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Madhya Pradesh High Court · body

2007 DIGILAW 101 (MP)

Ashok Bisen v. State of M. P.

2007-01-23

R.K.GUPTA

body2007
ORDER 1. Petitioners by way of this application before the Tribunal have prayed that a writ of mandamus be issued to the respondents to find out the vacant posts available for the promotion of applicants against 50% quota in Science subject and thereafter to consider them for promotion against said quota. It has also been prayed that if the applicants are found fit for promotion, they be given promotion along with other benefits. The aforesaid claim of the petitioners is based upon circular of the State Government dated 20th January, 1987, which is Annexure A-2 to the petition. It is seen that the circular which is sought to be enforced by the applicants has already been withdrawn by the State Government by passing an order on 5.5.1988. The said circular is also placed on record. 2. Put the record straight, on the date when these two cases were listed, three more cases were listed i.e. WP No. 12106/2003. WP No. 12107/2003 and WP No. 12595/2003. Though the said cases were listed for hearing in list No.2 i.e. final hearing list but these two cases were taken along with the aforesaid three cases. In the said cases the State Government has filed a return stating that circular dated 20th January 1987 has been withdrawn by the State Government in pursuance to the circular dated 5.5.1988. 3. Counsel for the respondent relied upon the return filed in the aforesaid three cases for the purposes of these two cases, therefore, the return filed in the aforesaid three cases was referred to in these two cases. In the aforesaid three cases the counsel appearing in the three cases has also withdrawn the petition with a liberty to challenge the legality of the circular dated 5.5.1988. 4. The question in the present case is when the State Government has already withdrawn the circular dated 20th January, 1987 by issuing subsequent circular on 5.5.1988 the relief as such whether still can be granted by this Court to the petitioners even though they have not challenged the circular dated 5.5.1988 in the case. In the present case legality and validity of the circular dated 5.5.1988 has not been challenged and the circular dated 20th January, 1987 which is cancelled is sought to be enforced by claiming promotion against 50% vacancies. In the present case legality and validity of the circular dated 5.5.1988 has not been challenged and the circular dated 20th January, 1987 which is cancelled is sought to be enforced by claiming promotion against 50% vacancies. The learned counsel for the petitioners submitted that the Tribunal in its judgment dated 5.8.1999 has already conferred benefit of this circular dated 20.1.1987. The facts of the case decided by the Tribunal, copy of which has been placed on record as Annexure A-3, are that the grievance of the said petitioners was before the Tribunal that earlier they were given promotion in pursuance to the said circular and their promotion was cancelled by orders dated 12.8.1987 and 17.8.1987 which were challenged before the Tribunal thus on the date when the promotion of the said petitioners was cancelled the circular dated 5.5.1988 was not issued by the State Government. Though it is true that on the date when the Tribunal decided the case on 5.8.1999 (Annexure A-3) the circular was not even brought to the notice of the Tribunal, and therefore, the Tribunal keeping in view the earlier promotion order which was issued to the petitioners in the said case, which subsequently was cancelled, was the subject matter in the Tribunal, and on the basis of these facts as discussed hereinabove, the legality and validity of circular dated 5.5.1988 was not in question and considered by the Tribunal in its judgment, and under the circumstances the judgment of the Tribunal cannot be said to be made or applied in the case of the present petitioners. The present case, when was filed, the circular dated 5.5.1988, was issued, by which the circular dated 20.1.1987 stands cancelled. 5. The legality of this circular since is not challenged therefore the effect of the circular dated 5.5.1988 continues to be there. The Division Bench of this Court has held in Union of India and another v. Central Government Industrial Tribunal cum Labour Court, 724, Napier Town, Jabalpur and another [ 1980 JLJ 310 = 1979 MPLJ 808 ] in para 4 and 5, that until the order is challenged and quashed the effect continues to be there. Even though the order is abnitio at this Court, this Court cannot ignore the said order while dealing with the case. 6. Even though the order is abnitio at this Court, this Court cannot ignore the said order while dealing with the case. 6. The learned counsel for the petitioners further submitted a judgment passed by this Court which is reported in 2004 (2) MPHT 3 (NOC): Indraveer Singh Tomar v. State of M.P. and others. The judgment which has been cited by the High Court relates to the grant of promotion in terms of the circular issued by the State Government. In the said judgment also the circular dated 5.5.1988 was not brought to the notice of learned Single Judge and learned Single Judge directed to implement the judgment passed in TA No. 112/1993 on 5.8.1999. Thus the judgment of the High Court is distinguishable on facts for the reasons that in the present case as it is seen that the State Government has brought to the notice of this Court the circular dated 5.5.1988 by which circular dated 20.1.1987 has been cancelled. In this circular dated 20th January, 1987 a policy was made to provide promotional avenues to science teachers against vacant posts up to the extent of 50%. The petitioners have not chosen to challenge the circular dated 5.5.1988 inspite of the fact that a pertinent question was asked to the learned counsel appearing for the petitioners that whether he would like to challenge the circular dated 5.5.1988 but he has expressed his unwillingness to challenge the said circular. 7. The apex Court in Uttaranchal Road Transport Corporation and others v. Mansaram Nainwal [ AIR 2006 SC 2840 ] in para 13 has held as under: "13. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the Court held that reinstatement was mandated. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent features. It is not everything said by a Judge while giving judgment that constitutes a percent. The only things in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. A decision is a precedent features. It is not everything said by a Judge while giving judgment that constitutes a percent. The only things in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential : An inferential finding of facts is the interference which the Judge draws from the direct or perceptible facts: (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; (iii) judgments based on combined effect of the above. A decision is an authority for what it actually decided. What is of the essence in a decision is its ratio and every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. See State of Orissa v. Sudhansu Sekhar Misra and others [ AIR 1968 SC 647 ] and Union of India and others v. Dhanwanti Devi and others [ 1996 (6) SCC 44 ]. A case is a precedent and binding for what is explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. On Quinn v. Leathem [(1901) AC 495 (HL)]. Earl of Halsubury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what is actually decides." 8. In view of the aforesaid no case for interference is made out and petition stands dismissed. However, it is made clear that in case the petitioners still fee to challenge the legality and validity of the circular dated 5.5.1988, then the petitioners shall be free to challenge the said circular without prejudice to the present judgment.