Holding

A judgment that a party has accepted by not filing an appeal attains finality and cannot be reopened for new relief, and the doctrine of merger does not apply unless expressly stated by the higher court.

Summary

The appellants, temporary pump operators transferred to the Calcutta Municipal Corporation, claimed they should be appointed as Fitter Drivers rather than the lower post of Turn Cock. A Single Judge of the Calcutta High Court, in a writ order dated 8 January 1992, directed that they be treated as Fitter Drivers and that service benefits would accrue only from the date of filing the writ, not earlier. The appellants did not appeal this order, thereby accepting its finality. A Division Bench later dismissed the corporation’s appeal and made observations on the posting, but did not expressly invoke the doctrine of merger. The appellants subsequently filed another writ seeking earlier service benefits, which was dismissed, and they appealed to the Supreme Court. The Supreme Court held that because the appellants had accepted the earlier judgment and made no appeal, the judgment had become final and they could not claim a new relief based merely on the Division Bench’s observations; the doctrine of merger was inapplicable. Consequently, the appeal was dismissed.

Issues considered

Whether a party who does not appeal a judgment can later claim a new relief based on observations of a higher bench.
Whether the doctrine of merger applies when the party has not appealed the original judgment.

Legislation cited

Contempt of Courts Act, 1971

Subjects

finality of judgmentdoctrine of mergerservice benefitswrit petitionappealcontempt of courtsemployee rightspost transfer

Judgment

SWAPAN DHAR AND ORS. A
v.
STATE OF WEST BENGAL AND ORS.

OCTOBER 8, 2007
B
[S.B. SINHA AND H.S. BEDI, JJ.]

Judgment-Finality of-Judgment of Court-Party not
challenging the same in appeal-Filing subsequent new writ petition
claiming relief contrary to the judgment-Placing reliance on order c
ofCourt passed in appealfiled by the opposite party-Held: Such relief
not permissible, party having acceptedfinality ofthe judgment by not
preferring appeal thereagainst-ln the facts of the case doctrine of
Merger also not applicable__.:.Servi~e Law- Grant ofService benefits
Doctrine ofMerger. D
Doctr;ne-Doctrine ofMerger-Applicability of
Appellants, employed as temporary Pump Operators in Calcutta
Metropolitan Development Authority, were transferred to the
Calcutta Municipal Corporation on the post of Turn Clock. E
Appellants filed a Writ Petition stating that the post of Turn Clock
being a lower post, they had a legitimate claim of being appointed
as a Fitter Driver. Single Judge of High Court directed the
authorities to offer them suitable equivalent post. The authorities,
~
after interpreting the judgment denied the claim. F
Appellants filed another writ Petition claiming equivalent post
and the same was allowed by Single Judge of High Court by order
dated 8.1.1992, but the benefits were directed to be given from the
date of filing of the Writ Petition and not from earlier date. Appellants
- ,_ did not prefer any appeal thereagainst. The appeal of the Corporation G
was dismissed by Division Bench of the High Court. The Special
leave Petition thereagainst was also dismissed.

Appellants filed Contempt Petition against the authorities of the
785 H
786 SUPREME COURT REPORTS [2007] l 0 S.C.R. \
A corporation and the same was disposed of. The authorities posted
the appellants on the equivalent post with back date, but the
consequential benefits were granted with effect from the date of
filing of the application as per the.order dated 8.1.1992. Appellants
filed another Contempt Petition, which was dismissed with liberty
B to file a separate Writ Petition.

Appellants filed the Writ Petition, but the same was dismissed
by Single Judge as well as Division Bench of High Court. Hence the
present appeal.

C Dismissing the appeal, the Court
HELD: 1. Single Judge of High Court by order dated 8.1.1992
categorically directed that the appellants were to be granted service
benefits from the date of presentation of the writ application·and not
from any earlier date. Appellants accepted the said judgment. They
D did not prefer any appeal against the said order. Having allowed the
said part of the order to attain finality, the 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.
[Para 12) [790-G-H; 791-A]
E
2. The doctrine of merger could have been held to b.e applicable
provided the Division Bench had said the same expressly,
eventhough no appeal was taken by the appellants from the order
of the Single Judge of High Court. The observations made by the
F 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. Division Bench could not have
given any higher benefits to the appellant~ by applying doctrine of
merger although no appeal was preferred by them.
G [Para 12) [791-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4767 of
2007.
From theJudgment and final Order.dated 26.07.2006 of the High
H Court at Calcutta in A.P.O. No. 202of2001.
SWAPANDHARv. STATE[SINHA,J.] 787

) Pradeep Ghosh, Padmini Behera, Chanchal Kumar Ganguli and Rina A
Sarkar for the Appellants.
Tapash Ray, L.C. Agrawala, Tara Chandra Shanna, Neelam Shanna
and Krishna Datta for the Respondents.
The Judgment of the Court was delivered by B
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 c
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 D
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. E
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
. -4, before the High Court. The said writ petition was allowed by a learned
Single Judge of the Calcutta High Court by an order dated 8.1.1992 F
directing as under:
"Proper reading of the order dated June 8, 1978 is warranted. The
order is itself a grolllld for setting aside the order impugned in the
writ application. Further more, the affidavit-in-opposition affirmed
-} G
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 unfortllllate that the respondents never cared
to consider the materials on record as also the noting of the officer
H
788 SUPREME COURT REPORTS [2007] 10 S.C.R.

A 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
B benefits from the date ofpresentation 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."
c (emphasis supplied)
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
D the appeal preferred by the Corporation, observed as under:
"We do not find any reason to treat the writ petitioners opposite y
parties as Tum 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
E Tum 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
F 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
G dismissed by this Court by an order dated 25.2.1994.
6. Relying on or on the basis of the observations made hy the
Division Bench of the High 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
H
I SWAPANDHARv. STATE[SINHA,J.] 789

)
disposed of by the Division Bench by an order dated 29 .6.1995 in the A
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 B
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 c
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 D
. 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." E
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:
F
"l. 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. G
..,
-'· That the period ofjoining i.e. 21.12. 79 till the date ofjudgment
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."
H
~
\
790 SUPREME COURT REPORTS [2007) 10 S.C.R.

A 8 . Appellants were not satisfied with the said office order dated
28. 9.1995. Their contention 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
B 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.
9. A writ petition filed by the appellants pursuant to the said
C observations has been dismissed 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
D in passing the impugned judgn1ent 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 the learned Single Judge dated 8.1.1992.
E 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 aggrieved party is entitled to
grant consequential service benefits from a particular date. In other words,
F 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
G appellants were to be granted service benefits from the date of presentation
of the writ application and not from any earlier 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,
the appellants, at a subsequent stage, could not have claimed a new relief
H only relying on or on the basis of the observations made by the Division
SWAPANDHARv. STATE[SINHA,J.] 791

Bench. The doctrine of merger as propounded by the learned counsel A
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 B
as Fitter Driver, Grades-I and II from a particular date. As mentioned
hereinbefore, the judgment of the learned Single Judge was allowed to
..1. 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 C
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.
D
K.K.T. Appeal dismissed.