Holding

An order passed on concession, with a clear disclaimer that it shall not be treated as precedent, does not lay down law and cannot be followed as binding precedent.

Summary

The Nadia District Primary School Council prepared a 1980 panel of 1,965 candidates for primary teacher appointments, but only 600 were trained as required by Rule 3(d) of the recruitment rules. Several writ petitions were filed by candidates excluded from the panel. The High Court, relying on earlier orders that were granted on concession and expressly stated not to be precedent, directed the State to appoint the petitioners in subsequent cases (Sirazul Haque Mallick, Dibakar Pal, and Sristidhar Biswas). The Supreme Court held that an order passed on concession, with a clear disclaimer that it is not precedent, does not lay down law and cannot be used as binding precedent. It also emphasized that the petitioners' nine‑year delay barred relief and that the State should not be saddled with a financial burden by treating such concession orders as law. Consequently, the Court set aside the Division Bench order and allowed the appeal.

Issues considered

Whether an order passed on concession, expressly stating it shall not be treated as precedent, can be considered binding precedent for later cases.
Whether the nine‑year delay in filing the writ petition bars the grant of relief.
Whether the High Court erred in directing appointments based on prior concession orders.
Whether the State can be compelled to incur financial liability due to such orders.

Subjects

appointmentprimary teacherspanel preparationconcession orderprecedentjudicial restraintdelayservice lawrecruitment rulesfinancial burdenequality

Judgment

.J
A NADIA DISTRICT PRIMARY SCHOOL COUNCIL & ANR.
v.
SRISTIDHAR BISWAS & ORS.

APRIL 25, 2007

B [A.K. MA THUR AND DAL VEER BHANDARI, JJ.]

'(
Precedent-Writ Petition-By candidate seeking appointment-Order I
directing appointment on account of concession with clarification that the
order not to be treated as precedent-Jn another Writ Petition similar relief
c given by the Court on the basis of the previous order-Similar relief by High
Court in the present case on the basis of the two previous orders-Propriety
of-Held: An order passed on concession does not lay down the law and
cannot be followed as precedent-Court should keep restraint before passing
order saddling State Government with financial burden-In the present case,
D the candidates could not have been given relief on the basis of the previous
orders as the same did not constitute precedent value-Service Law-
Appointment-Judicial Restraint. 1

A panel of primary teachers was prepared for the purpose of
appointment The preparation of panel omitting to include trained candidates
E was challenged by candidate 'S' and 107 other candidates. High Court directed
the State to give them appointment The order was on account of concession
and it was specifically clarified in the order that the order would not be treated
as a precedent Thereafter a Writ Petition filed by candidate 'D' and few others
was allowed by High Court following the judgment in the case of 'S'.
Thereafter respondents filed another writ petition and the same was also
F 'l
allowed on the basis of the judgments in the cases of 'S' and 'D'. Hence, the
present appeal

Allowing the appeal, the Court

HELD: I. An order passed on concession followed with clarification that
G
it shall not be treated as precedent, can not be taken as binding precedent to
be followed. Any order passed on concession does not lay down the law and it
cannot be followed as a precedent. The Single Judge and the Division Bench
" >·

of High Court subsequently have taken it to be a law and followed the precedent

H 586
NADIA DISTRICT PRIMARY SCHOOL COUNCIL 1·. SRISTIDHAR BISWAS [A.K. MA THUR. J) 587
giving relief to the persons leaving behind large number of persons who were A
on the panel and who were not parties before the Court. The Court should
keep restrain-before passing order saddling State Government with financial
burden. A panel of 1980 was kept alive up to 2004 without realizing that by
this time many more aspirants are waiting in queue. That was not the correct
approach. [Para IO] [595-A-C]
B
Mittal Engineering Works {P.) Ltd. v. Collector of Central Excise.
Meerut, (1997] l SCC 203 and Amit Das v. State of Bihar, [2003[ 5 SCC 488,
relied on.

2. Therefore, the judgmmt given in case of 'S' is not binding as it does
not decide the law. It cannot be treated as binding precedent The view taken C
in the present case relying on the judgments in previous two Writ Petitions
cannot be upheld as the judgment given in case of 'S' was on concession and
it was clearly mentioned that it shall not be treated as a precedent
[Paras 12 and 13] (595-E, F)
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1020 of2005.

From the Judgment and Order dated 11.06.2004 of the High Court of
Calcutta in E.M.A No. 313 of2003.

Gourab Banerjee, P. Deb Burman, Arjun Krishnan, Joydeep Mazumdar E
and Ruby Singh Ahuja for the Appellants.

R.K. Gupta, S.K. Gupta and A.N. Bardiyar for the Respondents.

The Judgment of the Court was delivered by

A.K. MATHUR, J. 1. This appeal is directed against order dated 11th F
June, 2004 passed by the Division Bench of Calcutta High Court whereby the
Division Bench affirmed the order of learned Single Judge directing that all
the 55 writ petitioners be appointed as teachers within a period of six weeks.
Aggrieved against this order, the Nadia District School Council filed an appeal
before the Division Bench. The Division Bench affirmed the order of learned · G
Single Judge by order dated I Ith June, 2004 and hence the present appeal.

2. In order to dispose of this appeal, few facts may be recapitulated. A
panel for appointment of primary teachers was prepared in 1980 for the
District of Nadia in which 1965 candidates were included in the panel. Out of
this panel, only 600 were trained candidates. Rule 3(d) of the Recruitment H
588 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Rules provided that while preparing the panel for appointment to the post of ...r
primary teachers, preference shall be given to the trained candidates in such
a manner that all additional posts sanctioned by the Government from time
to time due to enhancement in roll strength in existing schools and at least
5- per cent of the nonnal vacancies in such schools are filled up by trained
candidates only, if sufficient number of trained candidates are available. By
B
Notification dated 26th October, 1971, the Government of West Bengal
recognized the training as an additional qualification for appointment as
Assistant Teacher. Then again by Notification dated 5th September, 1973, it 'f
was provided that while giving appointment out of the panel already prepared, I

preference should be given to the trained candidates for appointment to all
c the additional posts. The preparation of panel omitting to include trained
candidates was challenged by Sirazul Haque Mallick and I07 other candidates
in C.R. No.2522(W) of 1981. That writ petition was allowed on 17th September,
1987. Aggrieved by that order, an appeal was preferred being F.M.A.T. No.159
of 1988 by the State. The order passed in the writ petition was modified by
the Division Bench by its order dated 14th February 1989 directing to give
D
appointment to the petitioners in the existing vacancies and in vacancies
arising in immediate future and that appointment would rtot be offered to any
one other than the petitioners. This order was passed on concession given
by the State. This order was not complied with. Therefore, a contempt petition
was tiled and on 30th June, 1989 in the Contempt Petition in case of Sirazul
E Haque Mallick and 107 others, they were given appointment.
3. Thereafter on 16th July, 1989, one Dibakar Pal and 87 others moved
a writ petition being C.O. No. I I I 54(W) of 1989. This writ petition was also
allowed by the order dated 13th March, 1991 on the ground that the petitioners
are similarly circumstanced as in the case Sirazul Haque Mallick and I07
F others. Therefore, no different treatment can be given and they were also -;
given benefit of appointment. Against this order, an appeal was preferred
before the Division Bench which was dismissed. Thereafter, a contempt petition
was filed, in pursuance to that, an order dated 23rd June, 1999 was passed
and Dibakar Pal and 87 others were given appointment. Thereafter the present
G writ petition was filed on 2nd August, 1989. This writ petition was also
allowed by order dated 17th January 2001 on the basis of the judgments in
\,: ~

Sirazul Haque Mallick and Dibakar Pal's cases. The petitioners in this
petition, i.e., petitioner and 54 others were trained candidates. Therefore, the
learned Single Judge directed appointment of these 55 persons on the same
rationale as in the case of Sirazul Haque Mallick and Dibakar Pal. However,
H the learned Single Judge did not allow similar relief to other persons who were
NADIA DISTRICT PRJMARYSCHOOL COUNCIL 1•. SRJSTIDHAR BISWAS [A.K. MATHUR, J.] 589
. added as parties between 1999 and 2000. Aggrieved by this order, an appeal A
was filed before the Division Bench and an objection of delay was raised.
However, the Division Bench overruled the objection of delay but declined
to give any benefit to the persons who were added in this writ petition in 1999
and 2000 and held that no relief to these persons can be given as they
approached belatedly but gave benefit to 55 persons on the ground that the
B
State did not want to expose irregularity and illegality committed in selection
in Sirazul Haque Mallick' case and on similar reasoning Dibakar Pal's petition
) was also allowed and soon after Dibakar Pal's case, the present petition was
filed in 1989. Therefore, the Court held that the petitioners approached on 2nd
August, 1989 soon after the disposal of Dibakar Pal's writ petition dated 16th
July, 1989. Hence, there is no delay in the appeal. Secondly, it was also c
contended that since the life of panel has been exhausted, the appointment
cannot be made. This was also overruled. It was contended that Sirazul
Haque Mallick 's case and Dibakar Pal's case also cannot be treated as a
precedent because in Sirazul Haque Mallick, the order was passed by
concession. But this objection was overruled by the Division Bench. Next, it
was contended on the basis of principle of sub-silentio that a decision which
D

. has not been given on consideration of merits and issues involved therein,
that cannot be law declared by the Court and cannot have binding effect. This
objection was also overruled by the High Court. Lastly, it was contended that
even if any irregularity or illegality has been committed, that cannot be
perpetuated. But this submission was also overruled by the Division Bench. E
.
_. Hence the Division Bench dismissed the appeal filed by the State affirming
the order of learned Single Judge to give appointment to 55 persons. Justice
Sinha, another member of the Division Bench, agreed with the view taken by
the senior Judge, but observed that though the order passed in Sirazul
Haque Mallick 's case in 1982 and the series of litigation, these persons did
not approach the court because they might be engaged in other avocations F
and the Court further observed that law and equality help the vigilant and not
the indolent. However, the learned Judge agreed with the senior Judge and
directed that only those 55 persons would be given the relief. Aggrieved by
this order, present appeal was filed by the State.
G
4. We have heard learned counsel for the parties. Learned counsel for
... • the appellants submitted that the persons who had not approached the Court
in time and waited for the result of the decision of other cases cannot stand
to benefit. The Court only gives the benefit to the persons who are vigilant
about their rights and not who sit on fence. Mallick's case was decided in
H
1
590 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 1982, in 1989 Dibakar Pal filed the petition and thereafter in 1989 respondents f
herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging
the panel of 1980 was hopelessly belated. Likewise the present writ petition
filed by the respondents herein. The explanation that the respondents waited
for the judgment in Mallick 's case or Dibakar's case, is hardly relevant. In
this connection, learned counsel invited our attention to a recent decision of
B this Court in Chairman, U.P. Jal Nigam and Anr. v. Jaswant Singh and Anr.,
JT (2006) 10 500. In that case, referring to various decisions of this Court, it
was observed that those who sit on the fence and wait for a favourable order
and thereafter wake up to take up the matter, are not entitled to any relief. In
para 13 of the judgment, this Court concluded as follows:
c "In view of the statement of law as summarized above, the respondents
are guilty since the respondents have acquiesced in accepting the
retirement and did not challenge the same in time. If they would have
been vigilant enough, they could have filed writ petitions as others
did in the matter. Therefore, whenever it appears that the claimants
D lost time or while away and did not rise to the occasion in time for
filing the writ petitions, then in such cases, the Court should be very
slow in granting the relief to the incumbent. Secondly, it has also to
be taken into consideration the question of acquiescence or waiver on
the part of the incumbent whether other parties are going to be
prejudiced if the relief is granted. In the present case, if the respondents
E would have challenged their retirement being violative of the provisions
of the Act, perhaps the Nigam could have taken appropriate steps to
raise funds so as to meet the liability but by not asserting their rights
the respondents have allowed time to pass and after a lapse of couple
of years, they have filed writ petitions claiming the benefit for two
F years. That will definitely require the Nigam to raise funds which is
going to have serious financial repercussion on the financial
management of the Nigam. Why the Court should come to the rescue
of such persons when they themselves are guilty of waiver and
acquiescence."

G In the present case, the panel was prepared in 1980 and the petitioners
approached the court in 1989 after the decision in Dibakar Pal's case. Such ¥ ~
persons should not be given any benefit by the Court when they allowed
more than nine years to elapse. Delay is very significant in matters of granting
relief and Courts cannot come to the rescue of the persons who are not
H vigilant of their rights. Therefore, the view taken by the High Court condoning
NADIA DISTRICT PRIMARY SCHOOL COUNCIL"- SRISTIDHARBISWAS (A.K. MA TIIUR,J.] 591
'- the delay of nine years cannot be countenanced. A
5. Now, coming to the question of merit, learned counsel for the appellants
submitted that subsequent two Division Benches in case of Dibakar Pal and
in the present case have not properly appreciated Mallick 's case. Mallick 's
case was firstly decided on concession and secondly, it was clearly mentioned
that it shall not be treated as precedent. Despite that treating Mallick 's case B
as precedent subsequent two Division Bench followed it and decided the
matter. In order to appreciate the argument of learned counsel we recapitulate
'f
\ the history of Mallick 's case.

6. Learned counsel invited our attention to the order passed by learned
Single Judge in writ petition filed by Mallick which reads as under : c
"After hearing learned advocates appearing for the parties and
considering the facts and circumstances of the case I dispose of the
above Rule on the following terms
(a) The State respondents are directed to create and/or sanction the D
posts for appointment of the petitioners as primary teachers in
,._ the District of Nadia since it was submitted on behalf of the
District School Board, Nadia, that there is no vacancy to appoint
the petitioners;
(b) The President, District School Board is directed to appoint and/ E
or absorb the petitioners as Primary Teachers in different schools
under the District of Nadia either in the post of created and/or
• sanctioned by the Government in terms of this order or in the
existing vacancy, if any;
(c) Such creation and/or sanction of posts of primary teachers would F
be made by the Government four weeks from the date of
communication of this order and the appointment of the petitioners
as primary teachers by the District School Board, Nadia would be
made four weeks thereafter, after observing all the formalities as
required under the law.
G
.. :J, (d) Leave is granted to the petitioners to correct the addresses and
the number of the Interview Card sent by the Employment Exchange
Card of the petitioner No.4 and correct the address of the petitioner
No. I and they are directed to communicate the same before the
authority concerned."
H
592 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 7. Aggrieved by this order dated 17th September, 1987, the matter was
taken up in appeal and on 14th February, 1989, Division Bench passed the
following order:

"By consent of parties, the impugned decision is vacated and it is
substituted by the directions issued in the following terms
B
I. That writ petitioners will be offered employment in the order in
which their names appeared in the cause title of the writ petition
in the posts of trained primary teachers in Nadia District in the l'
existing vacancies and in the existing vacancies arising in
immediate future, none other that the writ petitioners shall be
c offered employment in those vacancies until the petitioners have
been first offered such appointment.
2. In order to give effect to this direction, relaxation in the Rules/
Orders will be pace it necessary and none of such Rules/Orders
shall be pleaded as a bar to the giving of the offer of appointment
D to any of the writ petitioners pursuant hereto.
~
.). Those of the writ petitioners who accept the offer shall be actually
appointed within leave days of such acceptance. As undertaking
"
E
to given to the Court by the first respondent (State of West
Bengal) and the fourth respondent (Director of School Primary
Education, West Bengal) through their counsel Mr. Sankar
-
Mukherjee, which undertaking is duly accepted, that the aforesaid
directions s'iall be punctually implemented. The Secretary to the
Government of West Bengal in the Education Department will
register in the Registry an affidavit incorporating the undertaking
in the record of the present case upon its being field. The learned
F counsel for the first and fourth respondents has clarified that his
clients have agreed to an order being passed in the aforesaid
terms as a special case and that it may not be treated as a
precedent. "

G 8. When this order was not complied with, a contempt petition was filed
and in that contempt petition, the Division Bench on 30th June, 1989 passed
the following order :

"In the existing eighty-two vacancies as on June 30, 1989, appointments
will be offered to the writ petitioners on and from July I, 1989 as per
H directions No. I contained in the Appeal Bench decision rendered on
NADIA DISTRICT PRIMARY SCHOOL COUNCIL v. SR!STIDHAR B!SWAS [A.K. MATHUR, J.] 593
.. ~

I...
February 14, 1989 in Appeal from original Tender No.159 of 1988; in A
order to give effect to this direction, necessary relaxation in the
existing rules/orders including the rules/orders relating to reservation
of vacancies and appointment on compassionate grounds, will be
deemed to have been made in view of the direction No.2 issued in that
behalf in the decision aforementioned.
B
The first eighty-two writ petitioners will report at the office of the
District School Board, Nadia at Krishnagar on or before July 7, 1989
)"
between 12 noon and 4 p.m. in order to collect the appointment letters
and they will join duty on or before July 10, 1989 at the station at
which they are posted.
c
In the vacancies occurring hereafter, none other than the writ petitioners
shall be offered employment until all the petitioners have been first
absorbed; the same direction with respect to the relaxation in existing
rules/orders, which were issued in the decision rendered on February
14, 1989 will apply to such appointments, which shall be made within
D
seven days of the occurrence of each vacancies. It is clarified that the
bar against appointment of any other person will cover also
appointment by way of adjustment as per Government order dated
November, 29, 1982.

Liberty is reserved to the District School Board to direct any of these E
writ petitioners to whom appointment is offered to produce the identity
slip from their Advocate on record, after joining duty, in case there
is any doubt as to his identity."

9. After this, another writ petition was filed by Dibakar Pal and others.
)" An order in that case was passed based on the decision of Sirazul Haque F
Mallick's case following the observations made in K./. Shephard & Ors. etc.
v. Union ofIndia, AIR (1988) SC 686 and the writ petition was allowed in the
following terms :

"This writ petition in my view is an instance of multiplicity of
proceedings and the State respondents and the Council should have G
~ .<'\ allowed the petitioners the came benefits as are made applicable to
those petitioners in the aforesaid Civil Rule. In view of the
pronouncement by this Court in the aforesaid appeal on the basis of
the judgment of the Single Judge, I grant similar benefits to the
petitioners by directing the respondents to appoint the petitioners as
H
594 SUPREME COURT REPORTS [2007] 5 S.C.R.

A primary teachers against the available vacancies within a period of
three months from date."

10. Aggrieved by the order of the learned Single Judge dated 13th
March, 1991, an appeal was preferred before the Division Bench and the
Division Bench by order dated 26th June, 1997 dismissed the appeal on the
B preliminary objection regarding maintainability of the appeal, i.e., that the
appeal was preferred by Primary School Council or by the Chairman, Ad hoc
Committee, Nadia District Primary School Council was held to be not
maintainable due to Section 37 of the West Bengal Primary Education Act,
1970 read with Section 93 and the Notification issued by the Government of
C West Bengal dated 30th June, 1990. It was contended that the Primary School
Council was not formed as yet and the Ad hoc Committee is still discharging
its functions in terms of Notification in 1990. Therefore, this objection was
sustained and the order of learned Single Judge was upheld by the Division
Bench. However, the order passed in Dibakar Pals judgment was not followed
resulting in filing of the contempt petition. Thereafter, the appointment was
D given and accordingly the contempt petition was disposed of. Then a review
application was filed against the order dated 26th June, 1997 and this came
to be disposed of on 30th June, 1999. In the review petition also the Court
held that the order passed on 26th June, 1997 will be without prejudice to the
rights and contentions of the parties and will not be treated as a precedent
by its own force in any other matter and the point remained open to be
E decided by any appropriate proceedings in future as all the petitioners have
been given appointment in the matter. Learned counsel submitted that, in fact,
the whole exercb~ in giving appointment starts from the order dated 30th
June, 1989 in Sirazul Haque Mallick 's case and in that case it was clearly
mentioned that this will not be treated as a precedent. Despite this, Sirazul
F Haque Mallick's judgment has been used subsequently in Dibakar Pal's case
and Dibakar Pal's judgment has been followed in the present Sristidhar Biswas' s
case. This clearly goes to show that both Division Bench did not apply their
rnind to the clear observation in Sirazul Haque Mallick 's case that this case
shall not be treated as a precedent. Sirazul Haque Mallick 's case never
examined the validity of the panel. It was only on account of the concession
G the matter was decided and it was clearly qualified that it shall not be treated
as a precedent. We fail to understand how can Sirazul Haque Mallick's case
be treated to be a blank cheque for passing appointment orders in subsequent
writ petitions in the case of Dibakar Pal and Sristidhar Biswas (impugned
order in the present case) despite the fact that in Sirazul Haque Ma/lick's
H case, the Division Bench presided by the Chief Justice Desai (as he then was)
NADIA DISTRICT PRIMARY SCHOOL COUNCIL '" SRJSTIDHARBISWAS [A.K. MATifUR, J.l 595
clearly clarified that the order is passed on concession. Such order on A
concession followed with clarification that it shall not be treated as precedent,
can not be taken as binding precedent to be followed. We do not want to
comment further, but we must make it very clear that any order passed on
concession does not lay down the law and it cannot be followed as a
precedent. But regretfully the Single Judge and the Division Bench
subsequently have taken it to be a law and followed the precedent giving B
relief to the persons leaving behind large number of persons who were on the
y
• panel and who were not parties before the Court. The Court should keep
restrain before passing order saddling State Government with financial burden.
A panel of 1980 was kept alive up to 2004 without realizing that by this time
many more aspirants are waiting in queue. That was not the correct approach C
and we cannot countenance such action.

11. This Court in the case of Mittal Engineering Works (P) Ltd. v.
Collector a/Central Excise, Meerut reported in [1997] 1 SCC 203 has observed
as follows:
D
"A decision cannot be relied upon in support of a proposition that
it did not decide."

12. Likewise, in the case of Arnit Das v. State of Bihar, reported in
[2000] 5 SCC 488, this Court has observed as follows:
E
"When a particular point of law is not consciously determined by the
Court, that does not form part of ratio decidendi and is not binding."

Therefore, the judgment given in Mal/ick's case is not binding as it does not
decide the law. It cannot be treated as binding precedent.

13. As a result of our above discussion, we are of the opinion that the
F
view taken in the present case (Sristidhar Biswas 's case), relying on the
judgments of Sirazul Haque Mallick and Dibakar Pal, cannot be upheld as the
judgment given in Sirazul Haque Mallick 's case was on concession and it
was clearly mentioned that it shall not be treated as a precedent. Hence, we
set aside the impugned order of the Division Bench dated 11.6.2004. G
14. The appeal filed by the appellants is allowed. There shall be no
orders as to costs.

K.K.T. Appeal allowed.
H