- (1.) This matter has been assigned to us on a reference made by a Division Bench of this Court consisting of Ashim Kumar Banerjee and Debasish Kar Gupta, JJ, (hereinafter referred to as the Referring Bench) for the purpose of deciding the following question by describing the question so formulated as "one of law": Whether the application of the respondent No. 1 for retirement under the voluntary retirement scheme 2000 could be rejected by the appellant bank even after denying promotion to the respondent No. 1 to the higher post?
(2.) The facts giving rise to the present reference may be summed up thus: (a) The respondent No. 1 filed an application under Article 226 of the Constitution of India Being W.P. No. 815 of 2001 thereby challenging an order dated March 13, 2001 by which the respondent No. 1 was informed by his employer, the appellants, that his application for retirement under the scheme for voluntary retirement offered by the employer had been rejected. (b) The said writ application was allowed on June 14, 2002 by a learned single Judge of this Court on contested hearing by quashing the said order and directing the appropriate authority under the scheme to take a decision in the matter in accordance with law. (c) An appeal being No. 165 of 2003 was preferred by the appellants against the said order dated June 14, 2002 and the Division Bench consisting of Subhro Kamal Mukherjee and R. N. Banerjee, JJ. (hereinafter referred to as the First Division Bench) dismissed the said appeal on September 27, 2006 thereby directing the competent authority under the said scheme to reconsider the request of the respondent No. 1 for his voluntary retirement from the service of the Appellant-Bank in accordance with law. While disposing of the said appeal, the said Division Bench made the following observations: The Hon'ble Judge, while dealing with this matter, had indicated that the petitioner although was in the competition for promotion to the post of the Assistant General Manager, Computer Department, he was not found suitable for such higher post and another officer from the general category was found suitable for the said promotional post. The Hon'ble Single Judge, accordingly, observed that 'petitioner is suffering stagnation for a long period of years. It is not the bank's case that there is suitable promotion opportunity for the petitioner for utilizing his experience in the computer nor the bank has shown that his qualification and experience in computer is being utilized with the special interest of bank in continuing him in service. In view of such undisputed fact of petitioner's not getting any promotion for a long time, the bank's decision that the petitioner's service is required for the bank's interest does not stand. The Hon'ble single Judge has pointed to such lacunae in the stand of the Bank in this regard. (d) The appellants did not challenge the aforesaid order of the First Division Bench and consequently, the appellant No. 2, being the competent authority under the said scheme, pursuant to the order of the First Division Bench, passed a fresh reasoned order dated November 24, 2006 thereby again rejecting the prayer of the respondent No. 1 for voluntary retirement. (e) The aforesaid order dated November 24, 2006 rejecting the prayer of the respondent No. 1 for voluntary retirement was challenged by the respondent No. 1 by filing a fresh writ application being W.P. No. 480 of 2007. (f) A learned single Judge of this Court set aside the said order dated November 24, 2006 with a direction upon the appellant No. 2 to consider the application of the respondent No. 1 for voluntary retirement in the light of the observations made in the body of the said judgment. (g) Being dissatisfied, the appellants preferred to fresh mandamus-appeal against the order of the learned single Judge being A.P.O. No. 37 of 2009 and while hearing the said mandamus-appeal, the Referring Bench noted the observations of the First Division Bench that has been quoted earlier by us and held that Their Lordships were unable to agree with the above observations of the First Division Bench on the above issue and gave a different reason. (h) After making such observations, deviating from the earlier view taken by the First Division Bench, Their Lordships of the Referring Bench felt that as Their Lordships proposed to take a view contrary to the one taken by another Division Bench, the judicial propriety demanded that the matter should be referred to the Hon'ble Chief Justice for constitution of a larger Bench for the purpose of deciding the question that we have already quoted above and in making such reference, Their Lordships relied upon the following observations of the Apex Court in the case of Sundarajas Kanyalal Bhathija v. Collector, Thane, 1990 AIR(SC) 261 It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.
(3.) After hearing the learned Counsel for the parties and after considering the facts giving rise to the present reference, we are of the opinion that the present reference is incompetent for the following reasons:;