Madhya Pradesh High Court
Aslam Mohammad vs The State Of Madhya Pradesh on 4 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 4 th OF APRIL, 2025
WRIT PETITION No. 12085 of 2025
ASLAM MOHAMMAD
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nitin Agrawal - Advocate for petitioner.
Shri Ravindra Dixit - Government Advocate for the State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs:-
"(a) Issue an appropriate writ, order, or direction quashing the
impugned order dated 18.08.2023 to the extent that it denies the
petitioner the benefits of the Sthai Karmi policy w.e/f. 01.09.2016.
(b) Direct the respondents to extend all pecuniary and service
benefits, including arrears of salary and other consequential
benefits, to the petitioner from 01.09.2016, as per the policy dated
07.10.2016.
(c) Issue an appropriate writ, order, or direction directing the
respondents to consider and grant the petitioner's regularization in
terms of AnnexureA of the policy dated 07.10.2016.
(d) Grant interest at an appropriate rate on the delayed payment of
arrears and other monetary benefits.
(e) Pass any other order(s) or direction(s) as may be deemed just
and proper in the interest of justice."
2 . It is submitted by counsel for petitioner that by order dated
12/8/2013, petitioner was working as refrigerator mechanic on temporary
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basis till alternative arrangement is made. By the impugned order dated
18.8.2013, petitioner has been conferred the status of Sthaikarmi. However,
it is fairly conceded by counsel for petitioner that whether a person can be
conferred the status of Sthaikarmi dehors the provisions of clause 1.8 of
Vinimiyatikaran Scheme dated 07.10.2016 was never subject matter of any
litigation. It is further submitted that SLP which was pending before the
Supreme Court has also been dismissed. It is the case of petitioner that
although the petitioner has been given the status of Sthaikarmi w.e.f.
18.08.2023, but in fact he is entitled for benefit of Sthaikarmi w.e.f.
07.10.2016 i.e. the date on which Vinimiyatikaran Scheme was
implemented.
3. Per contra, the petition is vehemently opposed by counsel for State.
4. Heard learned counsel for the parties.
5 . Clause 1.8 of Vinimiyatikaran Scheme dated 07.10.2016 reads as
under:-
"ऐसे दै िनक वेतन भोगी जो दनांक 16 मई, 2007 को कायरत थे, व दनांक 01
िसत बर, 2016 को भी कायरत ह, इस वेतन म एवं अ य लाभ के िलए पा ह गे ।
दनांक 16 मई 2007 के प ात शासन क अनुमित/अनुमोदन उपरा त स म
अिधकार ारा दै िनक वेतन भोगी के पद पर िनयु कये गये ह उ ह भी योजना क
पा ता होगी । दनांक 01 िसत बर 2016 के पूव सेवािनवृ /सेवा से पृथक कये गये
अथवा सेवा छोड चुके दै िनक वेतन भोिगय को इस योजना क पा ता नह ं।"
6 . Thus, in order to avail the benefit of Vinimiyatikaran Scheme an
employee must prove that he was working as a daily wager on 16.05.2007
and was continuously working in the same capacity on 01.09.2016 also.
However, there is an exception clause i.e., in case if appointment is made
after 16.05.2007 and if it has been approved by Competent Authority, then
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candidate appointed subsequent to 16.05.2007 shall also be entitled for the
benefit of Vinimiyatikaran Scheme.
7. Admittedly, petitioner was appointed by order dated 12.08.2013 and
he was not in service on 16.05.2007. It is not the case of petitioner that his
appointment was approved by State Government or by Competent Authority.
Therefore, it is clear that case of petitioner is not covered by exception clause
of Clause 1.8 of Vinimiyatikaran Scheme dated 07.10.2016. It is submitted
by counsel for petitioner that in Writ Appeal No.1057/2021, Division Bench
of this Court has negatived the similar objection raised by State and thus, it is
submitted that fact as to whether appointment of petitioner was approved by
State Government/Competent Authority or not is irrelevant?
8. Considered the submissions made by counsel for petitioner.
9. The Division Bench of this Court in Writ Appeal No.1057/2021 as
held as under:-paragraph 23 to 24.
Shri M.P.S. Raghuvanshi, learned Additional Advocate General,
while taking exception to the impugned order contends that as per
Clause 1.8 of the policy under reference, the engagement of the
respondent employee since was not with the prior approval of the
State Government, the competent authority had fallen in error
while engaging the respondent to work as a Class IV employee
since 13.08.2013. However, the learned counsel does not dispute
that the respondent continues to perform duties since then. This
Court has carefully perused the Clause 1.8. Under the Clause 1.8,
such daily wage employees working as on 16th May, 2007 and
also as on 1st of September, 2016, are held entitled for the benefit
of the circular. Besides such daily wage employees appointed after
16th May, 2007 with prior permission of the State Government,
by the competent authority are also held entitled for the said
policy.
The sheet anchor of the argument of Shri M.P.S. Raghuvanshi is
confined to the effect; for want of prior permission of the State,
the appointment of respondent suffers from irregularity. However,
he does not dispute the factum of engagement, continuous service
of respondent and payment for the services rendered. Under such
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circumstances, the appointment of the respondent cannot be said
to be an illegal appointment.
Even assuming that there is an irregularity in appointing the
respondent, this by itself shall not put him in a class different from
such daily wages employees who have also completed the same
number of years of service (eight years) and have been extended
the benefit of classification of permanent status.
In the considered opinion of this Court, the respondent- workman
has been denied equality before law and equal protection of law
violating his fundamental rights under Articles 14 and 16 of the
Constitution of India."
10. The only question for consideration is as to whether the Division
Bench has taken note of provisions of Clause 1.8 of Vinimiyatikaran Scheme
dated 07.10.2016 or not? A specific objection was raised by State that unless
and until the person fulfills the minimum qualifications as provided under
Clause 1.8 of Vinimiyatikaran Scheme, he cannot be extended the benefit. In
that case also, it was alleged that the appointment of respondent therein was
not with the approval of State Government. However, it appears that
Division Bench of this Court decided the said objection by considering to be
an objection with regard to the initial nature of order of appointment. It was
observed that "the sheet anchor of the argument of Shri MPS Raghuvanshi is
confined to the effect; for want of prior permission of the State, the
appointment of respondent suffers from irregularity." This is not a case
where illegal, irregular or legal appointment as daily wages is involved. In
Vinimiyatikaran Scheme dated 07.10.2016, only requirement was that
employee must be in employment on 16.05.2007 and he should be in
continuous appointment even on 01.09.2016, then he can be considered for
conferred the status of Sthaikarmi. The requirement of minimum length of
service for conferreral of status of Sthaikarmi was never considered by
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Division Bench of this Court. The word per incuriam means carelessness or
in ignorance of any provision of law.
11. The Supreme Court in the case of Siddharam Satlingappa Mhetre v.
State of Maharashtra reported in (2011) 1 SCC 694 has held 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 Co. Ltd. [1944 KB 718 : (1944) 2 All
ER 293 (CA) : 1946 AC 163 : (1946) 1 All ER 98 (HL)] 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 [Ed.: As observed in
State of Bihar v. Kalika Kuer , (2003) 5 SCC 448, pp. 452-53, para
5.].
I n Halsbury's Laws of England (4th Edn.) Vol. 26:
Judgment and Orders: Judicial Decisions as Authorities
(pp. 297-98, 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.
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[1944 KB 718 : (1944) 2 All ER 293 (CA) :
1946 AC 163 : (1946) 1 All ER 98 (HL)] ,
KB at p. 729 : All ER at p. 300). In
Huddersfield Police Authority v. Watson
[1947 KB 842 : (1947) 2 All ER 193 (DC)] ,
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 Goddard, C.J. in Huddersfield Police Authority v.
Watson [1947 KB 842 : (1947) 2 All ER 193 (DC)] 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 per incuriam.
130. This Court in Govt. of A.P. v. B. Satyanarayana Rao
[(2000) 4 SCC 262 : 2000 SCC (L&S) 486] observed as under:
(SCC p. 264, para 8)
"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."
131. In a Constitution Bench judgment of this Court in
Union of India v. Raghubir Singh [(1989) 2 SCC 754] , Pathak,
C.J. observed as under: (SCC p. 766, para 9)
"9 . The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial
decisions, and enables an organic development of the
law, besides providing assurance to the individual as to
the consequence of transactions forming part of his
daily affairs. And, therefore, the need for a clear and
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consistent enunciation of legal principle in the decisions
of a court."
132. In Thota Sesharathamma v. Thota Manikyamma
[(1991) 4 SCC 312] a two-Judge Bench of this Court held that the
three-Judge Bench decision in Karmi v. Amru [(1972) 4 SCC 86]
was per incuriam and observed as under: (Thota case [(1991) 4
SCC 312] , SCC p. 320, para 10)
"10. ... It is a short judgment without adverting to any
provisions of Section 14(1) or 14(2) of the Act. The
judgment neither makes any mention of any argument
raised in this regard nor is there any mention of the
earlier decision in Badri Prasad v. Kanso Devi [(1969) 2
SCC 586] . The decision in Karmi [(1972) 4 SCC 86]
cannot be considered as an authority on the ambit and
scope of Sections 14(1) and (2) of the Act."
133. In R. Thiruvirkolam v. Presiding Officer [(1997) 1
SCC 9 : 1997 SCC (L&S) 65] a two-Judge Bench of this Court
observed that the question is whether it was bound to accept the
decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha
[(1980) 2 SCC 593 : 1980 SCC (L&S) 197] which was not in
conformity with the decision of a Constitution Bench in P.H.
Kalyani v. Air France [AIR 1963 SC 1756 : (1964) 2 SCR 104] .
J.S. Verma, J. speaking for the Court observed as under: ( R.
Thiruvirkolam case [(1997) 1 SCC 9 : 1997 SCC (L&S) 65] , SCC
p. 14, para 11)
"11. With great respect, we must say that the
abovequoted observations in Gujarat Steel [(1980) 2
SCC 593 : 1980 SCC (L&S) 197] at p. 215 are not in
line with the decision in Kalyani [AIR 1963 SC 1756 :
(1964) 2 SCR 104] which was binding or with D.C.
Roy [D.C. Roy v. M.P. Industrial Court , (1976) 3 SCC
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693 : 1976 SCC (L&S) 484] to which the learned
Judge, Krishna Iyer, J. was a party. It also does not
match with the underlying juristic principle discussed in
Wade. For these reasons, we are bound to follow the
Constitution Bench decision in Kalyani [AIR 1963 SC
1756 : (1964) 2 SCR 104] which is the binding
authority on the point."
134. In Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik
Sangha [(2001) 4 SCC 448] a Constitution Bench of this Court
ruled that a decision of a Constitution Bench of this Court binds a
Bench of two learned Judges of this Court and that judicial
discipline obliges them to follow it, regardless of their doubts
about its correctness.
135. A Constitution Bench of this Court in Central Board of
Dawoodi Bohra Community v. State of Maharashtra [(2005) 2
SCC 673 : 2005 SCC (L&S) 246 : 2005 SCC (Cri) 546] has
observed that: (SCC p. 682, para 12)
"(1 ) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or coequal strength."
136. A three-Judge Bench of this Court in Official
Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S)
943] again reiterated the clear position of law that by virtue of
Article 141 of the Constitution, the judgment of the Constitution
Bench in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 :
2006 SCC (L&S) 753] is binding on all courts including this Court
till the same is overruled by a larger Bench. The ratio of the
Constitution Bench has to be followed by Benches of lesser
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strength. In SCC para 90, the Court observed as under: (Official
Liquidator case [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] ,
SCC p. 57)
"90. We are distressed to note that despite several
pronouncements on the subject, there is substantial
increase in the number of cases involving violation of
the basics of judicial discipline. The learned Single
Judges and Benches of the High Courts refuse to follow
and accept the verdict and law laid down by coordinate
and even larger Benches by citing minor difference in
the facts as the ground for doing so. Therefore, it has
become necessary to reiterate that disrespect to the
constitutional ethos and breach of discipline have grave
impact on the credibility of judicial institution and
encourages chance litigation. It must be remembered
that predictability and certainty is an important hallmark
of judicial jurisprudence developed in this country in
the last six decades and increase in the frequency of
conflicting judgments of the superior judiciary will do
incalculable harm to the system inasmuch as the courts
at the grass roots will not be able to decide as to which
of the judgments lay down the correct law and which
one should be followed."
137. In Subhash Chandra v. Delhi Subordinate Services
Selection Board [(2009) 15 SCC 458 : (2010) 2 SCC (L&S) 147]
this Court again reiterated the settled legal position that Benches
of lesser strength are bound by the judgments of the Constitution
Bench and any Bench of smaller strength taking contrary view is
per incuriam. The Court in SCC para 110 observed as under: (SCC
pp. 503-04)
"110 . Should we consider S. Pushpa v.
Sivachanmugavelu [(2005) 3 SCC 1 : 2005 SCC (L&S)
327] to be an obiter following the said decision is the
question which arises herein. We think we should. The
decisions referred to hereinbefore clearly suggest that
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we are bound by a Constitution Bench decision. We
have referred to two Constitution Bench decisions,
namely, Marri Chandra Shekhar Rao v. Seth G.S.
Medical College [(1990) 3 SCC 130 : (1990) 14 ATC
671] and E.V. Chinnaiah v. State of A.P. [(2005) 1 SCC
394 : (2008) 2 SCC (L&S) 329] Marri Chandra Shekhar
Rao [(1990) 3 SCC 130 : (1990) 14 ATC 671] had been
followed by this Court in a large number of decisions
including the three-Judge Bench decisions. S. Pushpa
[(2005) 3 SCC 1 : 2005 SCC (L&S) 327] , therefore,
could not have ignored either Marri Chandra Shekhar
Rao [(1990) 3 SCC 130 : (1990) 14 ATC 671] or other
decisions following the same only on the basis of an
administrative circular issued or otherwise and more so
when the constitutional scheme as contained in clause
(1) of Articles 341 and 342 of the Constitution of India
putting the State and Union Territory in the same
bracket. Following Official Liquidator v. Dayanand
[(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] ,
therefore, we are of the opinion that the dicta in S.
Pushpa [(2005) 3 SCC 1 : 2005 SCC (L&S) 327] is an
obiter and does not lay down any binding ratio."
138. The analysis of English and Indian law clearly leads to
the irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a coequal strength is also binding on a Bench of
Judges of coequal strength. In the instant case, judgments
mentioned in paras 124 and 125 are by two or three Judges of this
Court. These judgments have clearly ignored the Constitution
Bench judgment of this Court in Sibbia case [(1980) 2 SCC 565 :
1980 SCC (Cri) 465] which has comprehensively dealt with all the
facets of anticipatory bail enumerated under Section 438 CrPC.
Consequently, the judgments mentioned in paras 124 and 125 of
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this judgment are per incuriam."
12. The Division Bench of this Court has not considered the Clause
1.8 of Vinimiyatikaran Scheme dated 07.10.2016, therefore, this Court is of
considered opinion that judgement passed by Division Bench of this Court is
per incuriam and it has been passed in ignorance of Clause 1.8 of
Vinimiyatikaran Scheme dated 07.10.2016.
13. In the present case neither the petitioner was in employment on
07.05.2007 nor his appointment was approved by State Government or by
Competent Authority. Therefore, he was not entitled for conferreral the status
of Sthaikarmi at all. By impugned order, petitioner has been conferred the
status of Sthaikarmi.
14. Since the order of conferral of status of Sthaikarmi has not been
challenged by anybody, therefore, this Court would not like to pass any
comment on the correctness of the said order. One thing is clear that
petitioner cannot claim the benefit of said Sthaikarmi from the date of
Vinimiyatikaran Scheme dated 07.10.2016.
15. Accordingly, this petition fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
