Case BriefsSupreme Court

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]

________________________________________________________________________________

Counsels: 

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

Op EdsOP. ED.

Introduction

The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals, the doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter.[1] The same was aptly summed up by the Supreme Court when it described the doctrine so:

 “44. … (i) 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.”[2]

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.

Indian courts and the doctrine of merger

Perhaps the earliest Indian decision discussing the doctrine of merger is that of the High Court of Bombay in CIT v. Tejaji Farasram Kharawalla[3] where it was held that:

… It is a well-established principle of law that when an appeal is provided from a decision of a tribunal and the appeal court after hearing the appeal passes an order, the order of the original court ceases to exist and is merged in the order of the appeal court, and although the appeal court may merely confirm the order of the trial court, the order that stands and is operative is not the order of the trial court but the order of the appeal court.

In CIT v. Amritlal Bhogilal & Co.[4], another decision which touches upon the doctrine of merger, the Supreme Court observed:

“10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement….”

Another important decision in the realm of the doctrine of merger is that of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat[5], where the Supreme Court while reiterating an earlier decision[6] laid down three conditions that would serve to make the doctrine applicable. These conditions were that the jurisdiction exercised should have been appellate or revisional jurisdiction, that such jurisdiction must necessarily have been exercised after issuance of notice, and that it must have followed a full hearing in presence of both parties.

In Gojer Bros. (P) Ltd. v. Ratan Lal Singh[7] the Supreme Court reiterated that insofar as the doctrine of merger was concerned there could be no distinction in terms of application of the doctrine of merger between an appellate judgment simpliciter dismissing an appeal, and an appellate judgment modifying or reversing the decree of the lower court.

More recently in A.V. Papayya Sastry v. Govt. of A.P.[8] the Supreme Court had the occasion to hold that;

“38. … All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.”

Inapplicability of the doctrine of merger

There are certain circumstances in which the doctrine of merger will not apply as a matter of course, these include situations where the scope of appeal/revision is narrower than that of the original proceeding, and situations where the power vested in the court designated to hear such appeal/revision is limited; additionally, the doctrine of merger would not apply where the order itself has been secured by means of fraud.

The decisions in which these broad principles were laid down include:

The decision rendered by the Supreme Court in State of Madras v. Madurai Mills Co. Ltd.[9] wherein it was held that:

“5. … doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”

In A.V. Papayya Sastry v. Govt. of A.P.[10] discussed above, the Court laid down an important exception to the doctrine of merger. It observed that where it was established that the order obtained by the successful party was a consequence of fraud such order stood vitiated and could not be held legal, valid or in consonance with law. Such order was necessarily “non-existent”, “non est” and could not be allowed to stand.

Doctrine of merger and special leave petitions

Given their extraordinary nature, a great deal of judicial time and attention has been spent on the effect of judicial orders in special leave petitions and the applicability of the doctrine of merger thereto.

To better understand this, it is necessary that we examine the very nature of Article 136. The power vested in the Supreme Court by virtue of Article 136 is a special power inasmuch as it broadens the scope for invocation of the appellate jurisdiction of the Supreme Court. However, exercise of such extraordinary power is subject to the discretion of the Supreme Court itself. In simpler terms, Article 136 allows bypassing of the fixed hierarchy of appeals subject to the satisfaction of the discretion of the Supreme Court.

It is thus a two staged process, the first being satisfaction of the discretionary jurisdiction of the Supreme Court, at this stage a duty is cast upon the petitioner to show that it is a fit case for the Supreme Court to exercise its extraordinary appellate jurisdiction. At this juncture there are two possibilities, the first to grant special leave to appeal and hear such appeal, and the second to dismiss such special leave to appeal; it is only in case of the former that the finality of the order/decree/judgment appealed against is brought into question.

Unfortunately, there existed a great deal of uncertainty regarding the applicability of the doctrine of merger in case of special leave petitions has primarily has arisen in cases where the special leave to appeal has been denied without touching upon the merits of the appeal itself.

The Supreme Court of India on multiple occasions has held that a non-speaking order of dismissal of special leave petition cannot reasonably lead one to the conclusion that it is a tacit approval of the order/decree/judgment appealed against.[11] A similar view was put forth by the Supreme Court in V.M. Salgaocar & Bros. (P) Ltd. v. CIT[12] where the Court held that in dismissing a special leave petition the Court does not express any opinion on the order from which such appeal is itself sought.

The Supreme Court’s decision in Kunhayammed v. State of Kerala[13] is perhaps the most significant decision in this regard;

Some aspects of the decision warrant reproduction here viz.:

“44. …  (i) Where an appeal or revision is provided against an order passed by 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 mergers 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.”

* * *

“(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the court was not inclined to exercise its discretion so as to allow the appeal being filed.

 (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

 (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.”

Conclusion

The doctrine of merger stems from necessity; the absence of an established doctrine to ascertain which one of several successive orders must be deemed final and therefore prevail would be chaotic to say the least. The doctrine of merger more than adequately fills this void by stipulating that it would be the order of the appellate/revisional court that would be final.


Practising Advocate at the High Court of Bombay at Goa.  

[1] Gojer Bros. (P) Ltd. v. Ratan Lal Singh, (1974) 2 SCC 453.

[2]Kunhayammed v. State of Kerala, (2000) 6 SCC 359.

[3] 1953 SCC OnLine Bom 28.

[4] 1959 SCR 713

[5] (1969) 2 SCC 74.

[6] U.J.S. Chopra v. State of Bombay, (1955) 2 SCR 94

[7] (1974) 2 SCC 453.

[8] (2007) 4 SCC 221, 236.

[9] (1967) 1 SCR 732

[10] (2007) 4 SCC 22.

[11] Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187;

Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC 1.

[12] (2000) 5 SCC 373.

[13] (2000) 6 SCC 359, 383, 384.

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the contempt petition held that,

“The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation.”

Petitioners Counsel, N.G.R Prasad and Sathish Parasaran, Senior Counsel on behalf of the respondent, represented the parties in the present matter.

Maintainability of Contempt Petition

Court’s view in the present matter was that the Court need not venture into rendering its findings on the contentions raised on either side since the very maintainability of the Contempt Petition is in question.

Final orders were passed in the petition on 06-02-2020, respondent took the matter on appeal in W.A. No. 252 of 2020 and Division Bench dealt with the case on merits and partly allowed the Writ Appeal.

Once an order has been passed in the Writ Appeal and the order passed by the Single Judge is modified and the Writ Appeal is partly allowed, the order of the Single Judge merges with the order passed in the Writ Appeal.

The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation.

Reference to the Supreme Court decisions in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 and Shanthi v. T.D. Vishwanathan, (2019) 11 SCC 419, was made.

Bench in view of the above decisions held that the contempt petition filed before the Single judge is not maintainable since the order of the Single judge has merged with the order passed by the Division Bench in the writ appeal.

Adding to the above, Court also stated that if the petitioner feels that the order has been violated or disobeyed, a Contempt Petition can be maintained only before the Division Bench and not before the Single Judge.

Hence, the Contempt Petition was closed.[All India Union Bank Officer v. Brajeshwar Sharma, Contempt Petition No. 570 of 2020, decided on 31-08-2020]