N. BIRENDRA SINGH versus L. PRIYOKUMAR SINGH AND ORS.

Citation: [2006] SUPP. 1 S.C.R. 957 · Decided: 05-05-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

N. BIRENDRA SINGH 
A 
V. 
L. PRIYOKUMAR SINGH AND ORS. 
MAY 5, 2006 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
B 
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Service law: 
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Seniority list-Regularisation-Division Bench upholding judgment and c 
order of Single Judge-However, Division Bench giving directions in terms 
whereof benefit conferred by judgment and order of Single Judge taken away--
Whether permissible-Held, what cannot be done directly cannot be done 
indirectly--Difficulty of State in implementing judgment and order passed by 
Single Judge is no reason to deprive the petitioners of the benefit conferred 
by the judgement-In the facts, directions issued by Division Bench set aside-- D 
Practice and procedure. 
High Court directed regularisation of service of appellants, N & 
others, employed as Assistant (Elect.) an ad-hue and/or officating basis with 
effect from date of initial ad-hoc appointment and also gave directions for 
determining their seniority. State complied with the said directions and E 
prepared final Seniority List. N & other persons filed writ petitions 
challenging the final Seniority List. Single Judge quashed final Seniority 
List and directed State to determine seniority from date of regularisation 
of petitioners therein in the post of Assistant Engineers. Writ appeals filed 
by State and affected employees were dismissed by Division Bench and F 
judgment and order passed by Single Judge was upheld. However, Division 
Bench in paragraph 21 of its judgement and order gave certain directions 
in terms whereof N & other petitioners were deprived of the benefit of 
judgment and order of the Single Judge. Hence these appeals by N & other 
petitioners against directions passed by Division Bench in paragraph 21 
of its judgement and by the State against dismissal of its appeal by the G 
Division Bench. 
Appellants, N and others, contended that Division Bench having 
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dismissed the appeals from the judgement and order passed by the Single 
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958 
SUPREME COURT REPORTS [2006] SUPP. I S.C.R. 
A Judge could not have issued directions in paragraph 21 of its judgement 
.;, 
and order thereby taking away the benefit conferred upon them by the 
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judgement and order of the Single Judge; and that despite their 
regularisation, State failed to take into account the period between dates 
on which they were appointed on ad-hoc basis and regular basis for the 
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purpose of reckoning their seniority. 
State contended that if the entire seniority list is directed to be 
reopened, it may give rise to many more litigations. 
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Dismissing the appeal filed by State and allowing the other appeals 
1'I
c filed by petitioners the Court 
HELD: I. The judgment and order passed by the Single Judge was 
found to be correct by the Division Bench. The appeals preferred by the 
State and the other respondents herein were dismissed. If the judgment 
and order passed by the Single Judge was correct, there was no occasion 
D for the Division Bench to issue certain directions in terms whereof the 
appellants herein were deprived of the benefit of the judgment and order 
of the Single Judge indirectly, which could not have been done directly. 
It is a trite law that what cannot be done directly, cannot be done directly. 
The Division Bench, in making observations and issuing directions in 
E paragraph 21 of the impugned judgment, sought to do the same, which 
was impermissible in law. If the Division Bench was of the opinion that 
the Single Judge has committed mistakes in issuing the directions, it could 
interfere therewith by assigning appropriate and cogent reasons therefor. 
The observations made and directions issued by the Division Bench do not 
contain any reason as to how and in what manner the Single Judge went 
F wrong in passing his judgment. The observations and directions issued by 
the Division Bench in paragraph 21 of the impugned judgment are set 
aside. (964-C-D; 965-A-C] 
2.1. The appellants herein have been pursuing their remedies under 
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the law. They had been granted relief as orders were passed in their 
favour. The said order, admittedly, attained finality, and thus, cannot be 
reopened. It is thus, too late in the day for the State now to urge that the 
promotions granted to some of the appellants herein in the post of Assistant 
Engineer (Elect.) were not in accordance with law. Such a contention is 
barred under the principle of res judicata. (961-A-B] 
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N. BIRENDRA SINGH v. L. PRIYOKUMAR SINGH [S.B. SINHA

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