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

Even though the doctrine of merger is not applicable to an order dismissing a special leave petition, if such an order states a principle of law, it will be binding on all courts and tribunals in the country, held the Supreme Court."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 Court stated.A bench comprising Justices L.Nageswara Rao and B.R.Gavai made the observation while holding 9 officers of the Tamil Nadu Government guilty of contempt of court for not implementing a direction to revise the seniority list of officers in the Public Works Department. 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 22nd 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 ...

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

Sneha Rao

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