TaxTMI 
TaxTMI 
2015 (9) TMI 1567
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....T in Kendriya Vidyalaya. In view of her qualification and experience, the applicant was appointed as School Inspector (General) in the pay-scale of Rs. 6500-10,500 in Education Department of MCD vide Officer order No. 14616-40/RDA-III/CED(II)/2000/15 dated 2.5.2000. In terms of Office order No. CED-II/RPA-III/2005/66/2585-94 dated 28.1.2005, she was declared to have completed her probation period successfully w.e.f. 14.7.2002. The order read thus : "MUNICIPAL CORPORATION OF DELHI CENTRAL ESTABLISHMENT DEPARTMENT TOWN HALL, DELHI-110008 No. CED-II/RPA-III/2005/66/ 2585-94 Dated 28.1.2005 OFFICE ORDER Smt. Sunita Rao W/o Late Sh. R.D. Rao, School Inspector (General) appointed on compassionate grounds in the pay-scale of Rs. 6500-10500/- vide office order No. 14616-40/RPA-III/CED(II)/2005/15 dated 2.5.2000 has completed her probation period successfully w.e.f. 14.7.2002. This issues with the approval of Competent Authority.'' In terms of Office Order No. A.O (Estt.)III/2008.17613-25 dated 29.8.2008, the Commissioner of MCD approved counting of past service rendered by her as TGT in Kendriya....
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....me category after the appointment of respondent No. 2, shall not unsettle the settled position by raising a grievance. In such an event, respondent No. 2 would be left with no service for the purposes of other than the pensionary benefits. As such, restricting the scope to the year 2003 would be relevant in the circumstances, as in the year 2000 of which appointments were made in 2003 validly as per the recruitment rules on a notification, in such an event, the claim of seniority, which is now being determined, would only restrict to the persons, who have participated vide 2000 notification and completed in 2003 being immediately affected, they have a minimum right of getting the benefit of seniority, which now shall be decided by the respondent-MCD. 7. We are not the Court of apex jurisdiction and bestowed with discretionary powers as laid down under Article 142 of the Constitution. Moreover, we cannot block the remedy for others before us. However, it is also trite law that adjudication of OA not on merit would not create a precedent for others. 8. In the result, for the foregoing reasons, we now remit this matter back to the respondent-MCD....
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....he applicant herein whose appointment itself is illegal cannot be assigned seniority above them. Learned counsel further buttressed that the controversy has been set at rest by this Tribunal in OA No. 2464/2009 itself. 3. The OA No. 4299/2012 is filed by Mrs. Neera and Pushpa who participated in selection for the post of School Inspector (General) for which the DSSSB set the process in motion in the year 2000. The stand taken by the applicants in the said OA is again that Ms. Sunita Rao i.e. applicant in OA No. 3672/2011 could not have been placed above them in the seniority list and further they should be placed in the seniority list with reference to their position in the select list prepared by the DSSSB. In other words, the plea of the applicants is that the promotee placed in the seniority list from serial No. 6 to 13 could not have been assigned seniority above them. Besides reiterating the submissions put forth in OA No. 3672/2011, Mr. Ajesh Luthra, counsel for the applicants in OA No. 4299/ 2012 relied upon the order dated 2.2.2010 passed by this Tribunal in OA No. 183/ 2009 and submitted that the applicants should be assigned seniority alongwith their batch mates i.e. tho....
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....the post in all respects under the provisions of the relevant Recruitment Rules. 6. (A) Exemption Compassionate appointment are exempted from observance of the following requirements- (a) Recruitment procedure, i.e. without any agency of the Staff Selection Commission or the Employment Exchange. (b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training. (c) The ban orders on filing up of posts issued by the Ministry of Finance (Department of Expenditure). (B) Relaxations (a) Upper-age limit could be relaxed wherever found to be necessary. The lower age-limits should, however, in no case be relaxed below 18 years of age. NOTE 1-Age eligibility shall be determined with reference to the date of application and not the date of appointment; NOTE-II Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age-limit also for making such appointment. ....
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....39;ble Supreme Court ruled thus : "12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951 AC 737 at p.761), Lord Mac Dermot observed: "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. Thi....
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....r v. Union of India and others, (2005 (4) SCC 649) a decision is not an authority for a proposition which did not fall for its consideration. In the aforementioned OA, the determination of inter-se-seniority of the applicant and respondent Nos. 3 to 6 in OA 3672/2011 was not adjudicated by the Tribunal. Indubitably, in OA 2464/2009 there is no authoritative pronouncement by the Tribunal regarding the principle of fixation of seniority of the said applicants and the respondents." 7. In Municipal Corporation of Delhi v. Gurnam Kaur, 1989 (1) SCC 109), Hon'ble Supreme Court ruled that the pronouncement of law, which are not part of the ratio decidendi, are classed as obiter dicta and are not authoritative. In the said case, it was also ruled that 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. Quoting Professor P.J. Fitzgerald, editor of the Salmond on Jurisdiction, 12th Edn., explaining the concept of sub silentio at page 153, their Lordships viewed that precedents sub silentio and without argument are of no moment. Para 11 and 12 of the said judgment read thus : ....
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....garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., (1941) 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M. R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight ....
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....retation in so far as the present case is concerned), as also the facts of the cases in hand, it is apparent, that the judgments relied upon by the learned counsel are inapplicable to determine the present controversy. 32. One finds attracted to the observations recorded in Jagdish Ch. Patnaik's case (supra) wherein it was observed, when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, nor irrational nor contrary to the object of the statute, then it is the duty of the Court to give effect to the words used in the statute because the words declare the intention of the law making authority best. We are of the view that the aforesaid observations are fully applicable to the present controversy. We may add that the various ONs and letters issued by the DOPT (referred to above) do not leave room for any ambiguity. 33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued....
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....fixation of seniority in accordance with the existent instructions. As far as the claim of the applicants in OA 4299/2012 and 2064/2012 for fixation of their seniority with reference to their position in the select list is concerned the position is regulated by the provisions contained in para 2.1 of DOP&T OM dated 3.7.1986 (ibid). Once there was no delay on part of the applicants in the said OAs in joining the service, they cannot be denied the benefit of seniority with reference to their position in the select panel. The issue has been addressed by Division Bench of this Tribunal in OA No. 183/2009 decided on 2.7.2010. Para 6 of the order read thus : In the light of the above discussion, we direct that the Applicants would be eligible for appointment to the post of Medical Officer (Ayurvedic) from the date three other persons selected alongwith the Applicants were appointed. They will not be entitled for back wages but the period will not counted for increments and their pay will be fixed at the time of joining by adding the increment they would have earned, had they joined their service from the retrospective date. It would also count ....
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.... of a larger Bench of the same Court observed thus : The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case 1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J. observed in Lala Bhagwan v. Ram Chand. "It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upo....