NADIA DISTRICT PRIMARY SCHOOL COUNCIL & ANR. versus SRISTIDHAR BISWAS & ORS.

Citation: [2007] 5 S.C.R. 586 · Decided: 25-04-2007 · Supreme Court of India · Bench: A.K. MATHUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
NADIA DISTRICT PRIMARY SCHOOL COUNCIL & ANR. 
.J 
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 
c 
order not to be treated as precedent-Jn another Writ Petition similar relief 
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'. 
F 
Thereafter respondents filed another writ petition and the same was also 
allowed on the basis of the judgments in the cases of 'S' and 'D'. Hence, the 
'l 
present appeal 
Allowing the appeal, the Court 
G 
HELD: I. An order passed on concession followed with clarification that 
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] 
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. 
B 
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) 
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. 
D 
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 
..

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