IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 5683 of 2010. Decided on: 4th March, 2011. Krishan Chand Verma. ….. Petitioner. Versus Union of India and Others. …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. M.L. Sharma, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant Solicitor General of India and Mr. Janesh Mahajan, Central Government Counsel. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral): Whether dismissal of a Special Leave Petition by the Supreme Court amounts to merger of order/decree passed by the High Court, is the main question arising for consideration in this case. Incidentally, we may also deal with the question as to whether even after dismissal of a Special Leave Petition, the remedy by way of review is available. A third question, which has to be dealt, is whether the Full Bench of the Central Administrative Tribunal can ignore the decision of the High Court, rendered in a case challenging the order passed either by one 2 Member or a Bench of two members and/or for that matter a still larger Coram of the Tribunal. SHORT FACTS: 2. Whether the petitioner can be denied the benefit of Assured Career Progression Scheme on the ground that he does not have the prescribed educational qualification for the post, is the simple issue on facts. That issue in principal was decided in favour of the petitioner vide Annexure A/2, order of the Central Administrative Tribunal, Chandigarh Bench, dated 20th November, 2002 in O.A. No. 1062/HP/2001, when the petitioner was denied the 1st Assured Career Progression, by a Coram consisting of Vice- Chairman and another Member. It was directed that irrespective of the educational qualification under the Assured Career Progression Scheme, the benefit is to be granted. That was challenged by the Union of India before this Court in C.W.P. No. 349 of 2003. By Annexure A-3, judgment dated 02.07.2008, it was held, agreeing with the view taken by the Tribunal, that it was not necessary to possess the prescribed educational qualification for grant of Assured Career Progression. The Union of India pursued the matter before the Supreme Court in S.L.P. (Civil) No. 17131-17132 of 2008. There was delay. As per Annexure A/4, order dated 06.01.2009, the Apex Court dismissed the S.L.P.. The order reads as follows: “Delay Condoned. The Special Leave Petition is dismissed. However, this order may not be treated as a precedent.” 3 3. When the petitioner was denied the second Assured Career Progression on completion of 24 years by the department, he approached the Central Administrative Tribunal, Chandigarh Bench by filing O.A. No. 638 of 2009. That was dismissed by the impugned order dated 21.07.2010. The Tribunal took a strange view that the Full Bench of the Tribunal had subsequently taken the view that the incumbent should possess the prescribed educational qualification, the same being eligibility criteria. It has also been held that the finding of the High Court stood merged in the order of the Supreme Court. Still further, it was also held that the earlier view of the Tribunal taken by a Coram of two Members stood overruled by the subsequent view taken by the Full Bench of the Tribunal. For the purpose of easy reference, we may extract the relevant portion of the impugned order appearing at paragraph No. 13: “13. In so far as reliance placed by the applicants on the earlier decision of this Tribunal in their own case, as upheld by the Hon’ble High Court and then by the Hon’ble Supreme Court is concerned, admittedly that was a decision taken by Division Bench of the Tribunal earlier to the Full Bench decision in the case of Krishna Kumar & Others (supra). Once the Full Bench decision of this Tribunal has come, the decision in earlier cases of the applicants have lost relevance and the view taken in those cases stands over ruled. Moreover, the Hon’ble Supreme Court had clearly mentioned regarding those two decisions that the same may not be treated as a precedent. Meaning thereby the issue was left open and even findings of the Hon’ble High Court stood merged in the order of the Hon’ble Supreme Court.” 4 4. It is in the above factual background, it has become necessary to deal with the legal position regarding merger and binding value of the judgment of the High Court on the Tribunal. 5. The petition is filed before the Supreme Court under Article 136 of the Constitution of India, which reads as follows: “136. Special leave to appeal by the Supreme Court-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.” 6. The Constitution has made it clear that exercise of power by the Supreme Court under Article 136, is a discretionary jurisdiction exercised by the said Court. The question of interference by the Apex Court in the order passed by the High Court or in the matter of Tribunal arises only when the leave is granted by the Apex Court and an order is passed in the appeal. At the stage of decision as to whether leave is to be granted or not, even if a speaking order is passed by the Apex Court, there is no question of merger of the order passed by the High Court. 7. The concept of merger, which is a common law doctrine, is intended to safeguard and preserve the propriety in the hierarchy of justice delivery system. The underlying principle is that there cannot be more than one decree given in the same subject matter. When a statutory appeal is provided against an 5 order passed by the Court, even if an appeal is dismissed, there is merger of the decree or order passed by the lower Court or Tribunal; and when the order passed by the lower Forum is confirmed in an appeal also, it is the decree passed by the superior Forum, which forms the decree. This aspect of the matter has been succinctly dealt with by the Supreme Court in Kunhayammed and Others Versus State of Kerala and another (2000)6 Supreme Court Cases 359, wherein it has been held as follows: “The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under the law before a superior forum, then though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way-whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine 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.” 6 8. The effect of dismissal of a Special Leave Petition by speaking or non-speaking order, has also been dealt with by the Supreme Court in the above case, wherein it has been held as follows: “A petition for leave to appeal to the Supreme Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non- speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, the Supreme Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of take or canvassing any view contrary to the one expressed by the Supreme Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for 7 grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the HighCourt and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. 9. Since there is no merger, a review is maintainable even after the dismissal of Special Leave Petition. This aspect has also been dealt with by the Supreme Court in the above decision. Reference has been made to Order 47 Rule 1(a), which reads as follows: “The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus the words “no appeal” has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted, the jurisdiction to consider the validity of the High Court’s order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. 8 10. The effect and impact of refusal of leave to appeal, was considered by the English Courts also. In Wilson Vs. Colchester Justices, (1985) 2 All ER, 97, wherein it has been held that leave could be refused on many reasons; may be the Court wants to re-open the question; may be the Court wants to reserve its views for a better case on facts, since the facts in that particular case may not form a suitable foundation for laying down a general principle. In the words of Lord Roskill, it has been held as follows: “Seemingly the Divisional Court felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespred in the profession. My Lords, if that were so, as my noble and learned friend Lord Diplock remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better. There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. Your Lordships’ House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms. It is not difficult to find in 9 the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which leave to appeal have been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong. But that of itself does not mean that the initial refusal of leave was wrong.” 11. Back to the facts of the present case, the Tribunal has taken the view that its earlier decision as upheld by the High Court has merged with the order passed by the Supreme Court. But, as can be seen from the order passed by the Supreme Court, it is clear that the Apex Court had already made it clear that the order will not be a precedent. The Supreme Court has not interfered with the judgment of the High Court. In other words, the judgment of the High Court in C.W.P. No. 349 of 2003 (Annexure A/3), is still a binding decision between the parties on the issue in principle also. Its precendential value alone has been taken away. The binding value of the judgment of the High Court cannot be ignored by the Tribunal on the ground that a Full Bench of the Tribunal has since taken a contrary view. The judgment of the High Court cannot be ignored by the Central Administrative Tribunal. The Tribunal may over rule its intra Tribunal decision by a larger Coram. But, the judgment of the High Court, be it a decision rendered on the challenge of a decision by one Member or two Members is binding on the Central Administrative Tribunal; the Coram of the Tribunal is wholly irrelevant; whether it is Division Bench or Larger Bench. Such a scheme of functioning is part of the basic structure of the Constitution of India as held in the elaborated decision of the apex court in L. Chandra Kumar Vs. Union of India and others (1997) 10 3 Supreme Court Cases 261. Therefore, Annexure P-3, order dated 21.07.2010, passed by the Central Administrative Tribunal is set aside. 12. We are informed that the petitioner has already been granted the benefit as per the 6th Pay Commission. However, according to the writ petitioner, he is entitled under the judgment to the benefit of 2nd A.C.P. w.e.f. 29th December, 2002, whereas the same has been granted only in the year 2009. 13. In view of what has been held above, the petitioner is entitled to the benefit of 2nd A.C.P. w.e.f. 29th December, 2002. The benefit, as above, shall be worked out and shall be disbursed to the petitioner within a period of two months from the date of production of a certified copy of this judgment by the petitioner. 14. The petition stands disposed of, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. 4th March, 2011 (bhupender)