Doctrine of Merger
A Constitution Bench of the Allahabad High Court declined a reference made to reconsider the law laid down in Dr. Vishwajeet Singh and Ors. V. State of Uttar Pradesh, which dealt with the application of reservation of law in Uttar Pradesh for faculty positions in Higher Educational Institutions.
The provisions of the U.P. State Universities Act, 1973, the U.P. Higher Education Services Commission Act, 1980 and the U.P. Public Services (Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1994 were analyzed in this case.
In Dr. Vishwajeet Singh and Ors V. State of Uttar Pradesh it was held by the Division Bench of Allahabad High Court, that the reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes for the post of lecturer must be applied individually for each subject and the college must be considered as ‘a unit’. There was an added qualification that was needed to be fulfilled before the reservation could be applied, namely, that the number of posts in the cadre is at least more than three.
Further that, for the purposes of applying the roster, it was held that a cadre must necessarily consist of a minimum of five posts. Subsequently, one post must be reserved for Scheduled Castes and one post for Other Backward Classes category.
In Mahendra Kumar Gond District V. Inspector of Schools, Azamgarh and others, the decision that was arrived at was in isolation of the ratio of the Dr. Vishwajeet Singh Judgment. Therefore, it was referred to the Full Bench in HeeraLal V. State of Uttar Pradesh which held that the rule of Reservation as prescribed under the Acts aforementioned, cannot be implemented where the number of posts in a cadre is less than five. Hence, the judgment of Dr. Vishwajeet Singh case was affirmed therein.
Further, in the case of Dr. Archana Misra vs. State of Uttar Pradesh, the issues raised were similar to those raised in the Heera Lal Judgment and the Dr. Vishwajeet Judgment. However, during the course of considering this case on merits, the Court had its doubts about the correctness of the Dr. Vishwajeet Singh judgment and the law laid down therein. Hence, the matter was referred to a larger Bench. A Special Leave Petition was filed against this reference in 2011 and the Apex Court granted a leave to appeal. However, the same was dismissed as withdrawn in 2017.
On the issue at hand, it is the contention of the Respondent that since the decision in Dr. Vishwajeet Singh was affirmed by the Supreme Court after grant of leave on the Special Leave Petition, it is manifest that the decision in Dr. Vishwajeet Singh’s Judgment stood merged with that of the Supreme Court. Further, it was contented that the principles of merger would clearly stand attracted and hence it was not open for the Hon’ble Full Bench to reconsider or revisit the said decision.
On the other hand, it is the contention of the Petitioners that the order of the Supreme Court from 2017 is evidently non-speaking and hence cannot be viewed as a declaration of law in light of Article 141 of the Constitution of India. Further, a simple dismissal is not a declaration of the law by the Supreme Court.
It must be noted that the Doctrine of Merger only mandates the merger of the operative part of the judgment appealed against. Hence, the order of January, 2017 cannot be viewed as a precedent upholding or approving the legal position enunciated in the Dr. Vishwajeet Singh Case.
The present appeal was heard and decided by a bench comprising of the Hon’ble Chief Justice of the High Court of Allahabad, Justice Dilip B. Bhosale, Justice M.K. Gupta, Justice Suneet Kumar, Justice Yashwant Varma and Justice S. D. Singh.
ISSUE BEFORE HC – CONSTITUTION BENCH
The sole issue for consideration before the Court was:
Whether the full bench can proceed further on merits and rule upon correctness of Dr. Vishwajeet Singh even though the appeal preferred against it has come to be dismissed by the Supreme Court?
On the basis of the above-mentioned facts and issue in the present case, five-judge Bench of the Allahabad High Court comprising of Chief Justice Dilip B. Bhosale, M.K. Gupta J., Suneet Kumar J., Yashwant Varma J. and S.D. Singh J. held that:
Insofar as the case before us is concerned, it is clear from the order that the Supreme Court not only dismissed the Civil Appeals after granting leave but while doing so, clearly observed that it was in agreement with the view taken in the impugned judgment and accordingly affirmed the judgment of this Court……
…..This in our considered opinion would clearly mean that the statement of the law as reflected in Dr. Vishwajeet Singh which was the subject matter of the appeal, stands confirmed by the Supreme Court.”
The Hon’ble Court further emphasized on the express approval which indicated that the appeal against Vishwajeet case had been dismissed on merits and not on technical grounds. In other words, it cannot be construed that the Hon’ble Apex Court failed in the application of mind to the facts of the case.
The Supreme Court had relied on the judgment of S. Shanmugavel Nadar V. State of Tamil Nadu wherein it was held that:
a subordinate court’s decision can be viewed as being merged with the superior court’s order, if the superior court either adopts or reiterates the reasoning of the subordinate court, or if it has “recorded an express approval of the reasoning incorporated in the judgment or order of the subordinate forum.”
The Hon’ble Court has placed reliance upon the following decisions in forming the view:
- S. Shanmugavel Nadar V. State of Tamil Nadu, 6 (2002) 8 SCC 361
- Prem Chandra Srivastava V. State of U.P. & Ors., 2013(5) ADJ 594
- M. Varadaraja Pillai V. Salem Municipal Council, (85 LW 760)
- State of Madras V. Madurai Mills Co. Ltd., AIR 1965 SC 681
- Kunhayammed & Ors. V. State of Kerala & Anr. 2000 (6) SCC 359
- B. Shama Rao V. Union Territory of Pondicherry, AIR 1967 SC 1480
The Hon’ble Bench held that the terms of the order of the Supreme Court from January, 2017 clearly establishes that the view taken by the Division Bench was specifically approved.
The decision of the Division Bench merged into the order of the Supreme Court and hence it would not be legally permissible for this Full Bench to consider the correctness or otherwise of the said decision of the Division Bench. The absence of “speech” or “elaborate reasoning” has no consequences on the binding nature of the Supreme Court’s order from January, 2017.
It was held that the issue, essentially, is not of a precedent but that of merger.
REASON OF JURISPRUDENCE
The Doctrine of Merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is also not a doctrine of universal or unlimited application. It is a common law doctrine founded on the principles of propriety in the hierarchy of justice delivery system.
Doctrine of merger will depend on the nature of jurisdiction exercised by the superior forum and the subject-matter of challenge laid shall be determinative of the applicability of merger.
On the basis of the above reasoning, it can be concluded that once the decision of the Division Bench stands subsumed in the order of the Supreme Court, after grant of leave with a positive affirmation of the view taken therein, it is no longer open for a Full Bench to revisit the said decision.
Hence, to occasion to rule on merit, it does not arise at all.
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