# Kumar Singh and others v. State of

- **Citation:** (2013) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-21
- **Case number:** Civil Misc. Writ Petition No. 20740 of 2012
- **Bench:** Ashok Bhushan, Prakash Krishna, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-singh-and-others-v-state-of-42427
- **Pages:** 19

## Headnote

Constitution of India, Article 226-Right
of
Deputinist-parent
department's
decision to take back those BRC and
NRPC-considering change Government
Policy-facing great scarcity of teachers
on through out the state-whether those
deputinist could resist on ground of
getting higher pay during deputation ?-
held-No.

Held: Para-39

Our answer to the above reframed
question is that the Government order
dated 2nd February, 2011, which has
reconstituted the Block Resource Centres
and Nyaya Panchayat Resource Centres
has rightly provided for sending back the
coordinator/co-coordinators
to
their
parent institutions and their entitlement
to receive higher pay scale was no
impediment in sending back the said
teachers,
moreso
when
actually
no
Headmaster/Teacher/Assistant Teacher
of primary schools was getting higher
pay scale while working as coordinators
of Block Resource Centres or Nyaya
Panchayat Resource Centres.
Case Law discussed:
(1988) 2 SCC 602; (1991) 4 SCC 139; (2011) 1
SCC 694; (2011) 7 SCC 639; (2012) 7 SCC 1;
(2008) 5 SCC 1; (2007) 6 SCC 276; (2010) 4
UPLBEC 2669; (1990) 3 SCC 157; (1988)
Supp. SCC 740; (1983) 3 SCC 33

## Text

_Characters 0–39,758 of 64,256. This is a partial read: ask again with offset=39758 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 20740 of 2012

Arun Kumar Singh & others

 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Ashok Khare
Sri Manoj Srivastava

Counsel for the Respondents:
C.S.C.
Sri K.S.Shukla
Sri S.K. Verma

Constitution of India, Article 226-Right
of
Deputinist-parent
department's
decision to take back those BRC and
NRPC-considering change Government
Policy-facing great scarcity of teachers
on through out the state-whether those
deputinist could resist on ground of
getting higher pay during deputation ?-
held-No.

Held: Para-39

Our answer to the above reframed
question is that the Government order
dated 2nd February, 2011, which has
reconstituted the Block Resource Centres
and Nyaya Panchayat Resource Centres
has rightly provided for sending back the
coordinator/co-coordinators
to
their
parent institutions and their entitlement
to receive higher pay scale was no
impediment in sending back the said
teachers,
moreso
when
actually
no
Headmaster/Teacher/Assistant Teacher
of primary schools was getting higher
pay scale while working as coordinators
of Block Resource Centres or Nyaya
Panchayat Resource Centres.
Case Law discussed:
(1988) 2 SCC 602; (1991) 4 SCC 139; (2011) 1
SCC 694; (2011) 7 SCC 639; (2012) 7 SCC 1;
(2008) 5 SCC 1; (2007) 6 SCC 276; (2010) 4
UPLBEC 2669; (1990) 3 SCC 157; (1988)
Supp. SCC 740; (1983) 3 SCC 33

(Delivered by Hon'ble Ashok Bhushan, J.)

1. A learned Single Judge, while
hearing Writ Petition No.20740 of 2012
(Arun Kumar Singh and others vs. State of
U.P. and others) and other similar matters
made a reference for constituting a Full
Bench to answer following three questions:-

"(a) Whether the power of the parent
department to revoke the deputation even
before the expiry of the term for good and
valid reason is lost, only due to the fact that
the
deputationist
was
getting
some
additional monetary benefits while working
on deputation.

(b) Whether the decision of the
employer in revoking the deputation even
before expiry of the term on good and valid
reasons would be bad merely because the
employee during deputation was getting
better salary/allowances.

(c) Whether the Single Judge was
justified in declaring the judgment of the
Single Judge and of the Division Bench
dated 17.02.2011 and dated 27.05.2011
respectively as per incuriam or he was
obliged to refer the matter to a larger bench
if he had doubts about the said judgments."

2. The Hon'ble the Chief Justice vide
order dated 22nd May, 2012 constituted this
Full Bench.
1 All] Arun Kumar Singh & others V. State of U.P. and others
79

3. Before we proceed to answer the
questions referred, it is necessary to note
background facts giving rise to the
reference.

4. It shall be sufficient to note the
pleadings in Writ Petition No.20740 of
2012 (Arun Kumar Singh and others vs.
State of U.P. and others) for considering the
questions referred which may be treated as
leading writ petition.

5. The petitioners were appointed as
Assistant Teachers in Junior Basic Schools
run by U.P. Board of Basic Education. The
petitioners were appointed as Assistant
Teachers between 1997 to 1999 and were
subsequently given promotion as Assistant
Teacher in Senior Basic Schools between
the year 2004-2006. The constitutional
provisions contained in Part-IV of the
Constitution of India (Articles 39, 41, 45
and 46) enjoin upon the State to frame its
laws and policy to implement objectives
which have been delineated in the aforesaid
constitutional provisions. The aforesaid
constitutional provisions enjoin the State to
take effective steps for providing education
to children. Right to education is now a
fundamental right of children between age
of 6 to 14 and State is obliged to provide
free and compulsory education to all
children. The Central Government for
attaining the aforesaid objectives, had taken
a policy decision to launch a mission
namely "Sarva Shiksha Abhiyan". The State
Governments
were
involved
in
the
implementation of the scheme so that
compulsory education be provided to
children. The State of U.P. has also
launched various schemes for achieving the
aforesaid goal. The Block Resource Centres
and Nyaya Panchayat Resource Centres
(BRC and NPRC) were created towards the
aforesaid end. A Government order dated
1st September, 2001 was issued providing
for
a
methodology
for
selecting
coordinators/co-coordinators
at
Block
Resource Centres and Coordinator at Nyaya
Panchayat
Resource
Centres.
The
Government order contemplated selection
of coordinator at Block Resource Centre
from amongst Headmasters of primary
school or Assistant Teachers of junior high
schools or a teacher who has worked as
coordinator at Nyaya Panchayat Resources
Centre for two years. Similarly for Cocoordinator at Block Resource Centres
Assistant Teachers of primary schools
having four years experience were eligible.
For Coordinator at Nyaya Panchayat
Resource Centre, Headmaster of primary
schools or Assistant Teacher of junior high
schools having 8 years service were
eligible. Necessary posts for coordinator/cocoordinator at Block Resources Centres and
coordinator at Nyaya Panchayat Resource
Centres
were
created
by
the
State
Government.
Large
number
of
coordinator/co-coordinators
at
Block
Resource Centres and coordinator at Nyaya
Panchayat
Resource
Centres
were
appointed in pursuance of the Government
order as modified from time to time. The
engagements of coordinator/co-coordinator
were initially for a period of two years. The
State while implementing the scheme
realised that Nyaya Panchayat Resource
Centres have completely failed to achieve
the object and due to large number of
teachers being posted at Nyaya Panchayat
Resource Centres there is shortage of
teachers
in
the
Primary/Junior
High
Schools. The State Government decided to
reconstitute the Block Resource Centre and
Nyaya Panchayat Resource Centres. A
Government order dated 2nd February,
2011 was issued by the State Government
for reconstituting the aforesaid resource
centres. The State Government decided that
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
coordinators of Block Resource Centre shall
be Assistant Basic Shiksha Adhikari or
Nagar Shiksha Adhikari, ex-officio. It was
further decided that at Nyaya Panchayat
level the Headmasters of Junior High
School shall be made Sankul Prabhari who
shall be ex-officio coordinator of Nyaya
Panchayat Resources Centre. In the new
reconstituted scheme the Coordinators were
thus made ex-officio. The Government also
decided that due to shortage of teachers in
the institutions, it is necessary to send
teachers who have been working at Block
Resource Centres and Nyaya Panchayat
Resource Centres to their parent institutions.
The reconstituted scheme was implemented
and the posts which were created for Block
Resource Centre and Nyaya Panchayat
Resource Centre were surrendered and the
Government order contemplated that out of
surrendered
posts
certain
posts
be
transferred to Nyaya Panchayat Resources
Centre for implementation of new scheme.
The Government order dated 2nd February,
2011 gives figure of the posts which have
been surrendered and the posts which are to
be now utilised by transfer on the aforesaid
posts for implementation of new scheme.
The Government order clearly meant that
earlier scheme is now given up and the new
scheme shall be implemented as a
consequence of which large number of
teachers were to be repatriated to their
parent institutions for teaching work which
was suffering. In pursuance of the
Government order dated 2nd February,
2011, the State Project Director issued a
consequential order dated 10th February,
2011 inviting fresh applications from
Assistant Teachers of Primary and Junior
High Schools for choosing co-coordinators
at Block Resource Centres and Nyaya
Panchayat Resource Centres. The post of
co-coordinators in Block Resource Centre
were to be filled from teachers of Science,
Maths, English, Hindi and Social Science.
After issuance of the Government order
dated 2nd February, 2011 and the order
dated 10th February, 2011, large number of
Assistant Teachers and Headmasters who
were
working
as
cCoordinator/cocoordinators were to be repatriated to their
parent institutions.

6. Those Assistant Teachers and
Headmasters
who
were
working
as
Coordinators
and
Co-coordinators
challenged the Government order dated 2nd
February, 2011 and the order dated 10th
February, 2011 by filing writ petitions. In
this context reference is made to Writ
Petition No.9393 of 2011 (Har Pal Singh
and others vs. State of U.P. and others),
Writ Petition No.10232 of 2011 (Virendra
Singh and others vs. State of U.P. and
others) and Writ Petition No.16615 of 2011
(Subhash Chandra Rathore and another vs.
State of U.P. and others). All the aforesaid
writ petitions were heard and dismissed by
learned Single Judges of this Court
upholding the Government order dated 2nd
February, 2011 and the order dated 10th
February, 2011. The challenge to the
Government order on the ground that
Government order is arbitrary, was repelled.
This Court held that consequent to the
Government
order,
the
teachers
and
Headmasters who were working have to
report to their parent institutions. Special
appeals were filed before the Division
Bench challenging the order of the learned
Single Judges. Reference is made to Special
Appeal No.371 of 2011 (Har Pal Singh &
others vs. State of U.P. and others) which
was filed against the judgment and order of
learned Single Judge dated 17th February,
2011 by which the writ petition was
dismissed. All the special appeals were
heard by the Division Bench of this Court
and vide its detail judgment and order dated
1 All] Arun Kumar Singh & others V. State of U.P. and others
81
27th May, 2011, the Division Bench
dismissed all the special appeals and upheld
the order of learned Single Judges. The writ
petitioners in pursuance of the Government
order dated 2nd February, 2011 applied and
were selected for appointment as cocoordinators. Reference has been made to
the appointment letter dated 19th May,
2011 by which the petitioners were
appointed as co-coordinators in Block
Resource Centres. The petitioners claimed
to have joined in May, 2011 and were
entitled to continue at least up to May,
2013.

7. Several writ petitions being Writ
Petition No.1178 (SS) of 2011 (Sunil Dutt
& others vs. State of U.P. and others) and
other writ petitions have been filed at
Lucknow Bench of this Court in which writ
petitions also the order dated 10th February,
2011 issued by the State Project Director
inviting applications for appointment in
pursuance of the Government order dated
2nd February, 2011 was under challenge.
The aforesaid writ petitions were filed by
those coordinator/co-coordinators who were
selected and working since before 2nd
February, 2011. The petitioners of that writ
petitions challenged the Government order
dated 2nd February, 2011 as well as the
consequential order dated 10th February,
2011 on several grounds including the
ground that by repatriation they will suffer
financial loss since as Block Resource
Coordinators they shall be entitled to
receive higher salary. Before the learned
Single Judge at Lucknow Bench of this
Court the respondents pointed out that writ
petitions filed by similarly situated persons
have already been dismissed by judgment
and order of learned Single Judge in Har
Pal Singh's case (supra) upholding the
Government order dated 2nd February,
2011 and the petitioners have no right to
continue on the post of coordinator/cocoordinators. Before the judgment could be
delivered by the Lucknow Bench of this
Court, the respondents also pointed out that
special appeals against the judgment of
learned Single Judges have also been
dismissed by the Division Bench vide its
judgment and order dated 27th May, 2011.
The learned Single Judge of Lucknow
Bench of this Court after noticing the
judgment of learned Single Judge of this
Court dismissing the writ petition as well as
the Division Bench judgment of this Court
in Har Pal Singh's case (supra), allowed
the writ petitions vide its judgment and
order dated 9th February, 2012. Learned
Single Judge of Lucknow Bench held the
judgments of learned Single Judge and
Division Bench in Har Pal Singh's case
(supra) as per-incuriam. After the judgment
of learned Single Judge dated 9th February,
2012, the State Project Director has
cancelled its earlier order dated 10th
February, 2011 passed in consequence of
the Government order dated 2nd February,
2011. A letter dated 13th April, 2012 was
issued by the State Project Director in
purported compliance of the judgment of
learned Single Judge of Lucknow Bench
dated 9th February, 2012. In Writ Petition
No.20740 of 2012 order dated 13th April,
2012 was challenged. The petitioners are
apprehending that their working as cocoordinators is likely to be interfered with in
view of setting aside the order of State
Project Director dated 10th February, 2011.

8. In pursuance of the order dated 13th
April, 2012, the Basic Shiksha Adhikari in
certain districts have issued an order dated
20th April, 2012 directing for restoration of
earlier position and new appointments of
coordinators
and
co-coordinators
in
pursuance of the Government order dated
2nd February, 2011 were cancelled. For
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
example, in Writ Petition No.20741 of 2012
order passed by the Basic Shiksha Adhikari
dated 20th April, 2012 has been brought on
the record. In all the writ petitions, which
are up for consideration in this bunch of
writ petitions, the order of the State Project
Director dated 13th April, 2012, which has
been issued in pursuance of the order of the
learned Single Judge of Lucknow Bench, is
under challenge.

9. A learned Single Judge of this
Court while entertaining the writ petitions,
has framed the aforesaid three questions and
made a reference and also passed an interim
order staying the order dated 13th April,
2012 of the State Project Director.

10. All the three issues, which have
been referred for consideration being
interconnected, are taken together.

11.

As
noted
above,
the
coordinator/co-coordinators were appointed
earlier in pursuance of the Government
order dated 1st September, 2001 at Block
Resource Centres and Nyaya Panchayat
Resource Centres. Large number of teachers
from
primary
institutions/junior
high
schools including Headmasters of primary
institutions
were
appointed.
For
implementation of Sarva Shiksha Abhiyan
and various projects undertaken by the State
Government for providing compulsory
education to the children schemes were
framed and implemented by the State
Government as a policy decision of the
State
and
the
appointments
as
coordinator/co-coordinators were made by
executive orders issued by the State
Government. The State Government issued
Government order dated 2nd February,
2011 for reconstituting the Block Resource
Centres and Nyaya Panchayat Resource
Centres in reference to the Government
order dated 1st September, 2001 and other
Government orders issued from time to
time. The Government order dated 2nd
February, 2011 specifically noticed that
Nyaya Panchayat Resource Centres created
under Sarva Shiksha Abhiyan are not able
to
provide
impetus
to
education
programmes.
The
State
Government
decided to reconstitute the resource centres
since expected results were not being
delivered by the resource centres. The State
Government also specifically noted that due
to posting of 8249 coordinators at Nyaya
Panchayat Resource Centres there was
shortage of teachers in the institutions. It
was
specifically
provided
in
the
Government order that as there is shortage
of teachers, teachers be sent to their parent
institutions. It is useful to note the salient
features of the Government order dated 2nd
February, 2011 with regard to reconstitution
of Block Resource Centres and Nyaya
Panchayat Resource Centre, which are as
under:-

(i)The Coordinators of Block Resource
Centre shall be henceforth Assistant Basic
Shiksha Adhikari/Nagar Shiksha Adhikari
who shall be ex-officio coordinators of
Block Resource Centre/Urban Resource
Centre.

(ii)The Headmasters of Junior High
Schools who have been made Sankul
Prabhari shall be ex-officio Coordinators of
Nyaya Panchayat Resources Centre.

(iii)The Co-coordinators who shall be
required at Block Resource Centre and
Nyaya Panchayat Resources Centre shall be
appointed and the posts shall be earmarked
subjectwise, namely, Science, Mathematics,
English, Hindi, Social Science and Special
Education.
1 All] Arun Kumar Singh & others V. State of U.P. and others
83

(iv)The posts of coordinators at Nyaya
Panchayat Resources Centre shall be
surrendered and shall be transferred to
Block Resource Centre.

12. The methodology for selecting the
co-coordinators at resource centres was also
changed and qualifications were laid down
in the Government order dated 2nd
February, 2011 and in pursuance of the said
Government order, the State Project
Director issued order dated 10th February,
2012 and thereafter steps were taken in all
districts and co-coordinators were selected
and appointed. The petitioners are thus cocoordinators who have been appointed
subsequent to the Government order dated
2nd February, 2011. The petitioners before
the Lucknow Bench of this Court in Writ
Petition No.1178 (SS) of 2011 (Sunil Dutt
and others vs. State of U.P. and others) and
other
connected
matters
were
the
coordinator/co-coordinators
who
were
selected and working prior to reconstitution
of
the
Block
Resource
Centres
by
Government order dated 2nd February,
2011. Although the writ petitions filed by
similarly
situated
coordinator/cocoordinators appointed and working prior to
2nd February, 2011 like Har Pal Singh's
case (supra) and other writ petitions were
dismissed and the special appeals have also
been dismissed by a Division Bench of this
Court, but a decision was taken by a learned
Single Judge of Lucknow Bench of this
Court in Sunil Dutt's case (supra) holding
the earlier two judgements as per-incuriam
and allowed the writ petition filed by such
coordinator/co-coordinators
who
were
appointed prior to Government order dated
2nd February, 2011 and further allowed
them to continue and also issued mandamus
to pay them higher salary.

13. From the salient features of the
Government order dated 2nd February,
2011, it is clear that earlier policy for
appointment of coordinator/co-coordinators
were changed and given up with specific
stipulation that teachers who were earlier
appointed
shall
go
to
their
parent
institutions since there was shortage of
teachers for teaching and new scheme will
be implemented in which coordinators at
Block Resource Centres as well as Nyaya
Panchayat Resource Centres shall be exofficio Assistant Basic Shiksha Adhikari
and Sankul Prabhari. Various posts earlier
created were surrendered and transferred.
Thus the Government order completely
reconstituted the scheme and abolished the
scheme of coordinators at Block Resource
Centres and Nyaya Panchayat Resource
Centres. There cannot be any dispute that
policy making is in the domain of the State
and policy can be changed from time to
time by the State Government. One of the
submissions which has been noticed in
Sunil Dutt's case (supra) is that the policy
dated 2nd February, 2011 shall be
prospectively implemented and shall not
effect appointments already made. It was
also
noticed
that
the
process
of
appointment, which was introduced by the
Government order dated 2nd February,
2011, is only for future appointment and the
said
Government
order
was
to
be
implemented with immediate effect. The
submission noted in Sunil Dutt's case
(supra) is that the new policy cannot affect
the
working
of
the
coordinator/cocoordinators who are already working. The
policy was a integrated policy which
affected
both
i.e.
coordinator/cocoordinators who were working at the
relevant time and those who were to be
newly appointed in accordance with the
changed
policy.
When
the
policy
contemplated that there is shortage of
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
teachers and the teachers working in the
Nyaya Panchayat Resource Centres shall be
reverted to their parent institution, the said
policy clearly affected the incumbents who
were already working as coordinator/cocoordinators. Thus the submission that the
said Government order cannot be applicable
on the coordinator/co-coordinators who are
already working is fallacious and against the
clear stipulation in the Government order
dated 2nd February, 2011.

14. Before the learned Single Judge
and also before the Division Bench in Har
Pal Singh's case (supra) all the arguments
made by coordinator/co-coordinators who
were working at the time of issuance of
Government order dated 2nd February,
2011, were raised and considered. The
Division Bench noted following 4 points for
consideration which are as under:-

"(1) Under what circumstances this
Court can interfere in policy decisions taken
by the State Government.

(2) Whether the change in policy by
issuance of Government Order dated 2nd
February,
2011
is
arbitrary
and
unreasonable.

(3) Whether the appellants have any
vested right to continue as Coordinator/CoCoordinator after the Government dated
2nd February, 2011 is given effect to.

(4) Whether the learned Single Judge
was bound to follow the interim order
passed in a similar matter by another Single
Judge of the Lucknow Bench of this Court."

15. Both the parties made elaborate
submissions on the aforesaid points and
while answering Point No.1 and 2, the
Division
Bench
made
following
observations:-

"From the perusal of the Government
Order dated 2nd February, 2011, we are of
the considered opinion that the change in
the policy effected by the State Government
is based on relevant considerations and
cannot be said to be arbitrary so as to
entitle this Court to interfere. It is for the
State Government to see that the teaching
does not suffer. It is the constitutional
obligation to provide free education to the
children between the age of 6years and 14
years. This is specially in aid of achieving
the avowed object. Therefore, it cannot be
said that the policy framed by the
Government is arbitrary. The submission of
the learned counsel for the appellants that
one set of teachers are being replaced by
another set of teachers is wholly misplaced.
The
existing
Coordinators/Assistant
Coordinators were not doing any regular
teaching work. They were involved in
supervision of teaching work and various
other activities as a result of which teaching
work in the school suffered. In the new
scheme Co-Coordinators are also required
to do teaching work which will be a
welcome
step
towards
fulfilling
the
constitutional obligation.

The plea that the Government Order
dated 2nd February, 2011 would operate
prospectively and would not cover the cases
of existing Coordinators/Co-Coordinators
is not correct. It is to be taken note of that
all the appellants have been appointed as
Coordinators/Assistant Coordinators, as the
case may be, on a fixed term of two years on
deputation basis and they are still holding
their lien on their original post. They are
not being paid any extra remuneration what
they were getting as teachers. Their primary
duty is to teach students. If for some reason
1 All] Arun Kumar Singh & others V. State of U.P. and others
85
they have been appointed under a policy
and on a review of their working the
Government comes to the conclusion that it
is not achieving the desired result it is fully
entitled to change the policy. The appellants
have no vested rights to say that their
appointment
as
Coordinators/CoCoordinators cannot be terminated midway.
We find from the letter of appointment that
a specific condition has been mentioned
there that their appointment can be
cancelled at any time. That being the
position we are of the considered opinion
that with the change of policy the appellants
cannot claim any right to continue to
complete their full tenure.

Applying the test laid down by the
Apex Court in the aforesaid cases regarding
interference in a policy decision, we are of
the considered opinion that above policy
framed by the State Government cannot be
said to be arbitrary, unreasonable and it is
the result of conscious decision on a review
of the working of the existing system of
Coordinators and Co-Coordinators and
State is well within the jurisdiction to
change the same in order to achieve the
desired result. We may mention here that
there is not allegation of mala fied raised
against the State Government or the
Authorities in framing the said policy. We
further find that the change in the policy is
of the State Government is well informed by
reasons and it is to ensure that the
education of the children does not suffer.
Therefore, it cannot be said to be arbitrary
and unreasonable so as to violate Article 14
of the Constitution of India or other
parameters deduced under Point No.1."

16. The issue as to whether the
coordinator/co-coordinators have
vested
right to continue, was negativated and
following was laid down by the Division
Bench:-

"While dealing with Point No.2
hereinabefore we have already held that the
appointment
of
the
appellant
as
Coordinators/Co-Coordinators was for a
fixed term of 2 years. They were not paid
any extra remuneration for that work. We
also find that their lien on the original post
of teacher has been maintained. Thus their
appointment on the post of Coordinator/CoCoordinator is only by way of deputation
even if the appointment has been made by
facing a selection process. It can be
terminated at any time either by a special or
general order as held by this Court in the
case of Ram Kumar( supra) that an
officiating employee has no right to post
and his appointment can be cancelled at
any time.

In the case of Babu Ram Ashok Kumar
and another vs. Antarim Zila Parishad, AIR
1964 Alld. 534, the Full Bench of this Court
has held as follows:

'(9) A Court of appeal would not
interfere with the exercise of discretion by
the Court below, if the discretion has been
exercised in good faith, after giving due
weight to relevant matters and without
being swayed by irrelevant matters. If two
views are possible on the question, then also
the Court of appeal would not interfere,
even though it may exercise discretion
differently, were the case to come initially
before it. The exercise of discretion should
manifestly be wrong.'

Respectfully following the law laid
down in the aforesaid case to the facts of
the present case, we are of the view that the
discretion exercised by the learned Single
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Judge does not call for any interference as
it is in accordance with law."

17. The judgment of learned Single
Judge in Sunil Dutt's case (supra) has taken
a view that the issue that coordinator/cocoordinators shall be getting less salary after
repatriation and this question was not
considered by the Division Bench in Hal
Pal Singh's case (supra). It is relevant to
note that the Division Bench while dealing
with Point No.3 noted following regarding
emoluments:-

"It may be mentioned here that all the
appellants are being paid the same
emoluments which they were getting as
teachers and they are not paid any extra
amount for the work which they are doing
as Coordinator/Co- Coordinator. However,
after being appointed as Coordinator and
Co- Coordinator they have stopped doing
teaching work in their respective schools."

18. Learned Single Judge in Sunil
Dutt's case (supra) although noted that
coordinator/co-coordinators are getting the
same salary but took the view that they are
entitled for payment in higher scale and
ultimately issued direction for making
payment of the post of Headmaster of
Junior High School. Thus it transpires that
coordinator/co-coordinators were not being
paid any higher pay scale to which they
were getting while working as Assistant
Teacher/Headmaster that is why the
Division Bench noticed that while working
as coordinator/co-coordinators they were
not being paid any higher emoluments.
Thus the fact that petitioners before the
learned Single Judge of Lucknow Bench
claimed that they are entitled for higher
emoluments was not a factor on the basis of
which it can be said that the judgments of
learned Single Judge and Division Bench of
this Court in Har Pal Singh's case (supra)
can be treated to be a not binding precedent
and has virtually held them to be perincuriam.

19. Then a judgment can be held to be
per-incuriam is now to be looked into and
we have to answer as to whether the
judgments of learned Single Judge and
Division Bench in Har Pal Singh's case
(supra) can be held to be per-incuriam.

20. The word "per-incuriam" is a
Latin word which is defined in P.
Paramanatha Aiyar "Law Lexicon" (1997th
Edition) in following words:-

"Per incuriam. Through inadvertence
or though want of care. (Latin for Lawyers)
Through
carelessness,
through
inadvertence.

A decision should be treated as given
per incuriam when it is given in ignorance
in terms of a statute, or of a rule having the
force of a statute..."

21. Per-incuriam is an exception to a
binding precedent. A constitution Bench of
the Apex Court in the case of A.R. Antulay
vs. R.S. Nayak and another reported in
(1988)2 SCC 602 considered the concept of
per-incuriam. In the said case an earlier
order dated 16th February, 1984 was passed
without taking into consideration Section
7(2) of the Criminal Law Amendment Act,
1952. The question arose as to whether said
directions are per-incuriam. The Apex
Court laid down following in paragraph 42
of the said judgment:-

"42. ....... ''Per incuriam' are those
decisions
given
in
ignorance
or
forgetfulness of some inconsistent statutory
provision or some authority binding on the
1 All] Arun Kumar Singh & others V. State of U.P. and others
87
Court concerned so that in such cases some
part of the decision or some step in the
reasoning on which it is based is found, on
that account to be demonstrably wrong. See
Morelle v. Wakeling. Also see State of
Orissa v. Titaghur Paper Mills Co. Ltd. We
are of the opinion that in view of the clear
provisions of Section 7(2) of the Criminal
Law Amendment Act, 1952 and Articles 14
and 21 of the Constitution, these directions
were legally wrong."

22. The Apex Court had occasion to
consider as to when a judgment is held to be
per-incuriam in the case of State of U.P. vs.
Synthetics and Chemicals Ltd. reported in
(1991)4 SCC 139 and laid down following
in paragraphs 40 and 41:-

"40.
'Incuria'
literally
means
'carelessness'. In practice per incurium
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'. (1944 IKB 718
Young v. Bristol Aeroplane Ltd. 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. In
Jaisri Sahu v. Rajdewan Dubey, [1962] 2
SCR 558 this Court while pointing out the
procedure to be followed when conflicting
decisions are placed before a Bench
extracted a passage from Halsbury Laws of
England
incorporating
one
of
the
exceptions when the decision of an
Appellate Court is not binding.

41. Does this principle extend and
apply to a conclusion of law, Which was
neither raised nor preceded by any
consideration. In other words can such
conclusions be considered as declaration of
law? Here again the English Courts and
jurists have carved out an exception to the
rule of prece- dents. It has been explained
as rule of sub-silentio. A decision passed
sub-silentio, in the technical sense that has
come to be attached to that phrase, when
the particular' point of law involved in the
decision is not perceived by the Court or
present to its mind' (Salmond 12th Edition).
In Lancaster Motor Company (London) Ltd.
v. Bremith Ltd., [1941] IKB 675 the Court
did not feel bound by earlier decision as it
was rendered 'without any argument,
without reference to the crucial words of the
rule and without any citation of the
authority'. It was approved by this Court in
Municipal Corporation of Delhi v. Gumam
Kaur, [1989] 1 SCC 101. The Bench held
that, 'prece- dents sub-silentio and without
argument are of no moment'. The Courts
thus have taken recourse to this principle
for relieving from injustice perperated by
unjust precedents. A decision which is not
express and is not founded on reasons nor it
proceeds on consideration of issue cannot
be deemed to be a law declared to have a
binding effect as is contemplated by Article
141. Uniformity and consistency are core of
judicial discipline. But that which escapes
in the judgment without any occasion is not
ratio decedendi. In Shama Rao v. State of
Pondicherry, AIR 1967 SC 1680 it was
observed, 'it is trite to say that a decision is
binding not because of its conclusions but in
regard to its ratio and the principles, laid
down
therein'.
Any
declaration
or
conclusion arrived without application of
mind or preceded without any reason
cannot be deemed to be declaration of law
or authority of a general nature binding as
a precedent. Restraint in dissenting or
overruling is for sake of stability and
uniformity but rigidity beyond reasonable
limits is inimical to the growth of law."
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

23. In large number of cases the Apex
Court had explained and reiterated the
grounds when a judgment can be held to be
per-incuriam. It is useful to note certain
recent judgments regarding per-incuriam. In
the case of Siddharam Satlinagappa
Mhetre vs. State of Maharashtra reported
in (2011)1 SCC 694 following was laid
down in paragraphs 128, 129 and 130
which are as under:-

"128. Now we deem it imperative to
examine the issue of per incuriam raised by
the learned counsel for the parties. In Young
v. Bristol Aeroplane Company Limited
(1994) All ER 293 the House of Lords
observed that `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. The 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.

In Halsbury's Laws of England (4th
Edn.) Vol. 26: Judgment and Orders:
Judicial Decisions as Authorities (pp. 29798, para 578) per incuriam has been
elucidated as under:

''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 follow (Young v. Bristol
Aeroplane Co. Ltd., 1944 KB 718 at 729 :
(1944) 2 All ER 293 at 300. In Huddersfield
Police Authority v. Watson, 1947 KB 842 :
(1947) 2 All ER 193.); 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 force.'

129.
Lord
Godard,
C.J.
in
Huddersfield Police Authority v. Watson
(1947) 2 All ER 193 observed that where a
case or statute had not been brought to the
court's attention and the 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.

130. This court in Government of A.P.
and Another v. B. Satyanarayana Rao
(dead) by LRs. and Others (2000) 4 SCC
262 observed as under:

''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 while deciding that issue."

24. Again in the case of State of
Madhya Pradesh vs. Narmada Bacho
Andolan reported in (2011)7 SCC 639
following was laid down in paragraph 67
which is as under:-

"Thus, ''per incuriam' are those
decisions
given
in
ignorance
or
forgetfulness of some statutory provision or
authority binding on the Court concerned,
or a statement of law caused by
inadvertence or conclusion that has been
arrived at without application of mind or
proceeded without any reason so that in
such a case some part of the decision or
some step in the reasoning on which it is
1 All] Arun Kumar Singh & others V. State of U.P. and others
89
based, is found, on that account to be
demonstrably wrong."

25. In the case of Rattiram and others
vs. State of Madhya Pradesh reported in
(2012)4 SCC 516 following was laid down
in paragraphs 30, 31 sand 32:-

"30. In this context, it is useful to refer
to a passage from A. R. Antulay (supra),
wherein, Sabyasachi Mukharji, J (as his
Lordship then was), while dealing with the
concept of per incuriam, had observed
thus:-

''42. ..... ''Per incuriam' are those
decisions
given
in
ignorance
or
forgetfulness of some inconsistent statutory
provision or of some authority binding on
the court concerned, so that in such cases
some part of the decision or some step in
the reasoning on which it is based, is found,
on that account to be demonstrably wrong.'

Again, in the said decision, at a later
stage, the Court observed:-

''It is a settled rule that if a decision
has been given per incuriam the court can
ignore it.'

31. In Punjab Land Development &
Reclamation Corporation Ltd. v. Presiding
Officer, Labour Court, Chandigarh &
another Constitution Bench, while dealing
with the issue of per incuriam, opined as
under:-

''The Latin expression per incuriam
means through inadvertence. A decision can
be said generally to be given per incuriam
when this Court has acted in ignorance of a
previous decision of its own or when a High
Court has acted in ignorance of a decision
of this Court.'

32. In State of U. P. And Another v.
Synthetics and Chemicals Ltd. And Another,
a two-Judge Bench adverted in detail to the
aspect of per incuriam and proceeded to
highlight as follows:-

''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.17). 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."

26. In one recent judgment the Apex
Court had occasion to consider conflicting
views expressed by two Division Benches
of this Court in the case of U.P. Power
Corporation Limited vs. Rajesh Kumar
and others reported in (2012)7 SCC 1.