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Sanjay Kumar Pathak v. State Of U.P. And Others - WRIT - A No. 65189 of 2006  RD-AH 3760 (2 March 2007)
Civil Misc. Review Application No. 278540 of 2006.
On behalf of:-
State of U.P. ..... ...... .Applicant.
Civil Misc. Writ Petition No. 65189 of 2006.
Sanjay Kumar Pathak. .. ..... ..... Petitioner.
State of U.P. and others. .. ..... ..... Respondents.
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.C. Misra)
For the Applicant/State : Sri S.M.A Kazmi,
Learned Advocate General
Sri Vijendra Singh, C.S.C.-II,
Sri S.P. Kesarwani, A.C.S.C.
For the U.P.P.S.C. : Sri M.A. Qadeer.
For the High Court : Sri Amit Sthalekar.
For the Writ Petitioner : Sri Arvind Srivastava &
Sri Raj Kumar Singh.
The Court:-- Under compelling circumstances we are constrained to make detail discussion of the matter in the review application.
The writ petitioner has virtually challenged non-consideration of his candidature by the U.P. Public Service Commission in connection with the examination and/or interview for the post of Civil Judge (Junior Division) being age bar on the strength of the Supreme Court judgement reported in JT 2006 (4) SC 531 (Malik Mazhar Sultan and another Vs. U.P. Public Service Commission and others). On 15th December, 2006 in the midst of hearing, as per previous direction, Mr. Vijendra Singh, learned Chief Standing Counsel-II, contended that he has no objection in accommodating the candidates by allowing them to sit for the examination relaxing age on the basis of the fresh requisition. The Court was pleased to pass an order on 15th December, 2006 on the ratio of the aforesaid Supreme Court judgement having its binding effect and on the basis of the concession given by the State.
After 15th December, 2006 one of us (V.C. Misra, J.) was not attached to the Court, but the Presiding Judge of the Bench (Amitava Lala, J.) was attached to the Court upto 21st December, 2006. On 20th December, 2006 a review application was taken out by one Sri Jagjit Singh, Private Secretary to Special Secretary and Additional Legal Remembrancer, Government of U.P., Legal Cell, High Court, Allahabad, but without any office report and without bringing to the notice of the Presiding Judge of the Bench, directly placed before the then Hon'ble Chief Justice for future assignment and following orders were obtained:
"Nominated to the Bench presided over by Dr. B.S. Chauhan, J., but only for so long as neither Amitava Lala, J. nor V.C. Misra, J. is available for hearing any case at Allahabad.
"Might be put up tomorrow or until the above availability as convenient to the Hon. hearing Judges.
In any event the matter was placed before another Division Bench (Hon'ble Dr. Justice B.S. Chauhan and Hon'ble Mr. Justice Prakash Krishna) on 22nd December, 2006 and such Bench was pleased to entertain the application on the basis of the submission of Mr. Amit Sthalekar, learned Counsel appearing for the High Court, as follows:
"he had argued the matter at length and referred to and relied upon the aforesaid judgments and the Court had also gone through the same, but no reference has been made to the said judgments rather a statement has been recorded that Amit Sthalekar did not advance any arguments, whatsoever."
It is further recorded that Mr. M.A. Qadeer, learned Counsel appearing for the Commission, supported such contention. However, when the matter was forwarded to this Bench for final hearing, Mr. Qadeer contended before this Court that he did not make any such submission.
However, fact remains Mr. Amit Sthalekar, learned Counsel appearing for the High Court, belatedly entered in the course of hearing on 15th December, 2006 but did not make any submission far to say about any citation which we repeat and say. No reference of any conflicting judgement was brought to the notice of the Court which dealt with contrary to the judgement of the Supreme Court. Subsequently he explained that he never meant submission on 15th December, 2006 but submission on an earlier date. Mr. M.A. Qadeer, learned Counsel appearing for the Commission, was the lone voice. However, having limited role his attempt became futile. In any event we refrain ourselves from making any comment thereto with a reminder that no certificate is required to say that equal treatment and patient hearing are the soul of the Bench and to show profound respect to judicial verdict of any Bench, if placed, is its training. In further submission of the Counsel can not be contradicted with judicial observation of a Co-ordinate Bench. If we do not follow such discipline, entire judicial system will be broken. Comity of Judges will fall down.
However, the matter was ultimately placed before this Bench for final disposal not only in accordance with the Chapter 5 Rule 12 of the Allahabad High Court Rules made for hearing of Review but also on the basis of the order of assignment itself. Therefore, it was fixed for hearing on 19th February, 2007, on which date learned Advocate General sought adjournment till 02nd March, 2007 since rejoinder on the part of the State was not ready. The Court refused to grant such long time because of urgency and placed the matter on 27th February, 2007 for hearing.
We have started considering various submissions. Firstly, we have started considering maintainability of review application. The review application is neither an appeal nor an interlocutory or miscellaneous application. It is an independent proceeding. If the judgement and order is erroneous in nature, it can be corrected only by appeal. If an error is apparent from the face of record then review lies. In the instant case a judgement of the Supreme Court was taken into account for the purpose of due disposal of the case. Such Supreme Court judgement has binding effect upon all irrespective of contrary decision, if taken by any coordinate Bench, otherwise it will be per incuriam.
The other part is there is no rebuttal to the statement made in the writ petition. In 1999 (82) FLR 709 (M/s. J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. the Collector, Kanpur and others) it was held by a Division Bench of this High Court that in the absence of counter affidavit, the Court is left with no choice but to accept the averments made in the petition to be correct. This view is well established till this date.
Thirdly, the concession given by the learned Chief Standing Counsel-II on behalf of the State.
Interestingly one of the contesting parties i.e. U.P. Public Service Commission has already filed a S.L.P. before the Supreme Court being Special Leave to Appeal (Civil) No(s) 278/2007 (U.P. Public Service Commission etc. Vs. Sanjay Kumar Pathak and others) on 22nd December, 2006 in spite of filing an independent review application on 21st December, 2006 and without stating such fact in the S.L.P.. According to the respondent/writ petitioner, it is concealment of facts. On enquiry we have come to know that the hearing of the S.L.P. is adjourned hoping disposal of review before its hearing.
Several points were urged by the contesting parties during the course of hearing.
It is a constant view that subject to the availability review application will be heard by the Bench, which has originally passed the order and who are competent to take note of any error apparent from the face of the record. Even the counsel, who did not earlier appear, is debarred from appearing and from taking any advantage of the situation. Catena of decisions are available so far as such point of maintainability of the review application is concerned, i.e. 1997 (9) SCC 736 (Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another), 1999 (1) SCC 81 (Upadhyay & Co. Vs. State of U.P. and others), 2005 (3) AWC 2601 (Smt. Krishna Patak Vs.Vinod Shankar Tiwari and others), 1995 (1) SCC 170 [Meera Bhanja (Smt) Vs. Nirmala Kumari Choudhury (Smt)], 1997 (8) SCC 715 (Parsion Devi and others Vs. Sumitri Devi and others), 2006 (4) SCC 78 [Haridas Das Vs. Usha Rani Bank (Smt) and others], 2006 (5) SCC 501 (Jain Studios Ltd. through its President Vs. Shin Satellite Public Co. Ltd.). It is true to say that plenary jurisdiction of the High Court under Article 226 of the Constitution of India is there to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review as per AIR 1979 SC 1047 (Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and others).
Moreover, competency of the deponent in support of the review application is also to be considered. The deponent is Private Secretary to Special Secretary and Additional Legal Remembrancer, Govt. of U.P., Legal Cell High Court, Allahabad. It appears that he filed such affidavit as true to his knowledge. It also appears that different Counsel headed by learned Advocate General appeared in support of the review application. In presence of the learned Advocate General of the State, learned Counsel appearing for the High Court and U.P. Public Service Commission Mr. Vijendra Singh, learned Chief Standing Counsel-II, was called upon on 28th February, 2007 to make his submission independently when, in turn, he contended without fear and favour by placing a letter written to the Principal Secretary (Law) and saying that he had taken instruction over telephone. In the discussion the Principal Secretary contended that if the Court passes an order, there should not be any difficulty in accommodating the candidates otherwise it will have to be placed before the Cabinet Committee. Additionally he contended that he had stated earlier that there is no objection in allowing the candidates to sit for the examination giving relaxation of age. He further contended that he has written a letter to the Chief Minister with a copy to the Principal Secretary (Law) and learned Advocate General to withdraw the review application. Learned Counsel appearing for the respondent/ writ petitioner contended that in the process correspondences were already exchanged between the State and the High Court. We have called upon all such correspondences to keep those in the record which was accordingly done.
In JT 2006 (4) SC 531 (supra) the Supreme Court has categorically held that there is a scope of relaxation of eligible age on the harmonious consideration of the Rule 10 read with Rule 4 (m) of the U.P. Judicial Service Rules, 2001. Apart from these two rules, the other parts are very relevant for the purpose. The definition clause of the Rule-4 speaks that the rules will be applicable unless the context otherwise requires. Therefore, the flexibility with regard to process of recruitment is apparent . Rule 6 (3) says that the Governor may from time to time in consultation with the Court leave unfilled or hold in abeyance, any post without thereby entitling any person to compensation or may create from time to time additional posts, temporary or permanent as found necessary. As per Rule 7, competitive examination shall be held in every year of recruitment, subject to availability of vacancies. Second proviso to Rule 10 says, as follows:
"Provided further that where a candidate was eligible in age to appear at the examination in any year of recruitment in which no such examination was held, he shall be deemed to be eligible in age to appear in the next following examination:
Provided also that the maximum number of chances a candidate is permitted to take will be four."
Against this background, order was passed by the Court on the basis of the concession given by the learned Chief Standing Counsel-II on behalf of the State. Such concession appears to be not only backed by the Rules but also on the ratio of the Supreme Court judgement. In 1976 (3) SCC 416 (State of Gujarat Vs. Sardarbegum and others) the Supreme Court held that it is unfair to back out from the concession made by the State. In 1997 (10) SCC 460 (Collector of Customs, Bombay Vs. J.K. Synthetics & Ltd.) although the concession was not given on fact but the Supreme Court did not interfere with the same giving direction to make a review or proceed in any manner as is deemed appropriate, if permissible in law. Here the concession as given by the learned Chief Standing Counsel-II is given totally within the fore-corners of law. In 1998 (4) SCC 179 (Ashok Kumar Uppal and others Vs. State of J&K and others) in view of the earlier Supreme Court decision, it was held that the Government can exercise the power to relax the rules in all those cases, in which hardship is caused in implementation of those rules to meet a particular situation or where injustice has been caused. Even following residuary provisions of the rules, regulations and orders applicable to the State Civil Service in general. In 2005 (10) SCC 644 [Primella Sanitary Products (P) Ltd. and another Vs. Collector of Central Excise, Goa] the concession as made by the Counsel was accepted by the Court by holding a view that It is impossible to believe that the counsel made the concession without instruction from the client. In 2006 (8) SCC 279 (BSNL and others Vs. Subhash Chandra Kanchan and another) even for the purpose of appointment of arbitrator in accordance with law the Supreme Court held that when the High Court having appointed the arbitral tribunal on consent, it is not open to the appellants now to contend that no such concession was made.
Now we have to deal with the question of precedent. We have relied upon the Supreme Court judgement reported in JT 2006 (4) SC 531 (supra) and passed an order following the ratio of such judgement viz a viz the concession on the part of the State. The other Court can interpret the Supreme Court judgement in its own way. But once the Supreme Court laid down a principle it will bind us irrespective of other view, if any. Although factually no such judgement was cited at the time of hearing on 15th December, 2006 when the order was passed by the Court but our stand is that the High Court is compelled to follow the principle laid down by the Supreme Court as per the Article 141 of the Constitution of India. It is held in AIR 2003 SC 2661 (Ashwani Kumar Singh Vs. U.P. Public Service Commission and others) that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Therefore, disposal of cases by blindly placing reliance on a decision is not proper. The wordings of Lord Denning is borrowed from such judgement hereunder:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
In 2001 (1) SCC 4 (State of Maharashtra Vs. Milind and others) Five Judges Bench of the Supreme Court held that it is good to proceed from precedent to precedent but it is earlier the better to give quietus to the incorrect one by annulling it to avoid repetition or perpetuation of injustice, hardship and anything ex facie illegal, more particularly when a precedent runs counter to the provisions of the Constitution. In 1998 (8) SCC 726 (Pradip Gogoi and others Vs. State of Assam and others) a similar circumstance of arising of vacancies in a year and appointments made in some other year was considered and the Supreme Court held contrary to such action. In 2002 (4) SCC 638 (Director of Settlements, A.P. and others Vs. M.R. Apparao and another) the Supreme Court categorically held that Article 141 of the Constitution of India unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgement as a whole in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it can not be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgement of the Court has to be read in the context of questions which arose for consideration in the case in which the judgement was delivered. The decision in a judgement of the Supreme Court can not be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. A judgement of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. In 2002 (8) SCC 31 (Nutan Kumar and others Vs. IInd Additional District Judge and others) it was held that where no conflict between different judgements of the Supreme Court, judicial discipline and propriety demand that binding authority of the Supreme Court will be followed as per Article 141 of the Constitution of India. In such case, the majority judgement of the Full Bench of the High Court with a pretence of humility and reverence refused to follow a binding authority of the Supreme Court. Therefore, it was not open for the Full Bench to comment that the authority was not compatible with provisions of the particular Act therein. The Full Bench also realised that there was no conflicting authority. If there is no conflict then judicial discipline and propriety require that majority of the Full Bench will follow the binding authority of the Supreme Court. As per the ratio of 2000 (5) SCC 488 (Arnit Das Vs. State of Bihar) when a particular point of law was not consciously determined by any co-ordinate Bench, it is said to be rule of sub silentio not the ratio decidendi.
The next point is with regard to Chapter 5 Rule 6 and Rule 12 of the Allahabad High Court Rules. Rule 6 of Chapter 5 deals with reference to a larger Bench upon formulating the point when Rule 12 is made for review. However, a Division Bench of this Court hearing the review application at a stage on the basis of the earlier assignment order on the same day delivered a judgement taking into account the original writ petition herein to refer the matter to a larger Bench taking a plea that there is a conflicting opinion without considering the binding effect of Article 141 of the Constitution in respect of a judgement of the Supreme Court upon the High Court. On the self same day entertained this review application, and instead of disposing the same either way or forwarding the same to the larger Bench by a similar order or by connecting the cause in between, passed a long order elaborating the scope of review discouraging the order originally passed by this Bench and ultimately passed an order of giving concession to the candidates being age bar for holding preliminary examinations. Therefore, we are perplexed with the situation. In 1987 (1) SCC 61 (Devaraju Pillai Vs. Sellayya Pillai) it was held that:
"On an application being filed for review of the judgment of the learned Single Judge, another learned Single Judge of the High Court-- the Judge who heard the second appeal not being available--, virtually sitting in judgment over the decision of the learned Judge who decided the second appeal construed the document differently and held that it was a will not a deed of settlement. This the learned Single Judge was not entitled to do. If the party was aggrieved by the judgment of the learned Single Judge sitting in second appeal the appropriate remedy for the party was to file an appeal against the judgment of the learned Single Judge. A remedy by way of an application for review was entirely misconceived and we are sorry to say that the learned Single Judge who entertained the application totally exceeded his jurisdiction in allowing the review and upsetting the judgment of the learned Single Judge, merely because he took a different view on a construction of the document."
Moreover, such judgement was only made on the basis of the submission of Mr. Amit Sthalekar, learned Counsel appearing for the High Court, about non-consideration of earlier judgement. In AIR 1982 SC 1249 (State of Maharashtra Vs. Ramdas Shrinivas Nayak and another) it was held ".. the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." Propriety demands that in case of such confusing situation the matter would have been placed before the regular Bench hearing the review as and when available with an indication to clarify the situation instead of passing an order holding an opinion against a judicial verdict of a Co-ordinate Bench. In 1998 (7) SCC 162 (State of Orissa and others Vs. Commissioner of Land Records & Settlement, Cuttack and others) speaks as follows:
"29. The decision of the Privy Council in Maharajah Moheshur Sing v. Bengal Govt.[(1857-60) 7 MIA 283 : 3 WR 45 (PC)] to which reference was made by learned Senior Counsel, Shri T.L. Vishwanath Iyer, is very apt in this connection. Adverting to the basic concept of review, it was observed by the Privy Council: (p. 47)
"It must be borne in mind that a review is perfectly distinct from an appeal; that is quite clear from all these Regulations that the primary intention of granting a review was a reconsideration of the same subject by the same Judge, as contradistinguished to an appeal which is a hearing before another Tribunal."
Their Lordships added:
"We do not say that there might not be cases in which a review might take place before another and a different Judge; because death or some other unexpected and unavoidable cause might prevent the Judge who made the decision from reviewing it; but we do say that such exceptions are allowable only ex necessitate. We do say that in all practicable cases the same Judge ought to review;..."
It is, therefore, clear that the same Judge who disposes of a matter, if available, must "review" the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the face of his own order. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle is equally applicable in respect of orders of review passed by quasi-judicial authorities."
It is well known by now that Chapter 5 Rule 12 is the appropriate procedure under the Allahabad High Court Rules to hear out the review application. Such Rule is as follows:
"12. Application for review.-- An application for the review of a Judgement shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the court, the application shall be laid before the Chief Justice who shall, having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such applications :
Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or other to which the application refers, shall be heard or disposed of by a single Judge, and that an application for the review of a judgment of two or more Judges, any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges.
Explanation.--For the purposes of this rule the expression 'no longer attached to the Court' shall be deemed to include absence from the permanent place of sitting on account of the directions given under rule 17 of this Chapter, illness or any other cause."
Therefore, if we fail not to proceed with the review application, it will be failure to exercise the jurisdiction vested on us. If the Court of reference want to consider the cause upon reaching to its finality, it is entirely for it but the same can not be considered prematurely when a decision is to be taken in this regard. Acceptance of the reference to a larger Bench forwarded by the earlier Bench will proceed only on the basis of the conflict of decision in respect of the matters, in which the decision has already taken place but not with regard to the review which is pending. If the decision in review is passed in favour of the applicant/s then there would be no lis before the larger Bench for reference. On the other hand, if the order is passed contrary to the interest of the applicant then such decision may be considered along with the main writ petition, in which an order has been passed by this Court. Learned Counsel appearing for the respondent/ writ petitioner stated in differentiating the power of review and power of reference that in 1996 (1) All CJ 673 (Union of India Vs. Joginder Singh Bhasin and others) it was held by a Full Bench of this Court that when no specific point of law was referred to the Full Bench, the reference is incompetent. Again in a Full Bench judgement reported in 1996 All. L.J. 468 (M/s. Shriram Industrial Enterprises Ltd. Vs. The Union of India and others) it was held that as per Chapter 8 Rule 3 of the Allahabad High Court Rules Full Bench can only hear and give opinion on the point, which has been referred to it. It is not open to the Full Bench to travel beyond the reference and hear and give opinion on questions which have not been referred to it or to re-hear the whole case de novo. In 2002 (1) AWC 184 (Committee of Management, Lal Bahadur Shastri Laghu Madhyamik Vidyalaya, Deoria and another Vs. Asstt. Registrar, Firms, Societies and Chits, Gorakhpur and another) it was held that framing of question of law is a condition precedent for making reference to a larger Bench for decision; and that in the instant case no question or questions of law having been formulated, it will be an exercise in futility to probe and proceed in the matter further. However, it is for the larger Bench to consider.
Learned Counsel for the Commission raised various points that there was no delay in selection. It can not be said that recruitment was not held in the particular year. As per Article 234 of the Constitution of India, recruitment can not be made de hors the rules. It has to be made in consultation with the Public Service Commission. Court has not given any indication about candidates. It was nobody's case what is the period.
Thereafter great amount of emphasis is given by saying last but not the least when Full Bench constituted to resolve the conflict of the decisions held it would be appropriate in order to avoid conflicting judgement of this Court that the review application and other petition relating to same advertisement pending in this Court be also considered by the Full Bench. The matter was placed before the Hon'ble Acting Chief Justice for passing the necessary orders. On 26th February, 2007 an administrative order was passed by saying that the review application relating to the matter and other connected writ petitions, if any, be placed before the Full Bench. In such circumstances, we stopped making further discussion with their arguments on merit but directed them to raise the points to record with citations which was accordingly done. The learned Counsel appearing for the High Court placed a judgement reported in AIR 1991 SC 284 (Keshav Chandra Joshi and others etc. Vs. Union of India and others) to substantiate that the recruitment can not be relaxed. Learned Advocate General with able assistance of his juniors cited judgements on various points which are recorded hereunder. He cited JT 2000 (1) SC 26 (M.M. Thomas Vs. State of Kerala and another) and JT 2000 (5) SC 617 (Lily Thomas, etc. etc. Vs. Union of India and others) on the point of scope of judicial review; 1998 (2) SCC 523 (B.S. Bajwa and another Vs. State of Punjab and others), 1998 (2) SCC 502 (Dr. Ashok Kumar Maheshwari Vs. State of U.P. and another), AIR 2004 SC 1704 (Union of India and others Vs. Mohanlal Likumal Punjabi and others) with regard to concession; AIR 1986 SC 1490 (A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and another), 1991 (3) SCC 87 (State of Tamil Nadu and others Vs. St. Joseph Teachers Training Institute and another), 1995 U.P.T.C. 82 (SC) (Hope Textiles Ltd. and another Vs. Union of India and others) and JT 2007 (1) SC 542 (Raghunath Rai Bareja and another Vs. Punjab National Bank and others) on the point of non-issuance of mandamus contrary to statute; 2006 (8) SCC 294 (Jasbir Singh Vs. State of Punjab), AIR 1998 SC 1344 (State of Rajasthan Vs. Prakash Chand and others) and 2003 U.P.T.C. 53 (Brij Bhushan Chaudhary and others Vs. State of U.P. and others) to establish that Chief Justice is master of the roaster; and JT 2001 (10) SC 347 (Pradip Chandra Parija and others Vs. Pramod Chandra Patnaik and others), JT 2005 (1) SC 97 (Central Board of Dawoodi Bohra Community and another Vs. State of Maharashtra and another) and AIR 1966 All. 73 (Full Bench) (State of Uttar Pradesh and others Vs. Firm Deo Dutt Lakhan Lal) on the point of judicial discipline.
Last two points are immaterial at this stage which is also appreciated by the learned Advocate General.
Situation of the case is very complicated herein. The U.P. Public Service Commission filed a S.L.P. simultaneously with a review and obtained an adjournment on the ground of early disposal of the review. On the other hand, the larger Bench by its order dated 26th February, 2007 observed that it is appropriate that the review application be also considered by that Bench and directed to place the matter to the Hon'ble Acting Chief Justice to pass necessary orders. We are definite that the larger Bench never intended to place the matter hurriedly on that very day when hearing was adjourned till 12th March, 2007. In any event although the hearing of the review application was fixed on the next date i.e. on 27th February, 2007 but an administrative order is obtained from the Hon'ble Acting Chief Justice to place the writ petition along with the review application before the Full Bench. About the scope of reference three Full Bench judgements referred above are indicative. We need reconsideration of the order of the Hon'ble Acting Chief Justice in the following context. Unless the reviewing Court finally comes to a conclusion in the review application, no lis will be available for the larger Bench to consider the matter at a premature stage. If we recall the earlier order, there would not be existence of lis before the larger Bench having no conflicting decision. On the other hand, if we dismiss the review application then only the judgement and order passed in such application can be considered by the larger Bench to avoid the purported multiplicity of the proceedings. In this context it is to be remembered at the same breath a Division Bench of this Court passed an order on 22nd December, 2006 in Civil Misc. Writ Petition No. 69148 of 2006 (Shikha Srivastava and others Vs. State of U.P. and others) referring the matter to the larger Bench treating the judgement of this Bench as contradictory with the other judgement or judgements of the Co-ordinate Bench even after going into the merit of the concession but in the review application, even after giving indication of such reference, passed an order of concession as an interim measure and sent back to this Bench for final disposal. Therefore, our interpretation is that such Division Bench differentiated the scope and ambit of Chapter 5 Rule 12 from Chapter 5 Rule 6 of the Allahabad High Court Rules and proceeded also on the basis of the order of assignment with an intention that if the point is similar, that can be raised before the larger Bench but subject to the decision of the reviewing Court. Therefore, it is needed that the entire records be placed before the Hon'ble Acting Chief Justice for his reconsideration at what stage records will be to sent fulfil the vacuum created herein.
Thus, the records be placed before the Hon'ble Acting Chief Justice to take a decision as to whether records of this Case will be placed before the larger Bench without any order of the Court of review under Chapter 5 Rule 12 of the Allahabad High Court Rules making it functus officio or the reviewing Court will reach to the finality in accordance with law and such final order along with the records will be placed before the larger Bench.
The interim order passed earlier will continue until further order/s to be passed by the appropriate Court. Mr. M.A. Qadeer, learned Counsel appearing for the Commission, has categorically contended that instead of fixing the period until further order let the period be fixed either for one/two/three months as an example. However, due to uncertainty it would not be appropriate for us to pass such order at this stage.
In view of the aforesaid situation, the other two review applications filed on behalf of the High Court and the U.P. Public Service Commission independently will not be heard by this Bench at all at this stage, but the same be sent back along with the records of the case and the present review application to the Hon'ble Acting Chief Justice for reconsideration and passing appropriate order.
(Justice Amitava Lala)
(Justice V.C. Misra)
Dated: 02nd March, 2007.
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