Supreme Court: Explaining the doctrine of merger in case of dismissal of Special Leave Petitions (SLPs), the bench of L. Nageswara Rao and BR Gavai*, JJ has held that doctrine of merger would not attract and that it doesn’t matter if the SLP has been dismissed by a non-speaking order or a reasoned one.

The Court had, in Kunhayammed v. State of Kerala, (2000) 6 SCC 359, clearly enunciated the law on this point and had held,

“27. A petition for leave to appeal to this Court may be dismissed by a non-speaking 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. (…) 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. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.”

What was the case about?

On 22nd January 2016, the Supreme Court had, dismissing the SLPs against a Madras High Court order, held that the seniority list has to be prepared on the basis of merit list of selection and that the list drawn on roster point would not be valid in law.

Here is what the Court said in it’s reasoned order:

“The fundamental principle which has been applied by the Division Bench in the cases on hand relates to the question as to what should be the basis for drawing a seniority list. In that context, the Division Bench has noted that at the time when the Service Commission drew the list in 2000 the same was in tune with the judgment of this Court in P.S. Ghalaut v. State of Haryana & Others, reported in (1995) 5 SCC 625. The Court also found that the said list which was approved by the State Government did not achieve the finality and that ultimately when the seniority list came to be issued on 29.2.2004, by which time the judgment of this Court in Bimlesh Tanwar v. State of Haryana and others, reported in (2003) 5 SCC 604 had came into effect which reversed the judgment in Ghalaut (supra). The Division Bench, therefore, held that there was no delay in the challenge made to the seniority list. After the emergence of the judgment in Bimlesh Tanwar (supra), the fundamental principle relating to drawl of seniority list was that it should be based on merit list of selection and that the list drawn based on roster point can have no application for the purpose of seniority list. As the said fundamental principle was applied by the High Court in passing the impugned judgment, we do not find any merit in these special leave petitions. The special leave petitions are dismissed. The learned Attorney General for India, appearing for the Tamil Nadu Public Service Commission, raised an issue that with reference to a contra view taken by another Judgment of Madurai Bench of the Madras High Court, at the instance of one of the employees an SLP is pending in this Court. Since the issue is now covered by the decision of this Court in Bimlesh Tanwar (supra), the pendency of the said SLP will be of no consequence as the said SLP should also be covered by the said judgment of this Court, namely, Bimlesh Tanwar (supra).”

Hence, it can be seen that while dismissing the SLPs, the Court reiterated the legal position as laid down in the case of Bimlesh Tanwar to the effect that while determining seniority, what is relevant is the inter se merit in the selection list and not the roster point.

The Court held that though it cannot be said that the second judgment of the Madras High Court has merged into the order 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.

Hence, the respondents were bound to follow the law laid down by this Court.

[V. Senthur v. M. Vijayakumar,  2021 SCC OnLine SC 846, decided on 01.10.2021]



For appellant: Advocate Prashant Bhushan,

For TNPSC: Senior Advocate C.S. Vaidyanathan

For respondents: Senior Advocates Mukul Rohatgi, V. Giri and P. Wilson

*Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

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