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2019 DIGILAW 388 (UTT)

SOMPRAKASH v. STATE OF UTTARAKHAND

2019-07-02

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) Heard Dr. Kartikey Hari Gupta, learned counsel for the petitioner and Mr. B.S. Parihar, learned Standing Counsel for the State Government and, with their consent, the Writ Petition is disposed of at the stage of admission. 2. The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondents to approve appointment of the petitioner in the post of Principal, Inter-college, Kanadakhal Langoor by approving the Management Committee's proposal dated 28.09.2018 in compliance with the amended second proviso to Rule (2)(1) of the Uttarakhand School Education Council Regulations, 2009, as amended on 25.04.2018. 3. The petitioner had earlier invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 79 of 2019, wherein he had sought a direction to the respondents to issue a letter of approval/deemed approval of the Management Committee's proposal dated 28.09.2018 in compliance with Chapter 2(2)(d) of the Uttarakhand School Education Council Regulations, 2009, as amended by the Regulations dated 25.04.2018. A Division Bench of this Court, after taking note of the contentions, held that they were not inclined to express any opinion as to whether the petitioner must be deemed to have been appointed as a Principal, merely because the proposal made by the Committee of Management, for his appointment as a Principal, was not rejected within one month of its receipt by the Additional Director, more so as the writ petition was being disposed of, with the consent of the learned counsel on either side, at the stage of admission. The writ petition was disposed of directing the Additional Director, School Education to pass orders on the proposal submitted by the Committee of Management, for appointment of the petitioner as the Principal of the Inter-College Kandakhal (Langoor), Pauri Garhwal, within three weeks from the date of receipt of a certified copy of the order. 4. The petitioner made a representation to the Additional Director, School Education who, by Office Memorandum dated 24.04.2019, disposed of the petitioner's representation holding that promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order, and the provisions of the Uttaranchal School Education Act, 2006 (for short the “Act). 4. The petitioner made a representation to the Additional Director, School Education who, by Office Memorandum dated 24.04.2019, disposed of the petitioner's representation holding that promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order, and the provisions of the Uttaranchal School Education Act, 2006 (for short the “Act). The Additional Director, School Education took note of the order passed by a learned Single Judge of this Court, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, and observed that the High Court had clarified, in the said judgment, that the selection procedure, provided for the post of Principal in the Uttarakhand School Education Act, 2006, and arrangement of downgrade principal provided through amendment dated 18.10.2011 in the 2009 Regulations, were contradictory to each other; and the Court gave primacy to the 2006 Act over the amendment to the 2009 Regulations, it had quashed the Regulations, and had suggested to the Government to carry out appropriate amendment in tune with Section 36(2) of the original Act, which was in regard to direct recruitment of Principal. 5. The third respondent further held that, while the High Court had quashed the amendment dated 18.10.2011, the applicant had requested for promotion to the post of downgrade Principal on the basis of the second amendment, to the 2009 Regulations, by the notification dated 25.04.2018; the notification dated 25.04.2018 had been issued, like the Government notification dated 18.10.2011, without proper amendment in the original Act of 2006; and, in the light of the aforesaid arrangements, promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order. 6. In his order, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, the learned Single Judge took note of the provisions of Sections 36(2) and 39 of the Act which empowers the State Government to frame Regulations for determining the conditions of service of the Head of the Institutions, teachers and other employees. 6. In his order, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, the learned Single Judge took note of the provisions of Sections 36(2) and 39 of the Act which empowers the State Government to frame Regulations for determining the conditions of service of the Head of the Institutions, teachers and other employees. While noting that the State Government had framed the 2009 Regulations, and Regulation 10 had been framed strictly as per Section 36(2) of the Act, the learned Single Judge opined that the notification, in issue, was issued on 18.10.2011 whereby amendment had been made to the Regulations, without making any corresponding amendment to the Parent Act to the effect that those teachers, who have put in 10 years of regular service, would be appointed as downgrade Principals/Headmasters, and, after permitting them to work for another five years as downgrade Principal/Head Masters, they would be appointed as regular Principals/Head Masters. 7. The learned Single Judge opined that there was a conflict between the Act and the Regulations; it was settled law that, if there was a conflict between the Act and the Regulations, the Act would prevail; it was always open to the State Government, in its wisdom, to amend Section 36(2) of the Act which talked about direct recruitment; and the State Government had not taken recourse to amend the Act, but had amended the Regulations on 18.10.2011 in contradiction to the Act. The writ petition was allowed and the 2011 Regulations, as amended by notification dated 18.10.2011, were quashed. 8. The petitioner herein was not a party to Writ Petition (S/S) No. 2211 of 2016. Dr. The writ petition was allowed and the 2011 Regulations, as amended by notification dated 18.10.2011, were quashed. 8. The petitioner herein was not a party to Writ Petition (S/S) No. 2211 of 2016. Dr. Kartikey Hari Gupta, learned counsel for the petitioner, would draw our attention to the 2018 amendment to the 2009 Regulations, vide notification dated 25.04.2018, whereunder, after the proviso to Regulation 2(1) of the Uttarakhand School Education Council Regulations, 2009, it is laid down that, likewise for promotion to the post of Principal at Inter Level, such regular senior most teachers of the concerned school, who are eligible as per Schedule “A" of Chapter 2 of the Regulations, when they get selection grade after 10 years of ordinary grade, and if their work and conduct is satisfactory, they would then be promoted to the post of downgrade Principal, while giving them downgrade pay-scale of Principal; and, after completing 5 years in downgrade, the pay-scale of the Principal would be allowed. 9. This amendment to the 2009 Regulations, by notification dated 25.04.2018, was not, and could not have been, the subject matter of the order of the learned Single Judge in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018. The third respondent has, however, applied the law laid down in the aforesaid judgment, while dealing with the 2018 amendment to the 2009 Regulations also, holding that, in terms of the said judgment, the 2018 amended Regulations fell foul of the 2006 Act. 10. Dr. Kartikey Hari Gupta, learned counsel for the petitioner, would submit that the order, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, is a judgment rendered sub-silentio as it was passed without analysing Section 36(2), and is contrary to the plain meaning of the said provision; and, since the learned Single Judge did not examine its scope, the said order would not bind a subsequent Bench, much less a Division Bench of this Court. 11. Section 36 of the Act prescribes the procedure for selection of teachers and heads of institutions. 11. Section 36 of the Act prescribes the procedure for selection of teachers and heads of institutions. Section 36(2) stipulates that every post of Head of the Institution or teacher of an institution shall, except to the extent prescribed for being filled up by promotion, be filled up by direct recruitment after intimation of the vacancy to the District Education Officer, and obtaining approval of the District Education Officer for advertising, and advertisement of, the vacancy containing such particulars as may be prescribed, in at least two daily newspapers having wide circulation in the State. Section 39(1) of the Act requires every person employed in a recognized institution to be governed by such conditions of service as may be prescribed by Regulations, and Section 39(2) of the Act stipulates that, without prejudice to the generality of the powers conferred by sub-Section (1), the Regulations may provide for (a) to (e) thereunder. 12. Section 36(2) requires every post of the Head of the Institution to be filled up by direct recruitment, except to the extent prescribed. The word “prescribed" has been defined under Section 2(m) of the Act to mean prescribed by Regulations under the Act. Consequently, Section 36(2) requires the post of the Head of the Institution to be filled up by direct recruitment save to the extent prescribed by Regulations. The 2018 amendment to the 2009 Regulations prescribes the manner in which the post of the Head of the Institution is required to be filled up by promotion. To the extent that the 2018 Regulations so provides otherwise, Section 36(2) of the Act does not require the post of the Head of the Institution to be filled up by way of direct recruitment. 13. While the learned Single Judge was justified in holding that a Regulation cannot fall foul of the Parent Act, the fact remains that the Parent Act itself provides that the post of the Head of the Institution shall be filled up by direct recruitment, except to the extent prescribed under the Regulations; and, in terms of the 2018 amendment to the 2009 Regulations, the post of Principal is required to be filled up by promotion, and on fulfilment of the conditions stipulated therein. 14. 14. It is not known how the third respondent, on being directed to consider the petitioner's representation, could have conferred upon himself the power to decide the constitutionality of the 2018 amendment to the 2009 Rules, and act contrary thereto, relying on the order of the learned Single Judge, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, which did not even relate to the 2018 amendment to the 2009 Regulations. In examining the constitutionality of a statute or a statutory Rule, it must be assumed that the legislature or the Rule making authority understands and appreciates the need of the people, and the laws/Rules it enacts are directed to problems which are made manifest by experience, and that the laws/Rules are enacted which are considered to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment or a Rule. (Charanjit Lal Chowdhuri v. Union of India (1950) SCR 869; State of Bombay v. F.N. Bulsara (1951) SCR 682; Mahant Moti Das v. S.P. Saki AIR 1959 SC 942 ; Hamdard Dawakhana v. Union of India (1960) 2 SCR 671 : AIR 1960 SC 554 : 1960 Cri LJ 735. As the presumption is always in favour of the constitutionality of an enactment or a statutory Rule, the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The burden of proving all the facts, which are requisite for the constitutional invalidity, is thus upon the person who challenges the constitutionality. (Ranga Reddy District Sarpanches Association v. Government of A.P. 2004 (1) ALT 659 ; Karnataka Sugar Workers Federation, Bangalore v. State of Karnataka 2003 (4) KLJ 453 : (Karnataka High Court FB); State of Jammu and Kashmir v. T.N. Khasa AIR 1974 SC 1 ). It is only when there is a clear violation of a constitutional provision beyond reasonable doubt, that the court should declare a statutory provision, be it plenary or subordinate, to be unconstitutional (Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33 ; Govt. of A.P. v. P. Laxmi Devi 2008 28 JT 639). 15. It is only when there is a clear violation of a constitutional provision beyond reasonable doubt, that the court should declare a statutory provision, be it plenary or subordinate, to be unconstitutional (Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33 ; Govt. of A.P. v. P. Laxmi Devi 2008 28 JT 639). 15. Since there is a presumption regarding the constitutionality of subordinate legislation also, this Court would not, in the absence of a specific challenge thereto, strike down a Regulation on the premise that the Regulations fall foul of the provisions of the Parent Act. In the absence of any challenge to its validity, the Regulations made under the Act must be read harmoniously with the provisions of the Act. It is indeed disconcerting that the 3rdrespondent should arrogate to himself the power of determining the constitutional validity of the 2018 amendment to the 2009 Regulations, when even this Court would not undertake such an exercise in the absence of any challenge thereto. 16. On the question whether the order passed in Writ Petition (S/S)No.2211 of 2016 dated 25.04.2018 constitutes a binding precedent, it must be borne in mind that a precedent ceases to be a binding precedent when it is sub-silentio or when it is rendered per-in curiam. (Commissioner of Income-tax v. B.R. Constructions (1941) 2 All ER 11). The Latin expression per-in curiam means through inadvertence. (Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh AIR 1962 SC 83 ). ‘Incuria' literally means ‘carelessness'. The ‘quotable in law' is avoided and ignored if it is rendered ‘in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd. (1989) 1 SCC 101 ). This principle has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution of India which embodies the doctrine of precedents as a matter of law. (State of Uttar Pradesh v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139 ). A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. A judgment delivered without argument and without reference to the relevant statutory provisions is not binding. (Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101 ). A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. A judgment delivered without argument and without reference to the relevant statutory provisions is not binding. (Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101 ). Where by obvious in advertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of a binding precedent. (Mamleshwar v. Kanahaiya Lal AIR 1967 SC 1480 ; Morelle v. Wakeling (2009) 6 SCC 379 ). 17. Another exception to the rule of precedents, is the rule of sub-silentio. “Adecision passes sub-silentio, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). A decision rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority' is not a binding precedent. (Lancaster Motor Company (London) Ltd. v. Bremith Ltd. (1941) 2 All ER 11). ‘Precedents sub-silentio and without argument are of no moment'. A decision, which is neither founded on reasons nor it proceeds on a consideration of an issue, cannot be deemed to be a law declared to have a binding effect. That which escapes in the judgment without any occasion is not the ratio decidendi. A decision is binding not because of its conclusions but in regard to its ratio, and the principles laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be the declaration of law or authority of a general nature binding as a precedent. (Jaisri Sahu v. Rajdewan Dubey AIR 1962 SC 83 ; Gurnam Kaur[14]; B. Shama Rao v. Union Territory of Pondicherry AIR 1967 SC 1480 ; Synthetics and Chemicals Ltd.[13]). Uniformity and consistency are undoubtedly the core of judicial discipline. But that which escapes in the judgment without any occasion is not the ratio decidendi. (Synthetics and Chemicals Ltd.[13]; Gurnam Kaur[14]). A mere direction of the Court without considering the legal position is not a precedent. (Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 ). Uniformity and consistency are undoubtedly the core of judicial discipline. But that which escapes in the judgment without any occasion is not the ratio decidendi. (Synthetics and Chemicals Ltd.[13]; Gurnam Kaur[14]). A mere direction of the Court without considering the legal position is not a precedent. (Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 ). The view, if any, expressed without analysing the statutory provision cannot be treated as a binding precedent. (N. Bhargavan Pillai v. State of Kerala (2004) 13 SCC 217 ). 18. In his order, in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, the learned Single Judge has not examined the scope and purport of Section 36(2) of the Act, and has proceeded on the premise that Section 36(2) of the Act requires the post, of the Head of the Institution, to be filled up only by way of direct recruitment. The order in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, wherein the views expressed were without analysing the scope and ambit of Section 36(2) of the Act, is an order passed sub silentio. 19. We, therefore, hold that the law declared by the learned Single Judge, in his judgment in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, does not constitute good law, and has no binding effect. As the only basis, on which the impugned order was passed, is that the learned Single Judge, in his order in Writ Petition (S/S) No. 2211 of 2016 dated 25.04.2018, has held that the 2011 amendment to the 2009 Regulations was hit by Section 36(2) of the Act, and a similar conclusion would ensue to the 2018 amendment to the 2009 Regulations also, the impugned order is set aside. The third respondent shall consider the matter afresh in the light of the observations made here in above, and in accordance with law, with utmost expedition; and, in any event, within three weeks from the date of production of a certified copy of this order. 20. The Writ Petition is, accordingly, disposed of. No costs.