LAWS(MPH)-2021-4-46

ARUN PARMAR Vs. STATE OF M.P.

Decided On April 22, 2021
Arun Parmar Appellant
V/S
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

(1.) These matters have been laid before the Larger Bench upon a reference made by the Division Bench of this Court, doubting correctness of the earlier decision of the Full Bench, consisting of three Judges, in Masood Akhtar (Dr.) vs. R.K. Tripathi reported in 2012 (I) MPJR (FB) 375 : 2012 SCC OnLine MP 11024. (Though the Division Bench in the reference order has mentioned Prakash Chandra Jangre (State of Madhya Pradesh and another vs. Prakash Chandra Jangre) as the main case, but the lead judgment of the Full Bench was delivered in Masood Akhtar (supra).) It may be noted at the outset that the aforementioned decision of Full Bench was challenged by the State of Madhya Pradesh by filing Special Leave Petition (Civil) No.20288/2012 (State of M.P. vs. Masood Akhtar) and other connected matters, which were dismissed by the Supreme Court vide order dtd. 1/9/2017 (2017 SCC OnLine SC 1972). Thereafter, Review Petition (Civil) No.2663/2018, (State of M.P. vs. Masood Akhtar) arising therefrom was also dismissed by the Supreme Court vide order dtd. 18/9/2019 (2018 SCC OnLine SC 3568). Referring to the aforesaid decision of the Full Bench of this Court in Masood Akhtar (Dr.) (supra), the Division Bench of this Court by order under reference dtd. 30/5/2019, doubting correctness of the same, made the reference by the following order:

(2.) The writ petitioners before this Court, challenging the aforesaid order dtd. 30/5/2019 passed by the Division Bench making reference to the Full Bench, filed Special Leave to Appeal (C) No.14036/2019 (Warad Murti Mishra vs. State of M.P. & another) and connected matters. The Supreme Court by detailed order dtd. 11/7/2019 initially stayed the operation of the aforequoted paras-22 & 23 of the order passed by the Division Bench and issued notices. Thereafter, the Supreme Court after granting leave finally decided all the appeals vide judgment dtd. 15/6/2020, reported in (2020) 7 SCC 509. Apart from merits of the case, it was also argued before the Supreme Court that since reference to the Full Bench in Masood Akhtar (Dr.) (supra) was made on account of divergent views expressed by two Division Benches of this Court, with the dismissal of SLP as well as review petition arising therefrom, by the Supreme Court, the Full Bench judgment in Masood Akhtar (Dr.) (supra) having attained finality, the Division Bench was bound to follow the decision of the Full Bench and, therefore, reference to the Larger Bench was incompetent. Reliance was placed on the judgments of the Supreme Court in Pradi Chandra Parija vs. Pramod Chandra Patnaik reported in (2002) 1 SCC 1 and Sakshi vs. Union of India reported in (2004) 5 SCC 518 to argue that no reference could and ought to have been made unless the earlier decisions were so "palpably wrong" or so "very incorrect" that reference was called for and in any case the reference ought to have been made to a Bench of equal strength (three Judges) keeping in view the law laid down by the Supreme Court in Central Board of Dawoodi Bohra Community vs. State of Maharashtra reported in (2005) 2 SCC 673. It was also argued that the Full Bench in Masood Akhtar (Dr.) (supra) failed to consider binding decision of the Supreme Court in M.P. Chandoria vs. State of M.P. & others reported in (1996) 11 SCC 173, State of Madhya Pradesh vs. Ramkinkar Gupta reported in (2000) 10 SCC 77 and Om Prakash Shrivastava vs. State of M.P. reported in (2005) 11 SCC 488. The Supreme Court disposed of the appeals with the following observations as contained in Paras-22 & 24 of the report, which reads as under:

(3.) In view of above, the question that is required to be considered at the outset is whether or not, the reference made by the Division Bench is legally justified? If eventually we are persuaded to hold that the conclusion arrived at by the Full Bench in Masood Akhtar (Dr.) (supra) was not legally correct, because it failed to specifically consider the effect of Rule 13 of Madhya Pradesh State Administrative Service Classification, Recruitment and Conditions of Service Rules, 1975 (of short the "Rules of 1975") and also failed to consider above referred to three decisions of the Supreme Court, would the question of referring the matter to a Larger Bench consisting of five Judges arise.