Doctrine Of Merger Not Applicable To Order Dismissing SLP; But If The Order States A Principle Of Law, It Is Binding : Supreme Court

Factual Background

By an order dated January 16, 2016, the Supreme Court has dismissed Government’s special leave petition against a judgment of the Madras High Court and had held that the seniority list should be drawn on the basis of merit list of selection and not on the basis of roster point.

The contempt petitions were filed stating that the Respondents published a revised seniority list breaching the principle laid down by the Supreme Court.

The Respondents inter alia argued that the contempt petition, if any, should be agitated before that the High Court and not the Supreme Court of India since the law laying down that the seniority list should be drawn on the basis of merit list of selection and not on the basis of roster point was laid down by the Madras High Court. Reliance was placed on the Doctrine of Merger to argue that since the doctrine is not applicable to an order dismissing SLP and hence it cannot be said that contempt has been committed of the Supreme Court.

In response, Prashant Bhushan for the petitioners submitted that the judgement of the High Court had merged with the order of the Supreme Court dated 22^nd January, 2016 and hence the contempt would be of the Supreme Court.

In this context, the Bench rejected the arguments of the Respondents and noted that a principle of law declared in an order dismissing a SLP is binding on the parties, even though the doctrine of merger is not applicable to it.

Doctrine of Merger

The Doctrine of Merger is a common law doctrine founded on the principle of iof maintenance of decorum of hierarchy of courts and tribunals. The logic behind the doctrine is that there cannot be more than one decree or operative order governing a subject matter at the same point.

The Doctrine of Merger was summed up by the Supreme Court in Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359 wherein it described the doctrine as:

“Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.” (Para 43)

Thus, for the doctrine of merger to be applicable there must be a decision of a subordinate court/forum, in respect of which there exists a right of appeal/ revision which is duly exercised and the superior forum before whom such appeal/revision is preferred must modify, reverse, and/or affirm the decision of the subordinate court/forum. The consequence of such modification, reversal, and/or affirmation is that the decision of the subordinate forum would merge with the decision of the superior forum, which in turn would be operative and capable of being enforced.

With respect to the question whether the Doctrine of Merger applies to orders dismissing Special Leave Petitions, it was laid down in Kunyammed vs State of Kerala that:

“A petition for leave to appeal to this Court may be dismissed by a non­speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a nonspeaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.” (Para 27)

However, crucially, the Court then goes on to explain the distinction between orders given in Special Leave Petitions and the principle of law laid down therein. It held that:

“Still the reasons stated by the court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court.” (Para 27)

In other words, the order of dismissal of SLPs would not attract the doctrine of merger whether it be supported by reasons or not. However, the principle of law stated by the Court would attract the applicability of Art.141 of the Constitution of India, if there is a law declared the Court which would be binding on all courts and tribunals in India.

The Court in V. Senthur and another versus M. Vijayakumar IAS and others reiterated the law laid down in Kunyammed vs State of Kerala:

“It is thus clear that this Court in unequivocal terms has held that if the order of dismissal of SLPs is supported by reasons, then also the doctrine of merger would not be attracted. Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on all the courts and the tribunals in India and certainly, the parties thereto.”(Para 22)

The Bench went on to create a similar distinction between the order passed by the Supreme Court dated 22/01/2016 and the principle of law laid down therein. Squarely applying the principles laid down in Kunyammed vs State of Kerala, the Court observed that:

“It could thus be seen that while dismissing the SLPs, this Court has reiterated the legal position as laid down in the case of Bimlesh Tanwar (supra) to the effect that while determining seniority, what is relevant is the inter se merit in the selection list and not the roster point” (Para 23)

Further, the court observed that:

“It is thus clear that though it cannot be said that the second judgment of the Madras High Court has merged into the order of this Court dated 22nd January 2016, still the declaration of law as made in the said order, would be binding on all the courts and tribunals in the country and in any case, between the parties.” (Para 25)

Applying the Doctrine of Merger explained in Kunhayammed and Others v. State of Kerala and Another, the Court thus rejected the contention of the Petitioner that the order passed on 22^nd January, 2016 dismissing the SLP would merge with the Madras High Court judgement. It also rejected the contention of the Respondent that the contempt was with respect to the Madras High Court judgement and not the Supreme Court. Holding that the Respondents were bound to follow the law laid down by the Supreme Court and determine inter-se seniority on the basis of selection of TNPSC and not on the basis of roster point, the Court held that the Respondents were in contempt of the law laid down by the Supreme Court and not the High Court.

Case Title : V. Senthur and another versus M. Vijayakumar IAS and others |Contempt Petition(Civil) 638/2017

Coram : Justices L Nageswara Rao and BR Gavai

Appearances : Advocate Prashant Bhushan (for petitioners); Senior Advocate CS Vaidyanathan(for TNSPC), Senior Advocates Mukul Rohatgi, V Giri and P Wilson(for respondents)

Citation : LL 2021 SC 526

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