Commander and Others vs Bhupendra Kardam and Others

V. Kameswar Rao, J.

CM No. 6338/2015 in Review Petition No. 554/2013

The present application has been filed by Mahesh Kumar, respondent No. 7, Ajay Pal respondent No. 8, Suresh Kumar respondent No. 9, Radhey Shyam respondent No. 10 and Mr. Ranjan Kumar, respondent No. 12 in the Writ Petition making a prayer for recall of order dated October 31, 2013 in Review Petition No. 554/2013, order dated November 12, 2013 in WP (C) No. 3381/2002 with a further prayer to restore the order dated August 22, 2013. The Writ Petition was filed by the Commander Works Engineer (AF, Palam, Delhi Cantt.) challenging the order of the Central Administrative Tribunal (for short the "Tribunal") whereby the Tribunal had set aside the selection of respondent Nos. 7 to 13 including the applicants as Mazdoors. The Writ Petition was allowed by this Court on August 22, 2013 and the order of the Tribunal was set aside.

A Review Petition No. 554/2013 was filed by respondent Nos. 1 to 6. This Court vide order dated October 31, 2013 disposed of the Review Petition, recalling order dated August 22, 2013 and restoring the Writ Petition (C) No. 3381/2002 for fresh hearing. After the hearing of the Writ Petition (C) No. 3381/2002, this Court on November 12, 2013 has upheld the order of the Tribunal dated January 22, 2002 in Original Application No. 303/2000. It is noted, that against the order dated November 12, 2013, the applicants herein, had filed a Special Leave Petitions vide CC Nos. 21677 of 2013, 38909/2013 and 39061/2013 before the Supreme Court. The petitions were dismissed by the Supreme Court on January 2, 2014. During the hearing, a question was posed to learned Senior Counsel for the applicants on the maintainability of this application seeking prayers as referred to above.

The learned Senior Counsel for the petitioner would state, the application in the present form is maintainable de-hors the fact, the Supreme Court had dismissed the SLP filed by the petitioners herein. According to him, the Supreme Court, dismissed the SLP''s with an order simplicitor without referring to the merits. After the dismissal of the SLP, each of the applicants were issued show cause notice by the petitioner/department as to why their services be not terminated. According to him, the proposed action of the petitioners/department, based on a finding of the Tribunal on the alleged illegalities pointed out by the respondent Nos. 1 to 6 i.e non-selectees in the Review Petition are not correct. He has drawn our attention to para 14 of the application to contend none of the applicants relatives were part of the Selection Committee nor directly/indirectly concerned with the same. He also pleaded, that the applicants are the only earning members in their family and have a family to support and after termination of their services, the applicants would not be able to get any other employment being over aged.

In substance, it is his submission that the selection of the applicants cannot be said to have been vitiated, as the facts which weighed with the Tribunal and this Court while dismissing the Writ Petition were not correct. He would rely upon the judgment of the Supreme Court reported as Kunhayammed and Others Vs. State of Kerala and Another, AIR 2000 SC 2587 : (2000) 162 CTR 97 : (2000) 72 ECC 681 : (2001) 129 ELT 11 : (2000) 245 ITR 360 : (2000) 9 JT 110 : (2000) 5 SCALE 167 : (2000) 6 SCC 359 : (2000) 1 SCR 538 Supp : (2000) 119 STC 505 : (2000) 113 TAXMAN 470 : (2000) 2 UJ 1158 : (2000) AIRSCW 4641 : (2000) AIRSCW 4557 : (2000) AIRSCW 2608 : (2000) 8 Supreme 202 : (2000) 5 Supreme 181 : (2000) 7 Supreme 70 in support of maintainability of the petition.

On the other hand, Mr. Sachin Chauhan, learned counsel appearing for respondent Nos. 4 to 6 would support the order of this Court dated November 12, 2013, so also order of the Tribunal dated January 22, 2002. Ms.Anjana Gosain, appearing for the petitioners, i.e the department would state, that the department is only following the mandate of the order of the Tribunal which has been upheld by this Court and the Supreme Court.

Having heard learned counsel for both the parties, the first and foremost question would arise, whether the present application is at all maintainable. The reliance placed by Mr. Garg on the judgment of Supreme Court in Kunhayammed and Ors. (supra) wherein according to him dismissal at the stage of Special Leave by non speaking order, held, does not constitute res-judicata and does not culminate in merger of the impugned decision and would not by itself preclude the aggrieved party from seeking relief in Writ jurisdiction or review jurisdiction of the High Court.

On the issue of a petition for special leave to appeal being refused whether merger applies or not, has to be determined with reference to the nature of the order passed by the Supreme Court. In the case in hand, the Supreme Court while dismissing the Special Leave Petitions on January 2, 2014 has passed the following order:-

"Petitioners in S.L.P (C) CC No. 21677 of 2013 are permitted to file the special leave petition. We have heard learned senior counsel for the petitioners. No ground for interference is made out. The special leave petitions are dismissed."

This Court on a similar issue while considering Review Petition against a common judgment and order dated August 10, 2010 in a batch of 22 Writ Petitions has held as under:-

"8. On the issue of a Petition For Special Leave to Appeal being refused, whether merger applies or not has to be determined with reference to the nature of the order passed by the Supreme Court. 9. With reference to the past precedents being: U.P. State Road Transport Corporation through its Chairman Vs. Omaditya Verma and Others, AIR 2005 SC 2250 : (2005) 4 JT 62 : (2005) 4 SCC 424 : (2005) 1 SCR 166 : (2005) AIRSCW 2097 : (2005) 3 Supreme 521 ; S. Shanmugavel Nadar Vs. State of Tamil Nadu and Another, AIR 2002 SC 3484 : (2003) 185 CTR 593 : (2003) 263 ITR 658 : (2002) 7 JT 568 : (2002) 7 SCALE 29 : (2002) 8 SCC 361 : (2002) 2 SCR 498 Supp : (2003) 132 STC 284 : (2002) AIRSCW 4076 : (2002) 7 Supreme 191 ; K. Rajamouli Vs. A.V.K.N. Swamy, AIR 2001 SC 2316 : (2001) 2 ARBLR 702 : (2001) 3 CompLJ 144 : (2001) 1 JT 168 Supp : (2001) 4 SCALE 212 : (2001) 5 SCC 37 : (2001) 3 SCR 473 : (2001) AIRSCW 2146 : (2001) 4 Supreme 294 ; Kunhayammed and Others Vs. State of Kerala and Another, AIR 2000 SC 2587 : (2000) 162 CTR 97 : (2000) 72 ECC 681 : (2001) 129 ELT 11 : (2000) 245 ITR 360 : (2000) 9 JT 110 : (2000) 5 SCALE 167 : (2000) 6 SCC 359 : (2000) 1 SCR 538 Supp : (2000) 119 STC 505 : (2000) 113 TAXMAN 470 : (2000) 2 UJ 1158 : (2000) AIRSCW 4641 : (2000) AIRSCW 4557 : (2000) AIRSCW 2608 : (2000) 8 Supreme 202 : (2000) 5 Supreme 181 : (2000) 7 Supreme 70 ; Abbai Maligai Partnership Firm and Another Vs. K. Santhakumaran and Others, AIR 1999 SC 1486 : (1998) 2 CTC 472 : (1998) 6 JT 396 : (1998) 5 SCALE 274 : (1998) 7 SCC 386 : (1998) 1 SCR 535 Supp : (1998) AIRSCW 4061 : (1998) 7 Supreme 340 ; State of Manipur Vs. Thingujam Brojen Meetei, (1996) 4 AD 607 : AIR 1996 SC 2124 : (1996) 2 CTC 742 : (1996) LabIC 1819 : (1997) 1 LLJ 415 : (1996) 4 SCALE 553 : (1996) 9 SCC 29 : (1996) 2 SCR 738 Supp and in the latest decision reported as Gangadhara Palo Vs. The Revenue Divisional Officer and Another, (2011) 2 CTC 451 : (2011) 3 JT 518 : (2011) 164 PLR 516 : (2011) 3 RCR(Civil) 343 : (2011) 3 SCALE 498 : (2011) 4 SCC 602 : (2011) 3 SCR 746 : (2012) 25 STR 273 : (2012) 35 STT 463 : (2011) AIRSCW 1811 , in para 7 it was observed as under:-

The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed Vs. State of Kerala, S.Shanmugavel Nadar Vs. State of T.N., State of Manipur Vs. Thingujam Brojen Meetei and U.P.SRTC Vs. Omaditya Verma.?

The aforesaid passage brings out that jurisdiction of the Supreme Court under Article 136 of the Constitution of India being discretionary, there may be a variety of reasons, not necessarily on merits, on which petitions seeking Special Leave to Appeal are dismissed. Thus, such dismissals would not attract the principle of merger. But, where, even if there exists a single sentence, while dismissing the Petition For Special Leave to Appeal, and from the said sentence it can be deciphered as to what was the reason given by the Supreme Court, and if the reason was that the dismissal was on merits i.e. the Supreme Court found no ground to interfere with the decision of the High Court on merits, principle of merger would apply.

We have extracted hereinabove the order dismissing the petitions seeking Special Leave to Appeal. The order clearly records that no ground was made out for interference by the Supreme Court. It is apparent that the dismissal of the petitions seeking Special Leave to Appeal is on merits."

As is seen from the order passed by the Supreme Court while dismissing the Special Leave Petitions filed by the applicants herein, the order clearly records that the Supreme Court has found no ground for interference with the impugned order of this Court which is order dated November 12, 2013. The Supreme Court has put a seal of approval on the merits of the impugned order, and thus, we hold that the principle of merger would apply.

Even otherwise, since we have heard the learned counsel for the parties on the merits as well, we proceed to decide the issue raised by the petitioners/applicants on merits. It is an admitted position that the challenge in the Writ Petition was to the order of the Tribunal dated January 22, 2002 whereby the Tribunal had set aside the appointments of the respondent Nos. 7 to 13 including the applicants herein. The same was based on the pleadings of the parties including the department. The Tribunal had criticized the process adopted for selection, in as much as, according to the Tribunal against six out of twenty four candidates ultimately selected, allegations have been made on their proximity to those concerned in selection, in as much as, against respondent No. 8, it was stated that he was the son of the Member of the Presiding Officer of the Selection Committee. Respondent No. 9 is the one, who failed in both the physical tests. Respondent No. 10 is the son of the Administrative Officer, who himself was the Member of the Selection Committee. Respondent No. 11 was closely known to respondent No. 4. Respondents No. 12 and 13 are the children of the staff attached to the Presiding Officer and respondent No. 14 is the son of the Member of the Selection Committee.

We have seen the memo of parties attached to the original application filed before the Tribunal. The respondent Nos. 8 to 14 are the respondent Nos. 7 to 13 in the Writ Petition. The allegations noted by the Tribunal, even though, with regard to respondent Nos. 8 to 14, the same hold good for respondent Nos. 7 to 13, some of the applicants herein. The Tribunal was of the view that the aforesaid are not disputed facts. Suffice to state, the conclusion of the Tribunal in the order dated January 22, 2002 is based on the pleadings before it. Surely any factual position otherwise, as sought to be contended by the applicants in the present application, cannot be taken into consideration, more so, in view of the fact that the judgment of the Tribunal had attained finality till Supreme Court. The attempt of the applicants is to re-open the issue on merit, which in our view is impermissible. We, in our order dated November 12, 2013 has accepted the view taken by the Tribunal and now on the basis of facts, so adverted, cannot take a view, other than the one, which has already been taken, that too after the Supreme Court had dismissed the SLP.

The application is dismissed on merit also.