JUDGMENT :

Prayer: Contempt Petition is filed under Section 11 of the Contempt of Courts Act praying to punish the respondent for the disobedience of the order passed by this Court in W.P.(MD) No.16863 of 2020, dated 26.11.2020.

1. This contempt petition has been filed alleging wilful disobedience of the order, dated 26.11.2020, made in W.P.(MD) No.16863 of 2020.

2. When the matter is taken up for hearing, the learned Special Government Pleader appearing for the respondent submitted that the order passed in the writ petition has been confirmed by the Honourable Division Bench of this Court and now, the matter is pending before the Honourable Supreme Court and the special leave petition is yet to be numbered.

3. Applying the principle of Doctrine of Merger, the writ petitioner can file contempt proceedings against the order made in the writ appeal, if so advised, before the Honourable Division Bench of this Court and the Single Judge, who has passed the order, cannot deal with the contempt proceedings initiated by the petitioner.

4. At this juncture, it would be worth referring to the decision of the Apex Court in the case of Kunhayammed & Others vs. State of Kerala & Another [(2000 (6) SCC 359], wherein, the principle of Doctrine of Merger has been widely discussed. The relevant portion of the said decision is usefully extracted hereunder:

“32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal.

41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068) We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.

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