Doctrine of Merger; Abin Suraj Vs. Joseph [Kerala High Court, 28-07-2011]

Doctrine of Merger – the judgment in the writ petition has merged in the writ appeal judgment rendered by the Division Bench – if the petitioners want to initiate any proceedings, the same should be on the basis of the writ appeal judgment and not the judgment in the writ petition – the enforcement of which can be sought or non compliance of which can be complained of, is the judgment in the writ appeal. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANTONY DOMINIC, J.

Dated this the 28th day of July, 2011

Con.Case (C) No. 653 of 2011 (S)

Abin Suraj Vs. Joseph

For Petitioners: K. Radhakrishnan (Sr. Advocate), P. Arun Kumar, Ambika Radhakrishnan, Sanjeev Kumar K. Gopal;For Respondents: Santhosh Mathew

J U D G M E N T

This petition under the Contempt of Courts Act has been filed on the allegation that the respondents herein have wilfully disobeyed the directions of this Court in the judgment dated 17th of February 2011 in WP(C) No.37955/2010.

2. The petitioners herein, along with some of their colleagues, filed the aforesaid writ petition, in which, the University of Calicut, its officials and the Director of Medical Education of the Government of Kerala were the respondents. By judgment dated 17th of February, 2011, a copy of which is Annexure I, the writ petition was disposed of with the following directions:-

“For the aforesaid reasons, I direct that the University shall award grace marks as provided in the Regulations 1997 and the Academic Calendar 2005-2010 to the petitioners for practicals also and on that basis, their results shall be published afresh. This the University shall do as expeditiously as possible and at any rate within 4 weeks. It is made clear that, on such publication of their results, those petitioners who are declared to have passed the final MBBS examination will be entitled to undergo internship”.

3. Aggrieved by the judgment, the University and its officials, respondents 1 to 4 in the writ petition, filed WA 409/2011. In that writ appeal, apart from the petitioners in the writ petition, the Director of Medical Education was also impleaded as respondent No.25.

4. After hearing the appellants and the counsel for the writ petitioners, by Annexure 2 judgment dated 28th of March, 2011, the appeal was dismissed. The operative portion of the judgment reads as under:-

“From the practice of the University followed for five years prior to 2010 and the regulations of the MCI and the DME, we feel it will be unjust and inequitable to deny grace marks to the respondents in the practical examinations. We, therefore, decline to interfere with the judgment of the learned Single Judge and therefore, the writ appeal is dismissed. However the time for compliance of the judgment is extended by two weeks from receipt of this judgment”.

5. In the purported compliance of the directions in the judgment, the University issued Annexure 5 notification and the students mentioned therein were required to submit their marklists for issuing revised marklists. It was thereupon that this petition was filed alleging that the directions in the judgment in WP(C) No.37955/10 have been willfully disobeyed, and that therefore, the respondents are liable to be proceeded against under the Contempt of Courts Act, 1971.

6. In my view, the petition filed is unsustainable for the reason that the judgment in the writ petition has merged in the writ appeal judgment rendered by the Division Bench, and therefore, if at all the petitioners want to initiate any proceedings, the same should be on the basis of the writ appeal judgment and not the judgment in the writ petition.

7. On this issue, extensive arguments were advanced by the learned senior counsel for the petitioners and also the learned standing counsel, who appeared for the respondents. According to the learned senior counsel for the petitioners, the Division Bench dismissed the appeal at the admission stage without issuing notice to the respondents in the appeal. Therefore, according to him, the Division Bench did not exercise its appellate jurisdiction, and hence, the judgment in the writ petition has not merged in the writ appeal judgment. On this basis, it was argued that inspite of the writ appeal judgment, the judgment in the writ petition survives to be enforced. Therefore, it was contended that the petition is maintainable.

8. Per contra, learned standing counsel for the University contended that once an appeal has been filed and the Division Bench considered the matter on merits and decided the issue, irrespective of the nature of its disposal, the judgment in the writ petition will merge in the appellate judgment. Therefore, if at all the petitioners have an allegation that the judgment is disobeyed, such complaint can only be as against the judgment in the writ appeal. On this basis, it was argued that the petition is not sustainable and is liable to be dismissed at the threshold.

9. Both sides relied on the principles laid down in the Apex Court judgment in Kunhayammed and others v. State of Kerala, (2000) 6 SCC 359.

10. The doctrine of merger is a common law doctrine adopted which has been firmly established as a principle of propriety in the hierarchy of justice delivery system. In CIT v. Amritlal Bhogilal and Co; AIR 1958 SC 868 the Supreme Court considered the doctrine of merger and opined thus:

“There 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 confirm 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”.

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