Jagdish Bhalla, K.S. Rakhra and D.V. Sharma, JJ.
1. This writ petition relates to a controversy arising out of recruitment process commenced by the District Judge, Barabanki for making certain recruitments in Class III and Class IV categories in his Judgeship.
2. An advertisement for such recruitment was issued on 30.7.2004 and the selection process was completed and a select list was declared on 4.11.2004 and 5.11.2004 for Class IV and Class III categories.
3. The aforesaid selection was challenged through several writ petitions which were decided by a common judgment in Writ Petition No. 7021 (S/S) of 2004, Dinesh Kumar v. State of U.P. and Ors. This judgment came on 19.1.2006 and Hon'ble single Judge found that the selection process was not conducted according to rules and it was also vitiated by malpractices and favouritism etc. In this selection, the appointment for the post of Stenographers and Drivers was also included. Strictures were passed against the then District Judge, Barabanki and a penalty was imposed on him and also action for disciplinary proceedings were recommended.
4. While allowing the writ petitions and setting aside the select list, Hon'ble single Judge had provided that ad hoc employees who were working prior to regular appointment having been made, shall be restored in service. He further provided that some of the selectees from the quashed select list could also be asked to work on ad hoc basis till regular selection was made, although no direction about the selection process was issued.
5. The judgment dated 19.1.2006 delivered by Hon'ble single Judge was challenged through six special appeals, i.e., Special Appeal No. 63 of 2006, Special Appeal No. 76 of 2006, Special Appeal No. 81 of 2006, Special Appeal No. 126 of 2006, Special Appeal No. 160 of 2006 and Special Appeal No. 189 of 2006 out of which Special Appeal No. 76 of 2006 (S/B) of 2006 was filed by the District Judge Shyam Babu Vaish and Special Appeal No. 160 (S/B) of 2006 was filed by the State. Rest were filed by private persons, A Division Bench of this Court disposed of these special appeals vide order dated 19.7.2006. The findings of the Hon'ble single Judge regarding illegalities committed in the selection process of Class III and Class IV employees except Stenographers and Drivers, were found to be borne out from the record and to that extent the appeals were dismissed. With regard to lone post of Stenographer and Driver, the Division Bench found that not an lota has been said nor pointed out about any possibility of irregularity or illegality in the case of recruitment on the post of Stenographers. The selection of Sandlp Kumar Gupta as Stenographer was upheld and the order passed by the Hon'ble single Judge to that extent was reversed. Similarly, the Division Bench found no illegality or irregularity in the selection of Ashok Kumar on a lone vacancy in the post of Driver. His selection was also upheld.
6, As stated earlier, there was concurrence by the Division Bench In the special appeal with the judgment of Hon'ble single Judge in writ petitions with regard to quashing of the remaining select list of Class III and Class IV candidates. The Division Bench, however, did not agree with the findings of the Hon'ble single Judge that in view of the quashing of selection, the old ad hoc appointments be revived and further ad hoc appointments be made from the selectees of quashed select list. With regard to the penalty imposed on the District Judge, Barabanki and disciplinary proceedings suggested against him, the Division Bench made interference and set aside the penalty of rupees one lakh imposed on the District Judge. The following directions were issued by the Division Bench disposing of the special appeals:
The District Judge, Barabankl is directed to take recourse to the fresh exercise of conducting the written competitive test for recruitment to the Class III posts of the candidates who had applied earlier ; and, hold interview of the applicants seeking appointment to the post of Process Server. Each step for such recruitment will be taken in accordance with the rules applicable on the date of advertisement. The entire exercise must be over within three months from the date a copy of this Judgment is received by the District Judge.
We may summarise our decision as follows:
1. The decision of quashing select lists dated 4.11.2004 and 5.11.2004 prepared by District Judge, Barabankl for recruitment to Class IV and Class II respectively is confirmed.
2. The appointment to the post of Stenographer and Driver is held valid. The Judgment in appeal is modified to this extent.
3. The judgment in appeal so far as it contains provision for restoration of the service of ad hoc employees or recruitment of employees from amongst the quashed lists on ad hoc basis is set aside.
4. Imposition of costs of Rs. one lac is set aside.
All the appeals are decided in terms of above. All the writ petitions stand dismissed. Costs shall be easy.
7. Thus, the District Judge was required to take recourse to fresh exercise of conducting written competitive test for recruitment to the Class III post of the candidates who had applied earlier, and hold interview of the applicants seeking appointment to the post of Process Server. Step for such recruitment had to be taken in accordance with rules applicable on the date on the relevant advertisement. Entire exercise was required to be completed within three months.
8. The District Judge Barabankl found difficulty in implementing this order. According to him, the mandate issued by the Division Bench in special appeals was that each steps for recruitment will be taken in accordance with rules applicable on the date of advertisement. The rules applicable in this regard, were the Uttar Pradesh Rules for Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950. The rules provided that vacancies shall be ascertained for the purpose of making recruitment. The earlier recruitment process was initiated for filling up 18 vacancies of clerks but according to calculation of vacancies as per rules applicable at the relevant time, 21 vacancies were required to be filled up. Since the Division Bench had imposed a rider that the fresh recruitment examination has to be taken of the candidates who had applied earlier, the District Judge found that an anomalous situation had arisen.
9. He referred the matter to the Registrar of the Court and it was placed before Hon'ble the Administrative Judge after getting administrative instructions. The District Judge made an application on 22.9.2006 in Special Appeal No. 160 of 2006, i.e., Civil Misc. Application No. 34729 of 2006 wherein he applied for extension of time. Although, the District Judge had found an anomalous position arising on account of directions in the special appeal that a fresh written examination of candidates who had applied earlier alone be taken and on the other hand, there was a direction to hold fresh examination in accordance with rules applicable on the date of advertisement. These rules according to the District Judge, necessitated fresh advertisement of vacancies and fresh invitations for applying against those posts. However, the District Judge confined his prayer through Civil Misc. Application No. 34729 of 2006 only to extension of time and did not ask for clarification from the Division Bench which had decided the special appeals.
10. On the basis of administrative instructions issued to the District Judge, he issued fresh advertisement on 8.10.2006 inviting fresh applications for appointment on the above posts. One Rana Pratap Singh appellant in Special Appeal No. 163 of 2006, felt aggrieved by this step of the District Judge and made a Civil Misc. Application No. 40179 of 2006 in Special Appeal No. 63 of 2006 on 9.11.2006.
11. The Division Bench which had disposed of the Special Appeal No. 63 of 2006, was nominated by the Hon'ble senior Judge for passing appropriate orders on the said application. The matter being thus placed, the Division Bench had found that fresh advertisement to fill up the vacancies was clear cut breach and disobedience of the Judgment dated 19.7.2006 in the special appeal. Inviting counter-affidavit from the District Judge, the Division Bench restrained the District Judge from acting upon the advertisement dated 8.10.2006.
12. While all this was happening, one Abhishek Kumar Srivastava who was writ petitioner in Writ Petition No. 7017.(S/S) of 2006 and was selected for appointment as Stenographer, preferred another Special Appeal No. 510 of 2006 against the judgment dated 19th January, 2006 passed by the Hon'ble the single Judge. On 16.11.2006, the same Division Bench hearing special appeal, again passed an order asking the District Judge to explain as to whether the examination was being conducted in compliance to the order passed by the Division Bench in special appeal or it was being passed in contravention thereof. The Division Bench also observed that since name of Abhishek Kumar Srivastava figured in the select list of Stenographers and he continued to discharge his duty on the said post till 19.7.2006 (when the judgment in the special appeals was delivered by the aforesaid Bench), his termination order was directed to remain stayed and he was allowed to continue in service until further orders.
13. While all these matters were pending before the Division Bench, the present writ petition was filed by Vlrendra Kumar impleading the High Court, the District Judge and Rana Pratap Singh who had moved Civil Misc. Application No. 40179 of 2006 in decided Special Appeal No. 63 of 2006 as respondent. The petitioner contended that since the special appeals including Special Appeal No. 63 of 2006 had been finally disposed of by the Division Bench on 19.7.2006, no application in the name of clarification could be entertained by the said Division Bench and any order passed by the Division Bench on the said application restraining the District Judge from holding examination after inviting fresh applications was an order passed without jurisdiction and was void and could be ignored. It was prayed that a writ in the nature of certiorari be issued for quashing that order of District Judge by which, action on the fresh advertisement dated 8.10.2006 was stopped and a mandamus was prayed for directing the District Judge to proceed with the selection as per fresh advertisement.
14. In this petition, the opposite party No. 3 also put in appearance through Sri Gyan Singh Chauhan, advocate and contended that order passed by the Division Bench was perfectly in accordance with law but he expressed intention not to file any counter-affidavit in the writ petition. On his behalf the matter was argued orally before Hon'ble Mr. Justice Devi Prasad Singh.
15. When the matter came up before Hon'ble the single Judge for hearing on 6.12.2006, the Court was also informed of the order passed by the Division Bench in Special Appeal No. 510 of 2006 of Abhishek Kumar Srivastava. Hon'ble the single Judge thought it proper to summon the record of Special Appeal No. 510 of 2006 for perusal. After the record was perused the learned Counsel for the respondent No. 3 again submitted before the Hon'ble single Judge that since the Division Bench had passed interim order in Special Appeal No. 510 of 2006, no further selection could be made in pursuance to the impugned advertisement. The petitioner's counsel on the other hand, reiterated that application of Rana Pratap Singh for clarification of the order dated 19.7.2006 was not maintainable. With regard to Special Appeal No. 510 of 2006 also, it was contended by the petitioner's counsel that Abhishek Kumar Srivastava was challenging his termination from service which was a fresh cause of action and, therefore, the Special Appeal No. 510 of 2006 was also not maintainable. If Abhishek Kumar Srivastava was aggrieved by his termination order, he could have filed a fresh writ petition.
16. In light of the above developments, learned single Judge passed a detailed order on 11.12.2006 expressing his opinion that the Division Bench was usurping the jurisdiction of a single Judge in entertaining a clarification application, i.e., Civil Misc. Application No. 40179 of 2006 made by Rana Pratap Singh in decided Special Appeal No. 63 of 2006 and also in entertaining the Special Appeal No. 510 of 2006 filed by Abhishek Kumar Srivastava as he should have filed a writ petition. However, faced with the situation, wherein the Division Bench had passed orders staying further action on the part of the District Judge pursuant to fresh advertisement dated 8.10.2006 Hon'ble single Judge observed that no contrary finding can be recorded by him. However, since he strongly disagreed and disapproved the action of he Division Bench dealing with Special Appeal No. 510 of 2006 and Civil Misc. Application No. 40179 of 2006 in Special Appeal No. 63 of 2006, his lordship recorded the view that the Division Bench was usurping the jurisdiction of Hon'ble single Judge. He, therefore, was of the view that it shall be appropriate that the present Writ Petition No. 9905 (S/S) of 2006 may be heard by a larger Bench, i.e., Full Bench consisting of three Hon'ble Judges.
17. In the last but one paragraph of his order, Hon'ble the single Judge observed:
In view of above, it shall be appropriate that the dispute in question may be referred to a Full Bench of this Court consisting of three Hon'ble Judges to settle the controversy at rest. Since, the Division Bench itself has stayed the selection and appointments in pursuance to the fresh advertisement, till further orders or till the adjudication of the controversy by the Full Bench of this Court, learned District Judge, Barabanki is restrained to proceed with the selection process.
Office is directed to send the record of the present writ petition to Hon'ble the Chief Justice for appropriate orders within a week.
18. The record was placed before Hon'ble the Chief Justice and on 10.1.2007, Hon'ble the Chief Justice constituted this larger Bench and referred the matter to it.
19. The reference to this larger Bench appears to have been made under Rule 6 of Chapter V of the Allahabad High Court Rules, 1952, which provides that the Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated, shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions if any, arising therein.
20. From the referral order dated 11.1.2006, it is clear that Hon'ble the single Judge was referring the entire case for decision by a larger Bench because the Division Bench hearing the special appeals and Civil Misc. Case No. 4017 of 2006 of Rana Pratap Singh had passed contrary orders which in opinion of the learned single Judge were not correct orders. The order of Hon'ble the Chief Justice does not state whether the case has been referred or any question has been referred to the larger Bench. However, since no question of law was formulated by Hon'ble the single Judge hearing the case and also in view of the fact that his lordship was feeling difficulty in passing a contrary order which in his opinion, should have been passed in the writ petition, the entire case has been referred for hearing.
21. A very interesting situation arose when this petition came up for hearing. Learned Counsel for the petitioner Sri M. Waris Farooqul submitted that the petitioner does not want to press the petition and it may be dismissed. Strangely enough, learned standing counsel representing the District Judge, Barabanki, however, objected to this and contended before the Court that the writ petition cannot be dismissed simply on the ground that it Is not being pressed by the petitioner. He argued that since important questions have been raised by Hon'ble the single Judge, who has made reference, this larger Bench must decide and settle the controversy which has been faced by and raised in his order by Hon'ble the single Judge.
22. After giving due consideration to the arguments and also finding that Hon'ble the single Judge had at one place mentioned that it shall be appropriate that the present writ petition may be heard by larger Bench, added that it shall be appropriate that the dispute in question may be referred to Full Bench of this Court to settle the controversy at rest, we find that the controversy, raised by Hon'ble the single Judge was:
(a) Whether Civil Misc. Application No. 40179 of 2006 made by Rana Pratap Singh in decided Special Appeal No. 63 of 2006, was maintainable or not?
(b) Whether in entertaining the application and passing the lnterim order therein, the Division Bench was usurping the jurisdiction of a single Judge?
(c) Whether the Special Appeal No. 510 of 2006 presented by Abhishek Kumar Srivastava an applicant and selectee for the post of Stenographer, was not maintainable and the Division Bench of this Court in entertaining the same and passing an interim order usurped the Jurisdiction of a single Judge?
(d) Whether the directions issued by Hon'ble the Administrative Judge of Barabanki to the District Judge Barabanki to make a fresh advertisement inviting fresh applications against the directions given by the Division Bench in their order dated 19.7.2006 could be justified being an order or direction issued in exercise of powers conferred under Article 235 of the Constitution of India?
(e) Whether the District Judge could avoid judicial order of the Court dated 19.7.2006 of the Division Bench passed in the aforesaid special appeals on the basis of the instructions received from the Hon'ble the Administrative Judge?
23. Since they are the questions of general importance, we think it proper to answer them.
24. The single Judge making this reference, has placed reliance on the case of State of U.P. v. Bramh Dutt Sharma : [1987]2SCR444 and also to the case of Y.C. Shimadrl and Ors. v. Din Bandhu Pathak, (mentioned in the referral order in para 12) in support of the premise that the order passed usurping the jurisdiction when no Jurisdiction lay with a Bench, is a nullity. Before proceeding further, it would be proper to mention that said question of want of jurisdiction does not arise in the present case. The cases referred to by Hon'ble the single Judge, do not have any application to the facts before us. Y.P. Shimadri (supra), is a case which was decided by a Division Bench of this Court. It was the case where the learned single Judge of this Court in exercise of power conferred under Section 215 of the Constitution of India, attempted to exercise jurisdiction of punishing a contemnor for disobedience of the order of the Court. It was in that connection that this Court held that Hon'ble the single Judge had no jurisdiction to deal with the applications for contempt of court without being conferred authority or Jurisdiction by the Hon'ble Chief Justice. The Court held that contempt Jurisdiction is an independent Jurisdiction of original nature whether emanating from the Contempt of Court Act or under Article 215 of the Constitution of India. Shimadri's case (supra), therefore, was a case where there was clear and apparent want of jurisdiction with the single Judge who had passed the order issuing notice to the alleged contemnor to appear before the learned single Judge.
25. There cannot be any controversy with regard to the position of law that where there is apparent or explicit want of jurisdiction, the order passed by the Court would be a nullity. However, where on the facts of the case It is arguable whether cause of action within the jurisdiction of the Court has arisen or not, the Judicial propriety requires that it should be raised before the same Court in same proceedings or in any other proceedings arising from it. Without raising the plea of jurisdiction and without the Court recording the finding with regard thereto in the matter of arguable cases, it cannot be said that the order passed by the Court in such proceedings, can be ignored by the parties concerned on the ground of want of jurisdiction.
26. In the case before us, the District Judge found that an anomalous situation had arisen wherein on the one hand, fresh written competitive test has to be conducted for those candidates who had already applied in pursuance of the first advertisement and on the other hand, the direction of Division Bench in special appeals in their order dated 19.7.2006, required the District Judge to hold written competitive test afresh in accordance with rules prevalent at the time of advertisement. The rules demanded that vacancies be redetermined and fresh applications be invited.
27. That being the position, the appropriate course for the District Judge, Barabankl was to have applied for clarification modification/review of the order dated 19.7.2006 in decided special appeals. This could be done only by the same Division Bench which had passed order on 19.7.2006. Instead of doing so, the District Judge, Barabanki only applied for extension of time for conduct of fresh written competitive test and did not apply for any clarification or guidance or directions by which aforesaid anomaly could be resolved.
28. However, when fresh advertisement dated 8.10.2006 was issued by the District Judge with a view to invite fresh applications, Sri Rana Pratap Singh who had filed Special Appeal No. 63 of 2006, rightly approached the Division Bench by making Civil Misc. Application No. 40179 of 2006 and, under the orders passed by Hon'ble the single Judge, the same Division Bench was nominated for disposal of the said application.
29. In view of the above facts and circumstances, we are of the opinion that the Division Bench deciding Special Appeal No. 63 of 2006 was not only competent but was the only appropriate Bench before whom the application for clarification or further directions could have been moved.
30. The case of Bramh Dutt Sharma (supra), relied upon by the learned single Judge, was a case decided on entirely different facts. That was a case where termination order of an employee was quashed in writ petition under Article 226 of the Constitution by a single Judge of the High Court on 10.8.1984. This was done on the ground that he had not been afforded reasonable opportunity to defend himself. While setting aside the termination order, the learned single Judge made it open to the State of U.P. to draw fresh proceedings if they were permissible. Since the employee concerned had attained the age of superannuation in the meanwhile, he could not be reinstated in service. The State Government, however, on 29.1.1986, i,e., after two years of decision of writ petition, issued him notice to show cause why the order of forfeiture of his pension and gratuity be not issued in accordance with Article 470 (b) of Civil Services Regulations as his services have not been fully satisfactory. While reply submitted by the employee was still under consideration, he filed an application before the High Court in his earlier writ petition which had already been disposed of on 10.8.1984 and the learned single Judge exercised jurisdiction on that application and held that since the departmental proceedings taken against the respondents had already been quashed, it was not open to the State Government to issue show cause notice under the aforesaid provisions, on the same very allegations which formed charges in the disciplinary proceedings.
31. It was in that connection that the Apex Court found that while quashing the order of dismissal, the learned single Judge did not quash the proceedings or the charges. The dismissal had been quashed only on the ground that the employee was not afforded an opportunity to show cause against the proposed punishment. The learned single Judge had while disposing of the writ petition, himself made it open to the State Government to draw fresh proceedings. It was held that in view of the above facts, fresh proceedings could be drawn. It was in that connection that the Apex Court held that since the writ petition had been disposed of finally, it could not be reopened by means of miscellaneous application. That was, therefore, a clear case where a fresh cause of action had arisen. This case also does not have any application to the case before us.
32. As we have mentioned earlier, in view of the anomalous situation, and the difficulty being found by the District Judge, Barabanki in execution of the order dated 19.7.2006, he himself should have made an application for clarification/ modification or guidance. In absence of his doing so, the application made by Rana Pratap Singh who was a candidate in pursuance of the first advertisement and who was a party in the Special Appeal No. 63 of 2006 had every justification for making Civil Misc. Application No. 40179 of 2006. The application was thus, maintainable.
33. Therefore, in our opinion, by no stretch of imagination it can be said that the Division Bench which was nominated by Hon'ble the senior Judge and which had decided the Special Appeal No. 63 of 2006, earlier was usurping the jurisdiction of single Judge. In fact, in view of the application having been made by Rana Pratap Singh and entertained by Division Bench the present Writ Petition No. 9905 (S/S) of 2006 should not have been entertained by the learned single Judge and the petitioner ought to have been directed to approach the Division Bench for vacation of the order dated 20.11.2006. In any case, even if this petition was not rejected on this ground, the judicial propriety required that the learned single Judge ought to have stayed proceedings in this writ petition awaiting orders to be passed by Division Bench of Civil Misc. Application No. 40179 of 2006. It was not a clear and apparent case of want of jurisdiction where the order passed by the Division Bench of the Court could be ignored or could be challenged as nullity on the ground of want of jurisdiction. Learned single Judge, therefore, was not correct in saying that Division Bench had usurped the jurisdiction of single Judge.
34. So far as the legal propriety in filing of Special Appeal No. 510 of 2006 by Abhishek Kumar Srivastava is concerned, this appeal was filed on 19.8.2006 alongwith the application for condonation of delay. An objection had been filed in the special appeal on behalf of the District Judge. The referral order of the learned single Judge says that it was contended before the Division Bench that the termination order cannot be challenged in special appeal as it relates to fresh cause of action which could be challenged before a learned single Judge in a writ petition. The learned single Judge has found substance in the argument raised before him that the Division Bench dealing with the Special Appeal No. 510 of 2006 was proceeding without jurisdiction. He has taken pains in referring to a large number of authorities of decided cases to strike a point that a decree passed without jurisdiction, is a nullity and that what could not be done directly could also be not done indirectly and that the Court cannot derive the jurisdiction apart from the statute.
35. Here too, we are of the view that the entire exercise done by the learned single Judge in this regard was uncalled for. It was against the settled judicial norms to pass a verdict with regard to a party or his cause without hearing the party. Abhishek Kumar Srivastava was contending that the Division Bench hearing Special Appeal No. 63 of 2006 and Special Appeal No. 189 of 2006 etc., had held that the selection for the post of Stenographer was validly made and was not liable to be set aside. One Sandeep Kumar Gupta was sought to be adjusted against the said post and Abhishek Kumar Srivastava was being removed on the ground that second vacancy available on account of transfer of a Stenographer on deputation had come to an end because of repatriation of the said Stenographer. The question was, as to whether on the vacancy for which earlier advertisement was made, Abhishek Kumar Srivastava was given appointment or Sandeep Kumar Gupta was given appointment. The question of maintainability of the special appeals on the ground of jurisdiction and fresh cause of action had been raised before the Division Bench and could be decided by it. Without waiting for that decision to come and without impleading Abhishek Kumar Srivastava in this writ petition and without hearing him, the conclusion drawn by the learned single Judge that the termination order gave fresh cause of action which could be challenged through a fresh writ petition before the learned single Judge, to our mind, was wholly unjustified and premature.
36. Learned single Judge in his referral order has observed that the District Judge, Barabanki was acting in pursuance of the directions issued by the Hon'ble Administrative Judge exercising powers conferred by Article 235 of the Constitution of India. We are afraid that an administrative power available under Article 235 of the Constitution of India cannot be exercised to pass an order overriding a judicial pronouncement. In the case in hand, rightly or wrongly, there was clear direction for the District Judge, Barabanki to hold fresh written competitive test of the candidates who had applied earlier. If any difficulty or anomalous situation was found in implementing this direction of Division Bench in Special Appeal No. 63 of 2006, the appropriate course for the authority taking administrative decision was, to approach the judicial authority, i.e., a Division Bench which had issued the directions. Thus, to our mind, acting under the orders issued in exercise of powers conferred by Article 235 of the Constitution of India, could not be an excuse for defying a judicial order.
37. The manner in which the learned single Judge has passed the referral order also disturbs us. The language and tenor of the order is such, as if the learned single Judge was sitting in appeal against the orders being passed by the Division Bench in Special Appeal No. 510 of 2006 and Civil Misc. Application No. 40179 of 2006 in decided Special Appeal No. 63 of 2006. On the one hand, the learned single Judge was referring the case to be decided by larger Bench but on the other hand, he has given his own judgment on same significant points arising for consideration. While there was a clear direction of the Division Bench deciding special appeals on 19.7.2006 that fresh written competitive test of the candidates who had applied earlier, is to be conducted and when the questions as to whether the District Judge was justified in advertising vacancies and inviting fresh applications, was already under consideration before the Division Bench in Special Appeal No. 510 of 2006 and Civil Misc. Application No. 40179 of 2006 and also when the Division Bench had passed the interim order to the effect that the action on fresh advertisement would be stayed, it was judicially, not proper for the learned single Judge to hold that the District Judge had rightly proceeded to re-advertise the vacancies (refer to the observations made by the learned single Judge in para 4 of the referral order). It is significant to observe that with regard to the vacancies under consideration, there were several candidates who had applied either in response to the first advertisement issued on 30.7.2004 or the subsequent advertisement issued by the District Judge on 8.10.2006 after the decision of the Division Bench in bunch of special appeals mentioned above. The controversy arising in all these matters was the same. It has to be decided as to how the recruitment test is to be conducted and what are the rules applicable to the same and whether the District Judge had conducted the examination in accordance with rules in just and fair manner or whether the District Judge was now proceeding to conduct the test as per the decision of the Division Bench in special appeals mentioned earlier.
38. The judicial propriety in such a situation demands that a consistent direction or order should be passed by the Court. It was, therefore, not appropriate for the learned single Judge to have entertained the present writ petition and making observations therein contrary to the orders passed by the Division Bench in Special Appeal No. 510 of 2006 and Civil Misc. Application No. 40179 of 2006 and questioning their correctness.
39. In para 9 of the referral order, the learned single Judge further tried to question the correctness and the legality of the procedure adopted by the Division Bench in entertaining the Special Appeal No. 510 of 2006. The question is not of the correctness or otherwise of the order passed by a larger Bench of the Court but the question is of judicial discipline and propriety. The Judges are expected to exercise due restraint and self-control in conduct of their judicial functions. There is hierarchy in Courts in our country. The judgments of higher Courts are binding on the courts lower in hierarchy. On the same principle, due respect and regard has to be given by the Judges while making comments with regard to proceedings or orders passed by Benches higher in hierarchy.
40. In the case of Central Board of Daudibhora Community and Anr. v. State of Maharashtra and Ors. : AIR2005SC752 , the Supreme Court was dealing with the principle of binding precedents. It has been held that the law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or equal strength. It was further held that a Bench of lesser quorum cannot doubt the correctness of the view of the law taken by the Bench of larger quorum. The same in our opinion shall apply to High Courts also.
41. In the case of Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. AIR 2002 SC 296, a Bench of two learned Judges expressed dissent with another judgment of three Judges and directed the matter to be placed before a larger Bench of five Judges, The Constitution Bench considered, the rule of 'judicial discipline and propriety' as also the theory of precedents and held that it is only a Bench of the same quorum which can question the correctness of the decision by another Bench of the coordinate strength in which case the matter may be placed for consideration by a Bench of larger Quorum. It was held that a Bench of lesser Quorum cannot express disagreement with, or question the correctness of the view taken by a Bench of a larger Quorum. A view of law taken by a Bench of three Judg is binding on a Bench of two Judges and in case the Bench of two Judges feels not inclined to follow, the earlier three Judges Bench decision, then its is not appropriate for it to express such disagreement; it can only request the Chief Justice for the matter being placed for hearing before a three Judges Bench which may agree or disagree with the view of the law taken earlier by three Judges Bench.
42. Dealing with the question of judicial propriety, the Apex Court long back in the case of Sher Singh v. State of Punjab AIR 1983 SC 465, observed that although the Court sits in division of two and three Judges for the sake of conveniences but it would be inappropriate if a Division Bench of two Judges start overruling the decision of three. To do so, 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 points of law; consistency and certainty in the development of law and its contemporary status-both would be immediate casualty.
43. It would have been better if the learned single Judge while passing the referral order had exercised due restraint and avoided sweeping observations against the orders passed by the Division Bench and about the manner in which the Division Bench had entertained Special Appeal No. 510 of 2006. The matter could have been simply placed before Hon'ble the Chief Justice with a tentative view of the learned single Judge and Hon'ble the Chief Justice has all the powers of framing roster and constituting larger Benches for deciding a case or answering any case particular question referred to it.
44. In view of the discussions made above, because the Division Bench is seized of the matter and also because the writ petitioner does not press this writ petition, we dismiss the same.
45. The writ petition is accordingly dismissed.