SWAPAN DHAR AND ORS. versus STATE OF WEST BENGAL AND ORS.

Citation: [2007] 10 S.C.R. 785 · Decided: 08-10-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

SWAPAN DHAR AND ORS. 
A 
v. 
STATE OF WEST BENGAL AND ORS. 
OCTOBER 8, 2007 
[S.B. SINHA AND H.S. BEDI, JJ.] 
B 
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 
of Court passed in appeal filed by the opposite party-Held: Such relief 
not permissible, party having accepted finality of the judgment by not 
preferring appeal thereagainst-ln the facts of the case doctrine of 
Merger also not applicable__.:.Servi~e Law- Grant of Service benefits 
Doctrine of Merger. 
D 
Doctr;ne-Doctrine of Merger-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. 
E 
[Para 12) [790-G-H; 791-A] 
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 
·" 
. -4, 
- } 
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 
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 

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