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1990 DIGILAW 203 (PAT)

Umesh Hazari v. State of Bihar

1990-05-16

G.G.SOHANI, S.N.JHA

body1990
S.N. JNA, J. This appeal under Clause 10 of the Letters Patent of the Patna High Court Rules has been filed against the judgment and order dated 24th July, 1986 passed by a learned Single judge of this Court in C.W.J.C, No. 866 of 1983 (R), The material facts giving rise to this appeal, in short, are that Respondent no. 2 filed the aforesaid writ application to issue a direction to the Respondent -nos. 1 to 3 of the aforesaid writ application to determine the inter se seniority of the writ petitioner vis a vis Respondent no. 4/appellant herein and after determining thereof direct the respondent to appoint the writ petitioner as Acting Headmaster of Shramik High School, Sikra. It was also prayed that the appointment of Respondent no. 4/appellant as Headmaster of the aforesaid High School be set aside by issuing a writ in the nature of quo warranto. 3. Respondent no. 4/appellant was appointed as Assistant Teacher in Bhurkunda High School in the year 1965. The post of Headmaster of Sirka High School was advertised and in pursuance thereof Respondent no.4 applied for the same. Writ petitioner/Respondent no. 2 joined the Sirka High School as Assistant Teacher on 15.2.1979 before the advertisement was made. Thereafter he was appointed as Acting Headmaster of the said School, which was then under the management of the Central Coal Fields Ltd. 4. It is an admitted position that the writ petitioner/Respondent no. 2 was, however not a candidate for the post of Headmaster which was advertised and he never applied for the same. 5. It appears that Sirka High School was given recognition and was taken over under the provisions of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Ordinance, 1980 (Ordinance No. 143 of 1980), by the State Government. After the school was taken over, a Notification was issued on 12th January, 1982., as contained in Annexure 6 to the writ petition, in which the writ petitioner/respondent no. 2, respondent no. 4/appellant and others were shown as Assistant Teachers, but Respondent no. 4/appellant was ordered to Act, as Acting Headmaster till permanent Headmaster was appointed. 6. Felt aggrieved, Respondent no. 4/appellant moved this Court in C. W. J. C. No. 3762 of 1983 challenging that part of the order contained in Annexure-6. by which he was described as the Acting Headmaster. 4/appellant and others were shown as Assistant Teachers, but Respondent no. 4/appellant was ordered to Act, as Acting Headmaster till permanent Headmaster was appointed. 6. Felt aggrieved, Respondent no. 4/appellant moved this Court in C. W. J. C. No. 3762 of 1983 challenging that part of the order contained in Annexure-6. by which he was described as the Acting Headmaster. The said writ application was allowed by a learned Single Judge of this Court vide judgment dated 19th December. 1983 and the authorities were directed to treat Respondent no. 4/appellant as the Headmaster of Sirka High School from the date of nationalisation of the said School. The authorities were further directed to make payment of his salary as Headmaster if he has not been paid before as such. The judgment and tile order of the said writ application became final as neither the State Government nor any person filed any appeal against the same. 7. Respondent no. 4/appellant appeared and filed a counter affidavit in C. W. J. C. No. 866 of 1983 (R) stating, inter alia, that there was no bar for him to apply for the post; that he had all the requisite qualifications for being appointed as the Headmaster; that offer was given to him and he joined as temporary Headmaster of Sirka High School on 6.3.1981. 8. The learned Single Judge while disposing of C. W. J. C. No. 866 of 1983 (R), out of which this appeal has arisen, formulated a point as to whether Respondent no.4/ appellant, at all could have been appointed as Headmaster because he had applied for the post of the Headmaster in Sirka High School rafter obtaining leave from the Bhurkunda High School, in which he was working as Assistant Teacher, and referred the matter to the Director, Secondary Education, to resolve the inter-se-seniority of the writ petitioner/Respondent no.2, vis-a-vis Respondent no. 4/appellant and other teachers of Sirka High School. It was also ordered that for this purpose the writ petitioner/ Respondent no. 2 will file a representation giving all the relevant facts after serving a copy of the same to Respondent No. 4/appellant and Respondent no. 4/appellant and Respondent no. 4/ appellant shall also file his statement within the time stipulated in the impugned judgment and order. It was also ordered that for this purpose the writ petitioner/ Respondent no. 2 will file a representation giving all the relevant facts after serving a copy of the same to Respondent No. 4/appellant and Respondent no. 4/appellant and Respondent no. 4/ appellant shall also file his statement within the time stipulated in the impugned judgment and order. The learned Single Judge also directed the Director, Secondary Education, or any other officer authorised by him to ignore the decision of the learned Single Judge of this Court given in C. W. J. C. No. 3762 of 1983, filed by Respondent no. 4/appellant in view of the Full Bench decision reported in AIR 1986 Patna 218 (Ram Ballabh Prasad Singh Vs. State of Bihar). Aggrieved by the judgment passed by the learned Single judge, Respondent no. 4 has preferred this Letters Patent Appeal. 9. Miss Indrani Chaudhary, learned counsel appearing on behalf of the appellant, contended that the learned Single Judge has committed an error of law in asking the Director, Secondary Education, to ignore the judgment and order passed by a learned Single Judge of this Court in C.W.J.C. No. 3762 of 1983, wherein Respondent no. 4/appellant was declared to be the Headmaster of Sirka High School from the date of its nationalisation. 10. On the other hand, it was contended on behalf of the writ petitioner/respondent No. 2 by Mr. V. Shivnath that since the writ petitioner/respondent no. 2 was not a party in the aforesaid C.W.J.C. No. 3762 of 1983, therefore, that judgment is not binding upon him. It was also contended that the appointment of Respondent no. 4/appellant as the Headmaster was not in accordance with law. Therefore, it was contended, that the learned Single Judge has rightly disposed of the writ application by directing the Director, Secondary Education to resolve the dispute and determine the inter se seniority between the parties. 11. On behalf of the State it was fairly conceded that the decision given in C. W. J. C. No. 3762 of 1913 has attained finality so far as Respondent no. 4/appellant is concerned and this part has been over looked by the learned Single Judge. 12. The Full Bench decision in the case of Ram Ballabh Prasad Singh (Supra) has not over ruled the decision given by this Court in C. W. J. C. No. 3762 of 1983. 4/appellant is concerned and this part has been over looked by the learned Single Judge. 12. The Full Bench decision in the case of Ram Ballabh Prasad Singh (Supra) has not over ruled the decision given by this Court in C. W. J. C. No. 3762 of 1983. Therefore, any direction given in the said case is binding upon the State authorities even if the writ petitioner/respondent no. 2 was not a party to the said writ application. The State never moved against the aforesaid decision in the higher court to set aside the said decision. Therefore, that decision still holds good and is binding upon the State Government if the impugned judgment will be allowed to stand, then there would be two conflicting decisions of this Court. A learned Single Judge cannot sit over the judgment of another learned Single Judge of the same High Court if the learned Single Judge would have not agreed with the view of another learned single Judge of the same High Court, he should have referred the matter to a Larger Bench. It is well settled that only a Larger Bench can over rule the view of the Smaller Bench. In that view, of the matter, I am not the opinion that the learned Single Judge was not at all justified in law in directing the State authorities to ignore the decision of a learned Single Judge of this Court given in C. W. J. C. No. 3762 of 1983 while disposing of C. W. J. C. No. 866 of 1983 (R), out of which this Letters Patent Appeal has arisen. 13. In this connection reference may be made to a decision in the case of Ayyaswami Gounder Vs. Munnuswamy Gounder ( AIR 1984 SC 1789 ), where the Hon'ble Supreme Court held as follows: “If the learned single judge did not agree with that decision he should have referred the matter to a larger Bench and the judicial propriety or decorum did not warrant holding contrary to the decision of the same High Court by him." 14. In view of the aforesaid decision, it must be held that the learned single Judge was not at all justified in law in asking the State authorities to ignore the decision of the learned Single Judge given in C. W. J. C. No. 3762 of 1983. 15. In view of the aforesaid decision, it must be held that the learned single Judge was not at all justified in law in asking the State authorities to ignore the decision of the learned Single Judge given in C. W. J. C. No. 3762 of 1983. 15. So far as the issuance of a writ of quo warranto is concerned, no case has been made out for issuance of such writ. It is well known that quo warranto lies to test the validity of any appointment of any person to a public office, and if any person bas wrongfully usurped the office, the court can issue such writ. But in the instant case, the validity of the appointment cannot be looked into because it has been approved by this court in C. W. J. C. No. 3762 of 1983, referred to above. This court under writ jurisdiction cannot quash the appointment by issuance of a writ of quo warranto which has attained the finality. 16. For tile reasons stated above the appeal is allowed and the impugned judgment and order dated 24th July, 1986 passed in C. W. J. C. No. 866 of 1986 (R) is hereby set aside and consequently, the writ petition, aforesaid, is also dismissed. It is directed that the appellant shall now be put to his original post and status as the Headmaster of the Sirka High School from the date of its nationalisation, as ordered earlier by the learned Single Judge of this Court in C. W. J. C. No. 3762 of 1983. However, in the facts and circumstances of this case, there will be no order as to costs. AS. Appeal allowed and C.W.J.C. dismissed.