Sudhir Kumar Katriar, J.
1. Both the writ petitions raise common issues, have been heard together, and the issues are being disposed of by a common judgment. The facts essential for the disposal of the issue (s) shall be drawn from C.W.J.C. No. 12063 of 2005, except by specific reference to C.W.J.C. No. 4488 of 2004.
2. The writ petition has been preferred with the prayer to quash the following resolutions of the Government of Bihar in the Department of Health, Medical Education, Family Welfare and Indigenous Medicine:
(i) Memo No. 17/A3-4/2004-189 (17) dated 22.3.2004 (Annexure-11), whereby the State Government has framed a criteria (policy decision) for determination of seniority of Senior Residents in different teaching departments of the Medical Colleges of the State of Bihar.
(ii) The final gradation list as contained in Memo No. 17/A-3-63/2004-289 (17) Patna, dated 4.4.2005 (Annexure-19), prepared on the basis of criteria evolved for determination of inter-se seniority of Senior Residents.
(iii) Notification No. 199 (17), dated 24.3.2004 (Annexure-14), whereby 11 Senior Residents from the provisional list have been promoted to the post of Assistant Professor without waiting for the objections (Challenged in CWJC No. 4488 of 2004).
(iv) Notification No. 868 (17), dated 8.7.2008 (Annexure-36), whereby respondent No. 5 (Dr. Amarendra Kumar), and respondent No. 18 (Dr. Ram Naresh Yadav), have been placed at serial Nos. 39 and 51 respectively, even though they are direct recruits of 2002.
3. A brief statement of facts essential for the disposal of the issue(s) may be indicated. According to the writ petition, Government of Bihar had set up nine medical colleges in the undivided State of Bihar, namely, Patna Medical College and Hospital, Patna, Nalanda Medical College and Hospital, Patna, A.N.M. Medical College and Hospital, Gaya, Darbhanga Medical College and Hospital, Laheriasarai, Darbhanga, S.K. Medical College and Hospital, Muzaffarpur, J.N. Medical College and Hospital, Bhagalpur, Rajendra Medical College and Hospital, Ranchi, Patliputra Medical College and Hospital, Dhanbad, M.G.M. Medical College and Hospital, Jamshedpur. The members of the teaching faculties of these medical colleges were earlier drawn from Bihar Health Service. In order to ensure enthusiasm for research work, to compete at the national level, and to ensure certainty and meaningful career in the teaching faculty of the medical sciences in Bihar, the Government of Bihar thought it essential to constitute a Medical Teaching Service Cadre for appointment/promotion of junior and senior teaching posts in the medical colleges and hospital. Therefore, in exercise of the powers vested by the proviso to Article 309 of the Constitution of India, the Governor of Bihar was pleased to frame Bihar Medical Teaching Service Cadre and Appointment on the Cadre Post Rules, 1997 (hereinafter referred to as the 'Rules'). In view of re-organization of the erstwhile State of Bihar under the provisions of the State Reorganization Act, 2000, three of the aforesaid medical colleges at Ranchi, Jamshedpur, and Dhanbad are now in the State of Jharkhand, and are beyond the scope of our consideration.
4. An over-all view of the various provisions of the Rules may be noticed. Rule-5 provides for absorption of those of the officers of the Bihar Health Service who were holding a teaching assignment in the medical colleges, and is reproduced hereinbelow for the facility of quick reference:
5. fcgkj fpfdRlk f'k{kk lsok laoxZ dh jpuk ;k xBu %d fpfdRlk egkfo|ky;ks ,oa funs'kky; ds fuEu in blesa lEozf'Br fd;s tk;sxs vkSj laoxZ esa bu lHkh inks dh la[;k 1 vihy 1997 dh frfFk esa miyC/k inks ds lerqY; gksxh%
(i) vkoklh; fpfdRld
(ii) fuca/kd
(iii) lgk;d izk/;kid
(iv) lg&izk;/;kid
(v) izk/;kid
(vi) izkpk;Z
(vii) funs'kky; ds fpfdRlk f'k{kk laoxZ ls Hkjs tkus okys in%
d mi&funs;'kd
([k) la;qDr funs'kd≶ ijh{kk fu;a=d
x funs'kd ;k vij funs'kdA
([k) vkoklh; fpfdRld ,oa fuca/kd ds in ^^O;k[;krk^^ ds :i esa lEifjofrZr tk;sxs A vU; in ;Fkkor jgsxsA
Xk mijksDr inks ij iwoZ ls dk;Zjr lHkh inkf/kdkjh;ks dks fpfdRlk f'k{kk laoxZ es lEosf'Br jgus ds fy, vFkok ewy dksfV ^^fcgkj&jkT; LokLF; lsok laoxZ^^ esa ykSVkus ds fy, ,d fu'fpr frfFk rd viuh fyf[kr bPNk layXu izi= vuqyXud&1 esa nsuh gksxh tks fyf[kr :i ls vkWi'ku (Option) ugh nsxs mUgs ewy laoxZ esa okil dj fn;k tk;sx A lkFk gh] fcgkj fpfdRlk f'k{kk lsok&laoxZ; es mfYyf[kr inks ij lek;kstu ds fy, vko;'d ;ksX;rk ,oa 'kS{kf.kd vuqHko] fu;qfDr dh frfFk ds le; ugh jgus ij] mu inkf/kdkjh;ks dks Hkh ewy laoxZ fcgkj LokLF; lsok laoxZ es okil dj fn;k tk;sxk A
Rule 6 lays down that the Bihar Medical Education Service Cadre (hereinafter referred to as the 'Education Cadre'), shall be completely separate from Bihar Health Service Cadre. Rule-7 is not of much relevance in the present context. Rule-8 is headed ^fu;qfDr ,oa izksfUur^ Rule-8(i) provides for appointment at the entry level including the eligibility for examination. Rule-8(ii) lays down the guidelines for promotion from the post of Lecturer to the post of Assistant Professor and also for further promotions. We shall notice the remaining provisions whenever the need arises during the course of the judgment.
5. Rule-5 Xk set out hereinabove provides for absorption of the members of the undivided Bihar Health Service Cadre in the Education Cadre as per the norms indicated therein. It provides that all the officers working from before on a teaching post in any one of the Medical Colleges in Bihar shall have the option to be included in the medical education cadre to be submitted in the prescribed proforma within a fixed time, and those who do not submit their written option for absorption in the medical cadre shall be reverted to the basic cadre, i.e. the Bihar State Health Cadre. The other conditions for absorption in the Education cadre are that the officers must possess the essential qualifications, and the teaching experience. In other words, the essential conditions for absorption are that the officers must be working on any one of the teaching posts mentioned in Rule-5 from before, shall have to submit their written option, within the prescribed time, should have the educational qualifications, and the requisite teaching experience.
6. The question of interpretation of Rule 5 Xk came up before this Court in CWJC No. 5577 of 1997 The Junior Medical Teachers Association, Bihar v. the State of Bihar and Ors. The State Government had issued letter bearing Memo No. 724(1), dated 15.7.1982 (Annexure-31), notifying that in supersession of all earlier orders it was decided that all Doctors posted on tenure posts (Residents/Registrars) shall continue to function as such even after conclusion of the tenure till such time the successor reports for duties. However, they shall not get the benefit of teaching experience and the educational allowance for the period after conclusion of the tenure. On the eve of promulgation of the Rules, a large number of doctors were functioning as Residents/Registrars on tenure posts even after expiry of their tenures. For effective implementation of the Rules, the State Government issued order No. 181(17), dated 31.5.1991(marked Annexure-3 to CWJC No. 5577 of 1997), wherein it was, inter-alia, stated as follows:
;g mYys[kuh; gS fd VsU;ksj in /kkjd viuk VsU;ksj lekIr gksrs gh vius ewy fcgkj LokLF; lsok lEoxZ esa Lor% okil gks tk;sxs lkFk gh fucU/kd ,oa vkoklh; fpfdRlk inkf/kdkjh ftUgksus vHkh viuk VsU;ksj iwjk ugh fd;k gS os vius&vius; in ij gh cus jgsxs u fd O;k[;krk ds :i esa lEifjofrZr gks tk;sxs A lEifjorZu inks dk gksxk u fd in/kkjdks dk
7. The doctors posted on teaching assignment in various medical colleges felt threatened that their option may not be accepted on the ground that they were not working on a teaching assignment on the date of promulgation of the Rules in view of the provisions contained in rule-5 Xk of the Rules. This gave rise to the aforesaid CWJC No. 5577 of 1997. A learned Single Judge disposed of the writ petition by his judgment dated 14.1.1999, wherein it has been held that the Rules is framed under Article 309, and is legislative in character. The right of absorption has been given to such doctors under a law and can be given with retrospective effect. Therefore, the right created under the law cannot be overridden by the executive circulars as is sought to be done by the order impugned therein (Annexure-3 thereto). The writ petition was, therefore, disposed of with the following direction:
10. This Court is of the opinion that those petitioners who are Resident Medical Officers and Registrars on the date of coming into force of the said rule, namely, 21st May, 1997 and those who have exercised their option, they become lecturer by operation of law, and in their cases Annexure-3 will not apply. Annexure-3 is, therefore, modified to the extent indicated above.
8. The State of Bihar challenged the judgment by preferring L.P.A. No. 243 of 1999 (The State of Bihar and Ors. v. The Junior Medial Teachers Association, Bihar), which was disposed of as not pressed.
9. This was followed by the impugned notification dated 22.3.1999 (Annexure-11), whereby the criteria for determination of inter-se seniority was evolved and indicated. This was further followed by the provisional gradation list of Lecturers/Senior Residents dated 22.3.2004 (Annexure-12), inviting objections by 7.4.2004. The petitioners filed objections on 6.4.2004. Without waiting for the objections and without preparation of the final gradation list, the State Government issued Notification No. 199 (17), dated 24.3.2004, whereby 11 senior Residents from the provisional list were posted as Assistant Professor. The same is marked Annexure-14 and has been impugned therein. This was followed by publication of the final gradation list by notification bearing Memo No. 17/A-3-63/2004, 289(17), dated 4.4.2005 (Annexure-19), on the basis of the criteria laid down in Annexure-11. The petitioner is placed at serial No. 39. This was followed by notification No. 868 (17), dated 8.7.2008 (Annexure-36), publishing the joint final gradation list of all the teachers of Surgery Department of the Medical Colleges of the State. Respondent No. 5 (Dr. Amrendra Kumar), and respondent No. 18 (Dr. Ram Naresh Yadav), have been shown at serial Nos. 39 and 51, respectively, even though they are alleged to be direct recruits of 2002.
10. The Rules have been subjected to three amendments after the same was promulgated on 24.5.1997, and need not detain us, being beyond the purview of our discussion.
11. The writ petitions were laid before a learned Single Judge who has, by order dated 4.9.2008, referred the following issues for the decision of a Division Bench:
This matter is being referred to a Division Bench to decide the following questions:
(1) Whether it is essential to frame rules for the purpose of fixing seniority in the absence of any provision under the Bihar Medical Teaching Service Cadre & Appointment on the Cadre Post Rules, 1997?
(2) Whether the judgment delivered in C.W.J.C. No. 5577 of 1997 lays down the correct law with respect to defining a 'tenure post' or in fact whether the posts of Residents/Registrars of the hospitals is a tenure post?
(3) Whether the length of service and evaluation of merits have to be considered while fixing inter-se seniority of a newly created cadre?
(4) Whether the doctors who were not posted as Registrars/Residents in the hospital at the time when the rule came into existence but have worked in the past as Residents/Registrars are entitled to opt for the medical teaching service cadre if they are otherwise qualified for the post, or any other question(s) that may come up during the course of hearing of these writ petitions?
Accordingly I, refer these writ petitions to the Division Bench.
12. Mr. Basant Kumar Choudhary submitted in support of the writ petition that the judgment in CWJC No. 5577 of 1997 has interpreted the provisions of Rule-5Xk incorrectly. The same does not take into account the Government circular dated 15.7.1982 (Annexure-31), read with the Government letter dated 31.5.1997 (Annexure-3 to CWJC No. 5577 of 1997), and has, therefore, erroneously modified the Government letter dated 31.5.1997 (Annexure-3 thereto). In view of the Government Notification dated 15.7.1982 (Annexure-31), those of the officers who were working in medical colleges on 24.5.1997, beyond the period of their tenure posting, are ineligible to opt in terms of Rule-5 Xk of the Rules. Learned Counsel for the petitioner wrapped up his elaborate submissions by stating that the two primary questions which arise for consideration are issues relating to the correctness or otherwise of the judgment in CWJC No. 5577 of 1997, to consider the validity of Annexure-11, and whether or not the Rules/circular make clear provisions for determination of inter-se seniority.
13. Mr. Janardan Prasad Singh appeared for respondent No. 5 and submitted that the judgment in CWJC No. 5577 of 1997 has attained finality. He next submits that the petitioner cannot maintain this writ petition because he was not holding a tenure post on 24.5.1997. On his own showing, he had joined the teaching assignment on 3.6.1997.
14. Mr. Narendra Prasad appearing for respondent Nos. 6 and 19, submitted that the question of maintainability should be decided first and the merits of the case can be decided only after the writ petition is found to be maintainable. He relies on the following reported judgments:
(i) : A.I.R. 1982 S.C. 1177 (Kesho Nath Khurana v. Union of India and Ors.) , paragraph-1.
(ii) : (2008)3 S.C.C. 243 (T.A. Hameed v. M. Viswanathan) , paragraphs 3, 5 and 8.
14.1 He next submits that the reference to the Division Bench is incompetent. Reference by a learned Single Judge can be made to a Division Bench in limited circumstances. He relies on Chapter-V of the Patna High Court Rules. He also relies on the following reported judgment:
(i) : A.I.R. 1968 S.C. 372 (paragraphs 10 & 11) (Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors.).
14.3 He next submits that reference to a larger Bench can be only made after assigning reasons. He relies on the following reported judgments:
(i) : 1995 Supp. (2) S.C.C. 39 (Asstt. Collector of Estate Duty, Madras v. V. Devaki Ammal) , Madras, pagraph-3.
(ii) 2002 (4) P.L.J.R. 533 (L.N. Mithila University and Ors. v. Mithila Minority Dental College and Ors.) , paragraph-9.
14.4 He also submits that only a Bench of coordinate jurisdiction can disagree with the decision of another Bench of coordinate jurisdiction, and can refer it to a larger Bench for reasons assigned by it. He relies on the judgment reported in 1987 P.L.J.R. 679 (Ram Sagar Pandey and Anr. v. The Anchal Adhikari and Ors.) .
14.5 He next submits that the judgment in C.W.J.C. No. 5577 of 1997 lays down the correct law and the same may be upheld for the following reasons:
(i) The Letters Patent Appeal preferred by the State of Bihar was permitted to be withdrawn.
(ii) It has been followed and applied in various cases which are as follows:
(a) Order dated 22.7.2004, in C.W.J.C. No. 7747 of 1999 (Dr. Prashant Kumar Verma v. State of Bihar).
(b) Order dated 12.7.2005, in C.W.J.C. No. 6559 of 2004 (Dr. Rakesh Kumar v. The State of Bihar), as well as the judgment dated 3.12.1999 (Annexure-R/3), passed in C.W.J.C. No. 952 of 1998 (Dr. Rakesh Kumar v. the State of Bihar and Ors.).
(iii) The expression ^^iwoZ ls dk;Zjr^^, occurring in Rule-5Xk, means that the legislature intended that all those who are actually functioning on the date of promulgation of the Rules were entitled to the right of option. If the Legislature intended to limit it to the tenure, consistent with Annexure-31 hereof, and Annexure-3 to C.W.J.C. No. 5577 of 1997, the restriction would have been incorporated in the Rules in specific terms. The judgment in CWJC No. 5577 of 1997, modifies Annexure-3 thereto, which by necessary implication means that Annexure-31 also Pro Tanto stands modified. The order dated 4.9.2008, referring the matter to the Division Bench, has not assigned reasons for disagreement with the judgment in C.W.J.C. No. 5577 of 1997. With passage of time, the judgment in CWJC No. 5577 of 1997 has been acted all through and by all concerned, particularly after the Division Bench has refused to interfere. He relies on the following reported judgment:(i) A.I.R. 1965 S.C. 1637 (Paragraphs 23 & 34) (The Keshav Mills Co. Ltd. v. The Commissioner of Income-tax, Bombay North Ahmedabad)
Rule-14 of the amending notification dated 10.10.2008 (Annexure-37), repeals 1997 Rules, but preserves the acts done thereunder.
15. Mr. Ashok Kumar Jha appearing for respondent No. 8 submitted that he is neither a necessary nor a proper party, and has been needlessly impleaded as a party-respondent. He, therefore, does not wish to take any stand in the matter.
16. Mr. Ashok Kumar Singh appearing for respondent No. 25 submitted that the judgment in C.W.J.C. No. 5577 of 1997 has erred in holding that the tenure posting is 'normally for three years'. Relying on the document lays[k dated 27.2.1972 (Annexure-E-R/25), and the enclosures thereto, he submits that the officer has fixed tenure of three years, and any period beyond that shall not count for teaching experience. He, inter alia, relied on the following clause:
The post of Resident Officer will have a fixed tenure of three years and any additional period put in even in any exceptional circumstances shall not count towards teaching experience beyond the term of tenure.
He next submits that the judgment correctly lays down that all the officers working on the post under Rule-5 d of the Rules as on the date of promulgation of the Ordinance shall have the right of option. He also submits that, in the absence of specific provision in the Act or the Rules for determination of inter-se seniority, the omission can be provided by administrative instructions. He relies on the judgment reported in : A.I.R. 1972 S.C. 995 (Lalit Mohan Deb and Ors. v. Union of India and Ors.) , and : (2007) 10 S.C.C. 246 (M. Srinivasa Prasad and Ors. v. Comptroller & Auditor General of India and Ors.) .
17. Mr. R.K.P. Singh for respondent No. 24 (Dr. Binod Kumar) appeared and supported his counter affidavit.
18. Mr. Abhay Kumar Singh appears for respondent No. 31 (Vishnu Kant Pandey), as well as respondent No. 33 (Dr. Chandra Mohan Narayan), and submitted that the order of reference to the Division Bench is not in accordance with law and is invalid. He adopted the arguments advanced by learned Counsel for respondent Nos. 6 and 19. He next submits that the judgment in C.W.J.C. No. 5577 of 1997 is correctly decided except that those who were holding on to the post beyond the tenure cannot get the benefit of option in terms of Rule-5x. In other words, if the officer had exceeded his tenure as on the date of issuance of promulgation of the Rules, he will not be deemed to be ^^iwoZ ls dk;Zjr^^ officer within the meaning of Rule-5x. The officer must be holding on legally on the date of promulgation of the Rules. He relies on the following reported judgments:
(i) 1975 P.L.J.R. 384 (Bhagwanji Ram and Ors. v. Babu Sagir Ahmad and Ors.).
(ii) 1984 P.L.J.R. 407 (Janki Ram and Anr. v. Amir Chand Ram and Ors.)
C.W.J.C. No. 4488 of 2004:
19. Mr. Dinu Kumar for the petitioners submitted that petitioner No. 1 joined the teaching assignment on 29.5.1997, and petitioner No. 2 on 30.5.1997, in pursuance of the Government Notification No. 163 (17), dated 21.5.1997. Therefore, they will be deemed to be working on the date of promulgation of the Rules.
20. Mr. Narendra prasad appearing for respondent No. 5 (Dr. Nirmal Kumar Sinha), and respondent No. 14 (Vijaya Shankar Prasad), submitted that the writ petition is not maintainable because these petitioners were not working from before on the date of promulgation of 1997 Rules. They joined teaching assignments after promulgation of the Rules. For the rest he adopted his own arguments advanced in the analogous writ petition.
21. Mr. S.K. Ghose, learned Additional Advocate General No. 2, advanced common submissions in the two writ petitions. He submitted that validity of the Rules has not been challenged. The reference is invalid for various reasons. He next submits that, in view of the provisions of the Bihar and Orissa General Clauses Act, 1917, the Rules will be deemed to have been enforced with effect from 24.5.1997. He next submits that ^^iwoZ ls dk;Zjr^^, occurring in Rule-5 x, means actually working on 24.5.1997. He supports the judgment in C.W.J.C. No. 5577 of 1997, that the period spent beyond the tenure, and actually working on 24.5.1997, will enure to the benefit of the officer and will have the right of option provided he satisfies the other conditions, except cases of defiance and acting in disobedience of specific orders governing a particular case. He next submits that the petitioners of both the writ petitions are not qualified to opt because they were actually not working on 24.9.1997, and had joined later on.
22. We have perused the materials on record and considered the submissions of learned Counsel for the parties. Learned Counsel for the parties have advanced elaborate submissions in support of their respective stand on the merits of the matter, for example, with respect to the validity or otherwise of the impugned orders, the issues relating to inter-se seniority, maintainability of the writ petitions at the instance of the petitioners, etc. We have not felt the necessity of recapitulating the same, let alone the question of discussing them, in view of the nature of the order we are going to pass. We shall confine ourselves to the issues permissible for us to be decided and answered.
23. We would first deal with the question of maintainability of the reference to the Division Bench. Learned Counsel for respondent Nos. 6 and 19 is right in his submission that it is not open to a smaller Bench to disagree with the judgment of a larger Bench. The decision of a Bench is normally binding on another Bench of coordinate jurisdiction. However, it is open to a Bench to disagree with the decision of another Bench under certain circumstance, for example, with the aid of the Doctrine of Per Incuriam. It can also for stated reasons refer it for the consideration of a larger Bench. For example, a learned Single Judge can disagree with the judgment of another learned Single Judge and refer it to a Division Bench of two Judges for consideration. Reference may be made to the Division Bench judgment of this Court in Ram Sagar Pandey and Anr. v. The Anchal Adhikari and Ors. (Supra). The Division Bench discussed a large number of authorities to reach this conclusion. It can equally notice conflict of views in two or more decisions of different coordinate Benches and refer the same to a larger Bench for consideration. Complexity of an issue cannot be a ground for reference to a larger Bench.
24. The Supreme Court has held as follows in Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors. (supra) (paragraphs 10 & 11), the relevant portions of which are set out hereinbelow for the facility of quick reference:.When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice no authority of the Constitution or of the Charter of the High Court is needed and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A Single Judge does not by himself refer the matter to the Full Bench: he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer to the case; that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by Judges of that Court on the ground of some alleged irregularity in the constitution of the Full Bench.
(11) The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case : 1962-3 Guj L.R. 529 and of Macleod, C.J., in Haridass's case 23 Bom. LR 802 : AIR 1922 Bom. 149 (2) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of co-ordinate authority or of superior authority. Gajendragadkar, C.J., observed in Bhagwan v. Ram Chand C.A. No. 764 of 1964, D/- 1.3.1965 : : AIR 1965 SC 1767.It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.
25. It is equally clear from the authoritative pronouncements of the Supreme Court that such a reference can be made only after assigning reasons. The Supreme Court has held as follows in paragraph-3 of the judgment in Asstt. Collector of Estate Duty, Madras v. Devaki Ammal (Smt. ), Madras (Supra):
3. We are at a loss to understand how, once one Division Bench of a High Court has held a particular provision of law to be constitutional and not violative of Article 14, it is open to another Division Bench to hold that the same provision of law is unconstitutional and violative of Article 14. Judicial discipline demands that one Division Bench of a High Court should, ordinarily, follow the judgment of another Division Bench of that High Court. In extraordinary cases, where the latter Division Bench finds it difficult, for stated reasons, to follow the earlier Division Bench judgment, the proper course is to order that the papers be placed before the learned Chief Justice of the High Court for constituting a larger Bench. Certainly, where one Division Bench has held a statutory provision to be constitutional it is not open to another Division Bench to hold otherwise.
(Emphasis added)
A Division Bench of this Court had the occasion to apply the same in L.N. Mithila University and Ors. v. Mithila Minority Dental College and Ors. (Supra). It is thus well settled that a Bench can refer the issues for the consideration of a larger Bench in the aforesaid circumstances, and after assigning reasons.
26. Law is equally well settled that the larger Bench should consider and answer only the issue referred to it only to the extent of difference of views, and should thereafter remit it for decision on merits. The larger Bench would be acting beyond its jurisdiction if it disposes of the remaining issues on merit. The Supreme Court in its decision in Kesho Nath Khurana v. Union of India and Ors. (Supra), has observed as follows:.Now it is obvious that since only the aforesaid question of law was referred by the single Judge to the Division Bench, the Division Bench should have sent the matter back to the single Judge after deciding the question of law referred to them. But instead the Division Bench proceeded to dispose of the Second Appeal on merits and dismissed it with costs. We think that the Division Bench was in error in following this procedure. The Division Bench ought to have sent the appeal back to the single Judge with the answer rendered by them to the question referred by the single Judge and left it to the single Judge to dispose of the second appeal according to law.
Relying on the judgment of the Supreme Court in Kesho Nath Khurana v. Union of India and Ors. (Supra), the Supreme Court in T.A. Hameed v. M. Viswanathan (Supra), held as follows in paragraph-12 of the judgment:
12. In the case at hand also, almost an identical situation had taken place that a reference was made by the learned Division Bench of the Kerala High Court to the Full Bench and the Full Bench after answering the reference went on to decide the revision petition itself on merits, which the Full Bench had no jurisdiction to do as the revision petition was not referred to the Full Bench for decision. Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits. Consequently, we set aside that part of the impugned order dated 31.1.2003 whereby the Full Bench has dismissed the revision petition filed by the appellant herein.
It is thus well settled that the larger Bench should answer the question of law referred to it by the smaller Bench and should refer the matter back to the smaller Bench for decision on the remaining issues. This is for the further reason that the larger Bench should not deal with an issue of facts not dealt with by the smaller Bench, and also for the reason that the aggrieved party may be deprived of the right of appeal.
27. Let us apply the aforesaid principles to the issues referred by the learned Single Judge for the consideration of the Division Bench. We shall first of all deal with Item No. (2) which reads as follows:
(2) Whether the judgment delivered in C.W.J.C. No. 5577 of 1997 lays down the correct law with respect to defining a 'tenure post' or in fact whether the posts of Residents/Registrars of the hospitals is a tenure post?
The judgment in C.W.J.C. No. 5577 of 1997 was rendered by a learned Single Judge of this Court. It was, therefore, open to the learned Single Judge in the present case to disagree with the decision and refer it to the Division Bench for consideration. However, the learned Single Judge has undoubtedly erred in referring the issue to the Division Bench without assigning reasons for disagreement. The reference from this angle is surely bad in law. However, in the facts and circumstances of the present case, it may not be a wise exercise of discretion to refuse to answer the issue on this ground. It is open to us to remit the matter back to the learned Single Judge on the ground that reasons for disagreement have not been assigned which would only delay the matter, cause harassment to the parties, waste Court's time. We, therefore, proceed to decide the issue to save time and effort.
28. Two Letters Patent Appeals were preferred in this Court against the decision in C.W.J.C. No. 5577 of 1997. We have to consider the effect of the orders passed in the two appeals. The State of Bihar had preferred L.P.A. No. 243 of 1999 (The State of Bihar and Ors. v. The Junior Medical Teachers Association, Bihar and Ors.), which was disposed of as not pressed by the Division Bench by the following order dated 11.8.2004:
Mr. Ashok Kumar Singh, S.C.III, on the instruction of Mr. S.S. Verma, Secretary, Health Department, seeks permission to withdraw this appeal.
Accordingly, the L.P.A. is disposed of as not pressed.
Sd/- Nagendra Rai, ACJ
Sd/- S.N. Hussain, J.
The second letters patent appeal bearing L.P.A. No. 630 of 1999 (Dr. Bimal Chandra Jha and Ors. v. The Junior Medical Teacher' Association, Bihar and Ors.), was dismissed for non-prosecution by the following order dated 10.1.2008:
None appears on behalf of the parties. It appears that the appellants are no longer interested in pursuing this appeal any further. It is accordingly dismissed for non-prosecution.
Sd/- S.K. Katriar, J.
Sd/- Kishore K. Mandal, J.
In so far as the earlier appeal is concerned, the same was obviously not disposed of on merits. Reference may be made to the judgment of the House of Lords in Wilson v. Colchester Justices 1985 (2) All E.R. 97, wherein it has been held that the grant or refusal by an Appeal Committee of the House of Lords of leave to appeal to the House is in no way to be taken as implying disapproval or approval of the decision and the judgments of the Courts below. The relevant portions of the judgment are reproduced hereinbelow:.My Lords, before I do so there is, however, a matter of some general importance to which your Lordships would wish to advert. In one passage in his judgment Stephen Brown LJ appears to have thought that one reason for following the judgments of Woolf J and for accepting his reasons for not fully applying the principles enunciated by Lord Fraser in his speech in Forrest v. Brighton Justices was that an Appeal Committee of this House (which as it happens on that occasion included Lord Scarman and Lord Bridge) had refused leave to appeal in the Chichester case see (1982) 1 All ER 1000 at 1004 : (1982) 1 WLR 334 at 340.
Seemingly the Divisional Court felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespread in the profession. My Lords, if that were so, as my noble and learned friend Lord Diplock remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better. There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. Your Lordships' House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms. It is not difficult to find in the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which leave to appeal has been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong. But that of itself does not mean that the initial refusal of leave was wrong.
The Supreme Court quoted the same with approval in its judgment in Kunhayammed and Ors. v. State of Kerala and Anr. reported in : (2000) 6 S.C.C. 359 : 1986 P.L.J.R. (SC) 48, which, inter alia, dealt with the doctrine of merger. Therefore, the decision of the learned Single Judge in C.W.J.C. No. 5577 of 1997, cannot be held to have been affirmed by a Division Bench, particularly in a situation like the present one where the earlier appeal was, without any discussion at all, disposed of as not pressed, and the second one was dismissed for non-prosecution. The orders in the two appeals do not in the least strengthen the judgment in C.W.J.C. No. 5577 of 1997. The task has fallen to our lot.
29. We must also consider Chapter-V of the Rules of the High Court at Patna which is reproduced hereinbelow for the facility of quick reference:
CHAPTER V
Reference to a Full Bench
1. Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in any case a Division Bench differs from any other division Bench upon a point of law or usage having the force of law, such case shall be referred for decision by a Full bench.
2. If the case is an appeal from an appellate decree the Bench shall state the point or points which they desire referred or upon which they differ from the decision of the former Division Bench, as the case may be, and shall refer the appeal for the final decision of a Full Bench.
3. If the case is an appeal from an original decree or order the questions of law shall alone be referred, and a Full Bench shall return the case with an expression of its opinion upon the points of law for final adjudication by the Division Bench which referred it, and in case of necessity in consequence of the absence of any or either of the referring Judges, for the ultimate decision of another Division Bench.
Though Chapter-V deals with reference to a Full Bench, the same in principle and substance may govern a situation like the present one where the learned Single Judge had disagreed with the decision of another Single Judge. In other words, in case where a learned Single Judge differs from the decision of another learned Single Judge upon a point of law or usage having the force of law, such case can be referred to a Division Bench provided the Chief Justice consents. The scope of Chapter V was considered by a Division Bench of this Court in Ram Sagar Pandey v. The Anchal Adhikari (Supra). In that view of the matter, subject to other conditions, it was open to the learned Single Judge to disagree with the decision in C.W.J.C. No. 5577 of 1997, and refer it to a Division Bench for consideration. Indeed the Hon'ble the Chief Justice has consented for the same to be placed before a Division Bench. The present reference from this angle is, therefore, competent.
30. The issue relating to correctness or otherwise of the judgment in C.W.J.C. No. 5577 of 1997 primarily depends on interpretation of Rule 5 x of the Rules. The 1997 Rules create a separate cadre for the teaching faculty in the Medical Colleges of the Government of Bihar. In view of the terms of Rule-5 x, an officer who was working on a teaching assignment on the date of promulgation of the Rules, must satisfy four conditions to acquire the right of option, namely, (i) he must be working on a teaching assignment on the relevant date, (ii) he must show his willingness for absorption by submitting written option, (iii) he should possess the essential qualification, and (iv) he should have the requisite teaching experience. Once the four conditions are satisfied, the State Government has no discretion to disallow absorption of the officer in the teaching cadre of the medical colleges of the State of Bihar. No controversy has arisen before us as to the interpretation of the last three conditions. The question for decision is, as to who are those who were working on teaching assignments on the date of promulgation of the Rules.
31. Before we proceed further, we would like to decide one ancillary issue. Some controversy has arisen before us whether the 1997 Rules were promulgated on 21.5.1997 or 24.5.1997. The notification is dated 21.5.1997, and was published in the Extra-ordinary issue of Bihar Gazette on 24.5.1997 (Annexure-6). Learned Counsel for the parties have made submissions with respect to their respective stand. It appears to us that the issue is governed by Sections 6 and 7 of the Bihar and Orissa General Clauses Act, 1917 (hereinafter referred to as 'the Act'), and are reproduced hereinbelow for the facility of quick reference:
6. Coming into operation of Acts.- (1) Where any Bihar and Orissa Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor-General is first published in the (official Gazette) in pursuance of Section-81 of the Government of India Act, 1915.
(1-A). Where any Bihar Act is not expressed to come into operation on a particular day-
(i) In the case of a Bihar Act made before the commencement of the Constitution, it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, the Governor General or His Majesty, as the case may require, is first published in the official Gazette, and if it is an Act of the Governor of Bihar, on the day on which it is first published as an Act in the official Gazette;
(ii) In the case of a Bihar Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the official Gazette.
(2) Unless the contrary is expressed, Bihar and Orissa Act or Bihar Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
7. Printing of date on which Act is published.- In every Bihar and Orissa Act (or Bihar Act) the date of such publication as is mentioned in Section 6, Sub-section (1), shall be printed either above or below the title of the Act and shall form part of the Act.
On a plain reading of Section-6, it is evident that except where an express date is indicated in the legislation as to the date of its enforcement, the date of its publication in the official Gazette shall be the date on which the Act shall come into operation. It appears to us on a perusal of 1997 Rules that no date of its enforcement is mentioned in the body of the Rules. On the contrary, the preamble says that 'the Rules shall be deemed to be effective from the date of publication of notice...'. The notification was published in the official Gazette (Extraordinary issue) on 24.5.1997. Therefore, in view of the provisions of Section-6 of the Act, read with a clear statement in the preamble of 1997 Rules, 24.5.1997 shall be the date of enforcement of the Rules, and not 21.5.1997.
32. Two circulars of the State Government which are in the nature of administrative instructions and have a bearing on the question of Rule-5x must be noticed before we embark on interpretation of Rule5-x. The first one is No. 1/, 1-1-1-169-724(1)/Lok0, dated 15.7.1982 (Annexure-31), wherein the State Government directed as follows:
funs'kkuqlkj mi;qZDr fo'k; ij eq>s dqN dguk gS fd fopkjksijkUr iwoZ ds lHkh vkns'kks dks vodzfer djrs gq, ;g fu.kZ; fy;k x;k gS fd VsU;ksj inksa jsftMsUV@jftLVkj ij fpfdRlk egkfon~;ky;ksa esa inLFkkfir fpfdRld VsU;ksj dh vof/k lekIr dj ysus ds ckn Hkh rc rd mDr in ij cus jgsxs tc rd muds izfrLFkkuh ogka ;ksxnku ugh dj ysrs gSA
VsU;ksj lekfIr dh vof/k ds ckn dh vof/k ds ckn dh vof/k ds fy, mUgs dksbZ 'kS{kf.kd vuqHko ,oa 'kS{kf.kd HkRrk vuqekU; ugh gksxk ijUrq mDr vof/k esa mUgs fpfdRlk inkf/kdkjh dk osrukfn izkIr gksxkA
2& izfrLFkkuh ds ;ksxnku dj ysus ds i'pkr lEcfU/kr inkf/kdkjh viuk izHkkj lkSidj vxys inLFkkiu gsrq LokLF; funs'kky; esa ;ksxnku djsxsA
3& izf'k{k.k jf{kr inks ds fy, ;g O;oLFkk ekU; ugh gksxh vkSj ,slh inks ds fo:) izf'k{k.k izkIr dj jgs inkf/kdkjh;ks dks izf'k{k.k dh vof/k lekIr gksrs gh rqjar fojfer dj fn;k tk;sxk rkfd os vxys inLFkkiuk ds fy, LokLF; funs'kky; es ;ksxnku ns ldsA
The next one is numbered Lo0 l0181 (17) dated 31.5.1997, which was Annexure-3 to C.W.J.C. No. 5577 of 1997. The relevant portion of the same is reproduced hereinbelow for the facility of quick reference:
;g mYys[kuh; gS fd VsU;ksj in /kkjd viuk VsU;ksj lekIr gksrs gh vius ewy fcgkj LokLF; lsok lEoxZ eas Lor% okil gks tk;sxs lkFk gh fucU/kd ,oa vkoklh; fpfdRlk inkf/kdkjh ftUgksus vHkh viuk VsU;ksj iwjk ugh fd;k gS os vius&vius; in ij gh cus jgsxs u fd O;k[;krk ds :i esa lEifjofrZr gks tk;sxs A leifjorZu inks dk gksxk u fd in/kkjdks dk
In view of these two administrative instructions, the State Government gave a limited and restricted meaning to Rule-5x that all those on teaching assignments on 24.5.1997, who had completed their tenures earlier but were still continuing, shall not be given the benefit of option, and will be deemed in law not to be on a teaching assignment. Such action of the State Government was challenged in C.W.J.C. No. 5577 of 1997, and it was held that the administrative instructions (Annexure-3 thereto) was in violation of Article 309 of the Constitution. 1997 Rules have been framed under Article 309 of the Constitution. There is no intention in the Rules in general, and Rule 5x in particular, which may restrict the right of option to those of the officers who were actually functioning on a teaching assignment on 24.5.1997, beyond their tenure.
33. We entirely agree with the observations of the learned Single Judge that, in view of the provisions of Rule 5Xk, an officer had acquired the right of option subject to fulfillment of other conditions, if he was actually functioning on a teaching assignment on 24.5.1997, may be beyond their tenure, subject to one exception indicated hereinbelow. This view finds support from the expression'....iwoZ ls dk;Zjr^^, which means, particularly in the absence of any expression or intention occurring in the Rules contrary to the same, diluting the same, that all officers validly and lawfully functioning on teaching assignments on 24.5.1997 shall have the right of option. It equally follows that those who were not actually working on a teaching assignment on 24.5.1997, and had really joined at a later date even though transferred to such a teaching post by a transfer order of an earlier date, would not be entitled to the right of option. Such persons were not ^^iwoZ ls dk;Zjr^^. Had the intention been to restrict it, and assign it the meaning given under the aforesaid administrative instructions, the Legislature would have so stated in 1997 Rules in clear terms. We find no such restriction in Rule 5Xk. The two administrative instructions may have been entitled to its value in the absence of the Rules framed under Article 309 of the Constitution. Once the Rules have been enforced, the terms and conditions of the administrative instructions must give way to the statutory Rules. We, therefore, entirely agree with the view taken by the learned Single Judge in C.W.J.C. No. 5577 of 1997, that the right of option is available to those who were actually functioning on that date, subject to other conditions, with one exception indicated hereinbelow. Therefore, the administrative instructions Pro Tanto stands modified.
34. As stated hereinabove we must indicate the exception to the aforesaid proposition. There may be two kinds of cases where the officers may have been actually functioning in excess of their tenure on 24.5.1997. The first one may be the kind of cases where the officer was so working because he had not been transferred, i.e. for reasons attributable to the authorities. It would bear repetition to state that, if the Legislature intended to deny the benefit of option to those who were functioning beyond their tenure on 24.5.1997, nothing prevented the Legislature from incorporating such intention in clear terms in the Rules. The relevant portion of the aforesaid Government letter dated 31.5.1997 is objectionable also for the reason that it has been issued after 24.5.1997, and seeks to occupy a field covered by 1997 Rules, a subordinate legislation. The same has to be modified for this additional reason also. It is in such kind of cases that the officer shall get the benefit of option. The second category of cases would be such where the officer has continued beyond his tenure in defiance of a specific Government order with respect to an officer transferring him to a different place, or to hand over charge of the teaching assignment, no matter the successor had not been named. Such officers shall not get the benefit of option.
35. To conclude this part of the issue, we agree with the view taken in C.W.J.C. No. 5577 of 1997, with the exception indicated in the preceding paragraph, and also that 1997 Rules will be deemed to have been enforced with effect from 24.5.1997.
36. In so far as the remaining three issues referred by the learned Single Judge are concerned, the same are obviously incompetent and cannot be answered by the Division Bench. The same have been referred to a Division Bench in the absence of conflict of decisions of coordinate Benches, or disagreement of views with the decision of a Coordinate Bench. Complexity of issues can not be a ground to refer the same to a larger Bench. We, therefore, do not consider it proper or permissible to answer the same. The writ petitions go back to the learned Single Judge for decision in accordance with law.
Kishore Kumar Mandal, J.
I agree.