It will be relevant to refer to the following observations of
this Court in the case of Kunhayammed and Others v. State
of Kerala and Another (2000) 6 SCC 359:“
27. A petition for leave to appeal to this Court may
be dismissed by a nonspeaking order or by a
speaking order. Whatever be the phraseology
employed in the order of dismissal, if it is a nonspeaking
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. We have already dealt with this aspect
earlier. 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, this Court being the
Apex Court of the country. No court or tribunal or
parties would have the liberty of taking or
canvassing any view contrary to the one expressed
by this 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 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 High Court 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.” {Para 21}
22. It is thus clear that this Court in unequivocal terms has
held that if the order of dismissal of SLPs is supported by
reasons, then also 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. It has been held that no court,
tribunal or party would have the liberty of taking or canvassing
any view contrary to the one expressed by this Court. 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT/CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 638 OF 2017
IN
CIVIL APPEAL NO. 4954 OF 2016
V. SENTHUR Vs M. VIJAYAKUMAR,
Author: B.R. GAVAI, J.
Dated: OCTOBER 01, 2021.
1. The present contempt petitions have been filed by the
petitioners praying for initiation of contempt proceedings
against the alleged contemnors respondents
for willfully
disobeying the order passed by this Court dated 22nd January
2016 in SLP(C) Nos. 28902894
of 2016 and SLP(C) No. 2886 of
2016.
2. Brief facts giving rise to the filing of the present petitions
are as under:The
contempt petitioners had filed writ petitions before the
Single Judge of the Madras High Court being aggrieved by the
fixation of inter se seniority list published on 29th April 2004.
The petitioners along with the contesting respondents were
selected in pursuance of the selection process held on the basis
of the notification dated 10th September 1999, issued by the
Tamil Nadu Public Service Commission (hereinafter referred to
as “TNPSC”). Upon selection, the selectees were appointed in
the Public Works Department of the State of Tamil Nadu and
the Highways Department in the year 2000.
3. After a period of 4 years from the date of joining of the
selectees, the seniority list came to be notified on 29th April
2004. One R. Balakrishnan made a representation contending
therein that though he was a more meritorious candidate
belonging to the Backward Class category, he was allotted to
the General Turn (open category) and kept at Serial No. 172 of
the roster point. It was however his contention that the other
persons belonging to the Backward Classes, who were less
meritorious, were placed higher in the list and given seniority
over and above him since they were placed against reserved
vacancies. The representation of R. Balakrishnan was rejected
by TNPSC vide order dated 20th December 2004, on the ground
that the roster point itself determined the seniority, in view of
the decision of this Court in the case of P.S. Ghalaut v. State
of Haryana and Others1. Being aggrieved by the said order
dated 20th December 2004, R. Balakrishnan and few others
filed various writ petitions before the Madras High Court. The
said writ petitions came to be dismissed vide judgment and
order dated 18th October 2012, passed by the Single Judge of
the Madras High Court, on the ground of delay and laches.
4. Being aggrieved thereby, the original writ petitioners
preferred appeals before the Division Bench of the Madras High
Court. The Division Bench vide judgment and order dated 31st
March 2015 (hereinafter referred to as “the first judgment”),
1(1995) 5 SCC 625
allowed the appeals and set aside the judgment and order dated
18th October 2012, passed by the Single Judge and directed the
official respondents to take the rank assigned by TNPSC to the
selectees, as the basis for fixation of seniority. The Division
Bench also directed TNPSC to issue appropriate orders within a
period of 4 weeks from the date of receipt of a copy of the said
order. The same came to be challenged before this Court by
TNPSC vide SLP(C) Nos. 28902894
of 2016. This Court vide its
judgment and order dated 22nd January 2016, by a speaking
order, dismissed the same. The present contempt petitions are
filed contending noncompliance
of the order passed by this
Court dated 22nd January 2016.
5. Certain developments which took place in the meanwhile
also need to be noted. To overcome the first judgment of the
Madras High Court as affirmed by this Court, the State of Tamil
Nadu enacted Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 (hereinafter referred to as “the said Act”).
Section 40 of the said Act provided that the seniority of a
person in service will be determined in accordance with the rule
of reservation and the order of rotation. The same came to be
challenged in a batch of writ petitions before the Madras High
Court. The Division Bench of the Madras High Court vide
judgment and order dated 15th November 2019 (hereinafter
referred to as “the second judgment”), allowed the said writ
petitions. It declared Sections 1(2), 40 and 70 of the said Act as
ultra vires and unconstitutional. It further directed to redo the
exercise of fixation of seniority within a period of 12 weeks from
the date of receipt of the copy of said order. The said order of
the High Court dated 15th November 2019, was challenged
before this Court by filing SLP(C) Nos. 28612876
of 2020. This
Court passed the following order on 6th July 2020:“
Permission to file Special Leave Petition(s) is
granted.
Application for impleadment is allowed to the extent
of intervention.
There is absolutely no merit in these petitions. The
Special Leave Petitions are, accordingly, dismissed.
Pending application(s) is/are disposed of.”
6. After dismissal of the said SLPs, the official respondents
had filed review petitions before the Division Bench of the High
Court. So also, certain contempt petitions were filed by the
selectees, who were aggrieved by nonrevision
of the seniority
list. The Division Bench of the Madras High Court vide
judgment and order dated 26th March 2021 dismissed the
review petitions, so also, the contempt petitions. The same is
challenged before this Court by the selectees, who were
aggrieved by nonrevision
of the seniority list, by filing SLP(C)
Nos. 1211412117
of 2021.
7. The contempt petitions have been listed before this Court
on various dates. Vide order dated 11th February 2021, this
Court passed the following order:“
In the meanwhile, the judgment dated 22.01.2016
shall be implemented. In case the judgment is not
implemented by that date, the following alleged
contemnors/respondents shall be present in this
court on the next date of hearing:
C.P.(C)No.638 of 2017 in C.A.No.4954 of 2016
1) M. Vijayakumar
2) S. Thinakaran
Dy No.16048 of 2020 in SLP(C) Nos.28902894
of
2016:
1) Dr. S. Swarna
2) K. Ramamoorthy
3) K. Nanthakumar
C.P.(C) No.1247 of 2019 in SLP (C) No.2886 of 2016:
1) K. Shanmugam
2) K. Nanthakumar
3) Dr. K.Manivasan
4) K. Ramamurthy
C.P.(C)No.1848 of 2018 and C.P.(C)No.2188 of 2018
in SLP (C)No.2886 of 2016:
1) K. Nanthakumar
2) S. K. Prabhakar
3) S. Bakthavathchalam”
8. The contempt petitions have also been listed thereafter on
various dates. Today, we have heard Shri Prashant Bhushan,
learned counsel appearing on behalf of the petitioners, Shri
C.S. Vaidyanathan, learned Senior Counsel appearing on behalf
of TNPSC, Shri Mukul Rohatgi, Shri V. Giri and Shri P. Wilson,
learned Senior Counsel appearing on behalf of the respondentsalleged
contemnors, at length.
9. Shri Prashant Bhushan submitted that the first judgment
has been merged into the order passed by this Court dated 22nd
January 2016. He submitted that in the said order, this Court
has categorically held that in view of the judgment in the case
of Bimlesh Tanwar v. State of Haryana and Others2, the
seniority list has to be prepared on the basis of merit list of
selection and that the list drawn on roster point would not be
valid in law. He submitted that the respondent authorities
have not implemented the said order, on the contrary, a revised
seniority list is published on 13th March 2021, contending that
the said seniority list has been published on the basis of the
orders passed by this Court. He submitted that a perusal of the
said seniority list would further show that the said list is
prepared totally in breach of the judgment in the case of
2(2003) 5 SCC 604
Bimlesh Tanwar (supra). It is thus submitted that by
publishing the said list, the respondent authorities have not
only committed the aggravated contempt of court but have also
committed perjury.
10. Shri C.S. Vaidyanathan, Shri Mukul Rohatgi, Shri V. Giri
and Shri P. Wilson, learned Senior Counsel appearing on behalf
of the respondents, on the contrary, submitted that the
contempt petitions are without any merit.
11. In a nutshell, the contentions as raised on behalf of the
said respondents are thus:(
i) In the first judgment, the Division Bench of the Madras
High Court had granted relief to the individual
petitioners. Understanding the same, the respondent
authorities had issued a fresh seniority list, thereby
granting the requisite seniority to the individual
petitioners.
(ii) Perusal of the second judgment of the Madras High
Court dated 15th November 2019, would further fortify
that the relief granted in earlier round was restricted to
individual petitioners. Relying on certain observations
in the said judgment, it is submitted that the Division
Bench has clearly held that the delay, laches,
acquiescence and accrued right would be the relevant
factors and as such, the individuals who were not
petitioners in the first round, are not entitled to get the
seniority as per the first judgment of the Madras High
Court.
(iii) That the rights of the parties have been crystallized for
more than almost two decades and upsetting those at
this stage, would cause great heartburn
amongst the
employees in the cadre.
(iv) That some of the employees have accepted the seniority
list and now the entire exercise cannot be redone to
thrust the revised seniority on such employees.
(v) That in any case, the judgment of the Division Bench of
the Madras High Court was capable of being interpreted
as applying only to the individuals and therefore, even if
the official respondents have incorrectly understood the
judgment, the noncompliance
of the directions cannot
be considered to be willful or deliberate and as such,
the action for contempt would not lie.
12. In addition, Shri Rohatgi submitted that the contempt, if
any, is of the order passed by the High Court. He submitted
that since by the order dated 22nd January 2016, this Court has
dismissed the SLPs albeit giving certain reasons, the same
would not amount to merger, and as such, it cannot be held
that the respondents have committed contempt of this Court.
He further submitted that if tomorrow, merely upon dismissal
of SLPs against the judgments of the High Court, the contempt
petitions are entertained contending contempt of this Court, it
will open a floodgate of contempt petitions. He submitted that
such a practice would not be conducive to the interest of
justice.
13. Shri Vaidyanathan relied on the following judgments of
this Court in support of his submissions that, in contempt
proceedings, the Court cannot travel beyond the original
judgment and order.
Jhareswar Prasad Paul and Another v. Tarak Nath
Ganguly and Others3, Midnapore Peoples’ Coop. Bank
Limited and Others v. Chunilal Nanda and Others4, V.M.
Manohar Prasad v. N. Ratnam Raju and Another5 and
Sudhir Vasudeva, Chairman and Managing Director, Oil
and Natural Gas Corporation Limited and Others v. M.
George Ravishekaran and Others6.
14. There can be no quarrel with the proposition that in a
contempt jurisdiction, the court will not travel beyond the
original judgment and direction; neither would it be permissible
for the court to issue any supplementary or incidental
directions, which are not to be found in the original judgment
3 (2002) 5 SCC 352
4 (2006) 5 SCC 399
5 (2004) 13 SCC 610
6 (2014) 3 SCC 373
and order. The court is only concerned with the wilful or
deliberate noncompliance
of the directions issued in the
original judgment and order.
15. At the outset, we may clarify that in the present
proceedings, we are only concerned with the contempt of the
order passed by this Court dated 22nd January 2016.
16. Insofar as the contention of the respondents that the issue
before the High Court in the first round was individualistic in
nature is concerned, it will be relevant to refer to the following
observations passed by the Division Bench of the Madras High
Court in the first judgment:“
37. …..
(ii) The cases on hand are not individualistic in
nature, depending upon individual dates, facts and
sequence of events. The cases on hand arise out of a
most fundamental question as to the principle of
law to be applied in the matter of fixation of
seniority. The grievance of the writ petitioners was
not individualistic, depending for their adjudication,
upon distinct facts. These cases question the very
foundation on which seniority was sought to be
determined on principle. To such cases, the
enabling provision under Rule 35(f) entitling the
department to summarily reject the claim of the
individuals, cannot be invoked.”
17. It can thus be seen that the High Court has clearly
observed that the case before the High Court was not
individualistic in nature, depending upon individual dates,
facts and sequence of events. It has further observed that it
arose out of the most fundamental question as to the principle
of law to be applied in the matter of fixation of seniority.
18. Having observed this, in the operative part, the Division
Bench of the Madras High Court in the first judgment held
thus:“
85. In view of the above, the writ appeals are
allowed, the order of the learned judge is set aside
and the writ petitions filed by the appellants are
allowed. There will be a direction to the official
respondents to take the rank assigned by the
Service Commission to the selectees, as the basis
for fixation of seniority and issue appropriate orders
within a period of 4 weeks from the date of receipt of
a copy of this order. There will be no order as to
costs.”
19. It could thus clearly be seen that the Division Bench of the
Madras High Court in the first judgment issued a direction to
the official respondents to take the rank assigned by TNPSC to
the selectees as the basis for fixation of seniority and
appropriate orders were directed to be issued by TNPSC within
a period of 4 weeks from the receipt of the copy of the said
order.
20. The basis for allowing the writ petitions by the High Court
was the judgment of this Court in the case of Bimlesh Tanwar
(supra), which held that the seniority has to be determined, not
on the basis of roster point but on the basis of the seniority
assigned at the time of selection of the selectees. This Court,
while dismissing the SLPs vide order dated 22nd January 2016,
observed thus:“
The fundamental principle which has been applied
by the Division Bench in the cases on hand relates
to the question as to what should be the basis for
drawing a seniority list. In that context, the Division
Bench has noted that at the time when the Service
Commission drew the list in 2000 the same was in
tune with the judgment of this Court in P.S.
Ghalaut v. State of Haryana & Others, reported in
(1995) 5 SCC 625. The Court also found that the
said list which was approved by the State
Government did not achieve the finality and that
ultimately when the seniority list came to be issued
on 29.2.2004, by which time the judgment of this
Court in Bimlesh Tanwar v. State of Haryana and
others, reported in (2003) 5 SCC 604 had came into
effect which reversed the judgment in Ghalaut
(supra). The Division Bench, therefore, held that
there was no delay in the challenge made to the
seniority list. After the emergence of the
judgment in Bimlesh Tanwar (supra), the
fundamental principle relating to drawl of
seniority list was that it should be based on
merit list of selection and that the list drawn
based on roster point can have no application for
the purpose of seniority list.
As the said fundamental principle was
applied by the High Court in passing the
impugned judgment, we do not find any merit in
these special leave petitions. The special leave
petitions are dismissed.
The learned Attorney General for India,
appearing for the Tamil Nadu Public Service
Commission, raised an issue that with reference to
a contra view taken by another Judgment of
Madurai Bench of the Madras High Court, at the
instance of one of the employees an SLP is pending
in this Court. Since the issue is now covered by the
decision of this Court in Bimlesh Tanwar (supra),
the pendency of the said SLP will be of no
consequence as the said SLP should also be covered
by the said judgment of this Court, namely, Bimlesh
Tanwar (supra).”
[emphasis supplied]
21. It will be relevant to refer to the following observations of
this Court in the case of Kunhayammed and Others v. State
of Kerala and Another (2000) 6 SCC 359:“
27. A petition for leave to appeal to this Court may
be dismissed by a nonspeaking order or by a
speaking order. Whatever be the phraseology
employed in the order of dismissal, if it is a nonspeaking
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. We have already dealt with this aspect
earlier. 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, this Court being the
Apex Court of the country. No court or tribunal or
parties would have the liberty of taking or
canvassing any view contrary to the one expressed
by this 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 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 High Court 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.”
22. It is thus clear that this Court in unequivocal terms has
held that if the order of dismissal of SLPs is supported by
reasons, then also 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. It has been held that no court,
tribunal or party would have the liberty of taking or canvassing
any view contrary to the one expressed by this Court. 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.
23. This Court, while dismissing the SLPs against the first
judgment, has clearly held that after the emergence of the
judgment in Bimlesh Tanwar (supra), 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. It
could thus be seen that while dismissing the SLPs, this
Court has reiterated the legal position as laid down in the case
of Bimlesh Tanwar (supra) to the effect that while determining
seniority, what is relevant is the inter se merit in the selection
list and not the roster point.
24. It is pertinent to note that though, the then learned
Attorney General had raised an issue with regard to a contrary
view taken by the Madurai Bench of the same High Court, this
Court clearly held that since the issue was now covered by the
decision of this Court in Bimlesh Tanwar (supra), the
pendency of the SLPs challenging the judgment of Madurai
Bench, would be of no consequence inasmuch as the said SLPs
would be governed by the judgment of this Court in Bimlesh
Tanwar (supra).
25. It is thus clear that though it cannot be said that the
second judgment of the Madras High Court has merged into the
order of this Court dated 22nd January 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.
26. In that view of the matter, the respondents were bound 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.
27. At the cost of repetition, we may clarify that though
various arguments were advanced with regard to the merits of
the matter by the learned Senior Counsel appearing on behalf
of the respondent authorities, we cannot go into those aspects
inasmuch as we are exercising limited jurisdiction of contempt.
Insofar as the lis between the parties is concerned, it has
achieved finality by the order of this Court dated 22nd January
2016. We find that the seniority list, which is purportedly
published in accordance with the order of this Court, is totally
in breach of the directions of this Court. A first glance at the
list would reveal that various selectees, who have received
much less marks, are placed above the selectees who have
received higher marks. We, therefore, have no hesitation to
hold that the following persons named in our order dated 11th
February 2021, are guilty of having committed contempt of
order of this Court:“
C.P.(C)No.638 of 2017 in C.A.No.4954 of 2016
1) M. Vijayakumar
2) S. Thinakaran
Dy No.16048 of 2020 in SLP(C) Nos.28902894
of
2016:
1) Dr. S. Swarna
2) K. Ramamoorthy
3) K. Nanthakumar
C.P.(C) No.1247 of 2019 in SLP (C) No.2886 of 2016:
1) K. Shanmugam
2) K. Nanthakumar
3) Dr. K.Manivasan
4) K. Ramamurthy
C.P.(C)No.1848 of 2018 and C.P.(C)No.2188 of 2018
in SLP (C)No.2886 of 2016:
1) K. Nanthakumar
2) S. K. Prabhakar
3) S. Bakthavathchalam”
28. We therefore direct the respondents to revise and publish
the seniority list of the selectees, who were selected in the
selection process conducted in pursuance of the notification
issued by TNPSC dated 10th September 1999, strictly on the
basis of the merit determined by it in the selection process and
not on the basis of the roster point. The same shall be done
within a period of 12 weeks from the date of this order.
29. Insofar as the issue with regard to quantum of
punishment to be imposed upon the aforesaid contemnors is
concerned, the matter be kept on 10th January 2022. We clarify
that on the said date, the persons named in paragraph (25) who
have been held guilty of contempt of this Court by us, shall
remain present before this Court and would be heard on the
quantum of punishment.
30. Insofar as SLP(C) Nos. 1211412117
of 2021 are
concerned, in view of the order passed by us in the contempt
petitions, no order is necessary. Accordingly, the said SLPs are
disposed of.
…..…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
OCTOBER 01, 2021.
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