(1). THE above application is directed against a judgment and order dated 18th August 2005 passed by the learned Tribunal in OA No. 1053 of 2003, whereby and whereunder the learned Tribunal allowed the application and granted relief to the respondent Nos. 1, 2 and 3. The short fact of the case which is leading to filing of the instant application, is put in short hereunder:

(2). THE respondent Sri Subhas Kumar Chatterjee and the respondent nos. 2 and 3 herein are the Research Assistants working in the Public works (Roads) Directorate under the administrative control of the Chief engineer and were posted at Murisidabad Highway Division No. 1 at berhampur, Mursidabad. The 50% vacancy in the post of Research assistant is to be filled in under relevant circular of the department, by way of promotion from immediately feeder post of senior laboratory assistant, and remaining 50 per cent is to be filled up by the method of direct recruitment with higher qualification namely B. Sc. degree with physics, chemistry and mathematics and some working experience in soil or road and building materials laboratory. The qualification for having promotion from feeder post of senior laboratory assistant is pass certificate in Higher Secondary/pre-University examination or its equivalent with physics, chemistry and mathematics plus 5 years experience as senior laboratory assistant, or a pass certificate of school final examination or its equivalent plus six years experience as senior laboratory assistant (for persons already in service ).

(3). THIS methodology of the filling in vacancies in the post of Research assistant was adopted by a Notification being No. 68-R/e dated 4th July 1972. Obviously the pay scale of the senior laboratory assistant in the feeder post of research assistant was lesser than that of a latter one. Prior to revision of pay scale of 1981 the pay scale of research assistant was of Rs. 300-600 whereas senior laboratory assistant was at Rs. 230-425. Thereafter there was revision of the aforesaid two pay scales respectively namely Rs. 380-910/- (scale No. 9) for the research assistant and Rs. 300-685 (scale No. 6) for old senior laboratory assistant.

(4). IN or about 1985 some of the senior laboratory assistants filed a writ petition in the Calcutta High Court challenging fixation of pay scale under ROPA 1981 and this Honble High Court allowed the writ petition of the petitioners who prayed for granting higher scale of Rs. 425 -1005 with effect from 1st April 1981 and the said order passed by the Honble high Court was duly complied with. As such the said laboratory assistants were placed in scale higher than that of the petitioners who were direct recruitees, Research Assistants and naturally holding promotional post but their case was not considered at all. According to the respondent Nos. 1,2 and 3 their pay scale should have been fixed at rs. 610-1270 (Scale No. 14) because of implementation of the order of the Honble High Court the said senior laboratory assistants despite in the feeder post being inferior one, started getting higher scale of pay than that of research assistant who are in promotional post. The respondent Nos. 1,2 and 3 highlighting the aforesaid facts and anomalies because of allowing higher scale of pay to the lower Grade of personnel filed application in the learned Tribunal praying for appropriate revision and/or fixation in the scale of pay of the applicants, in or about 2002 being OA No. 1838 of 2000.

(5). THE learned Tribunal upon hearing both the parties was pleased to dispose of the same directing inter alia the chief engineer to consider the application together with its annexures as a representation of the applicants and dispose of the same at an early date preferably within 4 months from the date of receipt of the order by passing a speaking and reasoned order. Pursuant to the aforesaid order the Chief Engineer, the respondent No. 4 herein considered and dispose of the said applications on 31st August 2001. By this order the Chief Engineer decided that the respondent Nos. 1, 2 and 3 were entitled to the scale of pay of Rs. 425-1050 as allowed to the senior laboratory assistants in compliance of the order of the Honble High Court together with the benefit of higher initial start with effect from 1st April 1981 notionally but factually from 1st April 1987 and no arrear would be permissible prior to 1st April 1987 and it was further indicated they must be allowed further corresponding fixation of pay scale under subsequent ROPA 1986-90 with all consequential benefits. The said order of the Chief Engineer was communicated to the State. In spite of the same, even after lapse of one year or more, the State did not implement the said order nor the same was challenged by the State before appropriate forum. The respondent Nos. 1, 2 and 3 having found inaction in implementing order of the Chief Engineer again filed an application in the year 2002 being oa No. 1053 of 2002 as spoken above.

(6). THE State of West Bengal contested the said application by filing affidavit before the learned Tribunal and took stand that there was no justification for increase of pay-scale of the respondent Nos. 1,2 and 3 as there was no discrimination meted out towards them as alleged by them. It is admitted and stated that some of the senior laboratory assistants in particular were given higher pay-scale at one stage in compliance of the order of the Honble High Court and corresponding increase in their pay scale was made thereafter to comply with the High courts order on revision of pay-scale in 3rd and 4th Pay Commission. According to the State, there has been no revision of pay-scale of the senior laboratory assistants by the subsequent pay Commission in general. There cannot be any discrimination in the matter of judicial order. The order of the respondent No. 4 tantamounts to changing and/or amending the provision of Pay Commission. As such the relief granted by the respondent No. 3 was not justified at all. The learned tribunal did not appreciate the aforesaid legal difficulties.

(7). MR. Lakshmi Gupta appearing with Ms. Seba Roy in support of this application contend the order of the learned Tribunal is not based on any law. The learned Tribunal should have appreciated the order of the chief Engineer which could not be implemented as this amounts to change and or amendment of the recommendation of pay Commission, which cannot be done is Chief Engineer has no jurisdiction and/or authority to do so. In this case three senior laboratory assistants were given higher-scale of pay in terms of the judgment of the Honble High court, not by the Government. So when special favour has been given by the judicial pronouncement the same cannot be given to each and every one on the anvil of Article 14, for any benefit given by virtue of judicial determination there cannot be my discrimination. If these applications are allowed then there will be serious legal implication and administrative difficulties. In support of his contention he has relied on judgment of the Supreme Court reported in AIR 1985 SC 1126.

(8). MR. Milon Bhattacharya appearing for the respondents No. 1,2 and 3 contends that the learned Tribunal have passed just and perfect order. The order of the Chief Engineer which is a speaking and reasoned one was passed pursuant to the direction of the learned Tribunal previously. Earlier application on contest of the State was disposed of by directing the Chief Engineer to determine the issues and against this order no appeal was preferred. Pursuant to this order of the Tribunal which is a judicial one the respondent No. 4 has discharged the sovereign judicial function and granted relief to the applicants. In spite of communication no step was taken and ultimately subsequent application had to be filed and relief was granted lawfully.

(9). MR. Bhattacharya then contends that it is absurd and irrational that an employee holding inferior feeder post will be placed at scale of pay higher than that of the holder of the superior promotional post. It is urged that State has adopted pick and choose policy as the order of the honble Court was duly not only implemented earlier but subsequently corresponding revision and enhancement of pay scale was granted to those applicants, whereas unchallenged order of the Chief Engineer which is nothing short of Judicial order, was neither accepted nor carried out. Now said order of Chief Engineer has become final and binding. In support of the contention he has relied on two Supreme Court decisions reported in AIR 1988 SC 686 [LQ/SC/1987/659] (para 19) and (1981)2 SCC 277 [LQ/SC/1970/180] .

(10). WE have heard the learned counsels for the parties and we have read the judgment and order of the learned Tribunal assailed and also read the pleadings of the parties. While examining carefully this matter we are of the view that the judgement and order of the learned Tribunal does not call for any interference and the same has been rendered perfectly, following established principle of law. Of course the learned tribunal has given different reasoning. We think that the objection raised by the respondent for not implementing the order of the respondent No. 3 is that the same tantamounts to amendment and/or change of the recommendation of the Pay Commission. According to the State applicant the recommendation overrides the decision of the court. We are of the opinion that the State Government has no option but to accept the order of the respondent No. 3 as this order was not challenged earlier by filing appropriate proceedings or even in the affidavit-in-reply filed before the learned Tribunal by making separate prayer as and by way of counter-claim. It appears from the affidavit filed in the Tribunal opposing the application of the applicant that the State government only resisted the claim that in terms of the judgment of the Honble High Court earlier a few persons have been selectively given the benefit of higher pay scale but not to any other senior laboratory assistant. In fact, the Pay Commission did not recommend any pay scale to the senior laboratory assistant higher than that of the research assistant. In one word, subsequent Pay Commission had consciously made and provided difference of pay scale having regard to the cadre position. Therefore, the question of discrimination, citing the examples of the three applicants in the High Court, does not and cannot arise. We feel that the respondent No. 3 did not pass any order of his own and he, under the order of the learned Tribunal, considered and decided the matter. Earlier order of the learned Tribunal was not challenged by the state Government, thus it has reached its finality. Similarly, the order of the respondent No. 3 who has discharged a solemn duty undertaking the task of quasi judicial duty has now reached its finality. Now, it is a question of implementation of the same. The earlier order of the learned tribunal or for that matter the order of the respondent No. 3 might be right or wrong in the eye of law out when the same has reached its finality it is no longer open for the parties to question when the same is sought to be implemented. It cannot be said that the Tribunal lacked inherent jurisdiction or for that matter respondent No. 3 lacked jurisdiction. The Tribunal, in exercise of its power under Order 226 read with section 19 of the Central Administrative Tribunal Act, has delegated rather conferred power upon the respondent No. 3 to decide the issue and has done it with reason and the same remains unchallenged. As such, even if on fact or in law, both the two orders might or might not be correct one, once the same is passed and is not set aside by the appropriate forum the same is binding between the parties. One department in the State Government cannot have any different and separate entity as it is incorrectly sought to be projected here contending that the Finance Department of the Government has serious objection to the implementation of the order of the respondent. No. 3. Long time back it has been settled by the Honble Supreme Court in case of State of West Bengal v. Hemant Kumar Bhattacharjee reported in AIR 1966 SC 1061 [LQ/SC/1962/399] . The Supreme Court, in paragraph 14, settled as a proposition of law as follows : ". . . . . . . . . . . . . . . . A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. . . . . . . . . . . . . . . . . ".

(11). THIS judgment has been followed by a Division Bench of this Court in an unreported decision in case of The State of West Bengal and Anr. v. Mrs. Aparna Sarkar and Ors. (M. A. T. No. 217 of 1999 ). In this case, the respondent, Aparna obtained order in her writ petition from a learned single Judge of this Court. In 1995, the said order of the learned single judge was not carried out and/or implemented. Thereafter, another writ petition was filed in 1998 by the same petitioner, contending that the director of Public Instruction did not carry out the earlier order of the learned single Judge. In subsequent writ petition the learned single judge granted relief directing to carry out earlier order of the learned single Judge. Subsequent order of the learned single Judge was appealed against. The Appeal Court observed that earlier order of the learned single Judge has to be accepted whether it is right or wrong. The division Bench, while applying the aforesaid statement of law of the supreme Court, has observed that no appeal had been taken by the appellant against earlier order of the learned single judge, so it has attained finality. In that view of the matter, the learned single Judge in the subsequent matter was bound by the order passed by the learned single Judge in the earlier writ petition. The Honble Division Bench in that case also held that the legality and justifiability of the issues decided earlier was hit by the principles of res judicata.

(12). RESPECTFULLY following this observation of the Division Bench in the unreported case we are also of the same view that whatever questions have been raised now cannot be raised in view of the decisions rendered by the respondent No. 3 pursuant to the order of the learned Tribunal. Therefore, principle of res judicata will be applied in this case also if not issue estoppel.

(13). IN view of the aforesaid legal position we think that the State has no case to challenge.

(14). THE decision of the Supreme Court cited by Mr. Gupta, on the question of discrimination in judicial order (reported

in AIR 1995 SC 1128 [LQ/SC/1995/30] )is not applicable on the facts and circumstances of this case. In the case before the Supreme Court the appellant at one point of time raised the same issue before the industrial Tribunal and thereafter the matter was taken to the High Court by filing a writ petition and in the writ petition there has been a compromise reached by and between the parties whereby and whereunder the same claim was conceded to be abandoned. On the aforesaid given fact subsequent challenge was made taking the plea of discrimination. In fact, the appellant in the case before the Supreme Court was a party and was heard and thereafter, settlement was arrived at. Therefore, the principle laid down by the supreme Court is that the judicial discrimination meted out by the judgment of the Court is always immune from Article 14 of the constitution of India. Here, firstly the respondent Nos. 1, 2 and 3 were not heard when the learned single Judge passed an order directing to give higher scale of pay which is at par with that of the research assistant. Surprisingly direction given by aforesaid decision of the learned single Judge of this Court was also carried out ignoring recommendation of the subsequent Pay Commission by special order but in this case almost similar decision is questioned. So principle laid down by the Supreme Court cannot be applicable in this case. It is for the Government now to act in the matter of granting benefit to its employees concerned. We rather find that discrimination has been meted out in a different way by adopting pick and choose policy by the government, by reason of the fact, the order of the learned single Judge passed in the writ jurisdiction has been accepted in case of the Senior laboratory assistant while in case of the present respondents No. 1,2 and 3 the order passed by the learned Tribunal has been ignored as observed earlier. It is absurd to suggest that the respondent No. 3 can not be treated to be an officer of the Government because the order passed by him is not in his official capacity but as an adjudicator of the dispute in terms of the order of learned Tribunal. Therefore, we do not find any merit in this matter. We, accordingly, dismiss the application. However, no order as to costs. Application dismissed.