Kerala High Court
Sheena T.G vs Ezhupunna South Service Co-Operative ... on 13 August, 2021
Bench: C.T.Ravikumar, K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WA NO. 1016 OF 2020
AGAINST THE JUDGMENT DATED 21.7.2020 IN WP(C)11428/2020 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SHEENA T.G., AGED 38 YEARS
POOCHANATTU HOUSE, ERAMALLUR POST OFFICE,
CHERTHALA, ALAPPUZHA DISTRICT, PIN CODE-688 537.
BY ADV P.C.SASIDHARAN
RESPONDENTS/RESPONDENTS:
1 EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. NO.
1124, EZHUPUNNA SOUTH POST OFFICE, CHERTHALA,
ALAPPUZHA, DISTRICT,PIN CODE-688 535,REPRESENTED
BY ITS SECRETARY.
2 THE KERALA CO OPERATIVE SERVICE EXAMINATION BOARD,
THIRUVANANTHAPURAM,PIN CODE-695 001,REPRESENTED BY
ITS SECRETARY/DEPUTY REGISTRAR.
BY ADVS.SRI.K.P.CHANDRASEKHAR
SMT.S.L.SYLAJA
SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
SRI.T.A.SHAJI (SR.)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.1016 of 2020 2
"C.R"
JUDGMENT
Ravikumar, J.
This appeal raises several, seminal questions of law. They would be unrevealed by the facts stated infra. But, before making factual narration we think it only proper and profitable to have a prelude, referring to two decisions of the Hon'ble Apex Court and taking note of the nature of the issues for resolution. Whether a decision by a Division Bench of a High Court, despite being reversed by the Hon'ble Supreme Court, be available with precedential value on any point, as relates subsequent Benches of co-ordinate or lesser coram of the same High Court? Whether such a situation would arise at all when the judgment of a Division Bench of a High Court was set aside, without any reservation, by the Supreme Court? These and allied questions of law crop up for consideration in this appeal. In the decision of the Hon'ble Apex Court Suganthi Suresh Kumar v. Jagdeeshan (AIR 2002 SC 681) the Apex Court held that the law declared by the Supreme Court could not be by-passed by High Courts on the ground that some point had not been considered and any such eventuality would amount to overruling of the decision of the Supreme Court and W.A.No.1016 of 2020 3 hence absolutely impermissible. In Indian Oil Corporation Ltd. v. State of Bihar & Others (AIR 1986 SC 1780) the Apex Court observed that the questions, which could be said to have been decided by it expressly or implicitly, could not be reopened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto. Hence, according to us, any error in dealing with cases carrying such questions would violate not only the rules of precedence but also the provisions under Article 141 of the Constitution of India.
2. Now, we will succinctly state the facts of the case. In this intra-court appeal the appellant, who was the petitioner in W.P.(C) No.11428 of 2020, is challenging the judgment dated 21.07.2020 passed thereon. She responded to Ext.R1(a) notification dated 20.04.2017 issued by the Co-operative Examination Board for appointment against two vacancies in the post of Junior Clerks in the scale of pay of Rs.10,950 - 29,600,/- in Ezhupunna South Service Co- operative Bank Ltd.No.1124, the first respondent. On culmination of the process of selection the 1st respondent Bank published Ext.P1 ranked list. The appellant's name was included in the said ranked list at rank No.3, for appointment to the post of Junior Clerk. Admittedly, from the said ranked list brought into force on 23.6.2018, the notified vacancies W.A.No.1016 of 2020 4 were filled up. The appellant approached this Court by filing W.P.(C) No.11428 of 2020 seeking the following reliefs:-
"i. Issue a Writ of Mandamus or any appropriate Writ, direction or Order directing the 1st Respondent to appoint the petitioner in any of the available vacancies of junior clerk from the rank list prepared on the basis of Exhibit.P1 before expiry of the rank list on 22.06.2020.
ii. Declare that the 1st respondent is bound to fill up the existing vacancies of junior clerk arose during the currency of the rank list from that list.
iii. Declare that as per Appendix III as class one Bank it is entitled to have 10 clerks, so there are vacancies to be filled up from the rank list."
3. It is alleging illegality in the action in not appointing her against an available vacancy, rather the inaction in that regard, despite she being the next top ranked candidate in Ext.P1 list and the recognition of the statutory compulsion appointment under the law laid down by this Court in the decisions in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena [2010(1) KLT 541] and Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai and others [2018 (2) KHC 611 (DB)] that the appellant has filed the above mentioned writ petition. According to the appellant, upon achieving norms to attain Class I Special Grade, subsequent to the issuance of the notification concerned, the 1 st respondent Bank got re- W.A.No.1016 of 2020 5 classified as Class I Special Grade Society and as a necessary sequel further vacancies occurred in the category of Junior Clerk as well, under the new staff pattern, to be filled from the aforesaid list. In that view of the matter, the appellant submitted Ext.P2 representation dated 03.06.2020 to the Bank to provide her appointment against the third vacancy of Junior Clerk. The contention of the appellant is that in terms of clause (vii) of sub-rule (4) of Rule 182 of the Kerala Co-operative Societies Rules, 1969 (for short 'KCS Rules') the validity of a ranked list brought into force would be two years from the date of publication of the same by the Society and hence, Ext.P1 being a list published on 23.06.2018 got validity up to 22.06.2020. It is raising such factual and legal contentions that the writ petition was filed, seeking the afore- mentioned reliefs.
4. The 1st respondent Bank filed a counter affidavit resisting the above mentioned contentions as also the reliefs sought for by the appellant. It denied the existence of a third vacancy in the post of Junior Clerk. The contentions of the first respondent raised in the counter affidavit are that at the time of effecting appointment from Ext.P1 list Ext.R1(e) was the approved staff pattern in vogue, that as per the same 6 posts of Senior Clerks/Junior Clerks were in existence, that the ratio of 1:1 was made applicable to the sanctioned staff W.A.No.1016 of 2020 6 strength in the cadre of clerks and as against the three posts of Junior Clerks available three incumbents, including the two candidates appointed from Ext.P1 list are in office. After hearing the learned counsel on both sides, the learned Single Judge dismissed the writ petition relying on the decisions in Rakhi Ray and others v. High Court of Delhi and others [(2010) 2 SCC 637], Deepthy Vijayakumar v. Joint Registrar of Co-op. Societies, Thrissur and Others (2008 (4) KLT 321), State of Orissa and Another v. Rajkishore Nanda and others (AIR 2010 SC 2100), Chijitha v. Palakkad Primary Co-operative Agricultural and Rural Development Bank Ltd. and Others (2013 (3) KLT SN 78), Ibey Susan Issac v. Anicadu Service Co-operative Bank Ltd. (2013 (2) KHC 399) and Sreejith.A. & Ors. v. Mukkom Service Co-operative Bank Ltd. And Ors. (2018 (5) KHC 571), which sans discordance, followed the position that from a ranked list vacancies could not be filled up over and above the number of notified vacancies. Hence, this appeal.
5. Heard the learned counsel on both sides.
6. Rival contentions raised before the writ Court were reiterated before us. Additionally, the learned counsel for the appellant contended that the learned Single Judge ought to have followed the W.A.No.1016 of 2020 7 decisions of the Hon'ble Apex Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47] and ought to have found that it is not the universal rule that vacancies over and above the notified vacancies could not be filled up from a ranked list. In view of the nature of the contention taken up as above by the appellant it is only appropriate to refer to the statement of law by the Apex Court in Shankarsan Dash's case. In paragraph 7 of the decision it was held:-
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons".
But then, later decisions, including those referred to by the Writ Court, without deviating from the law laid down that inclusion in a ranked list will not confer any indefeasible right to be appointed, took strict view to stick on to the number of notified vacancies in the matter of filling up of vacancies from a ranked list prepared based on any particular notification. There is a long line of reaffirmations making the said exposition of law as a precedent, that has become so established in law W.A.No.1016 of 2020 8 and therefore, difficult to overturn except in circumstances where there is not only prescription of a specified life period for the ranked list but also provisions making filling up of vacancies occurring during the life period mandatory or enabling to do so. In respect of cases falling under the exception, certainly, a decision not to fill up such vacancies can be one taken only bona fidely for appropriate reasons. We will deal with it later, in case it is necessary to do so.
7. Obviously, the re-classification of the Bank subsequent to the notification which culminated in the publication of Ext.P1 and the consequential change in the staff pattern providing further vacancies in the post of Junior Clerk in the Bank are the factual situations that made the appellant to take up the afore-noted contentions relying on the decisions in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena (2010 (1) KLT 541) and Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai and others (2018 (2) KHC 611) and the provisions under clauses (vii) and (viii) of sub-rule(4) of Rule 182 of the KCS Rules as also the fact that the list was valid up to 22.6.2020. The contentions of the first respondent raised in resistance, as noticed earlier, are that at the time of effecting appointment from Ext.P1 list the Bank was functioning in Class I category, Ext.R1(e) was the approved staff pattern in vogue, providing 6 posts of Senior Clerks/Junior Clerks, W.A.No.1016 of 2020 9 the ratio of 1:1 was made applicable to the sanctioned staff strength in the cadre of clerks and as against the three posts of Junior Clerks three incumbents, including the two candidates appointed from Ext.P1 list are in office. Apart from canvassing the situation of 'no-vacancy' in the post of Junior Clerk it is stated specifically in the counter affidavit that the first respondent Bank is not in a position to make any further appointment in the near future in view the Covid-19 pandemic situation and the anticipated loss in the present financial year.
8. For a proper disposal of the appeal, it is only appropriate to refer to the provisions under sub-rule (4) of Rule 182 of the KCS Rules which prescribes the procedures for recruitment to societies covered by Section 80B of the KCS Act and it, in so far as relevant, for the purpose of this case, reads thus:-
"182. Classification under Section 80(1) -
(1) xxxxx xxxxx
xxxxx xxxxx
(4) In respect of recruitment to societies covered by Section 80B of the Act, the following procedure shall be followed:-
(i) The Society shall report the vacancy to the Co-operative Service Examination Board and the applications for appointment shall be invited by the Co-
operative Service Examination Board, by notification in two vernacular dailies, having wide circulation in the area. The notification shall include the details of number of vacancies, qualifications required for the post, age and reservation, if any, the mode of application, method of appointment and other required details. The Co-operative Service Examination Board W.A.No.1016 of 2020 10 may collect application fee along with the application at the rate fixed by the Registrar of Co-operative Societies from time to time. The Examination Board shall process the applications and prepare the list of candidates to be called for the written test. One copy of the prepared list shall be published in the notice Board to the Examination Board and one copy shall be sent to the society for publication in its notice board. The society shall publish it in the notice board and copies thereof in the branch offices of the society. The arrangements for the written test shall be made by the Examination Board.
(ii) The Examination Board shall conduct the written examination of the candidates and furnish a list of eligible candidates to be interviewed to the committee of the society within a period of three months from the date of requisition by the society. The list so furnished shall not contain the mark secured by the candidates;
xxxxx xxxxx xxxxx xxxxx xxxxx
(vii) On the basis of the consolidated list so received from the Examination Board, the committee shall prepare the rank list of candidates and publish the same in the notice board of the society within a period of twenty days from the date of receipt of such consolidated mark list. The society shall send one copy of the rank list so published to the Examination Board also. The Board shall examine the correctness of such rank list and report to the Registrar, the irregularities, if any. The list shall be valid for a period of two years from the date of publication of the same by the society.
(viii) All appointments to the vacancies shall be made by the committee from the select list so published, within one month from the date of such publication and shall be reported to the Examination Board."
9. It is true that going by clause (vii) of sub-rule (4) of Rule 182 a ranked list brought into force by a Co-operative Bank/Co- W.A.No.1016 of 2020 11 operative Society, pursuant to the examination conducted by the Co- operative Service Examination Board, would be valid for a period of two years from the date of publication of the same by that Society. However, the question is whether merely because of the said provision vacancies in excess of the notified vacancies occurring during the said period of two years could be filled from such a ranked list, here, from Ext.P1 ranked list? The appellant canvasses the position in the affirmative and to buttress the same she would contend that the decisions relied on in paragraph 6 of the impugned judgment including the one in Rakhi Ray and Others v. High Court of Delhi and others reported in [(2010) 2 SCC 637] are inapplicable to the factual position obtained in the case whereas the decisions of this Court Kodakara Farmers Service Co-operative Bank Ltd. v. Neena [2010(1) KLT 541] and Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai and others [2018 (2) KHC 611], holding that the Primary Co-operative Banks are bound to fill up all vacancies arising in the Bank during the subsistence of the ranked list concerned, are squarely applicable to them. Even while relying on the Division Bench decision of this Court in Kodakara Farmers Service Co- operative Bank Ltd. v. Neena [2010(1) KLT 541] the appellant would submit that the same was reversed by the Hon'ble Supreme W.A.No.1016 of 2020 12 Court in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena reported in [(2012) 13 SCC 302]. In the circumstances, for convenient sake, hereafter in this Judgment the Division Bench decision of this Court in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena [2010(1) KLT 541] is referred to as "Kodakara Farmers Case (DB)" and the decision of the Hon'ble Supreme Court in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena reported in [(2012) 13 SCC 302] is referred to as "Kodakara Farmers Case (SC)".
10. In the decision in Kodakara Farmers Case (DB) the Division Bench held that all the vacancies that arise during the validity period of a list prepared by Co-operative Service Examination Board have to be filled from the list concerned and the operation of such a list is not limited to the notified vacancies. A learned Single Judge of this Court in the decision in Smitha T. Pillai v. Joint Registrar (General), Co-Operative Societies and Ors. reported in MANU/KE/ 1686/2015 [the appeal from which culminated in the decision in Pannivizha Service Co-operative Bank Ltd. Case (supra)] considered the principles of merger and held that as the decision of the Division Bench in Kodakara Farmers Case (DB) was reversed by the Apex Court entirely on a different point and it did not rest on the W.A.No.1016 of 2020 13 interpretation placed on Rule 182(4)(viii) of the Rules the mere reversal of the said decision would not ipso facto follow that even in cases where the employer had not taken a conscious decision not to fill up the vacancies, which arise after the publication of the rank list and during its period of validity, such vacancies could not be filled up from the ranked list concerned. As relates the decision in Kodakara Farmers Case (DB) relying on the decision of the Apex Court in S. Shanmugavel Nadar v. State of T.N. and Others [(2002) 8 SCC
361) it was held therein:- " In the light of the above authoritative pronouncement of law in S. Shanmugavel Nadar (supra), I am of the considered opinion that the ratio of Neena (supra) remains undisturbed despite the reversal of the verdict in Kodakara Farmers Co-op. Bank Ltd. (supra). The necessary corollary to that conclusion is that the ratio of the learned Division Bench does, in the absence of anything contrary to it from the Apex Court, bind this Bench as a matter of stare decisis. I, therefore, hold that the rank list held currency till its expiry and the vacancy that arose while it was subsisting should be filled up with the candidates from the rank list alone." Virtually, the Division Bench in Pannivizha Service Co-operative Bank Ltd. Case (supra) upheld the said interpretation of the learned Single Judge of the decision of the Hon'ble Supreme Court in Kodakara Farmers Case (SC), based on W.A.No.1016 of 2020 14 the principles of merger and the consequential finding that despite the reversal of the decision of the Division Bench in Kodakara Farmers Case (DB) the law laid down therein that all the vacancies that arise during the validity of a list prepared by Co-operative Service Examination Board have to be filled up from the list concerned and the operation of such a list is not limited to the notified vacancies is available as a precedence and reiterated the said law. Accordingly, the Division Bench in Pannivizha Service Co-operative Bank Ltd. case (supra) held thus:-
"The purpose of the stipulation in Rule 182(4)(viii) that the vacancies shall be filled up within one month from the date of publication of the rank list is, in our opinion, to ensure that the society or bank concerned does not delay making appointments to the notified vacancies. It is to prevent such a contingency that it is stipulated in rule 182(4)(vii) of the Rules that the rank list shall be published within 20 days from the date of receipt of the consolidated mark list. Though in clause
(viii) of rule 182(4) it is stipulated that the vacancies shall be filled up within one month from the date of publication of the select list, that by itself is not in our opinion a reason to hold that thereafter the rank list ceases to be valid and therefore vacancies arising after the notification but before the rank list was published and vacancies which arise after the rank list is published and during its currency, need not be filled up. We are persuaded to take such a view for the reason that in clause (vii) it is stipulated that the list shall be valid for two years from the date of publication of the same by the society. As stated earlier, if the intention of the rule making authority had not been to apply the list to vacancies arising after the notification and during its period of validity, such a stipulation would not have W.A.No.1016 of 2020 15 been incorporated in the rules".
11. Thus, the position is that despite the reversal of, rather the setting aside of, the decision of the Division Bench in Kodakara Farmers Case (DB) by the Apex Court another Division Bench of this Court in Pannivizha Service Co-operative Bank Ltd. Case (supra), re-affirmed and reiterated the law laid down therein. Evidently,it was done after accepting the interpretation on the decision of the Hon'ble Supreme Court in Kodakara Farmers Case (SC) by the learned Single Judge in Smitha T. Pillai's case (supra).It is in the said circumstances that the appellant relies on the Division Bench decisions of this Court in Kodakara Farmers Case (DB) and in Pannivizha Service Co- operative Bank Ltd. case (supra) and that they are binding pecedents.
12. Obviously, one of the contentions of the appellant against the judgment of the learned Single Judge in W.P.(C)No.11428 of 2020 is that the decisions relied on to dismiss the same including the one in Rakhi Ray's case (supra) were not applicable to the case on hand. Further, it is the contention that in the light of the decisions of the Hon'ble Apex Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47] and in Ashakaul v. State of Jammu and Kashmir [(1993) 2 SCC 573] it is only in the absence of a provision W.A.No.1016 of 2020 16 in the recruitment rules that the authority concerned could be heard to say that it got no legal duty to fill up vacancies which arose during the currency of the ranked list concerned and need only to fill up the notified vacancies and therefore, the decision applicable to the case on hand is the decision of a Division Bench of this Court in Pannivizha Service Co-operative Bank Ltd. Case (supra) rendered after referring to Kodakara Farmers Case (DB). In short, the nub of the contentions is that the decisions in Kodakara Farmers Case (DB) and Pannivizha Service Co-operative Bank Ltd. case (supra) should have been taken as the binding precedents by the learned Single Judge for deciding W.P.(C)No.11428/2010 and since the learned Single Judge had failed to appreciate the legal position in the correct perspective the judgment passed thereon is liable to be set aside.
13. In the light of the rival contentions exercising the appellate jurisdiction under Section 5 of the High Court Act we are bound to consider the tenability of the aforesaid contentions raised against the impugned judgment. Certainly, we cannot and we will not consider the correctness of the decision in Pannivizha Service Co- operative Bank Ltd. case (supra) and consistent with the judicial discipline and decorum we can only refer the matter to a Larger Bench for reconsideration even in case of disagreement with the dictum laid W.A.No.1016 of 2020 17 down therein. But then, the contention that they are binding precedents on the subject requires consideration in the light of the decisions of the Apex Court in S.E.Graphites Private Limited v. State of Telangana and Others [(2020) 14 SCC 521] and in S. Shanmugavel Nadar v. State of T.N. and Others [(2002) 8 SCC
361). Taking note of the fact that virtually Pannivizha Service Co- operative Bank Ltd. case (supra) was rendered after referring to Kodakara Farmers Case (DB), which was set aside by the Hon'ble Apex Court in Kodakara Farmers Case (SC) the question is whether Pannivizha Service Co-operative Bank Ltd. case (supra) passed sub silentio. If it is found that the decision was arrived at sub silentio, then the same would not be available as a precedent to be followed. Certainly, in that regard, the first question is whether the learned Single Judge in Smitha T Pillai case (supra) has arrived at the decision of sub silentio as it is the interpretation of the learned Single Judge that was accepted and acted upon by the Division Bench. We may hasten to add such a consideration is required to appreciate the contention that those decisions are binding precedents on the subject involved. If the learned Single Judge in Smitha T Pillai case (supra) had failed to consider the binding effect of the decision of the Apex Court in Kadakara Farmers Case (SC) in terms of Article 141 of the Constitution of India and the W.A.No.1016 of 2020 18 Division Bench too, failed to consider the same in Pannivizha Service Co-operative Bank Ltd. case (supra) it will definitely denude the precedential value of the decision in Pannivizha Service Co- operative Bank Ltd. case (supra). We may hasten to add that if it is found that the aforesaid decisions did not pass sub silentio, certainly, in the light of the decision of the Division Bench in Pannivizha Service Co-operative Bank Ltd. case (supra) the matter has to be decided or else it has to be referred to a larger Bench in case of disagreement.
14. Another relevant aspect to be taken into account is that the learned Single judge in Smitha T. Pillai case (supra) held that the decision in Kodakara Farmers Case (SC) of the Hon'ble Apex Court passed sub silentio inasmuch as the correctness or otherwise of the interpretation of law in the decision of the Division Bench in Kodakara Farmers Case (DB) that all the vacancies that arise during the validity of a list prepared by Co-operative Service Examination Board have to be filled up from the list concerned published by the society and the operation of such a list is not limited to the notified vacancies in view of clause (vii) of sub-rule (4) of Rule 182 of the KCS Rules was not considered by the Apex Court and the decision of the Apex Court was based on an entirely different ground. A decision passes sub silentio when the particular point of law involved in the decision is not perceived W.A.No.1016 of 2020 19 by the court or present to its mind and its consequence is that the decision thus rendered would not be a precedent on that point of law. Therefore, the question is whether it can be said that while reversing the decision of the Division Bench in Kodakara Farmers Case (DB) as per the decision in Kodakara Farmers Case (SC) the interpretation of law in the decision of the Division Bench in Kodakara Farmers Case (DB) that all the vacancies that arise during the validity of a list prepared by Co-operative Service Examination Board have to be filled up from the list concerned published by the society and the operation of such a list is not limited to the notified vacancies in view of clause (vii) of sub-rule (4) of Rule 182 of the KCS Rules, was perceived by the Apex Court or present in its mind. For a proper understanding and analysis of the aforesaid position it is only worthy to refer to the decision of the Hon'ble Apex Court in S.E.Graphites Private Ltd. case (supra).
15. In S.E.Graphites Private Ltd. case (supra) the Apex Court was considering challenge against a judgment of Division Bench of the High Court of Andhra Pradesh dismissing certain writ petitions following the decision of a Co-ordinate Bench of the High Court in Ankamma Trading Co. v. Commr. [2011 44 VST (AP)] and other decisions taking the same view, despite the appellant pointing out to the High Court that the decision in Ankamma Trading Co. case W.A.No.1016 of 2020 20 (supra) was impliedly overruled by the Supreme Court in Innovative Systems v. State of A.P. [2020 (14) SCC 542]. In Innovative Systems' case (supra) the Apex Court after clearly noting that the High Court had relied upon its earlier Division Bench judgment in Ankamma Trading Co. case to dismiss the writ petition preferred by the appellant therein, allowed the appeals filed against judgments in the writ petitions rendered relying on Ankamma Trading Co. case and set aside them. Evidently, the respondent State contended that in the decision in Innovative Systems' case the Apex Court had neither referred to any specific provision nor expressly overturned the decision of the Division Bench of the High Court in Ankamma Trading Co. case. Paragraph 3 of the decision in S.E. Graphites Private Limited case (supra) assume relevance in the contextual situation and it in so far as relevant reads thus:-
"...............Inasmuch as , looking at the decision in Innovatives Systems of this Court, there is hardly any doubt that the effect of the said order is to impliedly overrule the principle enunciated by the Division Bench of the High Court in Ankamma Trading Co.or other decisions following the same. For, this Court had unmistakably shown inclination to apply its mind to the merits of the said order before it having granted leave to appeal against the same albeit it had disposed of the matter by a brief judgment. Thus, additionally, the doctrine of merger would come into play as exposited in Kunhayammed v. State of Kerala, wherein a three- Judge Bench of this Court opined that once a special leave petition has been granted, the doors of the W.A.No.1016 of 2020 21 appellate Jurisdiction have been let open and any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. Further it would not make a difference whether the order is one of reversal or of modification or of dismissal, or of affirming the order appealed against. It would also not make any difference if the order is a speaking or a non-speaking one."
(Emphasis added)
16. Rejecting such contentions raised by the State, as noted above, in paragraphs 10 & 11 of the decision in S.E. Graphites Private Limited case (supra)the Apex Court held thus:-
"10. Concededly, this Court was conscious of the decision in Ankamma Trading Co. In that, the judgment under challenge before it in the appeal concerned was founded on the view already taken by the coordinate Bench of the same High Court (including in Ankamma Trading Co.). It has been so recorded by this Court. In that case, the legal position expounded in Ankamma Trading Co. stood impliedly overruled, even though that decision has not been adverted to or expressly overruled by this Court.
11. "The argument of the Respondent proceeds that the decision in M/s. Innovatives Systems (supra), neither refers to any specific provision nor has it expressly over turned the decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission.
Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an W.A.No.1016 of 2020 22 appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the Respondent-State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent."
(Underline supplied)
17. Bearing in mind the aforesaid recitals from the decision in S.E. Graphites Private Limited case (supra) we will have to consider whether it could be said that the decision in Kodakara Farmers Case (SC) passed sub silentio. In the contextual situation it is also relevant to note that unlike the case in M/s. Innovatives Systems case (supra) referred to in S.E. Graphites Private Limited case (supra) where the decision of the Division Bench of the High Court in Ankamma Trading Company (supra) was not expressly over turned in Kodakara Farmers Case (SC) the Apex Court had set aside the Division Bench Decision of this Court in Kodakara Farmers Case (DB) and decided the appeal against it on merits by a brief judgment. That apart, in view of the observation made by the Apex Court while rejecting the argument of the respondent in S.E. Graphites Private Limited case (supra) that the decision in M/s. Innovatives Systems (supra), neither referred to any specific provision nor has it expressly over turned the decision of the Division Bench of the High Court in W.A.No.1016 of 2020 23 Ankamma Trading Company (supra) how can it be presumed by this Court that the Hon'ble Apex Court would not have applied its mind to the merits of the decision Kodakara Farmers Case (DB) as also the issues involved in it before granting leave to appeal against the same. It is also to be noted that the decision of the Apex Court in Kodakara Farmers Case ( SC) would reveal that it was rendered on merits by the Apex Court after granting leave and in exercise of its appellate jurisdiction under Article 136 of the Constitution of India.
18. In view of the aforesaid circumstances, it is only appropriate to refer to the decision of the Apex Court in Kodakara Farmers case (SC) whereby Kodakara Farmers case (DB) was set aside. It is to be noted that in the petition for leave to appeal against the judgment in Kodakara Farmers case (DB) of the Division Bench under Article 136 of the Constitution of India the Apex Court granted leave and numbered it as C.A.No. 3981/2012 and then allowed the appeal after setting aside the judgment, as hereunder:-
"2. The Government, therefore, set aside the direction of the Joint Registrar, Co- operative Societies for appointing the First Respondent as Junior Clerk in the Bank. Aggrieved by the order of the State Government the First Respondent approached the Kerala High Court and filed Writ Petition (C) No. 14072 of 2007. The learned Single Judge of the Kerala High Court vide judgment dated 25.6.2008 set aside the W.A.No.1016 of 2020 24 Government order and upheld the order of the Joint Registrar, Co-operative Societies. Aggrieved by the order of the Learned Single Judge, the Bank approached the Division Bench of the Kerala High Court by way of a Writ Appeal No. 1461 of 2008, which was dismissed on 25th January, 2010*. Aggrieved by the same this appeal was preferred. Heard learned Counsel on the either side. Facts clearly indicate that the Bank had published a rank list dated 11.11.2003, in which the First Respondent figured at Rank No. 6. Six vacancies were notified by the Bank and all those six vacancies were filled up (five vacancies for General Category and one for Scheduled Caste). Learned Counsel for the First Respondent fairly stated that no junior to her in the rank list was appointed in the Bank as Junior Clerk. Learned Counsel appearing for the Bank on the other hand stated that due to computerization there was no dearth of staff in the Bank and financial constraints also deter the Bank in making further appointments. The Government, in our opinion, has clearly held that a Corporate Bank cannot be compelled to fill up the posts even if posts are permanent. There is nothing to show that the Bank has acted arbitrarily in not filling up the posts. On the other hand, as per the select list, six candidates were already appointed. That being the factual and legal position, we are of the view that the High Court was not justified in upsetting the order passed by the Government. The appeal is, accordingly, allowed and the order of the learned Single Judge as well as of the Division Bench are set aside, with no order as to costs" .
Though briefly, the Apex Court rendered the decision in Kodakara Farmers case (SC) after granting leave to appeal against the decision of the Division Bench in Kodakara Farmers case (DB) and thereafter decided the appeal on merits after setting aside the judgment of the learned Single Judge as well as of the Division Bench, of this Court. In W.A.No.1016 of 2020 25 such circumstances, expression 'That being the factual and legal position' used by the Apex Court also assumes relevance. The immediately preceding sentence to that expression, in the decision also got significance in this context. It reads thus:-
"On the other hand, as per the select list, six candidates were already appointed."
It is also to be noted that this fact was taken note of after noting the fact only six vacancies were notified by the Bank. The decision in Kodakara Farmers case (SC) was then rendered in accordance with the law laid down in the decisions referred by the learned Single Judge in paragraph 6 of the judgment impugned in this appeal viz., the judgment in W.P.(C) No. 11428 of 2020 that from a ranked list vacancies could not be filled up over and above the number of notified vacancies. In the aforesaid circumstances, it could not hav been said that the decision of the Apex Court in Kodakara Farmers case (SC) passed sub silentio as it was rendered without reference to the provisions under clause (vii) of sub-rule(4) of Rule 182 of the KCS Act and the law laid down by the Division Bench of this Court in Kodakara Farmers case (DB). According to us, the point of law as to whether the decision in Kodakara Farmers case (SC) is a binding precedent was to be considered in the light of Article 141 of the Constitution of India before considering the same in the light of the doctrine of merger. W.A.No.1016 of 2020 26
19. In this regard, we are constrained to say that the learned Single while passing the judgment in Smitha T. Pillai's case (supra) had failed to take note of certain points of law. In other words, the decision in Smitha T. Pillai's case (supra) passed sub silentio on account of non-consideration of certain points of law including the one as to the binding effect of Kodakara Farmers Case (SC) under Article 141 of the Constitution of India and the conclusion that Kodakara Farmers Case (SC) passed sub silention is the outcome of non- consideration such points of law. Broadly speaking, the decision in Smitha T. Pillai's case of the learned Single Judge Points of Law passed sub silentio, mainly on the following points of law:-
1. What is the effect of setting aside of a judgment of a High Court by the Apex Court in exercise of its appellate jurisdiction under Article 136 of the Constitution of India ?
2. Whether Kodakara Farmers Case (SC) is a binding precedent by virtue of Article 141 of the Constitution of India ?
3. Before deciding point of law No.2, as above, the question whether Kodakara Farmers Case (SC) arrived at sub silentio could have been and should have been considered ?
20. It is evident from the judgment in Smitha T.Pillai's case (supra) of the learned Single Judge that to arrive at the W.A.No.1016 of 2020 27 conclusion that Kodakara Farmers Case (DB) still holds precedential value on the interpretation of clause (vii) of Sub-rule (4) of Rule 182 of the KCS Act it was held therein that the point of law laid down on that issue by the Division Bench was not at all considered by the Apex Court in the decision in Kodakara Farmers Case (SC) and further that the reversal of Kodakara Farmers Case (DB) by the Apex Court did not rest on the interpretation of the said provision and it was on an entirely different reason. In that regard the learned Single Judge in Smitha T. Pillai case (Supra) relied virtually, on the following explanation on the concept of sub silentio by Professor P.J.Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edition besides the decision in Shanmugavel Nadar's case (supra):-
"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. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court, In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio".
21. Even after, noting that Kodakara Farmers Case W.A.No.1016 of 2020 28 (DB) was set aside by the Apex Court as per the decision Kodakara Farmers Case (SC) learned Single Judge in Smitha T. Pillai's case (Supra) did not consider the question as to what exactly is the effect of 'setting aside' of a judgment of a High Court by the Apex Court, without any reservation and thereafter, whether the decision in Kodakara Farmers Case (DB) of the Division Bench would exist any further, in the light of the dicta laid down in Kunhayammed's case. We notice that in the appeal the Division Bench also did not consider the aforesaid points of law in Pannivizha Service Co-operative Bank Ltd. case (supra). Going by "Black's Law Dictionary'-Ninth Edition, the word 'set aside' means,- (Of a court) to annul or vacate ( a judgment, order,etc.). In the decision in Bileshwar Khan Udyog Khedut Shaha kari Mandali Ltd. v. Union of India reported in AIR 1999 SC 1198 the Apex Court held:-
"The ordinary meaning of the 'set aside' is to revoke or quash , the effect of which is to make the interim order inoperative or non-existent. In the present case when the High Court dismissed the writ petition the interim order passed therein became non-existent and in-operative. The effect of setting aside as order or automatic discharge consequent upon the dismissal of writ petition is the same. In fact the expression used in Section 2(b)(ii) means the interim order has come to an end and has become inoperative."
22. We are of the considered view that the declaration of W.A.No.1016 of 2020 29 law that the ordinary meaning of the expression 'set aside' is to revoke or quash and the effect of which will make an interim order inoperative or non-existent' would apply with equal force in case where a judgment of High Court was' set aside' by the Apex Court sans reservation. If that be so, how can a point of law that was decided could continue as a binding precedent when the very judgment wherein it was laid down itself became non-existent? Paragraph 16 of decision in Smitha T. Pillai's case (supra) would reveal that the learned Single Judge had framed the issues required to be determined in the writ petition only as hereunder:-
"i. Whether the respondent employer is obligated to appoint the petitioner to a vacancy that arose subsequent to the recruitment notification on the premise that the rank list has been subsisting ?
ii. Whether the doctrine of merger effaces the ratio of the judgment assailed once a judicial appellate forum renders a judgment either by affirming or reversing the decision?"
It is in the said circumstances that we held that the decision in Smitha T.Pillai's case passed sub silentio on the point of law in regard to the impact of setting aside of a judgment. No question answered by the High Court in any decision having precedential value could continue as a binding precedent in vacuum if the very judgment that carried the same is set aside by the Apex Court, without any reservation and W.A.No.1016 of 2020 30 thereby became non-existent.
23. In the light of the second issue framed in Smitha T.Pillai's case for consideration, as extracted above, and the decisions of the Apex Court in Kunhayammed's case, S.E. Graphites Private Limited case and Shanmughavel Nadar's case another point of law that passed sub silentio in the decision Smitha T.Pillai's case as also in Pannivizha Service Co-operative Bank Ltd. case (supra), also requires consideration. The said point of law arises from the fact that in Smitha T.Pillai's case the second issue framed therein for consideration by the learned Single viz., "Whether the doctrine of merger effaces the ratio of the judgment assailed once a judicial appellate forum renders a judgment either by affirming or reversing the decision", was considered by the learned Single Judge by looking into the question whether the decision of the Apex Court in Kodakara Farmers Case (DB), is a precedent by applying the doctrine of merger and not by examining the issue in the light of Article 141 of the Constitution of India. It is to be noted that this had occurred even after referring to the decision in Shanmughavel Nadar's case (supra). Time and again the Hon'ble Apex Court held that the applicability of its decision as a precedent for a particular case, when cited before the High Courts, has to be tested with reference to the factual position W.A.No.1016 of 2020 31 involved in the case on hand. In Shanmughavel Nadar's case it is noted by the Hon'ble Apex Court that before the Full Bench of the Madras High Court the correctness of the decision of the Division Bench in Varadaraja Pillai case was posed for consideration based on the reference made by a Division Bench when the same was cited before it as a precedent and not as res judicata. The Full Bench, when the order of the Supreme Court dated 10.9.1986 dismissing appeals arising from the decision of the Division Bench in Varadaraja Pillai case, was brought to notice formed the opinion that in view of the appeals against the Division Bench having been dismissed by the Supreme Court, though on technical ground, the Division Bench decision in Varadaraja Pillai case stood merged in the decision of the Supreme Court according to the doctrine of merger. Taking note of such situations the Apex Court observed in paragraph 12 of the decision in Shanmughavel Nadar's case thus:-
" Thirdly, as we have already indicated, in the present round of litigation, the decision in Varadaraja Pillai 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".
(Emphasis added)
24. A succinct narration of the facts involved in Shanmughavel Nadar's case and a reference to the law laid down W.A.No.1016 of 2020 32 therein require in this context. That decision emerged for consideration in the following circumstances:-
Several writ petitions were filed before the Madras High Court challenging the constitutional validity of Madras City Tenants Protection (Amendment) Act 1994 (Tamil Nadu Act 2 of 1996) bringing in certain amendments to the Madras City Tenants Protection Act, 1921. When the matter came up for hearing before a Division Bench an earlier Division Bench decision dated 25.1.1972 of the same High Court, reported as M.Varadaraja Pillai v. Salem Municipal Council (1972 (85) Mad. LW 760), rendered in writ petitions challenging the constitutional validity of an earlier Amendment Act viz., Madras City Tenants Protection (Amendment) Act,1960 (Act 13 of 1960), that brought certain amendments to the Madras City Tenants Protection Act, 1921, was relied on by the respondents therein. As per the said decision its constitutional validity was upheld.Though appeals by Special Leave were filed against the said decision of the Division Bench in M.Varadaraja Pillai's case they were dismissed by the Apex Court as per order dated 10.9.1986, on the following lines:-
"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 supplemental W.A.No.1016 of 2020 33 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 S.L.P. 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 concerned State. 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 distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals, but without any order as to costs."
It is in the said circumstances that the decision of the Division Bench of the High Court of Madras in M.Varadaraja Pillai case (supra) was cited as a precedent on the ground that the same was confirmed by the Apex Court as per order dated 10.9.1986. The Division Bench which was considering the writ petitions carrying challenge against the constitutional validity of Madras City Tenants Protection (Amendment) Act 1994 (Tamil Nadu Act 2 of 1996), however, doubted the correctness of the view taken in M.Varadaraj Pillai case (supra). Consequently, the Division Bench referred the matter to a larger Bench for reconsidering the decision in M.Varadaraj Pillai case (supra). When the Full Bench of the High Court of Madras took up the matter for hearing the order dated 10.9.1986 of the Apex Court was brought to its notice. The Full Bench formed the opinion that in view of the dismissal W.A.No.1016 of 2020 34 of the appeals filed against the decision of the Division Bench in M.Varadaraja Pillai's case (supra), though on technical ground, the decision of the Division Bench in M.Varadaraja Pillai's case merged in the order dated 10.9.1986 of the Apex Court according to the doctrine of merger and therefore, the correctness of the said decision of the Division Bench in M.Varadaraja Pillai's case was no more open for the Full Bench for examination and consideration deeming it to have been affirmed by the Supreme Court.Taking note of the said factual position and also the legal position relating the doctrine of merger the Apex Court held in Shanmughavel Nadar's case thus:-
"16. In the present case, the order dated 10-9- 1986 passed by this Court can be said to be a declaration of law limited only to two points - (I) that in a petition putting in issue the constitutional validity of any State legislation the State is a necessary party and in its absence the issue cannot be gone into, and
(ii) that a belated prayer for impleading a necessary party may be declined by this Court exercising its jurisdiction under Article 136 of the Constitution if the granting of the prayer is considered by the Court neither necessary nor proper to allow at the given distance of time. By no stretch of imagination can it be said that the reasoning or view of the law contained in the decision of the Division Bench of the High Court in M.Varadaraja Pillai case had stood merged in the order of this Court dated 10-9-1986 in such sense as to amount to declaration of law under Article 141 by this Court or that the order of this Court had affirmed the statement of law contained in the decision of the High Court.W.A.No.1016 of 2020 35
25. We are clearly of the opinion that in spite of the dismissal of the appeals on 10-9-1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10-9- 1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M.Varadaraja Pillai case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent Benches of coordinate or lesser strength but open to reconsideration by any Bench of the same High Court with a coram of Judges more than two."
26. We are of the considered view that it is the point of law that when a decision of a Division Bench is cited as a precedent before the High Court concerned despite it being appealed before the Supreme Court and thereon an order was passed by the Supreme Court its value as a precedent is not to be examined straightaway by applying the doctrine of merger instead it ought to have be examined in the light of Article 141 of the Constitution that speaks of declaration of law by W.A.No.1016 of 2020 36 Supreme Court. If it was so considered the impact and effect 'setting aside' of the Division Bench decision without any reservation would not have escaped attention. In Shanmughavel Nadar's case despite the order dated 10.9.1986 of the Supreme Court in the appeals filed against the Division Bench decision in M.Varadaraja Pillai's case the Division Bench decision continued to have existence as the appeals were dismissed. In the case on hand, in the appeal filed against the decision of the Division Bench in Kodakara Farmers Case (DB) the Apex Court set aside the said Division Bench decision and also the decision of the Single Bench and allowed the appeal, without any reservation. Thus, the decision in Kodakara Farmers Case (DB) became non-existent by virtue of being set aside. This crucial difference was not present in the mind of the court and consequently,the point of law on the same also passed sub silentio.
27. Eventhough the decision of the the Apex Court in Kunhayammed's case was referred to in Smitha T.Pillai's case and based on which the question the doctrine of merger was considered, obviously the writ court had not considered at all the most important point of law laid down therein viz., the exposition of law with respect to the effect of grant of leave and the passing of an order thereafter in exercise of the appellate power by the Apex Court under Article 136 of W.A.No.1016 of 2020 37 the Constitution of India. This crucial point of law had also passed sub silentio in Smitha T.Pillai's case and also in the Division Bench decision in Pannivizha Service Co-operative Bank Ltd. case (supra). True that in Smitha T.Pillai's case the logic behind the doctrine of merger that there cannot be more than one decree or operative order governing the same subject matter at any given point of time was duly taken note of after referring to paragraph 42 in Kunhayammed's case, In paragraph 42 therein the Apex Court held thus:-
"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.)"
28. In paragraph 44 of the decision in Kunhayammed's case the Apex Court summed up its conclusions thus:-
"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 W.A.No.1016 of 2020 38 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 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 W.A.No.1016 of 2020 39 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 Code of Civil Procedure.
29. Later, another three judge Bench of the Apex Court affirmed the decision in Kunhayammed's case (supra) in Khodey Distilleries Ltd. and Ors.v. Sri.Mahedeshwara Sahakara Sakkare Karkhane Ltd. (2019) 13 SCC 302. In paragraphs 25 and 27 therein the Apex Court held thus:-
"25. Having noted the aforesaid two judgments and particularly the fact that the earlier judgment in the case of Abbai Maligai Partnership Firm is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the W.A.No.1016 of 2020 40 Appellant.
27. From a cumulative reading of the various judgments, we sum up the legal position as under:
(a) The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.
(b) We reiterate the conclusions relevant for these cases as under:
"(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 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.W.A.No.1016 of 2020 41
(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 Code of Civil Procedure.
(c) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case.
(underline supplied)
30. Thus, in Khodey Distilleries Ltd. case (supra), after taking into account the cumulative reading of the various judgments, the Apex Court summed up the legal position and as per the same the conclusions rendered by the three Judge Bench of the Apex Court in Kunhayammed's case (supra) and summed up in paragraph 44 are affirmed and reiterated. In such circumstances, when once leave to appeal was 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. This point of law with reference to the factual position obtained in Kodakara Farmers Case (DB) by virtue of the decision of the Apex Court in Kodakara Farmers Case (SC) has also passed sub silentio in the decision in Smitha T. Pillai's case (supra). In other words, the question as to the impact and effect of granting leave to W.A.No.1016 of 2020 42 appeal and exercise of appellate jurisdiction by the Supreme Court under Article 136 of the Constitution in Kodakara Farmers Case (SC) on Kodakara Farmers Case (DB) was not considered in Smitha T. Pillai's case. Though the learned Single Judge referred to the judgment of the Apex Court in Kodakara Farmers Case (SC) conspicuously, this particular point of law involved in the decision was not perceived by the Court or present in the mind. The decision of the Division Bench in Pannivizha Service Co-operative Bank Ltd. case (supra) also passed sub silentio on this point of law. In the case on hand, it is an indisputable fact that as per the decision of the Apex Court in Kodakara Farmers Case (SC) the Division Bench decision of this Court in Kodakara Farmers Case (DB) and also the decision of the learned Single Judge which was confirmed thereunder, were set side.
31. We find that the Division Bench in Pannivizha Service Co-operative Bank Ltd. case (supra) did not consider whether Smitha T.Pillai's case passed sub silentio while making interpretation on the availability of Kodakara Farmers case (DB) as a binding precedent despite the judgment of the Hon'ble Apex Court in Kodakara Farmers Service case (SC). It is in the said circumstances that in view of the nature of the challenge made against the judgment of the learned Single Judge in W.P.(C)No.11428/2020 in this appeal that we W.A.No.1016 of 2020 43 have undertaken a consideration as aforesaid.
32. Now, the impact of the decision in Kunhayammed's case (supra) on the decision of Kodakara Farmers case (DB) in the light of the decision of the Apex Court in Kodakara Farmers case (SC) based on the principles of merger has to be looked into. We have already referred to the decision of the Apex Court in Kodakara Farmers case (SC). Kodakara Farmers case (SC), though a brief one, was passed after taking note of the fact that only six vacancies were notified and all of them were filled up from the list. It is thereafter that the Apex held therein thus: " That being the factual and legal position, we are of the view that the High Court was not justified in upsetting the order of the Government". In such circumstances, the decision in Kodakara Farmers case (SC) can be taken only as one reiterating the exposition of law that from a ranked list vacancies could not be filled up over and above the number of notified vacancies. In view of cumulative effect of the decisions referred (supra) on the aforesaid indisputable factual position that Kodakara Farmers case (DB) is not now, in existence, it merged with Kodakara Farmers case (SC) it can only be held that the decision in Kodakra Farmers case (DB)(supra) is not available to be relied on and on account of its setting aside by the Apex Court. In view of the fact that the decision of W.A.No.1016 of 2020 44 the Division Bench in Pannivizha Service Co-operative Bank Ltd.Case (supra) passed sub silentio on the aforesaid points of law it also cannot be followed as a binding precedent. The decisions relied on by the learned Single Judge, referred to hereinbefore, would undoubtedly reveal the position consistently followed by the Apex Court that a ranked list published for appointment after conducting a due selection process could be operated only for filling the notified vacancies.
33. In the decision in Raj Kishore Nanda's case (supra) the Apex Court further held that recruitment of candidates in excess of the notified vacancies would amount to denial and deprivation of the constitutional right under Articles 14 and 16 (1) of the Constitution of India. In Mukul Saikia v. State of Asam [2009 (1) SCC 386], the question was whether over and above the notified vacancies of 27 appointments could be effected. In unambiguous terms the Apex Court held 'if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised.' The said decisions and the decisions referred to by the learned Single Judge would thus reveal the that well-nigh settled position is that from a ranked list vacancies could not be filled up over and above the number of vacancies advertised. The question is whether there is any W.A.No.1016 of 2020 45 exception to this position. We are of the considered view that there can be an exception to this position in cases where the statute concerned provides a specified period of life to a ranked list and further carries an enabling provision or a provision mandating, for filling up of vacancies occurring during the life period of the list. We say so, because even after laying law as mentioned above, the fact is that the Hon'ble Apex Court gave stamp of approval for the actions in filling up of vacancies over and above notified vacancies from ranked lists published by the Kerala Public Service Commission in different departments. This is because the relevant provisions under the Kerala Public Service Commission Rules of Procedure(for short 'Rules of Procedure') carries specific provisions for filling up vacancies occurring during the life period of a list drawn by the PSC and reported to it before its expiry. In that regard, it is relevant to refer to Rules 13 and 14 of the said Rules of Procedure. After dealing with the period for which a list published by the PSC should be kept alive in the previous provisions in Rule 14 thereof it is stated thus:-
"14. The Commission shall advice candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked list are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable:"
(Underline supplied) W.A.No.1016 of 2020 46
34. In the decision in Sebastian P.Joseph v. KSRTC reported in 1998(2) KLT 854 a learned Single Judge, following the Full Bench decision in Vimala Kumari v State (1994(2) KL47(FB) held that according to Rule 14 of the Rules of Procedure the Commission shall advise candidates for all the vacancies reported and pending before them for the period during which the ranked list was kept alive in the order of seniority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable. Further more it was held therein:-
"What is the period of life of a ranked list has been prescribed in R.13. Therefore, it only on a combined reading of Rr.13 and 14 it could be held that the Commission can advise candidates for all the vacancies reported during the currency of the list. "
(Underline supplied)
35. We are fortified in our view by the decision of the Hon'ble Apex Court in Shankarsan Dash's case (supra), the very decision relied on by the appellant. Paragraph 7 of the decision the Hon'ble Apex Court ,which is relevant in the contextual situation, has already been extracted in thus judgment. The afore-quoted recital from Shankarsan Dash's case (supra) is relied on by the appellant also, to canvass the position that it is not the universal rule that the vacancies over and above the notified vacancies could not be filled up from a W.A.No.1016 of 2020 47 ranked list when a life span for the list is prescribed. We have already referred to the circumstances which could brook an infraction from the aforesaid position of law. It is to be noted that the clause "Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies" actually followed the following sentence:-
"Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post".
(emphasis added) Hence, the appellant cannot rely on the same to contend that she is entitled to get a posting against a vacancy not notified. As held in Sebastian P.Joseph's case (supra) if there is a provision in the relevant rule requiring to keep alive a ranked list for a specified period and a further provision mandating for filling up of all vacancies occurring during the said life period the combined effect of those provisions would make it an obligation coupled with a duty to fill up all such vacancies from the list concerned. It can also be done if there is a provision in the relevant rule requiring to keep alive a ranked list for a specified period and a further provision enabling filling up of all vacancies occurring during the said life period. Despite our careful scrutiny of the provisions under the KCS Act and KCS Rules, we could W.A.No.1016 of 2020 48 not find any such enabling provision or provision mandating, for appointment of all vacancies occurring during the period mentioned in clause (vii) of sub-rule (4) of Rule 182 viz., a period of two years from the date of publication of the same by the Society concerned, over and above the notified vacancies. Earlier, while dealing with the provisions under Rule 182 of the KCS Rules this Court in Deepthy Vijayakumar v. Joint Registrar reported in 2008(4) KLT 321 and in Chijitha v. Palakkad Primary Co-operative Agricultural & Rural Development Bank Ltd. [2013(3) KLT SN 77 C.No.78] held that it is impermissible to effect appointment in excess of vacancies advertised.
36. We have already held that merely because a period two years from the date of publication of a ranked list by the society is specified in clause (vii) of sub-rule (4) of Rule 182 of the KCS Rules as the life period of that list, in the absence of an enabling provision or a mandatory provision, for appointment of all the vacancies occurring in that Society in the post concerned during the life period the list, there can be no question of filling up of vacancies over and above the notified vacancies. Clause (viii) of sub-rule (4) of Rule 182 of the KCS Rules cannot be taken as such a provision though it provides that all appointments to the vacancies shall be made by the Committee from W.A.No.1016 of 2020 49 the select list so published within one month from the date of such publication and shall be reported to the examination board. In W.A. No.2402 of 2019 which was disposed of by a Division Bench, in which one among us (C.T. Ravikumar, J.) was a party, the question as to how the words "All appointments to the vacancies" appearing in Rule 182(4)
(iii) [sic. Rule 182(4)(viii)] should be read, was considered. How can the said provision be taken as a mandate for filling up all vacancies that may occur during the period of two years since the publication of the list within one month from the date of publication of the list. In the light of the law laid down by the Supreme Court, if the recruitment notification indicates the number of vacancies to be filled up and it does not indicate that all vacancies subsequently arising subsequently would also be filled up by appointing candidates from the list to be prepared, the words "All appointments to the vacancies" appearing in Rule 182(4)
(iii) should be read only as "All appointments to the notified vacancies", it was held therein. That was a case where Meenachil East Urban Co- operative Bank, which is a society covered by Section 80B of the KCS Act, sought to fill up 10 vacancies in the General Category and one vacancy in the Scheduled Caste category in the post of Junior Clerk/Cashierand in that regard a notification was caused to be issued by the Co-operative Service Examination Board. After the examination W.A.No.1016 of 2020 50 a ranked list containing names of 84 candidates was published. The appellants therein were ranked at serial Nos.13, 15 and 16 in the list concerned. As against the notified vacancies of 11, 11 persons were also advised from the list. Finding that there exists more vacancies in the post of Junior Clerk/Cashier in the said Bank the appellants requested to appoint them from the list. The Bank took the stand that they were not bound to fill up vacancies other than the notified vacancies. Following the decisions of the Apex Court in Arup Das and others v. State of Asam and others [2012 (5) SCC 559], Raj Kishore Nanda's case (supra) and Mukul Saikia's case (supra) and holding the meaning of the words "All appointments to the vacancies" appearing in Rule 182(4)(iii) should be read only as "All appointments to the notified vacancies", the Division Bench declined to interfere with the judgment of a learned Single Judge of this Court dismissing the writ petition filed by them viz., W.P.(C) No.16792 of 2019.
36. In our country there is acute unemployment. In such circumstances, persons coming out from colleges or other institutions after acquiring qualifications and thereby, becoming eligible to appear in competitive examinations/tests for employment, must also have such opportunities to take part in selection proceedings. Merely because a ranked list is prepared containing names of candidates in excess of the W.A.No.1016 of 2020 51 notified vacancies and a life period is prescribed for such a list appointments cannot be effected against all vacancies occurring subsequently, in the absence of a provision prescribing a period of life for the same and an enabling or mandating provision for filling up vacancies occurring during such period . True that under clause(vii) of sub-rule (4) of Rule 182 a period of two years is prescribed. However, no provision mandating or enabling appointment against vacancies occurring during such period is incorporated either in the KCS Act or in the KCS Rules. In a given case if ten vacancies are notified and ten candidates were appointed from a ranked list and if some of the appointees did not join duty existence of such a provision would enable filling up such vacancies instead of going for a fresh selection process from the list already published if it remains valid at that point of time also. In the decision in Indian Bank v. Jayasree reported in 1998 (2) KLT 464 a Division Bench of this Court held that a non-joining duty vacancy is not a fresh vacancy and if an appointee did not join duty the vacancy had to be treated as a non-joining duty vacancy. Certainly, one cannot say that a period of two years from the publication of the list by the Society concerned is required for such a purpose.
The long and short of the above discussion is that the impugned judgment of the learned Single Judge dismissing the writ W.A.No.1016 of 2020 52 petition carrying the aforementioned prayers, is not infected with any illegality or perversity warranting an appellate interference in invocation of the power under Section 5 of the High Court Act. Hence, the appeal is devoid of merits and it stands dismissed.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
K.HARIPAL Judge TKS W.A.No.1016 of 2020 53 APPENDIX OF WA 1016/2020 PETITIONER ANNEXURE ANNEXURE-A1 TRUE COPY OF THE INTERIM ORDER DATED 22.6.2020 ANNEXURE-A2 TRUE COPY OF THE APPOINTMENT ORDER DATED 27.6.2020 TKS