ORDER

The petitioners have submitted that although after litigation ended up to Supreme Court they were appointed under the same selection process. However, their appointment is being treated as fresh and without having been given the benefit of being in the merit in the original selection.

2. Learned counsel submits that once it is found that on account of fault of the respondents, the petitioner was denied appointment, he is entitled for notional continuance of service as well as seniority from the same day though he may not be granted actual pay, notional pay-fixation is required to give to him. Learned counsel relies on an order passed in a similar case in C.W.J.C. 4129/2016 decided by coordinate bench on 03.05.2018.

3. I have considered the submission, the Supreme Court passed a detailed judgment in S.L.P. Civil Appeal 4270/2014, 2014 (2) BLJ 126 (SC), Naushad Anwar & Ors. vs. State of Bihar & ors. and connected similar case and after considering all the aspects it allowed the appeals of the petitioner and passed following operative order:—

“Para 16: In the result we allow these appeals, set aside the order passed by the High Court and allow Writ Petition 17734 of 2000 with a direction to the respondents to consider the appellants for appointment against the available vacancies by treating them eligible for such appointment depending upon their inter se merit vis-a-vis other candidates who may be competing for the unfilled vacancies if any out of those advertised, the respondents shall issue the appointment orders to them if they are otherwise found to be fit and suitable for such appointment. The needful shall be done by the respondents expeditiously but not later than two months from the date of this order.”

A look at the order passed by the Supreme Court as above reflects the relief to the petitioners was moulded by the Supreme Court and a direction was issued to give them appointment against the available vacancies as on the day when the order was passed. Their merit was also to be assessed interse between the other candidates who may compete for the unfilled vacancies. Thus, those who were already appointed earlier, were left untouched. The petitioners were not given the benefit of their earlier placement in the select list and a fresh merit was to be prepared in relation to the unfilled vacancies. No notional benefits were granted by the Supreme Court.

4. In the circumstances, claiming relief beyond the orders passed by the Supreme Court, the present writ petition has been filed. In the opinion of this Court, such writ petition is not maintainable and is in fact an abuse of process of Court. If at all any grievance was left to be redressed, the only remedy for the petitioner was to approach the Supreme Court.

5. The reference to the subsequent order passed by a coordinate bench of this Court in relation to other candidates wherein relief was granted in addition to what was granted by the Supreme Court, has been made.

6. In the opinion of this Court, an order passed by the Supreme Court modifying the relief is under Article 142 of the Constitution of India and this Court does not have powers to pass orders under Article 142. This Court also notices that the order passed by the coordinate bench dated 03.05.2018 fails to take notice of the order passed by the Supreme Court and in the opinion of this Court therefore the said order has to be treated as per incuriam and cannot be followed by this Court. Law in this regard is settled in judgment passed by the Apex Court in case of Jagannath Temple Managing Committee vs. Siddha Math & Ors. 2015(16) SCC 542 as under:—

“Para 34: We agree with the contention advanced by the learned Senior Counsel appearing on behalf of the appellant Temple Committee. Most respectfully, we opine that the decision of this Court in Jagannath is per incuriam for nonconsideration of the provisions of Sections 5 and 33 of the Temple Act, 1955 and the law laid down by this Court as regards between the two Sta