. Subjecting these candidates, who had applied, to a selection process of test and interview and thereafter their appointment on probation leaves no doubt that these modes of appointment as notified is nothing but direct recruitment. The applicants having undergone the process of selection when appointed on deputation which is impermissible by exclusion when it is not shown that the deputation has opted is under 'failing which clause' in the promotional process and for want of credible material produced with eligible Vice Principals as a feeder category were not available for consideration for promotion, the aforesaid provision could not have been resorted to.
66. This had left with only one mode of recruitment i.e. direct recruitment. A direct recruitment is inferred from the orders passed by the respondents whereby some of the candidates who had been initially engaged on deputation against temporary post in view of emergence of vacancies in general category the availability of vacancies is not disputed by the respondents in their counter reply filed in O.A. No. 2801/2004 (supra). The fact that the candidates had been appointed on probation by the Commissioner who had jurisdiction to appoint Principals on direct recruitment basis merely the Board of Governors had reviewed the orders as there was no approval from the Chairman, KVS would not render the appointments as nullity or de hors the rules when power to appoint vests with the Commissioner. This fact is amply proved on recommendation of the cases by the Tribunal in Mrs. G. Radhakrishnan s case (supra).
67. Before the High Court of Calcutta though respondents have taken all their objections including appointment of applicants on deputation in violation of recruitment rules without approval of the Chairman of KVS, a categorical finding that applicants had been recruited by way of direct recruitment on all India advertisement with a meticulous discussion that Article 38 would not apply and under Rule 22 of the Rules of KVS, the appointments made are in accordance with rules has to be treated as direct appointment overruling the deputation on the ground that deputation cannot be intra KVS and cannot be a made except 'failing which clause' under promotion.
68. We also find that a relationship between employer and employee in a Government service or under an authority who has been declared as a State under Article 12 of the Constitution of India though at the outset is contractual but becomes statutory by the rules framed governing conditions of service. This cannot be operated as agreement between the parties. Concept of promotion on a selection post on the basis of selection process and deputation are poles apart. Hereby because the applicants had accepted the deputation, estoppel would not operate against statutory rules. A waiver and doctrine of acquiescence would have to be shown with intent but would not operate in the area covered by the rules in the era of collective bargaining. Respondents are estopped after initiating the proceedings on direct recruits and adding on to the vacancies in general quota and appointments of few under direct recruitment on probation basis from taking a contrary plea to the detriment of applicants who have altered their position would be disadvantageous. Doctrine of legitimate expectation is an equitable consideration by virtue of dint of hard work and on qualifying the selection process, depriving the applicants who were departmental candidates having a right to participate in direct recruitment, to divest of their appointments and to alter the character of their appointments to their disadvantage is not an act of role model which in a welfare State Government is bound to perform. The doctrine of kuiatime action cannot be applied.
69. A quasi-judicial or administrative authority is bound by the rules. They have to make their action apparent, in fair play and good conscience and reasonableness should be present. Any action, which is an antithesis to these integral parts of a system of justice, has to be rendered an illegality.
70. The Apex Court in Ganesh Santa Ram v. S.B.I. 2005 (2) SLT SC 246, has held that even in an administrative action doctrine of justice is applicable.
71. We also find that few of the candidates had been appointed on direct recruitment basis on probation and it is stated that steps have been taken to rectify this mistake. A mistake, which requires long drawn process to arrive at its conclusion, is not an error. There should be a deliberate omission either in derogation or ignorance of rules, which makes an action of the Government a mistake. Mistake should be inadvertent to be rectified. Once the power to be appointed on direct recruitment basis flows from the rules and all the ingredients and pre-requisites of selection on direct recruitment had been undertaken by the respondents under the guise of mistake with a deliberation, they cannot rectify a conscious decision as implied by the rules. Nobody is allowed to rectify its action on a plea of mistaken action as this puts another party to disadvantage and the action violates the rules. This is not a fair play rather arbitrary and whimsical action at the ipsi dixit of the authorities.
72. The Jaipur Bench decision's of the Tribunal has been distinguished by the High Court of Calcutta which is no more in dispute.
73. Article 14 of the Constitution of India forbids hostile discrimination and invidious discrimination is also an infraction to the principle of equality. Any administrative action has to be examined on the touchstone of twin test laid down under Article 14 of the Constitution, while appointing law candidates on direct recruitment basis on probation dispensing with the services of applicants, the intelligible differentia is not found to have any reasonable nexus with the object sought to be achieved. In all respects, both categories who were initially appointed on deputation are identical and meeting out differential treatment to equals treating them as un-equals, there should have been an intelligible differentia and reasonable nexus with the object sought to be achieved. If the object sought to be achieved transpires rectification of an error as appointments were made de hors the rules, no other differentia found the appointments made as de hors the rules but made under the rules. Merely because as a stop gap arrangement, direct recruitment has been nomenclatured as deputation when no provision for deputation existed intra KVS, the only reasonable inference drawn by the Calcutta High Court as to the status of the applicants as direct recruits has to be accepted and followed. The object sought to be achieved, as transpires, to attract more persons from open market to complete for direct recruitment does not seem to be a valid ground as even in the notification the public at large was invited to apply. This is not a deprivation to others or a selection process to their exclusion. Moreover, the applicants, who are eligible to apply under the direct recruitment quota have already rendered their services with the KVS are more experienced then other categories. Apart from it, it is not a fresher who is to be appointed. It is only Vice Principals/Assistant Educational Officers or PGTs with ten years service are the candidates to have been called for selection.
74. Having concluded when no object has been in existence which has to be achieved and there is no differentia having reasonable nexus with the action of the respondents treating both the classes differently is patently illegal. Negative equality would not come in the picture as appointments of others were also on direct recruitment basis and the ratio laid down by the Calcutta High Court would mutatis mutandis extend to them. In the Constitution Bench of the Apex Court in D.S. Nakara v. Union of India, concept of equality is well explained with, the following observations :
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be to discrimination where the clarification marking the differential fulfils the aforementioned two conditions. However, in E.P. Royappa v. State of T.N., it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. This Court further observed as under : (SCC p. 38, para 85).
From a positive point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in Stale action and ensure fairness and equality of treatment.
14. Justice Iyer has in his inimitable style dissected Article 14 in Maneka Gandhi case as under at SCR at p. 728 : (SCC p. 342, para 94) That article has a pervasive processual potency and versatile quality, egalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight errants of 'executive excesses' -if we may use current cliche can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law : Be you ever so high, the law is above you.
Affirming and explaining this view, the Constitution Bench in Ajay Hasia v. Khalid Mujid Schravardi held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implict in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14. After a review of large number of decisions bearing on the subject, in Air India v. Nergesh Meerza and Court formulated propositions emerging from an analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin test of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
75. In the result, for the foregoing reasons, we do not subscribe to the decision taken by the respondents and do not advert to their justification. We hold that appointments of the applicants were on direct recruitment basis and their services cannot be dispensed with other than in accordance with laid down procedure under the rules with a valid proceedings. They are entitled for continuity of service. OAs are allowed. Impugned orders are set aside. Respondents are directed to restore back the applicants to the post of Principal, if reverted, with continuity of service and difference of wages, within a period of three months from the date of receipt, of a copy of this order. No costs.