Writ Petition No. 1777 of 1988

4th March, 2002

Petitioner Counsel: Mr. DEEPAK CHITNIS, CHITNIS VAITHY , CO
Respondent Counsel: Mr. M. N. BHATKAL, Ms. R. V. PATANKAR

Cases Cited:
State of U.P. Vs. Mohammad Nooh, AIR 1958 SC 86 [Para 6,11]
S.S. Rathore Vs. State of Madhya Pradesh, AIR 1990 SC 10 [Para 7]
Sita Ram Goal Vs. The Municipal Board, AIR 1958 SC 1036 [Para 11]
Madan Gopal Rungta Vs. Secretary to the Govt of Orissa, AIR 1962 SC 1513 [Para 11]
Collector of Customs Vs. East India Commercial Co.Ltd., AIR 1963 SC 1124 [Para 11]
Somnath Sahu Vs. The State of Orissa, (1969) 3 SCC 384 [Para 11]

JUDGMENT

R. M. LODHA, J. :- Heard Mr. Deepak Chitnis, learned counsel for the petitioners and Mr. M. N. Bhatkal, learned counsel for the respondent Nos.1 and 2.

2. The petitioner was initially employed as clerk with Union Bank of India-respondent No.1 (hereinafter referred to as "Bank") in the year 1964. She was promoted as officer in December, 1975. At the time of promotion the petitioner was working at Tardeo Branch. She was transferred to L. D. Ruparel Marg branch at the close of business on 25th August, 1983. On 5th August, 1985 she was transferred to Veer Nariman Road branch from L. D. Ruparel Marg. The petitioner was chargesheeted of certain acts and omissions while working as an officer at Tardeo branch. The allegation against the petitioner was that an amount of Rs.2,42,374.35 was allowed to be fraudulently withdrawn from the accounts maintained by M/s. Kapsi Co-operative Housing Society at Tardeo Branch for the period from 1981 onwards. According to the charges. 91 cheques which were forged were passed for payment by the petitioner although the signatures of the drawer of cheques did not tally with the specimen signatures on record at the branch. After holding the enquiry, the Disciplinary Authority by order dated 31st December, 1985/ 9th August, 1986 imposed major penalty of reduction upon the petitioner by six stages in the time scale of pay. The said order of punishment passed by the Disciplinary Authority came to be challenged by the petitioner in appeal under the Union Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 (for short, 'Bank Regulations'). The Appellate Authority by order dated 14th November, 1986 dismissed the appeal holding that penalty imposed upon the petitioner was commensurate with the misconduct committed and found guilty. The Appellate Authority was of the view that there was no reason to interfere with the order of Disciplinary Authority. By means of this writ petition, the petitioner seeks to challenge the order of the Appellate Authority dated 14th November, 1986 affirming the order of the Disciplinary Authority dated 31st December, 1985/9th August, 1986.

3. In response to the writ petition the counter has been filed by the Bank. Interalia plea of the Bank is that against the order of the Appellate Authority affirming the order of Disciplinary Authority, the petitioner filed review petition before the reviewing authority and during the pendency of review petition, the writ petition has been filed; the said reviewing authority by order dated 21st September, 1988 rejected the review petition but the said order was not challenged immediately thereafter and only in the year 2001 chamber summons was taken out seeking amendment in the writ petition proposing to challenge the order dated 21.9.1988 passed by Reviewing Authority but the said chamber summons has been rejected and as a result of which the order dated 21.9.1988 is not under challenge. The stand set up by the bank is that the order of the Disciplinary Authority as well as the order of Appellate Authority have merged in the order of the Reviewing Authority and the said order of Reviewing Authority being not under challenge, the petition is liable to be dismissed without going into merits. Be it noted that the counter was filed by the Bank on 25th October. 1989 along therewith copy of the order of Reviewing Authority dated 21.9.1988 was also annexed. The petitioner did not take any steps in challenging the order dated 21.9.1988 as soon as copy of the counter was served upon the petitioner. It was only in the year 2001 when the writ petition was called out for hearing that the petitioner took out chamber summons No.36 of 2001 seeking leave of the court for amendment in the writ petition by proposing to challenge the order of Reviewing Authority dated 21.9.1988. The chamber summons was dismissed on 23.4.2001 by the following order:-

"1. Heard Mr. Chitnis for the petitioner and Mr. Bhatkal for the respondent No.1.

2. This Chamber summons has been taken out by the petitioners seeking amendment in the writ petition as per Schedule annexed thereto. By way of amendment, the petitioners seek to challenge the order dt. 21.9.1988 passed by the reviewing authority. The Chamber summons has been taken out on 22.3.2001 i.e. more than 12 years after the order was passed by the reviewing authority.

3. In support of the Chamber summons the petitioner has in fact admitted that copy of the order dt. 21.9.1988 passed by the reviewing authority was received by her on 12.12.1988 and that she had given the said order to her erstwhile Advocate. It is stated that the erstwhile Advocate did not advise her to challenge the said order passed by the reviewing authority dt. 21.9.1988. In the affidavit-in-support, it is further mentioned that her erstwhile Advocate Mr. P.R.Dalmia expired on 22.1.2001 and thereafter, she engaged the services of M/s. Chitnis Vaithy & Co. to represent her in the said matter.

4. In this background, it is prayed that the petitioner be permitted to amend the writ petition by challenging the order dt.21.9.1988 passed by the reviewing authority.

5. In opposition to the Chamber summons taken out by the petitioners, the respondents have filed the affidavit-in-reply and have set out the defence that at such a belated stage, the proposed amendment does not deserve to be granted.

6. We find ourselves in agreement with the objection raised by the respondents and are of the view that the proposed amendment does not deserve to be granted after a lapse of more than 12 years. There is no dispute that the petitioner was served with the order dt. 21.9.1988 passed by the reviewing authority as early as on 12.12.1988. Not only that in the counter affidavit filed by the respondents in opposition to the writ petition way back on 25.10.1988 it was stated therein that the reviewing authority vide order dt. 21.9.1988 has dismissed the petitioners review application challenging the order of the disciplinary authority. Thus, it is clear that way back in the year 1988, itself, not only by way of counter opposition to the writ petition the reviewing authority has dismissed the review application vide order dt.21.9.1988 but, also the said order dt.21.9.1988 was served upon the petitioner on 12.12.1988. Even on 27.1.2000 when the writ petition was called out for hearing and final disposal, the present Advocate appearing for the petitioner, appeared but still no steps were taken by him and now on 22.3.2001 the present Chamber summons seeking amendment in the writ petition has been taken out which being grossly belated does not deserve to be granted. We accordingly dismiss the Chamber summons."

4. The petitioner challenged the order dated 23.4.2001 in Special leave to Appeal (Civil) No. 11242 of 2001 before the Supreme Court. The Special Leave Petition was dismissed by the Apex Court on 17.9.2001 by following order :-

"Heard the learned counsel for the parties.

Impugned order passed by the High Court refusing to grant amendment in the writ petition does not call for any interference at this stage. The special leave petition is dismissed."

5. The question before us is whether the order of Disciplinary Authority dated 31st December, 1985/ 9th August, 1986 and the order of the Appellate Authority dated 19.11.1986 have merged in the order of the Reviewing Authority dated 21.9.1988 and if yes, in the situation like this when the order of Reviewing Authority dated 21.9.1988 is not under challenge as petitioner's chamber summons seeking amendment in the writ petition by challenging the order of reviewing order dated 21.9.1988 has been rejected, whether the writ petition is liable to be dismissed without going into merits.

6. Mr. Chitnis, learned counsel for the petitioner invited our attention to Rule 18 of Bank Regulations and submitted that as the Reviewing Authority has neither modified the orders of the Disciplinary Authority and the Appellate Authority nor decided to enhance the punishment, the orders of the Disciplinary Authority and the Appellate Authority cannot be said to have merged into the order of Reviewing Authority. According to Mr. Chitnis in the order of affirmance passed by Reviewing Authority, the order of Disciplinary Authority and that of Appellate Authority cannot be said to have merged. He relied upon the judgment of the Apex Court in State of U.P. v. Mohammad Nooh. AIR 1958 SC 86 in support of his proposition.

7. On the other hand, Mr. Bhatkal, learned counsel appearing for the bank relied upon the seven Judge Bench judgment of the Apex Court in S.S.Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 and submitted that the order of Disciplinary Authority and the order of Appellate Authority have merged in the order of the Reviewing Authority and since the order of reviewing authority dated 21.9.1988 is not under challenge, merits of the contentions raised in the writ petition do not deserve to be gone into and the writ petition deserves to be dismissed on this ground alone.

8. We have reflected over the matter and considered the Bank Regulations of 1976 and the judgments of the Apex Court cited at Bar. The Bank Regulations have been made in exercise of the powers conferred by section 19 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 in consultation with the Reserve Bank of India and with the previous sanction of the Central Government. The Regulations apply to all officer employees of the Bank and interalia it provides for the penalties which may be imposed on the officer employee for an act of misconduct or for any other good and sufficient reason. The Bank Regulations provide for authority to institute disciplinary proceedings and impose penalties and procedure for imposing major penalties as well as minor penalties. Regulation 7 reads thus -

"7. Action on the inquiry report :

(1) The Disciplinary Authority if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the inquiring Authority for fresh or further inquiry and report and the inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be.

(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any Article of Charges, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) if the Disciplinary Authority having regard to its findings on all or any of the Articles of Charges,is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the Officer Employee it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.

(4) If the Disciplinary Authority having regard to its findings on all or any of the Articles of Charges,is of the opinion that no penalty is called for, it may pass an order exonerating the Officer Employee concerned."

9. An officer employee may appeal against an order imposing upon him any of the penalties specified in regulation 4 or against the order of suspension referred to in regulation 12 under regulation 17. Regulation 17 reads thus -17. Appeals:

(i) An Officer Employee may appeal against an order imposing upon him any of the penalties specified in Regulation 4 or against the order of suspension referred to in Regulation 12. The Appeal shall lie to the Appellate Authority.

(ii) An appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.

"Provided that -

(i) if the enhanced penalty which the Appellate Authority proposed to impose is a major penalty specified in Clauses (e),(f),(g) and (h) of Regulation 4 and an inquiry as provided in Regulation 6 has not already been held in the case, the Appellate Authority shall direct that such an enquiry be held in accordance with the provisions of Regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper.

(ii) if the Appellate Authority decides to enhance the punishment but an enquiry has already been held as provided in Regulation 6, the Appellate Authority shall give a show-cause notice to the Officer Employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the Officer Employee."

10. The Regulations provide that Reviewing Authority may call for record of the case within six months of the date of final order and after reviewing the case pass an appropriate order. Regulation 18 which empowers power of review to the Reviewing Authority reads thus -

"18. Review :

Notwithstanding anything contained in these Regulations, the Reviewing Authority may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit.

Provided that -

(i) if any enhanced penalty, which the Reviewing. Authority proposed to impose, is a major penalty specified in Clauses (e),(f),(g) and (h) of Regulation 4 and an enquiry as provided under Regulation 6 has not already been held in the case, the Reviewing Authority shall direct that such an inquiry be held in accordance with the provisions of Regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper.

(ii) if the Reviewing Authority decides to enhance the punishment but an inquiry has already been held in accordance with the provisions of Regulation 6, the Reviewing Authority shall give show cause notice to the Officer Employee as to why the enhanced penalty should not be imposed upon him and shall pass an order after taking into account the representation, if any, submitted by the Officer Employee."

11. A Close reading of the aforesaid Regulations leaves no manner of doubt that a delinquent officer employee has been given right of appeal under regulation 17 to the Appellate Authority against the order of Disciplinary Authority and such orders may be assailed before the Reviewing Authority in review under regulation 18. The Bank Regulations, thus, provide for appeal and review against the order of Disciplinary Authority. In S.S.Rathore, the seven Judge bench of the Apex Court ruled that powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities and in respect of many disputes the jurisdiction of the court is not barred and there is a vesting of jurisdiction in tribunals and authorities and therefore, there is no justification in drawing distinction between the courts and tribunals in regard to the principle of merger. The Apex Court took into consideration its earlier judgments viz, Sita Ram Goel v. The Municipal Board, Kanpur & Ors. AIR 1958 1036. State of U.P. v. Mohammad Nooh AIR 1958 SC 86, Madan Gopal Rungta v. Secretary to the Govt. of Orissa AIR 1962 SC 1513, Collector of Customs Calcutta v. East India Commercial Co.Ltd. AIR 1965 SC 1124 and Somnath Sahu v. The State of Orissa (1969) 3 SCC 384. Sita Ram Goel's case has been overruled by the seven judge bench of the Apex Court in S.S.Rathore. In Mohammad Nooh, the Apex Court in paragraph 12 and 13 of the report held as follows :-

"12. It is not disputed that our Constitution is prospective in its application and has no retrospective operation except where the contrary has been expressly provided for. It has been held in a series of decisions of the High Courts, some of which are referred to in the judgment under appeal, that Art.226 and Art.227 have no retrospective operation & transactions which are past and closed and the rights and liabilities which have accrued and vested would remain unaffected. The correctness of this principle has not been questioned by the High Court when dealing with the present case and has not been disputed before us. It is, therefore, conceded that if the matter had rested with the order of dismissal passed by the District Superintendent of Police on April 20, 1948, and the order passed by the Deputy Inspector General of police on June 7, 1949, dismissing the appeal and confirming the order for the dismissal of the respondent an application for a writ under Art.226 would not lie in this High Court to set aside those orders as this was not one of the High Courts that had writ jurisdiction before the constitution. It is, however contended that the order of dismissal dated April 20, 1948, had merged in the order passed on appeal on June 7, 1949, and that both the orders merged in the order passed by the Inspector General of police on April 22, 1950, on the revision application. It is said that the revisional jurisdiction is a part of the appellate jurisdiction and the principle on which a decree of the Court of first instance in a civil suit merges in the decree on appeal applies with equal force to an order made on an application for revision and consequently both the orders passed by the District Superintendent of police and that passed on appeal by the Deputy inspector General of Police merged in the order passed on revision by the Inspector General of Police on April 22, 1950. To put it shortly, the contention of the respondent is that the order of dismissal passed on April 20, 1948, became final only on the passing of the order in revision on April 22, 1950, and as that order was passed after the date of the commencement of the Constitution, its validity could be called in question on an application under Art.226.

13. There appear to be two answers to the foregoing contention. As we have already observed an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal Court and the order dismissing the revision petition by a yet higher court as has been sought to be done by the high Court in this case, because the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law. The danger of so doing is evident from what has happened in the very case now before us in the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind App 104: (AIR 1914 PC 65) (H), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh, 53 Ind App 197 : (AIR 1926 PC 93) (I). But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : ILR 46 Cal 670 at pp. 678 and 679 : (AIR 1918 PC 151 at pp. 152-153) (J), whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on April 20, 1948 was not suspended by the presentation of appeal by the respondent nor was its operation interrupted when the Deputy Inspector General of Police simply dismissed the appeal from that order or the Inspector General simply dismissed the application for revision. The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes herein before mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismissal of the respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Art. 226 to correct errors, irregularities or illegalities committed by the inferior departmental tribunal before the commencement of the Constitution, for then there will be no limit to its going backward and that will certainly amount to giving the provisions of Art.226 a retroactive operation. This aspect of the matter does not appear to have been pressed in the High Court or adverted to by it. It is only on this ground that we are constrained, not without regret, to accept this appeal."

12. Mohammad Nooh's case came up for consideration before Apex Court in Madan Gopal Rungta (supra). The Constitution Bench stated thus -

"We are of the opinion that the principle of Mohd.Nooh's case, 1958 SCR 595 : (AIR 1958 SC 86), cannot apply in the circumstances of the present case. The question there was whether the High Court would have power to issue a writ under Art.226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Government in April 1950 after the Constitution came into force, it was in those circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject-matter of an application under Art.226 of the Constitution for that would be giving retrospective effect to what Article. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held (firstly) that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals, and (secondly) that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision and therefore the order of dismissal having been passed before the Constitution would not be open to attack under Art.226 of the Constitution. We are of opinion that the facts in Mohd. Nooh's case. 1958 SCR 595 (AIR 1958 SC 86) were of a special kind and the reasoning in that case would not apply to the facts of the present case."

13. Before yet another Constitution Bench of the Apex Court in Collector of Customs, Calcutta v. East India Commercial Co.Ltd., Calcutta & ors. (supra), Mohammad Nooh was relied upon by the respondent. In para 7 of the Report, the Apex Court observed:

7. The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh v. Mohammed Nooh, 1958 SCR 595 : (AIR 1958 SC 86). That was a case where a public servant was dismissed on April 20, 1948 before the Constitution had come into force his appeal from the order of dismissal was dismissed in May 1949 which was also before the Constitution came into force. His revision against the order in appeal was dismissed on April 22, 1950, when the Constitution had come into force, and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force. In that case this Court certainly held that the order of dismissal passed on April 20, 1948, could not be said to have merged in the orders in appeal and in revision. It was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948, and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungta's case C.A. No. 407 of 1961, D/- 16.3.1962 : (AIR 1962 SC 1513, Mohammad Nooh's case, 1958 SCR 595 : (AIR 1958 SC 86), was a special case, which stands on its own facts. The question there was whether a writ under Art.226 could be issued in respect of a dismissal which was effective from 1948. The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject-matter of consideration under Art.226 of the Constitution for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of Courts would not be applicable to departmental tribunals and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. In effect, this means that even if the principle of merger were applicable to an order of dismissal like the one in Mohammad Nooh's case, 1958 SCR 595 : (AIR 1958 SC 86), the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismissed could not take advantage of the provisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliar's case, 1955-2 SCR 1196 : (S) AIR 1956 SC 246) as well as in Amritlal Bhogilal's case, AIR 1958 SC 868, that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority, it is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with costs."

14. The seven Judge Bench of the Apex Court in S.S.Rathore while considering Mohammad Nooh in para 14 of the Report held:

"14. The distinction adopted in Mohammad Nooh's case (AIR 1958 SC 86), between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31.8.1966."

15. In view of the authoritative pronouncement by seven Judge Bench of the Apex Court, the legal position is well crystalised that the doctrine of merger is equally applicable to the tribunals and authorities having powers of adjudication and in discharge of quasi-judicial functions. The view to the contrary is no longer good law. Mohammad Nooh's case relied upon by the learned counsel for the petitioner has been considered and explained by two Constitution Benches of the Apex Court in Madan Gopal Rungta and Collector of Customs and the seven Judge Bench of the Apex Court in S.S.Rathore and we need not say anything further except reiterating that Mohammad Nooh's case was a case of special kind turned on its facts and confined to that case alone.

16. Applying the aforesaid legal position, no doubt is left that order passed by the Disciplinary Authority on 31st December 1985/9th August, 1986 and the order passed by the Appellate Authority in exercise of his powers under Regulation 17 merged in the order of the Reviewing Authority passed on 21.9.1988. It is the order of Reviewing Authority dated 21.9.1988 that holds the field and is the only operative order. The submission of the learned counsel for petitioner that Reviewing Authority having only affirmed the order of Disciplinary Authority and the order of Appellate Authority, the principle of merger is not attracted, is only noted to be rejected. Where review petition is filed before Reviewing Authority under Regulation 18, the Reviewing Authority may reverse the order/orders under review; it may modify the order/orders; it may enhance the penalty or may simply dismiss the review petition. In law, the order of confirmation passed by Reviewing Authority is quite as efficacious as an operative order as an order of reversal or modification.

17. As the order of the Disciplinary Authority and the order of the Appellate Authority have merged in the order of the Reviewing Authority and that order is only operative order which is not under challenge as the application of the petitioner in challenging the order of Reviewing Authority has already been dismissed by this court vide order dated 23.4.2001 and the said order has not been interfered with by the Apex Court in Special Leave Petition filed by the petitioner, we are of the considered view that merits of the matter cannot be gone into and the writ petition has to be dismissed on that ground alone.

18. We, accordingly, dismiss the writ petition. Rule is discharged. No costs.

Petition dismissed.