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IN THE HIGH COURT OF JUDICATURE AT PATNA
R.M. DOSHIT, MIHIR KUMAR JHA & ASHWANI KUMAR SINGH, JJ.
Kalpana Rani - Respondent No.9-Appellant
Versus
The State of Bihar, through the Principal Secretary, Human Resources Development Department, Government of Bihar & Ors. - Petitioner-Respondent
Letters Patent Appeal No. 1569 of 2010 In Civil Writ Jurisdiction Case No. 12054 of 2010 With Interlocutory Application No. 8759 of 2010 In Letters Patent Appeal No.1569 of 2010
Decided on: 15th May, 2014
Interpretation of Statute-Doctrine of Judicial obstinacy-Judicial obstinacy can be treated as a form of judicial bias-If a judgment is over-ruled by the higher court, the judicial discipline requires that the judge, whose judgment is overruled, must submit to that judgment-He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the overruled judgment-Even if it was a decision on a pure question of law, which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court, which has overruled that judgment, not only binds the parties to the proceedings but, also the judge who had earlier delivered that decision-In the present case however, merely because Hon’ble the Chief Justice has been party to the earlier Division Bench in the case of Smt. Renu Kumari Pandey, will be no reason for her to rescue herself, specially the view taken by the Division Bench in the case of Smt. Renu Kumari Pandey even after its being assailed before the Appex Court was not interfered. (Paras 71 & 75);
Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006-Rule 20(iii)-Absorption of Panchayat Shiksha Mitra as Panchayat Teacher-Jurisdiction of District Magistrate to review his order-By earlier order dated 12.7.2007, the District Magistrate held that the appellant on account of abolition of the post of Panchayat Shiksha Mitra could not be appointed whereas in his subsequent order dated 26.6.2010, he, having held initial engagement of the writ petitioner as Panchayat Shiksha Mitra to be bad, had passed an order for his removal from the post of Panchayat Teacher on which he had already been absorbed with effect from 1.7.2006 and had also gone to issue a direction in the same order dated 26.6.2010 for appointing the appellant as Panchayat Shiksha Mitra-The order of the District Magistrate dated 26.6.2010 is wholly without jurisdiction-It is well settled that the power of review is a creature of statute and cannot be exercised by any authority in absence of such power being vested in him. (Paras 90 & 95)
Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006-Rule 20 (1)-Repeal of State Government Resolution dated 21.6.2002 regarding engagement of Panchayat Shiksha Mitra-The said Resolution being purely in the nature of executive instruction, Section 6 of the general clauses Act which is pari materia Section 8 of the Bihar and Orissa general Clauses Act is not applicable and the impugned order dated 26.6.2010 will not be saved. (Paras 100 & 101)
2009(2) PLJR, 2011(4) PLJR 297; 1986 PLJR 1119; (1998)5 SCC 513; 2006 (3) SCC 354; 2007 (4) PLJR (SC) 209; (2009) 9 SCC 447; (2010)11 SCC 455; (2013)5 SCC 1; 2003(2) PLJR 305; 2008(1) PLJR 31; 2008(2) PLJR 458; 2009 (2) PLJR 869; 2009(2) PLJR 929; 2010 (2) PLJR 241, 2011(4) PLJR 297; 2012(1) PLJR 107; 2012 (1) PLJR 585; 2012 (2) PLJR 317; 2012 PLJR 261; 2013(3) PLJR 506; (2006) 6 SCC 258; AIR 1932 Lahore 485 (F.B.), Writ Petition (Criminal) No. 57 of 2014 dt. 6.5.2014) (S.C.); (1984)4 SCC 103; 77 ER 646; (1852)3 HLC 759; AIR 1957 SCC 425; AIR 1965 SC 1096; AIR 1958 SC 86; AIR 1960 SC 468; AIR 1963 SC 1719; AIR 1970 SC 150; AIR 1981 SC 2181; AIR 1987 SC 454; AIR 1987 SC 877; AIR 1989 SC 2218 (1963)2 AII ER 66; AIR 1959 SC 308; AIR 1988 SC 1099; AIR 1988 SC 2232; (2000) QB 451; (1951) 343 45 451; AIR 1973 MP 104; 1991 Supp (2) SCC 733; 1985 PLJR 640; 1977 BBCJ 442; 1985 PLJR 58; 1982 PLJR 159; 1985 PLJR 101; 1984 PLJR 209; 1987 PLJR 47; 1980 BBCJ 344; 2013 (2) PLJR 897; 2013(4) PLJR 66 AIR 1959 SC 694; AIR 1965 SC 1196; 1973 (1) SCC 461; 1988 PLJR 715; (1961) 2 AII. E.R. 721; (1980)1 SCC 149; 1985 A.C. 425; (1971) S.C. 924; 2008(3) PLJR 470-Referred
This Appeal under Clause 10 of the Letters Patent preferred by the respondent no.9 arises from the judgment and order dated 16th September 2010 passed by the learned single Judge in CWJC No.12054 of 2010.
2. The matter relates to appointment of Panchayat Shiksha Mitra under the Gram Panchayat Mohiuddinpur, P.S. Hansa, District-Samastipur under the then prevalent Scheme (hereinafter referred to as “the Scheme”) and absorption as Panchayat Teacher under the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as “the Rules of 2006”).
3. The respondent no.10 Prashant Kumar approached this Court under Article 226 of the Constitution in CWJC No.12054 of 2010 to challenge the order dated 26th June 2010 made by the District Magistrate, Samastipur in Miscellaneous Case No.1 of 2010 and the order of cancellation of his appointment made by the Gram Panchayat on 1st January 2009.
4. It appears that as early as in April 2003, the writ petitioner was appointed as Panchayat Shiksha Mitra under the Scheme. His appointment as Panchayat Shiksha Mitra was continued from time to time. Thus the petitioner continued till 1st July 2006. On 1st July 2006, the petitioner, by operation of Rule 20 (iii) of the Rules of 2006 came to be absorbed as Panchayat Teacher.
5. Since his absorption as Panchayat Teacher on 1st July 2006, his appointment came to be questioned by the Block Development Officer at the instance of the appellant. After several rounds of litigations and representations by the appellant, under the order made by the District Magistrate on 26th June 2010, the appointment of the petitioner as Panchayat Shiksha Mitra came to be cancelled and a direction was issued to appoint the appellant as Panchayat Teacher.
6. Feeling aggrieved the petitioner approached this Court under Article 226 of the Constitution in above CWJC No.12054 of 2010. The learned single Judge has, following the judgment in the matter of Alok Kumar & Ors Vs. State of Bihar and others [2009 (2) PLJR 929], allowed the writ petition and has set aside the order of the District Magistrate. Therefore, this Appeal by the respondent no.9.
7. Since the impugned judgment passed by the learned single Judge, a Division Bench of this Court (to which one of us, the Chief Justice was a party) has, in the matter of Smt. Renu Kumari Pandey & Ors. Vs. The State of Bihar & Ors. [2011 (4) PLJR 297], held that on and after 1st July 2006 the cadre of Panchayat Shiksha Mitra stands abolished; no further appointment, therefore, can be made to the post of Panchayat Shiksha Mitra; the Panchayat Shiksha Mitras absorbed as Panchayat Teacher by operation of Rule 20(iii) of the Rules of 2006 are governed by the Rules of 2006. Their service cannot be terminated in any manner or for any reason other than the ones prescribed under the Rules of 2006. It has also been held that the District Magistrate was not an authority competent to entertain and decide the grievances in respect of the Panchayat Shiksha Mitra and is not an authority competent to entertain and resolve the disputes in relation to appointment, termination of service etc. of the Panchayat Teachers.
8. This Appeal came up for hearing before the Bench of this Court (Coram: Mr. Justice Shiva Kirti Singh, as he then was and Mr. Justice Shivaji Pandey) on 28th September 2011. On the submissions made by the learned counsel for the appellant, under order dated 28th September 2011 the Appeal was directed to be heard by a Full Bench. The Bench observed, “Considering that large number of cases are arising on the aforesaid issue, it is desirable that this appeal be heard by a Full Bench………….”.
9. At the outset we may note that the aforesaid reference has been made keeping in view the large number of cases filed in the subject matter and not because the Bench did not agree with the view expressed in the matter of Smt.Renu Kumari Pandey (supra). In my opinion, unless the latter Bench, for cogent reasons
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