Calcutta High Court on the Doctrine of Merger

In response to a writ petition, the Calcutta High Court has clarified its stance on the applicability of the Doctrine of merger vis-a-vis the Supreme Court’s appellate jurisdiction..Justice Shekhar B. Saraf of the Calcutta High Court held that once a Special Leave Petition is admitted and converted into an appeal by the Supreme Court, any order passed in the appeal would attract the Doctrine of merger irrespective of the fact that the order is of reversal, modification or simpliciter affirmation..The controversy relates to a vacancy (which arose in 2002) for non-teaching staff in a school located in West Bengal..When the vacancy arose in 2002, such vacancies were governed by The West Bengal School Service Commission (Recruitment of Non-Teaching Staff) Rules, 2005 (2005 Rules). The process for filling up the vacancies had started while these rules were in force. However, subsequent to an amendment made to the West Bengal School Service Commission (Amendment) Act, 2008 with effect from January 14, 2009, a new set of rules, viz, West Bengal School Service Commission (selection of persons for Appointment to the post of Non-teaching staff) Rules, 2009 (2009 Rules) were introduced..The 2009 Rules took away the power of the managing committee to recruit persons in non-teaching posts in non-government aided and unaided schools, and, delineated the new manner by which recruitment would take place going forward. However, the managing committee had applied for filling up the position before the 2009 Rules were notified..The appointment to this position has ever since been litigated. The question of which of the two rules would apply to the said vacancy was dealt by:.1) A coordinate bench of the Calcutta High Court, which ruled that the school authorities could not insist on filling up the vacant post as per the 2005 Rules even though the selection process had been initiated under the 2005 Rules..2) The division bench of the Calcutta High Court which reversed the judgment passed by the coordinate bench and ruled that the earlier rules would apply..3) The Supreme Court under Article 136 in response to a Special Leave Petition (SLP) filed by the State of West Bengal by a (non-speaking) order dated December 5, 2017 held that since no vested rights arose in favour of the candidates merely by the initiation of the selection process, the new scheme certainly could be applied to the selection process..The petitioners again moved a writ before the Calcutta High Court arguing that since the managing committee had applied for filling the vacancy before the 2009 Rules, the 2005 rules should apply to the petitioner..The petitioners also argued that the Supreme Court order passed on December 5, 2017, had no application whatsoever in relation to the petitioner as the same would not apply retrospectively and could not impact the writ petitioner’s accrued right..They further argued that the order of the Supreme Court was a non-speaking order and did not lay down any law whatsoever. Moreover, since the order was a non-speaking order, the Doctrine of merger would not apply to the same..The Calcutta High Court rejected the submissions made by the petitioners with regard to no retrospective application of the Supreme Court order dated December 5, 2017, ‘as the order does not specify that it is to be read and applied prospectively’. Accordingly, said the Calcutta High Court, the law propounded by the Supreme Court on the date of passing of the order automatically becomes applicable to all pending matters in relation to the said law..The Calcutta High Court then noted the observations made in the case of Kunhayammed And Others v. State of Kerala And Another by the Supreme Court and held that it is absolutely evident that once an SLP is admitted and converted into an appeal, any order passed in the appeal would attract the Doctrine of merger irrespective of the fact that the order is of reversal, modification or simpliciter affirmation..The High Court further held that,.“Moreover, the order though succinct, is a speaking order, holding that the Division Bench was not justified in interfering with the view taken by the Learned Single Judge. The Supreme Court further held that since no vested rights arose in favour of the candidates merely by the initiation of the selection process the new scheme certainly could be applied to the selection process”.Justice Saraf then held that only when the selection of suitable candidates has been made by a committee, the same would be governed by the 2005 rules and not the 2009 Rules. However, he said, ‘if the aspirant’s candidature has not been considered at all or the selection is at an intermediate stage, the selection process has to be scrapped and the vacancy has to be filled in accordance with the amendment to the original rules’..The petition was accordingly dismissed..(Read the judgment)