Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
14. 08.2014 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR. JUSTICE R.MAHADEVAN W.A.(MD)No.1344 of 2013 and M.P(MD)No.2 of 2013 1.The State of Tamil Nadu, represented by The Secretary, School Education Department, Chennai - 600 009. 2.The Director of School Education, College Road, Chennai - 600 006. 3.The Chief Educational Officer, Theni. ... Appellants/Respondents Vs. 1.K.Vasimalai ... 1st Respondent/Petitioner 2.The Secretary, Pachayappa Hindu Nadar Higher Secondary School, Kamatchipuram, Uthamapalayam Taluk, Theni District. ... 2nd Respondent/4th Respondent Prayer: Writ Appeal filed under Clause 15 of the Letter Patent Act, against the order dated 05.03.2012 passed in W.P(MD)No.5766 of 2008. !For Appellants ... Mr.V.R.Shanmuganathan, Special Govt. Pleader ^For Respondents ... Mr.M.Vallinayagam Senior Counsel for Mr.M.Gnanagurunathan :
JUDGMENTThe State filed the present writ appeal, aggrieved by the order of the learned single Judge, in W.P(MD)No.5766 of 2008, dated 05.03.2012.
2. For the sake of convenience, the parties are referred according to their litigative status in the writ petition.
3. Necessary facts for the disposal of this writ appeal are as follows:
3. 1. The writ petitioner filed the writ petition challenging the order of the first respondent dated 21.5.2008 and for a direction to re-fix the basic pay of the writ petitioner in terms of G.O.Ms.No.840, Finance (Pay Commission) Department dated 31.7.1990. 3.2. The writ petitioner joined the service as Double Part Time Instructor with B.Sc., qualification in the fourth respondent school on 02.08.1988. The first respondent Government issued G.O.Ms.No.967 dated 16.10.1992 and ordered that the services of Double Part-Time Instructors be regularised in the scale of pay of Rs.1400-2600 as per G.O.Ms.No.712 Vocational Instructors, with effect from 01.04.1990. Therefore, in pursuance of the said regularization, the Double Part-Time Instructors became Full Time Instructors and the basic pay was fixed without specific clarification or reference to the qualification of the Vocational Instructors. 3.3. It is the case of the writ petitioner that even before the issuance of G.O.No.967 dated 16.10.1992, the first respondent had already issued a G.O.Ms.No.840, Finance (Pay Commission) Department, dated 31.07.1990, amending that the Agricultural Instructors holding B.Sc., (Agri), Degree are to be paid the basic pay of Rs.2000-3500 and the benefit of the said order was given effect to retrospectively from 01.06.1988. According to the petitioner, the Agricultural Instructors (Vocational) holding B.Sc., (Agri) degree are entitled to be paid the basic pay of Rs.2000-3500. As the writ petitioner is having B.Sc., degree and doing the same work to be performed by the Agricultural Instructor (Vocational), he is entitled to be paid a similar salary in accordance with G.O.Ms.No.840 (Finance (Pay Commission) dated 31.07.1990. When the writ petitioner was regularized in the year 1992 and working as Full Time Instructor in Agriculture, the authorities ought to have fixed the basic pay as Rs.2000-3500/-. Hence, he made a representation on 31.07.1990 for re-fixing the salary. Since the same was not considered, he filed W.P.No.27056 of 2007, wherein an order was passed on 30.8.2007 directing the respondent therein to consider the petitioner's representation and to pass orders on merits and in accordance with law. Thereafter, the impugned order herein was passed rejecting the claim of the writ petitioner. 3.4. Before the learned Judge, it was the specific plea of the writ petitioner that the issue involved in the matter was directly covered by the order passed by the learned Judge of this Court in G.Narayanasamy Vs. State of Tamil Nadu rep. by its Secretary to Governemnt and two others [W.P.No.32121 of 2006, decided on 05.01.2010]., wherein similar relief was sought for and the same was granted. Whereas the learned Special Government Pleader also fairly conceded the same, but he was not able to say whether any appeal was filed as on date. 3.5. Considering the same, it was found by the learned Judge that he was bound to follow the said order passed by the learned Judge in W.P.No.32121 of 2006, dated 05.01.2010, in the absence of any material to show that any appeal was preferred against the said order. Accordingly, the learned Judge had categorically held in the above said order that when the petitioner therein was also doing the same work, as that of the other Vocational Instructors, there could be no justification to deny the scale of pay applicable to the Vocational Instructors and that there could not be two sets of Vocational Instructors drawing the different scale of pay and doing the similar work and granted the relief by fixing the scale of pay as Rs.2000-3500. Ultimately, the learned Judge held that the petitioner herein was entitled to the relief of re-fixation of the scale of pay in terms of G.O.Ms.No.840 Finance (Pay Commission) dated 31.7.1990 and set aside the impugned order. Aggrieved over the same, the State has filed the present writ appeal.
4. Mr.VR.Shanmuganathan, learned Special Government Pleader appearing for the appellants submitted that the order passed by the learned Judge is not sustainable in law and since there is a conflict between the judgments of this Court, the matter shall be referred to a Larger Bench for appropriate orders. He further submitted that the Division Bench of this Court (EDRJ & RPSJ) had passed a non-speaking order in W.A.No.1814 of 2011, as against which, the Special Leave Petition before the Honourable Supreme Court and the same was dismissed. According to him, the dismissal of the Special Leave Petition at the threshold, is not a precedent. Moreover, the Division Bench of this Court in W.A.No.1814 of 2011 did not lay down any law and there is no bar on the appellants to contest the present writ appeal because of the case of Narayanasamy, the petitioner in W.P.No.32121 of 2006 attained finality. Accordingly, he prayed for setting aside the order of the learned Judge of this Court.
5. In support of his submissions, he placed reliance on the following decisions: (i) Harpal Kaur Chalal v. Director, Punjab Instructions, Punjab and another reported in 1995 Supp (4) Supreme Court Cases 706. (ii) Union of India and others v. Jaipal Singh reported in (2004) 1 Supreme Court Cases 121, wherein at paragraph 4, it is held as follows: ".4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefore and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji [(1996) 11 SCC603:
1997. SCC (L&S) 491. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.". (iii) Bharat Petroleum Corporation and another v. N.R.Vairamani and another reported in (2004) 8 Supreme Court Cases 579, wherein the Honourable Apex Court at paragraphs 9 and 11, laid down thus: ".9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC737at p.761), Lord Mac Dermot observed: ".The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge. ...". ***** ***** ***** 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.". (iv) Col.B.J.Akkara (Retd.) v. Govt. of India reported in (2006) 11 Supreme Court Cases 709. Paragraph 26 of it, would run thus: ".26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non- comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The Administrative Law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29.10.1999 (corresponding to the Defence Ministry circular dated 11.9.2001) has been upheld and that decision has attained finality will not come in the way of State defending or enforcing its circular dated 11.9.2001.". (v) U.P.State Electricity Board v. Pooran Chandra Pandey and others reported in (2007) 11 Supreme Court Cases 92. (vi) Basawaraj and another v. Special Land Acquisition Officer reported in 2013 (6) SUPREME144 6. Per contra, Mr.M.Vallinayagam, learned Senior Counsel appearing on behalf of Mr.M.Gnanagurunathan, learned Counsel for the first respondent submitted that the learned Judge after considering all the materials available before him, had correctly allowed the writ petition, warranting no interference at the hands of this Court. He also brought to our attention to the decision of the Honourable Supreme Court in Arindam Chattopadhyay and others v. State of West Bengal and others reported in (2013) 4 Supreme Court Cases 152, as to the applicability of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India, in the matter of pay and allowances.
7. The learned Senior Counsel appearing for the first respondent also produced a copy of the proceedings of the Joint Director dated 01.11.2013, wherein the Joint Director directed all the Chief Educational Officers of all the Districts to give information about the total amount to be spent if the scale of pay is fixed as per G.O.Ms.No.840, Finance (Pay Commission) Department, dated 31.07.1990, so as to establish that the first respondent is entitled for the relief as per the said Government Order.
8. We have given our anxious consideration to the submissions made on either side and perused the materials available on record.
9. The issue to be considered herein is as to whether the writ petitioner who is having B.Sc., degree and doing the same work to be performed by the Agricultural Instructor (Vocational), is entitled to be paid a similar salary in accordance with G.O.Ms. No.840 (Finance (Pay Commission) dated 31.7.1990, by which, the scale of pay for the Agricultural Instructors were revised to Rs.2,000/-.
10. Before delineating into the issue, it is proper to examine the earlier orders passed by this Court in detail, which would throw light on the issue involved in the present writ appeal.
11. In W.P.No.19224 of 1998, this Court (K.Chandru,J) rejected the claim of the petitioners therein for a direction to fix the scale of pay of the petitioners therein on par with that of the bifurcated Instructors/P.G.Teachers based on the principle 'Equal Pay for Equal Work' from the date of fixing their regular scale of pay pursuant to G.O.Ms.No.712, dated 28.05.1990, G.O.Ms.No.967, dated 16.10.1992 and G.O.Ms.No.834, dated 23.09.1994.
12. Whereas in W.P.No.32121 of 2006, this Court (D.Hariparanthaman,J) held that the Vocational Instructors shall be paid all monetary benefits on par with other P.G.Teachers.
13. Meanwhile, W.P.No.17801 of 2009, was filed by the Full Time Vocational Instructors stating that they were equally qualified as that of the Post Graduate Teachers working in the Higher Secondary Schools and prayed for fixing the scale of pay on par with the Bifurcated Instructors/P.G.Teachers working in the same Department. Since there was a controversy between the judgments rendered by this Court, the matter was referred to the Division Bench (EDRJ & KKSJ) for consideration. The Division Bench of this Court, by order dated 08.09.2010, dismissed the said writ petition, holding that the view taken by this Court in W.P.No.19224 of 1998 (K.Chandru,J) was the correct law and the view of this Court (D.Hariparanthaman,J) in W.P.No.32121 of 2006 was not in accordance with law.
14. Thereafter, G.Narayanasamy, a third party, (the petitioner in W.P.No.32121 of 2006) filed Review Application No.2 of 2011 in W.P.No.17801 of 2009 and by order dated 11.02.2011, the Division Bench of this Court (EDRJ & FMIKJ), on a perusal of both the judgments rendered by the learned Judges of this Court in W.P.No.19224 of 1998 (K.Chandru,J), dated 23.03.2009 and in W.P.No.32121 of 2006 (D.Hariparanthaman,J) dated 05.01.2010, found that both the judgments were on different points and hence, the observation made by the Division Bench in paragraph 9 as against the order passed by D.Hariparanthaman, J.
in W.P.No.32121 of 2006, as not in accordance with law, was ordered to be deleted.
15. In the writ appeal filed by the State in W.A.No.1814 of 2011 as against the order of the learned Judge (D.Hariparanthaman,J), the Division Bench of this Court (EDRJ & RPSJ) found that the issue involved in the said writ appeal was already decided by a Division Bench in the order dated 11.02.2011 in Review Application No.2 of 2011 and therefore, dismissed the writ appeal filed by the State. Against the said order passed by the Division Bench (EDRJ & RPSJ) of this Court, the State filed a Special Leave Petition before the Honourable Apex Court and the same was dismissed on 01.07.2013.
16. Now, the present writ appeal is arisen out of the order of the learned Judge of this Court in W.P(MD)No.5766 of 2008, (K.Ravichandra Baabu,J), wherein the writ petitioner, a Double Part Time Instructor, claimed for re-fixation of basic pay on par with Agricultural Instructor (Vocational) on the basis of G.O.Ms.No.840, Finance (Pay Commission) Department, dated 31.07.1990. The learned Judge, following the order passed by one of the learned Judges (D.Hariparanthaman,J), granted the relief sought for by the petitioner and directed to re-fix the scale of pay of the petitioner therein in terms of G.O.Ms.No.840, Finance (Pay Commission) Department, dated 31.07.1990 and the said order is impugned by the State in the present writ appeal.
17. A perusal of the various typed sets of papers would show that in the order dated 23.03.2009 passed in W.P.No.19224 of 1998, the learned Judge (K.Chandru,J) dealt with the issue regarding the fixation of pay for the higher post as well as the feeder category. But, in the order dated 05.01.2010 passed in W.P.No.32121 of 2006, the learned Judge (D.Hariparanthaman,J) dealt with the Vocational Instructors alone. In W.P.No.17801 of 2009, the Division Bench of this Court (EDRJ & KKSJ), held that the order passed in W.P.No.32121 of 2006 was not good law and later, in the Review Application filed by the petitioner in W.P.No.32121 of 2006, the Division Bench of this Court (EDRJ & FMIKJ), while deleting the observation made in paragraph 9 to the effect that the view taken by D.Hariparanthaman,J.
in W.P.No.32121 of 2006 was not in accordance with law, held that the orders passed in W.P.No.19224 of 1998 and W.P.No.32121 of 2006 are different and not one and the same, thereby affirmed the order passed by the learned Judge (D.Hariparanthaman,J.) in W.P.No.32121 of 2006.
18. In this connection, the decision of the Honourable Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., reported in (2003) 2 SCC111 could fruitfully be referred to, wherein, it is held as follows: ".59. ... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.". (emphasis added) 19. Furthermore, the writ appeal filed in W.A.No.1814 of 2011 as against the order of the learned Judge (D.Hariparanthaman,J.) passed in W.P.No.32121 of 2006 was dismissed by the Division Bench of this Court (EDRJ & RPSJ), which was also challenged before the Honourable Supreme Court by way of the Special Leave Petition and the same was dismissed on 01.07.2013.
20. Insofar as the contention regarding the applicability of the order dismissing the Special Leave Petition filed as against the judgment of the Division Bench of this Court in W.A.No.1814 of 2011, is concerned, we feel, it would be appropriate to refer to the following decisions: (a) In Kunhayammed v. State of Kerala reported in (2000) 6 Supreme Court Cases 359, wherein the Honourable Apex Court held thus: ".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 shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. ***** ***** ***** ***** ***** ***** 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 upto 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) An order 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, whatever 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 to 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 CPC.". (b) In Abbai Maligai Partnership Firm v. K.Santhakumaran reported in (1998) 7 SCC386(Three Judges Bench), the Honourable Apex Court, at paragraph 4, held as follows: ".4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject- matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter (sic manner) in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. .....". (emphasis supplied) (c) The aforesaid view has been followed in K.Rajamouli vs. A.V.K.N.Swamy, reported in (2001) 5 SCC37and in paragraph 4 of the judgment, it is laid down as follows: ".4. Following the decision in the case of Kunhayammed [(2000) 6 SCC359, we are of the view that the dismissal of the special leave petition against the dismissal of main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to the filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm [(1998) 7 SCC386 that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of the special leave petition is maintainable.". (emphasis supplied) (d) The Honourable Apex Court in Khoday Distilleries Ltd. v. Mahadeswara S.S.K. Ltd., reported in (2012) 12 Supreme Court Cases 291, while referring the issue to a Larger Bench as to the maintainability of review petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons, held thus: ".5. We notice applying the ratio of the judgments in Abbai Maligai Partnership Firm (1998) 7 SCC386or Kunhayammed (2000) 6 SCC359conflicting views are being expressed in few of the subsequent judgments of this Court.
6. In Meghmala v. G. Narasimha Reddy (2010) 8 SCC383 this Court after referring to Abbai Maligai Partnership Firm and Kunhayammed expressed the following view: (Meghmala case, SCC p. 394, paras 25-26) ".25. Thus, the law on the issue stands crystallised to the effect that in case a litigant files a review petition before filing the special leave petition before this Court and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the special leave petition, the process of filing review application amounts to abuse of process of the court.
26. In view of the above, we are of the considered opinion that filing of such a review application by the respondents at a belated stage amounts to abuse of process of the court and such an application is not maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of dismissal of the review application by the Special Court and the order of the High Court to that extent is liable to be set aside.".
7. In Palani Roman Catholic Mission v. S. Bagirathi Ammal (2009) 16 SCC657 this Court has taken the view that review petition can be filed if no leave has been granted to file an appeal and until there is no appeal in the eye of law in the superior court, review can be preferred in the High Court under Order 47 Rule 1. This Court, in that case, set aside the judgment of the High Court and directed the High Court to consider the review petition in accordance with law.
8. Again in Bhakra Beas Management Board v. Krishan Kumar Vij (2010) 8 SCC701 this Court held that: (SCC p. 708, para 19) ".19. ... the mere dismissal of a special leave petition at a preliminary stage does not constitute a binding precedent, and any order passed by the High Court placing reliance on earlier order, can still be challenged subsequently.".
9. In K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC37following the Judgment in Abbai Maligai Partnership Firm and Kunhayammed this Court further explained the principle of res judicata and held as follows: (K.Rajamouli case, SCC p.41, para 4) ".4. Following the decision in the case of Kunhayammed we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.".
10. A different note was struck by this Court in Gangadhara Palo v. Revenue Divisional Officer (2011) 4 SCC602and after referring to the judgment in K. Rajamouli it was held as follows: (Gangadhara case, SCC pp. 603-604, paras 506) ".5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.".
11. We notice that in K. Rajamouli this Court has followed Kunhayammed and distinguished Abbai Maligai Partnership Firm and in Gangadhara Palo the later Bench did not accept the view expressed in K. Rajamouli. To this extent, there is some conflict between the Judgments in Gangadhara Palo and K. Rajamouli which calls for resolution by a larger Bench.
12. We may also point out, in this connection, that Article 136 of the Constitution does not confer any right of appeal on any party but it confers a discretionary power on the Supreme Court to interfere in suitable cases. Clause 1 of Article 136 of the Constitution confers very wide and extensive powers on the Supreme Court. Article commences with a non obstante clause, the words are of overriding effect and clearly indicate the intention of the framers of the Constitution that it is a special jurisdiction and residuary power unfettered by any statute or other provisions of Chapter IV of Part V of the Constitution. The jurisdiction under Article 136 of the Constitution, of course, cannot be barred by statute since it is extraordinary power under Article 136. Article 136 is an extra-ordinary power which cannot be taken away by legislation.
13. We also notice that several statutes confer on aggrieved parties right of appeal to the Supreme Court in contra distinction with the powers conferred on the Supreme Court under Article 136 of the Constitution, for instance, Section 15-Z of the Securities and Exchange Board of India Act (SEBI), 1992 confers a right of appeal to any person aggrieved by any decision or order of the Securities Appellate Tribunal. So also various regulatory legislations provide for statutory right of appeal. To what extent, the principle of res judicata and merger would apply in respect of a decision rendered by this Court while exercising its statutory power of appeal as well as the one rendered while entertaining an appeal invoking Article 136 is not seen considered by the larger bench either in Abbai Maligai or Kunhayammed case, which is also, in our view, an issue to be considered by the larger Bench.
14. We notice considerable arguments are being raised before this Court as well as before various High Courts in the country on the maintainability of review petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons on which also conflicting views are also being expressed by the two-Judge Benches of this Court. In order to resolve those conflicts and for proper guidance to the High Courts, we feel it would be appropriate that this matter be referred to a larger bench for an authoritative pronouncement.". (emphasis supplied.) (e) In J.Alex Ponseelan v. The Director General of Police, Tamil Nadu, the Larger Bench of this Court, placing reliance on various decisions of the Honourable Apex Court, observed at paragraph 14, as under: ".14. The Apex Court held that once Special Leave Petition is dismissed, the Doctrine of Merger applies and the Judgment of the High Court merges with the Order of the Supreme Court and the emphasis is that even if it be just one sentence, the Doctrine of merger will apply. ....". (emphasis added.) 21. Keeping in mind the ratio laid down in the aforesaid decisions of the Honourable Apex Court as well as this Court, we have no hesitation to conclude that the impugned order herein passed by the learned Judge (K.Ravichandrabaabu,J.), in W.P(MD)No.5766 of 2008, dated 05.03.2012, by following the order passed by the learned Judge (D.Hariparanthaman,J.) in W.P.No.32121 of 2006, dated 05.01.2010, is tenable.
22. Further, on a deep scrutiny of the materials available on record, we find that there is no need to refer the matter to a Larger Bench, since there are no conflict verdicts on the issue on hand and it cannot be said that the order passed by the Division Bench of this Court (EDRJ & RPSJ) is a non-speaking order, for the reason that the Division Bench of this Court had considered the issue and upheld the order passed by the learned Judge (D.Hariparanthaman,J) in W.P.No.32121 of 2006. It is also not correct to state that the Honourable Supreme Court simply dismissed the Special Leave Petition without dealing with the correctness of the matters.
23. In such circumstances, we find that the order passed by the learned Judge (K.Ravichandra Baabu,J) in W.P(MD)No.5766 of 2008, dated 05.03.2012, by following the earlier order passed by the learned Judge (D.Hariparanthaman,J), in W.P.No.32121 of 2006, dated 05.01.2010, which was ultimately confirmed by the Honourable Apex Court, is in accordance with law and no interference at the hands of this Court is warranted. Accordingly, we find no cause or reason to differ with the same.
24. In fine, the writ appeal stands dismissed. Consequently, the connected miscellaneous petition is dismissed. No costs.