If order of dismissal of SLPs is supported by reasons, then doctrine of merger would not be attracted, reiterates Apex Court

Read Judgment: V. Senthur & Another vs. M. Vijayakumar, IAS, Secretary, Tamil Nadu Public Service Commission & Another 

Pankaj Bajpai

New Delhi, October 4, 2021: The Supreme Court has directed the Tamil Nadu government (respondents) to revise and publish the seniority list of the selectees, who were selected in the process conducted in pursuance of the notification issued by Tamil Nadu Public Service Commission (TNPSC) dated September 10, 1999, strictly on the basis of the merit determined by it in the selection process and not on the basis of the roster point. 

A Division Bench of Justice L. Nageswara Rao and Justice B.R. Gavai concluded that persons named in order dated February 11, 2021, are guilty of having committed contempt of order of this Court, as the respondents had failed to follow the law laid down by this Court and determine the inter se seniority on the basis of selection by TNPSC and not on the basis of roster point. 

Such observation came while holding nine officers of the Tamil Nadu Government guilty of contempt of court for not implementing a direction to revise the seniority list of officers in the Public Works Department. 

The background of the case was that by an Order dated January 16, 2016, the Supreme Court had dismissed Government’s special leave petition (SLP) against a judgment of the Madras High Court and had held that the seniority list should be drawn on the basis of merit list of selection and not on the basis of roster point. 

Later, contempt petitions were filed stating that the respondents published a revised seniority list breaching the principle laid down by the Supreme Court.

Challenging the same, the respondents argued that the contempt petition, if any, should be agitated before that the High Court and not the Supreme Court of India since the law laying down that the seniority list should be drawn on the basis of merit list of selection and not on the basis of roster point, was laid down by the Madras High Court. 

Placing reliance on the Doctrine of Merger, it was argued that since the doctrine is not applicable to an order dismissing SLP, it cannot be said that contempt has been committed of the Supreme Court.

Opposing the same, the counsel for petitioners contended that since the judgment of the High Court had merged with the order of the Supreme Court dated January 22, 2016, the contempt would be of the Supreme Court. 

Referring to the decision in case of Kunhayammed and Others v. State of Kerala and Another , the Division Bench observed that if the order of dismissal of SLPs is supported by reasons, then the doctrine of merger would not be attracted. 

Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on all the courts and the tribunals in India and certainly, the parties thereto, added the Bench. 

The Top Court opined that no court, tribunal or party would have the liberty of taking or canvassing any view contrary to the one expressed by this Court, as such an order would mean that it has declared the law and in that light, the case was considered not fit for grant of leave.

The Top Court said that while dismissing the SLPs against the first judgment, it has clearly held that after the emergence of the judgment in Bimlesh Tanwar vs. State of Haryana and Others, the fundamental principle governing the determination of seniority was that, it should be based on merit list of selection and that the list made on the basis of roster point, would not be permissible in law. 

Though it cannot be said that the second judgment of the Madras High Court has merged into the order of this Court dated January 22, 2016, still the declaration of law as made in the said order, would be binding on all the courts and tribunals in the country and in any case, between the parties, concluded the Apex Court.