1. The aforesaid matters have come before us for answer to references made by the learned Division Bench of this Tribunal vide common Order dated 03.08.2023, the references, which required to be answered are in para 11 of the said common Order/Judgment dated 03.08.2023. Para 11 of which reads as under:-

"11. We, therefore, deem it appropriate that the following issues be referred to a Full Bench/Larger Bench in view of the emerging two conflicting views in the aforesaid cases Asha Devi (supra) and Rajender Singh Rawat (supra):

(1) Whether the point of law decided in Asha Devi (supra) which was upheld by Hon'ble High Court of Delhi in WP (C) No. 9070/2018 and confirmed by the Hon'ble Supreme Court in SLP (Civil) Diary No. 16592/2019 leaving the question of law open, can be dealt with by a different Bench of this Tribunal taking a different view in Rajender Singh Rawat (supra)

(2) When the Hon'ble Supreme Court dismisses an SLP and further observes that the Question of Law is kept open, does it bound the Tribunal to follow their earlier decision which has been upheld by the Hon'ble High Court by a reasoned order and against which SLP has been dismissed in peculiar facts of the case

(3) If the answer to the aforementioned references is in the affirmative, what relief would the respective parties be entitled to"

2. Admittedly, the lead case amongst the captioned OAs is OA No. 2803/2018. Accordingly, before we proceed to consider the submissions made on behalf of the parties on the aforesaid reference(s), factual matrix may be taken from the said OA 2308/2018.

3. The applicants initially joined the services as Central Government employees under the Respondent No. 1. The respondent No. 3, i.e., Mahanagar Telephone Nigam Limited (hereinafter referred to as 'MTNL') was established on 1.4.1986 to manage and control the telecom services in two metropolitan cities, i.e., Delhi and Mumbai. The officers and staff working under the Respondent No. 1 were transferred en masse to Respondent No. 3 on deemed deputation basis. Groups 'C' and 'D' employees, including the applicants herein were sent to the Respondent No. 3 on deemed deputation basis and were absorbed under the Respondent No. 3 w.e.f. 1.11.1998 in accordance with the provisions contained in OM dated 5.7.1989 of Department of Pension and Pensioner's Welfare, i.e., Respondent No. 2. The Presidential Orders for such absorption were issued during the year 2001-2002. The absorbed employees of the Respondent No. 3 were given the following options for pensionary benefits:-

(i) Pro rata pensionary benefits; &

(ii) Pensionary benefits as per Government rules on the basis of combined services rendered in Government and MTNL.

In case where the MTNL absorbed employees opted for option (i), the pensionary benefits were being paid by the Government and those employees, who opted for option (ii), the pensionary benefits were being borne by the MTNL (Respondent No. 3) from its own resources since the financial year 2001-2002 and vide notification dated 3.3.2014 issued by the Respondent No. 2, the pensionary benefits in respect of those employees, who opted for option (ii), were paid by the Respondent No. 1, w.e.f. 1.10.2000. The applicants had less than 10 years of service under the Respondent No. 1, when they were absorbed under the Respondent No. 3, w.e.f. 1.11.1998. They had specifically chosen for option (i) for the services rendered under Respondent No. 1, i.e., pro rata pensionary benefits. As they had not completed requisite 10 years of qualifying service in terms of the provisions of Rule 37-A of the CCS (Pension) Rules, 1972 (hereinafter referred to as 'the Rules of 1972'), they were granted lump sum dues in place of pro rata pension. Their representations in this regard had been considered and were rejected by the respondents. Accordingly, the applicants approached this Tribunal for direction to the respondents to provide another one-time option for opting combined service pension. The applicants in support of their claim placed reliance on the Order/Judgment dated 8.9.2017 of learned Single Bench of this Tribunal in OA No. 1490/2015, titled Smt. Asha Devi vs. Union of India and others, which was challenged by the respondents before the Hon'ble High Court of Delhi through Writ Petition (Civil) No. 9070/2018 and the said Writ Petition was dismissed by the Hon'ble High Court vide a detailed Order/Judgment dated 16.11.2018 with certain modifications and directions. The said Order/Judgment dated 16.11.2018 of the Hon'ble High Court was challenged before the Hon'ble Apex Court through SLP (C) (Diary No. 16592/2019) and the same was dismissed by the Hon'ble Apex Court vide Order/Judgment dated 2.7.2019 keeping the question of law open.

4. The claim of the applicants was opposed and the respondents argued that similar issued was raised before this Tribunal by similarly placed persons being OA No. 553/2020, titled Rajinder Singh Rawat and others vs. Union of India and others, learned Single Bench of this Tribunal after considering the Order/Judgment of this Tribunal in the case of Smt. Asha Devi (supra) dismissed the said OA vide Order/Judgment dated 22.2.2023 holding that though the Hon'ble Apex Court had dismissed the aforesaid SLP in the case of Smt. Asha Devi (supra), however, the question of law was kept open and when the question of law held by the Hon'ble Apex Court was in personam and not in rem.

5. At the request on behalf of the applicant(s) learned counsels, the captioned OAs were placed before the learned Division Bench, the same were heard together by the learned Division Bench.

6. Keeping in view conflicting views of the two learned Single Benches of this Tribunal, one in Smt. Asha Devi (supra) and another in Rajender Singh Rawat (supra), the learned Division Bench has framed the issues and referred the same, as reproduced in para 1 hereinabove, to a Full Bench/Larger Bench vide order dated 3.8.2023. Accordingly, the matters are before us under the order of the Hon'ble Chairman, to answer the aforesaid issues/references.

7. It is undisputed that original applicant in the case of Smt. Asha Devi (supra) is the widow of late Shri Chandi Prasad Bamrara, who joined the services of the respondent No. 1, i.e., Department of Telecommunication on regular basis on 1.1.1992 as a regular Mazdoor. After rendering seven years of service with them, he was deemed to have retired on 31.10.1998 and was brought on the rolls of the respondent No. 3, i.e., MTNL on 1.11.1998. After his unfortunate demise on 5.7.2012 while working under the respondent No. 3, he left behind six dependent family members. The widow-Smt. Asha Devi (supra) approached this Tribunal vide OA No. 1490/2015, as she was not granted any pension on the premises that her late husband has not rendered qualifying service either under the respondent No. 1 or under the respondent No. 3. For rejection, the respondents had placed reliance on option taken from the applicant's deceased husband at the time of his absorption under the respondent No. 3, i.e., (i) pro rata pensionary benefits and (ii) pensionary benefits as per the Government rules on the basis of combined services rendered in the Govt. and the MTNL. After considering the claim and the counter claim in the said OA, i.e., OA No. 1490/2015 filed by Smt. Asha Devi was decided by learned Single Bench of this Tribunal vide Order/Judgment dated 8.9.2017. The said Order/Judgment dated 8.9.2017 of learned Single Bench of this Tribunal was challenged by the respondents herein before the Hon'ble Delhi High Court vide Writ Petition (Civil) No. 9070/2018, titled Union of India and another vs. Smt. Asha Devi and the Hon'ble High Court disposed of the said Writ Petition vide Order/Judgment dated 16.11.2018, paras 5 to 7 whereof read as under:-

"5. The Tribunal has required the petitioner to go through the formality of again asking for a fresh option from the respondent. In our view, there is no need for the same. For that procedure to be adopted, the same exercise of any option is futile. The only option available is that the service rendered by the respondent's husband with the Government (DoT) has to be counted for determination of pensionary benefits that are admissible from the MTNL.

6. While dismissing this petition, we therefore direct that without awaiting for any further option, the petitioner should count the service rendered by the respondent's husband with the DoT for computing his other benefits with the MTNL.

7. Petition and the applications are disposed of in abovesaid terms."

8. On further challenge before the Hon'ble Apex Court, the SLP (Civil) (Diary No. 16592/2019) was dismissed by the Hon'ble Apex Court vide Judgment dated 2.7.2019 and the said Judgment reads as under:-

"Delay condoned. In the peculiar facts and circumstances of the case, we do not see any reason to interfere in the matter. The special leave petition is, accordingly, dismissed. The question of law are however kept open. Pending application(s), if any, shall stand disposed of."

9. Shri Behera, learned senior counsel appearing for the applicants has argued that once the Order/Judgment of the Tribunal in the case of Smt. Asha Devi (supra) has been upheld by the Hon'ble High Court with certain modifications and with reasons therefor, even though while dismissing the SLP against the said Order/Judgment of the Tribunal and that of the Hon'ble High Court of Delhi, the Hon'ble Apex Court has left the question of law open, the Order/Judgment of the Hon'ble High Court would be binding for this Tribunal.

10. On the other hand, Shri Faisal, Shri Verma and Shri Gosain, the learned counsels appearing for the respondents, have argued that the Order/directions of the Tribunal in the case of Smt. Asha Devi (supra) and that of the Hon'ble High Court in the case of Smt. Asha Devi (supra) was out of considering the sympatric consideration of the applicant-Smt. Asha Devi (supra) (wife of deceased Govt. employee) and thus leaving behind six dependents and thus the relief(s) were granted to the applicant out of sympathy and compassion. They have further submitted that claim of the applicants in the captioned OAs are not maintainable as the same is barred by limitation. They have further added that action(s)/order(s) of the respondents impugned in the captioned OAs are in accordance with the relevant rules and instructions and no interference is warranted by this Tribunal.

11. Shri Satish Kumar, learned counsel for the respondent(s) has also argued that the Order/Judgment of the Tribunal in Smt. Asha Devi (supra) upheld with certain modifications by the Hon'ble High Court is not binding precedent in as much as the applicants are not entitled to benefit sought for. In support of his such argument, Shri Kumar, learned counsel, has placed reliance on the following Judgments of the Hon'ble Apex Court:-

(i) P. Bandopadhya and others vs. Union of India and others in civil Appeal No. 3149/2019, decided on 15.3.2019;

(ii) Union of India and others vs. K. Premakumari etc. etc. in Civil Appeal Nos. 233-244 of 2021, decided on 28.1.2021; and

(iii) Kunhayammed and others vs. State of Kerala and another, reported in 2000 (6) SCC 359 [LQ/SC/2000/1013] .

12. We have perused the relevant pleadings available on record, Orders/Judgments referred to by the learned counsels for the parties and have also considered the submissions made by the learned counsels for the parties.

13. So far the objection raised by the learned counsels for the respondents about maintainability of the captioned OAs on the ground that the same are barred by limitation is concerned, we are of the considered view that the same is not before us for consideration. Moreover, the appropriate Division Bench can considered the same while finally adjudicating the captioned OAs, of course, keeping in view the facts that such objection was raised by the respondents in the case of Smt. Asha Devi (supra) and law on this point.

14. On perusal of the aforesaid order of learned Single Bench of this Tribunal and that of the Hon'ble High Court confirming/modifying the same in the case of Smt. Asha Devi (supra), it is apparent that the Order/Judgment of the Tribunal was keeping in view the relevant policy regarding the option under reference and the same was not based on mere sympathy and compassion. Further the same was Order/Judgment of the Tribunal was upheld by the Hon'ble High Court with certain modifications and reasons vide Order/Judgment dated 16.11.2018. Though, the SLP filed against such Order/Judgment of the Hon'ble High Court was dismissed vide Judgment dated 2.7.2019 by the Hon'ble Supreme Court, however, the same does not merge with that of the Hon'ble Apex Court. However, the Order/Judgment dated 8.9.2017 of learned Single Bench of the Tribunal has merged with the Order/Judgment dated 16.11.2018 of the Hon'ble High Court of Delhi keeping in view the fact that Hon'ble High Court while dismissing the said Writ Petition filed by the respondents against the Order/Judgment of learned Single Bench of this Tribunal in Smt. Asha Devi (supra), has not only modified the order of this Tribunal but has also considered the relevant policy qua the option and has given reasons.

15. Admittedly, the applicants herein in the present OAs and deceased husband of the applicant in the case of Smt. Asha Devi were similarly placed as they had not completed 10 years service under the respondent No. 1 for being eligible for pro-rata pension in terms of clause (i) of the aforesaid option. In this view of the matter, even if on account of dismissal of the SLP preferred against the said Order/Judgment of the Hon'ble High Court, having not merged with the Order/Judgement of the Hon'ble High Court, the Order/Judgment dated 16.11.2018 of the Hon'ble High Court in the case of Smt. Asha Devi (supra) shall bind not only the parties to that Writ Petition but also the respondents herein as they were the respondents in the case before this Tribunal and they were the petitioners before the Hon'ble High Court in the case of Smt. Asha Devi (supra). In this regard, we may place reliance on the law laid down by the Hon'ble Apex Court in the case of Khoday Distilleries Ltd. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd, Kollegal, reported in 2019:INSC:298 : (2019) 4 SCC 376, [LQ/SC/2019/412] in para 26 of which the Hon'ble Apex Court has ruled as under:-

"26. From a cumulative reading of the various judgments, we sum up the legal position as under:

26.1 The conclusions rendered by the three Judge Bench of this Court in Kanhayammed case6 and summed up in paragraph 44 are affirmed and reiterated.

26.2 We reiterate the conclusions relevant for these cases as under: (Kanhayammed case6, SCC p. 384)

"(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."

26.3 Once we hold that law laid down in Kanhayammed case6 is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kanhayammed case6."

16. On perusal of the aforesaid Order/Judgment of this Tribunal and the Order/Judgment of the Hon'ble High Court of Delhi in the case of Smt. Asha Devi (supra), it is evident that the same were passed keeping in view the relevant policy related to the options given to the employee similar to the applicants in the present OAs on merit and in no manner on account of sympathy or compassion. Accordingly, the Order/Judgment of the learned Single Bench as modified by the Hon'ble High Court in the case of Smt. Asha Devi (supra) shall be binding for this Tribunal, we are of the considered view that the same binds the Single Bench(es), the Division Bench(es) and/or the Full Bench(es)/Larger Bench(es) of this Tribunal and this is not open for this Tribunal to go into the correctness of the Order/Judgment passed by the Hon'ble High Court. In support of our such view, we may place reliance on the law laid down by the Hon'ble Apex Court in the case of Official Liquidator vs. Dayanand and others, reported in (2008) 10 SCC 1, [LQ/SC/2008/2207] wherein their Lordships have considered their own judgments in various cases on the point of rule of judicial discipline, judicial propriety and doctrine of binding precedent, as can be evident from paras 78 to 92 of such judgment, which are reproduced as under:-

"78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. AIR 1960 SC 936 [LQ/SC/1960/127] : (1960) 3 SCR 578 [LQ/SC/1960/127] ] this Court observed: (AIR p. 941, para 19)

"19. ... If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."

(emphasis added)

79. In Lala Shri Bhagwan v. Ram Chand AIR 1965 SC 1767 [LQ/SC/1965/66] ] Gajendragadkar, C.J. observed: (AIR p. 1773, para 18)

"18. ... It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."

80. In Union of India v. Raghubir Singh (1989) 2 SCC 754] [LQ/SC/1989/332] R.S. Pathak, C.J. while recognising need for constant development of law and jurisprudence emphasised the necessity of abiding by the earlier precedents in the following words: (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 consistent enunciation of legal principle in the decisions of a court."

81. In Sundarjas Kanyalal Bhatija v. Collector, Thane (1989) 3 SCC 396] [LQ/SC/1989/342] a two-Judge Bench observed as under: (SCC p. 407, para 22)

"22. ... In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of Judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute."

82. In Vijay Laxmi Sadho (Dr. ) v. Jagdish (2001) 2 SCC 247] [LQ/SC/2001/64] this Court considered whether the learned Single Judge of the Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held: (SCC p. 256, para 33)

"33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Devilal v. Kinkar Narmada Prasad, Election Petition No. 9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."

83. In Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1] [LQ/SC/2001/2812 ;] the Constitution Bench noted that the two learned Judges denuded the correctness of an earlier Constitution Bench judgment in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha (2001) 4 SCC 448] [LQ/SC/2001/1112 ;] and reiterated the same despite the fact that the second Constitution Bench refused to reconsider the earlier verdict and observed: (Pradip Chandra Parija case (2002) 1 SCC 1] [LQ/SC/2001/2812 ;] , SCC pp. 3-4, paras 3 & 5-6)

"3. We may point out, at the outset, that in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha (2001) 4 SCC 448] [LQ/SC/2001/1112 ;] a Bench of five Judges considered a somewhat similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges.

***

5. The learned Attorney General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges - a proposition that learned counsel for the appellants did not dispute. The learned Attorney General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India (1992) 4 SCC 97] [LQ/SC/1991/433] where it has been said that 'no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench- (SCC p. 98, para 5). The learned Attorney General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar [Nityananda Kar v. State of Orissa, 1991 Supp (2) SCC 5761992 SCC (L&S) 177 : (1992) 19 ATC 236] was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar [Nityananda Kar v. State of Orissa, 1991 Supp (2) SCC 576 1992 SCC (L&S) 177 : (1992) 19 ATC 236] , could have referred the case to a Bench of five learned Judges.

6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified."

(emphasis supplied)

84. In State of Bihar v. Kalika Kuer (2003) 5 SCC 448] [LQ/SC/2003/548] the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.

85. In State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26] [LQ/SC/2003/1190] the Court reiterated that if a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter has to be referred to a larger Bench.

86. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 [LQ/SC/2004/1439] : 2005 SCC (L&S) 246 : 2005 SCC (Cri) 546] [LQ/SC/2004/1439] the Constitution Bench interpreted Article 141, referred to various earlier judgments including Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha (2001) 4 SCC 448] [LQ/SC/2001/1112 ;] and Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1] [LQ/SC/2001/2812 ;] and held

that the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be immediate casualty (Central Board of Dawoodi Bohra Community case (2005) 2 SCC 673 [LQ/SC/2004/1439] : 2005 SCC (L&S) 246 : 2005 SCC (Cri) 546] [LQ/SC/2004/1439] , SCC p. 682, paras 12 & 10).

87. In State of U.P. v. Jeet S. Bisht (2007) 6 SCC 586] [LQ/SC/2007/783] when one of the Hon'ble Judges (Katju, J.) constituting the Bench criticised the orders passed by various Benches in the same case, the other Hon'ble Judge (Sinha, J.) expressed himself in the following words: (SCC p. 623, para 100)

"100. For the views been taken herein, I regret to express my inability to agree with Brother Katju, J. in regard to the criticisms of various orders passed in this case itself by other Benches. I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. judicial discipline and respect for the Brother Judges."

88. In U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj (2007) 2 SCC 138 [LQ/SC/2006/1262] : (2007) 1 SCC (L&S) 773] the Court noted that by ignoring the earlier decision of a coordinate Bench, a Division Bench of the High Court directed that part-time tubewell operators should be treated as permanent employees with same service conditions as far as possible and observed: (SCC p. 149, para 26)

"26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity."

89. It is interesting to note that in Coir Board v. Indira Devi P.S. (1998) 3 SCC 259 [LQ/SC/1998/298] : 1998 SCC (L&S) 806] , a two-Judge Bench doubted the correctness of the seven-Judge Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa (1978) 2 SCC 213 [LQ/SC/1978/73] : 1978 SCC (L&S) 215] and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three-Judge Bench headed by Dr. A.S. Anand, C.J., refused to entertain the reference and observed that the two-Judge Bench is bound by the judgment of the larger Bench-Coir Board v. Indira Devai P.S. (2000) 1 SCC 224 [LQ/SC/1998/1081] : 2000 SCC (L&S) 120]

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.

91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey (2007) 11 SCC 92 [LQ/SC/2007/1220] : (2008) 1 SCC (L&S) 736] should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."

17. The issue as to the precedential effect to observation(s) and clarification(s) of the Hon'ble Supreme Court which provides that though the special leave petition is dismissed but the question of law is kept open, came up for consideration before the Hon'ble High Court of Gujarat at Ahmadabad in Special Civil Application No. 19456 of 2016, titled Hemal Ishwarbhai Patel vs. Veer Narmad South Gujarat University and others, reported in (2017) 2 GLH 76, the Hon'ble High Court after considering various judgments on the issue ruled in paras 20 to 26 reproduced as under:-

"20. The question as to the precedential effect of the observation and clarification of the Supreme Court when it in its order provides that though the Special Leave Petition is dismissed but question of law is kept open, was considered by the binding Division Bench judgment of this Court in Collector v. Liquidator-Petrofills Cooperative Limited being Miscellaneous Civil Application (For Review) No. 1412 of 2015 decided on 23rd October, 2015.

21. A clear answer is provided from the discussion from paragraph 26 to 28, reproduced hereinbelow.

"The question therefore is, in the present case was the SLP dismissed by citing reasons or was a simplicitor order of dismissal. We have reproduced the order of SLP in the earlier portion of this judgment. The order records that on facts of this case, the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution of India. While therefore, dismissing the SLP the Court proceeded to observe However, the question of law is kept open. In our understanding neither the expression that on the facts of the case, the Court was not inclined to exercise jurisdiction under Article 136 or that the question of law is kept open, would indicate the reasons for not entertaining the SLP. As has been observed in case of Kunhayammed v. State of Kerala (2000) 6 SCC 359] [LQ/SC/2000/1013] and Gangadhara Palo v. Revenue Divisional Officer (2011) 4 SCC 602] [LQ/SC/2011/374] , SLP can be dismissed for variety of grounds, could be on the ground of delay, latches, equity or simply because the Supreme Court thinks in a given set of facts, it is not appropriate to exercise discretionary power to entertain the SLP. The thrust of the order was that the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution. Mere expression of disinclination coined in a slightly different phraseology does not amount to giving reasons."

(Para 26)

22. The Division Bench next stated-"Further the expression question of law is kept open would only guard against any future contention that the Supreme Court had confirmed the ratio of the judgement under challenge whereby either giving rise to a possible contention of merger or that even in future cases, Supreme Court would be precluded from considering such an issue in better facts."

(Para 26)

23. It was elaborated and explained-

"When the Supreme Court records that the question of law is kept open, undoubtedly it is meant to be reconsidered in future by the Supreme Court only. The question of law, as correctly contended by Shri P. Chidambaram, is not kept open for the High Court. This is precisely what was held and observed by the Division Bench of this Court in an unreported decision in Tax Appeal No. 380/2013 dated 9/12/2013. We are in full agreement with the view expressed therein. It was a case where an issue of unabsorbed depreciation under section 32(2) of the Income Tax Act, 1961, was raised by the Revenue before the High Court. An identical issue was already decided by the High Court in case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax reported in (2013) 354 ITR 244 (Guj) by allowing the appeal of the assessee and setting aside the order of the Commissioner. The judgement of the High Court was carried in appeal before the Supreme Court. The Supreme Court dismissed the SLP making it clear that the question of law is kept open. When a similar question came up before the High Court in the Tax Appeal, the Revenue argued that when the Supreme Court has left the question of law open, it would be open for the High Court to reconsider the issue regardless of the judgement of another Division Bench in case of General Motors Pvt. Ltd. (supra). It was in this background, Division Bench made the following observations:

"(10) Now so far as the submission made by learned counsel appearing on behalf of the revenue that though against the decision of the Division Bench of this Court in the case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax (supra), as such, Special Leave to Appeal was preferred before the Honble Supreme Court and the same came to be dismissed by the Honble Supreme Court on the ground of delay and kept the question of law open, this Court may consider the question of law raised on merits is concerned, the same cannot be accepted. It is required to be noted that as such, consideration of the question raised with respect to set off of unabsorbed depreciation on merits, there is a direct decision of the Division Bench of this Court in the case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax (supra). Against the said decision, the Special Leave to Appeal was preferred and the same came to be dismissed on the ground of delay and the Honble Supreme Court kept the question of law open. Therefore, it can not be said that the said question of law is kept open by the Honble Supreme Court to consider subsequently by this Court Coordinate Bench. It can be said that the said question of law is kept open by the Honble Supreme Court to consider subsequently in other cases by the Honble Supreme Court. So far as this Court is concerned, the decision of the Division Bench of this Court in the case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax (supra) is binding unless a contrary view is taken and the matter is referred to the Larger Bench. In view of the decision of the Division Bench of this Court in the case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax (supra) which has been relied upon by the learned ITAT while passing the impugned judgment and order, as such, no question of law much less any substantial question of law arises now."

(Para 27)

24. The Division Bench ruled about correct legal position thus-

"We are in full agreement with the view so expressed and in our understanding brings about a correct legal position. When a question of law is kept open by the Supreme Court not entertaining a SLP against the judgement of the High Court, in fact, what is done is neither to confirm nor to dilute the ratio of the judgement under challenge. That however, does not mean that the High Court in a future case is allowed to take a fresh view ignoring the law of precedence. It only means that the Supreme Court refused to bind itself or put its seal on the ratio propounded by the High Court in the judgement under challenge. Therefore, when an identical question comes up before the same High Court and is presented for consideration before a Bench of coordinate strength, by virtue of principles of law of precedence, the Bench would be bound by the ratio of the earlier judgement of the High Court, unless persuaded to refer it to a larger Bench. This is precisely what has been recorded by the Division Bench in the said case and this is why the Bench was of the opinion that it had either to follow the ratio in case of General Motors or make a reference to the larger Bench. This per-se however, would not mean that the review consideration is shut out, if the review is otherwise maintainable. Normally, in almost all the cases, the same Bench would be reconsidering the matter on the grounds raised in the review petition. If in the process, it is found that the proposition of law laid down suffers from some error apparent on face of the record, review certainly would be available. In other words, if a decision has become final, it would continue to bind the Bench of coordinate strength of the same High Court in future though in SLP the Supreme Court it might have been observed that the question of law is kept open. But when a review petition comes before the same Bench, it is the judgement in review which is being criticised. It would have the same limitations as in any other case of review where SLP may not have been filed. Nothing more nothing less. In other words, the expression question of law is kept open does not put any additional fetters on the High Court exercising review powers."

(Para 28)

25. As recorded above, by comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of 'no evidence' and the attended reasoning supplied by the Division Bench apply to the present case with equal force.

26. When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it would be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh (supra) was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh (supra)."

18. We have also gone through the judgments referred to and relied upon by Shri Satish Kumar, learned counsel, one of the learned advocates appearing for the respondents which we have noted in para 11 hereinabove. In the case of P. Bandopadhya (supra), the appellants were erstwhile employees in the Overseas Communications Service ('OCS'), a Department of the Government of India converted into a Government Company as Videsh Sanchar Nigam Limited ('VSNL'). Initially, all the employees of the erstwhile OSC were transferred en masse to VSNL (subsequently known as Tata Communications Limited), where they worked on deputation from April 1, 1986 to January 1, 1990. In July 1989, the Government of India, through Department of Pension and Pensioners' Welfare issued Office Memorandum specifying the terms and conditions governing the pensionary benefits of employees who were transferred en masse. Admittedly, the facts and circumstances of the case were entirely different from those of the cases in hand. The judgment of the Hon'ble Apex Court in the case of P. Bandopadhya (supra) was considered by the Hon'ble Apex Court in the case of K. Premakumari etc. etc. (supra). Moreover, in that case also, option as referred to in the cases in hand was not the subject matter as well as certain other facts were also different from those in the cases in hand. We are of the considered view the judgments in P. Bandopadhya (supra) as well as in K. Premakumari etc. etc. (supra) do not support the stand taken by the respondents in the instant matters. So far as the reliance placed on the judgment of the Hon'ble Apex Court in the case of Kunhayammed (supra) is concerned, we find that the same has been considered by the Hon'ble Apex Court in Khoday Distilleries Ltd. (supra) referred to hereinabove.

19. In view of the aforesaid discussions, authoritative pronouncements by the Hon'ble Apex Court as well as the Hon'ble High Courts,

(i) the answer to reference in Para 11 (1) of the common Order dated 03.08.2023 of the learned Division Bench in the captioned OAs and as reproduced in Para 1 hereinabove is 'No',

(ii) the answer to reference in Para 11 (2) of the common Order dated 03.08.2023 of the learned Division Bench in the captioned OAs and reproduced in para 1 hereinabove is 'Yes'; &

(iii) the answer to reference in para 11 (3) of the common Order dated 03.08.2023 of the learned Division Bench in the captioned OAs and reproduced in pra 1 hereinabove is that the grant of relief to the applicants in the captioned OAs shall be considered, keeping in view the facts and prayer(s) in the respective captioned OAs keeping in view and in the light of Order/Judgment of this Tribunal in the case of Smt. Asha Devi (supra) as upheld/modified by the Hon'ble High Court of Delhi.

20. The captioned OAs are remitted back to the learned Division Bench for further order/judgment in the captioned OAs on merit.