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PETITIONER: SABYASCHI SENGUPTA AND ORS.

       Vs.

RESPONDENT: NANI GOPAL DATTA AND ORS.

DATE OF JUDGMENT11/04/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 SCR  (2) 476        1990 SCC  Supl.  315  JT 1990 (2)   221        1990 SCALE  (1)764

ACT:     Constitution  of  India, 1950: Articles 14  1,  142  and 144---Order  or  direction  of apex  Court--Binding  on  all Courts--To be implemented and executed in all its rigour.

HEADNOTE:     Some  employees belonging to West Bengal  Civil  Service (Executive)  filed  a writ petition before the  High  Court, praying  for  a direction to the State Government  to  frame appropriate seniority rules. The High Court passed an inter- im  order directing the State Government to frame  seniority rules  and  determine the inter-se seniority on  that  basis within  one month of the order. On an application  moved  by the petitioners the same Judge passed an interim order  that the  seniority  rules framed pursuant to the  Court’s  order would not be given effect to without leave of the Court  and without notice to the writ petitioners. On another  applica- tion  moved  by  the writ petitioners, the  same  Judge  re- strained the State Government from taking any further action on the basis of the draft rules of seniority.     Later,  the  Judgment was delivered  allowing  the  writ petition,  holding  that the draft rules were  ultra  vires. Aggrieved, the State Government preferred an appeal before a Division  Bench. The Division Bench stayed the operation  of the  judgment  and decree passed by the  Single  Judge.  The Division  Bench also directed that the State Government  may proceed  with the final assessment of the  seniority  rules. Aggrieved against the said order the writ petitioners  filed a Special Leave Petition which was dismissed with a  request to  the High Court to dispose of the pending  writ  petition expeditiously within two months. The High Court extended the stay  till the disposal of the appeal and  directed  status- quo.  Against  this order, the original respondents  in  the writ  petition  filed a Special Leave Petition  before  this Court. This Court passed an interim order to the effect that the order passed by this Court earlier would hold the field, not  with  standing any contrary order passed  by  the  High Court. Later, granting special leave, this Court observed 377 that  in view of the interim order no further order need  be passed.     The present application has been filed by the State  for

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clarification of the two orders of this Court in the context of the order dated 15.9.1989 of the High Court. Disposing of the application, this Court.     HELD:  1.1 It is the settled principle of law  that  any order or direction pronounced by this apex Court in exercise of  its jurisdiction in any matter pending before  it,  that order  or  direction  is binding on all  courts  within  the territory of India and should be implemented and executed in all its rigour. [484D]     1.2  From the report sent by the Division Bench  of  the High  Court dated 15th September, 1989 it seems  the  latter Division   Bench   extended  the  8  weeks   stay   on   the grounds--firstly   that  the  Order  of  this  Court   dated 29.8.1989 has not prevented the Division Bench from  passing such order and secondly that the 8 weeks stay stood  vacated w.e.f.  4th September, 1989. But in fact, the Order  of  the Court  dated 29.8.1989 has restored the order of  the  first Division  Bench  of the High Court dated  10.7.1989  on  the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9.1989. [484E-F]     1.3 It is open to the State Government to act in accord- ance  with the order dated 10.7.1989 of the High Court.  The Order  of this Court dated 7.9.1989 in SLP No. 10670/89  has clarified the position to the effect that the Order of  this Court  dated 29.8.1989 shall hold the field  notwithstanding the contrary order passed by the Division Bench of the  High Court.  The  "contrary order" mentioned in the  order  dated 7.9.1989  refers to the order dated 4.9.199.  The  resultant position is that this Court by the order dated 7.9.1989  has rendered the order of the second Division Bench of the  High Court  dated  4.9.1989 inoperative and  ineffective.  Subse- quently,  SLP  No. 10670/89 was disposed of after  grant  of leave.  Thus  the  matter now  stands  concluded  that  from 10.9.1989  onwards  the order of the  first  Division  Bench dated 10.7.1989 has become operative and executable and  the interim  direction  given by that order is brought  back  to life and resuscitated. [484G-H; 485A-B]

JUDGMENT:     CIVIL APPELLATES JURISDICTION: I.A. No. 3 of 1990.                       IN     Civil Appeal No. 4131 of 1989. 478     From  the Judgment and Order dated 4.9.1989 of the  Cal- cutta High Court in Original Order No. 241 of 1989.     Ashok  Desai, Solicitor General, Amal Datta, D.K.  Sinha and J.R. Das for the Petitioners.     A.K.  Sen,  Ms. Mridula Ray, T.U. Mehta  (NP)  and  D.P. Mukherjee for the Respondents. The following Order of the Court was delivered by     S. RATNAVEL PANDIAN, J. This application is filed by the State of West Bengal for clarification of the two orders  of this Court dated 7th September and 27th September of 1989 in SLP  (Civil) No 10670/89 in the context of the  order  dated 4th September and order report dated 15th September of  1989 passed by a Division Bench of High Court of Calcutta in Writ Appeal  Nos. 240 and 24 1 of 1989 in the Matter No. 1436  of 1988.     This  case  has got a chequered history,  the  facts  of which  are  set  out in clear terms in  the  judgment  dated 10.7.1989  of the High Court of Calcutta vide Annexure 1  to this application. Therefore, it is not necessary to  reiter- ate  the entire facts, but suffice to refer a  few  relevant

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facts for the disposal of this application.     A batch of employees of the State of West Bengal belong- ing to the West Bengal Civil Service (Executive) filed  Writ Petition being Matter No. 1436 of 1988 under Article 226  of the Constitution of India. Subsequently some more members of the  said cadre were added as respondents on their  applica- tion and they also supported the Writ Petition. The original respondents  to the Writ Petition who are also in  the  same cadre  as  well the State Government which is made  a  party opposed the Writ Petition.     The main pleading in the Writ Petition is that there was no  rule relating to determination of seniority  as  between promotees  and  direct  recruits of the  West  Bengal  Civil Service and the prayer on the above pleading is for issuance of  a  Writ of Mandamus directing the  State  Government  to frame  appropriate  seniority  rules  in  that  behalf.   On 5.4.1988,  a  learned single Judge of the High  Court,  Ajit Kumar  Sengupta,  J. passed an interim order  directing  the State Government 479 to frame seniority rules and determine inter-se seniority on the  basis of the seniority rules within one month from  the date  of the communication of the order. On 29.4.1988 on  an application moved by the writ petitioners, the same  learned Judge  passed  an interim order to the effect  that  if  any seniority rules have been framed pursuant to his order dated 5.4.1988  the same would not be given effect to without  the leave of the Court and without giving any notice to the writ petitioners. On 10.6.1988 the writ petitioners moved another interim  application  in the Writ Petition before  the  same learned  single Judge for setting aside the draft  seniority rules. On the same day, the learned Judge passed the interim order  restraining  the  State Government  from  taking  any further action on the basic of the draft rules of  seniority which  were in the meantime prepared in compliance with  the earlier order dated 5.4.1988.     On  23.3.1989  Ajit Kumar Sengupta,  J.  pronounced  his judgment, the operating portion of which reads thus: "The application is allowed. The draft rules are ultra vires as I have already held in my judgment. Following the  direc- tions  given in my judgment, the inter-se seniority will  be done. There will be a stay of the operation of the  judgment and  order for four weeks but the interim order  granted  by this Court will continue also for four weeks." The  State Government preferred an appeal against the  judg- ment  and order dated 23.3.1989 before a Division  Bench  of the  High Court in Appeal No. 240/89. The original  respond- ents  to  the Writ Petition also  preferred  another  Appeal against that judgment in Appeal No. 241/89. Both the appeals are  with reference to Matter No. 1436/88. In both  the  ap- peals,  stay  applications were filed  before  the  Division Bench comprised of Justice Roy and Justice Sudhangshu Sekhar Ganguly.  The said DiviSion Bench delivered its Judgment  on 10.7.1989  disposing the interim applications, the  relevant portion of which is as follows: "On  a consideration of all the submissions made before  us, we are inclined to hold, therefore that the  appellant-peti- tioners  have  made out a prima facie case for  staying  the operation  of the judgment and order passed by  the  learned Judge. Since the respondents have not been able to establish that  the prima facie case is in theft favour, it cannot  be held that the balance of convenience and inconvenience title in their favour. The learned Judge has restrained 480 the  appellant-State from filling up a number  of  important

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posts till the making of the Seniority Rules and  determina- tion of seniority of the respondents. Such a stay order  has been  there since the filing of the original writ  petition. It is obvious that the Government has been suffering because of this embargo and it is also obvious to these officers who would  have  otherwise been appointed to  these  posts  been suffering  financially. The operation of this order  of  in- junction shall also, therefore, have to be stayed along with the  operation  of  the judgment and decree  passed  by  the learned Judge. In  the circumstances stated it is hereby ordered  that  the operation  of the judgment and order dated 23rd March,  1989 passed by the Honable Mr. Justice Ajit Kumar Sengupta in the Matter  No. 1436/88 together with all interim orders  passed by  His  Lordships  in the said matter  are  hereby  stayed. Pending  the disposal of this appeal the Government will  be at liberty to proceed with the finalisation of the Seniority Rules  governing  the members of the  unified  W.B.C.S.  The Government will be also at liberty to fill up all the vacan- cies  and award all service benefits including  appointments to higher posts or higher scale which will be subject to the results  of these appeals. Since many such posts  are  lying vacant  at  present,  the Court desires  the  Government  to consider, if it will take in its consideration, the cases of the writ petitioners and the respondents Nos. 9 to 15, while filling up these posts." In  the same order, the Division Bench after disposing  this application has made the following order: "The  operation  of this judgment together  with  the  order shall remain stayed for eight weeks." The stay of the operation of the judgment evidently has been made  on  the request of the aggrieved  party,  namely,  the respondents  to the appeal to enable them to  approach  this Court.     Aggrieved  by this order, the writ petitioners  who  are respondents in the Appeals filed SLP No. 9920/89 challenging the  judgment  and order of the Division Bench  dated  10.7. 1989 along with a petition for ’stay in I.A. No. 1/89  pray- ing "to stay the operation of the 481 impugned  Judgment and Order dated 10th July 1989 passed  by the Division Bench of the Calcutta High Court in Appeal  No. Nil/89  in  Matter  No. 1436/88 till  the  disposal  of  the S.L.P  ...........  " A Bench of this Court to which one of us (Ratnavel  Pandian, J.)  was a party after hearing the learned counsel  for  the petitioners and respondents to the SLP passed the  following order on 29.8.1989: "As  the  Special  Leave Petition is  directed  against  the Interim  order of the Division Bench of the High  Court,  we are  not  inclined to interfere in the matter.  The  Special Leave  Petition is dismissed. We, however, request the  High Court  to dispose of the Writ Petition pending in  the  High Court  as  expeditiously as possible preferably  within  two months from today."     It  seems on 4.9.1989 Justice M.N. Roy, who was a  party to the order dated 10.7.1989 expressed his inability to hear the appeals in the course of the said week in view of  other matters  being listed before him and released these  appeals in question. Thereafter these two appeals had been  assigned to  another Division Bench comprised of the  learned  Judges Bimal Chandra Basak and Amarava Sengupta, JJ. This Bench  on the  same  day  i.e. on the afternoon of  4.9.  1989  itself extended  the  stay of eight weeks, granted by  the  earlier Division  Bench  dated 10.7.1989 till the  disposal  of  the

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appeals  and directed the status-quo. On being aggrieved  by the  order dated 4.9.1989 extending the order of  stay,  the original  respondents  in the Writ  Petition  filed  Special Leave Petition No. 10670/89 before this Court which came  up before the Bench of this Court presided over by the  Hon’ble Chief Justice along with K.N. Singh, J. This Bench passed an interim  order on the above SLP on 7.9. 1989, the  operative portion of which reads thus: "In  the meanwhile the order passed by this Court  on  29.8. 1989 shall hold the field notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court." This  SLP was finally listed before another Bench  comprised of  Murari Mohan Dutt, J. and one of us  (Ratnavel  Pandian, J.).  This  Bench passed the following order on  29.7.89  in Civil Appeal No. 4131 of 1989 482 (arising out of SLP (Civil) No. 10670/89): "Special leave is granted. Perused the report. After  hearing the learned counsel for both the parties,  we direct  that in view of the order dated September  7,  1989, passed by this Court, no further order need be made on  this appeal. The  appeal is disposed of as above. There will be no  order as to costs."     The submissions made on behalf of the applicants in  the present  Interlocutory Application (3 of 1990) are that  the ex-parte order extending the stay and granting status-quo as on 4th September 1989 passed by the Division Bench  consist- ing  of Bimal Chandra Basak and Amarava Sengupta, JJ was  in violation  of the earlier order of this Court made  on  29th August  1989  and that since the appeals though heard  on  a number of days are not yet disposed of, the State Government is  constrained to approach this Court for necessary  orders and  directions/clarifications  in the  interest  of  smooth administration  and eliminating stagnation  and  frustration among  the members of West Bengal Civil Service  (Executive) cadres. According to the State Government, there are  number of  posts lying vacant in the cadre of Deputy Secretary  and equivalent  posts  in  different Departments  of  the  State Government including core Departments like Revenue, Finance, Education, Milk Supplies, Hospitals, Administrative Reforms, Power  etc., that the State Government is unable to fill  up the  same in view of the interim order of status-quo  passed on  4.9.1989,  that the State Government is unable  even  to make  transfers on promotion or sending officers on  deputa- tion to equivalent posts and that no service benefits  could be awarded to those officials. The second respondent on  his behalf and on behalf of respondents 1, 3, 4 and 5 has  filed a counter stating that the order of extension of stay passed by the Division Bench on 4.9. 1989 is no way inconsistent or in contravention of the order of this Court and the delay in disposal  of  the appeal is only on account of  a  dialectic tactics  adopted  by the applicants and the  order  obtained from this Court on 7th September 1989 was without any notice to  and behind the back of the respondents Nos. 1 to  5  and that  most  of the posts (as shown in Annexure  ’A’  to  the counter)  have  understandably been filled up by  the  State Government  during  the pendency of the interim  orders  and that the grievance expressed by the State Govern- 483 ment  in filling up the posts is totally a  false  statement since  all the posts mentioned have been filled up and  that in  case the extended stay order is disturbed, the  respond- ents would be put to immeasurable hardships.     As the two Appeals Nos. 240/89 and 24 1/89 in Matter No.

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1436/  88  are now pending before the High Court  for  final disposal, we, without making any detailed discussion on  the issues involved, are inclined to dispose of this application by making only a clarification. is  the admitted case that the Division BenCh consisting  of Justice  Roy and Justice Sudhangshu Sekhar Ganguly by  their order dated 10.7. 1989 stayed the operation of the order  of the  learned  single Judge dated 23.3. 1989  in  Matter  No. 1436/88 and allowed the Government to fill up all the vacan- cies  and award all service benefits including  appointments to  higher posts or higher scales which will be  subject  to the  results  of the two appeals. However,  the  same  Bench stayed the operation of this order for a period of 8  weeks, admittedly to enable the respondents in these two appeals to approach  this  Court. When the matter came up  before  this Court  for  admission in SLP No. 9920/89 with  the  petition (I.A.  No.  1/89) to stay the operation of the  order  dated 10.7.89  staying the order of the single Judge of  the  High Court,  this  Court dismissed that SLP by  its  order  dated 29.8.89 after hearing the counsel for both the parties.  The copy  of the order has already been reproduced  above.  This Court,  observing "We are not inclined to interfere  in  the matter",  has  upheld the order of stay  dated  10.7.89.  In other words the order of stay passed by the Division Bech on 10.7.89  has been upheld. The result was on the expiry of  8 weeks  period,  the  original order of  stay  dated  10.7.89 passed  by the earlier Division Bench has been  revived  and come into operation. The 8 weeks period from which the order dated  10.7.89 has been stayed by the Division  Bench  would have  in the normal course expired by 9.9.89. It seems  that meanwhile,  the  respondents  in the two  appeals  have  ap- proached  another  Division Bech to which the  appeals  have been assigned for the reasons already indicated and obtained an order of extension of stay of the operation of the  judg- ment  of  the Division Bench dated  10.7.1989.  Feeling  ag- grieved,   the  appellants  in  the   two   appeals--namely, Sabyasachi Sengupta and others filed SLP No. 10670 of  1989. This Court by its order dated 7.9.89 directed that the order passed by this Court on 29.8.89 i.e. the order passed in SLP No.  9920/89 shall hold the field notwithstanding  any  con- trary  order  passed by the Division Bench of  the  Calcutta High Court. The ’contrary order’ is referrable to the  order passed  by  the second Bench of the Calcutta High  Court  on 4.9.1989. Mr. Ashok Desai, the learned Solicitor General and Mr.  Ashok  Sen, Sr. counsel appearing  for  the  applicants forcibly arti- 484 culated that in the teeth of the order passed by this  Court on  7.9.1989 observing "notwithstanding any  contrary  order passed  by the Division Bench of the Calcutta  High  Court", the order of the Court dated 29.8.1989 shall hold the field, it  is  made clear that the order of the  High  Court  dated 4.9.1989  has  become otiose and further request  that  this Court,  however, be pleased to clarify the position  in  the context of the subsequent order/report dated 15.9.1989.  Mr. D.P. Mukherji appearing on behalf of the respondents made  a fervent  plea  that  even  assuming  that  the  order  dated 4.9.1989  is in infraction of the order dated 7.9. 1989,  it would  amount  only to a technical infraction  and  as  such there can be no justification to grant the relief asked  for by  the applicants in this interlocutory application and  if the  relief, as prayed for is granted, it would  be  causing substantial and grave injustice to the respondents.     On a careful analysis of the facts and circumstances  of the case, we hold that the plea of Mr. Mukherji is illogical

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and  inconceivable and does not merit consideration. If  his plea  is to be accepted, then it will be only a  mockery  of justice because it will be tantamount to nullifying our  own order  which  has reached its finality. It  is  the  settled principle  of law that any order or direction pronounced  by this  apex  Court  in exercise of its  jurisdiction  in  any matter pending before it, that order or direction is binding on  all courts within the territory of India and  should  be implemented and executed in all its rigour.     Form  the report sent by the Division Bench of the  Cal- cutta  High  Court dated 15th September 1989  it  seems  the latter  Division  Bench  extended the 8 weeks  stay  on  the grounds--firstly   that  the  order  of  this  Court   dated 29.8.1989 has not prevented the Division Bench from  passing such order and secondly that the 8 weeks stay stood  vacated w.e.f.  4th September 1989. But in fact, the order  of  this Court  dated 29.8.1989 has restored the order of  the  first Division  Bench  of the High Court dated  10.7.1989  on  the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9. 1989.     Be  that  as  it  may, the order  of  this  Court  dated 7.9.1989 in SLP No. 10670/89 has clarified that position  to the  effect  that the order of this  Court  dated  29.8.1989 shall  hold the field notwithstanding of the contrary  order passed by the Division Bench of the Calcutta High Court. The "contrary  order"  mentioned  in the  order  dated  7.9.1989 refers to the order dated 4.9. 1989. The resultant  position is that this 485 Court by the order dated 7.9.1989 has rendered the order  of the  second Division Bench of the High Court dated  4.9.1989 inoperative  and  ineffective. Subsequently,  this  SLP  No. 10670/89  was  disposed of after grant of  leave.  Thus  the matter now stands concluded that from 10.9. 1989 onwards the order of the first Division Bench dated 10.7.1989 has become operative and executable and the interim direction given  by that order is brought back to life and resuscitated.  There- fore,  it is open to the State Government to act in  accord- ance  with the order dated 10.7.1989. With  this  clarifica- tion, the above application is disposed of with no order  as to costs. G.N.                                       Application  dis- posed of. 486