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Judgment
The petitioner had previously instituted CWP No. 1022 of 2001, wherein, he had espoused the hereinafter extracted reliefs:-
(a) That the present Civil Writ Petition may kindly be allowed and the Rules, as applicable, for promotion from the category of ''JUNIOR SCALE
STENOGRAPHER'' to ''SENIOR SCALE STENOGRAPHER'' may kindly be held ultra vires and unconstitutional and directions may kindly be
issued to respondent to and the rules as has been done in the category of Senior Scale to PA and Jws.
(b) That the respondent further may very kindly be directed to promote the petitioner to the post of ''SENIOR SCALE STENOGRAPHER'' as he
has already rendered more than ''FIVE YEARS'' service in the category of ''JUNIOR SCALE STENOGRAPHER''.
(c) That the respondent may kindly be directed to reconsider the representation made by the petitioner
Upon the aforesaid CWP, the learned Single Judge of this Court, had, on 9.1.2007, declined relief to the petitioner. The petitioner being
aggrieved therefrom, had instituted LPA bearing No. 3 of 2007, before, the Hon''ble Division Bench of this Court. However, the aforesaid LPA
came to be dismissed, on 26.03.2007. Therefrom, the petitioner had instituted SLP, bearing SLP (CC No.15177/2008), before, the Hon''ble
Apex Court, SLP whereof came to be dismissed. The order of dismissal recorded by the Hon''ble Apex Court, upon, the aforesaid SLP, is
extracted hereinafter:-
Learned counsel for the petitioner submits that there is a delay of 414 days in filing the special leave petition. We make it clear that the petitioner
would be at liberty to pursue his remedy before the appropriate authority for further promotion. Without prejudice to such right, the special leave
petition is dismissed.
The learned counsel appearing, for, the petitioner has contended (i) that with one C.M. Thakur, earlier successfully participating in the efficiency
test, held for promotion to the selection post, of, Senior Scale Stenographer, (ii) whereas, his in sequel thereto, rather proceeding to accept his
being appointed as a Junior Scale Stenographer, (iii) thereupon, when subsequent thereto, the vacancy, of, a Senior Scale Stenographer hence
occurred, he was prior thereto rather hence enjoined to stand subjected, to an efficiency test along with participation therein, of the petitioner, than,
the selecting authority/appointing authority rather untenably proceeding, to rely upon his efficiency, pronounced in a test conducted prior thereto, in
sequel, whereto, he had rather accepted, his being appointed to the post of Junior Scale Stenographer. Reiteratedly, his contention is rested, upon,
subsequent occurrence of a vacancy vis-avis the selection post of a Senior Scale Stenographer, thereupon, imperatively preceding therewith, the
mandate, of, rules though enjoining, upon, the aspirant concerned, to, succeed in the relevant efficiency test, for hence his suitability being assessed,
hence being an undeviable norm, whereas, it being evidently deviated, hence, the representation, made, by the writ petitioner, subsequent to the
pronouncement supra of the Hon''ble Apex Court, (i) was amenable to acceptance, whereas, it suffering rejection, has begotten transgression, of,
the mandate of the Hon''ble Apex Court, pronounced, in the aforesaid SLP, (iii) especially with the Hon''ble Apex Court, even if, it dismissed, the
apposite leave petition, had permitted him, to, pursue his remedy(ies), for further promotion before the appropriate authority. The learned counsel
appearing for the petitioner, latter whereof, subsequent, to the pronouncement, made by the Hon''ble Apex Court in the apposite SLP, wherein,
liberty stood reserved vis-a-vis him, to, pursue his remedy(ies) vis-avis further promotion, before the appropriate authority, hence in purported
compliance therewith made representation, (iv) whereupon, disaffirmative orders, stood rendered, rather hence, when for the reasons aforestated,
sequelling infraction(s), of, the mandate of the apposite Rules, necessarily enjoin(s) invalidation. (v) Conspicuously, when the doctrine of merger
inter se pronouncements recorded by the Hon''ble Single Judge, of this Court in CWP No. 1022 of 2001 AND by the Hon''ble Division Bench of
this Court in LPA No. 3 of 2007 vis-a-vis the pronouncement, made, by the Hon''ble Apex Court, upon, the apposite SLP, being not attracted
hereat, (vi) especially when the verdict rendered by the Hon''ble Apex Court, does not make any declaration of law, rather it reserve(s) liberty(ies)
vis-a-vis the petitioner, to pursue his remedies, for further promotion, before the appropriate authority. Subsequently, he contends, that, no bar of
estoppel of any genre being errectable vis-a-vis the apposite representation, of the petitioner, nor vis-avis the espousals qua invalidity(ies), of, its
rejection.
The learned counsel appearing, for, the petitioner in making the aforesaid submission, that, the verdicts, pronounced by the learned Single Judge,
of, this Court in CWP No.1022 of 2001 AND by the Hon''ble Division Bench of this Court in LPA No. 3 of 2007, (I) not merging, into the
verdict pronounced, by the Hon''ble Apex Court in the SLP, (ii) nor the verdict pronounced by the learned Hon''ble Apex Court, in, the apposite
SLP conclusively affirming besides upholding the pronouncements recorded, by the learned Single Judge of this Court, upon, the aforesaid CWP
AND of the rendition made by the Hon''ble Division Bench of this Court in LPA NO.3 of 2007, has, relied upon, a judgment rendered by the
Hon''ble Apex Court, reported, in (2000)6 SCC 359, in case titled as Kunhay Yammed and others vs. State of Kerala and another, the relevant
paragraph No.27 whereof stands extracted hereinafter:
A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology
employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would
neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by
the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by
reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a
discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court
would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on
all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be
binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex
court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this
Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The
declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply.
The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by
the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done
because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the
Supreme Court has to be understood as not to have differed in law with the High Court.
(p...377-378)
Obviously, therein a categorical mandate, is enshrined (I) of declaration of law by the Hon''ble Apex Court being binding, upon all courts AND
Tribunals, (ii) also it is mandated therein, that, upon the Hon''ble Apex Court, dismissing, by a non speaking order, the apposite motion(s)
constituted therebefore, hence, its not assigning any reasons, for dismissing the SLP, (iii) thereupon, any non speaking order, not attracting the
doctrine of merger nor hence any non speaking order, rendered by the Hon''ble Apex Court, upon, the SLP concerned, being construable, to be in
substitution of the order assailed before it nor it being a declaration of law, by the Hon''ble Apex Court, under Article 141 of the Constitution of
India. Thereupon, the learned counsel appearing, for, the petitioner contends that an incisive reading of the pronouncement, recorded by the
Hon''ble Apex Court, in the SLP preferred by the petitioner herein before the Hon''ble Apex Court, making disclosures, of, its being hence a non
speaking order, (iv) thereupon, its, not vis-a-vis it, attracting the doctrine of merger (v) nor it being construable to be an order in substitution, of,
order(s) pronounced by the Hon''ble Single Judge of this Court in CWP aforesaid AND in substitution, of, the rendition made by the Division
Bench of this Court, upon, LPA No.3 of 2007, (vi) rather with liberty being reserved therein vis-a-vis the petitioner, to pursue his remedies, for
further promotion, before the appropriate authority concerned, (vii) thereupon with the apposite representation making apparent upsurging, of,
infraction being visited, vis-a-vis the mandate(s) of the apposite rule, thereupon, the order rejecting the petitioner''s representation being amenable
to interference.
In making the aforesaid espousal, the learned counsel appearing for the petitioner, has, however remained oblivious vis-a-vis the facts besetting,
the Hon''ble Apex Court in Kunhayammed''s case (supra), ""especially"" the petitioners therein, initially, raising disputes, through an O.A. cast,
before the Forest Tribunal, Kozhikode, whereon, orders were recorded on 11.8.1982, of, the land(s) concerned, not, vesting in the government.
Upon an appeal being preferred, therefrom, by the aggrieved State of Kerala, before, the High Court of Kerala, the apposite statutory appeal
stood dismissed, on 17.12.1982, through, detailed and elaborate order(s), thereafter, the aggrieved State of Kerala, preferred an SLP therefrom,
before, the Hon''ble Apex Court, SLP whereof, was, dismissed by the Hon''ble Apex Court, order of dismissal whereof is couched in the
hereinafter extracted phraseology:-
Special leave petition is dismissed on merits.
Subsequent thereto, the State of Kerala, filed, an application before the High Court of Kerala, for review of the order(s) pronounced, by it, on
17.12.1982, (i) even when, though the aforesaid order(s) recorded by the Kerala High Court, was assailed, through a SLP filed by the State of
Kerala, before the Hon''ble Apex Court, SLP whereof was dismissed, with a pronouncement, couched, in the phraseology supra. Since, the High
Court of Kerala, overruled the objections preferred therebefore, by the litigants concerned vis-a-vis maintainability(ies), of, the review petition,
thereupon, the aggrieved therefrom, had, motioned the Hon''ble Apex Court, by casting a SLP before it. Upon hearing the SLP appertaining, to
the aforesaid factual matrix, the Hon''ble Apex Court, had, made an inextenso expostulation vis-a-vis non attraction, of, doctrine, of, merger vis-a-
vis non speaking orders pronounced by it, upon, the apposite SLP, constituted before it. However, given the aforesaid pertinent factual matrix, it
concluded, of, yet dehors the earlier verdict (supra), it not estopping the litigant concerned, from motioning the High Court of Kerala, through, a
petition cast, under, Article 226 of the Constitution of India, (ii) conspicuously, when earlier therewith rather it stood motioned, only through, a
statutory appeal preferred by the aggrieved State of Kerala, against the Orders recorded, upon, an O.A cast before the Forest Tribunal, AND had
not availed any constitutional remedy, (iii) thereupon, the Hon''ble Apex Court had in paragraph No.17 of Kunhayammed''s case (supra),
paragraph whereof stands extracted hereinafter, hence held as under:-
Thereafter the employer approached the High Court by preferring a petition under Article 226 of the Constitution seeking
quashing of the award of the Labour Court. On behalf of the employee the principal contention raised was that in view of the order of
the Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the
employer to approach the High Court under Article 226 of the Constitution challenging the very same award. The plea prevailed with
the High Court forming an opinion that the doctrine of election was applicable and the employer having chosen the remedy of
approaching a superior court and having failed therein he could not thereafter resort to the alternative remedy of approaching the High
Court. This decision of the High Court was put in issue before the Supreme Court. This Court held that the view taken by the High
Court was not right and that the High Court should have gone into the merits of the writ petition. Referring to two earlier decisions of
this Court, it was further held :- (SCC pp.148-50, paras 6 & 8)
[T]he 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 this Court had decided only that it was not a fit case where special
leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this
Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation
to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly
different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicity or even
constructively while dismissing the special leave petition cannot, of course, be re- opened in a subsequent writ proceeding before the
High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this
Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ
proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this
Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an
extent so as to found it on mere guesswork.
* * * * *
It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those
cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from
the impugned order or judgment. 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 this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity
to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to
grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Article 226
of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order
especially in view of the rulings already given by this Court in the two decisions aforecited, that such dismissal of the special leave
petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases
it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under
Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.
[emphasis supplied] (p..373-374)
A firm mandate occurs therein, (I) of with the aggrieved litigant not electing to ventilate his grievance, through, a petition, cast under Article 266 of
the Constitution of India, before the High Court(s) concerned, rather it/his after availing the statutory remedies, before the High Court concerned,
his/ it hence approaching the Hon''ble Apex Court, through, a petition cast, under Article 136 of the Constitution of India, (ii) not hence precluding
nor debarring the aggrieved litigant, to even when the SLP, is dismissed in limine AND through a non speaking order, (iii) pronounced upon a
motion made before it, against the rendition by the High Court concerned, upon, availment by the aggrieved concerned, of, non constitutional
remedies, (iv) to also thereafter hence ventilate his/its grievance, by his/its subsequent thereto, motioning the High Court concerned, by casting a
petition under Article 226 of the Constitution of India.
However, a close reading, of, the pronouncement recorded by the Hon''ble Apex Court, in the SLP preferred before, it, by the petitioner
herein, makes, an apparent display, of, the Hon''ble Apex Court therein reserving liberty vis-a-vis the petitioner, only, qua his making motions,
before the appropriate authorities, for further promotions, (I) thereupon rather the aforesaid reservation of liberty vis-a-vis the petitioner herein,
carries implications, of, the Hon''ble Apex Court, not affording any leave nor granting any latitude for, reopening, of, controversy(ies), earlier
espoused, by the writ petitioner in CWP No. 1022 of 2001, wherein relief(s) were declined to him, also, upon, a LPA reared before the Hon''ble
Division Bench of this Court, an order in affirmation thereto, hence, emanated from it. Thereupon, conspicuously, when the Hon''ble Apex Court,
hence dismissed the SLP preferred before it, by the petitioner herein, reiteratedly also reserved liberty(ies) vis-a-vis the petitioner, for motioning
the appropriate authority, for further promotion, hence, the apposite reservation, of, liberty(ies), is open to an interpretation, of, it being open to the
writ petitioner, to, make motions vis-a-vis the appropriate authority, for, his being considered for promotion, vis-a-vis vacancy(s) occurring in
future, qua the selection post(s) concerned (ii) ""excepting"" the apposite selection post, in controversy, before this Court in CWP No.1022 of 2001
and ultimately before the Hon''ble Apex Court in the apposite SLP, SLP whereof stood dismissed, (iii) unless, the aforesaid interpretation, is,
afforded to the mandate of the Hon''ble Apex Court extracted supra, thereupon, the binding and conclusive verdict recorded by it, upon, the SLP,
would suffer dilution also the doctrine of merger of judgments, emanating, from the learned Single Judge of this Court in CWP aforesaid AND
from the Hon''ble Division Bench of this Court in the LPA aforesaid, INTO the verdict rendered, upon, the apposite SLP, hence, would suffer
gross unnecessary waning(s) besides dilutions. Significantly, when hereat the petitioner has availed his constitutional remedy, prior to his motioning
the Apex Court, whereas in the judgment relied, upon, by the counsel for the petitioner, the aggrieved litigant had not initially availed constitutional
remedy(ies), rather had availed statutory remedy(ies).
Be that as it may, the writ petitioner, ""unlike"", the factual scenario prevalent, in the, judgment relied, upon, by his counsel, (I) in judgment
whereof, the aggrieved litigant, had not, initially motioned the High Court concerned, by casting a petition under Article 226 of the Constitution of
India, rather initially preferred a statutory appeal therebefore, against, the apposite impugned order, (ii) the petitioner herein, had, contrarily initially
motioned, this Court through a writ petition, cast under Article 226 of the Constitution of India, CWP whereof, suffered dismissal also a LPA
reared therefrom also suffered an alike fate, besides the Hon''ble Apex Court, declined vis-a-vis him relief, in the SLP preferred therebefore. The
subtle nuance of the verdict (supra) of the Hon''ble Apex Court besides the innate spirit, of all the expostulations aforesaid borne therein, is, of
renditions, of, any non speaking order, by the Hon''ble Apex Court, without, its recording any reason, being amenable, for, reopening(s), of,
apposite controversy(ies), before the High Court concerned, (iii) only when the litigant concerned, has not, initially motioned the High Court
concerned, through, a petition cast under Article 226 of the Constitution of India, rather his availing therebefore, his statutory remedies.
Formidably, hence, it can be concluded, that, when the aggrieved litigant prior to his motioning the Hon''ble Apex Court, through, the SLP, has
availed his constitutional remedy, of, preferring before this High Court, a petition cast under Article 226 of the Constitution of India, (iv) thereupon,
the aforesaid trite factum, constitutes, a stark exception(s) vis-a-vis the doctrine of verdicts rendered upon statutory appeal(s) by the High Courts
concerned, not merging into orders, of, dismissal in limine, pronounced by the Hon''ble Apex Court, upon, the apposite SLP, (v) predominantly
also the binding conclusive verdict recorded, upon, the aforesaid SLP, is to be revered AND hence the petitioner is estopped to reopen the
controversies earlier conclusively adjudicated upon. Furtheremore, the order of dismissal in limine recorded by the Apex Court upon the apposite
SLP, is also to be construed, in affirmation of the verdict(s) recorded by a Division Bench of this Court, upon, LPA aforesaid, thereupon the
petitioner is barred to reopen the controversies previously conclusively adjudicated.
For the foregoing reasons, there is no merit in the instant petition which is accordingly dismissed. All pending applications also stand disposed of.
Records be sent back forthwith.