[Doctrine Of Merger] When Writ Appeal Partly Allowed & SB's Order Modified, Contempt Plea For disobedience Of Order Maintainable Only Before DB: Madras HC [Read Order]

Declaring that the doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation, the Madras High Court has ruled that once the Writ Appeal is partly allowed and an order has been passed modifying the order of the Single Judge, the latter merges with the order passed in the Writ Appeal.

The Court on Wednesday expressed the view that once the order of the Single Judge has merged with the order passed by the Division Bench in the Writ Appeal, if it is felt that the order has been violated or disobeyed, a Contempt Petition can be maintained only before the Division Bench and not before the Single Judge.

Justice N.Anand Venkatesh was considering a contempt petition filed by the All India Union Bank Officer Staff Association on the ground that the respondent-bank has deliberately and wilfully disobeyed the order passed by this Court on 06.02.2020. On the said date, Justice Venkatesh had directed the respondent bank to permit the officers belonging to the Specialist category, who were promoted in 2017-2018, to participate in the promotion process conducted vide circular dated 21.11.2019, and to hold the common written examination once again for all the eligible candidates and proceed further with the promotion process.The Single Judge appreciated that after the final orders were passed in the writ petition on 06.02.2020, the respondent took the matter on appeal and the Division Bench dealt with the case on merits and partly allowed the Writ Appeal.

The operative portion of the order was extracted by the Single Bench:

"17. The learned Single Judge has failed to appreciate the peculiar circumstances which exist in this year namely, the merger of banks and the consequent fitment of officers from the banks which will be merging including the appellant bank. It would be impossible to conduct a fresh examination for these officers before 31.03.2020 which might have an effect of breaking down the entire merger process...We do not find any infirmity in the order of the learned Single Judge, but we however modify the order of the learned Single Judge to the effect that such of the members of the petitioner's association who are entitled and who according to the bank belong to the specialist category and have been deprived of the chance to take examination may be permitted to take the examination and be considered for appointment for the vacancies arising on 01.04.2020 treating them to be eligible for promotion. The bank shall ensure that the order of the Court is complied with in letter and spirit without any further delay so as not to cause any disadvantage to the petitioner as against their counterparts. The order of the learned Single Judge is modified and accordingly, the Writ Appeal is partly allowed"

"Once an order has been passed in the Writ Appeal and the order passed by the Single Judge is modified and the Writ Appeal is partly allowed, the order of the Single Judge merges with the order passed in the Writ Appeal. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation", asserted Justice Venkatesh.

"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", quoted the single judge from Kunhayammed v. State of Kerala , (2000) 6 SCC 359.

The single bench also relied upon Shanthi v. T.D. Vishwanathan, (2019) 11 SCC 419 to reiterate that "When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system...The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time"

Accordingly, Justice Venkatesh ruled that the Contempt Petition filed before the Single Judge is not maintainable since the order of the Single Judge has merged with the order passed by the Division Bench in the Writ Appeal. "If the petitioner feels that the order has been violated or disobeyed, a Contempt Petition can be maintained only before the Division Bench and not before the Single Judge. Except giving such liberty, no further orders can be passed by this Court", held the Single Bench.

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