SABYASCHI SENGUPTA AND ORS. v. NANI GOPAL DATIA AND ORS.

The following Order of the Court was delivered by ~

S. RATNA VEL PANDIAN, J. This application is filed by the T c State of West Bengal for clarification of the two orders of this Cm1rt 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.I report dated 15th September of 1989 passed by a Division Bench o~ the >--f High Court of Calcutta in Writ Appeal Nos. 240 and 241of1989 b J1.e Matter No. 1436 of 1988. D

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 I to this application. Therefore, it is not necessary to reiterate the entire facts, but suffice to refer a few rele- E vant facts for the disposal of this application. -../ A batch of employees of the State of West Bengal belonging 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 F respondents on their application 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 Goverment which is made a party opposed the Writ Petition.

G 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 H Sengupta, J. passed-an interim order directing the State Government

SABYASCHl v. M.G. DATIA !PANDIAN, J.I 479

to frame seniority rules and determine inter-se seniority on the basis of A the seniority rules within one month from the date of the communica- '( tion 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 B 10.6.1988 the writ petitioners moved another interim application in the Writ Petition before the same learned single Juage for setting aside th,e 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. c

-~ On 23.3.1989 Ajit Kumar Sengupta, J. pronounced his judg- ment, the operating portion of which reads thus:

"The application is allowed. The draft rules are ultra vires D 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." E The State Government preferred an appeal against the judgment and order dated 23.3.1989 before a Division Bench of the High Court in Appeal No. 240/89. The original respondents 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 appeals, stay applications were filed before the Division Bench com- f ~· prised 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- G 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 prim4 fllftie case is in their favour, it can- not be h_eld that the ballll!cc~ of co11venie_nce and inoonv~n!­ ence title in their favour. The learned Judge has restrained H

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the appellant-State from filling up a number of important 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 t!Jis order of injunc- tion shall also, therefore, have to be stayed along with the operation of the judgment and decree passed by the learned Judge. 7 In the circumstances stated it is hereby ordered that the c operation of the judgment and order dated 23rd March, 1989 passed by the Hon'ble 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 D Government will be at liberty to proceed with the finalisa- tion 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 vacancies and award all service benefits including appointments to higher posts or higher scale which will be subject to the results of these appeals. Since E 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 respon- ~ dents 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 praying "to stay the operation of the

SABYASCHI v. M.G. DATTA [PANDJAN, J.J 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 A 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 respon- dents to the SLP passed the following order on 29.8.1989: I:!

"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 c 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 D 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 E 10.7.1989 till the disposal of the appeals and directed the status-quo. On being aggrieved by the order dated 4.9.1989 extending the order of -- j 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 F ~ 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 G Court."

r 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 H

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A (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, B 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." 7 c · 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 consisting of Bimal Chandra Basak and Amarava Sengupta, JJ was in vjolation of the earlier order of this D Court made on 29th August 1989 and thai since the appeals though heard on a number of days are not yet disposed of, the State Govern- ment 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 E Government, there are number of posts lying vacant in the cadre of -J 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 F Government is unable even to make transfers on promotion or sending officers on deputation to equivalent posts and that no service benefits could be awarded to those officials. The second respondent on his , (i. 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 ordet obtained from" tliis Court on 7th September 1989 was without any notice to and behind ihe back of the respondents Nos. 1 to j and ihat most of the ,posts (as shown in A"n11exure 'A' t~ the counte~f have understandably __,, been filled up by the State Government during the pendency of the interim orders and that the_ ~fi,~vance expressed by"the Sta!e Gov~rn-

SABYASCHI v. M.G. DATTA (PANDIAN, J.J 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 respondents would be put to immeasurable hardships.

As the two Appeals Nos. 240/89 and 241/89 in Matter No. 1436/ 88 are now pending before the High Court tor final disposal, we, without making any detailed discussion on the issues involved, are inclined to dispose of this application by making only a clarification. It. is the admitted case that the Division Bench consisting of Justice Roy and Justice Sudhangshu Sekhar Ganguly by their order dated JO. 7 .1989 stayed the operat!on of the order of the learned sirigk Judge dated 23.3.1989 in Matter No. 1436/88 and allowed the Government to fill up all the vacancies and award all service benefits including C. 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 D 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 E 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 approached F 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 judgment of the Division Bench dated 10.7.1989 . • Feeling aggrieved, 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 G Court on 29.8.89 i.e. the order passed in SLP No. 9920/89 shall hold the field notwithstanding any contrary 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 app_earing for the applicants forcibly arti- H

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A 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 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 E India and should be implemented and executed in all its rigour.

Form the report sent by the Division Bench of the Calcutta 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 <o: F 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.

G 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 H refers to the order dated 4.9.1989. The resultant position is that this

SABYASCHI v. M.G. l'>ATIA IPANDIAN, J.] 485

Court by the order dated 7. 9. 1989 has rendered the order of the A 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 ofteave. 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 direc- B tion given by that order is brought back to life and resuscitated. There- fore, it is open to the State Government to act in accordance with the order dated 10.7. 1989. With this clarification, the above application is disposed of with no order as to costs.

G.N. Application disposed of.