Commissioner, Karnataka Housing Board Vs. C. Muddaiah  Insc 904 (7 September 2007)
Thakker & D.K. Jain
APPEAL NO. 4108 OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 12608
OF 2005 C.K. THAKKER, J.
present appeal is filed by the Commissioner, Karnataka Housing Board against
the judgment and order dated March 22, 2005
passed by the Division Bench of the High Court of Karnataka, Bangalore in Writ Appeal No.6722 of 2003. By
the impugned order, the Division Bench set aside the order dated August 4, 2003, passed by a Single Judge of that
Court in Writ Petition No. 10722 of 2000. The Division Bench held that the
dismissal of the claim of the respondent-employee writ-petitioner by the
learned Single Judge on the ground that contempt petitions filed by him were
dismissed was not legal and in consonance with law. The Division Bench, hence,
directed the appellant-Board to implement the direction issued by the learned
Single Judge in Writ Petition No. 1848 of 1992 decided on October 27, 1997 in 'letter and spirit' and disburse
'all consequential benefits' to which the writ- petitioner was held entitled.
facts of the case are that the respondent herein (writ-petitioner) joined
service in Karnataka Housing Board ('Board' for short) in the year 1972. He was
appointed as a Second Division Assistant and was promoted as First Division
Assistant on February
15, 1972. On December 30, 1974, a seniority list of the First
Division Assistants was published. The writ-petitioner challenged the said
seniority list by approaching the High Court under Article 226 of the
Constitution. The Writ Petition No. 1848 of 1992 was allowed on October 27, 1997 by a Single Judge of the High Court
Court directed the Board to reassign seniority of the writ-petitioner by
placing him above respondent Nos. 2 to 34 and to grant 'other consequential
appears from the record that Writ Appeal filed by the State against the order
passed by the learned Single Judge was dismissed on March 30, 1998 by the Division Bench. Even Special Leave Petition (Civil)
No. 5487 of 1998 was dismissed by this Court. The order passed by the learned
Single Judge thus became final.
is the case of the Board that the order passed by the Court was implemented and
the writ- petitioner was reassigned seniority above respondent Nos. 2 to 34 as
per the direction of the Court and was also granted consequential benefits. The
grievance of the writ-petitioner, however, was that he was not granted
consequential benefits as awarded to him by the learned Single Judge and
confirmed even by this Court. The writ- petitioner retired from service on February 28, 1998.
Since consequential benefits were not extended to him, the writ-petitioner filed
Contempt Petition No. 12 of 1998 which was dismissed. Similarly, another
Contempt Petition No. 1134 of 1999 was also dismissed.
thereafter, filed a substantive petition, being Writ Petition No. 10722 of 2000
contending that though an order was passed in the writ petition filed by him
wherein directions were issued to reassign him seniority and consequential
benefits, arrears of salary to which he was entitled, was not paid to him. The
said action was clearly illegal, unlawful and not sustainable at law. A prayer
was, therefore, made that the Board may be directed to extend monetary benefits
as per the judgment rendered in the earlier litigation. The learned Single
Judge, as observed above, dismissed the petition observing that the Division
Bench disposed of Contempt Petitions observing that the Board had complied with
the directions issued by the learned Single Judge in W.P. 1848 of 1992.
to the learned Single Judge, if it were so, the writ-petitioner could not
contend that he was entitled to monetary benefits from the date he was denied
seniority in the final gradation list of First Division Assistant prepared and
published by the Board. The petition was, therefore, dismissed. Intra court
appeal, however, was allowed by the Division Bench. The Board has challenged
the order passed by the Division Bench of the High Court of Karnataka in this
Court by filing this appeal.
7. On July 14, 2005, notice was issued by this Court.
Counter affidavit was thereafter filed by the writ- petitioner and matter was
ordered to be heard finally.
the matter has been placed before us.
have heard learned counsel for the parties.
learned counsel for the appellant-Board contended that the writ-petitioner had
succeeded in earlier litigation. A Single Judge of the High Court directed the
appellant-Board to reconsider the seniority list and reassign seniority to the
writ-petitioner over respondent Nos. 2 to 34. It is also true that the Court
directed consequential benefits to be extended to the writ-petitioner.
According to the learned counsel, however, the said order had been complied
with and the appellant-Board has paid all consequential benefits to the
writ-petitioner to which he was entitled in law. He also submitted that it was
the case of the writ-petitioner that the order passed by the Court had not been
complied with and the appellant-Board had committed contempt, but the contempt
petitions were dismissed. In view of the said order, it is not open to the
writ-petitioner to contend that there was non-compliance with the order passed
by the Court. A fresh petition for such relief was not maintainable. According
to the counsel, the learned Single Judge was wholly justified in dismissing the
petition taking into consideration dismissal of contempt petitions and in
observing that the complaint of the writ- petitioner against non-compliance
with the order of the Court was ill-founded. The Division Bench was in error in
setting aside the said order and in allowing the appeal.
therefore, submitted that the present appeal deserves to be allowed by quashing
the directions issued by the Division Bench and by restoring the order of the
learned Single Judge.
The learned counsel for the respondent-writ- petitioner, on the other hand, submitted
that the Division Bench was wholly right and fully justified in passing the
order in the light of the earlier litigation between the parties. He submitted
that the case was finally decided, the learned Single Judge allowed the
petition filed by the petitioner and directed the Board to reassign him the
seniority above respondent Nos. 2 to 34 and also to grant consequential
benefits. The said order was challenged by the Board but intra court appeal as
also Special Leave Petition came to be dismissed by the Division Bench of the
High Court and by this Court respectively. The said order thus became final and
binding on the parties. It was, thereafter, not open to the Board not to pay
consequential benefits on the so-called ground that such payment was not
envisaged by law. Once an order is passed by a competent court, it has to be
of contempt petitions was totally irrelevant.
learned Single Judge was, therefore, not justified in dismissing the petition
and the Division Bench was right in setting aside the said order. The present
appeal, therefore, has no substance and deserves to be dismissed.
Having heard learned counsel for the parties and having given anxious
consideration to the rival submissions of the counsel, in our opinion, the
appeal filed by the Board must be dismissed. Certain facts are not in dispute.
The writ-petitioner was promoted as First Division Assistant in the year 1972.
Seniority list of First Division Assistants was prepared and published. The
writ-petitioner had grievance against the said list. He, therefore, challenged
the said seniority list and his placement therein. A Single Judge was satisfied
as to the grievance raised by the writ-petitioner and allowed the petition
directing the Board to place the writ-petitioner above respondent Nos. 2 to 34
and also to grant consequential benefits.
the operative part of the order, the learned Single Judge stated;
there will be a direction to the 1st respondent to the effect that the date of
seniority to be assigned to respondents Nos.2 to 34 shall be with effect from 30-12-1974 and below the petitioner. The seniority list of the
petitioner and respondents Nos.2 to 34 shall be revised accordingly.
Necessarily it follows that the petitioner is entitled to such other
consequential benefits that he might earn consequent upon this revision of
learned counsel for the petitioner submits that the petitioner is due to retire
by February, 1998. Taking into account all the circumstances, it is desirable
that the 1st respondent awards all the consequential benefits that the
petitioner would have earned consequent upon this judgment by 30-12- 1997. With
the above direction, the writ petition is disposed of".
is not in dispute that the Board challenged the said decision by filing intra
court appeal but the appeal was dismissed by the Division Bench. Even Special
Leave Petition was dismissed by this Court and the order passed by the learned
Single Judge had become final and binding between the parties. It was,
therefore, obligatory on the Board to implement the directions issued by the
learned Single Judge in the writ petition, to reassign seniority of the
writ-petitioner by placing him over respondent Nos. 2 to 34 in the petition and
also to extend 'consequential benefits'.
is the case of the appellant-Board that all those directions had been carried
out. The writ-petitioner has been reassigned seniority over respondent Nos. 2
to 34 and he has been awarded consequential benefits.
it was contended by the learned counsel for the writ-petitioner that no arrears
of salary had been paid, the learned counsel for the Board did not dispute the
fact. He, however, relied upon statutory provisions. He also referred to a decision
of this Court in S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16. The counsel
for the writ-petitioner also placed reliance on that decision. It is,
therefore, necessary to consider the said decision and the law laid down
therein by this Court.
S.R. Bhagwat, certain Deputy Conservator of Forests were serving in the former
States of Bombay and Hyderabad. Pursuant to reorganization of
States, they were allotted to the new State of Mysore under Section 115 of the
States Reorganisation Act, 1956.
the 1956 Act, the Central Government issued certain directions for equation of
posts and promotions on the basis of provisional inter-State seniority lists
subject to the revision of such promotions in accordance with the ranking in
the final seniority list. The petitioners claimed certain benefits which were
not granted. They, therefore, approached the High Court of Mysore. The claim
was finally allowed and a direction was issued by the Court to grant all
consequential benefits to the petitioners. The State of Mysore thereupon
enacted an Act known as the Karnataka State Civil Services (Regulation of
Promotion, Pay and Pension) Act, 1973 (hereinafter referred to as 'the Act').
By the said Act, the actual financial benefits directed to be made available to
the petitioners pursuant to the order passed by the Division Bench of the High
Court, which had become final, were sought to be taken away. The petitioners,
in the circumstances, approached this Court by filing a substantive petition
under Article 32 of the Constitution challenging constitutional validity and vires
of the Act to the extent they had affected the petitioners.
After hearing the parties, this Court allowed the petition, struck down certain
provisions of the Act as ultra vires the legislative power of the State and
directed the Authorities to comply with the directions contained in the binding
decision of the Division Bench in favour of the petitioners by granting 'all
consequential financial benefits' within the stipulated period.
that case also, it was contended by the State that the petitioners were not
entitled to consequential benefits in view of legislative provision and
overriding effect under Section 11 of the Act. The Court, however, negatived
the contention. It observed that it is open to a competent Legislature to
remove a defect in a legislation. Such enactment or validating statute could
not be held unconstitutional or ultra vires. But it is equally well settled
that a binding judicial pronouncement between the parties cannot be made
ineffective or inoperative with the aid of legislative power by making a
provision which, in substance and in reality, overrides and overrules a
decision rendered by competent Court. Such process virtually renders a judicial
decision ineffective by indirectly exercising appellate power over a judicial
forum which is impermissible.
The Court stated:
is now well settled by a catena of decisions of this Court that a binding
judicial pronouncement between the parties cannot be made ineffective with the
aid of any legislative power by enacting a provision which in substance
over-rules such judgment and is not in the realm of a legislative enactment
which displaces the basis of foundation of the judgment and uniformly applies
to a class of persons concerned with the entire subject sought to be covered by
such an enactment having retrospective effect".
Considering the overriding effect of Section 11 of the Act, the Court observed:
mere look at sub-section (2) of Section 11 shows that the respondent, State of
Karnataka, which was a party to the decision of the Division Bench of the High
Court against it had tried to get out of the binding effect of the decision by
resorting to its legislative power. The judgments, decrees and orders of any
court or the competent authority which had become final against the State were
sought to be done away with by enacting the impugned provisions of sub-section
(2) of Section 11. Such an attempt cannot be said to be a permissible
legislative exercise. Section 11(2), therefore, must be held to be an attempt
on the part of the State Legislature to legislatively over-rule binding
decisions of competent courts against the State. It is no doubt true that if
any decision was rendered against the State of Karnataka which was pending in
appeal and had not become final it could rely upon the relevant provisions of
the Act which were given retrospective effect by sub-section (2) of Section 1
of the Act for whatever such reliance was worth. But when such a decision had
become final as in the present case when the High Court clearly directed
respondent-State to give to the concerned petitioners deemed dates of
promotions if they were otherwise found fit and in that eventuality to give all
benefit consequential thereon including financial benefits, the State could not
invoke its legislative power to displace such a judgment.
this decision had become final and the State of Karnataka had not thought it
fit to challenge it before this Court presumably because in identical other
matters this Court had upheld other decisions of the Karnataka High Court
taking the same view, it passes one's comprehension how the legislative power
can be pressed in service to undo the binding effects of such mandamus. It is
also pertinent to note that not only sub-section (2) of Section 11 seeks to
bypass and over-ride the binding effect of the judgments but also seeks to
empower the State to review such judgments and orders and pass fresh orders in
accordance with provisions of the impugned Act. The respondent-State in the
present case by enacting sub-section (2) of Section 11 of the impugned Act has
clearly sought to nullify or abrogate the binding decision of the High Court
and has encroached upon the judicial power entrusted to the various authorities
functioning under the relevant statutes and the Constitution.
an exercise of legislative power cannot be countenanced".
The Court, therefore, held that the provisions of sub-section (2) of Section 11
which interfered with the judgment of a competent Court was unconstitutional,
ultra vires and void.
to Section 4 of the Act, which provided certain benefits to employees only on
'notional basis', the Court held that it would not apply to the petitioners.
The Court stated:
therefore, strike down Section 11 sub- section (2) as unconstitutional, illegal
and void. So far as the underlined impugned portions of Section 4, sub-sections
(2), (3) and (8) are concerned, they clearly conflict with the binding
direction issued by the Division Bench of the High Court against the
respondent-State and in favour of the petitioners. Once respondent-State had
suffered the mandamus to give consequential financial benefits to the allottees
like the petitioners on the basis of the deemed promotions such binding
direction about payment of consequential monetary benefits cannot be nullified
by the impugned provisions of Section 4. Therefore, the underlined portions of
sub-sections (2), (3) and (8) of Section 4 will have to be read down in the
light of orders of the court which have become final against the
respondent-State and in so far as these provisions are inconsistent with these
final orders containing such directions of judicial authorities and competent
courts, these impugned provisions of Section 4 have to give way and to the
extent of such inconsistency must be treated to be inoperative and ineffective.
Accordingly the aforesaid provisions are read down by observing that the
statutory provisions contained in sub-sections (2), (3) and (8) of Section 4
providing that such person who have been given deemed promotions shall not be
entitled to any arrears for the period prior to the date of their actual
promotion, shall not apply in cases where directions to the contrary of
competent courts against the respondent-State have become final".
The learned counsel for the appellant-Board strenuously urged that in S.R. Bhagwat,
this Court struck down sub-section (2) of Section 11, but did not hold Section
4 unconstitutional or ultra vires. The Court held that on the facts and in the
circumstances of the case, the said provision did not apply to the petitioners
in view of the direction issued by the Court and the petitioners were held
entitled to consequential benefits.
the ratio laid down in the said decision would help the appellant-Board. The
Division Bench, in the light of S.R. Bhagwat, could not have issued direction
as to payment to be made to the writ-petitioner.
are unable to uphold the argument. In our judgment, the submission of the
learned counsel for the writ-petitioner is well-founded that in the instant
case also, express and unequivocal direction was issued by the Court to grant
to the writ-petitioner "such other consequential benefits that he might
get consequent upon the revision of ranking". It was also observed that
such benefits should be paid to him by December 30, 1997 as the writ-petitioner was to
retire in February, 1998. The said decision, to reiterate, has become final and
binding. It is, therefore, not open to the appellant- Board to contend that the
respondent is not entitled to such benefits under 1973 Act and hence no such
direction could have been issued by the Court.
observed in S.R. Bhagwat, when a decision has been rendered by a competent
Court, the law provides a remedy to an aggrieved party. If the appellant- Board
thought that the writ-petitioner was not entitled to financial benefits as
contended before us now and he could be granted such benefits only on
'notional' basis, it could have challenged the said direction and ought to have
obtained an appropriate order from an appropriate Court. In the case on hand,
the directions issued by the learned Single Judge were challenged by the Board,
but intra court appeal as well as Special Leave Petition came to be dismissed.
The direction, thus remained and in the teeth of such direction, it is not open
to the appellant- Board not to comply with it by contending that it would not
grant consequential benefits as no such direction could be issued in view of
our opinion, the contention that no fresh petition could be filed by the
respondent-writ petitioner in 2000 has also no substance. So far as contempt
petitions are concerned, the Court held that the order passed by the Court had
been complied with and it could not be said that the Board or its Officers were
liable to be punished. An Office Memorandum dated February 2, 1998 is on record. It refers to a decision of the High Court
dated October 27, 1997 in Writ Petition No. 1848 of 1992
and states as to how the direction of the Court has been complied with. The
relevant part of the said order reads thus:
the promotion of Sri C. Muddaiah, be worked out with reference to the promotion
accorded to Sri K. Srinath and the consequential benefit be allowed to Sri C. Muddaiah,
as per the Judgment referred to above". (emphasis supplied)
From the above order, it is clear that promotion of the writ petitioner was
ordered to be worked out with reference to the promotion accorded to Shri K. Srinath
and the 'consequential benefits' be allowed to the writ-petitioner as per the
judgment referred to in the writ petition.
But our attention was also invited by the learned counsel for the writ-petitioner
to a subsequent order dated June 1, 1998.
The Preamble of the order refers to the decision in the writ petition and
direction of the Court to place the writ-petitioner above respondent Nos. 2 to
34 and to grant him consequential benefits.
then proceeds to state:
view of the facts explained in the preamble I, P.B. Mahishi, Housing
Commissioner, Karnataka Housing Board, order that Sri C. Muddaiah is deemed to
have been promoted as Superintendent from the cadre of F.D.A's with effect from
22-03-1984 i.e. the date from which Sri K. Srinath was so promoted. I further
order that Sri C. Muddaiah is deemed to have been promoted as Assistant Revenue
Officer from the cadre of Superintendent with effect from 12.06.1985 i.e. the
date on which his junior was so promoted. He is deemed to have been posted as
Assistant Revenue Officer with effect from 27.10.1997, the date on which the Hon'ble
High Court of Karnataka rendered its judgment in W.P. No. 1848 of 1992. I also
order that Sri C. Muddaiah be paid arrears of pay and allowance for the period
from 27.10.1997 to 28.2.1998 the date on which he retired from service on
attaining the age of superannuation presuming that he has worked as Assistant
Revenue Officer during the said period even though he had actually not worked
in that capacity. Sri C. Muddaiah will not be eligible for arrears of pay and
allowance for any earlier period since he has not actually worked in the cadre
of Superintendents and Assistant Revenue Officers, in view of the provisions of
Karnataka State Civil Services (Regulation of Pay, Promotion and Pension) Act,
statement showing the pay fixation allowed in favour of Sri C. Muddaiah
consequent on the above orders is enclosed herewith. On the basis of the
revised pay fixation order enclosed Sri C. Muddaiah will also be entitled for
pension, gratuity and family pension etc."
Bare reading of the above order makes it more than clear that the salary to be
paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not
be entitled to arrears of pay and allowances for any earlier period "since
he has not actually worked in the cadre of Superintendents and Assistant
thus obvious that in spite of clear direction issued by a competent Court, no
payment was made and an express order was passed to the effect that the writ-
petitioner would not be entitled to pay as he had not worked. The
writ-petitioner, therefore, had legitimate grievance against such direction. A
fresh substantive petition, hence, could be filed by him and since he was
entitled to such relief, the Division Bench was justified in granting the
are of the considered opinion that once a direction is issued by a competent
Court, it has to be obeyed and implemented without any reservation. If an order
passed by a Court of Law is not complied with or is ignored, there will be an
end of Rule of Law. If a party against whom such order is made has grievance,
the only remedy available to him is to challenge the order by taking
appropriate proceedings known to law. But it cannot be made ineffective by not
complying with the directions on a specious plea that no such directions could
have been issued by the Court. In our judgment, upholding of such argument
would result in chaos and confusion and would seriously affect and impair
administration of justice. The argument of the Board, therefore, has no force
and must be rejected.
The matter can be looked at from another angle also. It is true that while
granting a relief in favour of a party, the Court must consider the relevant
provisions of law and issue appropriate directions keeping in view such
provisions. There may, however, be cases where on the facts and in the
circumstances, the Court may issue necessary directions in the larger interest
of justice keeping in view the principles of justice, equity and good
conscience. Take a case, where ex facie injustice has been meted out to an
employee. In spite of the fact that he is entitled to certain benefits, they
had not been given to him. His representations have been illegally and
unjustifiably turned down. He finally approaches a Court of Law. The Court is
convinced that gross injustice has been done to him and he was wrongfully,
unfairly and with oblique motive deprived of those benefits. The Court, in the
circumstances, directs the Authority to extend all benefits which he would have
obtained had he not been illegally deprived of them. Is it open to the
Authorities in such case to urge that as he has not worked (but held to be
illegally deprived), he would not be granted the benefits? Upholding of such
plea would amount to allowing a party to take undue advantage of his own wrong.
It would perpetrate injustice rather than doing justice to the person wronged.
We are conscious and mindful that even in absence of statutory provision,
normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law
may, nay must, take into account all the facts in their entirety and pass an
appropriate order in consonance with law. The Court, in a given case, may hold
that the person was willing to work but was illegally and unlawfully not
allowed to do so. The Court may in the circumstances, direct the Authority to
grant him all benefits considering 'as if he had worked'. It, therefore, cannot
be contended as an absolute proposition of law that no direction of payment of
consequential benefits can be granted by a Court of Law and if such directions
are issued by a Court, the Authority can ignore them even if they had been
finally confirmed by the Apex Court of the country (as has been done in the
present case). The bald contention of the appellant-Board, therefore, has no
substance and must be rejected.
For the foregoing reasons, we see no ground to interfere with the order passed
by the Division Bench of the High Court. The appeal deserves to be dismissed
and is accordingly dismissed with costs which is quantified as Rs.10,000/-. The
appellant-Board shall comply with the directions within twelve weeks from