Madras High Court
D. Baskaran vs Mr.Sylendra Babu on 11 April, 2022
Cont. P. No. 278 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MS.JUSTICE N.MALA
Contempt Petition No. 278 of 2022
D. Baskaran ..Petitioner
Vs.
Mr.Sylendra Babu, I.P.S.,
Director General of Police,
TNUSRB (Tamil Nadu Uniformed
Services Recruitment Board),
Chennai – 600 004. ..Respondent
Prayer. Petition under Section 11 of the Contempt of Courts Act, 1971
to punish the respondent for having disobeyed the order dated 27.07.2021
passed in W.A. No. 617 of 2021.
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Cont. P. No. 278 of 2022
For Petitioner :: Mr.K. Ravi Anantha Padmanabhan
For Respondent :: Mr. Kumaresan,
Addl. Advocate General
Mrs.Mythreyee Chandru
Special Govt. Pleader
ORDER
S. VAIDYANATHAN,J. AND N. MALA,J.
The present contempt petition is filed to punish the respondent for not
complying with the order of this Court dated 27.07.2021 passed in W.A.
No. 617 of 2021.
2. The respondent herein had filed a petition in C.M.P. No. 14698
of 2021 seeking extension of time to comply with the order passed by this
Court in W.A. No. 617 of 2021 and it is also submitted on behalf of the
respondent that an SLP has been filed challenging the order passed by this
Court in the writ appeal.
3. The said C.M.P. was disposed of today granting time till 15 th
June, 2022 to comply with the order of this Court and the order passed by
this Court is extracted hereunder:
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"2. We are of the view that the order of this Court
dated 27.07.2021 has got to be complied with without prejudice
to the rights of both parties. The seniority may also be fixed
without prejudice to the rights of the parties in the SLP and
depending upon the outcome in the SLP, the monetary benefits
that may be extended to the writ petitioner/respondent can be
recovered.
3. The order of this Court dated 27.07.2021 to be
complied with by 15th June, 2022."
4. In the judgment of the Hon'ble Apex Court in Kunhayammed
& Others -vs- State of Kerala & Another, (2000 (6) SCC 359), the
principle of Doctrine of Merger has been widely discussed. Relevant
portion of the said decision is usefully extracted hereunder:
“32. It may be that in spite of having granted
leave to appeal, the Court may dismiss the appeal on
such grounds as may have provided foundation for
refusing the grant at the earlier stage. But that will be a
dismissal of appeal. The decision of this Court would
result in superseding the decision under appeal
attracting doctrine of merger. But if the same reasons
had prevailed with this Court for refusing leave to
appeal, the order would not have been an appellate
order but only an order refusing to grant leave to appeal.
41. Once a special leave petition has been
granted, the doors for the exercise of appellate
jurisdiction of this Court have been let open. The order
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impugned before the Supreme Court becomes an order
appealed against. Any order passed thereafter would be
an appellate order and would attract the applicability of
doctrine of merger. It would not make a difference
whether the order is one of reversal or of modification
or of dismissal affirming the order appealed against. It
would also not make any difference if the order is a
speaking or non- speaking one. Whenever this Court
has felt inclined to apply its mind to the merits of the
order put in issue before it though it may be inclined to
affirm the same, it is customary with this Court to grant
leave to appeal and thereafter dismiss the appeal itself
(and not merely the petition for special leave) though at
times the orders granting leave to appeal and dismissing
the appeal are contained in the same order and at times
the orders are quite brief. Nevertheless, the order shows
the exercise of appellate jurisdiction and therein the
merits of the order impugned having been subjected to
judicial scrutiny of this Court.
42. To merge means to sink or disappear in
something else; to become absorbed or extinguished; to
be combined or be swallowed up. Merger in law is
defined as the absorption of a thing of lesser importance
by a greater, whereby the lesser ceases to exist, but the
greater is not increased; an absorption or swallowing up
so as to involve a loss of identity and individuality. (See
Corpus Juris Secundum, Vol. LVII, pp. 1067-1068) We
may look at the issue from another angle. The Supreme
Court cannot and does not reverse or modify the decree
or order appealed against while deciding a petition for
special leave to appeal. What is impugned before the
Supreme Court can be reversed or modified only after
granting leave to appeal and then assuming appellate
jurisdiction over it. If the order impugned before the
Supeme Court cannot be reversed or modified at the
SLP stage obviously that order cannot also be affirmed
at the SLP stage.
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44. To sum up, our conclusions are:
(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 law.
(ii) The jurisdiction conferred by Article 136 of
the Constitution is divisible into two stages. The first
stage is upto the disposal of prayer for special leave to
file an appeal. The second stage commences if and
when the leave to appeal is granted and the special
leave petition is converted into an appeal.
(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
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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 the 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.
(vii) On an appeal having been preferred or a
petition seeking leave to appeal having been converted
into an appeal before the Supreme Court the jurisdiction
of High Court to entertain a review petition is lost
thereafter as provided by sub-rule (1) of Rule 1 of Order
47 CPC.”
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4. In similar circumstances, the Apex Court in yet another
decision in the case of Dineshan, K.K. vs. R.K.Singh and another,
[(2014) 16 SCC 88], has held as under:
“9. We have carefully perused the decision of this
Court. A reading of the judgment would certainly indicate
that when the civil appeals and the special leave petitions
are dismissed with reasons, the orders passed by the courts
below would merge with the judgment and order passed
by this Court. The said decision has been followed by this
Court in a catena of subsequent judgments of this Court.
10. In view of what has been said by this Court in
the aforesaid decision, we cannot hold that the judgment
and order passed by the High Court has not merged with
the judgment and order passed by this Court when the
civil appeal filed by the petitioner complainant was
dismissed.
12. We requested Shri K.K. Venugopal and Dr
Rajeev Dhavan, learned Senior Counsel to assist us in the
matter. Their view on the second question is that
undoubtedly the order passed by this Court, while
accepting the judgment and order passed by the courts
below, would merge with the judgment and order passed
by the courts below. ...”
S. VAIDYANATHAN,J.
AND
N.MALA,J.
nv
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5. With reference to the three-Judge ruling in Kunhayammed
case, a two-Judge Bench in the above case of K.K.Dineshan, in exercise of
the powers under Articles 129, 136 and 142 of the Constitution of India, has
directed the complainant therein to approach the High Court. This Court is
of the view that, once the order passed in a Writ Petition gets merged with
the order of the Writ Appeal, the remedy available to the Petitioner is to file
a Contempt in the Writ Appeal and not in the Writ Petition, unless and until
the Apex Court specifically directs the High Court to decide the issue.
Thus, in view of the principle of Doctrine of Merger discussed above and
the order passed by this Court today in C.M.P. No.14698 of 2021, the
contempt petition is closed with liberty to the petitioner to move this Court
depending upon the outcome of the SLP.
(S.V.N.J.) (N.M.J.)
nv 11.04.2022
Cont.P. No. 278 of 2022
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