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Calcutta High Court (Appellete Side)
Baishakhi Bhattacharyya (Chatterjee) … vs Shri Binod Kumar on 7 May, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CPAN 621 of 2025
Baishakhi Bhattacharyya (Chatterjee) & Ors.
Vs.
Shri Binod Kumar, The Principal Secretary, Department of School
Education & Ors.
In
WPA 30649 of 2016
Baisakhi Bhattacharyya (Chatterjee) & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Sudipta Dasgupta, Adv.
Mr. Bikram Banerjee, Adv.
Mr. Arka Nandi, Adv.
Mr. Sagar Dey, Adv.
Mr. Sandwip Sutradhar, Adv.
Mr. Baibhav Roy, Adv.
For the Alleged : Mr. Partha Sarathi Sengupta, Sr. Adv.
Contemnor no. 1 Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Sirsanya Bandopadhyay, Sr. Standing
Counsel
Mr. Debanjan Mandal, Adv.
Mr. Sandip Dasgupta, Adv.
Ms. Mahima Cholera, Adv.
For the alleged : Mr. Kalyan Bandyopadhyay, Sr. Adv.
Contemnor no. 2 Mr. Debanjan Mandal, Adv.
Mr. Sandip Dasgupta, Adv.
Ms. Mahima Cholera, Adv.
For the alleged : Mr. Saptangsu Basu, Sr. Adv.
Contemnor no. 3 Dr. Sutanu Kumar Patra, Adv.
Mr. Supriya Dubey, Adv.
For the alleged : Ms. Koyeli Bhattacharyya, Adv.
Contemnor no. 4 Mr. Bibek Dutta, Adv.
Ms. Keya Panja, Adv.
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.05.07
11:05:16 +05'30'
2
For the CBI : Mr. Dhiraj Trivedi, DSGI
Hearing Concluded on : May 01, 2025
Judgement on : May 07, 2025
DEBANGSU BASAK, J.:-
1.
Petitioners have complained of violation of the
judgment and order dated April 22, 2024 passed by us in WPA
30649 of 2016 and in other writ petitions and appeals.
2. Learned Senior Advocate appearing for the petitioners
has submitted that, the Hon’ble Supreme Court has affirmed
the judgement and order dated April 22, 2024 on April 3,
2025 save and except one of the directions contained in the
judgment and order dated April 22, 2024 being modified. He
has pointed out that, one of the directions contained in the
judgement and order dated April 22, 2024 was set aside by
the Hon’ble Supreme Court, on April 8, 2025. All other
directions have been affirmed by the Hon’ble Supreme Court.
He has submitted that, petitioners are seeking implementation
of such directions contained in the judgment and order dated
April 22, 2024 which have not been set aside or modified by
the Hon’ble Supreme Court, in this contempt petition.
3. Learned Senior Advocate appearing for the alleged
contemnor no. 1 has raised the issue of maintainability of the
contempt petition before this Hon’ble Court, at the threshold.
3
He has submitted that, since, Special Leave Petitions were
filed against the judgment and order dated April 22, 2024 and
since such Special Leave Petitions were admitted and the
Hon’ble Supreme Court disposed of the appeals directed
against the judgment and order dated April 22, 2024, by a
judgment and order dated April 3, 2025, the judgment and
order dated April 22, 2024 of the High Court has merged with
the judgment and order dated April 3, 2025 of the Hon’ble
Supreme Court. Consequently, the Court which has
jurisdiction to consider an application for contempt of the
judgment and order dated April 3, 2025, is the Hon’ble
Supreme Court.
4. Learned Senior Advocate appearing for the alleged
contemnor no. 1 has relied upon 2000 Volume 6 Supreme
Court Cases 359 (Kunhayammed and Others vs. State of
Kerala and Another), 2014 Volume 16 Supreme Court
Cases 88 (Dineshan K.K vs. R.K. Singh and Another),
2023 SCC OnLine Cal 1152 (Sailesh Kumar vs. Smitha R.
IAS and Another) and 2025 Volume 3 Supreme Court
Cases 543 (Balbir Singh and Another vs. Baldev Singh) in
support of his contention of merger.
4
5. Learned Senior Advocate appearing for the alleged
contemnor no. 1 has also drawn the attention of the Court to
Articles 129, 141, 142 and 215 of the Constitution of India. He
has submitted that, the Hon’ble Supreme Court by virtue of
Article 129 of the Constitution of India is competent to issue
contempt proceedings if, violation of its judgment and order is
complained of.
6. Learned Senior Advocate appearing for the alleged
contemnor no. 1 has submitted that, in the facts and
circumstances of the present case, since the judgment and
order dated April 22, 2024 passed by the High Court has
merged with the judgment and order dated April 3, 2025 of
the Hon’ble Supreme Court, the judgment and order dated
April 22, 2025 ceases to exist either for the purpose of review
or for the purpose of enforcement of such judgment and order.
7. Learned Senior Advocate appearing for the alleged
contemnor no. 1 has drawn the attention of the Court to the
order passed by the Hon’ble Supreme Court subsequent to
April 3, 2025. He has submitted that, one of the directions
contained in the judgment and order dated April 22, 2024 of
the High Court was set aside by the Hon’ble Supreme Court
on April 8, 2025. He has also pointed out that, time to perform
5
one of the directions of the judgment and order dated April 22,
2024 of the High Court stood modified by the Hon’ble
Supreme Court by an order dated April 17, 2025.
8. Learned Senior Advocate appearing for the alleged
contemnor no. 2 has submitted that, the judgment and order
dated April 22, 2024 passed by the High Court is no longer
available for enforcement by the High Court in view of the
merger of such judgment and order with the judgment and
order of the Hon’ble Supreme Court dated April 3, 2025.
Moreover, Subsequent to April 3, 2025, two other orders have
been passed by the Hon’ble Supreme Court which has the
effect of either setting aside or modifying the judgment and
order dated April 22, 2024 of the High Court. Consequently,
this High Court should not exercise jurisdiction under the
Contempt of Courts Act, 1971 or Article 215 of the
Constitution of India to implement a judgement and order
which stood merged on appeal.
9. Learned Senior Advocate appearing for the alleged
contemnor no. 3 has relied upon 1974 Volume 2 Supreme
Court Cases 453 (M/s. Gojer Bros. (Pvt.) Ltd. vs. Shri Ratan
Lal Singh), 2019 Volume 4 Supreme Court Cases 376
(Khoday Distilleries Limited and Others vs. Sri
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Mahadeshwara Sahakara Sakkare Karkhane Limited,
Kollegal) and 2024 SCC OnLine SC 1712 (State of Uttar
Pradesh and Another vs. Virendra Bahadur Katheria and
Others) on the issue of merger.
10. In response to the plea of non-maintainability of the
contempt petition, learned Senior Advocate appearing for the
petitioners has contended that, the petitioners are persons
who have brought to the notice of the Court acts of contempt
committed by the alleged contemnors. He has contended that
once the act of contempt is brought to the notice of the Court,
it is then a proceeding between the Court and the alleged
contemnors.
11. Learned Senior Advocate appearing for the petitioners
has relied upon 2004 (73) DRJ 528 (Ram Phal & Another
vs. B. S. Bhalla & Ors.) and 2016 SCC OnLine Ker 41310
(Mariamma Thomas Vs. Vijayanand I.A.S.) for the
proposition that, despite the initial order of the High Court
having merged with the order of the Supreme Court,
nonetheless, contempt petitions were initiated before the High
Court and entertained.
12. Learned Senior Advocate appearing for the petitioners
has contended that, the merger of the judgment and order of
7
the High Court with the judgment and order of the Hon’ble
Supreme Court is one thing for the purpose of review and
another for the purpose of execution. He has contended that,
the merged judgement and order is required to be executed
and that execution proceeding can be had at the Court of first
instance. In the facts and circumstances of the present case,
by virtue of a direction by the Hon’ble Supreme Court dated
November 9, 2023, the writ petitions and the appeals have
been heard by this Division Bench in which the judgment and
order dated April 22, 2024 was passed. Consequently, the
judgment and order dated April 22, 2024 passed by this Court
is required to be executed, by this Court. He has pointed out
that, contempt is an equitable mode of execution, in absence
of appropriate rules existing for execution of orders passed in
writ jurisdiction.
13. Learned Senior Advocate appearing for the petitioners
has contended that, this Court does not lack inherent
jurisdiction to entertain the contempt petition in view of
provisions of Article 215 of the Constitution of India as well as
Contempt of Courts Act, 1971. He has contended that, Article
215 of the Constitution of India being a constitutional
8
provision, it will override any prohibition or inhibition made by
a statute such as the Contempt of Courts Act, 1971.
14. Learned Senior Advocate appearing for the petitioners
has contended that, a judgment and a decree are separate. He
has contended that, the judgment does not merge. However,
the decree that is passed merges with the decree of the
Superior Court if the initial decree is modified or set aside or
upheld by the superior Court.
15. According to the learned Senior Advocate appearing for
the petitioners, there is no impediment in the High Court
exercising contempt jurisdiction to enforce its judgement and
order notwithstanding the merger thereof with the judgement
and order of the Supreme Court.
16. Learned Senior Advocate for the alleged Contemnor
no.1 has contended that, the Ram Phal & Another (supra)
had reached the Hon’ble Supreme Court where the initial
order was set aside by an order dated September 2, 2015
passed in Civil Appel No. 3702 of 2007. He has relied upon
2021 (4) Mh.L.J 718 (All India Adiwasi Employees
Federation, Nagpur vs. Shaktikanta Das, Governor of
RBI, Mumbai and others).
9
17. Learned Senior Advocate for the alleged contemnor no.
2 has submitted that, as against binding precedents of the
Hon’ble Supreme Court the petitioners are seeking to rely
upon precedents which at best, are of persuasive value. He
has also drawn the attention of the Court to the judgment and
order dated August 1, 2023 passed by a Division Bench of the
Kerala High Court in Contempt Case ( C) No. 789 of 2023 (s).
18. In terms of the order dated November 9, 2023, passed
by the Hon’ble Supreme Court, directing a batch of writ
petitions and appeals to be heard by a Division Bench, we had
heard such writ petitions and appeals and passed a
judgement and order dated April 22, 2024 thereon.
19. In such judgement and order dated April 22, 2024, we
had issued the following directions: –
“Directions
363. In view of the discussions above, we issue the following
directions: –
(i) Writ petitions appearing in the monthly list of March, 2024
of this Bench, which are not filed and numbered in the years
2021 and 2022 are released from the list due to lack of
jurisdiction/determination.
(ii) All appointments granted in the selection processes
involved being violative of Articles 14 and 16 of the
Constitution of India, are declared null and void and
cancelled.
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(iii) OMR sheets available in the three hard disks, if not
already done or such portion not done, must be uploaded in
the website of SSC forthwith and made available to the
public for viewing.
(iv) Persons who had been appointed outside the panel, after
expiry of the panel as also those who submitted blank OMR
sheets but obtained appointments, must return all
remunerations and benefits received by them to the State
exchequer along with interest calculated at 12 percent per
annum, from the date of receipt thereof till deposit, within a
period of four weeks from date.
(v) In default, the District Magistrates under whose
jurisdictions, such candidates reside, will take expeditious
steps to realize such amount from such persons, as arrears
of land revenue and shall ensure that recovery is made
within a period of six weeks of the date of initiation of
proceeding for recovery.
(vi) Respective District Inspectors of School will report to the
respective District Magistrates as to whether money directed
to be paid by the persons concerned have been paid to the
State exchequer or not.
(vii) CBI will undertake further investigation in respect of all
the four cases. CBI will interrogate all persons who had
received appointments beyond the panel, after expiry of the
panel and after submitting blank OMR sheets. If necessary,
CBI shall undertake custodial interrogation in respect of each
of them.
(viii) CBI will undertake further investigations with regard to
the persons involved, in the State Government approving
creation of supernumerary post to accommodate illegal
appointments. If necessary, CBI will undertake custodial
interrogation of such person involved.
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(ix) CBI shall submit its reports with regard to further
investigations as directed herein, preferably within three
months from date, with the jurisdictional Court.
(x) Leave granted to SIT to seek appropriate directions so
that the investigations and trials come to their logical
conclusions.
(xi) SSC shall undertake a fresh selection process in respect
the declared vacancies involved in these selection processes
prefereably within a fortnight from the date of declaration of
results of the ensuing elections.
(xii) Appointments for preparation, evaluation and scanning
of OMR sheets shall be made by SSC by open tender and
after declaring the eligibility citeria and other terms and
conditions of the contract.
(xiii) SSC shall follow the Rules governing the selection
processes in letter and spirit.
(xiv) SSC shall make available all policy decisions with
regard to compliance of the Recruitment Rules governing any
of the categories of the selection process in its website.”
20. Several Special Leave Petitions had been filed directed
against the judgement and order dated April 22, 2024 passed
by us. Several Special Leave Petitions admitted by the Hon’ble
Supreme Court and treated as civil appeals had been disposed
of by a judgement and order dated April 3, 2025.
21. Judgement and order dated April 3, 2025 of the
Hon’ble Supreme Court had noted the directions passed by us
on April 22, 2024. It has held as follows: –
“45. The last question relates to the relief and whether it
requires any modification. We find no valid ground or reason
12to interfere with the direction of the High Court that the
services of tainted candidates, where appointed, must be
terminated, and they should be required to refund any
salaries/payments received. Since their appointments were
the result of fraud, this amounts to cheating. Therefore, we
see no justification to alter this direction.
46. For candidates not specifically found to be tainted, the
entire selection process has been rightly declared null and
void due to the egregious violations and illegalities, which
violated Articles 14 and 16 of the Constitution. As such, the
appointments of these candidates are cancelled. However,
candidates who are already employed need not be asked to
refund or restitute any payments made to them. However,
their services will be terminated. Furthermore, no candidate
can be appointed once the entire examination process and
results have been declared void.
47. Some of the appointed candidates who do not fall within
the category of tainted candidates may have previously
worked in different departments of the State Government or
with autonomous bodies, etc. In such cases, although their
appointments are cancelled, these candidates will have the
right to apply to their previous departments or autonomous
bodies to continue in service with those entities. These
applications must be processed by the respective government
departments or bodies within three months, and the
candidates will be allowed to resume their positions.
Further, the period between the termination of their previous
appointment and their rejoining will not be considered a
break in service. Their seniority and other entitlements will
be
preserved, and they will be eligible for increments. However,
for the period they were employed under the disputed
appointment, no wages will be paid by the State Government
or autonomous bodies. Further, if required and necessary,
13supernumerary posts may be created for persons appointed
in the interregnum.
48. Lastly, we address the case of disabled candidates. Our
attention has been drawn to one such case where the
impugned judgment held that the appointee, Ms. Soma Das,
shall be allowed to continue on humanitarian grounds. While
we will not interfere with this finding, we make it clear that
other differentlyabled candidates will not be entitled to the
same benefit, as it would contradict legal principles and the
rule of law. However, in consideration of their disability,
these candidates will be permitted to continue and will
receive wages until the fresh selection process and
appointments are completed.
49. The disabled candidates mentioned in the previous
paragraph will be allowed to participate in the fresh
selection process, if required, with age relaxation and other
concessions. Similarly, other candidates who are not
specifically tainted will also be eligible to participate, with
appropriate age relaxation. In our opinion, such a direction
would be fair and just, as it would allow these candidates to
take part in the fresh selection process, which should now be
initiated to fill the vacancies.
50. Our observations and findings would not influence the
criminal proceedings.
51. Accordingly, we uphold the impugned judgment
cancelling en bloc / entire selection process but have made
certain modifications in the directions issued by the High
Court. The appeals are disposed of in aforesaid terms.
52. We, however, will independently take up the issue raised
in the appeal(s) filed by the State of West Bengal with regard
to the direction of investigation by the CBI on the decision
taken to create supernumerary posts. The Special Leave
Petition(s) to this extent will be listed for hearing on
08.04.2025.
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53. All pending applications, including impleadment
applications, also stand disposed of. No order as to costs.”
22. By a judgement and order dated April 8, 2025, the
Hon’ble Supreme Court has set aside direction number (viii)
appearing at paragraph 363 of our judgement and order dated
April 22, 2024.
23. By an order dated April 17, 2025, the Hon’ble
Supreme Court, on an application filed in the appeal resulting
in the order dated April 3, 2025, has extended the time to
complete the fresh selection process and permitted teachers
who have not been specifically found to be tainted to work till
December 2025.
24. The issues that have fallen for consideration before us
are as follows: –
(i) has our judgement and order dated April 22, 2024
merged in the judgement and orders dated April 3, 2025, April
8, 2025 and April 17, 2025 of the Hon’ble Supreme Court or
not?
(ii) Is a contempt petition maintainable before the High
Court to implement an order which merged with the
order/orders of the Hon’ble Supreme Court?
(iii) to what relief or reliefs are the parties entitled to?
15
25. M/s. Gojer Bros. (Pvt.) Ltd. (supra), after considering
the relevant authorities on the subject of merger of the
judgment of Trial Court in the judgement of the Superior
Court has observed as follows: –
“11. The juristic justification of the doctrine of merger may be
sought in the principle that there cannot be, at one at the
same time, more than one operative order governing the
same sub-matter. Therefore the judgment of an inferior court,
if subjected to an examination by the superior court, ceases
to have existence in the eye of law and is treated as being
superseded by the judgment of the superior court in other
words, the judgment of the inferior court loses its identity by
its merger with the judgment of the superior court.”
26. In Kunhayammed and Others (supra), Hon’ble
Supreme Court has discussed the issue of merger in the
context of whether a review petition is maintainable before the
High Court subsequent to a Special Leave Petition being
disposed of by the Hon’ble Supreme Court. It has held as
follows: –
“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. 1067-68.).
44. To sum up, our conclusions are:
16
(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 stages. The first stage is
upto the disposal of prayer for special leave to file an appeal.
The second stage commences if and when the leave to
appeal is granted and the special leave petition is converted
into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of
jurisdiction exercised by the superior forum and the content
or subject-matter of challenge laid or capable of being laid
shall be determinative of the applicability of merger. The
superior jurisdiction should be capable of reversing,
modifying or affirming the order put in issue before it. Under
Article 136 of the Constitution the Supreme Court may
reverse, modify or affirm the judgment-decree or order
appealed against while exercising its appellate jurisdiction
and not while exercising the discretionary jurisdiction
disposing of petition for special leave to appeal. The doctrine
of merger can therefore be applied to the former and not to
the latter.
(iv) An order refusing special leave to appeal may be a
non-speaking order or a speaking one. In either case it does
not attract the doctrine of merger. An order refusing special
leave to appeal does not stand substituted in place of the
order under challenge. All that it means is that the Court
17
was not inclined to exercise its discretion so as to allow the
appeal being filed.
(v) If the order refusing leave to appeal is a speaking
order, i.e., gives reasons for refusing the grant of leave, then
the order has two implications. Firstly, the statement of law
contained in the order is a declaration of law by the Supreme
Court within the meaning of Article 141 of the Constitution.
Secondly, other than the declaration of law, whatever is
stated in the order are the findings recorded by the Supreme
Court which would bind the parties thereto and also the
court, tribunal or authority in any proceedings subsequent
thereto by way of judicial discipline, the Supreme Court
being the Apex Court of the country. But, this does not
amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the
Supreme Court rejecting the special leave petition or that the
order of the Supreme Court is the only order binding as res
judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the order
passed in appeal would attract the doctrine of merger; the
order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an
appeal before the Supreme Court the jurisdiction of High
Court to entertain a review petition is lost thereafter as
provided by sub-rule (1) of Rule 1 of Order 47 CPC.”
27. Dineshan K.K (supra) has noticed that, the order
passed by the High Court merged with the order passed by the
Hon’ble Supreme Court. It has however, requested the High
Court to look into the grievance of the complainant, if a
18
petition was filed before the High Court for disobedience of the
order. In the facts of that case, the order of the Hon’ble
Supreme Court was an order of dismissal simpliciter.
28. Khoday Distilleries Limited and Others (supra) has
considered the issue as to whether the review petition is
maintainable before the High Court seeking review of a
judgement against which the Special Leave Petition has
already been dismissed by the Hon’ble Supreme Court or not.
It has answered such issue by observing that, the view
expressed in Kunhayammed and Others (supra) lays down
the correct law.
29. On the issue of merger of orders, Virendra Bahadur
Katheria and Others (supra) after noticing various
authorities including Kunhayammed and Others (supra)
has held as follows: –
“43. These decisions indubitably hold if Special Leave
was not granted and the petition was dismissed by a
reasoned or unreasoned order, the order against which such
Special Leave Petition is filed would not merge with the order
of dismissal. However, once leave has been granted in
Special Leave Petition, regardless of whether such appeal is
subsequently dismissed with or without reasons, the
doctrine of merger comes into play resulting merger of the
order under challenge with that of the appellate forum, and
only the latter would hold the field. Consequently, it is the
19decision of the superior court which effective, enforceable,
and binding in the eyes of the law, whether the appeal is
dismissed by the speaking order or not.”
30. Doctrine of merger of a decree passed by the trial
Court with that of the decree passed by the High Court and
Second appeal has been dwelt upon in Balbir Singh and
Another (supra). It has held as follows: –
“33. Thus, once the High Court allows the second appeals
in favour of the plaintiffs, there was evidently a merger of
the judgments of the trial court with the decision of the High
Court. Once the High Court as an appellate court in second
appeal renders its judgment, it is decree of the second
appellate court which becomes executable hence, the
entitlement of the decree-holder to execute the decree of the
second appellate court cannot be defeated.”
31. The Nagpur Bench of the Bombay High Court in All
India Adiwasi Employees Federation, Nagpur (supra) has
noticed various authorities of the Supreme Court and the
doctrine of merger including Kunhayammed and Others
(supra) and held that, the power to punish under Article 215
is limited to the contempt of the High Court or Courts
subordinate to the High Court and that it does not extend to
punishing for contempt of a Superior Court.
32. Special Bench of the Calcutta High Court in Sailesh
Kumar (supra) has considered the following issues: –
20
(a) Will the doctrine of merger be applied to confer an
exclusive jurisdiction on a Division Bench to entertain
contempt application where the order of the Single Bench is
either upheld in toto and/or the appeal against an order of
the Single Bench is dismissed simplicitor?
(b) Is the jurisdiction of the Division Bench and a Single
Bench in such cases co-extensive insofar as contempt
applications are concerned?
33. Sailesh Kumar (supra) has answered such reference
as follows: –
“22. The Calcutta High Court Contempt of Courts Rules,
1975 was promulgated in exercise of power conferred under
Section 23 of the Contempt of Courts Act, 1971 and
Article 215 of the Constitution of India to regulate the
procedures of contempt of courts matter may be seen in this
regard. The said Rules having a statutory backing have to be
understood and applied and no departure can be presumed
therefrom. Rule 15 of the Contempt Rules postulates that all
petitions with regard to the civil contempt grounded on the
wilful disobedience to the judgment, decree, the directions,
order or other process of Court or wilful breach of an
undertaking given to the Court shall be heard by the Judge
or Judges who passed the judgment or a decree or gave the
directions or the orders or issued the writ or other process or
before whom the undertaking was given. The statutory
provision has to be understood on the basis of the intention
purposes and object it sought to achieve and segregation
and/or compartmentalization has to be eschewed. The
21provisions contained in Rule 15 cannot be dissected nor
segregated in the event of an undertaking, the contempt
would lie to the Judge before whom the undertaking is given
from rest of the express eventualities provided therein. It is
explicit from Rule 15 of the Contempt Rules that the contempt
would lie before a Judge or Judges who passed the
judgment or decree and not before the Appellate Court which
confirms the decree. The position would have been different
when the judgment, decree, directions or orders passed by
the Single Bench is modified and/or reversed by the Division
Bench exercising the appellate jurisdiction and in such event,
the contempt may lie before the same Judges constituting the
Division Bench as there is no express provision in the said
contempt rules that of Section 37 of the Code of Civil
Procedure. Any other interpretation to the provision
contained under Rule 15 of the Contempt Rules would not
only burden the Division Bench of the High Court with slew
of the contempt applications but also have the ramification
on docket explosion. Although the doctrine of merger is not a
rigid rule but certainly depends upon the statutory provisions
applicable in relation to the maintainability of the contempt
application before a forum. The contempt jurisdiction is not
only exercised to punish the person having found guilty of
wilful and deliberate violation of the order/direction of the
Court but can further be exercised in due implementation
and/or execution of the said order. It stands to reason that
the statutory provision contained in the Rules is strictly
applicable and therefore, the answer to the references is as
follows:
(i) In case of an affirmation of an order of Single Bench
passed in exercise of the original jurisdiction either in
Original Side or the Appellate Side, the contempt would lie
before the Single Bench alleging the violation of the
directions of orders passed by him.
22
(ii) In case of reversal, modification and setting aside the
order of the Single Bench in an appeal under Clause 15 of
the Letters Patent by the Division Bench, the contempt
application would lie before the Judges constituting a
Division Bench who passed the order.
(iii) In the event, an undertaking is given by the party to
the proceeding before the Single Judge to do or not to do a
certain thing and challenge to an order could not yield in
reversal and/or modification of the original order is recorded
the contempt would lie to a Judge before whom such
undertaking was given.”
34. Sailesh Kumar (supra) has therefore, neither
considered the second issue taking for consideration herein
nor answered it.
35. A Single Judge of the Delhi High Court in Ram Phal
and another (supra) has enforced an order passed by the
Division Bench, in a contempt petition filed before the Single
Judge. However, the issue as to whether an order of the
learned Single Judge having merged with the order of the
Division Bench can be enforceable by the learned Single Judge
was not raised and not answered therein.
36. Supreme Court in Civil Appeal No. 3822 of 2007 (B.
S. Bhalla and another vs. Ram Phal and Another) by an
order dated September 2, 2015 after noticing that the order of
the High Court stood complied with, had set aside order of the
High Court and disposed of the contempt proceedings.
23
37. A Single Judge of the Kerala High Court in Mariamma
Thomas (supra) has held that, doctrine of merger is not
available in contempt proceedings. However, it has noticed
that, if the Appeal Court materially modifies or varies the
order of the Single Judge then, the Appeal Court needs to be
approached.
38. A Division Bench of the Kerala High Court in
Contempt Case (C) No. 789 of 2023 (Amod Mathew vs. A P
M Mohammed Hanish and Another) has subscribed to view
expressed in Mariamma Thomas (supra) that, principle of
merger applies to contempt proceedings only if it means the
ends of justice.
39. Records made available to this Court have established
that, Special Leave Petitions directed against the judgement
and order dated April 22, 2024 have been dealt with in 2
categories. One civil appeal directed against the judgement
and order dated April 22, 2024 being Civil Appeal No. 4800 of
2025 had considered the issue with regard to the direction for
investigation by the Central Bureau of Investigation for the
decision to create supernumerary post. Such civil appeal No.
4800 of 2025 had been disposed of by the order dated April
18, 2025 setting aside such a direction as contained in the
24
judgement and order dated April 22, 2024. Therefore, one of
the directions contained in judgement and the order dated
April 22, 2024 does not survive the order dated April 18, 2025
passed by the Hon’ble Supreme Court.
40. So far as the other directions that are contained in the
judgement and order dated April 22, 2024 are concerned, the
same are governed by the judgement and order dated April 3,
2025 passed by the Hon’ble Supreme Court in the civil
appeals directed against the judgement and order dated April
22, 2024. Subsequent to the order dated April 3, 2025,
Hon’ble Supreme Court has, on an application filed in such
civil appeals, passed an order dated April 17, 2025. Such
order has been passed in Miscellaneous Application No. 709 of
2025 filed in Civil Appeal No. 4805 2025.
41. Both the sets of the Special Leave Petitions directed
against the judgement and order dated April 22, 2024 had
been admitted by the Hon’ble Supreme Court and disposed of
as Civil Appeals.
42. On the strength of the ratio of the judgements on
merger cited on behalf of the parties, in this proceeding, we
have no hesitation in holding that, the judgement and order
dated April 22, 2024 had merged in the judgement and order
25
dated April 3, 2025, April 8, 2025 and April 17, 2025 of the
Hon’ble Supreme Court.
43. In view of the discussions above, the first issue is
answered in the affirmative by holding that, the judgement
and order dated April 22, 2024 has merged with the
judgement and orders of the Hon’ble Supreme Court passed
on April 3, 2025, April 8, 2025 and April 17, 2025.
44. Provisions of execution particularly those enumerated
under Order 21 of the Code of Civil Procedure, 1908 are not
available for executing an order passed in writ jurisdiction.
However, it is judicially recognised that, contempt is an
equitable mode of execution of an order passed in writ
jurisdiction.
45. Ordinarily, in case of a civil suit, should the decree be
carried in appeal or a Second Appeal is filed or a Special Leave
Petition directed against the decree passed in the Second
Appeal is decreed, then the ultimate decree passed by the
Superior Court is put into execution. Executing Court then, is
identified by the provisions of the Code of Civil Procedure,
1908 notwithstanding the hierarchy of the Courts which
passed the ultimate decree. It is the ultimate decree, that is to
say, the final decree of the last Court which is put into
26
execution. In such perspective, a decree passed by a civil
Court, either affirmed or modified ultimately by the Hon’ble
Supreme Court is not put into execution before the Hon’ble
Supreme Court but before the Court having requisite
jurisdiction to execute such decree, at the first instance.
46. In view of the absence of similar provisions akin to the
Code of Civil Procedure, 1908 relating to execution of a decree,
for an order passed in writ jurisdiction, to be executed,
proceedings under the Contempt of Court Act, 1971 are
accepted modes of execution of the order passed by a writ
Court.
47. An order passed in writ jurisdiction is enforced
through a contempt proceeding primarily on the principle
that, non-adherence or non-compliance with the writ issued
tends to degrade his dignity and majesty of the Court issuing
the writ. In the facts and circumstances of the present case
the ultimate writ was issued by the Hon’ble Supreme Court
and therefore a contempt petition would not lie before this
Court to enforce such order, unless specifically empowered by
the Hon’ble Supreme Court to do so akin to Dineshan K.K
(supra).
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48. Consequently, in view of the absence of such
provisions of the Code of Civil Procedure, 1908 to execute an
order passed by a writ Court, the analogy or the principle
that, even if, the ultimate decree is modified or altered or
affirmed by the Superior Court, the same needs to be executed
by the Court as delineated in the Code of Civil Procedure,
1908 is not attracted to a contempt proceeding to implement
an order passed by the writ Court.
49. Article 215 of the Constitution of India has empowered
the High Court to punish for its contempt. In our view, such
provisions of the Constitution cannot be read to mean that, a
High Court has the power to punish for contempt of orders of
the Hon’ble Supreme Court, without the Hon’ble Supreme
Court requesting it to do so, more so in view of the provisions
of Article 129 of the Constitution of India.
50. Doctrine of merger propounded by the authorities as
noted above, have made a review petition not maintainable
before the High Court subsequent to the Hon’ble Supreme
Court admitting a Special Leave Petition directed against the
order of the High Court. Review petition is not maintainable
before the High Court in the scenarios as have been noted by
the authorities of the Hon’ble Supreme Court, in view of the
28
fact that, the judgement and order of the High Court ceases to
exist on merger.
51. On merger of the judgement and order of the High
Court with that of the Hon’ble Supreme Court, it ceases to
exist for the purpose of a review before the High Court, then,
and on the parity of the same reasoning, it ceases to exist for
the High Court to enforce it through a contempt petition.
52. Consequently, we are unable to subscribe to the view
that, doctrine of merger is not absolute and that, in certain
circumstances, the High Court can entertain an application
for contempt of an order passed by the Hon’ble Supreme
Court, notwithstanding the order of the High Court having
merged in the order of the Hon’ble Supreme Court.
53. In the facts and circumstances of the present case,
there are three orders of the Hon’ble Supreme Court
subsequent to our judgement and order dated April 22, 2024.
Judgement and order dated April 3, 2025 and April 8, 2025 of
the Hon’ble Supreme Court dealt with two sets of civil appeal
directed against the judgement and order dated April 22,
2024. The third order dated April 17, 2025 was passed by the
Hon’ble Supreme Court and a miscellaneous application filed
in one of the sets of the appeals before it.
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54. The last order dated April 17, 2025 of the Hon’ble
Supreme Court contains certain directions with regard to
assistant teachers for the classes IX, X, XI and XII who were
not found to be tainted. Some of the parties to the civil
appeals were directed to file affidavits by May 31, 2025 in
closing there with documentary evidence of compliance of the
directions issued by the Hon’ble Supreme Court. Such order
also contains a default clause in the event of non-compliance
of the directions contained therein.
55. Although, the two sets of appeals as also the
miscellaneous application in which, the 3 orders of the
Supreme Court as noted above were passed stood disposed of,
nonetheless, by the tenor of the last order dated April 17,
2025, it is apparent that, the Hon’ble Supreme Court order
proceed to issue further directions in the event of non-
compliance of the directions contained in such order.
56. In view of such directions contained in the order dated
April 17, 2025, it would be safe to infer that, the Hon’ble
Supreme Court is still in seisin of non-compliance of the
directions, if there be any.
57. We therefore, answer the second issue by holding that
a contempt petition is not maintainable before the High Court
30
to implement an order which merged with the order of the
Hon’ble Supreme Court.
58. In view of the discussions above, CPAN 621 of 2025 is
dismissed as not maintainable. The third issue is answered
accordingly.
[DEBANGSU BASAK, J.]
59. I agree.
[MD. SHABBAR RASHIDI, J.]
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