'Per Incuriam' Decision Has No Precedent Value But It's Binding On Parties Inter-se: Allahabad High Court Explains

The Allahabad High Court last week delivered an important judgement on the applicability of the doctrine of per incuriam and res judicta in regards to an earlier decision of a Division Bench of the Court. 

A Bench comprising Justice Ramesh Sinha and Justice Jaspreet Singh was adjudicating upon a seniority dispute pertaining to two classes of employees of the Transport department.  

Background:

In the instant case, the Court was adjudicating upon three interlocutory appeals against the judgement dated October 20, 2020 of a Single Judge. The case involves a seniority dispute between two classes of recruits- the appellants belonging to the Class of Passenger Tax/Goods Tax Superintendents (P.T.G.T.S) who were subsequently merged with Passenger/Tax Goods Tax Officers (PTGTO) vide government order dated May 3, 2011 and the respondents who were directly appointed as Passenger/Tax Goods Tax Officers (PTGTO).

A final seniority list was published on November 17, 2017 on the basis of a Division Bench decision of the Court dated April 13, 2017. Subsequently, the Transport Commissioner modified the final seniority list of 2017 and circulated the modified list on April 15, 2019 owing to which the respondents who were directly recruited to the post of PTGTO and were earlier senior to the appellants (PTGTS), now became junior in seniority.

The Single Judge of the High Court had set aside the revised seniority list prepared by the Transport Commissioner and instead affirmed the original seniority list dated November 17, 2017 and consequently the respondents were placed above the appellants in the seniority list. Accordingly, the instant appeals were filed by the appellants against the impugned order of the Single Judge.

Issue 1: Whether the earlier Division Bench decision dated April 13, 2017 is per incuraim and if so what would be its effect on the instant proceedings?

The Court placed reliance on the definition of per incuriam as envisaged in the Black's Law Dictionary wherein it has been defined as a 'judicial decision wrongly decided, usually because the Judge or Judges were ill-informed about the applicable law'. Accordingly the Court noted that such a concept had been developed primarily by English Courts to dilute the rule of stare decisis (binding law) and subsequently adopted by Constitutional Courts in India.

Reliance was placed by the Court on the Supreme Court decision of A.R. Antulay v. R.S. Nayak and Another and accordingly, the Court opined,

"It is clearly discernable that the doctrine of per-incuriam merely takes away the precendent value of a decision but in no manner it dilutes or affects the binding nature of the aforesaid decision on the parties inter-se"

Applying the aforementioned principle in the instant case, the Court upheld the dictum of the Division Bench in order dated April 13, 2017. The Court noted that the Division Bench had accurately taken into consideration the government order May 3, 2011 and the applicable Uttar Pradesh Transportation Taxation (Subordinate Service Rules, (1st Amendment) Rules, 2018 (2018 Rules). Thus, the appellants who whose posts were merged with the P.T.G.T.O were rightly positioned superior to the respondents in matters of seniority.

Accordingly, the Court observed that the decision of the Division Bench cannot be termed to be per incuraim and if at all it is treated as such for the sake of argument, nevertheless it will not rob the impugned decision of its binding value on the two class of persons who are parties inter-se.

Issue 2: Whether the earlier Division Bench decision April 13, 2017 would operate as res-judicata or constructive res-judicata and if so what would be its effect on the instant proceedings?

The Court placed reliance on the Apex Court decision in Dr. Subramanian Swami v. State of Tamil Nadu and Others to observe,

"Even an erroneous decision on a question of law attracts the doctrine of res-judicata in between the parties. The question regarding the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as resjudicata."

Further enumerating on the concept of 'constructive res judicata', the Court observed that pursuant to Explanation IV of Section 11 of the Code of Civil Procedure (CPC), if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and thus bars the trial of an indentical issue in a subsequent proceedings between the same parties. This is done to avoid multiplicity of litigation and to bring about finality in judicial decisions, the Court added.

Applying the aforementioned principle to the facts of the present case, the Court observed,

"In the present case, where the earlier Division Bench decision dated 13.04.2017 had been put to review unsuccessfully and thereafter it was not challenged in any appeal before any superiour Court, thus, the said decision attained finality. In such a situation where the litigation is between the same class of people, at a subsequent stage now, it cannot be urged that the ealier decision was incorrect and the same cannot bind the present appellants."

Thus at this stage the appellants cannot be permitted to do something indirectly which they failed to do directly, the Court reiterated.

Case Title: - Ashutosh Kumar Upadhyay v. Vijay Kishore Anand & Others

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