Delhi High Court
Ramjas School Anand Parvat Senior … vs Archna Chugh & Anr. on 13 February, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~69 & 70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 107/2025, CM APPLs. 8556/2025, 8557/2025 &
8558/2025
RAMJAS SCHOOL ANAND PARVAT SENIOR WING
(THROUGH ITS CHAIRMAN) .....Appellant
Through: Mr. Alok Kumar, Sr. Adv. with
Mr. Soumya Bhowmik, Mr. Amanullah, Mr.
Amit Kr. Singh, Mr. U. Maheshwari and Mr.
Manan Soni, Advs.
versus
ARCHNA CHUGH & ANR. .....Respondents
Through: Mr. Pramod Kr. Singhal and
Mr. Rahul Singhal, Advs. for R-1
Mr. Gaurav Dhingra and Mr. Shashank
Singh, Advs. for R-2
+ LPA 108/2025, CM APPLs. 8563/2025 & 8564/2025
RAMJAS SCHOOL ANAND PARVAT SENIOR WING
(THROUGH ITS CHAIRMAN) .....Appellant
Through: Mr. Alok Kumar, Sr. Adv. with
Mr. Somya Bhowmik, Mr. Amanullah, Mr.
Amit Kr. Singh, Mr. U. Maheshwari and Mr.
Manan Soni, Advs.
versus
RANJANA TREHAN & ANR. .....Respondents
Through: Mr. Pramod Kr. Singhal and
Mr. Rahul Singhal, Advs. for R-1
Mr. Gaurav Dhingra and Mr. Shashank
Singh, Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
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JUDGMENT (ORAL)
% 13.02.2025
C. HARI SHANKAR, J.
1. The respondents in these appeals were suspended by the
Chairman of the appellant-School1. Prior approval of the Director of
Education2, under Rule 8(4) of the Delhi School Education Rules,
19733 was not obtained. A learned Single Judge of this Court has set
aside the suspension orders on this sole ground. The School is in
appeal.
2. The issue is squarely covered by the judgment of the Supreme
Court in Raj Kumar v Director of Education4.
3. As this is the only issue in dispute, and the fact stand
sufficiently captured in the judgment of the learned Single Judge, we
need not burden this judgment with a reiteration thereof.
4. Before proceeding further, we may straightaway address the
contention, of the appellant in the present appeals, that the judgment in
Raj Kumar would not apply as it deals with Section 8(2)5, and not
Section 8(4), of the DSE Act. The contention has merely to be urged
to be rejected. Section 8(2), like Section 8(4), requires prior approval
1 “the School” hereinafter
2 “the Director” hereinafter
3 “the DSE Rules” hereinafter
4 (2016) 6 SCC 541
5 8. Terms and conditions of service of employees of recognised private schools-
*****
(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school
shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the
prior approval of the Director.
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of the Director to be obtained before dismissing, removing, or
reducing, in rank, any employee of a recognized private school. That
the appellant is a recognized private School is not disputed. The only
difference between Section 8(2) and 8(4) is that Section 8(4) is hedged
in by two provisos, which permit the School to suspend an employee
in emergent circumstances, where the School is satisfied that the
employee was guilty of gross misconduct. Even in such cases,
however, the second proviso to Section 8(4) requires the approval of
the Director to be obtained within 15 days, failing which the
suspension ipso facto comes to an end. Admittedly, no such approval,
of the Director, was obtained within 15 days of the suspension of the
respondents. The learned Single Judge has dealt with this issue thus,
in the impugned judgment, and we agree with her:
“22. Coming to the present writ petitions, it is an undisputed fact
that both the Petitioners were suspended without prior approval of
DoE. Assuming in favour of the School, albeit that is not the case
set up, that there was an immediate necessity of suspending the
Petitioners, the School was not helpless and as observed by the
Full Bench of this Court in Delhi Public School 6, it was open to
the Managing Committee to suspend the Petitioners without prior
approval and then seek approval from the Director within the
period specified in the first Proviso to Section 8(4) of DSEAR. In
the eventuality that the Director did not grant approval within the
period prescribed under the Statute, then the suspension would
have automatically lapsed at the end of 15th day reckoned from the
date of suspension, but if the approval was granted within 15 days,
the suspension would have been valid. Even where the Director did
not take a decision, if approval was sought within the prescribed
period, an option was available to the Managing Committee of the
School to either insist that the decision be taken, though belatedly
and thereafter pass a fresh order of suspension or if the Director
took a decision and refused to accord approval, to challenge the
said decision on well-established grounds of judicial review, but it
was certainly not open to the School to charter a course different
from any of the legally permissible ones. Admittedly, suspension
6 Delhi Public School v Director of Education, 100 (2002) DLT 530 (FB)
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orders were passed without prior approval of the Director and
even post passing of the orders there is no approval with the
prescribed period of 15 days and hence it has to be held that the
suspension orders lapsed on the expiry of the 15th day from the
dates of issuance of the said orders. Read simply, the object of
Section 8(4) of DSEAR is to protect and safeguard the employees
and at the same time counter balance the right of the School to
suspend a delinquent employee and it is a cardinal principle of
interpretation of statutes that words of the Statute must be
understood in their natural and ordinary sense unless the
construction leads to an absurdity or runs contrary to the object of
the Statute.”
(Emphasis supplied)
5. The plea that Raj Kumar does not apply for this reason,
therefore, fails.
6. We turn, now, to Raj Kumar.
7. Raj Kumar was a driver, employed with the DAV Public
School7. His services were terminated by the DAVPS. He instituted
an industrial dispute, contending that his termination amounted to
“retrenchment” within the meaning of Section 2 (oo) of the Industrial
Disputes Act, 1947, and had been effected in breach of Section 25-F
of the said Act. That issue does not consider us. However, Issue (iii),
as thus framed by the Supreme Court as arising before it for
consideration, is relevant:
“(iii) Whether the provision of Section 8(2) of the DSE Act is
applicable to the facts of the instant case?”
8. The following paragraphs from the judgment in Raj Kumar,
which address this issue, merit reproduction :
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40. The learned counsel for the appellant contends that the
respondent School is a recognised private school and the appellant
is an “employee” in terms of Section 2(h) of the DSE Act. Chapter
IV of the DSE Act provides for the terms and conditions of
services of an employee of a recognised private school. Section
8(2) of the DSE Act contemplates that no employee of a recognised
private school shall be dismissed, removed or reduced in rank nor
shall their services be otherwise terminated except with the prior
approval of the Director of Education, Delhi. In the instant case,
the respondent Managing Committee, before terminating the
services of the appellant did not comply with the said mandatory
provision of Section 8(2) of the DSE Act. The learned counsel for
the appellant further contends that the notice regarding termination
of service was served on the appellant on 7-1-2003, and as on that
date, the aforesaid statutory provision was valid and binding.
41. The learned counsel for the appellant submits that Section
8(2) of the DSE Act is a substantive right provided for
safeguarding the conditions of services of an employee. The
termination of services of the appellant without obtaining prior
permission of the Director, renders the action of the respondent
School as void. The learned counsel contends that when statutory
provisions provide a procedure to do an act in a particular manner,
it should be done in that very manner or not at all. Reliance is
placed on the decision of this Court in Babu Verghese v.Bar
Council of Kerala8.
“31 . It is the basic principle of law long settled that if
the manner of doing a particular act is prescribed under
any statute, the act must be done in that manner or not at
all. The origin of this rule is traceable to the decision
in Taylor v Taylor9 which was followed by Lord Roche
in Nazir Ahmad v King Emperor10 who stated as under :
‘… where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at
all.’
32. This rule has since been approved by this Court
in Rao Shiv Bahadur Singh v State of Vindhya
Pradesh11and again in Deep Chand v State of7
“the DAVPS” hereinafter
8 (1999) 3 SCC 422
9 (1875) LR 1 Ch D 426
10 1936 SCC OnLine PC 41
11 AIR 1954 SC 322
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Rajasthan12. These cases were considered by a three-
Judge Bench of this Court in State of U.P. v Singhara
Singh13and the rule laid down in Nazir Ahmad case was
again upheld. This rule has since been applied to the
exercise of jurisdiction by courts and has also been
recognised as a salutary principle of administrative law.”
(emphasis supplied)
42. On the other hand, the learned counsel appearing on behalf
of the respondent School contends that there was no requirement
on the part of the respondent Managing Committee to comply with
Section 8(2) of the DSE Act. Reliance is placed on the decision of
the Delhi High Court in Kathuria Public School v Director of
Education 14, wherein Section 8(2) of the DSE was struck down . It
was held as under :
“21. If the aforesaid observations of the Supreme Court
in T.M.A. Pai case 15 are taken to its logical conclusion, it
would imply that there should be no such requirement of
prior permissions or subsequent approval in matter of
discipline of the staff. Thus, whether it is for suspension or
disciplinary action, the educational institutions would have
a free hand. The safeguard provided is for a judicial tribunal
to be set up to examine the cases.”
43. A Constitution Bench of this Court had held in T.M.A. Pai
Foundation v State of Karnataka as under
“61. In the case of unaided private schools, maximum
autonomy has to be with the management with regard to
administration, including the right of appointment,
disciplinary powers, admission of students and the fees to
be charged.
*****
64. An educational institution is established only for the
purpose of imparting education to the students. In such an
institution, it is necessary for all to maintain discipline and
abide by the rules and regulations that have been lawfully
framed. The teachers are like foster parents who are
required to look after, cultivate and guide the students in
their pursuit of education. The teachers and the institution
exist for the students and not vice versa. Once this principle12 AIR 1961 SC 1527
13 AIR 1964 SC 358
14 (2004) 113 DLT 703
15 T.M.A. Pai Foundation v State of Karnataka, (2002) 8 SCC 481
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is kept in mind, it must follow that it becomes imperative
for the teaching and other staff of an educational institution
to perform their duties properly, and for the benefit of the
students. Where allegations of misconduct are made, it is
imperative that a disciplinary enquiry is conducted, and that
a decision is taken. In the case of a private institution, the
relationship between the management and the employees is
contractual in nature. A teacher, if the contract so provides,
can be proceeded against, and appropriate disciplinary
action can be taken if the misconduct of the teacher is
proved. Considering the nature of the duties and keeping
the principle of natural justice in mind for the purposes of
establishing misconduct and taking action thereon, it is
imperative that a fair domestic inquiry is conducted. It is
only on the basis of the result of the disciplinary enquiry
that the management will be entitled to take appropriate
action. We see no reason why the management of a private
unaided educational institution should seek the consent or
approval of any governmental authority before taking any
such action. In the ordinary relationship of master and
servant, governed by the terms of a contract of employment,
anyone who is guilty of breach of the terms can be
proceeded against and appropriate relief can be sought.
Normally, the aggrieved party would approach a court of
law and seek redress. In the case of educational institutions,
however, we are of the opinion that requiring a teacher or a
member of the staff to go to a civil court for the purpose of
seeking redress is not in the interest of general education.
Disputes between the management and the staff of
educational institutions must be decided speedily, and
without the excessive incurring of costs. It would, therefore,
be appropriate that an Educational Tribunal be set up in
each district in a State to enable the aggrieved teacher to file
an appeal, unless there already exists such an Educational
Tribunal in a State–the object being that the teacher should
not suffer through the substantial costs that arise because of
the location of the Tribunal; if the tribunals are limited in
number, they can hold circuit/camp sittings in different
districts to achieve this objective. Till a specialised tribunal
is set up, the right of filing the appeal would lie before the
District Judge or Additional District Judge as notified by the
Government. It will not be necessary for the institution to
get prior permission or ex post facto approval of a
governmental authority while taking disciplinary action
against a teacher or any other employee. The State
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file an appeal against the decision of the management
concerning disciplinary action or termination of service.”
(emphasis supplied)
44. The learned counsel appearing on behalf of the respondent
School submits that not obtaining prior approval for the
termination of the services of the appellant is thus, justified.
45. We are unable to agree with the contention advanced by the
learned counsel appearing on behalf of the respondent School.
Section 8(2) of the DSE Act is a procedural safeguard in favour of
an employee to ensure that an order of termination or dismissal is
not passed without the prior approval of the Director of Education.
This is to avoid arbitrary or unreasonable termination or dismissal
of an employee of a recognised private school.
46. The State Legislature is empowered to enact such statutory
provisions in relation to educational institutions, from Schedule VII
List II Entry 11 of the Constitution of India, which reads as:
“11. Education including universities….”
(emphasis supplied)
47. A number of legislations across the country have been
enacted which deal with the regulation of educational institutions,
which contain provisions similar to the one provided for under
Section 8(2) of the DSE Act. One such provision came for
consideration before a Constitution Bench of this Court in Katra
Education Society v State of U.P.16 The impugned provisions
therein were certain sections of the amended Intermediate
Education Act (U.P. Act 2 of 1921). Section 16-G of the
Intermediate Education (Amendment) Act, 1958 provided that the
Committee of Management could not remove or dismiss from
service any Principal, Headmaster or teacher of a college or school
without prior approval in writing of the Inspector. The Amendment
Act also contained other provisions providing for governmental
control over certain other aspects of the educational institutions.
Adjudicating upon the competence of the State Legislature to enact
the amending Act, this Court held as under:
“8. Power of the State Legislature to legislate under the
head ‘education including universities’ in Schedule VII List
II Entry 11 would prima facie include the power to impose
restrictions on the management of educational institutions16 AIR 1966 SC 1307
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in matters relating to education. The pith and substance of
the impugned legislation being in regard to the field of
education within the competence of the State Legislature,
authority to legislate in respect of the maintenance of
control over educational institutions imparting higher
secondary education and for that purpose to make
provisions for proper administration of the educational
institutions was not denied. But it was said that the
impugned Act is inoperative to the extent to which it seeks
to impose controls upon the management of an educational
institution registered under the Societies Registration Act
and managed through trustees, and thereby directly trenches
upon legislative power conferred by List I Entry 44 and List
III Entries 10 and 28. This argument has no substance. This
Court has in Ayurvedic and Unani Tibia College v. State
of Delhi17 held that legislation which deprives the Board of
Management of a Society registered under the Societies
Registration Act of the power of management and creates a
new Board does not fall within List I Entry 44, but falls
under List II Entry 32, for by registration under the
Societies Registration Act the Society does not acquire a
corporate status. It cannot also be said that the pith and
substance of the Act relates to charities or charitable
institutions, or to trusts or trustees. If the true nature and
character of the Act falls within the express legislative
power conferred by List II Entry 11, merely because it
incidentally trenches upon or affects a charitable institution,
or the powers of trustees of the institution, it will not on that
account be beyond the legislative authority of the State. The
impact of the Act upon the rights of the trustees or the
management of a charitable institution is purely
incidental, the true object of the legislation being to provide
for control over educational institutions. The amending Act
was therefore within the competence of the State
Legislature and the fact that it incidentally affected the
powers of the trustees or the management in respect of
educational institutions which may be regarded as
charitable, could not distract from the validity of the
exercise of that power.
*****
10. … If the management fails to comply with the
directions made by the Director, that Officer may after
considering the explanation or representation, if any, given
or made by the management, refer the case to the Board for
withdrawal of recognition or recommend to the State17 AIR 1962 SC 458
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Government to proceed against the institution under sub-
section (4) and the powers which the State Government
may exercise after being satisfied that the affairs of the
institution are being mismanaged or that the management
has wilfully or persistently failed in the performance of its
duties, include the power to appoint an Authorised
Controller to manage the affairs of the institution for such
period as may be specified by the Government. The
provision is disciplinary and enacted for securing the best
interests of the students. The State in a democratic set up is
vitally interested in securing a healthy system of imparting
education for its coming generation of citizens, and if the
management is recalcitrant and declines to afford facilities
for enforcement of the provisions enacted in the interests of
the students, a provision authorising the State Government
to enter upon the management through its Authorised
Controller cannot be regarded as unreasonable.”
(emphasis supplied)
From a perusal of the above judgment18 of the Constitution Bench,
it becomes clear that the State Legislature is empowered in law to
enact provisions similar to Section 8(2) of the DSE Act.
48. At this stage, it would also be useful to refer to the
Statement of Objects and Reasons of the DSE Act, 1973. It reads as
under:
“In recent years the unsatisfactory working and
management of privately managed educational institutions
in the Union Territory of Delhi has been subjected to a
good deal of adverse criticism. In the absence of any legal
power, it has not been possible for the Government to
improve their working. An urgent need is, therefore, felt for
taking effective legislative measures providing for better
organisation and development of educational institutions in
the Union Territory of Delhi, for ensuring security of
service of teachers, regulating the terms and conditions of
their employment. … The Bill seeks to achieve these
objectives.”
A perusal of the Statement of Objects and Reasons of the DSE Act
would clearly show that the intent of the legislature while enacting
the same was to provide security of tenure to the employees of the
school and to regulate the terms and conditions of their
employment.
18 Katra Education Society v State of U.P., AIR 1966 SC 1307
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49. In Principal v Presiding Officer 19, a Division Bench of
this Court held as under:
“7. Sub-section (2) of Section 8 of the Act ordains that
subject to any rule that may be made in this behalf, no
employee of a recognised private school shall be dismissed,
removed or reduced in rank nor shall his service be
otherwise terminated except with the prior approval of the
Director of Education. From this, it clearly follows that the
prior approval of the Director of Education is required only
if the service of an employee of a recognised private school
is to be terminated.”
9. Thus, the Supreme Court has, after considering a host of
authorities, including the earlier judgment of the Constitution Bench
in Pai, held that an order of termination of service of an employee of a
recognized private school, passed without obtaining the prior approval
of the Director, is ex facie bad in law, as having breached Section 8(2)
of the DSE Act.
10. Mutatis mutandis, this would render an order of suspension of a
employee of a recognized private school equally unsustainable, for
having breached Section 8(4).
11. Before us, as before the learned Single Judge, the School could
not seriously dispute the fact that the issue in controversy stands
covered by Raj Kumar. The only contention that was sought to be
advanced was that Raj Kumar was rendered per incuriam, as it was
contrary to the judgment of the Constitution Bench of the Supreme
Court in Pai.
19 (1978) 1 SCC 498
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12. We wish to clear the ground on this issue, as such arguments
have been raised before us in more than one case.
13. The High Court cannot declare the judgment of the Supreme
Court to be per incuriam.
13.1 Firstly, no High Court can declare the judgment of the Supreme
Court to be per incuriam. A Bench of three Hon’ble Judges of the
Supreme Court has clearly so held, in South Central Railway
Employees Co-operative Credit Society Employees Union v B.
Yashodabai20 :
“14. We are of the view that it was not open to the High Court to
hold that the judgment delivered by this Court in South Central
Railway Employees Coop. Credit Society Employees’
Union v Registrar of Coop. Societies21 was per incuriam.
15. If the view taken by the High Court is accepted, in our
opinion, there would be total chaos in this country because in that
case there would be no finality to any order passed by this Court.
When a higher court has rendered a particular decision, the said
decision must be followed by a subordinate or lower court unless it
is distinguished or overruled or set aside. The High Court had
considered several provisions which, in its opinion, had not been
considered or argued before this Court when CA No. 4343 of 1988
was decided [South Central Railway Employees Coop. Credit
Society Employees’ Union v Registrar of Coop. Societies (supra)].
If the litigants or lawyers are permitted to argue that something
what was correct, but was not argued earlier before the higher court
and on that ground if the courts below are permitted to take a
different view in a matter, possibly the entire law in relation to the
precedents and ratio decidendi will have to be rewritten and, in our
opinion, that cannot be done. Moreover, by not following the law
laid down by this Court, the High Court or the subordinate courts
would also be violating the provisions of Article 141 of the
Constitution of India.”
20 (2015) 2 SCC 727
21 (1998) 2 SCC 580
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14. We feel that, 20 years after this judgment was rendered, it is
high time parties ceased to contend, before High Courts, that a
decision of the Supreme Court is per incuriam.
15. When is a judgment rendered per incuriam?
15.1 Secondly, there seems to be some misunderstanding regarding
the exact scope and ambit of the expression “per incuriam”. Per
incuriam literally translates to “through lack of care”. A judgment is
per incuriam, therefore, where it is rendered in ignorance of a
previous binding precedent or statutory mandate.22 V. Kishan Rao v
Nikhil Super Specialty Hospital23 explains the per incuriam principle
thus:
54. When a judgment is rendered by ignoring the provisions of
the governing statute and earlier larger Bench decision on the point
such decisions are rendered per incuriam. This concept of per
incuriam has been explained in many decisions of this Court.
Sabyasachi Mukharji, J. (as his Lordship then was) speaking for the
majority in A.R. Antulay v R.S. Nayak24explained the concept in
the following words :
“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.”
15.2 M.P. Rural Road Development Authority v L.G. Chaudhary
Engineers & Contractors25 explained the doctrine, in somewhat
greater detail, thus:
22 Punjab Land Development & Reclamation Corpn Ltd v Presiding Officer, (1990) 3 SCC 682
23 (2010) 5 SCC 513
24 (1988) 2 SCC 602
25 (2012) 3 SCC 495
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28. The principle of per incuriam has been very succinctly
formulated by the Court of Appeal in Young v Bristol Aeroplane
Co. Ltd.26 Lord Greene, Master of Rolls formulated the principles
on the basis of which a decision can be said to have been rendered
“per incuriam”. The principles are:
“…Where the court has construed a statute or a rule having
the force of a statute its decision stands on the same footing
as any other decision on a question of law, but where the
court is satisfied that an earlier decision was given in
ignorance of the terms of a statute or a rule having the force
of a statute the position is very different. It cannot, in our
opinion, be right to say that in such a case the court is
entitled to disregard the statutory provision and is bound to
follow a decision of its own given when that provision was
not present to its mind. Cases of this description are
examples of decisions given per incuriam.”
29. The decision in Young (supra) was subsequently approved by
the House of Lords in Young v Bristol Aeroplane Co. Ltd.27, Lord
Viscount Simon in the House of Lords expressed His Lordship’s
agreement with the views expressed by Lord Greene, the Master of
Rolls in the Court of Appeal on the principle of per incuriam.
30. Those principles have been followed by the Constitution
Bench of this Court in Bengal Immunity Co. Ltd. v State of
Bihar.28
31. The same principle has been reiterated by Lord Evershed,
Master of Rolls, in Morelle Ld. v Wakeling29. The principle has
been stated as follows:
“…As a general rule the only cases in which decisions
should be held to have been given per incuriam are those of
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.”
32. In State of U.P. v Synthetics and Chemicals Ltd.30 this Court
26 1944 KB 718 (CA)
27 1946 AC 163 (HL)
28 AIR 1955 SC 661
29 (1955) 2 QB 379 (CA)
30
(1991) 4 SCC 139
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held that the doctrine of “per incuriam” in practice means “per
ignoratium” and noted that the English courts have developed this
principle in relaxation of the rule of stare decisis and referred to the
decision in Bristol Aeroplane Co. Ltd. (supra). The learned Judges
also made it clear that the same principle has been approved and
adopted by this Court while interpreting Article 141 of the
Constitution.
33. In MCD v Gurnam Kaur31 a three-Judge Bench of this
Court explained this principle of per incuriam very elaborately and
in explaining the principle of per incuriam the learned Judges held:
“11. …A decision should be treated as given per incuriam
when it is given in ignorance of the terms of a statute or of a
rule having the force of a statute.”
34. In para 12 the learned Judges observed as follows:
“12. …One of the chief reasons for the doctrine of
precedent is that a matter that has once been fully argued
and decided should not be allowed to be reopened. The
weight accorded to dicta varies with the type of dictum.
Mere casual expressions carry no weight at all. Not every
passing expression of a Judge, however eminent, can be
treated as an ex cathedra statement, having the weight of
authority.”
15.3 In State of Assam v Ripa Sharma32, the Supreme Court held
that it was an “inescapable fact that that the judgment rendered
in Eastern Coalfields Ltd. v Dugal Kumar33 has been rendered in
ignorance of the earlier judgments of the Benches of co-equal
strength, rendering the same per incuriam”.
15.4 The Supreme Court, in State of Madhya Pradesh v Narmada
Bachao Andolan34, once again provided a detailed explanation of the
per incuriam principle:
31 (1989) 1 SCC 101
32 (2013) 3 SCC 63
33 (2008) 14 SCC 295
34 (2011) 7 SCC 639
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65. “Incuria” literally means “carelessness”. In practice per
incuriam is taken to mean per ignoratium. The courts have
developed this principle in relaxation of the rule of stare decisis.
Thus, the “quotable in law” is avoided and ignored if it is rendered
in ignorance of a statute or other binding authority.
66. While dealing with the observations made by a seven-Judge
Bench in India Cement Ltd. v State of T.N.35and the five-Judge
Bench in State of W.B. v Kesoram Industries Ltd.36, observed as
under:
“57. …A doubtful expression occurring in a
judgment, apparently by mistake or inadvertence, ought to
be read by assuming that the court had intended to say only
that which is correct according to the settled position of law,
and the apparent error should be ignored, far from making
any capital out of it, giving way to the correct expression
which ought to be implied or necessarily read in the context,
…
***
71. … A statement caused by an apparent typographical
or inadvertent error in a judgment of the court should not
be misunderstood as declaration of such law by the court.”
(emphasis added)
67. 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 based, is
found, on that account to be demonstrably wrong.
15.5 In U.P. Power Corporation Ltd v Rajesh Kumar37, the
Supreme Court clarified the position thus:
17. Similarly, the Division Bench at Lucknow erroneously
treated the verdict of the Allahabad Bench not to be a binding
precedent on the foundation that the principles laid down by the35 (1990) 1 SCC 12
36 (2004) 10 SCC 201
37 (2012) 7 SCC 1
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Constitution Bench in M. Nagaraj v Union of India38 are not being
appositely appreciated and correctly applied by the Bench when
there was reference to the said decision and a number of passages
were quoted and appreciated albeit incorrectly, the same could not
have been a ground to treat the decision as per incuriam or not a
binding precedent.”
15.6 Thus, a per incuriam decision is not one which erroneously
interprets an earlier binding precedent or statutory mandate, but one
which is rendered in ignorance thereof. Viewed thus, the very
invocation of the per incuriam principle, by the School, to overcome
Raj Kumar, is misconceived.
16. Precedential principles
16.1 The contention that the judgment in Raj Kumar is contrary to
the decision in Pai is not available to be urged before this Court, for
the simple reason that, once a Bench, even if consisting of two
Hon’ble Judges of the Supreme Court, has noticed the decision of a
larger, or even Constitution, bench of the Supreme Court, and arrived
at certain findings or conclusions, those findings and conclusions are
binding on every hierarchically lower judicial authority, including us.
We cannot, thereafter, cite Pai to escape Raj Kumar, as Pai has been
noticed and, in fact, relied upon in Raj Kumar. The view taken in Raj
Kumar has, therefore, been taken in full consciousness of the law laid
down in Pai, and if we were, therefore, to hold that Raj Kumar is
contrary to Pai, we would be holding that a Bench of two Hon’ble
Judges of the Supreme Court, after noticing Pai, has ruled contrary
thereto, or, worse, has misinterpreted Pai¸ which would be judicial
38 (2006) 8 SCC 212
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indiscipline of the highest degree.
16.2 In fact, this is but another facet of the principle that the High
Court cannot regard a judgment of the Supreme Court as per
incuriam.
16.3 If a judgment of a larger Bench of the Supreme Court is not
noticed by a smaller Bench, it is open to any hierarchically lower
Court to follow the earlier larger Bench in preference to the later
smaller Bench. The entire paradigm, however, shifts, if the larger
Bench decision is noticed by the smaller Bench. In that case, the
smaller Bench binds, for, if we are to hold contrary to the smaller
Bench on the ground that the earlier decision of the larger Bench
exposits a contrary view, we would be holding that the larger Bench
was not properly appreciated by the smaller Bench, which we, as the
High Court, cannot do.
17. Pai has been noticed, and followed, in Raj Kumar. Any
recourse to Pai, to escape Raj Kumar, therefore, stands ruled out.
The sequitur
18. The single Judge is, therefore, correct in her view that, in view
of the decision in Raj Kumar, the orders of suspension of the
respondents, having been passed without obtaining the prior approval
of the Director under Section 8(4) of the DSE Act, were illegal.
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19. They were, therefore, rightly quashed by the learned Single
Judge.
20. The appeals are, therefore, dismissed in limine.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
FEBRUARY 13, 2025/aky
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