Dismissal Of SLP Has No Consequence On Question Of Law: Supreme Court

The Supreme Court has observed that the the dismissal of special leave petition is of no consequence on the question of law.

In this case, the Division Bench of the High Court set aside the Single Bench judgment that allowed the writ petitions for the grant of 9/16 years' time bound revised promotional scale to the petitioners. The division bench had followed the dictum of the judgment in Bhakra Beas Management Board v. Krishan Kumar Vij to hold that the petitioners are not entitled to relief sought.

Before the Apex Court, it was contended that some other employees have been granted benefit by virtue of the orders passed by the High Court and the Special Leave Petitions were dismissed. They pointed out that a writ petition filed by an employee junior to them as Assistant Engineer (Civil) was allowed by the Division Bench of the High Court and SLP filed against this was dismissed by the Apex Court.

In this context, the bench observed:

"We find that some other employees have been granted benefit by virtue of the orders passed by the High Court. However, the principle laid down in the aforesaid judgments run counter to the subsequent judgment of this Court in Krishan Kumar Vij. The Special Leave Petition in many of these cases were dismissed but the such dismissals would not be a binding precedent for this Court. This argument was also raised and examined in Krishan Kumar Vij wherein this Court relied upon the judgment of this Court reported as Kunhayammed & Ors v. State Of Kerala (2000) 6 SCC 359. Therefore, the dismissal of special leave petitions is of no consequence on the question of law."

In Kunhayammed case, the Supreme Court has considered the legal implications and the impact of an order rejecting a petition seeking grant of special leave to appeal under Article 136 of the Constitution of India. The court concluded as follows:

1. 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.
2. The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. 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 special leave petition is converted into an appeal.
3. 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.
4. 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.
5. 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 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.
6. 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.
7. On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.

Case: INDERJIT SINGH SODHI vs. CHAIRMAN, PUNJAB STATE ELECTRICITY BOARD [CIVIL APPEAL NO. 3837 OF 2020]

Coram: Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi

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