Allahabad High Court
Dr. Archana Mishra And Others vs State Of U.P. And Others on 10 October, 2018
Equivalent citations: AIR 2018 ALLAHABAD 278, (2018) 10 ADJ 487 (ALL), (2018) 4 SCT 603, (2018) 4 ESC 2204, (2018) 6 ALL WC 6234, AIRONLINE 2018 ALL 4235
Author: Manoj Kumar Gupta
Bench: Dilip B. Bhosale, Manoj Kumar Gupta, Suneet Kumar, Yashwant Varma, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- WRIT - A No. - 51212 of 2010 Petitioner :- Dr. Archana Mishra And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel,P.S. Baghel,Sarita Gupta,Shekhar Chaudhary,Syed Mohd. Fazal Counsel for Respondent :- C. S. C.,Archit Mandhyan,Ashok Khare,B.D.Mandhyan,Pankaj Kushwaha,Pankaj Saxena, S.C.,S.G. Hasnain. A.A.G.,Saumya Mandhyan,Shailendra,Suresh Chandra Kushwaha,V.K. Chandel,V.K.Singh With Case :- WRIT - A No. - 10712 of 2010 Petitioner :- Dr. Vishwajeet Singh & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- Rajeev Misra Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 49209 of 2010 Petitioner :- Dr. Neel Ratan & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Smt. Arti Raje,Satyawan Srivastava,Vinay Khare Counsel for Respondent :- C.S.C.,H.N. Singh With Case :- WRIT - A No. - 50170 of 2010 Petitioner :- Dr. Rashmi Dubey And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C. S. C.,V. K. Chandel With Case :- WRIT - A No. - 58508 of 2010 Petitioner :- Udaiveer Singh Solanki And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel,K.M. Asthana, Counsel for Respondent :- C. S. C.,Durga Tiwari,Satish Mandhayan With Case :- WRIT - A No. - 59542 of 2010 Petitioner :- Dr. Shanti Prakash Srivastava Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C. S. C. With Case :- WRIT - A No. - 59989 of 2010 Petitioner :- Dr. (Smt) Yagyesh Gupta Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C. S. C. With Case :- WRIT - A No. - 62798 of 2010 Petitioner :- Dr. Anjali Mishra And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C. S. C. With Case :- WRIT - A No. -63575 of 2010 Petitioner :- Dr. Smt. Radha Mishra And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C. S. C.,Manoj Nigam,Shri. H. N. Singh With Case :- WRIT - A No. - 63599 of 2010 Petitioner :- Dr. Rajesh Kumar Respondent :- State Of U.P. And Others Counsel for Petitioner :- Smt. Arti Raje,Satyawan Srivastava Counsel for Respondent :- C. S. C.,H. N. Singh With Case :- WRIT - A No. - 761 of 2011 Petitioner :- Dr. Seema Rani Sharma Respondent :- State Of U.P. And Others Counsel for Petitioner :- Irshad Husain,Prashant Kumar Tripathi,Rajeev Misra,Sanjeev Singh Counsel for Respondent :- C. S. C. With Case :- WRIT - A No. - 10233 of 2017 Petitioner :- Avinash Chandra Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C.,Archana Singh Hon'ble Dilip B. Bhosale, Chief Justice Hon'ble Manoj Kumar Gupta, J.
Hon'ble Suneet Kumar, J.
Hon'ble Yashwant Varma, J.
Hon'ble Saumitra Dayal Singh, J.
(Per Dilip B Bhosale, CJ) Two learned Judges of this Court finding themselves unable to agree with the view taken by a Coordinate Bench in Dr. Vishwajeet Singh and ors. Vs. State of U.P. and ors1 as well as that expressed by a Full Bench of this Court in Heera Lal vs State Of U.P. & Others2 in Dr. Archana Misra and others Vs. State of U.P. and others [Writ-A No. 51212 of 2010] have formulated the following questions to be considered and decided by a Bench of more than three Judges:
1. Whether the rules of reservations under the U.P. Act No. 4 of 1994 are applicable to appointment on the post of lecturers, by direct recruitment, in the aided postgraduate and undergraduate colleges in the State of UP, affiliated to the State Universities by clubbing all the vacancies as provided under Section 12 (3) of the UP Higher Eduction Service Commission Act, 1980 subject-wise; or the vacancies have to be worked out for applicability of rules of reservation college-wise and subject-wise?
2. Whether there has to be plurality posts in the cadre, for applying the rules of reservation, which means more than one; or there has to be at least five posts in the cadre for applying the rules of reservations?
3. Whether the vacancies arising in any recruitment year under Rule 3 (2) of UP Act No. 4 of 1994 can be filled up separately even if they have not been advertised earlier, in that recruitment year or in the subsequent recruitment year, or such reserved vacancies have to be advertised at least once to be carried over for the recruitment in the same year or in the subsequent year?
4. What is the meaning of the words 'unfilled vacancies' in Section 3 (2) of UP Act No. 4 of 1994?
5. Whether Dr. Vishwajeet Singh's case (supra) and the Full Bench decision in Heera Lal's case (supra) have been correctly decided?"
Although it initially appears from the record that the matter was placed and also considered by a Full Bench comprising of three Hon'ble Judges, when this matter was taken up for hearing on 26 September 2018, we noticed that the Division Bench while referring the questions for consideration of a larger Bench, had specifically observed that the matter must be placed before a Bench of more than three learned Judges. The direction as framed by the Division Bench appears to have been guided by the fact that it had also disagreed with the judgment rendered in Heera Lal which was decided by a Full Bench comprising of three Hon'ble Judges of this Court. Accordingly the Full Bench was reconstituted by an order passed on the administrative side. This Bench has, upon reconstitution, heard learned counsels for parties at length on Question No. 5 as framed in the reference order. The deliberations were restricted to Question No. 5 since we found that the decision in Dr. Vishwajeet Singh had been subjected to challenge before the Supreme Court in Civil Appeal Nos. 6385-6386 of 2010. The said Civil Appeals came to be dismissed by the Supreme Court on 19 January 2017 in the following terms:
"We have heard learned counsel for the parties at length.
We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed.
The civil appeals are accordingly dismissed. No costs.
Pending applications, if any, shall also stand disposed of.
sd/-(ADARSH KUMAR GOEL) sd/- (UDAY UMESH LALIT)"
In view thereof, it is not in dispute that if it is ultimately held that the view/opinion expressed by the Division Bench in Dr. Vishwajeet Singh's stands confirmed and merged in the order of the Supreme Court, it would not be necessary for the reference to be addressed on merits.
The backdrop against which the reference has been made, briefly stated, is as under:
In Dr. Vishwajeet Singh a challenge was laid to an advertisement issued by the U.P. Higher Education Service Commission initiating a selection process for filling up 838 posts of Lecturers in different subjects in various Post Graduate/Graduate colleges in the State of U.P. The selection process was described to be a special recruitment to fill up carry forward and backlog vacancies of the reserved categories. All the posts advertised were shown to be reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The principal questions which fell for consideration in Dr. Vishwajeet Singh were as follows:
a. Whether the 467 vacancies which came into existence on account of retirement, resignation, and death up to 30 June 2003, could have been included and reserved for Scheduled Caste, Scheduled Tribes and Other Backward Categories along with the 371 carry forward vacancies?
b. Whether these 467 vacancies could have been reserved exclusively in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes without they having been earlier advertised or offered to General Category candidates?
c. Whether reservation is to be applied by consolidating all vacancies of Lecturers for different Degree Colleges/Post Graduate colleges?
d. What should be the unit for the purposes of applying the rules of reservation in respect of Lecturers? The last of these issues essentially arose in light of the dispute whether reservation was to be applied college wise or subject wise.
By a detailed judgment, the Division Bench firstly held that the 467 vacancies which had never been advertised earlier could not be clubbed with the 371 carry forward vacancies earmarked to be filled by candidates belonging to the reserved categories. It held that these vacancies were to be offered to both the reserved as well as the general category candidates. Proceeding further the Division Bench noticing the provisions of the U.P. State Universities Act, 1973, the U.P. Higher Education Services Commission Act 1980 [hereinafter referred to as "the 1980 Act"] and the U.P. Public Services (Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1994 [hereinafter referred to as "the 1994 Act"] held that the reservation and roster as per the 1994 Act had to be applied subject wise treating the college to be a 'unit'. Proceeding further to deal with the application of the roster and the provisions of reservation under Section 3 (1) of the 1994 Act, the Division Bench held that in a cadre of three or less number of posts, no reservation for any of the categories could be provisioned for. It further observed that in a cadre with a minimum of five posts, one post is to be reserved for Scheduled Castes and one post for the Other Backward Classes category subject to the roster point being meticulously followed.
Thereafter, a learned Single Judge however noticed that another Division Bench in Mahendra Kumar Gond Vs. District Inspector of Schools, Azamgarh and others3 appeared to have taken a view which was not in consonance with that expressed in Dr. Vishwajeet Singh as well as in Smt. Phoolpati Devi v. Smt. Asha Jaiswal and others4. The learned Judge noticed that reading the principles enunciated in Dr. Vishwajeet Singh and Smt. Phoolpati Devi, it is evident that for the purposes of applying the roster, the cadre must necessarily consist of more than five posts. It was observed that the inconsistent view expressed in Mahendra Kumar Gond had come to be entered without noticing the decisions rendered by the Division Benches in Dr. Vishwajeet Singh and Smt. Phoolpati Devi. The conflict was consequently referred for decision by a Full Bench of this Court. That reference was answered by the Full Bench in Heera Lal holding that the rule of reservation as prescribed under the 1994 Act cannot be implemented where the number of posts in a cadre is less than five. The Full Bench disapproved the judgment in Mahendra Kumar Gond and specifically approved and affirmed the view taken in Dr. Vishwajeet Singh.
Presently, in Dr. Archna Mishra, the Division Bench of the Court was considering a challenge to an advertisement issued by the Commission in 2008 for selection of Lecturers in Government aided Degree Colleges in the State of U.P. This advertisement sought to effect appointments against 337 posts reserved for Scheduled Castes and Scheduled Tribes. Since the issues raised in this petition were similar to those which were noticed in Dr. Vishwajeet Singh and Heera Lal, the Division Bench proceeded to evaluate the challenge to the advertisement on merits. During the course of consideration, however, the Division Bench came to conclude that Dr. Vishwajeet Singh appeared to have been decided without a careful examination of the scheme of the 1980 Act. According to the Division Bench the relevant statutes mandated consolidation of vacancies subject-wise and for their intimation to the Commission accordingly. It further took the view that since all teachers in aided postgraduate and undergraduate colleges come to be appointed by way of a common selection procedure and draw common pay scales, they constitute a single homogeneous cadre. It took the view that the decision in Dr. Vishwajeet Singh which had held that a college is to be treated as a 'unit' was incorrect. On the question of application of the rules of reservation and roster, the Division Bench also disagreed with the opinion expressed in Heera Lal to the extent that it had held that the rules of reservation could not be applied in a cadre which had less than five posts. It was in the above backdrop that the Division Bench by its order of 23 December 2010 referred the questions extracted herein above for consideration of a larger Bench.
To complete the narration of facts, we also note that the order of 23 December 2010 referring the questions formulated therein for consideration of a larger Bench was also challenged before the Supreme Court in Special Leave to Appeal (Civil) No. 4772 of 2011. Although initially the Supreme Court by an interim order had granted stay of the order dated 23 December 2010, the SLP itself was dismissed on 24 January 2017 in the following terms:
"Heard.
Learned counsel for the petitioners seek permission to withdraw the special leave petitions with liberty to take appropriate remedy before the High Court in the pending matters.
The special leave petition are dismissed as withdrawn with the liberty prayed for. The interim relief granted by this Court will continue for a period of four weeks from today.
Applications, if any, shall also stand disposed of."
We have already noticed that the Civil Appeals which was taken against Dr. Vishwajeet Singh had also been dismissed in terms extracted hereinabove.
The question which therefore, principally arises is whether this Full Bench can proceed further on merits and rule upon the correctness of Dr. Vishwajeet Singh even though the appeal preferred against it has come to be dismissed by the Supreme Court.
It is against this backdrop that Mr. Raghvendra Singh, learned Advocate General for the State of Uttar Pradesh, at the outset, invited our attention to the order of the Supreme Court dated 19.01.2017 in Civil Appeal Nos. 6385-6386 of 2010 (Rajeev Kumar etc. Vs. State of U.P. & Ors.) with Civil Appeal No. 67727 of 2010, and submitted that in view thereof, the reference need not be answered/addressed. From a bare perusal of the above order, it appears to us that the order confirms/affirms the view taken by the High Court in Dr. Vishwajeet Singh's case on merits.
In this view of the matter, we have heard learned counsel for the parties at considerable length on the question whether, in view of the order of the Supreme Court dated 19.01.2017 in Civil Appeal Nos. 6385-6386 of 2010, the questions framed in the reference order, can be answered/addressed on merits. In other words, whether, in view of the order of the Supreme Court dated 19.01.2017, this Court can still proceed to consider the questions framed in the reference order is the moot question.
Mr. Ashok Khare and Mr. Radha Kant Ojha, learned Senior Counsels, leading the arguments in favour of the contention that the reference ought to be addressed and answered on merits, contend that despite the order of the Supreme Court dated 19.01.2017, this Court can address and should answer the questions framed by the reference order, on merits. We have also heard some other Advocates who expressed the desire to address the Court in support of the arguments advanced by the learned senior counsels referred to above. We have also heard Mr. Raghvendra Singh, learned Advocate General for the State and Sri G.K. Singh learned senior counsel, both of whom contended that it was not open for this Full Bench to reconsider the correctness of Dr. Vishwajeet Singh in light of the order of the Supreme Court.
The learned Advocate General opposing the reference has submitted that the judgment in Dr. Vishwajeet Singh has been expressly affirmed by the Supreme Court while observing that it was in agreement with the view taken in the said judgment. Sri Singh drew our attention to the order of the Supreme Court dated 19 January 2017 in which it was clearly recorded that the judgment of the High Court was affirmed. According to Sri Singh going by the terms of the order dated 19 January 2017 it is manifest that the decision in Dr. Vishwajeet Singh stood merged with that of the Supreme Court. Relying upon the decision in Kunhayammed and others vs. State of Kerela and another5, Sri Singh contends that since there was a positive affirmation of the view taken in Dr. Vishwajeet Singh, the principles of merger would clearly stand attracted and therefore, it was not open for the Full Bench to either reconsider or revisit Dr. Vishwajeet Singh. Sri Singh also sought to underline the fact that the decision in Dr. Vishwajeet Singh was affirmed by the Supreme Court after grant of leave on the Special Leave Petition which had been preferred against it. Referring to the principles enunciated in Kunhayammed and the conclusions recorded therein Sri Singh submitted that once leave to appeal had been granted, the application of the principles and doctrine of merger would clearly apply and therefore there could be no escape from the conclusion that this Court would have no authority to reconsider the said decision.
Opposing these submissions Sri Khare and Sri R.K. Ojha learned Senior Counsels have submitted that the order of the Supreme Court dated 19 January 2017 is evidently non-speaking and cannot be construed as laying down the law. According to the learned Senior Counsels the order dated 19 January 2017 records no reasons and therefore cannot be viewed as a declaration of the law in light of Article 141 of the Constitution. Sri Khare in support of his submissions has placed reliance upon the decision of the Supreme Court in S. Shanmugavel Nadar Vs. State of Tamil Nadu6 to submit that the doctrine of merger only mandates the merger of the operative part of the judgment appealed against. Sri Khare would contend that even if this doctrine were to be applied, it would only mean that the superior forum has merely approved and affirmed the operative part of the order of the subordinate court. Viewed in this light, Sri Khare submits that the order of 19 January 1917 cannot be construed beyond it being an affirmation of the operative directions contained in Dr. Vishwajeet Singh. Sri Khare further contended that the order of the Supreme Court dated 19 January 2017 cannot be viewed as a precedent upholding or approving the legal position enunciated in Dr. Vishwajeet Singh. Sri Khare submits that it is only the declaration of the law by the Supreme Court within the meaning of Article 141 of the Constitution which would bind this Court. Sri Khare further submitted that a dismissal simpliciter is not a declaration of the law by the Supreme Court. Elaborating on this facet of his submission, Sri Khare reiterated the absence of detailed reasoning or discussion on the issues which arise in the order of the Supreme Court dated 19 January 2017 as being determinative of the issue.
Sri R.K. Ojha while reiterating the aforesaid submissions has additionally placed reliance upon a decision of the Full Bench of the Court in Paresh Yadav and others Vs. State of U.P. and others7 to contend that the doctrine of merger has no application to the facts of the present case. According to Sri Ojha this precept is neither of universal nor unlimited application. Reiterating the contentions noticed above with respect to the order of 19 January 2017 not constituting a binding precedent, Sri Ojha submitted that it is only from the enunciation of the law as may be evidenced from a decision of the Supreme Court that it can be held that the law has been declared. Sri Ojha, referring to the decision in Paresh Yadav, contended that even in that case the Full Bench had proceeded to consider the correctness of a decision rendered by a Division Bench in Prem Chandra Srivastava vs. State of U.P. and Others8 even though the Special Leave Petition taken against the said decision had been dismissed. Sri Ojha specifically drew our attention to paragraphs 32 and 33 of the decision of the Full Bench, which read thus:
" 32. These principles are clearly applicable here. The judgment of the Division Bench of this Court at Lucknow in Prem Chandra Srivastava was challenged before the Supreme Court by the State of U.P. which had filed a Special Leave Petition under Article 136 of the Constitution. The Supreme Court granted leave. The order of the Supreme Court dated 4 September 2013 indicates that the only aspect which was dealt with in the order was the costs of Rs. 2 lacs which had been imposed by the Division Bench of this Court. Finding the costs excessive, the quantum of costs was reduced to Rs. 10,000/- and subject to the reduction of the quantum of costs awarded, the appeal was dismissed. The order dated 4 September 2013 of the Supreme Court did not result in a merger of the order passed by this Court as regards the statement of law or the reasons indicated in the judgment of the Division Bench at Lucknow. On the contrary, the contents of the order of the Supreme Court dated 4 September 2013 clearly indicate that the merits of the order of the High Court, the reasons recorded therein and the law laid down were not the subject matter of the decision. As the Supreme Court has held in a consistent line of authority, the doctrine of merger is not a doctrine of rigid and universal application. The doctrine depends upon the nature of the jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid in a given case. What merges is the operative part, i.e. the mandate or decree issued by the superior court. However, in certain cases, the reasons for the decision may also be said to have merged in the order of the superior court, if the superior court, while formulating its judgment or order has adopted or reiterated the reasoning or recorded an express approval of the reasoning incorporated in the decision of the inferior forum. Considering the matter from this perspective, it is clear that the reasons which were indicated in the judgment of the Division Bench at Lucknow have not merged in the order of the Supreme Court for the simple reason that the order dated 4 September 2013 of the Supreme Court only dealt with the quantum of costs which were awarded by this Court. Considering the matter from a different perspective, it is also well settled that it is the speech, express or necessarily implied, which only is the declaration of law laid down under Article 141 of the Constitution.
33. For these reasons, we are of the view that the statement of the law which was contained in the judgment of the Division Bench in Prem Chandra Srivastava (as well as the earlier decision in Subhash Chandra Kushwaha) would be a binding precedent on subsequent Benches of a coordinate or lesser strength of the High Court but is open for reconsideration by a Full Bench of three Judges. This emerges as a clear position in law following the decisions of the Supreme Court including in Shanmugavel."
Ultimately in the submission of Sri Ojha, the principal question which would merit an answer would be whether the declaration of law as contained in Dr. Vishwajeet Singh can be said to have been affirmed or merged in the order of the Supreme Court dated 19 January 2017. According to Sri Ojha from a bare reading of the order dated 19 January 2017 it is more than evident that the Supreme Court did not affirm the law as declared by the Division Bench and therefore there is no impediment in this Bench proceeding further to consider the correctness or otherwise of the said decision.
At the outset, we would like to have a close look at the judgment of the Supreme Court in Kunhayammed, wherein the question involving the legal implications and the impact of an order rejecting a petition, seeking grant of special leave to appeal under Article 136 of the Constitution of India had arisen for decision. A Bench of three learned Judges of the Supreme Court, while dealing with this question, after adverting to several judgments referred to therein, in paragraphs 32, 41, 42 and 43, observed thus:
"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 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. 1067-68.)
43. 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 Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage."
The judgment in Kunhayammed (supra), was considered in a subsequent decision of a Bench of two learned Judges in S. Shanmugavel Nadar, on which Mr. Khare and Mr. Ojha, learned Senior Counsels, placed heavy reliance in support of their contentions. In that case, the constitutional validity of the Madras City Tenants Protection (Amendment) Act, 1994, which was brought into force on 11.01.1996, was put in issue by several writ petitions filed in the High Court. When the matter came up for hearing before the Division Bench, reliance on behalf of the respondents in the High Court was placed on another Division Bench judgment in M. Varadaraja Pillai Vs. Salem Municipal Council, [85 LW 760]. It appears that on an earlier point of time, the State Legislature had enacted the Madras City Tenants Protection (Amendment) Act, 1960 (Act 13 of 1960), whereby certain amendments were incorporated in the Madras City Tenants Protection Act, 1921. The constitutional validity of Act 13 of 1960 was upheld. In this backdrop the matters were filed before the Supreme Court against the Division Bench decision in M. Varadaraja Pillai (supra). The Supreme Court had dismissed the appeals preferred against the decision in M. Varadaraja Pillai by the following order dated 10.09.1986:
"The Constitutional validity of Act 13 of 1960 amending the Madras City Tenants Protection Act, 1921 is under challenge in these appeals. The State of Tamil Nadu was not made a party before the Trial Court. However, the State was impleaded as a supplemental respondent in appeal as per orders of the High Court. When the appellants lost the appeal, they sought leave to appeal to this Court. The State of Tamil Nadu was not made a party in the said leave petition. In the SLP before this Court also the State of Tamil Nadu was not made a party. A challenge to the constitutional validity of the Act cannot be considered or determined, in the absence of the State concerned. The learned counsel now prays for time to implead the State of Tamil Nadu. This appeal is of the year 1973. In our view it is neither necessary nor proper to allow this prayer at this distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals, but without any order as to costs."
It is clear from the aforesaid order that the Supreme Court did not go into the question of constitutional validity of Act No. 13 of 1960 nor did the Supreme Court apply its mind to the correctness or otherwise of the view taken by the High Court in M. Varadaraja Pillai's case. The Supreme Court simply dismissed the appeals as not properly constituted and, hence, declared those appeals to be incompetent in view of the State of Tamil Nadu, a necessary party, having not been impleaded in the special leave petitions and the appeals. Thus, it is clear that the appeals were disposed of without any adjudication on merits.
It is against this backdrop when the constitutional validity of Act 2 of 1996 came up for hearing before a Division Bench of the High Court, the decision in M. Varadaraja Pillai's case was cited as a precedent and reliance was placed on behalf of the respondents on the law laid down therein. The Division Bench entertained some doubt about the correctness of the view of the law taken by the earlier Division Bench in M. Varadaraja Pillai's case. However, consistent with the rules of judicial discipline, the Division Bench of the Madras High Court thought it fit to refer the matter to a Full Bench, assigning the reasons in support of the opinion formed by it. The Division Bench in the operative part of its order, concluded its opinion as under:
"The aforesaid decision in S.M. Transport case9 of the Supreme Court, was heavily relied upon by this Court in deciding Varadaraja Pillai case10. However, the aforesaid aspect of the case pointed out by the Supreme Court does not appear to have been taken note of. For all these reasons, we are of the view that the decision in Varadaraja Pillai case requires reconsideration. Therefore, we are of the opinion that it is just and appropriate to refer these cases to a larger Bench."
When the Full Bench took up the hearing of the case, the order of the Supreme Court dated 10.09.1986, referred to herein above, was brought to its notice. The Full Bench took the view that since the appeals against the Division Bench decision in M. Varadaraja Pillai's had been dismissed by the Supreme Court, though on a technical ground, nevertheless the same stood merged in the said decision and, therefore, it was no more open to the Full Bench to examine or consider the correctness of the law laid down in M. Varadaraja Pillai. The Full Bench principally held that the said decision of the High Court would be deemed to have been affirmed by the Supreme Court in view of the dismissal of the appeals preferred there-against.
Feeling aggrieved by the decision of the Full Bench, appeals were filed by special leave. The Supreme Court, while dealing with the question, in paragraphs 9, 10, 11, 12, 13 and 14, observed thus:
"9. Having heard the learned counsel for the parties, we are of the opinion that these appeals deserve to be allowed and the decision of the Full Bench dated 30-8-2000 deserves to be set aside as erroneous for reasons more than one as stated hereinafter.
10. Firstly, the doctrine of merger. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e. the mandate or decree issued by the Court which may have been expressed in a positive or negative forum. For example, take a case where the subordinate forum passes an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the one assigned by the subordinate forum, what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction. However, in certain cases, the reasons for decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum.
11. Secondly, the doctrine of merger has a limited application. In State of U.P. v. Mohd. Nooh11, the Constitution Bench by its majority speaking through S.R. Das. CJ so expressed itself.
"while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree" (AIR p.95, para 13).
A three-Judge Bench in State of Madras v. Madurai Mills Co. Ltd.12 Held: (AIR pp.683-84, para 6) "The 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 authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two order irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. 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. (emphasis supplied).
Recently a three-Judge Bench of this Court had an occasion to deal with doctrine of merger in Kunhayammed v. State of Kerala13 and this Court reiterated that the doctrine of merger is not of universal or unlimited application; the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid, shall have to be kept in view. (emphasis supplied) In this view of the law, it cannot be said that the decision of this Court dated 10-9-1986 had the effect of resulting in merger into the order of this Court as regard the statement of law or the reasons recorded by the Division Bench of the High Court in its impugned order. The contents of the order of this Court clearly reveal that neither the merits of the order of the High Court nor the reasons recorded therein nor the law laid down thereby were gone into nor could they have been gone into.
12. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai's case was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of Article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India14, this Court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. In State of U.P. v. Synthetics and Chemicals Ltd.15, R.M. Sahai, J. (vide para 41) dealt with the issue in the light of the rule of sub silentio. The question posed was: can the decision of an Appellate Court be treated as a binding decision of the Appellate Court on a conclusion of law which was neither raised nor preceded by any consideration or in other words can such conclusions be considered as declaration of law? His Lordship held that the rule of sub silentio is an exception to the rule of precedents. "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." A court is not bound by an earlier decision if it was rendered "without any argument, without reference to the crucial words of the rule and without any citation of the authority". A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. His Lordship quoted the observation from B. Shama Rao v. Union Territory of Pondicherry16 "it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein". His Lordship tendered an advice of wisdom - "restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law." (SCC p.163 para 41)
13. Rupe Diamonds v. Union of India17 is an authority for the proposition that apart altogether from the merits of the grounds for rejection, the mere rejection by a superior forum, resulting in refusal of exercise of its jurisdiction which was invoked, could not by itself be construed as the imprimatur of the superior forum on the correctness of the decisions sought to be appealed against. In Supreme Court Employees Welfare Association v. Union of India18 this Court observed that a summary dismissal, without laying down any law, is not a declaration of law envisaged by Article 141 of the Constitution. When reasons are given, the decision of the Supreme Court becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. When no reasons are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under Article 141 of the Constitution. In Indian Oil Corporation Ltd v. State of Bihar19 this Court observed that the questions which can be said to have been decided by this Court expressly, implicitly or even constructively, cannot be reopened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must nave been decided by this Court at least by implication.
14. It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution."
The doctrine of merger, as observed by the Supreme Court in Kunhayammed (supra), is not a principle either of universal or unlimited application. It will depend on the nature of the jurisdiction exercised by the superior forum and the content or subject matter of the challenge laid or capable of being laid which shall be determinative of the applicability of the doctrine. The Supreme Court, while observing that though the expression "merger" of a judgment or order or decision of a court or forum into the judgment, order or decision of a superior forum is often loosely employed, as a general rule, the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e. the mandate or decree issued by the court which may have been expressed in a positive or negative form. In support of this proposition, the Supreme Court also quoted an example, stating that where the subordinate forum passes an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the ones assigned by the subordinate forum, what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction.
Even in State of Madras v. Madurai Mills Co. Ltd, AIR 1965 SC 681, the Supreme Court held that the 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 authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or 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. 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.
However in Kunhayammed (supra) the Supreme Court also significantly observed that once leave is granted, the doctrine of merger would clearly be attracted irrespective of the order being one of reversal, modification or dismissal. It further observed that the issue of the order being speaking or non- speaking would make no difference. Grant of leave, it was held, indicates the merits of the order being subjected to judicial scrutiny by the Supreme Court. Similarly in S. Shanmugavel Nadar the Supreme Court held that in certain situations the reasons for a decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, "or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum".
It is these observations in Kunhayammed and S. Shanmugavel Nadar which are clearly determinative and settle the question which arises before us. The Supreme Court, while dismissing the appeal has clearly observed that it is in agreement with the view taken in Dr. Vishwajeet Singh and, accordingly, affirmed the same. There is thus a positive and unambiguous expression of approval of the said decision and, therefore it cannot be said that the order of the High Court did not merge into the order of the Supreme Court. Insofar as the case before us is concerned, it is clear from the order that the Supreme Court not only dismissed the Civil Appeals after granting leave but while doing so, clearly observed that it was in agreement with the view taken in the impugned judgment and, accordingly, affirmed the judgment of this Court. We are faced with an order of the Supreme Court which unambiguously records that it was in agreement with the view taken by the High Court and then proceeds to affirm the judgment. This in our considered opinion would clearly mean that the statement of the law as reflected in Dr. Vishwajeet Singh which was the subject matter of the appeal, stands confirmed by the Supreme Court. It is pertinent to bear in mind that the appeal was not dismissed on technical grounds as was the case in S. Shanmugavel Nadar. It cannot, in the facts of the case before us, be stated that the Supreme Court did not apply its mind to the facts of the case or the law pronounced by the High Court in Dr. Vishwajeet Singh's case, since it was clearly observed that they were in agreement with the view taken in the said decision and affirmed the same. Merely because independent or elaborate reasons are not recorded, does not mean that this Full Bench can reconsider Dr. Vishwajeet Singh.
While we have no hesitation in acknowledging the correctness of the conclusion reached by the Full Bench in Paresh Yadav, at the same time it is also imperative to appreciate the distinguishing features of the issue that fell for its consideration. This would be evident from the following facts. The judgment of the Division Bench in Prem Chandra Srivastava was challenged before the Supreme Court by the State of Uttar Pradesh which had filed a Special Leave Petition under Article 136 of the Constitution. The Supreme Court granted leave. The order of the Supreme Court dated 4 September 2013 clearly indicates that the only aspect which was dealt with was the costs of Rs. 2 lakhs which had been imposed by the Division Bench of this Court. Finding the costs to be excessive, the quantum of costs was reduced to Rs. 10,000/- and subject to reduction of the costs awarded, the appeal was dismissed. The order dated 4 September 2013, therefore, did not result in a merger of the order passed by this Court as regards the statement of the law or the reasons indicated by the Division Bench of this Court. On the contrary, the contents of the order of the Supreme Court dated 4 September 2013 clearly indicated that the merits of the order of the High Court; the reasons recorded therein and; the law declared were neither considered nor did it form subject matter of the decision. It is in the above factual backdrop that the observations of the Full Bench need to be appreciated.
Insofar as Article 141 of the Constitution of India is concerned, it speaks of declaration of law by the Supreme Court. For a declaration of law, there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India, (1990) 4 SCC 207, the Supreme Court held that the doctrine of precedents, that is Courts being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. Similarly, in State of U.P. and another. v. Synthetics and Chemicals Ltd. and another, (1991) 4 SCC 139, the issue was dealt with in the light of the rule of sub silentio. The question posed was: can the decision of an appellate court be treated as a binding decision of that court on a principle of law which was neither raised nor preceded by any consideration or, in other words, can such conclusion be considered as a declaration of law? The Supreme Court, while answering this question, observed that the rule of sub silentio is an exception to the rule of precedents. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, essentially means when a particular point of law involved in the decision is not perceived by the court or present in its mind. A court is not bound by an earlier decision, if it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. A decision which is not express and is not founded on reasons, nor which proceeds on consideration of issues, cannot be deemed to be a declaration of the law so as to have binding effect, as contemplated by Article 141. Further, the Supreme Court quoted the observations from B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480, that it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. The Supreme Court also sounded a note of caution by reminding Courts of exercising restraint in dissenting or overruling previous judgements bearing in mind the need for stability and uniformity in the law. But at the same time it also noted that rigidity beyond reasonable limits is inimical to the growth of law. Ultimately this decision bids us to weigh and evaluate these competing factors while comprehending and applying the ratio of a particular decision.
In the case before us, the issue essentially is not whether the order dated 19.01.2017 constitutes a precedent but whether the decision in Dr. Vishwajeet Singh stood merged in the said order. The consequential issue which resultantly springs up is whether if our answer on the question of merger be in the affirmative, whether it would be open for this Full Bench to reconsider or review the correctness of Dr. Vishwajeet Singh. We have already held that there clearly was a merger of the said decision in the order of the Supreme Court. The order of the Supreme Court came to be made after grant of leave. The Supreme Court in unequivocal terms agreed with the view taken by this Court in Dr. Vishwajeet Singh and affirmed the decision. In light of the unambiguous terms of the order dated 19.01.2017, we find ourselves unable to be persuaded to hold that there was no affirmation of the said decision. The mere fact that no elaborate reasons were recorded while dismissing the Civil Appeals also does not convince us to opine that this Court would have the authority to review the correctness of Dr. Vishwajeet Singh. The unambiguous "express approval" in the order of 19.01.2017 clearly forecloses all debate and quells all doubts on the question raised.
The present reference and whether this Full Bench should examine the correctness of Dr. Vishwajeet Singh can be examined from another angle also. If one were to pose the question whether the reference could have been made if the order of the Supreme Court dated 19.01.2017 had been in existence and placed before the Division Bench, the answer would clearly be in the negative. Once the decision in Dr. Vishwajeet Singh stood specifically approved/affirmed by the Supreme Court and consequently merged in the said order, the question of doubting its correctness or dissenting from the same would not arise.
Our unequivocal answer therefore to the issue framed would be that the decision in Dr. Vishwajeet Singh stood duly affirmed by the Supreme Court. The terms of the order dated 19.01.2017 clearly establish that the said decision and the view taken by the Division Bench therein was specifically approved. The said decision consequently merged in the order of the Supreme Court. The order of the Supreme Court came to be rendered after grant of leave. Once the decision of this Court stood merged in the order of the Supreme Court, it would not be legally permissible for this Full Bench to consider the correctness or otherwise of Dr. Vishwajeet Singh. This Court is bound by the said order of the Supreme Court irrespective of the absence of a "speech" or recordal of elaborate reasons on the legal issues which arose therein. The issue essentially is not one of the Court being faced with a precedent but primarily of merger. Once, as we have found, the decision of the Division Bench stood subsumed in the order of the Supreme Court after grant of leave with a positive affirmation of the view taken therein, it is no longer open for this Court to revisit the said decision.
On an overall consideration of the aforesaid facts, we hold that this Full Bench is clearly bound in law by the decision of the Supreme Court in Civil Appeal No. 6385-6386 of 2010, decided on 19.01.2017. Therefore, the occasion to rule on the reference on merits does not arise. The Reference is consequently turned down. The matters shall, in consequence, be placed before the appropriate Court for disposal of the writ petition and connected matters in accordance with law.
October 10, 2018 AHA (Dilip B Bhosale, CJ) (M K Gupta, J) (Suneet Kumar, J) (Yashwant Varma, J) (S D Singh, J)