Commander And Ors. vs Bhupendra Kardam & Ors.
2015 Latest Caselaw 4572 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Order reserved on May 22, 2015
                                       Order delivered on July 01, 2015

+                           WP (C) NO. 3381/2002

COMMANDER AND ORS.
                                                      ..... Petitioners
                                 Through:   Ms.Anjana Gosain, Adv.
                                            with Mr.Arnab Naskar,
                                            Advocate
                   versus

BHUPENDRA KARDAM & ORS
                                                        ..... Respondents
                                 Through:   Mr.Sachin Chauhan, Adv.
                                            for R-4 to R-6.
                                            Mr.Vinay Kr. Garg, Sr.
                                            Adv.       instructed      by
                                            Ms.Priyanka M. Bhardwaj,
                                            Ms.Noopur              Dubey,
                                            Mr.Neeraj Sharma, Advs.
                                            for applicants in CM
                                            No.6338/2015
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO

V.KAMESWAR RAO, J.

CM No. 6338/2015 in Review Petition No.554/2013

1. The present application has been filed by Mahesh Kumar,

respondent No.7, Ajay Pal respondent No.8, Suresh Kumar respondent

No.9, Radhey Shyam respondent No.10 and Mr. Ranjan Kumar,

respondent No.12 in the Writ Petition making a prayer for recall of order

dated October 31, 2013 in Review Petition No.554/2013, order dated

November 12, 2013 in WP (C) No.3381/2002 with a further prayer to

restore the order dated August 22, 2013. The Writ Petition was filed by

the Commander Works Engineer (AF, Palam, Delhi Cantt.) challenging

the order of the Central Administrative Tribunal (for short the

"Tribunal") whereby the Tribunal had set aside the selection of

respondent Nos.7 to 13 including the applicants as Mazdoors. The Writ

Petition was allowed by this Court on August 22, 2013 and the order of

the Tribunal was set aside.

2. A Review Petition No.554/2013 was filed by respondent Nos. 1 to

6. This Court vide order dated October 31, 2013 disposed of the Review

Petition, recalling order dated August 22, 2013 and restoring the Writ

Petition (C) No.3381/2002 for fresh hearing. After the hearing of the

Writ Petition (C) No.3381/2002, this Court on November 12, 2013 has

upheld the order of the Tribunal dated January 22, 2002 in Original

Application No.303/2000. It is noted, that against the order dated

November 12, 2013, the applicants herein, had filed a Special Leave

Petitions vide CC Nos.21677 of 2013, 38909/2013 and 39061/2013

before the Supreme Court. The petitions were dismissed by the Supreme

Court on January 2, 2014. During the hearing, a question was posed to

learned Senior Counsel for the applicants on the maintainability of this

application seeking prayers as referred to above.

3. The learned Senior Counsel for the petitioner would state, the

application in the present form is maintainable de-hors the fact, the

Supreme Court had dismissed the SLP filed by the petitioners herein.

According to him, the Supreme Court, dismissed the SLP's with an order

simplicitor without referring to the merits. After the dismissal of the

SLP, each of the applicants were issued show cause notice by the

petitioner/department as to why their services be not terminated.

According to him, the proposed action of the petitioners/department,

based on a finding of the Tribunal on the alleged illegalities pointed out

by the respondent Nos.1 to 6 i.e non-selectees in the Review Petition are

not correct. He has drawn our attention to para 14 of the application to

contend none of the applicants relatives were part of the Selection

Committee nor directly/indirectly concerned with the same. He also

pleaded, that the applicants are the only earning members in their family

and have a family to support and after termination of their services, the

applicants would not be able to get any other employment being over

aged.

4. In substance, it is his submission that the selection of the

applicants cannot be said to have been vitiated, as the facts which

weighed with the Tribunal and this Court while dismissing the Writ

Petition were not correct. He would rely upon the judgment of the

Supreme Court reported as 2000 (VI) SCC 359 Kunhayammed & Ors.

Vs. State of Kerala & Ors. in support of maintainability of the petition.

5. On the other hand, Mr.Sachin Chauhan, learned counsel

appearing for respondent Nos.4 to 6 would support the order of this

Court dated November 12, 2013, so also order of the Tribunal dated

January 22, 2002. Ms.Anjana Gosain, appearing for the petitioners, i.e

the department would state, that the department is only following the

mandate of the order of the Tribunal which has been upheld by this

Court and the Supreme Court.

6. Having heard learned counsel for both the parties, the first and

foremost question would arise, whether the present application is at all

maintainable. The reliance placed by Mr.Garg on the judgment of

Supreme Court in Kunhayammed & Ors. (supra) wherein according to

him dismissal at the stage of Special Leave by non speaking order, held,

does not constitute res-judicata and does not culminate in merger of the

impugned decision and would not by itself preclude the aggrieved party

from seeking relief in Writ jurisdiction or review jurisdiction of the High

Court.

7. On the issue of a petition for special leave to appeal being refused

whether merger applies or not, has to be determined with reference to the

nature of the order passed by the Supreme Court. In the case in hand, the

Supreme Court while dismissing the Special Leave Petitions on January

2, 2014 has passed the following order:-

"Petitioners in S.L.P (C) CC No.21677 of 2013 are permitted to file the special leave petition. We have heard learned senior counsel for the petitioners. No ground for interference is made out. The special leave petitions are dismissed."

8. This Court on a similar issue while considering Review Petition

against a common judgment and order dated August 10, 2010 in a batch

of 22 Writ Petitions has held as under:-

"8. On the issue of a Petition For Special Leave to Appeal being refused, whether merger applies or not has to be determined with reference to the nature of the order passed by the Supreme Court.

9. With reference to the past precedents being: (2005) 4 SCC 424 U.P.SRTC Vs. Omaditya Verma; (2002) 8 SCC 361

S.Shanmugavel Nadar Vs. State of T.N.; (2001) 5 SCC 37 K.Rajamouli Vs. A.V.K.N.Swamy; (2000) 6 SCC 359 Kanhayammed Vs. State of Kerala; (1998) 7 SCC 386 Abbai Maligai Partnership Firm Vs. K.Santhakumaran; (1996) 9 SCC 29 : 1996 SCC (LandS) 1181 State of Maniput Vs. Thingujam and in the latest decision reported as (2011) 4 SCC 602 Gangadhara Palo Vs. Revenue Divisional Officer and Anr., in para 7 it was observed as under:-

9. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed Vs. State of Kerala, S.Shanmugavel Nadar Vs. State of T.N., State of Manipur Vs. Thingujam Brojen Meetei and U.P.SRTC Vs. Omaditya Verma.?

10. The aforesaid passage brings out that jurisdiction of the Supreme Court under Article 136 of the Constitution of India being discretionary, there may be a variety of reasons, not necessarily on merits, on which petitions seeking Special Leave to Appeal are dismissed. Thus, such dismissals would not attract the principle of merger. But, where, even if there exists a single sentence, while dismissing the Petition For Special Leave to Appeal, and from the said sentence it can be deciphered as to what was the reason given by the Supreme Court, and if the reason was that the dismissal was on merits i.e. the Supreme Court found no ground to interfere with the decision of the High Court on merits, principle of merger would apply.

11. We have extracted hereinabove the order dismissing the

petitions seeking Special Leave to Appeal. The order clearly records that no ground was made out for interference by the Supreme Court. It is apparent that the dismissal of the petitions seeking Special Leave to Appeal is on merits."

9. As is seen from the order passed by the Supreme Court while

dismissing the Special Leave Petitions filed by the applicants herein, the

order clearly records that the Supreme Court has found no ground for

interference with the impugned order of this Court which is order dated

November 12, 2013. The Supreme Court has put a seal of approval on

the merits of the impugned order, and thus, we hold that the principle of

merger would apply.

10. Even otherwise, since we have heard the learned counsel for the

parties on the merits as well, we proceed to decide the issue raised by the

petitioners/applicants on merits. It is an admitted position that the

challenge in the Writ Petition was to the order of the Tribunal dated

January 22, 2002 whereby the Tribunal had set aside the appointments of

the respondent Nos.7 to 13 including the applicants herein. The same

was based on the pleadings of the parties including the department. The

Tribunal had criticized the process adopted for selection, in as much as,

according to the Tribunal against six out of twenty four candidates

ultimately selected, allegations have been made on their proximity to

those concerned in selection, in as much as, against respondent No.8, it

was stated that he was the son of the Member of the Presiding Officer of

the Selection Committee. Respondent No.9 is the one, who failed in

both the physical tests. Respondent No.10 is the son of the

Administrative Officer, who himself was the Member of the Selection

Committee. Respondent No.11 was closely known to respondent No. 4.

Respondents No.12 and 13 are the children of the staff attached to the

Presiding Officer and respondent No.14 is the son of the Member of the

Selection Committee.

11. We have seen the memo of parties attached to the original

application filed before the Tribunal. The respondent Nos.8 to 14 are the

respondent Nos.7 to 13 in the Writ Petition. The allegations noted by the

Tribunal, even though, with regard to respondent Nos. 8 to 14, the same

hold good for respondent Nos.7 to 13, some of the applicants herein.

The Tribunal was of the view that the aforesaid are not disputed facts.

Suffice to state, the conclusion of the Tribunal in the order dated January

22, 2002 is based on the pleadings before it. Surely any factual position

otherwise, as sought to be contended by the applicants in the present

application, cannot be taken into consideration, more so, in view of the

fact that the judgment of the Tribunal had attained finality till Supreme

Court. The attempt of the applicants is to re-open the issue on merit,

which in our view is impermissible. We, in our order dated November

12, 2013 has accepted the view taken by the Tribunal and now on the

basis of facts, so adverted, cannot take a view, other than the one, which

has already been taken, that too after the Supreme Court had dismissed

the SLP.

12. The application is dismissed on merit also.

(V.KAMESWAR RAO) JUDGE

(PRADEEP NANDRAJOG) JUDGE JULY 01, 2015/ak