LAW CLERKS ASSO Vs. HON BLE CHIEF JUSTICE

JUDGEMENT

(1.) HEARD the learned Advocates appearing for the parties.

(2.) IN this application the respondent has prayed for clarification of the order dated 6th August, 2004 passed by the Division Bench (D. K. Seth and r. N. Sinha, JJ. , as their Lordship then were ). It is submitted that West Bengal law Clerks' Act, 1997 came into effect prior to 6th August, 2004 which was not taken note of by the Division Bench and as a result of such, an order was passed directing the following of the existing rules of grant of licence under the Appellate Side Rules with a rider that as and when the said Act would come into effect, the said procedure should cease to have effective and the procedure should be followed under the West Bengal Law Clerks' Act, 1997.

(3.) HAVING regard to the contention made in the application, we are of the view that order as passed by the said Bench namely, "in addition to the order already passed we direct the following to be complied with in relation to the grant of licence under the Appellate Side Rules until the West Bengal Law clerks'act, 1997 becomes effective and the licence is granted by the Licensing authority under the said Act. This order will remain operative till the licence are granted under the Appellate Side Rules" could be the subject matter of modification or challenge in a review application on that point that prior to the passing of the order of 6th August, 2004 the West Bengal Law Clerks'act, 1997 since came into effect there was no scope to grant any licence following the Appellate Side Rules. The respondent, High Court Administration practically in this application has prayed for modification of substantive portion of the judgment dated 6th August, 2004. It is the settled law that in every judgment there are two parts, one is substantive portion and another is procedural portion of the judgment. The procedural portion of the judgment could be the subject matter of modification or clarification application as doctrine of functus officio has no applicability thereon but so far as the modification or clarification of substantive portion of the order, it is hit by the principle of functus officio means that a Court ceases to exercise his jurisdiction once any appeal or application is disposed of. Reliance may be placed to the judgment passed in the case of Mahanth Ramdas v. Gangadas, reported in AIR 1961 SC 882 wherein the Apex Court held that functus officio doctrine has no applicability when modification of judgment as sought for relates to procedural portion of judgment. The same view has been reiterated by the three Judges' Bench of the Apex Court in Salam, Advocate, Bar Association, Tamil Nadu v. Union of india, reported in 2005 (6) SCC 344. Very recently same principle has been reiterated by the Apex Court in the case of Ajoy Mohan and Ors. v. H. N. Rai, reported in 2008 (2) SCC 507 whereby the Court held that once the appeal is withdrawn the Court becomes functus officio and thereafter Court had no power to pass any further order of status quo which was the subject-matter of decision in the said case.