Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1742-1743   OF  2010 (Arising out of SLP(Civil)Nos.17501-17502 of 2007)

State of West Bengal & Anr.           …  Appellants(s)

Versus

Kamala Prasad & Ors.           ... Respondent(s)

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

2. These appeals are directed against the Division Bench  judgment  

of the Calcutta High Court dated 14.06.2007 in MAT No.380/2006 and  

MAT No. 1114/2007 directing the appellants to treat the respondents -  

writ  petitioners as Class III  employees as declared by the Civil  Court  

and to disburse them arrears of pay and other service benefits.   

3. Writ  petitioners,  employees  of  Bhowanipore  Education  Society  

College,  Kolkata,  a  private  college  recognized  and  aided  by  the  

Government  of  West  Bengal,  had  initially  filed  a   Civil  Suit  TS  No.

86/1984 before the Third Additional Munsiff  Court,  Alipore, seeking a  

declaration  that  they  are  Laboratory  Assistants,  belonging  to  the  

category of Class-III  employees entitled to the benefits and privileges  

attached to those posts and also for a mandatory injunction directing the  

defendants  to  pay  all  monetary  benefits  with  effect  from 03.10.1975  

treating them as Class–III  employees and also for  a declaration that  

their demotion to class IV posts is illegal and void.  The College and the  

appellants herein were parties to the suit.

4. The  Civil  Court,  relying  upon  the  provisions  of  the  Calcutta  

University, First Statute 1979 decreed the suit on 1.10.1994 declaring  

that the respondents are class III employees, entitled to all benefits and  

privileges  attached  to  the  post  of  Laboratory  Assistants  and  their  

demotion  to  class  IV  posts  is  illegal.   The  Court  also  granted  a  

mandatory injunction directing the defendants to pay all dues attached  

to  the  posts  from  03.10.1975  till  the  date  of  the  judgment  within  a  

month.  

5. Some of the decree holders instead of filing an execution petition  

preferred to  file  a  Writ  Petition  CO No.8472 (M)  of  1995 before  the  

Calcutta High Court for a direction to the appellants herein to treat them  

as Class-III  employees as declared by the Civil  Court  and pay them  

salary and other benefits and some others approached the execution  

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court  by  filing  T.  Ex.  Case  No.2/1997  for  executing  the  decree.  

Appellants herein also preferred Miscellaneous Case No.18/2000 in the  

above  execution  petition  challenging  the  executability  of  the  decree  

passed in TS No.86/1984 contending that the executing court did not  

have the jurisdiction to execute the decree.  The Miscellaneous Case  

No.18/2000 was allowed by the executing court holding that the decree  

passed in TS No.86/1984 was not executable and that the executing  

court did not have the jurisdiction to execute the decree.  It held that a  

private employer’s action cannot be questioned by the employees in a  

civil court having regard to Section 34 of the Specific Relief Act, 1963  

and Section 9 of the Civil Procedure Code.  The order was challenged  

before  the  Calcutta  High  Court  in  revision  with  an  application  for  

condonation of delay but the delay was not condoned and hence the  

appeal was dismissed on 08.12.2003.

6. Appellants herein did not challenge the decree  dated  01.10.1994  

by filing an appeal. Strangely, they filed a suit being TS No.250 of 1995  

before  the  Fourth  Civil  Judge (Junior  Division)  for  a  declaration  and  

permanent  injunction  against  the  employees  (plaintiffs  in  T.S.  No.  

86/1984), challenging the validity and legality of the decree passed in  

TS No.86 of 1984. The suit was dismissed as not maintainable by the  

Court vide its order dated 30.09.1999.   

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7.  The  3rd respondent  herein,  in  the  meantime,  had  filed  a  writ  

petition No.5345 of 2000 claiming monetary benefits available to  Class-

III  employees,  which was disposed of  by the Calcutta High Court on  

06.06.2000 directing the authorities to consider his request and pass  

appropriate orders, however his request was rejected by the appellants  

in the month of  September 2000.   

8. The  respondent  Nos.  1  and  2  herein  then  filed  a  writ  petition  

no.15360(W) of 2000 which was re-numbered as WP(Crl.) 7002(W) of  

2002   before  the  Calcutta  High  Court  to  treat  them  as  Class-III  

employees based on the declaration made in TS No.86/1984 and to pay  

them the salary and other  benefits  in the revised scale and also for  

other consequential  benefits.   The writ  petition was heard along with  

C.O. No. 8472 of 1995 by a learned single judge of the Calcutta High  

Court who took the view that the appellants herein are legally bound by  

the declaration made by the Civil Court that the respondents are Class-

III  employees  and  the  same  is  binding  on  the  State  Government.  

Holding  so,  both  the  writ  petitions  were  disposed  of  by  the  learned  

single judge on 19th December, 2005 directing the State Government  

and its authorities to grant relief to the respondents by treating them as  

Class-III  employees as declared by the Civil  Court  and pay them all  

consequential benefits with retrospective effect.

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9. The above mentioned judgment was challenged by the appellants  

herein before the Division Bench of  the Calcutta High Court.   It  was  

contended that since the civil court had held that the decree was not  

executable, the learned single judge had committed an error in granting  

the  reliefs  by  entertaining  the  writ  petition  under  Article  226  of  the  

Constitution of India.  The court noticed that the civil court had given a  

declaration that the Writ Petitioners were Class-III employees and that  

the State Government and the college did not challenge that decree  

instead they  filed a suit challenging the decree passed by the civil court  

which was dismissed. The Court therefore took the view that appellants  

are bound to honour that declaration and not to nullify it. The Bench,  

therefore, directed to treat the respondents as Class-III employees and  

to pay the arrears of pay and other benefits.  

10. Learned counsel for the appellants submitted that the High Court  

has committed a grave error in granting relief by entertaining both the  

writ  petitions under Article  226 of  the Constitution of  India especially  

when the executing court has refused to execute the decree holding that  

a  civil  court  cannot  execute  the said  decree.   Learned counsel  also  

submitted that though the appellants were parties to the civil suit in TS  

86 of 1984 the same could not be effectively contested on merits and  

that the respondents were not entitled to get the reliefs as prayed for in  

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the writ petitions.  Learned counsel further submitted that the High Court  

has  committed  a  grave  error  in  directing  implementation  of  the  civil  

court’s decree without adjudicating the questions on merits.  Referring  

to the judgment of this Court in  Ghan Shyam Das Gupta  vs.  Annant  

Kumar Sinha (1991) 4 SCC 379,  counsel  submitted that  the remedy  

available under Article 226 is not to supersede the modes of obtaining  

the relief before a Civil Court.  Reference was also made in  Shankar  

Ramchandra Abhayankar  vs.   Krishnaji  Dattarayyay Bapat  (1969) 2  

SCC  74  and  Jharia vs.   State  of  Rajasthan (1983)  4  SCC  7  and  

submitted that if there are two modes of invoking the jurisdiction of the  

High Court and if one of those modes have been exhausted, it is not  

proper and sound exercise of jurisdiction or discretion to grant relief in  

the  other  set  of  proceedings  in  respect  of  the  same  decree  of  the  

subordinate court.   

11. Learned  counsel  for  the  respondents  on  the  other  hand  

contended that though some of the respondents had tried to execute the  

decree of the civil court by filing an execution petition the same could  

not  be  executed  since  the  declaration  given  by  the  decree  was  not  

within the scope of Section 34 of the Specific Relief Act or Section 9 of  

the CPC and hence the only course open to the respondents was to  

approach the High Court to seek reliefs based on the declaration made  

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by the civil court. Learned counsel also submitted that the High Court  

was not acting as an executing court while granting the reliefs but was  

giving  due  weight  to  the  declaration  given  by  the  Civil  Court  while  

exercising its discretion under Article 226 of the Constitution of India.  

Learned counsel submitted that  the decisions cited by the appellants  

are of no assistance as far as the present case is concerned.

12 We notice  that  the  High Court  was mainly  concerned with  the  

question  whether  the  declaration  made  by  the  civil  Court  that  the  

respondents are Class-III employees be taken into consideration while  

granting the reliefs prayed in the writ petition.  The High Court noticed  

that the judgment rendered by the Civil Court in T.S. No. 86/94 was not  

appealed against by the appellants and the same had attained finality.  

Further,  the suit  filed by the appellants against  the respondents was  

also dismissed.  In such circumstances the High Court took the view  

that the appellants are bound to honour the decree passed by the civil  

court and not to nullify it.   

13. The High Court, in our view, has rightly held that while directing  

consideration  of  the  claims  of  the  respondents  herein,  as  Class  –III  

employees, the court is not executing the Civil Court’s decree but only  

recognizing the fact  that  the Civil  Court  has declared their  status as  

Class-III  employees,  which is  binding on the appellants.  Further,  the  

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decisions cited by the appellants are not applicable to the facts of this  

case, since the High Court was not acting as an executing court while  

giving the above-mentioned directions  especially when the respondents  

were working in an aided college, whose salary and other benefits had  

to be borne by the State.

14. We,  therefore,  find  no error  in  the  direction  given  by the High  

Court.  Appeals lack merits and, are, accordingly dismissed.  

……………………………J. (R.V. Raveendran)

…………………………….J. (K.S. Radhakrishnan)

New Delhi; February 16, 2010

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