Madhya Pradesh High Court
Smt. Chetna Patle vs The State Of Madhya Pradesh on 1 July, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 11147 of 2025
SMT. CHETNA PATLE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajesh Prasad Dubey - Advocate for the petitioner.
Shri Mohan Sausarkar - Government Advocate for the respondent -
State.
ORDER
(Reserved on : 24.06.2025)
(Pronounced on : 01.07.2025)
The present petitioner has been filed challenging the order Annexure P-8
whereby the seniority of the petitioner has been modified and prayer is made to
restore the earlier seniority list Annexure P-5. As a consequence of down
gradation of seniority of the petitioner vide Annexure P-8, the promotion order
issued to the petitioner vide Annexure P-6 dated 17.08.2024 has not been given
effect to and further prayer is made to give effect to the said promotion order
Annexure P-6 also.
2. The factual matrix of the case is not in dispute and the reason for down
gradation of seniority of the petitioner is also not vexed with complexities and is
for a singular reason, which arises for determination before this Court.
3. The petitioner was initially appointed as Samvida Shala Shikshak at
High School Khamariya Bazar under Chief Executive Officer, Janpad
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JYOTISHI
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Panchayat, Ghansour, District Seoni. The petitioner continued to serve at the
said institution. However, thereafter the petitioner submitted an application for
absorption in urban local body and accordingly, vide order Annexure P-3 dated
02.05.2012 the petitioner was absorbed under Municipal Council, Seoni.
4. Earlier the Samvida Shala Shikshak and Adhyapaks under Adhyapak
cadre in terms of Rules of 2008 were employees of respective local bodies.
Thereafter, the State Government framed statutory rules and gave option to such
teachers to be absorbed under the Department of School Education by framing
Rules known as M.P. State Education Service Teaching Cadre Service
Conditions and Recruitment Rules, 2018. Initially, the petitioner was granted
seniority by reckoning her services from the date of initial appointment in
Janpad Panchayat, Ghansour, District Seoni, but now by Annexure P-8 her
seniority has been redrafted from the day she was absorbed in Municipal
Council, Seoni.
5. Therefore, the issue that arises for determination is whether the
seniority of the petitioner has to be reckoned from the date of her initial
appointment in Janpad Panchayat, Ghansour with effect from 2003 or from
absorption in urban local body, i.e. Municipal Council, Seoni in 2012. It was a
change of local body under which the petitioner was working and the question
therefore is whether the petitioner would count her entire seniority from the date
of initial appointment or the length of service from 2003 to 2012 prior to change
of local body would not be taken into account for the purpose of seniority.
6. Learned counsel for the petitioner has vehemently argued that a Co-
ordinate Bench of this Court in W.P. No.1450/2024 has decided the said issue
and directed that seniority has been reckoned from the date of initial
appointment and change of local body would not lead to loss of seniority once
all the teachers have come under the fold of State Government directly under
the Department of School Education and now are not under any local body. It is
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argued that by interpreting Rule 17(5) of Rules of 2018 the Co-ordinate Bench
in W.P. No.1450/2024 has allowed the case of similarly situated employees and
the petitioner stands at equal footing and is entitled to similar treatment.
7. Per contra, the petition is vehemently opposed by learned Government
Advocate for the State.
8. Heard.
9. Initially, the teachers were appointed in the School Education
Department of the State Government but in the year 1997, the State
Government came out with rules to appoint Shiksha Karmis and different rules
were framed for appointing Shiksha Karmis and placing their services under
urban local bodies and under panchayats. It was a very interesting system
because the schools were run by the School Education Department under the
control of authority of School Education Department and under Sarva Shiksha
Abhiyaan, which is also a project of School Education Department but the
teachers working therein were by a legal fiction, employees of Panchayats or
Urban Local Bodies. For Panchayats, the Shiksha Karmis were appointed in
accordance with M.P. Panchayat Shiksha Karmi (Recruitment and Conditions
of Service) Rules, 1997 and corresponding rules for Urban Local Bodies.
Thereafter, for schools in rural areas where the teachers were under Panchayats,
the said rules were succeeded by M.P. Panchayat Samvida Shala Shikshak
(Appointment and Conditions of Service) Rules, 2001 and in the year 2005,
these rules were further superseded by M.P. Panchayat Samvida Shala Shikshak
(Employment and Conditions of Service) Rules, 2005. For urban areas, separate
corresponding rules were framed, one of which was Madhya Pradesh Nagreeya
Nikay Samvida Shala Shikshak (Employment and conditions of contract) Rules,
2005. By the said Rules of 2001 and 2005, the teachers continued to be
appointed in the Panchayats and Urban Local Bodies by framing separate set of
rules for the purpose and they were now converted into contractual employees
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and all the appointments made after the year 2001 were made on the posts of
Samvida Shala Shikshak Grade-I (for Higher Secondary/High School), Grade-II
(for Middle) and Grade-III (for Primary). The said system continued upto 2008
and in the year 2008, the State Government came out with Rules to absorb such
Shiksha Karmis and Samvida Shala Shikshaks in regular cadre known as
Adhyapak cadre. For Panchayats, Rules were framed known as M.P. Panchayat
Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 and
for urban local bodies, the rules were framed known as M.P. Nagriya Nikay
Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008.
10. Thereafter, in the year 2018 the State Government came out with the
Rules of 2018 and as per Rule 18(2) of the said Rules the teachers working in
Panchayats and Urban local bodies were given an option to migrate to the
service of the State Government in Department of School Education. The
petitioner opted to migrate to the service of State Government and initially her
seniority was reckoned in the cadre under Rules of 2018 by giving effect to her
seniority from the year 2003, when she was initially appointed under Janpad
Panchayat, Gansour. Now her seniority has been downgraded and she has been
given seniority by reckoning her services from 2012, i.e. the date when she got
absorbed in Municipal Council, Seoni.
11. It is not in dispute that prior to 2018 either under the system of
Samvida Shala Shikshak or under Adhyapak cadre constituted in the year 2008,
there used to be separate cadres in urban local bodies and Panchayats. Separate
rules were framed by the State, which have been narrated above, and
concurrently operated for Urban local bodies and in Panchayats. The petitioner
was undisputedly appointed in Janpad Panchayat and there was no provision for
migration of a person appointed under Panchayat to Urban local body. When
the petitioner applied for such absorption in Urban local body, which was
subjected to different rules, then the same was allowed by the State vide
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Annexure P-3 by incorporating condition No.6 to the effect that her seniority in
the absorbed local body would be at the bottom. The aforesaid clause 6 was as
under :-
**6- lafofy;u fd;s tk jgs rkfydk dz- 2 esa of.kZr ofj”B v/;kid]
v/;kid] lgk;d v/;kid dh ofj”Brk dz-7 esa of.kZr lafofy;u fudk;
ds ofj”B v/;kid] v/;kid] lgk;d v/;kid dh ofj”Brk lwph ds
deZpkfj;ksa esa lcls uhps ekU; gksxh A**
12. Learned counsel for the petitioner has vehemently relied on the
judgment of the Co-ordinate Bench in W.P. No.1450/2024, which in turn takes
into account earlier judgment of Division Bench in the case of Smt. Sushma
Pandey vs. State of M.P. & others reported in ILR 2013 MP 58 and by taking
into account the policy issued on the subject i.e. regarding transfer from one
Janpad Panchayat to another Janpad Panchayat. This Court has held as under:-
“6. it is contended by learned Deputy Government Advocate
that the policy was further circulated on 08.11.2005 (Annexure-
P11) wherein it was specifically provided that in case a Siksha
Karmis services are absorbed in the cadre of Adhyapak
Samvarg who is transferred from one institution to another, his
seniority will be put at the bottom of the employees working in
the transferred institution. Thus, it is contended that if the
seniority of the petitioner was fixed according to this guideline
also, the same cannot be said to be bad. Such contention
cannot be accepted as again by making the rules in 2008, it is
deemed that such an instruction of the State Government is
watered down in as much as the prescription of counting of
seniority is already made in the rules. The Rules have force of
law and always supersede the administrative instructions. The
administrative instructions cannot at any rate supersede the
provisions of the rules. Thus such contentions of the
respondents cannot be accepted at all.
7. Consequently it has to be held that the petitioner was entitled
to grant of seniority form the date of initial appointment. Now
an objection is raised by the respondents that those who are
going to be affected by fixation of seniority of the petitioner
over and above them, have not been impleaded as party in the
present petition. This objection is also to be turned down only
because the mistake was committed by the respondents
themselves. They have not fixed the provisions of the rules andSignature Not Verified
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6have acted on such instructions or guidelines or circulars
which are not attracted at all in the case of petitioner.”
It was in the light of the aforesaid judgment that the Co-ordinate Bench in
W.P. No.1450/2024 has allowed the petition. The State counsel informs that
Review Petition filed by the State is pending against the said order. Be that as it
may be.
13. In the case of Sushma Pandey (supra) the Rules of 2018 was not in
issue and what was in issue was some executive instruction framed by the State,
which was contrary to statutory rules and therefore, this Court held that the
seniority has to be reckoned in terms of statutory rules and not in terms of
administrative instructions.
14. The Co-ordinate Bench in W.P. No.1450/2024 has not taken Rule
17(3) of the Rules of 2018 in consideration. The Rule 17 of the Rules of 2018 is
as under:-
“17. “Determination of Seniority.-
(1) The cadre of Prathmik Shikshak shall be at District level.
The fixation of seniority of the members appointed in this cadre
under sub-rule (1), (2) and (3) of rule-5 shall be done at the
district level on the basis of a reference list prepared according
to their date of appointment and seniority in selection list. If
there are more than one person at the same seniority level then
whosoever is older in age shall be considered senior and the
persons junior in age shall be kept below him. In case the date
of recruitment, serial number in the selection list and date of
birth are the same, the seniority shall be determined, after
preparing a reference list, in accordance with the order of their
names written in the English alphabet for each appointing
authority.
(2) The provisional seniority list of each cadre shall be
published by their respective Appointing Authority. Claims and
objections shall be invited within a period of fifteen days and
then the seniority list shall be published in its final form as per
rules.
(3) The seniority of teachers of a local body who have been
absorbed in another local body shall be fixed from the date of
their joining in the concerned new local body.
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(4) The seniority list of each cadre shall be published for the
first time within a period of three months after the
commencement of these rules and thereafter on 1st April very
year.
(5) The cadre of Madhyamik Shikshak shall be at Divisional
Level. Their seniority shall be fixed at divisional level
according to sub-rule (1) of rule 17.
(6) The cadre of Ucch Madhyamik Shikshak shall be at State
level and their seniority shall be fixed at Directorate level
according to sub-rule (1) of these rules.
(7) A committee constituted by the Government shall resolve
the issues relating to the fixation of seniority.”
(Emphasis supplied)
15. The aforesaid Rule 17(3) categorically provides that seniority of
teachers of a local body, who have been absorbed in another local body shall be
fixed from the date of their joining in the concerned new local body. This Rule
17(3) has not been considered by the Co-ordinate Bench of this Court in W.P.
No.1450/2024.
16. The term “local body” is also defined in the Rules of 2018 in Clause
2(l) as under:-
“2(l). Local Bodies” means District Panchayat under the
Panchayat and Rural Development Department and Municipal
Corporation, Municipality. Municipal Council under the Urban
Administration and Development Department;”
17. This Court has to consider that to what extent it is bound with the
decision rendered in WP 1450/2024. Being a Bench of co-equal strength, this
Court is bound to observe and respect the earlier precedent on the well
established principle of stare decisis.
18. In the case of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, a
seven-judges Constitution Bench considered the principle of per incuriam as
under in majority view :-
47. In our opinion, we are not debarred from re-opening this
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8in the present appeal, when the said directions on 16-2-1984,
were violative of the limits of jurisdiction and the directions
have resulted in deprivation of the fundamental rights of the
appellant, guaranteed by Articles 14 and 21 of the
Constitution. The appellant has been treated differently from
other offenders, accused of a similar offence in view of the
provisions of the Act of 1952 and the High Court was not a
court competent to try the offence. It was directed to try the
appellant under the directions of this Court, which was in
derogation of Article 21 of the Constitution. The directions
have been issued without observing the principle of audi
alteram partem. It is true that Shri Jethmalani has shown us the
prayers made before the High Court which are at page 121 of
the paper-book. He argued that since the transfers have been
made under Section 407, the procedure would be that given in
Section 407(8) of the Code. These directions, Shri Jethmalani
sought to urge before us, have been given in the presence of the
parties and the clarificatory order of 5-4-1985 which was made
in the presence of the appellant and his counsel as well as the
counsel of the State Government of Maharashtra, expressly
recorded that no such submission was made in connection with
the prayer for grant of clarification. We are of the opinion that
Shri Jethmalani is not right when he said that the decision was
not made per incuriam as submitted by the appellant. It is a
settled rule that if a decision has been given per incuriam the
court can ignore it. It is also true that the decision of this Court
in the case of Bengal Immunity Co. Ltd. v. State of Bihar [AIR
1955 SC 661 : (1955) 2 SCR 603, 623] was not regarding an
order which had become conclusive inter partes. The court was
examining in that case only the doctrine of precedents and
determining the extent to which it could take a different view
from one previously taken in a different case between different
parties.
(Emphasis supplied)
19. Even the minority view recognized that when a statutory provision
is ignored, the judgment will become per-incuriam, but it will continue to have
binding effect on atleast that case between those parties, though may not have
value as precedent for other cases. The minority view was as under :-
“182. It is asserted that the impugned directions issued by the
Five-Judge Bench was per incuriam as it ignored the statute
and the earlier Chadha case [AIR 1966 SC 1418 : (1966) 2
SCR 678 : 1966 Cri LJ 1071] .
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183. But the point is that the circumstance that a decision is
reached per incuriam, merely serves to denude the decision of
its precedent value. Such a decision would not be binding as a
judicial precedent. A co-ordinate Bench can disagree with it
and decline to follow it. A larger Bench can overrule such
decision. When a previous decision is so overruled it does not
happen — nor has the overruling Bench any jurisdiction so to
do — that the finality of the operative order, inter partes, in
the previous decision is overturned. In this context the word
‘decision’ means only the reason for the previous order and not
the operative order in the previous decision, binding inter
partes. Even if a previous decision is overruled by a larger
Bench, the efficacy and binding nature, of the adjudication
expressed in the operative order remains undisturbed inter
partes. Even if the earlier decision of the Five-Judge Bench is
per incuriam the operative part of the order cannot be
interfered within the manner now sought to be done. That apart
the Five-Judge Bench gave its reason. The reason, in our
opinion, may or may not be sufficient. There is advertence to
Section 7(1) of the 1952 Act and to the exclusive jurisdiction
created thereunder. There is also reference to Section 407 of
the Criminal Procedure Code. Can such a decision be
characterised as one reached per incuriam? Indeed, Ranganath
Misra, J. says this on the point: (para 105)
“Overruling when made by a larger Bench of an earlier
decision of a smaller one is intended to take away the
precedent value of the decision without effecting the binding
effect of the decision in the particular case. Antulay, therefore,
is not entitled to take advantage of the matter being before a
larger Bench.”
(Emphasis supplied)
20. In the case of Punjab Land Development and Reclamation
Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, a 5-
judges Constitutional bench held as under :-
44. An analysis of judicial precedent, ratio decidendi and the
ambit of earlier and later decisions is to be found in the House
of Lords’ decision in F.A. & A.B. Ltd. v. Lupton (Inspector of
Taxes) [1972 AC 634 : (1971) 3 All ER 948] , Lord Simon
concerned with the decisions in Griffiths v. J.P. Harrison
(Watford) Ltd. [1963 AC 1 : (1962) 1 All ER 909] and Finsbury
Securities Ltd. v. Inland Revenue Commissioner [(1966) 1 WLR
1402 : (1966) 3 All ER 105] with their interrelationship and
with the question whether Lupton‘s case [1972 AC 634 : (1971)Signature Not Verified
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103 All ER 948] fell with-in the precedent established by the one
or the other case, said: (AC p. 658)
“…what constitutes binding precedent is the ratio decidendi of
a case, and this is almost always to be ascertained by an
analysis of the material facts of the case–that is, generally,
those facts which the tribunal whose decision is in question
itself holds, expressly or implicitly, to be material.”
21. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16
SCC it was held as under :-
19. It cannot be overemphasised that the discipline demanded
by a precedent or the disqualification or diminution of a
decision on the application of the per incuriam rule is of great
importance, since without it, certainty of law, consistency of
rulings and comity of courts would become a costly casualty. A
decision or judgment can be per incuriam any provision in a
statute, rule or regulation, which was not brought to the
notice of the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio with that of
a previously pronounced judgment of a co-equal or larger
Bench; or if the decision of a High Court is not in consonance
with the views of this Court. It must immediately be clarified
that the per incuriam rule is strictly and correctly applicable to
the ratio decidendi and not to obiter dicta. It is often
encountered in High Courts that two or more mutually
irreconcilable decisions of the Supreme Court are cited at the
Bar. We think that the inviolable recourse is to apply the
earliest view as the succeeding ones would fall in the category
of per incuriam.
(Emphasis supplied)
22. In National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680, the Constitutional Bench considered and affirmed the judgement of
Sundeep Kumar Bafna (supra), and while recognizing that the general
principle is to follow the ratio of co-equal bench, held as under :-
28. In this context, we may also refer to Sundeep Kumar
Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State
of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558]
which correctly lays down the principle that discipline
demanded by a precedent or the disqualification or diminution
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11great importance, since without it, certainty of law, consistency
of rulings and comity of courts would become a costly casualty.
A decision or judgment can be per incuriam any provision in
a statute, rule or regulation, which was not brought to the
notice of the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio with that of
a previously pronounced judgment of a co-equal or larger
Bench. There can be no scintilla of doubt that an earlier
decision of co-equal Bench binds the Bench of same strength.
Though the judgment in Rajesh case [Rajesh v. Rajbir Singh,
(2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149] was delivered on a later
date, it had not apprised itself of the law stated in Reshma
Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65
: (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] but had
been guided by Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ)
726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167]. We
have no hesitation that it is not a binding precedent on the co-
equal Bench.
(Emphasis supplied)
23. In Shah Faesal v. Union of India, (2020) 4 SCC 1, another
Constitution Bench held as under :-
29. In this context of the precedential value of a judgment
rendered per incuriam, the opinion of Venkatachaliah, J., in the
seven-Judge Bench decision of A.R. Antulay v. R.S. Nayak [A.R.
Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri)
372] assumes great relevance : (SCC p. 716, para 183)
“183. But the point is that the circumstance that a decision is
reached per incuriam, merely serves to denude the decision of
its precedent value. Such a decision would not be binding as a
judicial precedent. A coordinate Bench can disagree with it and
decline to follow it. A larger Bench can overrule such
decision. When a previous decision is so overruled it does not
happen — nor has the overruling Bench any jurisdiction so to
do — that the finality of the operative order, inter partes, in the
previous decision is overturned. In this context the word
“decision” means only the reason for the previous order and
not the operative order in the previous decision, binding inter
partes. … Can such a decision be characterised as one reached
per incuriam? Indeed, Ranganath Misra, J. says this on the
point : (para 105)
‘Overruling when made by a larger Bench of an earlier
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12precedent value of the decision without effecting the binding
effect of the decision in the particular case. Antulay, therefore,
is not entitled to take advantage of the matter being before a
larger Bench.'”
31. Therefore, the pertinent question before us is regarding the
application of the rule of per incuriam. This Court while
deciding Pranay Sethi case [National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ)
248 : (2018) 2 SCC (Cri) 205] , referred to an earlier decision
rendered by a two-Judge Bench in Sundeep Kumar
Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State
of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558]
, wherein this Court emphasised upon the relevance and the
applicability of the aforesaid rule : (Sundeep Kumar Bafna
case [Sundeep Kumar Bafna v. State of Maharashtra, (2014)
16 SCC 623 : (2015) 3 SCC (Cri) 558] , SCC p. 642, para 19)
“19. It cannot be overemphasised that the discipline
demanded by a precedent or the disqualification or
diminution of a decision on the application of the per
incuriam rule is of great importance, since without it,
certainty of law, consistency of rulings and comity of
courts would become a costly casualty. A decision or
judgment can be per incuriam any provision in a statute,
rule or regulation, which was not brought to the notice
of the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio with
that of a previously pronounced judgment of a co-equal
or larger Bench; or if the decision of a High Court is not
in consonance with the views of this Court. It must
immediately be clarified that the per incuriam rule is
strictly and correctly applicable to the ratio decidendi
and not to obiter dicta.”
24. I have already noted above that the coordinate Bench only relied on
an earlier judgement in case of Sushma Pandey (supra) which was rendered
when the Rules of 2018 were not in existence. Further, the provision of Rule 17
(3) of Rules of 2018 escaped attention of the Coordinate Bench. The material
provision having escaped the kind consideration of the earlier Bench, I am of
considered opinion, that the aforesaid judgement of the coordinate Bench in WP
1450/2024 is per incuriam.
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25. It is evident that migration from Panchayat to Urban local body
would mean migration from one local body to another in terms with Rule 2(l)
read with Rule 17(3) of Rules of 2018.
26. The petitioner having migrated from one local body to another in the
year 2012 with loss of seniority, therefore is entitled to count her seniority for
the purpose of fixation of inter-se seniority of absorbed employees from the date
of joining in the concerned new local body. This, apart from Rule 17 (3), is also
in accordance with Clause 6 of the absorption order Annexure P-3, whereby the
petitioner had migrated from one local body to another, and was never put to
challenge by the petitioner.
27. The Co-ordinate Bench has not taken note of Rule 17(3) nor taken
note of Rule 2(l) of Rules of 2018. Therefore, the down grading of seniority
vide Annexure P-8 cannot be faulted with as it is in accordance with Rule 17(3)
of Rules of 2018. The petition therefore, deserves to be and is hereby
dismissed.
28. However, it is observed that this judgment is only be for the purpose
of counting of inter-se seniority of absorbed employees, relevant only for the
purpose of promotion. In no manner this judgment would affect the services
rendered between 2003 to 2012 towards length of service for purpose of
increments, retiral benefits, time-bound upgradation, etc. It is made clear that
the said period between 2003 to 2012 shall ensure good for all other purposes,
except inter-se seniority for purpose of promotion.
29. With the aforesaid observations, petition is dismissed.
(VIVEK JAIN)
JUDGE
rj
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