IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1310 of 2009 & CWP No. 5793 of 2010. Reserved on 6.12.2011. Decided on: 21st December, 2011. CWP No. 1310 of 2009 Manju Bala wife of Shri Satyakam Sharma, resident of Village & Post Office Rakkar, Tehsil Rakkar, District Kangra, H.P., presently working as Lecturer in Commerce through PTA, GSSS Rakkar, Tehsil Rakkar, District Kangra, H.P. …Petitioner. Versus 1. State of Himachal Pradesh through Secretary(Education) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Higher Education, Himachal Pradesh, Shimla-1. 3. Deputy Director of Higher Education, Rakkar, District Kangra, H.P. 4. Parent Teachers Association (PTA), GSSS Rakkar, Tehsil Rakkar, District Kangra, H.P., through its President. 5. Principal, GSSS Rakkar, Tehsil Rakkar, District Kangra, H.P. …Respondents. CWP NO. 5793 of 2010 Manju Bala wife of Shri Satyakam Sharma, r/o Village and Post Office Rakkar, Tehsil Rakkar, Distt. Kangra, H.P. …Petitioner. Versus 1. State of H.P. through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla-2. 2. Director of Higher Education, HP Shimla-2. 3. Deputy Director of Higher Education, Distt. Kangra, HP. 4. Parent Teachers Association (PTA) GSS Rakkar, Tehsil Rakkar, Distt. Kangra, HP through its President. 5. Principal GSSS Rakkar, Tehsil Rakkar, Distt. Kangra, HP. 6. Smt. Neelam Lecturer in Commerce under PTA, GSSS Rakkar, Tehsil Rakkar, Distt. Kangra, HP. ….Respondents. 2 Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Sanjay Karol, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. Bhuvnesh Sharma, Advocate. For the Respondents : Mr. R.K. Bawa, AG with Mr. Ankush Dass Sood, Additional Advocate General, for respondents No. 1, 2, 3 and 5. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. “Whether a writ petition is maintainable against the order of appointment/termination passed by the Parents Teacher Association” is the question desired to be considered by the Full Bench at the instance of the learned Single Judge. At the outset, we may note that the question had been directly considered by a Division Bench of this Court in Pooja Devi vs. State of H.P. and others, reported in 2009 (3) Shimla Law Cases 13. The said Division Bench was called upon to decide the issue only on maintainability. The Bench was considering a batch of cases pertaining to regularization/appointment of teachers by the Patent Teachers Association. After elaborately considering the scheme in the background of the H.P. Education Code and the Grant-in-Aid to Patent Teachers Association Rules, 2006 and instructions and Government orders issued thereafter, it was held as follows:- “(i) Though the Parent Teacher Association is purely a non- political body, however, it discharges the duty of great public importance. It provides teachers where the Government cannot provide teachers. There is a strict procedure the Parent Teacher Associations have to follow while appointing the teachers. These teachers have been 3 put under the control of the Principals of the schools concerned; (ii) The release of the grant-in-aid is further subjected to verification of the work and conduct of the teacher appointed by the Parent Teacher Association by the Principals. The State Government has the discretion to release the grant-in-aid to the teachers appointed by Parent Teacher Association. However, once the case stands recommended by the Principal, the grant-in-aid is generally to be released; (iii) The suitability of the teachers is adjudged by the Selection Committee. The Selection Committee comprises one of the experts in the subject. The appointment is made by the Parent Teacher Association; however, the entire selection process is closely supervised by the State Government from appointment till their removal; (iv) The plea of Mr. R.K. Bawa, learned Advocate General that the appointment of teachers by the Parent Teacher Association is purely a private affair cannot be accepted. If it is so, there was no occasion for the State Government to constitute a Committee to look into the complaints of irregularities while appointing the teachers by the Parent Teacher Associations. The State has accepted the recommendations submitted by the Committee, which further led to laying down the methodology of recruitment of the teachers by the Parent Teacher Association and the manner in which the appointments were to be scrutinized by the committees constituted at district and sub- divisional level; (v) The Parent Teachers Associations for discharging public duties are also paid grant-in-aid by the State Government. Their actions are further subject to review by the State functionaries. The State exercises deep and pervasive control over the manner in which the Parent Teacher Associations appoint teachers their conduct and removal; and 4 (vi) The State Government has been issuing effective directions/instructions/clarifications from time to time for regulating/governing the conditions of service of the teachers appointed by the Parent Teacher Association. Since these directions/instructions/clarifications are issued by the State Government, the persons affected/aggrieved by the issuance of these directions/ instructions/clarifications can file a petition under Article 226 of the constitution of India.” (emphasis supplied). 2. Yet, the learned Single Judge was of the view that the Division Bench decision in Pooja Devi’s case had not considered the earlier Division Bench decision of this Court in Baldev Singh vs. State of H.P and others, reported in 2007 (3) Shimla Law Cases, 100. It is significant to note that the question of maintainability was not the issue in Baldev Singh’s case. The questions were different, which read as follows: “2. The questions have arisen before us are: (1) Whether a teacher appointed by the parent-teachers Associations (PTA) is a holder of the “Civil Post” under the State? (2) Whether the H.P. State Administrative Tribunal has jurisdiction to try and determine the matter under Section 15 of the Administrative Tribunal Act, 1985? 3. No doubt the Division Bench in Baldev Singh’s case also considered in detail the H.P. Education Code and the Scheme of appointment under the Patent Teachers Association Rules, 2006 and related issues. However, as we have already referred to above, the questions were different. They were not on the maintainability of the writ petition. It is also worth noting the ratio in Baldev Singh’s case, at Paragraph 26 and 27:- “26. Keeping in view of the aforesaid facts, we are of the considered view that persons appointed, as teachers by the PTA 5 are not holders of a civil post in the State and are not members of any civil service. Therefore, the first question is answered accordingly. 27. Since we have held that the teachers appointed by the PTA are not holders of civil post in the State, the obvious corollary is that the learned Administrative Tribunal has no jurisdiction to try and entertain an application in respect of such teachers.” 4. Learned Single Judge has also referred to the Division Bench decision of this Court in Chandresh Kumar Malhotra versus H.P. State Coop. Bank and others, reported in 1993 (2) Shimla Law Cases 243 and also the decision of S.S. Rana versus Registrar, Coop. Societies and another reported in (2006) 11 SCC 634 and has observed that these two cases also have not been considered in Pooja Devi’s case. Both the above decisions deal with the question as to whether writ will lie against a Cooperative Society and the question has been answered in the negative. But as far as appointment of teachers under the H.P. Education Code read with H.P. Grant-in-Aid (Patent Teachers Association) Rules, 2006 is concerned, the issue is directly covered by Pooja Devi’s case. Once there is a direct decision on a point by a Division Bench, the learned Single Judge is bound by the said decision. Even if the decision by the Division Bench is one rendered without reference to all relevant factors also, it is not open to the Single Bench to doubt the correctness of the Division Bench decision. It will be against the well settled principles of legal propriety and judicial decorum. A Division Bench of High Court of Kerala had an occasion to consider a similar situation in Kannappan vs. R.T.O. Ernakulam reported in 1988 (1) KLT 902 and it was held as follows: “There can be no ‘hesitation’ for a Single Judge to follow a Division Bench ruling binding on the Single Bench for, he is 6 bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the hands of the Division Bench does not mean that whenever the identical question is raised before the learned Judge, the matter has to be again referred to a Division Bench till the views of the Single Judge are endorsed by a Division Bench or Full Bench.” 5. In Tribhovandas Purshottamdas Thakkar versus, Ratilal Patel and others, reported in AIR 1968 SC 372, the Apex Court at Paragraph-8 held as follows:- “8……Precedents which enunciate rules of law form the foundation of an administration of justice under our system. It has been held time and again that a Single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.” To quote blackstone, “it is an established rule to abide by former precedents when the same points come again into litigation: as well as to keep the scale of justice even and steady and not likely to waver with every Judge’s new opinion as also because the law in that case being solemnly declared and determined, what before was uncertain is now become a permanent rule, which it is not in the breast of any subsequent Judge to alter or vary from according to his private sentiments”. 6. In Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others, 2002 SC 296, the Supreme Court at Paragraph 6 has held as follows: 7 “In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a bench of two learned Judges should follow a decision of a bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a bench of three learned Judges is incorrect, reference to a bench of five learned Judges is justified.” 7. In Central Board of Dawoodi Bohra Community vs. State of Maharashtra, AIR 2005 SC 752 reference to the Judicial decorum to be followed in High Court in such circumstances, has been dealt with at Paragraph 12 as follows: “Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:- (i) The law laid down by this Court in decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (ii) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the 8 matter being placed for hearing before a Bench of larger quorum than the bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (iii) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular bench of any strength: and (ii) In spite of rules laid down hereinabove, if the matter has already come up for hearing before a bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & others and Hansoli Devi and others (supra).” 8. In Safiya Bee v. Mohd. Vajahath Hussain alias Fasi, reported in AIR 2011, SC 421, after referring to the principles in Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, at Paragraph 17, it has held that “The above principles and norms stated with reference to the 9 Supreme Court are equally relevant and applicable to the High Court also.” Inviting attention of the Chief Justice with a request that the matter be placed for hearing before a Bench of larger quorum is in the background of the bench composition in Supreme Court. That is not always the situation in the High Court where the quorum to start with is that of a single bench. As far as the High Court is concerned, the principle is directly dealt with in the same case at Paragraph 16 “It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the latter Bench would refer the case to a larger Bench”. 9. However, the Chief Justice of the High Court being the master of roster is competent to frame the roster and direct any case to be heard by any Bench of any strength. That power is not to be invoked by way of a reference. The purpose of that power is only to enable the Chief Justice to place any matter before the Full Bench or Division Bench otherwise than on a reference in the required contingencies like larger public interest, the interest of administration of justice, the interests of administration of the institution etc. It is the absolute prerogative of the Chief Justice to distribute the work in the High Court and post any case before any Bench. That power cannot be compelled to be invoked on a reference. That is what the Full Bench of the High Court of Kerala in Peter P.O v. Sara, reported in AIR 2007, Kerala 81 held at paragraph 10:- “10….That is a power to be exercised on the administrative side. It is not to be invoked on a reference. 10 The plain purpose is only to enable the chief Justice to place any matter before the Full Bench otherwise than on a reference, in the required contingencies like public interest, the interests of administration of justice, the exigencies of administration of the institution etc. It is the absolute prerogative of the Chief Justice to distribute the work in the High Court and post any case before any bench, subject of course to the provisions in the High Court Act. That power cannot be compelled to be invoked on a reference.” 10. The upshot of the above discussion is: i) The Single Bench of the High Court is ordinarily bound by the decision of another Single Bench. In case it is found necessary in situations like the judgment being rendered per incuriam or subsilentio, the subsequent change in the legal position etc., the only course open to the learned Single Judge is to refer the matter to the Division Bench and not to render another judgment. ii) A Single Bench is bound by the Division Bench judgment. iii) When there are two Division Bench decisions, the binding decision ordinarily is the later in point of time unless the former is rendered on the basis of a binding Full Bench decision. iv) However, in a situation of conflicting binding decisions on the same issue, the attention of the Chief Justice can be invited so that the Chief Justice may, if required, constitute a larger Bench. 11. The instant case is not one of conflicting bench decision. There is direct Division Bench judgment on the point (in Baldev Singh’s case) and hence, the single bench is bound by the same. Thus, the 11 reference made by the learned Single Judge for consideration by a Full Bench is incompetent. 12. Though this reference is hence only to be returned, we propose to dispose of the case as well. The admitted case of the petitioner and that is the position seen in the replies as well is that the petitioner was engaged by the PTA in the year 2000. The Grant-in-Aid (Patent Teachers Association) Rules, 2006 came into effect only in the year 2006. Thus, the initial appointment of the petitioner is not in terms of the Rules. It is a stop-gap and adhoc arrangement made by the local PTA without reference to any rules. Only in case the appointment is made by the PTA in terms of Grant-in-Aid (Parent Teachers Association) Rules, 2006, a writ petition is maintainable against the order of appointment or termination or such other allied grievances and that is the ratio in Pooja Devi’s case. Therefore, no writ will lie against the PTA in this case. In case the post is still lying vacant under GSSS Rakkar, Tehsil Rakkar, District Kangra, the respondent No.4 shall take steps to fill up the same as per the Grant- in-Aid to (Patent Teachers Association) Rules, 2006 immediately and the qualified and competent teacher be selected and engaged till a regular hand is duly appointed by the respondents No. 1 to 3. 13. CWP No. 5793 of 2010 is disposed of, as above, so also the pending application(s), if any. 14. The connected Writ Petition No. 1310 of 2009 is filed for direction to 5th respondent to pay the salary of the petitioner out of the Grant-in-Aid already released by the respondent No.3. In case any Grant-in-Aid has been released by the Government for payment to the petitioner and in case the same is not released by the Principal, 12 the petitioner may approach the second respondent, in which case, the second respondent will look into the matter and take appropriate action in accordance with law within another two months. 15. The Writ Petition No. 1310 of 2009 is disposed of, as above, so also the pending application(s), if any. (Justice Kurian Joseph) Chief Justice (Justice Sanjay Karol) Judge (Justice Rajiv Sharma) 21st December, 2011. Judge (kck)