Letters Patent Appeal No.540 OF 2006 With Letters Patent Appeal No.504 OF 2008 ****** Against the judgment and order dated 23.9.2005 and 29.8.2007 passed by a learned Single Judge of this Court in C.W.J.C. No. 2187 of 2004 and C.W.J.C. No.446 of 2006 respectively. ****** In L.P.A. No.540 of 2006: 1. THE STATE OF BIHAR. 2. Director General & Inspector General of Police, Government of Bihar, Old Secretariat, Bihar, Patna. 3. Deputy Inspector General (Personnel), Govt. of Bihar,Patna. 4. Deputy Inspector General of Police, Human Rights, Bihar,Patna. ----Appellants. Versus 1. RAMESHWAR SINGH, son of late Awadh Bihari Singh, resident of village Narauni, P.S. Paona Sandesh, District Bhojpur, at present Sub Inspector of Police, Sonepur Police Station, District- Saran, Chapra. 2. Intyaj Khan son of late Udrish Khan, resident of village Naraila, P.s. Dildar nagar, Dist. Gajipur (U.P)- at present Sub Inspector of Police, Police Station Punpun, District Force, District Nalanda at Biharsharif. 3. Chandradeep Singh, son of Bilta Singh, resident of village Manjhauli, P.s.Khusrupur, Dist. Patna at present Sub Inspector of Police, Noorsarai Police Station, Dist. Nalanda. 4. Kameshwar Prasad, son of late Sukhi Gope, resident of village Dhibrpar, P.S. Rahui, Dist. Nalanda at present Sub Inspector of Police, Ara Town P.S., Dist. Bohjpur. 5. Surendra Prasad Singh, son of late Deo Charan Singh, resident of village Hawanpura, P.S. Rahui, Dist. Nalanda at present Sub Inspector of Police, Munger, Dist. Force, District Munger. 6. Rabindra Nath Thakur, son of Ambika thakur, resident of village Saura, P.S. Teghra, Dist. Begusarai at present Sub Inspector of Police, Motihari Dist. Force, Dist. Motihari. 7. Krishan Nandan Singh, son of Ram Jatan Singh, resident of Bindaun, P.s. Bihta, Dist. Patna- at present Sub Inspector of Police, CI.D., Patna. 8. Samsher Ali, son of Ajimullah Sheikh, resident of village Lodipur, P.S. Kotwali, Dist. Patna- at present Sub Inspector of Police, C.I.D., Patna. 9. Md. Irshad Kha, son of Sohrab Khan, resident of village Bara, P.s. Gahmar, Dist. Gajipur (U.P)- at present Sub Inspector of Police, Buxar, Dist. Force, Buxar. 10.Dinesh Prasad Singh, son of Barangi Singh, resident of village Rupak Baruari, P.S. Bakhtiyarpur, Dist. Patna – at present Sub Inspector of Police Khagaria, Dist. Force, Khagaria… --------Respondents 2 For the Appellants: Mr. Vikash Kumar, Assistant Counsel to Advocate General For the Respondents: Mr. Bishnu Kant Dubey, Advocate. In L.P.A. No.504 of 208: 1. THE STATE OF BIHAR. 2. The Director General and Inspector General of Police, Govt. of Bihar, Old Secretariat, Patna. 3. The Deputy Inspector General (Personnel), Govt. of Bihar, Patna. -----------Appellants. Versus GYANESHWAR JHA, son of late Gangadhar Jha, resident of village Baikatpur, P.S. Khushrupur, Distt. Patna, presently residing at Mangla Gauri Bhikhna Pahari, P.S. Pirbahore, Distt. Patna and at present posted as Sub-Inspector of Police, Muzaffarpur, Reservice Office, Police Lines, Distt- Muzaffarpur. ------- Respondent For the Appellants: Mr. Vikash Kumar, Assistant Counsel for Advocate General For the Respondents: Mr. Bishnu Kant Dubey, Advocate. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ***** S.K. Katriar, J. The two appeals at the instance of the State of Bihar and its functionaries have been preferred under clause 10 of the Letters Patent of the High Court of Judicature at Patna. 1.1 The appellants of L.P.A. No.540 of 2006 raise a grievance with respect to the order dated 23.9.2005, passed by a learned Single Judge of this Court in C.W.J.C. No. 2187 of 2004 (Rameshwar Singh & ors. Vs. The State of Bihar and others), whereby the writ petition has been allowed, and the writ petitioners have been given the benefit of continuous officiation as Sub- Inspector of Police, and direction has been issued to reckon their 3 seniority for the purpose of their promotion as Inspector accordingly. 1.2 In the analogous L.P.A. No. 504 of 2008 , the appellants raise a grievance with respect to the order dated 29.8.2007, passed by a learned Single Judge of this Court in C.W.J.C. No. 446 of 2006 (Gyneshwar Jha Vrs. State of Bihar & ors), whereby the writ petition has been allowed, and identical relief has been granted. 1.3 Both the appeals raise common issues of facts and law and are, therefore, being disposed of by a common judgment. 2. A brief statement of facts essential for the disposal of the appeals may be indicated. We shall draw the basic facts from the proceedings of L.P.A. No. 540 of 2006, and the connected C.W.J.C. No.2187 of 2004, except by specific reference to any other proceeding. We shall go by the description of the parties occurring in the writ proceeding. The writ petitioners were appointed in the Bihar Constabulary as constables and joined the Crime Investigation Department (C.I.D for short), on various dates between 1.8.1971 to 12.9.1971. They were confirmed as such. They were promoted as Assistant Sub-inspector of Police (A.S.I, in short). On the basis of a selection process conducted by the C.I.D., the writ petitioners were promoted to the posts of Sub Inspector of Police („S.I‟ in short), on purely ad hoc/officiating basis on various dates between 1976 to 1981. The Central Selection Board conducted a centralized selection process in terms of rule 659 of the Bihar Police Manual (hereinafter referred to as the Manual) dealing with the cases of all the members of the cadre of A.S.I. of police throughout the State of 4 Bihar and promoted the writ petitioners & others to the posts of S.I., by order dated 5.3.2002. They were denied the benefit of ad hoc/officiating promotion to the post of S.I. Some of the writ petitioners, therefore, preferred C.W.J.C. No. 3222 of 1991, and the analogous writ petitions by similarly circumstanced persons, which were allowed by a Division Bench of this Court by judgment dated 8.5.1996, inter alia, on the following terms: “…….. Accordingly the respondents are directed to compute the petitioner‟s seniority in the rank of S.I. from the date of their initial officiation in the said rank.” 3 The State of Bihar challenged the same before the Supreme Court in S.L.P. No.7288-7292 of 1997 (State of Bihar Vs Anant Tiwary and others), whereby the same were dismissed In Limine on the ground of delay. The order dated 17.9.1997 of the Supreme Court is reproduced herein below: “The inordinate delay of 364 days in filing the special leave petitions has not been explained satisfactorily or reasonably. The application seeking condonation of delay is dismissed Consequently, the special leave petitions are dismissed, as barred by time.” 4. The State Government thereafter issued order dated 28.8.1997, whereby the writ petitioners were promoted to the post of S.I. after giving them the benefit of continuous officiation as per the direction in C.W.J.C. No. 2686 of 1991 and its analogous cases. The order stated that the same was subject to the result of the appeal preferred by the State of Bihar before the Supreme Court. As stated herein above, the appeals of the State Government before the Supreme Court were dismissed on the ground of delay by order dated 17.9.1997. The State Government thereafter issued provisional 5 gradation list on 25.4.2000, followed by the final gradation list on 3.12.2001, with some modifications in the provisional gradation list which did not concern the writ petitioners. The State Govt. afforded to the writ petitioners the benefit of continuous officiating promotion as S.I. in the provisional list as well as the final list. This was followed by the promotion order dated 20.1.2004, whereby persons junior to the writ petitioners were promoted as Inspector, the writ petitioners were ignored and were denied promotion. The writ petitioners were left with the impression that the order of promotion dated 20.1.2004 has been issued after ignoring the period spent by them on ad hoc/officiating basis as S.I., providing them with the cause of action for the present C.W.J.C. No. 2187 of 2004. As stated hereinabove, the writ petitions have been allowed by the learned Single Judge by the impugned order. The State Government has been directed to give benefit of continuous ad hoc/officiating promotion as S.I., inter alia, on the ground that the aforesaid judgment of this Court in C.W.J.C. No. 2686 of 1991 has attained finality. The learned Single Judge has also observed that the judgment of the Supreme Court in State of Bihar Vs. Kameshwar Pd. Singh, and State of Bihar Vs. Brij Bihari Prasad Singh, which was allowed by the order dated 27.4.2000 [2000 (3) PLJR (SC) 81] (State of Bihar and others Vs. Kameshwar Prasad Singh and Another), is inapplicable to the facts and circumstances of the present C.W.J.C. No. 2187 of 2004. 5. The facts and the issues of the analogous L.P.A. No. 504 of 2008, arising out of C.W.J.C. No. 446 of 2006, are identical, except some minor difference of dates which are not significant for 6 disposal of the two appeals. Therefore, we do not feel the necessity of separately recapitulating the facts and circumstances of L.P.A. No.504 of 2008. C.W.J.C. No.446 of 2006 has been allowed on identical grounds. 6. While assailing the validity of the orders on the two writ petitions, learned counsel for the appellants submits that the promotions to the writ petitioners were in violation of the relevant provisions of the Manual. It is next submitted that the judgment of this Court in C.W.J.C. No. 2686 of 1991, has seemingly attained finality, but has really not attained finality and has, therefore, to be viewed in the right perspective. It is next contended that the learned writ Court has not viewed the judgment of the Supreme Court passed in the case of State of Bihar & Others Vs Kameshwar Prasad Singh and Brij Bihari Prasad Singh (Supra) in its true letter and spirit. 7. Learned counsel for the respondents has supported the order of the learned writ court. It is submitted that the order passed in C.W.J.C. No. 2686 of 1991, has attained finality, and the appeals of the State of Bihar before the Supreme Court had been dismissed In Limine. He next submits that the judgment of the Supreme Court in Kameshwar Prasad Singh and Brij Bihari Prasad Singh (Supra), have been considered by the learned writ court and have rightly been held to be inapplicable to the present case. He relies on the following reported judgments: (i) A.I.R. 1990 SC 1607) [ : 1990(2) PLJR (SC)23] (Direct Recruit Class-II Engineering Officers‟ Association and others Vs. State of Maharashtra and Others) 7 (ii) Judgment of Division Bench of this Court in the case of Suryadeo Tiwary V. State of Bihar &Others) reported in 2007(2) PLJR, 547. (iii) Judgment of Division Bench of this Court in the case of State of Bihar Vs. Ram Lakhan Shukla, reported in 2007 (2) PLJR, 694. (iv) State of Bihar V Kameshwar Prasad Singh reported in 2000(3) PLJR(SC) 81. (v) Ashok Kumar Khare Vs State of Bihar 2010 (2) PLJR 215. 8. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It is undoubtedly correct to state that the writ petitioners by various orders between 1976 to 1981 were given ad hoc/officiating promotion as S.I. in the C.I.D. The cadre of S.I. is State Cadre, and those posted in the C.I.D. are only part of the cadre. The remaining S.Is. are spread over different departments of the Bihar Police Force all over the State of Bihar. It is of utmost importance in the present context that all the writ petitioners were posted in the C.I.D. and were given the ad hoc/officiating promotion to S.I. on the basis of consideration of the A.S.Is posted in the C.I.D. In other words, it was done at the local level, without taking into account cases of similarly circumstanced A.S.Is. in the rest of the cadre. It is equally correct to state that the State Government had on the earlier occasion denied to the writ petitioners the benefit of continuous officiation, giving rise to C.W.J.C. No. 2686 of 1991, which was allowed in full, and the authorities were directed to give to them the benefit of continuous officiation. It is equally correct to state that the appeals preferred by the State of Bihar before the Supreme Court, 8 challenging the judgment in C.W.J.C. No. 2686 of 1991, was dismissed In Limine and on the sole ground of limitation. 9. It is of considerable importance in the present case to consider rule 659 of the Manual which prescribes the procedure for promotion of A.S.I. to the next higher post of S.I. The same is reproduced here in below: “659. Promotion of Assistant Sub-Inspectors.- (a) 50 per cent of the vacancies in the rank of Sub-Inspector shall be filled by selection from the rank of Assistant Sub-Inspector who have at least done a minimum of five years service [Rule 653 (b) ]. Only selected officers who have shown exceptional merit while serving as Assistant Sub-Inspector will be promoted. (b) On receipt of information vide rule 653 (a), the Deputy Inspector General will intimate the number of vacancies allotted to each district and call for nominations, to reach him on a date to be fixed. (c) At least 14 days before nominations are sent to the Deputy Inspector-General the names of the nominees shall be published by district order so that those who are not nominated may have an opportunity of representing their cases before the nominations are actually submitted. Officers having such representation to make should be given interviews and their cases examined with them. In forwarding the nomination a certificate must be given of the date on which the lists were published and intimations sent to those not nominated. Those not nominated, may submit representation within 14 days to the Deputy Inspector-General which shall be considered by him as early as possible so that in case of necessity, additional nominations may be sent. In selecting Assistant Sub- Inspectors for promotion, preference should be given to those who have received special commendation for integrity of character and good detective work. (d) The Range Deputy-Inspector-Generals‟ Board [Appendix 72 (3)] shall make selection 9 from those nominated from districts and shall send names for consideration to Central Selection Board [Appendix 72 (2)]. This list shall be drawn according to seniority but if any Assistant Sub-Inspectors is placed serially above his seniority on the basis of his ability, reasons for such special nomination shall be given. Necessary papers and all papers concerning selection shall be presented before the Central Selection Board [Appendix 72 (2)] by the date fixed. (e ) The Central Selection Board [Appendix 72 (2) } shall, if necessary, interview the candidates nominated by the Range Deputy Inspector-General‟s Board and prepare a list of selected candidate for promotion. Names of this list should ordinarily be in order of seniority. If an officer is placed higher in the list than his seniority warrants the reasons for such special nomination shall be recorded. Promotions shall be confined to the selected list framed by the Central Selection Board [Appendix 72 (2)] but vacancies shall be filled up range wise according to seniority in the list by the Range Deputy –Inspector- General. A copy of the proceedings shall be forwarded to Inspector General for information who shall endeavour to see that wide disparities do not occur in matter of promotion and confirmation in different ranges and adjustment may be made by suitable transfers of Assistant Sub-Inspectors. (f) The Central Selection Board shall make 25 per cent more selections of Assistant Sub- Inspectors than the number of vacancies so that there is no difficulty in filing casual vacancies. Names beyond 25 per cent may also be kept in this list after getting order of Inspector- General. If any one in the list does not get promoted in one year, his case shall be reviewed again for inclusion in the next year‟s list and he shall be placed above them. (g) Assistant Sub-Inspector shall be on probation for a period of 12 months from the date of the order promoting them to the rank of Sub- Inspector.” 10 10. This rule on the very face of it contemplates that it has to be done on Centralised basis, and after taking into account cases of all the eligible A.S.Is of the cadre. It is, therefore, difficult to countenance a situation where A.S.I. of one section or one department would be given ad hoc/ officiating promotion to S.I, followed by its recognition by giving to them the benefit of Continuous Officiation, ignoring the remaining members of the cadre posted elsewhere. Such a benefit can be granted only after the procedure prescribed by rule 659 has been followed. Rule 659 of the Manual was not brought to the notice of the leaned Division Bench disposing of C.W.J.C. No. 2686 of 1991. 11. The judgment handed down by a Division Bench would normally bind another Division Bench. We are , however, of the view that had the provision of Rule 659 been brought to the notice of the Division Bench dealing with the C.W.J.C. No. 2686 of 1991, it may have reached a different conclusion. It appears to us that same does not bind us in view of the doctrine of Per Incurium. This principle has been applied in a large number of decisions of the Supreme Court and followed by the High Courts. A Constitution Bench of the Supreme Court in the case of Central Board of Dawoodi Bohra Community Vs State of Maharastra, (2005) 2 SCC 673, has expounded the law as follows in paragraph 7. “7. The Constitution Bench in the case of Chandra Prakash v. State of U.P.4, took into consideration the law laid down in Parija case3 and also referred to the decision in Union of India Vs Reghubir Singh7 relied on by Ms Indira Jaising, the learned Senior Counsel and then reiterated the view taken in Parija case3. Per incuriam means a decision rendered by ignorance of a previous binding decision such 11 as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. It is true that Raghubir Singh case7 was not referred to in any case other than Chandra Prakash case4 but in Chandra Prakash case4, Raghubir Singh case7 and Parija case3 both have been referred to and considered and then Parija case3 followed. So the view of the law taken in a series of cases to which Parija case3 belongs cannot be said to be per incuriam.” (emphasis added) 11.1 In Halsbury‟s Laws of England (4th Edn.) Vol. 26: PP 297-298,para 5781, the doctrine of Per Incuriam has been stated as follows: “ A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow2; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force3. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties4, or because the court had not the benefit of the best argument5, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority6. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake”7. (emphasis added) 11.2 Lord Godard, C.J., in Huddersfield Police Authority V. Watson, 1947 K.B. 842, case observed that where a case or statute had not been brought to the court‟s attention and the 12 court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 11.3 In a decision of the Supreme Court in Govt. of A.P. and another v. B. Satyanarayana Rao, reported in (2000) 4 Supreme Court Cases 262, it has been held as follows: ( SCC pp. 264-65, para 8) “The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute rendered on the same issue or where a court omits to consider any statute while deciding that issue. … We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger bench on mere asking of a party. A decision by two judges has a binding effect on another coordinate Bench of two Judges unless it demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law.” (emphasis added) 11.4 In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 Supreme Court observed: (SCC pp. 162-63, para 40) “40. „Incuria‟ literally means „carelessness‟. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. 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.)2 Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.” 13 11.5 In Fuerst Day Lawson Ltd. V. Jindal Exports Ltd.(2001) 6 SCC 356, Supreme Court observed as follows: (SCC pp. 367 & 368, paras 19 & 23) A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment „per incuriam‟. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. (emphasis added) 11.6 In that view of the foregoing, we are of the view that the judgment in C.W.J.C. No. 2686 of 1991 is Per Incurium, having been rendered in complete ignorance of rule 659, and, therefore, does not bind us. 12 Just the same is the position with respect to the two judgments of the Division Bench in Suryadeo Tiwari (Supra), and Ram Lakhan Shukla (Supra), relied upon by the respondents. In other words, rule 659 was not brought to the notice of the Division Bench. 13. Learned counsel for the respondents brought to our notice the order of the Supreme Court whereby the appeals challenging the judgment of Division Bench in C.W.J.C. No. 2686 of 1991, have been dismissed In Limine, on the ground of delay. In other words, learned counsel submits that the judgment of this Court has been upheld by the Supreme Court and, therefore, the judgment of this court has attained finality. In his submission, had the 14 judgments of this court not been challenged in the Supreme Court, the doctrine of Per Incuriam could have been applied, but not in a situation like the present one where the order/judgment of this Court has merged into that of the Supreme Court. The contention on