The Supreme Court's dismissal of a Special Leave Petition does not merge with the original order, and review jurisdiction is lost once an appeal is preferred.

JUDGMENT :

DEBANGSU BASAK, J.

1. Review is in respect of our order dated August 2, 2023 passed in WP.ST 211 of 2016.

2. Review is at the behest of the State.

3. Learned Additional Government Pleader appears for the review applicant and submits that, attention of the Court was not drawn to two essential documents relating to the entitlement of the writ petitioner in WP.ST 211 of 2016. He submits that, the writ petitioner herein participated in a selection process without obtaining requisite leave from his earlier employer to participate in the selection process. Apart from the writ petitioner, another person participated in the selection process but such person obtained prior leave of the employer to participate in such selection process. Attention of the Court to this basic distinction of entrance into the cadre of the present employment by the writ petitioner and the other person was not drawn at the time of disposal of WP.ST 211 of 2016. He submits that mistakes of an Advocate in failing to draw the attention of the Court to essential facts of a case, is an error which can be looked into and considered, in review. Consequently, he seeks that the review should be allowed.

4. Learned Additional Government Pleader draws the attention of the Court to the order dated February 5, 2024 passed in Special Leave Petition (Civil) Diary No.50105/2023 and submits that, although the Special Leave Petition directed against the order dated August 2, 2023 passed in WP.ST 211 of 2016 was dismissed by the Hon’ble Supreme Court, nonetheless, a review of the order dated August 2, 2023 is maintainable. In support of such contention, he relies upon (2019) 4 Supreme Court Cases 376 (Khoday Distilleries Limited (Now Known as Khoday India Limited) and Others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (Under Liquidation) Represented By The Liquidator), (2023) 7 Supreme Court Cases 740 (S. Narahari & Ors. Vs. S.R. Kumar & Ors.) and an order dated January 31, 2024 passed in Civil Appeal No(s). 4957-4958/2021 (The Dhanalakshmi Mills Ltd. vs. R. Krishnamurthy & Ors.)

5. Writ petitioner is represented.

6. Our order dated August 2, 2023 passed in WP.ST 211 of 2016 disposing of the writ petition of the writ petitioner was assailed by the State in a Special Leave Petition being Special Leave Petition (Civil) Diary No.50105 of 2023 which was disposed of by an order dated February 5, 2024.

7. Relevant portion of such order is as follows:

“In the peculiar facts of the case, no interference is called for under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed.”

8. Khoday Distilleries Limited (Now Known as Khoday India Limited) and Others (supra) was doubted in S. Narahari & Ors. (supra) and a reference was made in respect thereof.

9. In The Dhanalakshmi Mills Ltd. (supra), the reference with regard to the ratio of Khoday Distilleries Limited (Now Known as Khoday India Limited) and Others (supra) was noted and the Civil Appeals were directed to be removed from the cause list.

10. Subsequent to S. Narahari & Ors. (supra) and the The Dhanalakshmi Mills Ltd. (supra), Hon’ble Supreme Court in Virendra Bahadur Katheria and Others (supra) considered Khoday Distilleries Limited (Now Known as Khoday India Limited) and Others (supra) amongst other authorities on the issue of doctrine of merger and the effect of a disposal of a Special Leave Petition. Hon’ble Supreme Court observed as follows:

“44. To sum up our conclusions are:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two st