Reserved on 27.08.2012.

Delivered on 20.12.2012.

Case :- WRIT - A No. - 20740 of 2012

Petitioner :- Arun Kumar Singh & Others

Respondent :- State Of U.P. & Others

Petitioner Counsel :- Siddharth Khare,Ashok Khare,Manoj

Srivastava

Respondent Counsel :- C.S.C.,K.S.Shukla,S.K. Verma

With

Case :- WRIT - A No. - 20741 of 2012

Petitioner :- Chandra Bhanu Dubey

Respondent :- State Of U.P. & Others

Petitioner Counsel :- Siddharth Khare,Ashok Khare

Respondent Counsel :- C.S.C.,Jitendra Kumar,K.S.Shukla,S.K.

Verma

With

Case :- WRIT - A No. - 24618 of 2012

Petitioner :- Anil Kumar Chaubey And Others

Respondent :- State Of U.P. And Others

Petitioner Counsel :- T.N. Tiwari

Respondent Counsel :- C.S.C.,Rajeshwar Singh

:::::::::::

Hon'ble Ashok Bhushan,J.

Hon'ble Prakash Krishna,J.

Hon'ble Sanjay Misra,J.

(Delivered by Hon’ble Ashok Bhushan, J.)

A learned Single Judge, while hearing Writ Petition No.20740

of 2012 (Arun Kumar Singh and others vs. State of U.P. and others)

and other similar matters made a reference for constituting a Full

Bench to answer following three questions:-

“(a) Whether the power of the parent department

2

to revoke the deputation even before the expiry

of the term for good and valid reason is lost, only

due to the fact that the deputationist was getting

some additional monetary benefits while working

on deputation.

(b) Whether the decision of the employer in

revoking the deputation even before expiry of the

term on good and valid reasons would be bad

merely because the employee during deputation

was getting better salary/allowances.

(c) Whether the Single Judge was justified in

declaring the judgment of the Single Judge and

of the Division Bench dated 17.02.2011 and

dated 27.05.2011 respectively as per incuriam or

he was obliged to refer the matter to a larger

bench if he had doubts about the said

judgments.”

The Hon’ble the Chief Justice vide order dated 22

nd

May,

2012 constituted this Full Bench.

Before we proceed to answer the questions referred, it is

necessary to note background facts giving rise to the reference.

It shall be sufficient to note the pleadings in Writ Petition

No.20740 of 2012 (Arun Kumar Singh and others vs. State of U.P.

and others) for considering the questions referred which may be

treated as leading writ petition.

The petitioners were appointed as Assistant Teachers in

Junior Basic Schools run by U.P. Board of Basic Education. The

petitioners were appointed as Assistant Teachers between 1997 to

1999 and were subsequently given promotion as Assistant Teacher

in Senior Basic Schools between the year 2004-2006. The

constitutional provisions contained in Part-IV of the Constitution of

3

India (Articles 39, 41, 45 and 46) enjoin upon the State to frame its

laws and policy to implement objectives which have been

delineated in the aforesaid constitutional provisions. The aforesaid

constitutional provisions enjoin the State to take effective steps for

providing education to children. Right to education is now a

fundamental right of children between age of 6 to 14 and State is

obliged to provide free and compulsory education to all children.

The Central Government for attaining the aforesaid objectives, had

taken a policy decision to launch a mission namely “Sarva Shiksha

Abhiyan”. The State Governments were involved in the

implementation of the scheme so that compulsory education be

provided to children. The State of U.P. has also launched various

schemes for achieving the aforesaid goal. The Block Resource

Centres and Nyaya Panchayat Resource Centres (BRC and NPRC)

were created towards the aforesaid end. A Government order dated

1

st

September, 2001 was issued providing for a methodology for

selecting coordinators/co-coordinators at Block Resource Centres

and Coordinator at Nyaya Panchayat Resource Centres. The

Government order contemplated selection of coordinator at Block

Resource Centre from amongst Headmasters of primary school or

Assistant Teachers of junior high schools or a teacher who has

worked as coordinator at Nyaya Panchayat Resources Centre for

two years. Similarly for Co-coordinator at Block Resource Centres

Assistant Teachers of primary schools having four years experience

were eligible. For Coordinator at Nyaya Panchayat Resource Centre,

Headmaster of primary schools or Assistant Teacher of junior high

schools having 8 years service were eligible. Necessary posts for

coordinator/co-coordinator at Block Resources Centres and

coordinator at Nyaya Panchayat Resource Centres were created by

the State Government. Large number of coordinator/co-

coordinators at Block Resource Centres and coordinator at Nyaya

4

Panchayat Resource Centres were appointed in pursuance of the

Government order as modified from time to time. The engagements

of coordinator/co-coordinator were initially for a period of two

years. The State while implementing the scheme realised that

Nyaya Panchayat Resource Centres have completely failed to

achieve the object and due to large number of teachers being

posted at Nyaya Panchayat Resource Centres there is shortage of

teachers in the Primary/Junior High Schools. The State Government

decided to reconstitute the Block Resource Centre and Nyaya

Panchayat Resource Centres. A Government order dated 2

nd

February, 2011 was issued by the State Government for

reconstituting the aforesaid resource centres. The State

Government decided that coordinators of Block Resource Centre

shall be Assistant Basic Shiksha Adhikari or Nagar Shiksha Adhikari,

ex-officio. It was further decided that at Nyaya Panchayat level the

Headmasters of Junior High School shall be made Sankul Prabhari

who shall be ex-officio coordinator of Nyaya Panchayat Resources

Centre. In the new reconstituted scheme the Coordinators were

thus made ex-officio. The Government also decided that due to

shortage of teachers in the institutions, it is necessary to send

teachers who have been working at Block Resource Centres and

Nyaya Panchayat Resource Centres to their parent institutions. The

reconstituted scheme was implemented and the posts which were

created for Block Resource Centre and Nyaya Panchayat Resource

Centre were surrendered and the Government order contemplated

that out of surrendered posts certain posts be transferred to Nyaya

Panchayat Resources Centre for implementation of new scheme.

The Government order dated 2

nd

February, 2011 gives figure of the

posts which have been surrendered and the posts which are to be

now utilised by transfer on the aforesaid posts for implementation

of new scheme. The Government order clearly meant that earlier

5

scheme is now given up and the new scheme shall be implemented

as a consequence of which large number of teachers were to be

repatriated to their parent institutions for teaching work which was

suffering. In pursuance of the Government order dated 2

nd

February, 2011, the State Project Director issued a consequential

order dated 10

th

February, 2011 inviting fresh applications from

Assistant Teachers of Primary and Junior High Schools for choosing

co-coordinators at Block Resource Centres and Nyaya Panchayat

Resource Centres. The post of co-coordinators in Block Resource

Centre were to be filled from teachers of Science, Maths, English,

Hindi and Social Science. After issuance of the Government order

dated 2

nd

February, 2011 and the order dated 10

th

February, 2011,

large number of Assistant Teachers and Headmasters who were

working as cCoordinator/co-coordinators were to be repatriated to

their parent institutions.

Those Assistant Teachers and Headmasters who were

working as Coordinators and Co-coordinators challenged the

Government order dated 2

nd

February, 2011 and the order dated

10

th

February, 2011 by filing writ petitions. In this context reference

is made to Writ Petition No.9393 of 2011 (Har Pal Singh and others

vs. State of U.P. and others), Writ Petition No.10232 of 2011

(Virendra Singh and others vs. State of U.P. and others) and Writ

Petition No.16615 of 2011 (Subhash Chandra Rathore and another

vs. State of U.P. and others). All the aforesaid writ petitions were

heard and dismissed by learned Single Judges of this Court

upholding the Government order dated 2

nd

February, 2011 and the

order dated 10

th

February, 2011. The challenge to the Government

order on the ground that Government order is arbitrary, was

repelled. This Court held that consequent to the Government order,

the teachers and Headmasters who were working have to report to

6

their parent institutions. Special appeals were filed before the

Division Bench challenging the order of the learned Single Judges.

Reference is made to Special Appeal No.371 of 2011 (Har Pal Singh

& others vs. State of U.P. and others) which was filed against the

judgment and order of learned Single Judge dated 17

th

February,

2011 by which the writ petition was dismissed. All the special

appeals were heard by the Division Bench of this Court and vide its

detail judgment and order dated 27

th

May, 2011, the Division Bench

dismissed all the special appeals and upheld the order of learned

Single Judges. The writ petitioners in pursuance of the Government

order dated 2

nd

February, 2011 applied and were selected for

appointment as co-coordinators. Reference has been made to the

appointment letter dated 19

th

May, 2011 by which the petitioners

were appointed as co-coordinators in Block Resource Centres. The

petitioners claimed to have joined in May, 2011 and were entitled

to continue at least up to May, 2013.

Several writ petitions being Writ Petition No.1178 (SS) of

2011 (Sunil Dutt & others vs. State of U.P. and others) and other

writ petitions have been filed at Lucknow Bench of this Court in

which writ petitions also the order dated 10

th

February, 2011 issued

by the State Project Director inviting applications for appointment in

pursuance of the Government order dated 2

nd

February, 2011 was

under challenge. The aforesaid writ petitions were filed by those

coordinator/co-coordinators who were selected and working since

before 2

nd

February, 2011. The petitioners of that writ petitions

challenged the Government order dated 2

nd

February, 2011 as well

as the consequential order dated 10

th

February, 2011 on several

grounds including the ground that by repatriation they will suffer

financial loss since as Block Resource Coordinators they shall be

entitled to receive higher salary. Before the learned Single Judge at

7

Lucknow Bench of this Court the respondents pointed out that writ

petitions filed by similarly situated persons have already been

dismissed by judgment and order of learned Single Judge in Har

Pal Singh’s case (supra) upholding the Government order dated

2

nd

February, 2011 and the petitioners have no right to continue on

the post of coordinator/co-coordinators. Before the judgment could

be delivered by the Lucknow Bench of this Court, the respondents

also pointed out that special appeals against the judgment of

learned Single Judges have also been dismissed by the Division

Bench vide its judgment and order dated 27

th

May, 2011. The

learned Single Judge of Lucknow Bench of this Court after noticing

the judgment of learned Single Judge of this Court dismissing the

writ petition as well as the Division Bench judgment of this Court in

Har Pal Singh’s case (supra), allowed the writ petitions vide its

judgment and order dated 9

th

February, 2012. Learned Single Judge

of Lucknow Bench held the judgments of learned Single Judge and

Division Bench in Har Pal Singh’s case (supra) as per-incuriam.

After the judgment of learned Single Judge dated 9

th

February,

2012, the State Project Director has cancelled its earlier order dated

10

th

February, 2011 passed in consequence of the Government

order dated 2

nd

February, 2011. A letter dated 13

th

April, 2012 was

issued by the State Project Director in purported compliance of the

judgment of learned Single Judge of Lucknow Bench dated 9

th

February, 2012. In Writ Petition No.20740 of 2012 order dated 13

th

April, 2012 was challenged. The petitioners are apprehending that

their working as co-coordinators is likely to be interfered with in

view of setting aside the order of State Project Director dated 10

th

February, 2011.

In pursuance of the order dated 13

th

April, 2012, the Basic

Shiksha Adhikari in certain districts have issued an order dated 20

th

8

April, 2012 directing for restoration of earlier position and new

appointments of coordinators and co-coordinators in pursuance of

the Government order dated 2

nd

February, 2011 were cancelled. For

example, in Writ Petition No.20741 of 2012 order passed by the

Basic Shiksha Adhikari dated 20

th

April, 2012 has been brought on

the record. In all the writ petitions, which are up for consideration

in this bunch of writ petitions, the order of the State Project

Director dated 13

th

April, 2012, which has been issued in pursuance

of the order of the learned Single Judge of Lucknow Bench, is

under challenge.

A learned Single Judge of this Court while entertaining the

writ petitions, has framed the aforesaid three questions and made a

reference and also passed an interim order staying the order dated

13

th

April, 2012 of the State Project Director.

All the three issues, which have been referred for

consideration being interconnected, are taken together.

As noted above, the coordinator/co-coordinators were

appointed earlier in pursuance of the Government order dated 1

st

September, 2001 at Block Resource Centres and Nyaya Panchayat

Resource Centres. Large number of teachers from primary

institutions/junior high schools including Headmasters of primary

institutions were appointed. For implementation of Sarva Shiksha

Abhiyan and various projects undertaken by the State Government

for providing compulsory education to the children schemes were

framed and implemented by the State Government as a policy

decision of the State and the appointments as coordinator/co-

coordinators were made by executive orders issued by the State

Government. The State Government issued Government order

9

dated 2

nd

February, 2011 for reconstituting the Block Resource

Centres and Nyaya Panchayat Resource Centres in reference to the

Government order dated 1

st

September, 2001 and other

Government orders issued from time to time. The Government

order dated 2

nd

February, 2011 specifically noticed that Nyaya

Panchayat Resource Centres created under Sarva Shiksha Abhiyan

are not able to provide impetus to education programmes. The

State Government decided to reconstitute the resource centres

since expected results were not being delivered by the resource

centres. The State Government also specifically noted that due to

posting of 8249 coordinators at Nyaya Panchayat Resource Centres

there was shortage of teachers in the institutions. It was specifically

provided in the Government order that as there is shortage of

teachers, teachers be sent to their parent institutions. It is useful to

note the salient features of the Government order dated 2

nd

February, 2011 with regard to reconstitution of Block Resource

Centres and Nyaya Panchayat Resource Centre, which are as

under:-

(i)The Coordinators of Block Resource Centre shall be

henceforth Assistant Basic Shiksha Adhikari/Nagar

Shiksha Adhikari who shall be ex-officio coordinators of

Block Resource Centre/Urban Resource Centre.

(ii)The Headmasters of Junior High Schools who have

been made Sankul Prabhari shall be ex-officio

Coordinators of Nyaya Panchayat Resources Centre.

(iii)The Co-coordinators who shall be required at

Block Resource Centre and Nyaya Panchayat

Resources Centre shall be appointed and the posts

10

shall be earmarked subjectwise, namely, Science,

Mathematics, English, Hindi, Social Science and Special

Education.

(iv) The posts of coordinators at Nyaya Panchayat

Resources Centre shall be surrendered and shall be

transferred to Block Resource Centre.

The methodology for selecting the co-coordinators at

resource centres was also changed and qualifications were laid

down in the Government order dated 2

nd

February, 2011 and in

pursuance of the said Government order, the State Project Director

issued order dated 10

th

February, 2012 and thereafter steps were

taken in all districts and co-coordinators were selected and

appointed. The petitioners are thus co-coordinators who have been

appointed subsequent to the Government order dated 2

nd

February,

2011. The petitioners before the Lucknow Bench of this Court in

Writ Petition No.1178 (SS) of 2011 (Sunil Dutt and others vs. State

of U.P. and others) and other connected matters were the

coordinator/co-coordinators who were selected and working prior to

reconstitution of the Block Resource Centres by Government order

dated 2

nd

February, 2011. Although the writ petitions filed by

similarly situated coordinator/co-coordinators appointed and

working prior to 2

nd

February, 2011 like Har Pal Singh’s case

(supra) and other writ petitions were dismissed and the special

appeals have also been dismissed by a Division Bench of this Court,

but a decision was taken by a learned Single Judge of Lucknow

Bench of this Court in Sunil Dutt’s case (supra) holding the earlier

two judgements as per-incuriam and allowed the writ petition filed

by such coordinator/co-coordinators who were appointed prior to

Government order dated 2

nd

February, 2011 and further allowed

them to continue and also issued mandamus to pay them higher

11

salary.

From the salient features of the Government order dated 2

nd

February, 2011, it is clear that earlier policy for appointment of

coordinator/co-coordinators were changed and given up with

specific stipulation that teachers who were earlier appointed shall

go to their parent institutions since there was shortage of teachers

for teaching and new scheme will be implemented in which

coordinators at Block Resource Centres as well as Nyaya Panchayat

Resource Centres shall be ex-officio Assistant Basic Shiksha

Adhikari and Sankul Prabhari. Various posts earlier created were

surrendered and transferred. Thus the Government order

completely reconstituted the scheme and abolished the scheme of

coordinators at Block Resource Centres and Nyaya Panchayat

Resource Centres. There cannot be any dispute that policy making

is in the domain of the State and policy can be changed from time

to time by the State Government. One of the submissions which

has been noticed in Sunil Dutt’s case (supra) is that the policy

dated 2

nd

February, 2011 shall be prospectively implemented and

shall not effect appointments already made. It was also noticed that

the process of appointment, which was introduced by the

Government order dated 2

nd

February, 2011, is only for future

appointment and the said Government order was to be

implemented with immediate effect. The submission noted in Sunil

Dutt’s case (supra) is that the new policy cannot affect the

working of the coordinator/co-coordinators who are already

working. The policy was a integrated policy which affected both i.e.

coordinator/co-coordinators who were working at the relevant time

and those who were to be newly appointed in accordance with the

changed policy. When the policy contemplated that there is

shortage of teachers and the teachers working in the Nyaya

12

Panchayat Resource Centres shall be reverted to their parent

institution, the said policy clearly affected the incumbents who were

already working as coordinator/co-coordinators. Thus the

submission that the said Government order cannot be applicable on

the coordinator/co-coordinators who are already working is

fallacious and against the clear stipulation in the Government order

dated 2

nd

February, 2011.

Before the learned Single Judge and also before the Division

Bench in Har Pal Singh’s case (supra) all the arguments made by

coordinator/co-coordinators who were working at the time of

issuance of Government order dated 2

nd

February, 2011, were

raised and considered. The Division Bench noted following 4 points

for consideration which are as under:-

“(1)Under what circumstances this Court can

interfere in policy decisions taken by the State

Government.

(2)Whether the change in policy by issuance

of Government Order dated 2nd February, 2011

is arbitrary and unreasonable.

(3) Whether the appellants have any vested

right to continue as Coordinator/Co-Coordinator

after the Government dated 2nd February, 2011

is given effect to.

(4)Whether the learned Single Judge was

bound to follow the interim order passed in a

similar matter by another Single Judge of the

Lucknow Bench of this Court.”

Both the parties made elaborate submissions on the aforesaid

points and while answering Point No.1 and 2, the Division Bench

made following observations:-

13

“From the perusal of the Government

Order dated 2nd February, 2011, we are of the

considered opinion that the change in the policy

effected by the State Government is based on

relevant considerations and cannot be said to be

arbitrary so as to entitle this Court to interfere. It

is for the State Government to see that the

teaching does not suffer. It is the constitutional

obligation to provide free education to the

children between the age of 6years and 14 years.

This is specially in aid of achieving the avowed

object. Therefore, it cannot be said that the

policy framed by the Government is arbitrary.

The submission of the learned counsel for the

appellants that one set of teachers are being

replaced by another set of teachers is wholly

misplaced. The existing Coordinators/Assistant

Coordinators were not doing any regular teaching

work. They were involved in supervision of

teaching work and various other activities as a

result of which teaching work in the school

suffered. In the new scheme Co-Coordinators are

also required to do teaching work which will be a

welcome step towards fulfilling the constitutional

obligation.

The plea that the Government Order dated

2nd February, 2011 would operate prospectively

and would not cover the cases of existing

Coordinators/Co-Coordinators is not correct. It is

to be taken note of that all the appellants have

been appointed as Coordinators/Assistant

Coordinators, as the case may be, on a fixed

term of two years on deputation basis and they

are still holding their lien on their original post.

They are not being paid any extra remuneration

what they were getting as teachers. Their

primary duty is to teach students. If for some

reason they have been appointed under a policy

and on a review of their working the Government

comes to the conclusion that it is not achieving

the desired result it is fully entitled to change the

policy. The appellants have no vested rights to

say that their appointment as Coordinators/Co-

Coordinators cannot be terminated midway. We

find from the letter of appointment that a specific

14

condition has been mentioned there that their

appointment can be cancelled at any time. That

being the position we are of the considered

opinion that with the change of policy the

appellants cannot claim any right to continue to

complete their full tenure.

Applying the test laid down by the Apex

Court in the aforesaid cases regarding

interference in a policy decision, we are of the

considered opinion that above policy framed by

the State Government cannot be said to be

arbitrary, unreasonable and it is the result of

conscious decision on a review of the working of

the existing system of Coordinators and Co-

Coordinators and State is well within the

jurisdiction to change the same in order to

achieve the desired result. We may mention here

that there is not allegation of mala fied raised

against the State Government or the Authorities

in framing the said policy. We further find that

the change in the policy is of the State

Government is well informed by reasons and it is

to ensure that the education of the children does

not suffer. Therefore, it cannot be said to be

arbitrary and unreasonable so as to violate Article

14 of the Constitution of India or other

parameters deduced under Point No.1.”

The issue as to whether the coordinator/co-coordinators have

vested right to continue, was negativated and following was laid

down by the Division Bench:-

“While dealing with Point No.2

hereinabefore we have already held that the

appointment of the appellant as Coordinators/Co-

Coordinators was for a fixed term of 2 years.

They were not paid any extra remuneration for

that work. We also find that their lien on the

original post of teacher has been maintained.

Thus their appointment on the post of

Coordinator/Co-Coordinator is only by way of

deputation even if the appointment has been

made by facing a selection process. It can be

15

terminated at any time either by a special or

general order as held by this Court in the case of

Ram Kumar( supra) that an officiating employee

has no right to post and his appointment can be

cancelled at any time.

In the case of Babu Ram Ashok Kumar and

another vs. Antarim Zila Parishad, AIR 1964 Alld.

534, the Full Bench of this Court has held as

follows:

’(9) A Court of appeal would not interfere with

the exercise of discretion by the Court below, if

the discretion has been exercised in good faith,

after giving due weight to relevant matters and

without being swayed by irrelevant matters. If

two views are possible on the question, then also

the Court of appeal would not interfere, even

though it may exercise discretion differently,

were the case to come initially before it. The

exercise of discretion should manifestly be

wrong.’

Respectfully following the law laid down in the

aforesaid case to the facts of the present case,

we are of the view that the discretion exercised

by the learned Single Judge does not call for any

interference as it is in accordance with law.”

The judgment of learned Single Judge in Sunil Dutt’s case

(supra) has taken a view that the issue that coordinator/co-

coordinators shall be getting less salary after repatriation and this

question was not considered by the Division Bench in Hal Pal

Singh’s case (supra). It is relevant to note that the Division Bench

while dealing with Point No.3 noted following regarding

emoluments:-

“It may be mentioned here that all the

appellants are being paid the same emoluments

which they were getting as teachers and they are

not paid any extra amount for the work which

they are doing as Coordinator/Co- Coordinator.

16

However, after being appointed as Coordinator

and Co- Coordinator they have stopped doing

teaching work in their respective schools.”

Learned Single Judge in Sunil Dutt’s case (supra) although

noted that coordinator/co-coordinators are getting the same salary

but took the view that they are entitled for payment in higher scale

and ultimately issued direction for making payment of the post of

Headmaster of Junior High School. Thus it transpires that

coordinator/co-coordinators were not being paid any higher pay

scale to which they were getting while working as Assistant

Teacher/Headmaster that is why the Division Bench noticed that

while working as coordinator/co-coordinators they were not being

paid any higher emoluments. Thus the fact that petitioners before

the learned Single Judge of Lucknow Bench claimed that they are

entitled for higher emoluments was not a factor on the basis of

which it can be said that the judgments of learned Single Judge and

Division Bench of this Court in Har Pal Singh’s case (supra) can

be treated to be a not binding precedent and has virtually held

them to be per-incuriam.

When a judgment can be held to be per-incuriam is now to

be looked into and we have to answer as to whether the judgments

of learned Single Judge and Division Bench in Har Pal Singh’s

case (supra) can be held to be per-incuriam.

The word “per-incuriam” is a Latin word which is defined in P.

Paramanatha Aiyar “Law Lexicon” (1997

th

Edition) in following

words:-

“Per incuriam. Through inadvertence or though

want of care. (Latin for Lawyers) Through

carelessness, through inadvertence.

17

A decision should be treated as given per

incuriam when it is given in ignorance in terms of

a statute, or of a rule having the force of a

statute...”

Per-incuriam is an exception to a binding precedent. A

constitution Bench of the Apex Court in the case of A.R. Antulay

vs. R.S. Nayak and another reported in (1988)2 SCC 602

considered the concept of per-incuriam. In the said case an earlier

order dated 16

th

February, 1984 was passed without taking into

consideration Section 7(2) of the Criminal Law Amendment Act,

1952. The question arose as to whether said directions are per-

incuriam. The Apex Court laid down following in paragraph 42 of

the said judgment:-

“42........ ‘Per incuriam’ are those decisions

given in ignorance or forgetfulness of some

inconsistent statutory provision or some authority

binding on the Court concerned so that in such

cases some part of the decision or some step in

the reasoning on which it is based is found, on

that account to be demonstrably wrong. See

Morelle v. Wakeling. Also see State of Orissa v.

Titaghur Paper Mills Co. Ltd. We are of the

opinion that in view of the clear provisions of

Section 7(2) of the Criminal Law Amendment Act,

1952 and Articles 14 and 21 of the Constitution,

these directions were legally wrong.”

The Apex Court had occasion to consider as to when a

judgment is held to be per-incuriam in the case of State of U.P.

vs. Synthetics and Chemicals Ltd. reported in (1991)4 SCC 139

and laid down following in paragraphs 40 and 41:-

“40.'Incuria' literally means 'carelessness'. In

practice per incurium appears to mean per

ignoratium.' English Courts have developed this

18

principle 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'. (1944 IKB 718 Young v. Bristol

Aeroplane 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. In Jaisri Sahu v. Rajdewan Dubey, [1962]

2 SCR 558 this Court while pointing out the

procedure to be followed when conflicting

decisions are placed before a Bench extracted a

passage from Halsbury Laws of England

incorporating one of the exceptions when the

decision of an Appellate Court is not binding.

41.Does this principle extend and apply to a

conclusion of law, Which was neither raised nor

preceded by any consideration. In other words

can such conclusions be considered as

declaration of law? Here again the English Courts

and jurists have carved out an exception to the

rule of prece- dents. It has been explained as

rule of sub-silentio. A decision passed sub-

silentio, in the technical sense that has come to

be attached to that phrase, when the particular'

point of law involved in the decision is not

perceived by the Court or present to its mind'

(Salmond 12th Edition). In Lancaster Motor

Company (London) Ltd. v. Bremith Ltd., [1941]

IKB 675 the Court did not feel bound by earlier

decision as it was rendered 'without any

argument, without reference to the crucial words

of the rule and without any citation of the

authority'. It was approved by this Court in

Municipal Corporation of Delhi v. Gumam Kaur,

[1989] 1 SCC 101. The Bench held that, 'prece-

dents sub-silentio and without argument are of

no moment'. The Courts thus have taken

recourse to this principle for relieving from

injustice perperated by unjust precedents. A

decision which is not express and is not founded

on reasons nor it proceeds on consideration of

issue cannot be deemed to be a law declared to

have a binding effect as is contemplated by

Article 141. Uniformity and consistency are core

19

of judicial discipline. But that which escapes in

the judgment without any occasion is not ratio

decedendi. In Shama Rao v. State of

Pondicherry, AIR 1967 SC 1680 it was observed,

'it is trite to say that a decision is binding not

because of its conclusions but in regard to its

ratio and the principles, laid down therein'. Any

declaration or conclusion arrived without

application of mind or preceded without any

reason cannot be deemed to be declaration of

law or authority of a general nature binding as a

precedent. Restraint in dissenting or overruling is

for sake of stability and uniformity but rigidity

beyond reasonable limits is inimical to the growth

of law.”

In large number of cases the Apex Court had explained and

reiterated the grounds when a judgment can be held to be per-

incuriam. It is useful to note certain recent judgments regarding

per-incuriam. In the case of Siddharam Satlinagappa Mhetre

vs. State of Maharashtra reported in (2011)1 SCC 694 following

was laid down in paragraphs 128, 129 and 130 which are as

under:-

“128. Now we deem it imperative to examine

the issue of per incuriam raised by the learned

counsel for the parties. In Young v. Bristol

Aeroplane Company Limited (1994) All ER 293

the House of Lords observed that `Incuria'

literally means `carelessness'. In practice per

incuriam appears to mean per ignoratium. English

courts have developed this principle 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.

The 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.

In Halsbury's Laws of England (4th Edn.)

Vol. 26: Judgment and Orders: Judicial Decisions

20

as Authorities (pp. 297-98, para 578) per

incuriam has been elucidated as under:

‘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

(Young v. Bristol Aeroplane Co. Ltd., 1944 KB

718 at 729 : (1944) 2 All ER 293 at 300. In

Huddersfield Police Authority v. Watson, 1947 KB

842 : (1947) 2 All ER 193.); 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 statute or rule having statutory force.’

129. Lord Godard, C.J. in Huddersfield Police

Authority v. Watson (1947) 2 All ER 193 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.

130. This court in Government of A.P. and

Another v. B. Satyanarayana Rao (dead) by LRs.

and Others (2000) 4 SCC 262 observed as under:

‘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.”

Again in the case of State of Madhya Pradesh vs.

Narmada Bacho Andolan reported in (2011)7 SCC 639 following

was laid down in paragraph 67 which is as under:-

“Thus, ‘per incuriam’ are those decisions

given in ignorance or forgetfulness of some

statutory provision or authority binding on the

Court concerned, or a statement of law caused by

21

inadvertence or conclusion that has been arrived

at without application of mind or proceeded

without any reason so that in such a case some

part of the decision or some step in the reasoning

on which it is based, is found, on that account to

be demonstrably wrong.”

In the case of Rattiram and others vs. State of Madhya

Pradesh reported in (2012)4 SCC 516 following was laid down in

paragraphs 30, 31 sand 32:-

“30.In this context, it is useful to refer to

a passage from A. R. Antulay (supra), wherein,

Sabyasachi Mukharji, J (as his Lordship then

was), while dealing with the concept of per

incuriam, had observed thus:-

‘42...... ‘Per incuriam’ are those decisions given

in ignorance or forgetfulness of some

inconsistent statutory provision or of some

authority binding on the court concerned, so that

in such cases some part of the decision or some

step in the reasoning on which it is based, is

found, on that account to be demonstrably

wrong.’

Again, in the said decision, at a later stage, the

Court observed:-

‘It is a settled rule that if a decision has been

given per incuriam the court can ignore it.’

31. In Punjab Land Development & Reclamation

Corporation Ltd. v. Presiding Officer, Labour

Court, Chandigarh & another Constitution Bench,

while dealing with the issue of per incuriam,

opined as under:-

‘The Latin expression per incuriam means

through inadvertence. A decision can be said

generally to be given per incuriam when this

Court has acted in ignorance of a previous

decision of its own or when a High Court has

acted in ignorance of a decision of this Court.’

22

32. In State of U. P. And Another v. Synthetics

and Chemicals Ltd. And Another, a two-Judge

Bench adverted in detail to the aspect of per

incuriam and proceeded to highlight as follows:-

‘40...`Incuria' literally means `carelessness'.

In practice per incuriam appears to mean per

ignoratium. English courts have developed this

principle 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.17). 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.”

In one recent judgment the Apex Court had occasion to

consider conflicting views expressed by two Division Benches of this

Court in the case of U.P. Power Corporation Limited vs.

Rajesh Kumar and others reported in (2012)7 SCC 1. The Apex

Court in the said judgment observed that if a Division Bench comes

across another Division Bench on the same subject judicial decorum

demands that in the event another Division Bench does not agree

with coordinate Division Bench, the matter should be referred for

constitution of Larger Bench. Following was laid down by the Apex

Court in paragraphs 17, 18, 19 and 20 which are as under:-

“17.Similarly, the Division Bench at

Lucknow erroneously treated the verdict of

Allahabad Bench not to be a binding precedent

on the foundation that the principles laid down

by the Constitution Bench in M. Nagraj (supra)

are not being appositely appreciated and

correctly applied by the Bench when there was

reference to the said decision and number of

passages were quoted and appreciated albeit

incorrectly, the same could not have been a

ground to treat the decision as per incuriam or

23

not a binding precedent. Judicial discipline

commands in such a situation when there is

disagreement to refer the matter to a larger

Bench. Instead of doing that, the Division Bench

at Lucknow took the burden on themselves to

decide the case.

18. In this context, we may profitably quote a

passage from Lala Shri Bhagwan and another v.

Ram Chand and another[3]:-

“18. .. It is hardly necessary to emphasise that

considerations of judicial propriety and decorum

require that if a learned single Judge hearing a

matter is inclined to take the view that the earlier

decisions of the High Court, whether of a Division

Bench or of a single Judge, need to be

reconsidered, he should not embark upon that

enquiry sitting as a single Judge, but should refer

the matter to a Division Bench or, in a proper

case, place the relevant papers before the Chief

Justice to enable him to constitute a larger Bench

to examine the question. That is the proper and

traditional way to deal with such matters and it is

founded on healthy principles of judicial decorum

and propriety. It is to be regretted that the

learned single Judge departed from this

traditional way in the present case and chose to

examine the question himself.”

19. In Sundarjas Kanyalal Bhathija and others v.

The Collector, Thane, Maharashtra and others[4]

while dealing with judicial discipline, the two-

Judge Bench has expressed thus:-

“One must remember that pursuit of the law,

however, glamorous it is, has its own limitation

on the Bench. In a multi-Judge Court, the Judges

are bound by precedents and procedure. They

could use their discretion only when there is no

declared principle to be found, no rule and no

authority. The judicial decorum and legal

propriety demand that where a learned single

Judge or a Division Bench does not agree with

the decision of a Bench of co-ordinate

jurisdiction, the matter shall be referred to a

24

larger Bench. It is a subversion of judicial process

not to follow this procedure.”

20.The aforesaid pronouncements clearly lay

down what is expected from the Judges when

they are confronted with the decision of a Co-

ordinate Bench on the same issue. Any contrary

attitude, however adventurous and glorious may

be, would lead to uncertainty and inconsistency.

It has precisely so happened in the case at hand.

There are two decisions by two Division Benches

from the same High Court. We express our

concern about the deviation from the judicial

decorum and discipline by both the Benches and

expect that in future, they shall be appositely

guided by the conceptual eventuality of such

discipline as laid down by this Court from time to

time. We have said so with the fond hope that

judicial enthusiasm should not obliterate the

profound responsibility that is expected from the

Judges.”

From the law laid down by the Apex Court, as noticed above,

binding precedent of a judgment can be eroded and the judgment

can be termed as per-incuriam only when the judgment has been

delivered in ignorance of a statutory provision or in ignorance of

some binding authority. The judgment of learned Single Judge in

Sunil Dutt’s case (supra) does not refer to any statutory provision

which has been ignored by learned Single Judge or the Division

Bench in Har Pal Singh’s case (supra). The learned Single Judge

in Sunil Dutt’s case (supra) also has not referred to any binding

precedent which has escaped notice of learned Single Judge or

Division Bench in Har Pal Singh’s case. Hence the learned Single

Judge in Sunil Dutt’s case (supra) without there being sufficient

ground for declaring the judgment of learned Single Judge and the

Division Bench in Har Pal Singh’s case as not a binding precedent,

held the same as per-incuriam. Thus the view of the learned Single

Judge in Sunil Dutt’s case (supra) holding the aforesaid

25

judgments of learned Single Judge and Division Bench in Har Pal

Singh’s case (supra) as per-incuriam, is erroneous and cannot be

approved.

It is also necessary to notice several judgments of the Apex

Court, which have been referred to and relied by the learned Single

Judge of Lucknow Bench in Sunil Dutt’s case (supra). The

judgment in the case of Dr. L.P. Agarwal vs. Union of India

and othes reported in (1992)3 SCC 526 has been relied by the

learned Single Judge which was a case of appointment on the post

of Director of Indian Institute of Medical Sciences which was a

tenure post. The post of Director under the recruitment rules was a

tenure post and was required to be filled by direct recruitment. The

appointment of the Director was with the condition that he is

appointed for a period of 5 years or till he attains the age of 62

years. The Director before completing his tenure of 62 years, was

retired prematurely. In the said context, the Apex Court held that

appellant could not have been prematurely retired and was entitled

to continue for 5 years or 62 years of age the appointment being

on tenure post. In the present case the appointment of

coordinator/co-coordinators was made under the scheme

implemented by executive instructions issued by the State

Government. The appointment was not a statutory appointment on

any tenure post. The appointments of coordinator/co-coordinators

were appointments made for a term of two years. There are two

reasons for which the judgment in Dr. L.P. Agarwal’s case (supra)

does not help the coordinator/co-coordinators appointed prior to 2

nd

February, 2011. Firstly the resource centres were reconstituted by

the Government order dated 2

nd

February, 2011 and secondly the

posts of coordinators of Block Resource Centres were now to be

held by ex-officio Assistant Basic Shiksha Adhikari and the

26

coordinators working were to be repatriated to their parent

institutions. Due to reconstitution the posts of coordinators of Block

Resource Centre actually came to an end and coordinators of Block

Resource Centres were made ex-officio Assistant basic Shiksha

Adhikari, hence there was no post on which coordinators of Block

Resource Centre could claim to continue. The 8249 posts of

coordinators working in Nyaya Panchayat Resource Centres were

also surrendered as noticed in the Government order dated 2

nd

February, 2011. When on reconstitution the posts of coordinator

were no longer in existence and posts of co-coordinator were stood

surrendered, the continuance of earlier incumbents cannot be

allowed nor it was contemplated. Any direction for their

continuance could be clearly in the teeth of the scheme. There is

one more reason due to which the repatriation of coordinator/co-

coordinators could not be objected. The Division Bench in Har Pal

Singh’s case (supra) has specifically noted that in the letter of

appointment there was specific condition that their appointment

can be cancelled at any time. While discussing Point No.2 the

Division Bench held following:-

“We find from the letter of appointment

that a specific condition has been mentioned

there that their appointment can be cancelled at

any time.”

There being specific condition in the appointment letter itself,

it cannot be accepted that the coordinator/co-coordinators have

any indefeasible right to continue for a period of two years.

Another judgment relied by learned Single Judge in Sunil

Dutt’s case (supra) is in the case of P. Venugopal vs. Union of

India reported in (2008)5 SCC 1. The said judgment was again a

judgment rendered in a case of Director of Indian Institute of

27

Medical Sciences where the Apex Court held that the appointment

on the post of Director was for a fixed term of 5 years. In the said

case the constitutional validity of proviso to Sub-section (1-A) of

Section 11 of the All India Institute of Medical Science Act, 2007

was challenged. Section 11(1-A) of the 2007 Act as amended, was

as follows:-

“11(1-A) - The Director shall hold office for

a term of five years from the date on which he

enters upon his office or until he attains the age

of sixty-five years, whichever is earlier.

Provided that any person holding office as

a Director immediately before the

commencement of the All India Institute of

Medical Sciences and the Post-Graduate Institute

of Medical Education and Research (Amendment)

Act, 2007, shall in so far as his appointment is

inconsistent with the provisions of this sub-

section, cease to hold office on such

commencement as such Director and shall be

entitled to claim compensation not exceeding

three months' pay and allowances for the

premature termination of his office or of any

contract of service......"

The Apex Court in the said case held the said amendment as

arbitrary and impermissible classification through a one man

legislation. Following was laid down in paragraphs 37 and 40 of the

said judgment:-

“37. Such being our discussion and conclusion,

on the constitutionality of the proviso to Section

11A, we must, therefore, come to this conclusion

without any hesitation in mind, that the instant

case is squarely covered by the principles of law

laid down by this Court in the various

pronouncements as noted herein above including

in the case of D.S.Reddy vs. Chancellor, Osmania

University and Ors. [1967 (2) SCR 214].

28

40. In view of our discussion made hereinabove

and for the reasons aforesaid, we are of the view

that this writ petition is covered by the decisions

of this Court in the case of D.S.Reddy and

L.P.Agarwal and the impugned proviso to Section

11A of the AIIMS Act is, therefore, hit by Article

14 of the Constitution. Accordingly, we hold that

the proviso is ultra vires and unconstitutional and

accordingly it is struck down. The writ petition

under Article 32 of the Constitution is allowed. In

view of our order passed in the writ petition, the

writ petitioner shall serve the nation for some

more period, i.e., upto 2nd of July, 2008. We

direct the AIIMS Authorities to restore the writ

petitioner in his office as Director of AIIMS till his

period comes to an end on 2nd of July, 2008.

The writ petitioner is also entitled to his pay and

other emoluments as he was getting before

premature termination of his office from the date

of his order of termination. Considering the facts

and circumstances of the present case, there will

be no order as to costs.”

The said judgment thus also does not help the

coordinator/co-coordinators working prior to 2

nd

February, 2011.

The next judgment relied by learned Single Judge in Sunil

Dutt’s case (supra) was in the case of Union of India and

another vs. Shardindu reported in (2007)6 SCC 276. In the said

case the appointment of Shardindu was on the post of Chairperson

of National Council of Teachers Education for a period of four years

or till he attains the age of 60 years and the appointment was

governed by National Council of Teachers Education Act, 1993. The

Chairperson was sought to be removed from his office on the

ground that in the State of U.P. while he was working on earlier

post there was allegation and inquiry conducted against the officer.

On the said ground the officer was sought to be removed from the

office of Chairperson. The Apex Court in the said case held that

term of office of Chairperson or member was governed by Section 4

29

of the 1993 Act and a member can be removed from his office.

Section 5 dealt with disqualification and since none of the

disqualifications as mentioned in Section 5 was incurred by

Shardindu, he could not have been removed from the office.

Following was laid down in paragraph 15 which is as under:-

“15. Section 5 deals with disqualification for

office of Members. Section 6 lays down the

vacation of office of Member. We are not

concerned with rest of the provisions of the Act

as it deals with various functions and other

connected matters of education. In purported

exercise of the powers under Section 31 of the

Act the Central Government framed the Rules

known as National Council for Teacher Education

Rules, 1997 ( hereinafter to be referred to as '

the Rules'). Rule 5 of the Rules lays down the

conditions of service of the Chairperson, the

Vice-Chairperson and the Member-Secretary, like

their pay, dearness allowance, house rent

allowance and city compensatory allowance and

other terminal benefits. Rule 6 deals with

traveling and daily allowances to Members. Rule

7 deals with the powers and duties of the

Chairperson. Therefore, from the scheme of the

Act and the Rules it is apparent that the

appointment of the Chairperson of the NCTE is a

tenure post for a period of four years or any

person attaining the age of sixty years whichever

is earlier. Section 5 deals with disqualification

and none of the disqualifications mentioned in

that section has been incurred by the

respondent. Neither he has been convicted nor

sentenced to imprisonment for an office which in

the opinion of the Central Government, involves

moral turpitude, nor has he been un- discharged

insolvent, nor was of unsound mind and has

been removed or dismissed from the service of

the Government or a body corporate owned or

controlled by the Government, and has in the

opinion of the Central Government such financial

or other interest in the Council as is likely to

affect prejudicially the discharge by him of his

30

functions as a Member nor has committed any

financial irregularity while working as

Chairperson. Therefore, the respondent has not

incurred any of the disqualifications as mentioned

above. Section 6 deals with vacation of office of

Member. Section 6 lays down that the Central

Government can remove if any person has

incurred any of the disqualifications as mentioned

in Section 5. Proviso to Section 6 (a) further

clarifies that the incumbent shall be removed on

the ground that he has become subject to the

disqualification mentioned in clause (e) of that

section, unless he has been given a reasonable

opportunity of being heard in the matter or

refuses to act or becomes incapable of acting or

without obtaining leave of absence from the

Council, absent from three consecutive meetings

of the Council or in the opinion of the Central

Government has abused his position as to render

his continuance in office detrimental to the public

interest. Therefore, under these contingencies if

a member is to be removed, then notice is

required to be given to the incumbent. On the

basis of the analysis of Sections 5 & 6 it is more

than clear that the respondent has not incurred

any of these disqualifications.”

The said judgment was also on its own facts relating to

tenure of statutory appointment and does not help the

coordinator/co-coordinators working prior to 2

nd

of February, 2011.

Learned Single Judge in Sunil Dutt’s case (supra) has also

referred to and relied on judgments of the Apex Court in the cases

of State of Bihar and others vs. Mithilesh Kumar reported in

(2010)4 UPLBEC 2669, N.T. Devinkatti and others vs.

Karnataka Publisher Vice Commission and others reported in

(1990)3 SCC 157, P. Ganeshwar Rao vs. State of Andhra

Pradesh reported in (1988) Supp. SCC 740 and A.A. Calton vs.

Director of Education & others reported in (1983)3 SCC 33 for

the proposition that change in the norms of recruitment applies

31

prospectively and cannot effect those who have been selected.

There cannot be any dispute to the proposition that change in the

norms of recruitment applies prospectively and statutory rules and

Government order is prospective in nature unless it is expressly or

by necessary implication made to have retrospective effect. Learned

Single Judge himself has observed this in following words:-

“The same view was taken in P. Ganeshwar Rao

v. State of Andhra Pradesh [1988] Supp. SCC

740 and A.A. Calton v. Director of Education &

Ors., [1983] 3 SCC 33 wherein it has been held

by the Hon'ble Apex Court that it is a well

accepted principle of construction that a

statutory rule or Government Order is

prospective in nature unless it is expressly or by

necessary implication made to have retrospective

effect. Where proceedings are initiated for

selection by issuing advertisement, the selection

should normally be regulated by the then existing

rules and Government Orders and any

amendment of the rules or the Government

Order pending the selection should not affect the

validity of the selection made by the selecting

authority or the Public Service Commission unless

the amended rules or the amended Government

orders issued in exercise of its statutory power

either by express provision or by necessary

intendment indicate that amended Rules shall be

applicable to the pending selections. See P.

Mahendra & Ors. v. State of Karnataka & Ors.”

Present is not a case where any recruitment rules are applied

retrospectively on the coordinator/co-coordinators who were

working prior to 2

nd

February, 2011. The Government order dated

2

nd

February, 2011 specifically applied the Government order on

incumbents who were already working which is apparent from plain

language of Government order. The Government order dated 2

nd

February, 2011 reconstituted the Block Resource Centres and

Nyaya Panchayat Resource Centres and contemplated repatriation

32

of teachers who are already working since due to appointment of

large number of coordinator/co-coordinators there was shortage of

teachers in the institutions run by Basic Shiksha Parishad. The

Government order contemplated their repatriation. Thus the

Government order also covered the incumbents who were already

working as coordinator/co-coordinators since by reconstitution of

Block Resource Centres and Nyaya Panchayat Resource Centres

they were to be affected which was specifically noticed. Thus the

Government order clearly applied on the incumbents who were

already working and further the Division Bench in Har Pal Singh’s

case (supra) specifically negativated the argument that the

Government order dated 2

nd

February, 2011 is prospective and shall

not effect the incumbents who were already working. Thus the

judgments of the Apex Court relied by the learned Single Judge in

Sunil Dutt’s case (supra) in holding that the Government order

dated 2

nd

February, 2011 shall have prospective operation is also

not a correct view of law.

The Questions (a) and (b), which have been referred for

consideration, are little wide question which need to be reframed to

the extent it arise in facts of the present case.

Questions (a) and (b) both are reframed as only one question

in following manner:-

(a)Whether the coordinator/co-coordinators who

were working in Block Resource Centres and Nyaya

Panchayat Resources Centres on the date of issuance of

Government order dated 2

nd

February, 2011 could not

have been repatriated to their parent institutions since

they were entitled to receive additional monetary

benefits while working on the post of coordinator/co-

33

coordinators?

Our answer to the above reframed question is that the

Government order dated 2

nd

February, 2011, which has

reconstituted the Block Resource Centres and Nyaya Panchayat

Resource Centres has rightly provided for sending back the

coordinator/co-coordinators to their parent institutions and their

entitlement to receive higher pay scale was no impediment in

sending back the said teachers, moreso when actually no

Headmaster/Teacher/Assistant Teacher of primary schools was

getting higher pay scale while working as coordinators of Block

Resource Centres or Nyaya Panchayat Resource Centres.

Our answer to Question (c) is that learned Single Judge in

Sunil Dutt’s case (supra) was not justified in declaring the

judgment of the learned Single Judge and Division Bench in Har

Pal Singh’s case as per-incuriam. The learned Single Judge, if was

unable to agree with the view taken by the learned Single Judge

and the Division Bench in Har Pal Singh’s case (supra) was

obliged to refer the matter to Hon’ble the Chief Justice for

constituting a Larger Bench. The judgment of learned Single Judge

in Sunil Dutt’s case being in direct conflict with the judgments of

learned Single Judge and Division Bench in Har Pal Singh’s case

(supra) does not lay down the correct law and is overruled.

Let the writ petitions be listed before the learned Single

Judge with our answers as given above.

Order Date :- 20.12.2012

Rakesh