http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  4767 of 2007

PETITIONER: SWAPAN DHAR & ORS.

RESPONDENT: STATE OF WEST BENGAL & ORS

DATE OF JUDGMENT: 08/10/2007

BENCH: S.B. SINHA & H.S. BEDI

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 4767 OF 2007 (ARISING OUT OF S.L.P.(C) NO. 20184 OF 2006)

S.B. SINHA, J.     

1.         Leave granted.

2.           Appellants herein were working as temporary pump operator in Calcutta  Metropolitan Development Authority.   They were transferred to the Calcutta Municipal  Corporation (hereinafter referred to as "the Corporation"). They were asked to join by  June 15,1978 on the post of Turn Cock  which according to them was a lower post.  A  writ petition came to be filed by the appellants, inter alia, stating that they had a  legitimate claim of being appointed as a Fitter Driver. By  judgment and order dated  11.7.1986, a learned Single Judge of the High Court disposed of the said petition by  directing the respondent-authorities to consider the case of the appellants from all   aspects including the question of seniority and offer them suitable posts equivalent to the  posts which they had been holding under the CMDA prior to their services being  transferred to the Corporation.

3.      It is alleged that the Deputy Municipal Commissioner (personnel) rejected the  claim of the appellants by mis-interpreting the order dated 11.7.1986 passed by the High  Court.  Appellants filed another writ petition before the High Court.  The said writ petitio n  was allowed by a learned Single Judge of the Calcutta High Court by an order dated  8.1.1992 directing as under: "Proper reading of the order dated June 8, 1978 is warranted.   The  order is itself a ground for setting aside the order impugned in the writ  application. Further more, the affidavit-in-opposition affirmed on  September 17, 1991 by Sunil Kumar Banerjee, Assistant  Administrative Officer of the Calcutta Metropolitan Development  Authority supported the case of the petitioner to the extent indicated  above.  It is also very unfortunate that the respondents never cared to  consider the materials on record as also the noting of the officer  prepared for consideration of the higher authorities. In those  circumstances, I set aside the impugned order.  I hold that the  petitioners  were entitled to be treated in employment and equalization  of posts.  The petitioners shall be accorded all the service benefits.  The  petitioners shall be accorded service benefits from the date of  presentation of the writ application and not from any earlier date.  The  writ petition succeeds with the direction made hereinabove.  This order  shall be implemented within a period of three months from the date of  communication of this order." (emphasis supplied)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

4.      Appellants did not prefer any appeal against the said order whereas the  Calcutta Municipal Corporation did.  The Division Bench of the Calcutta High Court by a  judgment dated 24.8.1993 while dismissing the appeal preferred by the  Corporation,   observed as under: "We do not find any reason to treat the writ petitioners opposite parties  as Turn Cock and consequently, whether the post of fitter driver  promotional or not, wholly immaterial in this case. If the writ petitioners  opposite parties substantively appointed in the post of Turn Cock in that  event it could have been contended that they cannot lay their hands to the  post of fitter driver which was promotional post except by way of  promotion.  Considering all the facts and circumstances of the case we  are clearly of the view that the learned trial Judge was right in holding  that they were to be treated as fitter driver with effect from the date of  their transfer of service.  We do not find  any ground and/or reason to  interfere with the order passed by the learned trial judge." 5       A Special Leave Petition preferred against the said judgment was dismissed by this C ourt  by an order dated 25.2.1994. 6       Relying on or on the basis of the observations made by the Division Bench of the Hig h  Court,  Appellants filed an application for initiation of proceedings for contempt under the    Contempt of Courts Act  against the officers of the respondents.  The said contempt  application was disposed of by the Division Bench by an order dated 29.6.1995 in the  following terms: "It is ordered that the respondents authority above named do treat the  said petitioners re-designated as Fitter Driver, grade II with  effect from  the eight day of June, one thousand nine hundred and seventy eight and  not with effect form the twenty first day of December one thousand nine  hundred and seventy nine and as Fitter driver grade I with effect from  the twenty nine day of June one thousand nine hundred and eight five as  is evident from the order of the trial court dated the eight day of January  one thousand nine hundred and ninety two and not with effect from the  twenty third day of February one thousand nine hundred and eight seven  and this order is made as this court is of view that the respondents above  named might not have understood  the purport of this order made by the  trial court which was confirmed by the Division Bench.  And it is further   ordered that this Rule nisi   be and the same is hereby discharged and   the application on which the said Rule nisi was issued do stand disposed  of with the forgoing directions.  And it is further ordered that the parties  are to act on a copy of the dictated order counter signed by an officer of  this Court being produced before them."

7       Pursuant  to or in furtherance of the said directions, the observations made by the  Calcutta  High Court both in the writ petition as also  the Contempt Proceedings, an order was passed  by the Corporation on 28.9.1995 on the following terms: "1      That you are treated as Fitter Driver Grade     II w.e.f. 8.6.78 and the  necessary               correction to this effect in service book          will be made accordingly. 2.          That you will get service benefit w.e.f.    23.2.87 i.e. the date of  presentation of         writ application. 3.           That the period of joining i.e. 21.12.79   till the date of judgment  of the trial    court be counted as terminal benefit. 4.            You will be treated as Fitter Driver Grade-       I w.e.f.  29.6.85."

8       Appellants were not satisfied with the said office order dated 28.9.1995.  Their con tention  was that the  Corporation having posted  them on the post of Fitter Driver Grade-II w.e.f.  8.6.1978 and Fitter Driver Grade I w.e.f. 29.6.1985 should not have confined the grant of  consequential benefits w.e.f. 23.2.1987 as was observed  by the learned Single Judge.  In  view of the said order dated 23.9.1995, another  contempt petition was filed before the  Calcutta High Court and by reason of order dated 12.2.1998, the same was not entertained,  giving liberty to the  appellants to file a separate writ petition.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

9       A writ petition filed by the appellants pursuant to the said observations has been d ismissed  both by the learned Single Judge as also by the Division Bench.  The appellants are, thus,  before us. 10      Mr. Pradip Ghosh, learned senior  counsel appearing for   appellants  would  submit that the High Court committed a manifest error in passing the impugned judgment  dated 24.8.1993 as it failed to consider the observations made by another Division Bench of  the said Court in an earlier proceedings.  It was submitted that the writ petition filed by  the  appellants herein could not be dismissed only because they did not challenge the order of th e  learned Single Judge dated 8.1.1992.

11      Mr. Tapash Ray, learned senior counsel appearing for the respondents,  however, supported the impugned judgement. The learned counsel contended that a writ   court in exercise of its discretionary jurisdiction while determining the right of an aggrie ved  party is entitled to grant  consequential service benefits from a  particular date. In other   words, it is open to a court exercising writ jurisdiction to deny service benefits to an  employee for a particular period.  

12.     As  would be evident from the order dated 8.1.1992 passed by the learned Single  Judge that it was categorically directed therein that the appellants were to be granted  service benefits from the date of presentation of the writ application and not from any earl ier  date. Appellants  accepted the said judgment.  They did not prefer any appeal against the  said order.  Having allowed the said part of the order to attain finality, in our opinion, t he  appellants, at a subsequent stage, could not have claimed a new relief only relying on or on    the basis of the observations made by the Division Bench.  The doctrine of  merger as  propounded by the learned counsel for the  appellants could  have been held to be applicable   provided the Division Bench had said the same expressly even though no appeal was taken  by the appellants from the order of the learned Single Judge.  The observations made by the  Division Bench was only with regard to the determination of their right to be posted in  Calcutta Municipal Corporation as Fitter Driver, Grades-I and II from a particular date. As  mentioned hereinbefore, the judgment of the learned Single Judge was allowed to attain  finality and in that view of of the matter, it is difficult for us to accept the submissions  of Mr.  Ghosh that by applying  doctrine of merger or otherwise the Division Bench could  give any  higher benefits to the appellants although no appeal was preferred by them. 13.     For the reasons aforesaid, we do not see any merit in this appeal.  The appeal is,  accordingly, dismissed. In the facts and circumstances of the case, however, there shall be  no  order as to costs.