Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Public Interest Litigation No. 20 of 2018
Ku. Sheetal d/o Shivkant Chavan
Aged about 31 yrs, occ : Service
r/o : Ganesh colony Sut girni Road,
Amravati. …. Petitioner
// Versus //
(1) The State of Maharashtra,
through its Secretary,
Rural Development & Water
Conservation Department,
Mantralya, Mumbai 400 032.
(2) The State of Maharashtra,
through its Secretary,
School and Education Department,
Mantralya, Mumbai 32.
(3) Zilla Parishad Amravati,
through its Chief Executive
Officer, Zilla Parishad, Amravati,
Tq. & Dist. Nagpur.
(4) The Education Officer (Primary),
Zilla Parishad, Amravati,
Tq. & Dist. Amravati. …. Respondents
Shri P.S. Tiwari with Mrs. R. P. Tiwari, Advocates for the petitioner
Shri S. M. Ghodeswar, Assistant Govt. Pleader for the State/respondent
nos. 1 and 2
Shri S. D. Chopde, Advocate for the respondent nos. 3 and 4
CORAM : B. R. GAVAI AND
M. G. GIRATKAR, JJ.
DATE : 23/3/2018
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Rule. Rule made returnable forthwith. Heard finally with
consent of the learned counsels appearing for the parties.
2. The original writ petitioner has approached this Court
praying for following directions :
Direct the Respondents particularly the respondent nos. 3 and 4 to
make applicable the pay scale of untrained teacher along with the
applicable increments to the petitioners and pay arrears as prayed
for in the light of the Respondents, communication 24/04/2007
and also in view of the observations contained in judgment dated
24/04/2012 in Writ Petition No. 7118/2011, for the period she
has worked as untrained teacher.
3. The claim of the petitioner is based on the judgments and
orders passed by various Benches of this Court, the first one being in
Writ Petition No. 7116/2011 at Aurangabad Bench dated 2442012,
which has been consistently followed by various Benches.
4. However, when the petition came up before this Court, the
Division Bench of this Court (consisting of B. P. Dharmadhikari &
Mrs. Swapna S. Joshi, JJ.) on February 6, 2018 observed thus :
“4] Petitioner ought to have pointed out Division Bench
judgment of this Court reported at 2016(4) Mh.L.J. 158 (Smita
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Manohar Ramteke .vs. State of Maharashtra and others) ,
wherein after accepting inability of State Government to put
complete data on record, judgments of which copies are annexed
with this petition have been distinguished and found to be not
laying down correct law. Hence, we direct Registry to register
this Writ Petition as P.I.L.
5] Notice to respondents returnable on 14.3.2018.
6] Till then, we restrain respondents from releasing any payscale
to any untrained teacher.”
It appears that learned Judges of the Division Bench have found that the
view taken in a reported judgment in the case of Smita d/o Manohar
Ramteke (KU.) Vs. State of Maharashtra and others [2016(4) Mh.L.J.
158] ought to have been pointed out by the present petitioner which
would have resulted in denial of her claim.
5. The Division Bench also directed the present proceedings to
be registered as P.I.L.
6. The Division Bench consisting of Hon'ble Shri Justice B. P.
Dharmadhikari and Hon'ble Shri Justice P. N. Deshmukh in the reported
judgment of Smita d/o Manohar Ramteke (KU.) Vs. State of
Maharashtra and others has referred to the view taken by the Division
Bench of this Court (consisting of A.S. Oka and Sunil P. Deshmukh, JJ.)
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at Aurangabad in Writ Petition No. 7116/2011 ( Seema D/o Khandu
Takale Vs. The State of Maharashtra and others ) and also referred to
various judgments passed by various Benches, following the said
judgment. Not only this, but the Division Bench observed that the
Division Bench of this Court at Nagpur has also taken the similar view in
Writ Petition No. 2443/2014 on 31102014.
7. However, the Division Bench came to the conclusion that the
view taken by the Aurangabad Bench in the case of Seema D/o Khandu
Takale Vs. The State of Maharashtra and others on 2442012 does
not lay down the correct position of law and, therefore, by the said
judgment, the Division Bench has rejected the similar relief which was
consistently granted to various petitioners right from 2012 till the
judgment was delivered by the Division Bench in the case of Smita d/o
Manohar Ramteke (KU.) Vs. State of Maharashtra and others dated
16102015.
8. We are at pains to say that the learned Judges of the
Division Bench have patently erred in delivering such a judgment. A
reference in this respect can be made to the judgment of the Apex Court
in the case of Official Liquidator Vs. Dayanand and others reported in
(2008) 10 SCC 1 . It will be appropriate to refer to the following
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observations of Their Lordships of the Apex Court which reads
thus:
78. There have been several instances of different Benches of the
High Courts not following the judgments/orders of coordinate and
even larger Benches. In some cases, the High Courts have gone to
the extent of ignoring the law laid down by this Court without any
tangible reason. Likewise, there have been instances in which
smaller Benches of this Court have either ignored or bypassed the
ratio of the judgments of the larger Benches including the
Constitution Benches. These cases are illustrative of nonadherence
to the rule of judicial discipline which is sine qua non for
sustaining the system. In Mahadeolal Kanodia v. Administrator
General of W.B., this Court observed : (AIR p. 941, para 19)
"19. If one thing is more necessary in law than any other
thing, it is the quality of certainty. That quality would
totally disappear if Judges of coordinate jurisdiction in a
High Court start overruling one another's decisions. If one
Division Bench of a High Court is unable to distinguish a
previous decision of another Division Bench, and holding
the view that the earlier decision is wrong, itself gives effect
to that view the result would be utter confusion. The
position would be equally bad where a Judge sitting singly
in the High Court is of opinion that the previous decision of
another Single Judge on a question of law is wrong and
gives effect to that view instead of referring the matter to a
larger Bench. In such a case lawyers would not know how to
advise their clients and all courts subordinate to the High
Court would find themselves in an embarrassing position of
having to choose between dissentient judgments of their own
High Court." (Emphasis added)
79. In Lala Shri Bhagwan v. Ram Chand Gajendragadkar, C.J.
observed : (AIR p. 1773, para 18)
"18. ...It is hardly necessary to emphasize that
considerations of judicial propriety and decorum require
that if a learned Single Judge hearing a matter is inclined to
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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."
80. In Union of India v. Raghubir Singh, R.S. Pathak, C.J. while
recognizing need for constant development of law and jurisprudence
emphasized the necessity of abiding by the earlier precedents in the
following words : (SCC p. 766, para 9)
"9. The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial decisions,
and enables an organic development of law, besides
providing assurance to the individual as to the consequence
of transaction forming part of his daily affairs. And,
therefore, the need for a clear and consistent enunciation of
legal principle in the decisions of a court."
81. In Sundarjas Kanyalal Bhatija v. Collector, Thane, a two
Judges Bench observed as under : (SCC p. 407, para 22)
"22. ...In our system of judicial review which is a part of
our constitutional scheme, we hold it to be the duty of
judges of superior courts and tribunals to make the law
more predictable. The question of law directly arising in the
case should not be dealt with apologetic approaches. The
law must be made more effective as a guide to behaviour. It
must be determined with reasons which carry convictions
within the courts, profession and public. Otherwise, the
lawyers would be in a predicament and would not know
how to advise their clients. Subordinate courts would find
themselves in an embarrassing position to choose between
the conflicting opinion. The general public would be in
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dilemma to obey or not to obey such law and it ultimately
falls into disrepute."
82. In Vijay Laxmi Sadho (Dr.) v. Jagdish this Court considered
whether the learned Single Judge of Madhya Pradesh High Court
could ignore the judgment of a coordinate Bench on the same issue
and held : (SCC p. 256, para 33)
"33. As the learned Single Judge was not in agreement with
the view expressed in Devilal case it would have been
proper, to maintain judicial discipline, to refer the matter to
a larger Bench rather than to take a different view. We note
it with regret and distress that the said course was not
followed. It is wellsettled that if a Bench of coordinate
jurisdiction disagrees with another Bench of coordinate
jurisdiction whether on the basis of "different arguments" or
otherwise, on a question of law, it is appropriate that the
matter be referred to a larger Bench for resolution of the
issue rather than to leave two conflicting judgments to
operate, creating confusion. It is not proper to sacrifice
certainty of law. Judicial decorum, no less than legal
propriety forms the basis of judicial procedure and it must
be respected at all costs."
83. In Pradip Chandra Parija and others v. Pramod Chandra
Patnaik and others the Constitution Bench noted that the two learned
Judges denuded the correctness of an earlier Constitution Bench
judgment in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik
Sangha and reiterated the same despite the fact that the second
Constitution Bench refused to reconsider the earlier verdict and
observed : (Pradip Chandra Parija case, SCC pp. 34, paras 3 & 56)
"3. We may point out, at the outset, that in Bharat
Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha a Bench
of five Judges considered a somewhat similar question. Two
learned Judges in that case doubted the correctness of the
scope attributed to a certain provision in an earlier
Constitution Bench judgment and, accordingly, referred the
matter before them directly to a Constitution Bench. The
Constitution Bench that then heard the matter took the
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view that the decision of a Constitution Bench binds a Bench
of two learned Judges and that judicial discipline obliges
them to follow it, regardless of their doubts about its
correctness. At the most, the Bench of two learned Judges
could have ordered that the matter be heard by a Bench of
three learned Judges.
5. The learned AttorneyGeneral submitted that a
Constitution Bench judgment of this Court was binding on
smaller Benches and a judgment of three learned Judges was
binding on Benches of two learned Judges a proposition that
learned counsel for the appellants did not dispute. The learned
AttorneyGeneral drew our attention to the judgment of a
Constitution Bench in SubCommittee of Judicial Accountability
v. Union of India where it has been said that 'no coordinate
Bench of this Court can even comment upon, let alone sit in
judgment over, the discretion exercised or judgment rendered in a
cause or matter before another coordinate Bench' (SCC p. 98,
para 5). The learned AttorneyGeneral submitted that the
appropriate course for the Bench of two learned Judges to have
adopted, if it felt so strongly that the judgment in Nityananda
Kar was incorrect, was to make a reference to a Bench of three
learned Judges. That Bench of three learned Judges, if it also took
the same view of Nityananda Kar, could have referred the case to
a Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has, in
terms, doubted the correctness of a decision of a Bench of three
learned Judges. They have, therefore, referred the matter directly
to a Bench of five Judges. In our view, judicial discipline and
propriety demands that a Bench of two learned Judges should
follow a decision of a Bench of three learned Judges. But if a
Bench of two learned Judges concludes that an earlier judgment
of three learned Judges is so very incorrect that in no
circumstances can it be followed, the proper course for it to adopt
is to refer the matter before it to a Bench of three learned Judges
setting out, as has been done here, the reasons why it could not
agree with the earlier judgment. If, then, the Bench of three
learned Judges also comes to the conclusion that the earlier
judgment of a Bench of three learned Judges is incorrect,
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reference to a Bench of five learned Judges is justified.” (emphasis
supplied)
84. In State of Bihar v. Kalika Kuer the Court elaborately
considered the principle of per incuriam and held that the earlier
judgment by a larger Bench cannot be ignored by invoking the
principle of per incuriam and the only course open to the coordinate
or smaller Bench is to make a request for reference to the larger
Bench.
85. In State of Punjab v. Devans Modern Breweries Ltd. the Court
reiterated that if a coordinate Bench does not agree with the principles
of law enunciated by another Bench, the matter has to be referred to a
larger Bench.
86. In Central Board of Dawoodi Bohra Community v. State of
Maharashtra the Constitution Bench interpreted Article 141, referred
to various earlier judgments including Bharat Petroleum Corpn. Ltd.
v. Mumbai Shramik Sangha and Pradip Chandra Parija v. Pramod
Chandra Patnaik and held that
the law laid down in a decision delivered by a Bench of larger
strength is binding on any subsequent Bench of lesser or coequal
strength and it would be inappropriate if a Division Bench of two
Judges starts overruling the decisions of Division Benches of three
Judges. The Court further held that such a practice would be
detrimental not only to the rule of discipline and the doctrine of
binding precedents but it will also lead to inconsistency in decisions on
the point of law; consistency and certainty in the development of law
and its contemporary status both would be immediate casualty
(Central Board of Dawoodi Bohra Community case, SCC p. 682, paras
12 & 10)
87. In State of U.P. and others v. Jeet S. Bisht when one of the
Hon'ble Judges (Katju, J.) constituting the Bench criticized the orders
passed by various Benches in the same case, the other Hon'ble Judge
(Sinha, J.) expressed himself in the following words : (SCC p. 623,
para 100)
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"100. For the views been taken herein, I regret to express
my inability to agree with Brother Katju, J. in regard to the
criticisms of various orders passed in this case itself by other
Benches. I am of the opinion that it is wholly inappropriate
to do so. One Bench of this Court, it is trite, does not sit in
appeal over the other Bench particularly when it is a
coordinate Bench. It is equally inappropriate for us to
express total disagreement in the same matter as also in
similar matters with the directions and observations made
by the larger Bench. Doctrine of judicial restraint, in my
opinion, applies even in this realm. We should not forget
other doctrines which are equally developed viz. Judicial
Discipline and respect for the Brother Judges."
88. In U. P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj
the Court noted that by ignoring the earlier decision of a coordinate
Bench, a Division Bench of the High Court directed that parttime
tubewell operators should be treated as permanent employees with
same service conditions as far as possible and observed : (SCC p. 149,
para 26)
"26. Judicial discipline is selfdiscipline. It is an inbuilt
mechanism in the system itself. Judicial discipline demands
that when the decision of a coordinate Bench of the same
High Court is brought to the notice of the Bench, it is to be
respected and is binding, subject of course, to the right to
take a different view or to doubt the correctness of the
decision and the permissible course then open is to refer the
question or the case to a larger Bench. This is the minimum
discipline and decorum to be maintained by judicial
fraternity."
89. It is interesting to note that in Coir Board, Enakulam v. Indira
Devi P.S., a twoJudges Bench doubted the correctness of the seven
Judges Bench judgment in Bangalore Water Supply & Sewerage Board
v. A. Rajappa and directed the matter to be placed before Hon'ble the
Chief Justice of India for constituting a larger Bench. However, a
threeJudges Bench headed by Dr. A.S. Anand, C.J., refused to
entertain the reference and observed that the twoJudges Bench is
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bound by the judgment of the larger Bench Coir Board, Enakulam v.
Indira Devi P.S.
90. We are distressed to note that despite several pronouncements
on the subject, there is substantial increase in the number of cases
involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the ground for doing
so. Therefore, it has become necessary to reiterate that disrespect to
constitutional ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance litigation. It
must be remembered that predictability and certainty is an important
hallmark of judicial jurisprudence developed in this country in last six
decades and increase in the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the system inasmuch as
the courts at the grass root will not be able to decide as to which of the
judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is
under a duty to abide by the Constitution and respect its ideals and
institutions. Those who have been entrusted with the task of
administering the system and operating various constituents of the
State and who take oath to act in accordance with the Constitution
and uphold the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is required to
be observed with greater rigour by the members of judicial fraternity
who have been bestowed with the power to adjudicate upon important
constitutional and legal issues and protect and preserve rights of the
individuals and society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial system. If the Courts
command others to act in accordance with the provisions of the
Constitution and rule of law, it is not possible to countenance
violation of the constitutional principle by those who are required to
lay down the law.
9. It could thus be seen that Their Lordships of the Apex Court
in unequivocal terms have held that if one Division Bench of a High
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Court is unable to agree with a previous decision of another Division
Bench or the view taken by the earlier Bench is not correct according to
it, then the only option is to refer the matter to The Hon'ble Chief Justice
for placing the same before the Larger Bench, if The Hon'ble Chief
Justice deems fit. The Hon'ble Apex Court has clearly observed that
increase in the frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system inasmuch as the courts
at the grass roots will not be able to decide as to which of the judgments
lay down the correct law and which one should be followed.
10. It has been held by Their Lordships that if one thing is more
necessary in law than any other thing, it is the quality of certainty. It has
been held that the said quality would totally disappear if Judges of High
Court start overruling one another's decisions. It has been held that if a
subsequent Division Bench holds that the previous decision of another
Division Bench is wrong, the result would be of utter confusion. As has
been held by Their Lordships of the Apex Court, one Bench of the same
court does not sit in appeal over the other Bench, particularly, when it is
a Coordinate Bench. Their Lordships observed thus : “we should not
forget other doctrines which are equally developed viz. Judicial
Discipline and respect for the Brother Judges. " The Apex Court also
observed that the discipline is sine qua non for effective and efficient
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functioning of the judicial system.
11. Their Lordships of the Apex Court observed that if the
courts command others to act in accordance with the provisions of the
Constitution and rule of law, it is also expected from the Courts to follow
the same. As has been observed by the Hon'ble Apex Court that in such a
situation, lawyers would be in a predicament and would not know how
to advise their clients.
12. Perusal of the material placed on record would reveal that
initially in Writ Petition No. 7116/2011 ( Seema D/o Khandu Takale Vs.
The State of Maharashtra and others ), the Division Bench of this Court
at Auranagabad (A.S. Oka and S. P. Deshmukh, JJ.) vide judgment and
order dated2442012 observed thus :
th
8. We have perused the communication dated 24 April,
2007 issued by the State Government to the Chief Executive
Officers of all the Zilla Parishads. The letter records that
there was some confusion as regards the grant of benefit of
Vth and Vith pay commissions to the untrained teachers who
are S.S.C. pass. The pay scale admissible to the untrained
teachers who are S.S.C pass has been set out in the said letter.
From the policy reflected from the said letter, we do not find
any requirement of the Petitioner completing D.Ed course.
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The reason is separate pay scales are set out in the said letter
for teachers having S.S.C, D.Ed qualification and the
untrained teachers having only S.S.C qualification. The
Petitioner will fall in second category. The Petitioner
completed three years of service as a Shikshan Sevak in the
year 2007. Hence, in view of clause (e) of the appointment
order, he became entitled to be considered for appointment as
a primary teacher in regular pay scale provided the
performance of the Petitioner was satisfactory. In the reply, no
case is made out that the performance of the Petitioner was
not satisfactory. Therefore, in the year 2007, on completion of
three years of satisfactory service, the Petitioner become
entitled to pay scale of untrained primary teacher. On the
th
basis of the subsequent Government Resolution dated 17
September, 2011, the said right cannot be defeated.
The said judgment was followed by another Division Bench at Nagpur
(Anoop V. Mohta and Z. A. Haq, JJ.) in Writ Petition No. 629/2013
delivered on 2762013. The said Bench also took a similar view in Writ
Petition No. 2077/2013 vide order dated 372013. The Division Bench
at Principal Seat in bunch of petitions being Writ Petition No. 6938/2013
along with companion petitions vide order dated 3102013 (A. S. Oka
and Revati Mohite Dere, JJ.) also took a similar view following the
judgment of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others. The Division Bench of this Court at Nagpur consisting of
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one of us (B.R. Gavai and S. B. Shukre, JJ.) in bunch of writ petitions
being Writ Petition No. 237/2014 vide judgment dated 1862014
observed thus :
6. The issue raised in these petitions is no more res integra.
The Division Bench of this Court in W.P. No. 7118/11 decided on
24.4.2012 taking into consideration the Government
Communication dated 24.4.2007 has in unequivocal terms held
that such teachers who have completed three years on probation
and who have not yet been brought on the scale of trained
teachers, were entitled to the scale of untrained teachers. In W.P.
No. 629/13 decided on 27.6.2013, another Division Bench of this
Court has taken a similar view.
7. The point as regards to nonmaintainability of petition on
the ground of delay and laches is concerned, by now it is settled
principle of law that for invoking the jurisdiction under Article
226 on the ground of delay and laches is concerned, same is not a
hard and fast rule but a rule of selfrestraint. In the present
petitions, various Division Benches at Nagpur and Aurangabad
have held that such teachers, for the period as mentioned
aforesaid, are entitled for the salary in the scale of untrained
teachers as per Government communication dated 24.4.2007.
Denying equal treatment to the petitioners before us, in our
considered view, would be doing injustice to them and depriving
them the benefits as are provided by the Government through out
the State of Maharashtra. In that view of the matter, the
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objection raised by the learned counsel for Zilla Parishad does not
survive.
8. Insofar as merits are concerned, when various coordinate
Benches of this Court have taken a similar view, we find no
reason to not to follow the same. In this view of the matter, the
writ petitions are allowed. RespondentZilla Parishad is directed
to pay arrears of salary to the petitioners for the period between
their three years of completion of service as Shikshan Sewak and
the date on which they were paid salary as trained teachers in
terms of the Government communication dated 24.4.2007.
Another Division Bench at Aurangabad (R. M. Borde & Sunil P.
Deshmukh, JJ.) in Writ Petition No. 4709/2013 vide judgment and order
dated 2682013 issued similar directions following the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others. The
another Division of this Court at Nagpur consisting of one of us (B.R.
Gavai and Mrs. Mridula Bhatkar, JJ.) in Writ Petition No. 6569/2014
vide judgment and order dated 1322015 and in Writ Petition No.
341/2015 vide judgment and order dated 3012015 also took a similar
view. Another Division Bench at Aurangabad (R. M. Borde & T. V.
Nalawade, JJ.) in Writ Petition No. 7675/2012 vide judgment and order
dated 2522013 had also followed the judgment in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others and
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issued similar directions. Not only this, the Division Bench of this Court
at Nagpur (B.P. Dharmadhikari and P.R. Bora, JJ.) in Writ Petition No.
2443/2014 vide order dated 31102014 passed the following order.
Learned counsel for petitioners as also for respondent nos.
2 and 3 state that the petition can be disposed of in terms of
paragraph no.5 and 6 of the orders dated 03.10.2013 in Writ
Petition No. 427/2013 and other matters, passed at Bombay and
recent orders passed on 18.06.2014 at Nagpur in Writ Petition
No. 237/2014 and others.
In view of these orders, we also dispose of the present writ
petition with following directions :
(i) The respondent nos. 2 and 3 are directed to make
applicable the pay scale of untrained teacher to the petitioners
and pay arrears as prayed for in the light of the communication
dated 24.04.2007 (AnnexureE) and also in view of the
observations contained in judgment dated 24.04.2012 in Writ
Petition No.7116/2011 (AnnexureG) for the period mentioned
in Chart at AnnexureA with the present petition, i.e. for the
period they have worked as untrained teacher.
(ii) The concerned respondents shall dispose of the
representations, if any, and if pending at the earliest. No costs.
13. It appears that, however, subsequently, Division Bench of
this Court (B. P. Dharmadhikari and P.N. Deshmukh, JJ.) in the case of
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Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and
others (cited supra) took a different view on 16102015. It can thus be
seen that view taken in the case of Smita d/o Manohar Ramteke (KU.)
Vs. State of Maharashtra and others had the effect of upsetting the
view as expressed in the case of Seema D/o Khandu Takale Vs. The
State of Maharashtra and others by a coordinate Bench of this Court,
which has been consistently followed by various Benches including the
Bench presided over by Hon'ble Shri Justice B. P. Dharmadhikari.
14. The effect of judgment of Division Bench in the case of
Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and
others is that though similarly circumstanced employees have been
granted benefits as per the law laid down by this Court in the case of
Seema D/o Khandu Takale Vs. The State of Maharashtra and others
which has been consistently followed by various Benches, the petitioners
in the case of Smita d/o Manohar Ramteke (KU.) Vs. State of
Maharashtra and others were denied the same benefit. As such, in
view of conflicting judgments, a situation has arisen which has resulted
in denying the equal treatment to equals.
15. It will be relevant to refer to the following observations of
the Hon'ble Apex Court in the case of Sunil Kumar Verma and others
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Vs. State of Uttar Pradesh and others reported in (2016) 1 SCC 397 .
“Be it stated, there had already been interpretation of the
2003 Rules by the learned Single Judge which has been affirmed up
to this Court. In such a situation, we really fail to fathom how the
Division Bench could have thought of entering into the analysis of
the ratio of the earlier judgment and discussion on binding
precedents.”
16. We are of the considered view that the aforesaid
observations of Their Lordships of the Apex Court are aptly applicable to
the facts of the present case. No doubt that the Division Bench in the
case of Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra
and others was entitled to take a different view than the view taken by
coordinate Bench in the case of Seema D/o Khandu Takale Vs. The
State of Maharashtra and others which was consistently followed by
various Benches including the Division Bench presided over by Hon'ble
Shri Justice B. P. Dharmadhikari. However, if the learned Judges of the
Division Bench were of the view that the position of law as laid down in
the case of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others was not correct, then the only option that was available to
the learned Judges of the Division Bench was to refer the matter to the
Hon'ble Chief Justice for referring it to the Larger Bench.
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17. We clarify that we should not be misunderstood to have
entered into the issue as to whether the view taken in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others lays
down the correct position of law or as to whether it is the view in the
case of Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra
and others which lays down correct position of law. We are only on the
question of judicial propriety and discipline. When the view taken in the
case of Seema D/o Khandu Takale Vs. The State of Maharashtra and
others was consistently followed by various Division Benches of this
Court, if the learned Judges in the case of Smita d/o Manohar Ramteke
(KU.) Vs. State of Maharashtra and others found that it was not
correct in law, then they could have only referred it to a Larger Bench by
giving the reasons as to why they found the view in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others was not
correct in law. In no case, they could sit in appeal and hold that the
view taken in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others does not lay down correct position of law. As
the Judges of the Bench having equal number of strength with that
Judges in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others either the Division Bench in the case of Smita
d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and others
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should have followed the same or if disagreed, then refer the matter to a
Larger Bench.
18. We find that as a matter of fact when the earlier view
rendered by the Coordinate Bench is in existence, the subsequent view
by the Bench of same strength taking a contrary view to the view taken
by earlier Benches, without referring it to a Larger Bench would not be
legal and binding.
19. In that view of the matter, we find that the respondent
authorities were bound to follow the dictum of law as laid down by the
Division Bench in the case of Seema D/o Khandu Takale Vs. The State
of Maharashtra and others (supra) which has been consistently
followed. No doubt that the learned Division Bench was right in
observing that dismissal of a SLP by the Hon'ble Apex Court does not and
cannot improve the situation for the petitioners. However, as a
Coordinate Bench consisting of same number of Judges, the Division
Bench was bound to follow the view taken in the case of Seema D/o
Khandu Takale Vs. The State of Maharashtra and others which was
consistently followed unless it was set aside by a Larger Bench or by the
Hon'ble Apex Court.
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20. In that view of the matter, we have no hesitation to hold
that the view taken in the case of Smita Manohar Ramteke vs. State of
Maharashtra and others which is contrary to the earlier view in the
case of Seema D/o Khandu Takale Vs. The State of Maharashtra and
others would not be legal and binding, in view of the law laid down by
the Apex Court in the case of Official Liquidator Vs. Dayanand and
others (supra).
21. We further find that since the view taken in the case of
Smita Manohar Ramteke vs. State of Maharashtra and others is
contrary to the earlier judgment of the Division Bench of this Court in
the case of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others which was consistently followed, it is the view in the case of
Seema D/o Khandu Takale Vs. The State of Maharashtra and others
which will hold the field, till it is set aside by the Larger Bench or by the
Hon'ble Apex Court.
22. We further find that in view of the law laid down by the
Apex Court in the case of Girjesh Shrivastava and others Vs. State of
Madhya Pradesh and others reported in (2010) 10 SCC 707 that in
service matters, the public interest litigations are not to be entertained,
the order treating the present proceedings as public interest litigation is
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liable to be recalled and as such is recalled. The proceedings are
restored as Writ Petition No. 592/2018.
23. Since we find that the facts in the present case are identical
with the facts in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others (supra) which hold that after successful
completion of three years of service as Shikshan Sevaks, the said
Shikshan Sevaks are entitled to be regularized as Assistant Teachers and
if they are not qualified, they are entitled to be regularized in the scale of
Untrained Teachers till the date they acquire the requisite qualification,
the present petition deserves to be allowed.
24. In the result, rule is made absolute by directing the
respondents to treat the petitioner's services as Untrained Teacher from
the date on which she has successfully completed 3 years tenure as
Shikshan Sevak till the date of her regularization as trained Assistant
Teacher.
25. The arrears to be paid to the petitioner on the basis of
aforesaid shall be paid within a period of three months from today.
26. Notices issued to respondent nos. 3 and 4 are discharged.
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27. In the facts and circumstances of the case, no order as to
costs.
JUDGE JUDGE
wasnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Public Interest Litigation No. 20 of 2018
Ku. Sheetal d/o Shivkant Chavan
Aged about 31 yrs, occ : Service
r/o : Ganesh colony Sut girni Road,
Amravati. …. Petitioner
// Versus //
(1) The State of Maharashtra,
through its Secretary,
Rural Development & Water
Conservation Department,
Mantralya, Mumbai 400 032.
(2) The State of Maharashtra,
through its Secretary,
School and Education Department,
Mantralya, Mumbai 32.
(3) Zilla Parishad Amravati,
through its Chief Executive
Officer, Zilla Parishad, Amravati,
Tq. & Dist. Nagpur.
(4) The Education Officer (Primary),
Zilla Parishad, Amravati,
Tq. & Dist. Amravati. …. Respondents
Shri P.S. Tiwari with Mrs. R. P. Tiwari, Advocates for the petitioner
Shri S. M. Ghodeswar, Assistant Govt. Pleader for the State/respondent
nos. 1 and 2
Shri S. D. Chopde, Advocate for the respondent nos. 3 and 4
CORAM : B. R. GAVAI AND
M. G. GIRATKAR, JJ.
DATE : 23/3/2018
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Rule. Rule made returnable forthwith. Heard finally with
consent of the learned counsels appearing for the parties.
2. The original writ petitioner has approached this Court
praying for following directions :
Direct the Respondents particularly the respondent nos. 3 and 4 to
make applicable the pay scale of untrained teacher along with the
applicable increments to the petitioners and pay arrears as prayed
for in the light of the Respondents, communication 24/04/2007
and also in view of the observations contained in judgment dated
24/04/2012 in Writ Petition No. 7118/2011, for the period she
has worked as untrained teacher.
3. The claim of the petitioner is based on the judgments and
orders passed by various Benches of this Court, the first one being in
Writ Petition No. 7116/2011 at Aurangabad Bench dated 2442012,
which has been consistently followed by various Benches.
4. However, when the petition came up before this Court, the
Division Bench of this Court (consisting of B. P. Dharmadhikari &
Mrs. Swapna S. Joshi, JJ.) on February 6, 2018 observed thus :
“4] Petitioner ought to have pointed out Division Bench
judgment of this Court reported at 2016(4) Mh.L.J. 158 (Smita
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Manohar Ramteke .vs. State of Maharashtra and others) ,
wherein after accepting inability of State Government to put
complete data on record, judgments of which copies are annexed
with this petition have been distinguished and found to be not
laying down correct law. Hence, we direct Registry to register
this Writ Petition as P.I.L.
5] Notice to respondents returnable on 14.3.2018.
6] Till then, we restrain respondents from releasing any payscale
to any untrained teacher.”
It appears that learned Judges of the Division Bench have found that the
view taken in a reported judgment in the case of Smita d/o Manohar
Ramteke (KU.) Vs. State of Maharashtra and others [2016(4) Mh.L.J.
158] ought to have been pointed out by the present petitioner which
would have resulted in denial of her claim.
5. The Division Bench also directed the present proceedings to
be registered as P.I.L.
6. The Division Bench consisting of Hon'ble Shri Justice B. P.
Dharmadhikari and Hon'ble Shri Justice P. N. Deshmukh in the reported
judgment of Smita d/o Manohar Ramteke (KU.) Vs. State of
Maharashtra and others has referred to the view taken by the Division
Bench of this Court (consisting of A.S. Oka and Sunil P. Deshmukh, JJ.)
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at Aurangabad in Writ Petition No. 7116/2011 ( Seema D/o Khandu
Takale Vs. The State of Maharashtra and others ) and also referred to
various judgments passed by various Benches, following the said
judgment. Not only this, but the Division Bench observed that the
Division Bench of this Court at Nagpur has also taken the similar view in
Writ Petition No. 2443/2014 on 31102014.
7. However, the Division Bench came to the conclusion that the
view taken by the Aurangabad Bench in the case of Seema D/o Khandu
Takale Vs. The State of Maharashtra and others on 2442012 does
not lay down the correct position of law and, therefore, by the said
judgment, the Division Bench has rejected the similar relief which was
consistently granted to various petitioners right from 2012 till the
judgment was delivered by the Division Bench in the case of Smita d/o
Manohar Ramteke (KU.) Vs. State of Maharashtra and others dated
16102015.
8. We are at pains to say that the learned Judges of the
Division Bench have patently erred in delivering such a judgment. A
reference in this respect can be made to the judgment of the Apex Court
in the case of Official Liquidator Vs. Dayanand and others reported in
(2008) 10 SCC 1 . It will be appropriate to refer to the following
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observations of Their Lordships of the Apex Court which reads
thus:
78. There have been several instances of different Benches of the
High Courts not following the judgments/orders of coordinate and
even larger Benches. In some cases, the High Courts have gone to
the extent of ignoring the law laid down by this Court without any
tangible reason. Likewise, there have been instances in which
smaller Benches of this Court have either ignored or bypassed the
ratio of the judgments of the larger Benches including the
Constitution Benches. These cases are illustrative of nonadherence
to the rule of judicial discipline which is sine qua non for
sustaining the system. In Mahadeolal Kanodia v. Administrator
General of W.B., this Court observed : (AIR p. 941, para 19)
"19. If one thing is more necessary in law than any other
thing, it is the quality of certainty. That quality would
totally disappear if Judges of coordinate jurisdiction in a
High Court start overruling one another's decisions. If one
Division Bench of a High Court is unable to distinguish a
previous decision of another Division Bench, and holding
the view that the earlier decision is wrong, itself gives effect
to that view the result would be utter confusion. The
position would be equally bad where a Judge sitting singly
in the High Court is of opinion that the previous decision of
another Single Judge on a question of law is wrong and
gives effect to that view instead of referring the matter to a
larger Bench. In such a case lawyers would not know how to
advise their clients and all courts subordinate to the High
Court would find themselves in an embarrassing position of
having to choose between dissentient judgments of their own
High Court." (Emphasis added)
79. In Lala Shri Bhagwan v. Ram Chand Gajendragadkar, C.J.
observed : (AIR p. 1773, para 18)
"18. ...It is hardly necessary to emphasize that
considerations of judicial propriety and decorum require
that if a learned Single Judge hearing a matter is inclined to
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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."
80. In Union of India v. Raghubir Singh, R.S. Pathak, C.J. while
recognizing need for constant development of law and jurisprudence
emphasized the necessity of abiding by the earlier precedents in the
following words : (SCC p. 766, para 9)
"9. The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial decisions,
and enables an organic development of law, besides
providing assurance to the individual as to the consequence
of transaction forming part of his daily affairs. And,
therefore, the need for a clear and consistent enunciation of
legal principle in the decisions of a court."
81. In Sundarjas Kanyalal Bhatija v. Collector, Thane, a two
Judges Bench observed as under : (SCC p. 407, para 22)
"22. ...In our system of judicial review which is a part of
our constitutional scheme, we hold it to be the duty of
judges of superior courts and tribunals to make the law
more predictable. The question of law directly arising in the
case should not be dealt with apologetic approaches. The
law must be made more effective as a guide to behaviour. It
must be determined with reasons which carry convictions
within the courts, profession and public. Otherwise, the
lawyers would be in a predicament and would not know
how to advise their clients. Subordinate courts would find
themselves in an embarrassing position to choose between
the conflicting opinion. The general public would be in
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dilemma to obey or not to obey such law and it ultimately
falls into disrepute."
82. In Vijay Laxmi Sadho (Dr.) v. Jagdish this Court considered
whether the learned Single Judge of Madhya Pradesh High Court
could ignore the judgment of a coordinate Bench on the same issue
and held : (SCC p. 256, para 33)
"33. As the learned Single Judge was not in agreement with
the view expressed in Devilal case it would have been
proper, to maintain judicial discipline, to refer the matter to
a larger Bench rather than to take a different view. We note
it with regret and distress that the said course was not
followed. It is wellsettled that if a Bench of coordinate
jurisdiction disagrees with another Bench of coordinate
jurisdiction whether on the basis of "different arguments" or
otherwise, on a question of law, it is appropriate that the
matter be referred to a larger Bench for resolution of the
issue rather than to leave two conflicting judgments to
operate, creating confusion. It is not proper to sacrifice
certainty of law. Judicial decorum, no less than legal
propriety forms the basis of judicial procedure and it must
be respected at all costs."
83. In Pradip Chandra Parija and others v. Pramod Chandra
Patnaik and others the Constitution Bench noted that the two learned
Judges denuded the correctness of an earlier Constitution Bench
judgment in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik
Sangha and reiterated the same despite the fact that the second
Constitution Bench refused to reconsider the earlier verdict and
observed : (Pradip Chandra Parija case, SCC pp. 34, paras 3 & 56)
"3. We may point out, at the outset, that in Bharat
Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha a Bench
of five Judges considered a somewhat similar question. Two
learned Judges in that case doubted the correctness of the
scope attributed to a certain provision in an earlier
Constitution Bench judgment and, accordingly, referred the
matter before them directly to a Constitution Bench. The
Constitution Bench that then heard the matter took the
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view that the decision of a Constitution Bench binds a Bench
of two learned Judges and that judicial discipline obliges
them to follow it, regardless of their doubts about its
correctness. At the most, the Bench of two learned Judges
could have ordered that the matter be heard by a Bench of
three learned Judges.
5. The learned AttorneyGeneral submitted that a
Constitution Bench judgment of this Court was binding on
smaller Benches and a judgment of three learned Judges was
binding on Benches of two learned Judges a proposition that
learned counsel for the appellants did not dispute. The learned
AttorneyGeneral drew our attention to the judgment of a
Constitution Bench in SubCommittee of Judicial Accountability
v. Union of India where it has been said that 'no coordinate
Bench of this Court can even comment upon, let alone sit in
judgment over, the discretion exercised or judgment rendered in a
cause or matter before another coordinate Bench' (SCC p. 98,
para 5). The learned AttorneyGeneral submitted that the
appropriate course for the Bench of two learned Judges to have
adopted, if it felt so strongly that the judgment in Nityananda
Kar was incorrect, was to make a reference to a Bench of three
learned Judges. That Bench of three learned Judges, if it also took
the same view of Nityananda Kar, could have referred the case to
a Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has, in
terms, doubted the correctness of a decision of a Bench of three
learned Judges. They have, therefore, referred the matter directly
to a Bench of five Judges. In our view, judicial discipline and
propriety demands that a Bench of two learned Judges should
follow a decision of a Bench of three learned Judges. But if a
Bench of two learned Judges concludes that an earlier judgment
of three learned Judges is so very incorrect that in no
circumstances can it be followed, the proper course for it to adopt
is to refer the matter before it to a Bench of three learned Judges
setting out, as has been done here, the reasons why it could not
agree with the earlier judgment. If, then, the Bench of three
learned Judges also comes to the conclusion that the earlier
judgment of a Bench of three learned Judges is incorrect,
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reference to a Bench of five learned Judges is justified.” (emphasis
supplied)
84. In State of Bihar v. Kalika Kuer the Court elaborately
considered the principle of per incuriam and held that the earlier
judgment by a larger Bench cannot be ignored by invoking the
principle of per incuriam and the only course open to the coordinate
or smaller Bench is to make a request for reference to the larger
Bench.
85. In State of Punjab v. Devans Modern Breweries Ltd. the Court
reiterated that if a coordinate Bench does not agree with the principles
of law enunciated by another Bench, the matter has to be referred to a
larger Bench.
86. In Central Board of Dawoodi Bohra Community v. State of
Maharashtra the Constitution Bench interpreted Article 141, referred
to various earlier judgments including Bharat Petroleum Corpn. Ltd.
v. Mumbai Shramik Sangha and Pradip Chandra Parija v. Pramod
Chandra Patnaik and held that
the law laid down in a decision delivered by a Bench of larger
strength is binding on any subsequent Bench of lesser or coequal
strength and it would be inappropriate if a Division Bench of two
Judges starts overruling the decisions of Division Benches of three
Judges. The Court further held that such a practice would be
detrimental not only to the rule of discipline and the doctrine of
binding precedents but it will also lead to inconsistency in decisions on
the point of law; consistency and certainty in the development of law
and its contemporary status both would be immediate casualty
(Central Board of Dawoodi Bohra Community case, SCC p. 682, paras
12 & 10)
87. In State of U.P. and others v. Jeet S. Bisht when one of the
Hon'ble Judges (Katju, J.) constituting the Bench criticized the orders
passed by various Benches in the same case, the other Hon'ble Judge
(Sinha, J.) expressed himself in the following words : (SCC p. 623,
para 100)
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"100. For the views been taken herein, I regret to express
my inability to agree with Brother Katju, J. in regard to the
criticisms of various orders passed in this case itself by other
Benches. I am of the opinion that it is wholly inappropriate
to do so. One Bench of this Court, it is trite, does not sit in
appeal over the other Bench particularly when it is a
coordinate Bench. It is equally inappropriate for us to
express total disagreement in the same matter as also in
similar matters with the directions and observations made
by the larger Bench. Doctrine of judicial restraint, in my
opinion, applies even in this realm. We should not forget
other doctrines which are equally developed viz. Judicial
Discipline and respect for the Brother Judges."
88. In U. P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj
the Court noted that by ignoring the earlier decision of a coordinate
Bench, a Division Bench of the High Court directed that parttime
tubewell operators should be treated as permanent employees with
same service conditions as far as possible and observed : (SCC p. 149,
para 26)
"26. Judicial discipline is selfdiscipline. It is an inbuilt
mechanism in the system itself. Judicial discipline demands
that when the decision of a coordinate Bench of the same
High Court is brought to the notice of the Bench, it is to be
respected and is binding, subject of course, to the right to
take a different view or to doubt the correctness of the
decision and the permissible course then open is to refer the
question or the case to a larger Bench. This is the minimum
discipline and decorum to be maintained by judicial
fraternity."
89. It is interesting to note that in Coir Board, Enakulam v. Indira
Devi P.S., a twoJudges Bench doubted the correctness of the seven
Judges Bench judgment in Bangalore Water Supply & Sewerage Board
v. A. Rajappa and directed the matter to be placed before Hon'ble the
Chief Justice of India for constituting a larger Bench. However, a
threeJudges Bench headed by Dr. A.S. Anand, C.J., refused to
entertain the reference and observed that the twoJudges Bench is
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bound by the judgment of the larger Bench Coir Board, Enakulam v.
Indira Devi P.S.
90. We are distressed to note that despite several pronouncements
on the subject, there is substantial increase in the number of cases
involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the ground for doing
so. Therefore, it has become necessary to reiterate that disrespect to
constitutional ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance litigation. It
must be remembered that predictability and certainty is an important
hallmark of judicial jurisprudence developed in this country in last six
decades and increase in the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the system inasmuch as
the courts at the grass root will not be able to decide as to which of the
judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is
under a duty to abide by the Constitution and respect its ideals and
institutions. Those who have been entrusted with the task of
administering the system and operating various constituents of the
State and who take oath to act in accordance with the Constitution
and uphold the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is required to
be observed with greater rigour by the members of judicial fraternity
who have been bestowed with the power to adjudicate upon important
constitutional and legal issues and protect and preserve rights of the
individuals and society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial system. If the Courts
command others to act in accordance with the provisions of the
Constitution and rule of law, it is not possible to countenance
violation of the constitutional principle by those who are required to
lay down the law.
9. It could thus be seen that Their Lordships of the Apex Court
in unequivocal terms have held that if one Division Bench of a High
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Court is unable to agree with a previous decision of another Division
Bench or the view taken by the earlier Bench is not correct according to
it, then the only option is to refer the matter to The Hon'ble Chief Justice
for placing the same before the Larger Bench, if The Hon'ble Chief
Justice deems fit. The Hon'ble Apex Court has clearly observed that
increase in the frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system inasmuch as the courts
at the grass roots will not be able to decide as to which of the judgments
lay down the correct law and which one should be followed.
10. It has been held by Their Lordships that if one thing is more
necessary in law than any other thing, it is the quality of certainty. It has
been held that the said quality would totally disappear if Judges of High
Court start overruling one another's decisions. It has been held that if a
subsequent Division Bench holds that the previous decision of another
Division Bench is wrong, the result would be of utter confusion. As has
been held by Their Lordships of the Apex Court, one Bench of the same
court does not sit in appeal over the other Bench, particularly, when it is
a Coordinate Bench. Their Lordships observed thus : “we should not
forget other doctrines which are equally developed viz. Judicial
Discipline and respect for the Brother Judges. " The Apex Court also
observed that the discipline is sine qua non for effective and efficient
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functioning of the judicial system.
11. Their Lordships of the Apex Court observed that if the
courts command others to act in accordance with the provisions of the
Constitution and rule of law, it is also expected from the Courts to follow
the same. As has been observed by the Hon'ble Apex Court that in such a
situation, lawyers would be in a predicament and would not know how
to advise their clients.
12. Perusal of the material placed on record would reveal that
initially in Writ Petition No. 7116/2011 ( Seema D/o Khandu Takale Vs.
The State of Maharashtra and others ), the Division Bench of this Court
at Auranagabad (A.S. Oka and S. P. Deshmukh, JJ.) vide judgment and
order dated2442012 observed thus :
th
8. We have perused the communication dated 24 April,
2007 issued by the State Government to the Chief Executive
Officers of all the Zilla Parishads. The letter records that
there was some confusion as regards the grant of benefit of
Vth and Vith pay commissions to the untrained teachers who
are S.S.C. pass. The pay scale admissible to the untrained
teachers who are S.S.C pass has been set out in the said letter.
From the policy reflected from the said letter, we do not find
any requirement of the Petitioner completing D.Ed course.
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The reason is separate pay scales are set out in the said letter
for teachers having S.S.C, D.Ed qualification and the
untrained teachers having only S.S.C qualification. The
Petitioner will fall in second category. The Petitioner
completed three years of service as a Shikshan Sevak in the
year 2007. Hence, in view of clause (e) of the appointment
order, he became entitled to be considered for appointment as
a primary teacher in regular pay scale provided the
performance of the Petitioner was satisfactory. In the reply, no
case is made out that the performance of the Petitioner was
not satisfactory. Therefore, in the year 2007, on completion of
three years of satisfactory service, the Petitioner become
entitled to pay scale of untrained primary teacher. On the
th
basis of the subsequent Government Resolution dated 17
September, 2011, the said right cannot be defeated.
The said judgment was followed by another Division Bench at Nagpur
(Anoop V. Mohta and Z. A. Haq, JJ.) in Writ Petition No. 629/2013
delivered on 2762013. The said Bench also took a similar view in Writ
Petition No. 2077/2013 vide order dated 372013. The Division Bench
at Principal Seat in bunch of petitions being Writ Petition No. 6938/2013
along with companion petitions vide order dated 3102013 (A. S. Oka
and Revati Mohite Dere, JJ.) also took a similar view following the
judgment of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others. The Division Bench of this Court at Nagpur consisting of
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one of us (B.R. Gavai and S. B. Shukre, JJ.) in bunch of writ petitions
being Writ Petition No. 237/2014 vide judgment dated 1862014
observed thus :
6. The issue raised in these petitions is no more res integra.
The Division Bench of this Court in W.P. No. 7118/11 decided on
24.4.2012 taking into consideration the Government
Communication dated 24.4.2007 has in unequivocal terms held
that such teachers who have completed three years on probation
and who have not yet been brought on the scale of trained
teachers, were entitled to the scale of untrained teachers. In W.P.
No. 629/13 decided on 27.6.2013, another Division Bench of this
Court has taken a similar view.
7. The point as regards to nonmaintainability of petition on
the ground of delay and laches is concerned, by now it is settled
principle of law that for invoking the jurisdiction under Article
226 on the ground of delay and laches is concerned, same is not a
hard and fast rule but a rule of selfrestraint. In the present
petitions, various Division Benches at Nagpur and Aurangabad
have held that such teachers, for the period as mentioned
aforesaid, are entitled for the salary in the scale of untrained
teachers as per Government communication dated 24.4.2007.
Denying equal treatment to the petitioners before us, in our
considered view, would be doing injustice to them and depriving
them the benefits as are provided by the Government through out
the State of Maharashtra. In that view of the matter, the
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objection raised by the learned counsel for Zilla Parishad does not
survive.
8. Insofar as merits are concerned, when various coordinate
Benches of this Court have taken a similar view, we find no
reason to not to follow the same. In this view of the matter, the
writ petitions are allowed. RespondentZilla Parishad is directed
to pay arrears of salary to the petitioners for the period between
their three years of completion of service as Shikshan Sewak and
the date on which they were paid salary as trained teachers in
terms of the Government communication dated 24.4.2007.
Another Division Bench at Aurangabad (R. M. Borde & Sunil P.
Deshmukh, JJ.) in Writ Petition No. 4709/2013 vide judgment and order
dated 2682013 issued similar directions following the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others. The
another Division of this Court at Nagpur consisting of one of us (B.R.
Gavai and Mrs. Mridula Bhatkar, JJ.) in Writ Petition No. 6569/2014
vide judgment and order dated 1322015 and in Writ Petition No.
341/2015 vide judgment and order dated 3012015 also took a similar
view. Another Division Bench at Aurangabad (R. M. Borde & T. V.
Nalawade, JJ.) in Writ Petition No. 7675/2012 vide judgment and order
dated 2522013 had also followed the judgment in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others and
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issued similar directions. Not only this, the Division Bench of this Court
at Nagpur (B.P. Dharmadhikari and P.R. Bora, JJ.) in Writ Petition No.
2443/2014 vide order dated 31102014 passed the following order.
Learned counsel for petitioners as also for respondent nos.
2 and 3 state that the petition can be disposed of in terms of
paragraph no.5 and 6 of the orders dated 03.10.2013 in Writ
Petition No. 427/2013 and other matters, passed at Bombay and
recent orders passed on 18.06.2014 at Nagpur in Writ Petition
No. 237/2014 and others.
In view of these orders, we also dispose of the present writ
petition with following directions :
(i) The respondent nos. 2 and 3 are directed to make
applicable the pay scale of untrained teacher to the petitioners
and pay arrears as prayed for in the light of the communication
dated 24.04.2007 (AnnexureE) and also in view of the
observations contained in judgment dated 24.04.2012 in Writ
Petition No.7116/2011 (AnnexureG) for the period mentioned
in Chart at AnnexureA with the present petition, i.e. for the
period they have worked as untrained teacher.
(ii) The concerned respondents shall dispose of the
representations, if any, and if pending at the earliest. No costs.
13. It appears that, however, subsequently, Division Bench of
this Court (B. P. Dharmadhikari and P.N. Deshmukh, JJ.) in the case of
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Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and
others (cited supra) took a different view on 16102015. It can thus be
seen that view taken in the case of Smita d/o Manohar Ramteke (KU.)
Vs. State of Maharashtra and others had the effect of upsetting the
view as expressed in the case of Seema D/o Khandu Takale Vs. The
State of Maharashtra and others by a coordinate Bench of this Court,
which has been consistently followed by various Benches including the
Bench presided over by Hon'ble Shri Justice B. P. Dharmadhikari.
14. The effect of judgment of Division Bench in the case of
Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and
others is that though similarly circumstanced employees have been
granted benefits as per the law laid down by this Court in the case of
Seema D/o Khandu Takale Vs. The State of Maharashtra and others
which has been consistently followed by various Benches, the petitioners
in the case of Smita d/o Manohar Ramteke (KU.) Vs. State of
Maharashtra and others were denied the same benefit. As such, in
view of conflicting judgments, a situation has arisen which has resulted
in denying the equal treatment to equals.
15. It will be relevant to refer to the following observations of
the Hon'ble Apex Court in the case of Sunil Kumar Verma and others
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Vs. State of Uttar Pradesh and others reported in (2016) 1 SCC 397 .
“Be it stated, there had already been interpretation of the
2003 Rules by the learned Single Judge which has been affirmed up
to this Court. In such a situation, we really fail to fathom how the
Division Bench could have thought of entering into the analysis of
the ratio of the earlier judgment and discussion on binding
precedents.”
16. We are of the considered view that the aforesaid
observations of Their Lordships of the Apex Court are aptly applicable to
the facts of the present case. No doubt that the Division Bench in the
case of Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra
and others was entitled to take a different view than the view taken by
coordinate Bench in the case of Seema D/o Khandu Takale Vs. The
State of Maharashtra and others which was consistently followed by
various Benches including the Division Bench presided over by Hon'ble
Shri Justice B. P. Dharmadhikari. However, if the learned Judges of the
Division Bench were of the view that the position of law as laid down in
the case of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others was not correct, then the only option that was available to
the learned Judges of the Division Bench was to refer the matter to the
Hon'ble Chief Justice for referring it to the Larger Bench.
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17. We clarify that we should not be misunderstood to have
entered into the issue as to whether the view taken in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others lays
down the correct position of law or as to whether it is the view in the
case of Smita d/o Manohar Ramteke (KU.) Vs. State of Maharashtra
and others which lays down correct position of law. We are only on the
question of judicial propriety and discipline. When the view taken in the
case of Seema D/o Khandu Takale Vs. The State of Maharashtra and
others was consistently followed by various Division Benches of this
Court, if the learned Judges in the case of Smita d/o Manohar Ramteke
(KU.) Vs. State of Maharashtra and others found that it was not
correct in law, then they could have only referred it to a Larger Bench by
giving the reasons as to why they found the view in the case of Seema
D/o Khandu Takale Vs. The State of Maharashtra and others was not
correct in law. In no case, they could sit in appeal and hold that the
view taken in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others does not lay down correct position of law. As
the Judges of the Bench having equal number of strength with that
Judges in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others either the Division Bench in the case of Smita
d/o Manohar Ramteke (KU.) Vs. State of Maharashtra and others
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should have followed the same or if disagreed, then refer the matter to a
Larger Bench.
18. We find that as a matter of fact when the earlier view
rendered by the Coordinate Bench is in existence, the subsequent view
by the Bench of same strength taking a contrary view to the view taken
by earlier Benches, without referring it to a Larger Bench would not be
legal and binding.
19. In that view of the matter, we find that the respondent
authorities were bound to follow the dictum of law as laid down by the
Division Bench in the case of Seema D/o Khandu Takale Vs. The State
of Maharashtra and others (supra) which has been consistently
followed. No doubt that the learned Division Bench was right in
observing that dismissal of a SLP by the Hon'ble Apex Court does not and
cannot improve the situation for the petitioners. However, as a
Coordinate Bench consisting of same number of Judges, the Division
Bench was bound to follow the view taken in the case of Seema D/o
Khandu Takale Vs. The State of Maharashtra and others which was
consistently followed unless it was set aside by a Larger Bench or by the
Hon'ble Apex Court.
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20. In that view of the matter, we have no hesitation to hold
that the view taken in the case of Smita Manohar Ramteke vs. State of
Maharashtra and others which is contrary to the earlier view in the
case of Seema D/o Khandu Takale Vs. The State of Maharashtra and
others would not be legal and binding, in view of the law laid down by
the Apex Court in the case of Official Liquidator Vs. Dayanand and
others (supra).
21. We further find that since the view taken in the case of
Smita Manohar Ramteke vs. State of Maharashtra and others is
contrary to the earlier judgment of the Division Bench of this Court in
the case of Seema D/o Khandu Takale Vs. The State of Maharashtra
and others which was consistently followed, it is the view in the case of
Seema D/o Khandu Takale Vs. The State of Maharashtra and others
which will hold the field, till it is set aside by the Larger Bench or by the
Hon'ble Apex Court.
22. We further find that in view of the law laid down by the
Apex Court in the case of Girjesh Shrivastava and others Vs. State of
Madhya Pradesh and others reported in (2010) 10 SCC 707 that in
service matters, the public interest litigations are not to be entertained,
the order treating the present proceedings as public interest litigation is
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liable to be recalled and as such is recalled. The proceedings are
restored as Writ Petition No. 592/2018.
23. Since we find that the facts in the present case are identical
with the facts in the case of Seema D/o Khandu Takale Vs. The State of
Maharashtra and others (supra) which hold that after successful
completion of three years of service as Shikshan Sevaks, the said
Shikshan Sevaks are entitled to be regularized as Assistant Teachers and
if they are not qualified, they are entitled to be regularized in the scale of
Untrained Teachers till the date they acquire the requisite qualification,
the present petition deserves to be allowed.
24. In the result, rule is made absolute by directing the
respondents to treat the petitioner's services as Untrained Teacher from
the date on which she has successfully completed 3 years tenure as
Shikshan Sevak till the date of her regularization as trained Assistant
Teacher.
25. The arrears to be paid to the petitioner on the basis of
aforesaid shall be paid within a period of three months from today.
26. Notices issued to respondent nos. 3 and 4 are discharged.
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27. In the facts and circumstances of the case, no order as to
costs.
JUDGE JUDGE
wasnik
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