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2002 (4) TMI 936
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..... Santosh Hegde, J. A 3-Judge Bench of this Court by an order dated 17.8.2000, referred the above noted writ petitions for consideration by a Bench of five Judges by the following order : "We have heard learned counsel. It appears that a Bench of two learned Judges of this Court has taken a view dissimilar to that taken by a Bench of three learned judges. It appears, therefore, that these matters should be heard and disposed of by a Bench of five learned Judges and, to the extent possible, with expedition." 2. Brief facts necessary for the disposal of this case are as follows : In the U.P. Provincial Medical Services (PMS) for a considerable length of time, regular appointments were not made and with a view to meet the need for doctors, appointments were being made on a temporary basis but in consultation with the State Public Service Commission. These appointments were continued for decades together without any interruption. In 1979, the respondent-State purported to regularise the services of these temporary doctors by the promulgation of U.P. Regularisation of Ad-hoc Appointments (On Post within the purview of the Public Service Commission) Rules, 1979 (f....
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....view of the Public Service Commission) Rules, 1979, the State of U.P. declined to give him the benefit of 20 years of service towards seniority. The Allahabad High Court allowed this Writ Petition and granted him the benefit of the whole of the period towards seniority. We see no infirmity in the judgment of the High Court. We agree with the reasoning and the conclusions reached therein. Special Leave Petition is dismissed." 5. Thus, the judgment of the High Court upholding the right of the temporary doctors to count their seniority from the date of their initial appointment came to be confirmed. It is on record that subsequent to that a number of other similarly situated temporary doctors also filed similar petitions and obtained similar relief out of which some cases were brought to this Court by the state of U.P. like in W.P. No. 6227/81 which was decided by this Court in SLP (c) cc No. 18791/92 wherein the judgment of the High Court was again confirmed by a Division Bench of this Court on 21.1.1993. 6. During the pendency of some of the above noted petitions, it is seen from the record that some of the selectee doctors who were not given letter of appointment by the State....
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....ors, the Tribunal held that those doctors were entitled to the relief sought for by them. However, the High Court while confirming the said order of the Tribunal confined the relief to only those persons who had approached the Tribunal. ' Against this judgment of the High Court, the State of U.P. came up in a batch of SLPs. in C.A. Nos. 4438-42 of 1995. It is in this batch of civil appeals that a 2-Judge of this Court by its order dated 23.3.1995 held: "It is settled law that all adhoc appointment made de-hors the rules do not confer any right to permanency or seniority. They acquire the right only from the date of their regular appointment according to rules. "While so declaring the law which affected the seniority of the temporary doctors who were appointed much earlier than the selectee doctors, the 2-Judge Bench though noticed the judgment of the 3-Judge Bench made in SLP (C) No. 14480/92, did not further discuss this judgment nor did it in specific terms distinguish/overrule that judgment but proceeded to take a view which was directly opposed to the view taken by the 3-Judge Bench. That order of 23.3.1995 came to be further modified by the same Bench in IA Nos. 16-20....
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....s along with the above writ petitions. 12. It is in this context, noticing the conflict between the judgments of the 3-Judge Bench and the 2-Judge Bench, this matter has been referred to a larger Bench. 13. Even though the writ petitions themselves have been referred to this larger Bench for final disposal, we are of the opinion that we should initially decide the question as to the existence of conflict between the judgments of the 3-Judge Bench, and the 2-Judge Bench, and the effect of such conflict, if any, and then decide whether the writ petitions should be finally decided by this Bench or not. In that view of the matter, we have heard learned counsel appearing for the parties to the limited extent of finding out whether there is any conflict between the judgment of 2-Judge Bench and that of 3-Judge Bench and if so, what is the effect of judgments dated 23.3.1995 and 26.7.1996 of the 2-Judge Bench. 14. On behalf of the writ petitioners, it was contended that the issue in regard to date of counting of seniority of temporary doctors having been concluded by the 3-Judge Bench decision of this Court in Dr. Mathur 's case, the same could not have been in any manner, varied....
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....fore the High Court including that of Dr. Mathur, the High Court held that appointments of temporary doctors were made against substantive vacancies which had fallen vacant due to non-availability of doctors. It also held that the eligibility of the writ petitioners therein for being appointed as PMS-II was not in dispute. It further held that the petitioners therein held the necessary qualification for regular appointment. From the records available before it, the High Court came to the conclusion that the petitioners therein had been working against substantive vacancies and were never treated as ad hoc appointees. It also held that the mere fact that their services were not regularised, would not deny those petitioners the benefit of their continuity in service from the date of their initial appointment, and a subsequent regularisation would not take away their right to seniority from the date of their initial appointment. It is on the basis of these findings that the High Court directed to fix the seniority of the temporary doctors from the date of their initial appointment in the PMS cadre, giving them all the service benefits which were due to them after fixing their seniorit....
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....a v. Raghubir Singh (supra), a 5-Judge Bench of this Court speaking through Pathak, CJ., held that pronouncement of a law by a Division Bench of this Court is binding on another. Division Bench of the same or smaller number of Judges. The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows: "What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to de....
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....te of Gujrat, [1975] 1 SCC 11 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd., [1985] 4 SCC 369 which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana, [1981] 1 SCC 11 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., [1979] 2 SCC 409 on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference." 21. Almost similar is the view expressed by a recent judgment of 5-Judge Bench of this Court in Parija's case (supra). In that case, a Bench of 2 learned Judges doubted the correctness of the decision of a Bench of 3 learned Judges,....
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.... Parija (supra). 24. Applying the principles laid down in the above said cases, we hold that the judgment of the 2-Judge Bench of this Court dated 23.3.1995 as modified by the subsequent order dated 26.7.1996 by the same Bench does not lay down the correct law, being in conflict with the larger Bench judgment. If that be so, the above writ petitions, from which this reference has arisen, will have to be decided de hors the law laid down by those two judgments of the Bench of two learned Judges. Therefore, having decided the issue that has arisen for our consideration, we think it just that these writ petitions should now be placed before a Bench of three learned Judges for final disposal. 25. At this stage, it is necessary to record the argument advanced on behalf of the respondents that the writ petitioners before us are not similarly placed as Dr. Mathur, hence, the benefit of the judgment of three Judge Bench in Dr. Mathur's case is not applicable to the writ petitioners. They also contend that the Judgment in Dr. Mathur's case runs counter to an earlier judgment of three Judge bench of this Court in the case of State of U.P. and Anr. v. Dr. M.J. Siddique and Ors., [1980] ....