1. Heard Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner. Also heard Mr. D.P. Kundu, learned Advocate General appearing for the respondents.
2. At the outset, learned Advocate General raised the question of maintainability of this proceeding on the solitary point that the order dated 30-9-2011 as passed in this proceeding since merged with the order dated 23-2-2012 as passed by a Division Bench of this Court in Cont. App. (C) No.02/2011, this proceeding cannot be carried on any further. In other words, for the order dated 23-2-2012 the proceeding has to be closed. For appreciation, the relevant part of the order dated 30-9-2011 is required to be excerpted.
â32. In this proceeding, the petitioner has categorically stated that, after the order passed in W.P.(C) No.360/2008 and W.P.(C) No.235/2009, the petitioner approached the respondents for granting an amount of Rs.95,90,769/- towards payment of arrear salaries and for implementing the âMid-Day-Meal Scheme. It has also been contended that, even after passing of the stay order, dated 26.08.2010 aforesaid, the petitioner, by its letter, dated 30.08.2010, requested the respondents to place the fund for payment of salaries of teaching and non-teaching staff of the said school and to make the ââMid-Day-Meal Scheme operational. Admittedly, neither the fund towards payment of salaries has been granted nor the âMid-Day-Meal Scheme has been introduced.
33. From the above discussion, it is found that the respondents, in the above facts and circumstances, without canvassing any other compelling predicament or circumstances, for which the respondents are not in a position to make available the fund necessary for payment of salaries and implement the âMid-Day-Meal Scheme, have simply denied their obligation to pay salaries of the teaching and non-teaching staff of the school and implement the âMid-Day-Meal Scheme. Of course, the respondents have stated that they did not receive the letter, dated 30.09.2010 (30.08.2010), containing request for placing fund and making the âMid-Day-Meal Scheme operational. Even if the respondents did not receive such request, they were aware of the directions made in the said orders. Their categorical statements that they are not under any obligation to pay the salaries and implement the âMid-Day-Meal Scheme, indicates their refusal to comply with the said requirement, without being prevented by any compelling circumstances or impediment.
34. In view of above discussion, I have no hesitation in holding that it has been prima facie established that the respondents wilfully and intentionally disobeyed the Courts order/direction dated 26.08.2010 aforesaid, by refusing to extend the consequential benefits i.e. fund for payment of salary and implementation of âMid-Day-Meal Scheme i.e. the benefits, which arose out of the âGrant-in-Aid status, made available to the petitioners school. Therefore, I find sufficient materials for drawing up a contempt proceeding against the respondents on the said charge.
Accordingly, a contempt proceeding is initiated against the said respondents.â
3. The respondents filed an appeal before a Division Bench of this Court being Cont. App. (C) No.02/2011, which was disposed of by the order dated 23-2-2012. For sake of brevity, the operative part of the said order dated 23-2-2012 may be excerpted.
â12. The further contention of the learned Sr. counsel for the appellants that by the impugned order dated 30.09.2011, as the learned Single Judge has recorded the finding that the appellants are guilty, which amounts to a decision to punish for contempt and hence appeal under Section 19 of the 1971 Act is maintainable, cannot be accepted as it is evident from the impugned order that the learned Single Judge has discussed all the materials made available in the contempt proceeding to record the prima facie opinion of commission of the contempt by the appellants, which is necessary for the purpose of drawing up the contempt proceeding against them. Such prima facie opinion is tentative and not final.
13. In view of the aforesaid discussion, we are of the considered opinion that the appeal against the order drawing up contempt proceeding against the appellants is neither appealable under Section 19 of the 1971 Act nor any intra court appeal lies against the said order.
14. Hence the appeal is dismissed as not maintainable.â
4. It is apparent from the said judgment and order dated 23-2-2012 that the said appeal was held to be not maintainable and as such no decision touching the merit of the order date 30-9-2011 had been taken up by the said Division Bench inasmuch as the appeal was found not maintainable under Section 19 of the Contempt of Courts Act, 1971.
5. Learned Advocate General appears very serious on the issue of merger of the order dated 30-9-2011 with the said order dated 23-2-2012 and has relied several decisions of the Apex Court.
6. In Kunhayammed v. State of Kerala, reported in (2000) 6 SCC 359 : (AIR 2000 SC 2587), the Apex Court held:
â7. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.
8. In CIT v. Amritlal Bhogilal and Co., AIR 1958 SC 868, this Court held:
âThere can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.â
7. Learned Advocate General further relied the following parts of the Apex Court decision in Kumhayammed (AIR 2000 SC 2587) (supra).
â41. 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 shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. âTo mergeâ means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; and absorption or swallowing up so as to involve a loss of identity and individuality.(See Corpus Juris Secundum, Vol. LVII, pp. 1067-68)
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
44. To sum up our conclusions are.
(i) 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.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to 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.
(iii) 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.
(iv) Another 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.
(v) 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, what 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 of 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.
(vi) 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.
(vii) 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 review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.â
8. Kunhayammed (supra) was also relied in Union of India v. West Coast Paper Mills Ltd. as reported in (2004) 2 SCC 747 : (AIR 2004 SC 1596) as follows:
â23. In Kunhayammed (AIR 2000 SC 2587) (supra) this Court held (SCC p.370, para 12).
12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.â
It was further observed: (SCC p.383, paras 41-42).
â41. 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 shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. âTo mergeâ means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. 57, pp. 1067-1068)â
[See also Raja Mechanical Co. (P) Ltd. v. CCE (2002) 4 AD (Del) 621].â
9. Similarly, the Apex Court followed Kunhaymmed (supra) in Chandi Prasad v. Jagdish Prasad, as reported in (2004) 8 SCC 724, where the Apex Court held:
â25. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed v. State of Kerala (2000) 6 SCC 359 wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply stating: (SCC p.383, paras 41-43).
â41. 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 shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. âTo mergeâ; means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; and absorption or swallowing up so as to involve a loss of identity and individuality.(See Corpus Juris Secundum, Vol. LVII, pp. 1067-68)
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stageâ.
10. Learned Advocate General has placed reliance on Three Circles v. Maharashtra State Road Development Corpn. Ltd., as reported in (2005) 9 SCC 307. In that case, the appeal preferred by the defendant against an order of interim injunction came to be dismissed. The High Court while dismissing the appeal, directed the hearing of the notice of motion to be expedited. Against that order, the defendant had preferred a Special Leave petition in the Apex Court. While it was brought to the notice of the Supreme Court, the said notice of motion was made absolute in part and against the said order another appeal has been preferred by the petitioner in the said SLP and the said appeal was pending in the Supreme Court. In that case, the Supreme Court clarifies as under:
â4. Needless to say that the order which was sought to be impugned in the present special leave petition has stood merged in the subsequent order of the trial Court against which an appeal in the High Court is pending. The present special leave petition is, therefore, rendered infructuous. It be treated as disposed of without any adjudication on merits. It is, however, clarified that all the pelas raised herein will be available to be urged in the appeal pending in the High Court against the order dated 4-12-2004 and that appeal shall be heard and decided uninfluenced by any observations contained in the earlier order of the High Court which was sought to be impugned herein.â
Almost in similar line, another decision of the Apex Court in Kasturibai v. Anguri Chaudhary, as reported in (2003) 3 SCC 225 : (AIR 2003 SC 1773) was relied by the learned Advocates General, wherein an appeal was directed against a judgment and order passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur, whereby and whereunder the High Court refused to entertain an application filed by the appellants purporting to be under Section 151 of the Code of Civil Procedure, 1908 for recalling of an order passed by a learned single Judge of the said Court in Civil Revision, which in turn arose out of an order passed which in turn arose out of an order passed by the learned Addl. District Judge, Shahdol, Madhya Pradesh, dismissing an application filed by the respondent herein under Order 32, Rule 15 of CPC. The appellants, before the Supreme Court, filed an application for recalling the order passed by the High Court on the ground that notices upon them were not served and that the application for review was not placed before the learned single Judge who has disposed of the Civil Revision rather the same was placed before a Division Bench and the Division Bench considered the same by the impugned order. In the said case, the Apex Court held as under:
â8. Having heard the learned counsel for the parties, we are of the opinion that the Division Bench of the High Court committed a manifest error in treating the application for recalling, as an appeal against the order passed by the learned Single Judge. No intra court appeal lay before a Division Bench against the order dated 5.5.1999 as the same was passed by the High Court in exercise of its revisional jurisdiction.
9. Shri Jain, therefore, has rightly submitted that the order of the learned Single Judge must be held to have merged with the order of the Division Bench.â
11. Learned Advocate General has also placed reliance on Medley Pharmaceuticals Limited v. Commissioner of Central Excise and Customs, Daman, as reported in (2011) 2 SCC 601 : 2011 AIR SCW 757) wherein the Apex Court following Kunhayammed (supra), held as under:
â42. In the case of Kunhayammed v. State of Kerala (2000) 6 SCC 359 : (AIR 2000 SC 2587) it was held (SCC p.383, paras 41-42).
â41. 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 shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. âTo mergeâ means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; and absorption or swallowing up so as to involve a loss of identity and individuality.(See Corpus Juris Secundum, Vol. LVII, pp. 1067-68)
12. Finally, the learned Advocate General referred the decision of the Apex Court as rendered in U.P. State Road Transport Corporation v. Omaditya Verma, as reported in (2005) 4 SCC 424 : (AIR 2005 SC 2250) wherein the Apex Cort held as under:
â7. In fact, we have reproduced the relevant portions of the two notifications in the beginning of this judgment. The main purpose of reproduction of both notifications was to show that the route in question i.e. Muzaffarnagar to Chajlet covers the notified route from Bijnor to Noorpur which is notified route since 1952. We fail to understand how permit could be granted by the resolution dated June 14-15, 1993 from Muzaffarnagar to Chajlet in face of the notified scheme of 1952 from Bijnor to Noorpur. The scheme was of total exclusion. In fact the resolution dated June 14-15, 1993 is totally unmindful of the 1952 notification that the route from Bijnor to Noorpur which falls on the route from Muzaffarnagar to Chhjlet is notified route. This fact was no where brought to the notice of the authorities either before the Regional Transport Authority or State Transport Authority or before the High Court of Allahabad or for that matter to the Apex Court. This Court by order dated July 21, 1995 only remanded the matter back to the Tribunal for its decision. In those appeals before the State Transport Appellate Tribunal, the present appellant i.e. UPSRTC was not a party. The dispute before this court was between the operators and the authorities and the UPSRTC was not made a party when the whole matter was remanded before the Tribunal. Had the UPSRTC been made a party before the Apex Court they would have brought to the notice of the Apex Court that a portion of the route from Bijnor to Noorpur is notified route. When the entire matter was remanded back to the Tribunal by the Apex Court by Order dated 21.7.1995, another notification was issued on September 3, 1994 whereby the route from Muzaffarnagar to Bijnor via Jansath, Meerapur and Dewal was also notified. Strangely enough UPSRTC was not party before Apex Court or before STAT. It is for the first time in 1993 before High Court the UPSRTC was impleaded as a respondent. It is true that when the resolution dated June 14-15, 1993 was passed at that time the route from Muzaffarnagar to Bijnor via Jansath Meerapur and Dewal was not notified but the route from Bijnor to Noorpur was already notified on February 12, 1952 and we do not understand how could the Regional Transport Authority and State Transport Authority ignore this fact that the portion from Bijnor to Noorpur which falls on the route from Muzaffarnagar to Chajlet was notified, permits were granted on this notified route. This ignorance appears to be bona fide as nobody seems to have been cognizant of the notification dated February 12, 1952. The appellant UPSRTC could have been alive to the situation and should have moved the Tribunal and should have brought this fact to their notice but the appellant did not choose to take any step. We cannot appreciate their lack of vigilance. Be that as it may, the authorities issuing permits from Muzaffarnagar to Chajlat should have at least known that a portion of the route falling from Bijnor to Noorpur is a notified route. It is true that this matter has traveled up to the Apex Court and it has gone through various litigation but nobody brought to the notice of the authorities that the route from Bijnor to Noorpur is notified one and no permit could be granted on this route. It is needless to state that once it is nationalized route, there is prohibition to permit any private vehicle to ply except by amending the scheme. It is the mandate of the law and that cannot be ignored. More so, at the time when this order was passed by the Division Bench of the High Court the route from Muzaffarnagar to Bijnore via Jansath, Meerapur and Dweal stood notified on September 3, 1994. We regret to say that the Division Bench of the High Court has overlooked this aspect of the matter and proceeded to decide the matter on the assumption that the effect of this Notification dated September 3, 1994 has already been taken into consideration. We fail to appreciate this aspect. Once the route from Muzaffarnagar to Bijnor via Jansath, Meerapur and Dweal has already been notified on September 3, 1994 how can the High Court direct the appellant to grant permit on the aforesaid route. It is true that when resolution which was passed on June 14-15, 1993 by then the notification dated September 3, 1994 had not come into operation but once the scheme under notification dated September 3, 1994 came into operation and the whole route from Muzaffarnagar to Bijnore stood notified and the route from Bijnore to Noorpur was already notified by notification dated February 12, 1952, how can mandamus be issued by the High Court directing the authorities to grant permits to the 38 operators. This Court while remanding the matter did not go into all these questions. This Court only remanded the matter to the Tribunal as disputed questions of facts were involved. The other special leave petitions were dismissed in limine. That does not amount to merger of the High Court order with that of this Courts order. The dismissal in limine does not amount to upholding of the law propounded in the decision sought to be appealed against. This is a settled proposition of law now. Reference may be made to:
Indian Oil Corporation Ltd. vs. State of Bihar (1986) 4 SCC 146 : (AIR 1986 SC 1780):
âHeld:
The dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by Supreme Court. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that Supreme Court had decided only that it was not a fit case where special leave should be granted. It cannot be assumed that it had necessarily decided by implication all the questions in relation to the merits of the award, which was under challenge before Supreme Court in the special leave petition.
13. All these decisions as relied by the learned Advocate General have no application in the context of the present case. The decisions as surveyed at the instance of the learned Advocate General appearing for the respondents do not support the contention of merger as projected and are relatable to entirely different contexts. What is material here is that the respondents herein ventured unsuccessfully by filing an appeal under Section 19 of the Contempt of Courts Act. The said appeal was dismissed on the threshold as nor maintainable. The question pertaining to the context of this case is whether the appeal having been dismissed as non-maintainable will have any import of merger on the decision appealed against. In this context the law is required to be fully enunciated and for that purpose this Court is required to revisit Chandi Prasad (supra), where the Supreme Court held that the doctrine of merger is based on the principles of propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.
It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. Reference:â V.M. Salgaocar and Bros. Pvt. Ltd. v. CIT (2000) 5 SCC 373 : (AIR 2000 SC 1623).
14. Even in Kunhayammed (AIR 2000 SC 2587) (supra), it has been observed by the Apex Court that once a superior Court has disposed of the lis before it either way âwhether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject- matter of challenge laid or which could have been laid shall have to be kept in view.
15. In Raja Mechanical Co. (P) Ltd. v. CCE, as reported in ILR (2002) 1 Del 33, as quoted in Chandi Prasad (supra), the Apex Court approved that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.
16. In Omaditya Verma (AIR 2005 SC 2250) (supra), the Apex Court in no uncertain terms held that the dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by Supreme Court. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that Supreme Court had decided only that it was not a fit case where special leave should be granted. It cannot be assumed that it had necessarily decided by implication all the questions in relation to the merits of the award, which was under challenge before Supreme Court in the special leave petition.
17. The context that is relevant here for consideration is that the appeal has not been decided on merit, it has been held by a decision as contained in the order dated 23-2-2012 as stated that the appeal under Section 19 of the Contempt of Courts Act was not maintainable against the order dated 30-9-2011 inasmuch as the appeal against the order drawing up contempt proceeding is neither applicable under the said provision or law nor any intra-Court appeal lies against the said order. When it has been held that appeal is not maintainable it plies thats the Court has not considered any of the grounds nor has considered the challenge as made against the order dated 30-9-2011. As such, there was no question or merger of the order dated 30-9-2011 with the order dated 23-2-2012 inasmuch as there had been no reversal, modification or affirmation of the order dated 30-9-2011. More particularly no decision was given on the merit of the challenge in the appeal.
18. In view of the survey and analysis as made herein, it is manifest that the doctrine of merger applies when the order of appellant forum is reversed, modified or affirmed by the appellate Court but in the present case the appellate Court refused to entertain the appeal holding that the appeal was not maintainable within the ambit and scope of Section 19 of the Contempt of Courts Act and as such the impugned order dated 30-9-2011 remained undisturbed. The plea that has been raised by the learned Advocate General is frivolous and unsustainable as this Court has held that the doctrine of merger cannot be applied in the present context. Accordingly, the said plea is dismissed without any further consideration. It is disturbing to note that the learned Advocate General has raised such plea on appearing for the respondents in a contempt proceeding.
19. The case shall be fixed on 28-5-2012 for reply of the respondents to the charge as formulated in the order dated 30-9-2011.