TaxTMI 
TaxTMI 
2018 (10) TMI 2048
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..... 51212 of 2010] have formulated the following questions to be considered and decided by a Bench of more than three Judges: 1. Whether the rules of reservations under the U.P. Act No. 4 of 1994 are applicable to appointment on the post of lecturers, by direct recruitment, in the aided postgraduate and undergraduate colleges in the State of UP, affiliated to the State Universities by clubbing all the vacancies as provided under Section 12 (3) of the UP Higher Eduction Service Commission Act, 1980 subject-wise; or the vacancies have to be worked out for applicability of rules of reservation college-wise and subject-wise? 2. Whether there has to be plurality posts in the cadre, for applying the rules of reservation, which means more than one; or there has to be at least five posts in the cadre for applying the rules of reservations? 3. Whether the vacancies arising in any recruitment year under Rule 3(2) of UP Act No. 4 of 1994 can be filled up separately even if they have not been advertised earlier, in that recruitment year or in the subsequent recruitment year, or such reserved vacancies have to be advertised at least once to be carried over for the recru....
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....gher Education Service Commission initiating a selection process for filling up 838 posts of Lecturers in different subjects in various Post Graduate/Graduate colleges in the State of U.P. The selection process was described to be a special recruitment to fill up carry forward and backlog vacancies of the reserved categories. All the posts advertised were shown to be reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The principal questions which fell for consideration in Dr. Vishwajeet Singh were as follows: a. Whether the 467 vacancies which came into existence on account of retirement, resignation, and death up to 30 June 2003, could have been included and reserved for Scheduled Caste, Scheduled Tribes and Other Backward Categories along with the 371 carry forward vacancies? b. Whether these 467 vacancies could have been reserved exclusively in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes without they having been earlier advertised or offered to General Category candidates? c. Whether reservation is to be applied by consolidating all vacancies of Lecturers for different Degree Colleges/Post Graduate c....
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....shwajeet Singh and Smt. Phoolpati Devi. The conflict was consequently referred for decision by a Full Bench of this Court. That reference was answered by the Full Bench in Heera Lal holding that the rule of reservation as prescribed under the 1994 Act cannot be implemented where the number of posts in a cadre is less than five. The Full Bench disapproved the judgment in Mahendra Kumar Gond and specifically approved and affirmed the view taken in Dr. Vishwajeet Singh. 8. Presently, in Dr. Archna Mishra, the Division Bench of the Court was considering a challenge to an advertisement issued by the Commission in 2008 for selection of Lecturers in Government aided Degree Colleges in the State of U.P. This advertisement sought to effect appointments against 337 posts reserved for Scheduled Castes and Scheduled Tribes. Since the issues raised in this petition were similar to those which were noticed in Dr. Vishwajeet Singh and Heera Lal, the Division Bench proceeded to evaluate the challenge to the advertisement on merits. During the course of consideration, however, the Division Bench came to conclude that Dr. Vishwajeet Singh appeared to have been decided without a careful examinatio....
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....ral for the State of Uttar Pradesh, at the outset, invited our attention to the order of the Supreme Court dated 19.01.2017 in Civil Appeal Nos. 6385-6386 of 2010 (Rajeev Kumar etc. Vs. State of U.P. & Ors.) with Civil Appeal No. 67727 of 2010, and submitted that in view thereof, the reference need not be answered/addressed. From a bare perusal of the above order, it appears to us that the order confirms/affirms the view taken by the High Court in Dr. Vishwajeet Singh's case on merits. 13. In this view of the matter, we have heard learned counsel for the parties at considerable length on the question whether, in view of the order of the Supreme Court dated 19.01.2017 in Civil Appeal Nos. 6385-6386 of 2010, the questions framed in the reference order, can be answered/addressed on merits. In other words, whether, in view of the order of the Supreme Court dated 19.01.2017, this Court can still proceed to consider the questions framed in the reference order is the moot question. 14. Mr. Ashok Khare and Mr. Radha Kant Ojha, learned Senior Counsels, leading the arguments in favour of the contention that the reference ought to be addressed and answered on merits, contend that de....
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.... Senior Counsels the order dated 19 January 2017 records no reasons and therefore cannot be viewed as a declaration of the law in light of Article 141 of the Constitution. Sri Khare in support of his submissions has placed reliance upon the decision of the Supreme Court in S. Shanmugavel Nadar Vs. State of Tamil Nadu (2002) 8 SCC 361 to submit that the doctrine of merger only mandates the merger of the operative part of the judgment appealed against. Sri Khare would contend that even if this doctrine were to be applied, it would only mean that the superior forum has merely approved and affirmed the operative part of the order of the subordinate court. Viewed in this light, Sri Khare submits that the order of 19 January 1917 cannot be construed beyond it being an affirmation of the operative directions contained in Dr. Vishwajeet Singh. Sri Khare further contended that the order of the Supreme Court dated 19 January 2017 cannot be viewed as a precedent upholding or approving the legal position enunciated in Dr. Vishwajeet Singh. Sri Khare submits that it is only the declaration of the law by the Supreme Court within the meaning of Article 141 of the Constitution which would bind thi....
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....f the Division Bench at Lucknow. On the contrary, the contents of the order of the Supreme Court dated 4 September 2013 clearly indicate that the merits of the order of the High Court, the reasons recorded therein and the law laid down were not the subject matter of the decision. As the Supreme Court has held in a consistent line of authority, the doctrine of merger is not a doctrine of rigid and universal application. The doctrine depends upon the nature of the jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid in a given case. What merges is the operative part, i.e. the mandate or decree issued by the superior court. However, in certain cases, the reasons for the decision may also be said to have merged in the order of the superior court, if the superior court, while formulating its judgment or order has adopted or reiterated the reasoning or recorded an express approval of the reasoning incorporated in the decision of the inferior forum. Considering the matter from this perspective, it is clear that the reasons which were indicated in the judgment of the Division Bench at Lucknow have not merged in the o....
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....ailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal. 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order show....
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....onstitutional validity of Act 13 of 1960 amending the Madras City Tenants Protection Act, 1921 is under challenge in these appeals. The State of Tamil Nadu was not made a party before the Trial Court. However, the State was impleaded as a supplemental respondent in appeal as per orders of the High Court. When the appellants lost the appeal, they sought leave to appeal to this Court. The State of Tamil Nadu was not made a party in the said leave petition. In the SLP before this Court also the State of Tamil Nadu was not made a party. A challenge to the constitutional validity of the Act cannot be considered or determined, in the absence of the State concerned. The learned counsel now prays for time to implead the State of Tamil Nadu. This appeal is of the year 1973. In our view it is neither necessary nor proper to allow this prayer at this distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals, but without any order as to costs." 21. It is clear from the aforesaid order that the Supreme Court did not go into the question of constitutional validity of Act No. 13 of 1960 nor did the Supreme Court apply its mind to the correctness or otherwi....
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....emed to have been affirmed by the Supreme Court in view of the dismissal of the appeals preferred there-against. Feeling aggrieved by the decision of the Full Bench, appeals were filed by special leave. The Supreme Court, while dealing with the question, in paragraphs 9, 10, 11, 12, 13 and 14, observed thus: "9. Having heard the learned counsel for the parties, we are of the opinion that these appeals deserve to be allowed and the decision of the Full Bench dated 30-8-2000 deserves to be set aside as erroneous for reasons more than one as stated hereinafter. 10. Firstly, the doctrine of merger. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e. the mandate or decree issued by the Court which may have been expressed in a positive or negative forum. For example, take a case where the subordinate forum passes an order and the same, having been dealt with by a superior forum, ....
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....of the law, it cannot be said that the decision of this Court dated 10-9-1986 had the effect of resulting in merger into the order of this Court as regard the statement of law or the reasons recorded by the Division Bench of the High Court in its impugned order. The contents of the order of this Court clearly reveal that neither the merits of the order of the High Court nor the reasons recorded therein nor the law laid down thereby were gone into nor could they have been gone into. 12. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai's case was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of Article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India (1990) 4 SCC 207, this Court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. In Stat....
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....by the Supreme Court shall be binding on all the courts within the territory of India. When no reasons are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under Article 141 of the Constitution. In Indian Oil Corporation Ltd. v. State of Bihar (1986) 4 SCC 146 this Court observed that the questions which can be said to have been decided by this Court expressly, implicitly or even constructively, cannot be reopened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. 14. It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution." 24. The doctrine of merger, as observed by the Supreme Court in Kunhayammed (supra), is not a principle either of universal or unlimited application. It will depend on the ....
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....e Supreme Court held that in certain situations the reasons for a decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, "or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum". 27. It is these observations in Kunhayammed and S. Shanmugavel Nadar which are clearly determinative and settle the question which arises before us. The Supreme Court, while dismissing the appeal has clearly observed that it is in agreement with the view taken in Dr. Vishwajeet Singh and, accordingly, affirmed the same. There is thus a positive and unambiguous expression of approval of the said decision and, therefore it cannot be said that the order of the High Court did not merge into the order of the Supreme Court. 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 ....
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....ual backdrop that the observations of the Full Bench need to be appreciated. 29. Insofar as Article 141 of the Constitution of India is concerned, it speaks of declaration of law by the Supreme Court. For a declaration of law, there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India, (1990) 4 SCC 207, the Supreme Court held that the doctrine of precedents, that is Courts being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. Similarly, in State of U.P. and another. v. Synthetics and Chemicals Ltd. and another, (1991) 4 SCC 139, the issue was dealt with in the light of the rule of sub silentio. The question posed was: can the decision of an appellate court be treated as a binding decision of that court on a principle of law which was neither raised nor preceded by any consideration or, in other words, can such conclusion be considered as a declaration of law? The Supreme Court, while answering this question, observed that the rule of sub silentio is an exception to the rule of precedents. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, essent....
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....us "express approval" in the order of 19.01.2017 clearly forecloses all debate and quells all doubts on the question raised. 32. The present reference and whether this Full Bench should examine the correctness of Dr. Vishwajeet Singh can be examined from another angle also. If one were to pose the question whether the reference could have been made if the order of the Supreme Court dated 19.01.2017 had been in existence and placed before the Division Bench, the answer would clearly be in the negative. Once the decision in Dr. Vishwajeet Singh stood specifically approved/affirmed by the Supreme Court and consequently merged in the said order, the question of doubting its correctness or dissenting from the same would not arise. 33. Our unequivocal answer therefore to the issue framed would be that the decision in Dr. Vishwajeet Singh stood duly affirmed by the Supreme Court. The terms of the order dated 19.01.2017 clearly establish that the said decision and the view taken by the Division Bench therein was specifically approved. The said decision consequently merged in the order of the Supreme Court. The order of the Supreme Court came to be rendered after grant of leave. Once ....