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TMI Blog2021 (10) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... arunakar Mahalik, AOR, S.Parthasarathi, Adv. and Sriram Parakkat, AOR For the Respondent: S. Joseph Aristotle, AOR, M. Yogesh Kanna, AOR, C.S. Vaidyanathan, Sr. Adv., C.N.G. Niraimathi, Adv., Akshay Nagarajan, Advs., V. Giri, Sr. Adv., Mohammed Sadique T.A., Adv., Mukul Rohatgi, C.S. Vaidyanathan, P. Wilson, Sr. Advs., V. Krishnamurthy, Sr. Adv./AAG, G. Hema, Adv., Nitish Raj, Adv., Preeti Singh, Nupur Sharma, Sanjeev Kumar Mahara, Advs., T.R.B. Sivakumar, AOR and Neha Rathi, AOR ORDER B.R. Gavai, J. 1. The present contempt petitions have been filed by the Petitioners praying for initiation of contempt proceedings against the alleged contemnors-Respondents for willfully disobeying the order passed by this Court dated 22nd January 2016 in SLP(C) Nos. 2890-2894 of 2016 and SLP(C) No. 2886 of 2016. 2. Brief facts giving rise to the filing of the present petitions are as under: The contempt Petitioners had filed writ petitions before the Single Judge of the Madras High Court being aggrieved by the fixation of inter se seniority list published on 29th April 2004. The Petitioners along with the contesting Respondents were selected in pursuance of the selection pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are filed contending non-compliance of the order passed by this Court dated 22nd January 2016. 5. Certain developments which took place in the meanwhile also need to be noted. To overcome the first judgment of the Madras High Court as affirmed by this Court, the State of Tamil Nadu enacted Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (hereinafter referred to as "the said Act"). Section 40 of the said Act provided that the seniority of a person in service will be determined in accordance with the Rule of reservation and the order of rotation. The same came to be challenged in a batch of writ petitions before the Madras High Court. The Division Bench of the Madras High Court vide judgment and order dated 15th November 2019 (hereinafter referred to as "the second judgment"), allowed the said writ petitions. It declared Sections 1(2), 40 and 70 of the said Act as ultra vires and unconstitutional. It further directed to redo the exercise of fixation of seniority within a period of 12 weeks from the date of receipt of the copy of said order. The said order of the High Court dated 15th November 2019, was challenged before this Court by filing SLP(C) Nos. 2861-2876 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; 4) K. Ramamurthy C.P. (C) No. 1848 of 2018 and C.P. (C) No. 2188 of 2018 in SLP (C) No. 2886 of 2016: 1) K. Nanthakumar 2) S.K. Prabhakar 3) S. Bakthavathchalam 8. The contempt petitions have also been listed thereafter on various dates. Today, we have heard Shri Prashant Bhushan, learned Counsel appearing on behalf of the Petitioners, Shri C.S. Vaidyanathan, learned Senior Counsel appearing on behalf of TNPSC, Shri Mukul Rohatgi, Shri V. Giri and Shri P. Wilson, learned Senior Counsel appearing on behalf of the Respondents-alleged contemnors, at length. 9. Shri Prashant Bhushan submitted that the first judgment has been merged into the order passed by this Court dated 22nd January 2016. He submitted that in the said order, this Court has categorically held that in view of the judgment in the case of Bimlesh Tanwar v. State of Haryana and Ors. (2003) 5 SCC 604, the seniority list has to be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court was capable of being interpreted as applying only to the individuals and therefore, even if the official Respondents have incorrectly understood the judgment, the non-compliance of the directions cannot be considered to be willful or deliberate and as such, the action for contempt would not lie. 12. In addition, Shri Rohatgi submitted that the contempt, if any, is of the order passed by the High Court. He submitted that since by the order dated 22nd January 2016, this Court has dismissed the SLPs albeit giving certain reasons, the same would not amount to merger, and as such, it cannot be held that the Respondents have committed contempt of this Court. He further submitted that if tomorrow, merely upon dismissal of SLPs against the judgments of the High Court, the contempt petitions are entertained contending contempt of this Court, it will open a floodgate of contempt petitions. He submitted that such a practice would not be conducive to the interest of justice. 13. Shri Vaidyanathan relied on the following judgments of this Court in support of his submissions that, in contempt proceedings, the Court cannot travel beyond the original judgment and order. Jhareswar Prasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the first judgment held thus: 85. In view of the above, the writ appeals are allowed, the order of the learned judge is set aside and the writ petitions filed by the Appellants are allowed. There will be a direction to the official Respondents to take the rank assigned by the Service Commission to the selectees, as the basis for fixation of seniority and issue appropriate orders within a period of 4 weeks from the date of receipt of a copy of this order. There will be no order as to costs. 19. It could thus clearly be seen that the Division Bench of the Madras High Court in the first judgment issued a direction to the official Respondents to take the rank assigned by TNPSC to the selectees as the basis for fixation of seniority and appropriate orders were directed to be issued by TNPSC within a period of 4 weeks from the receipt of the copy of the said order. 20. The basis for allowing the writ petitions by the High Court was the judgment of this Court in the case of Bimlesh Tanwar (supra), which held that the seniority has to be determined, not on the basis of roster point but on the basis of the seniority assigned at the time of selection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that though, the then learned Attorney General had raised an issue with regard to a contrary view taken by the Madurai Bench of the same High Court, this Court clearly held that since the issue was now covered by the decision of this Court in Bimlesh Tanwar (supra), the pendency of the SLPs challenging the judgment of Madurai Bench, would be of no consequence inasmuch as the said SLPs would be governed by the judgment of this Court in Bimlesh Tanwar (supra). 25. It is thus clear that though it cannot be said that the second judgment of the Madras High Court has merged into the order of this Court dated 22nd January 2016, still the declaration of law as made in the said order, would be binding on all the courts and tribunals in the country and in any case, between the parties. 26. In that view of the matter, the Respondents were bound to follow the law laid down by this Court and determine the inter se seniority on the basis of selection by TNPSC and not on the basis of roster point. 27. At the cost of repetition, we may clarify that though various arguments were advanced with regard to the merits of the matter by the learned Senior Counsel appearing on behalf of the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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