w w w . L a w y e r S e r v i c e s . i n



Bharat Sanchar Nigam Ltd. Corporate Office, New Delhi, Represented by Its Director General & Another v/s Union of India, Represented by The Secretary, Ministry of Communication & Information Technology, Department Of Telecommunications, New Delhi & Another


Company & Directors' Information:- BHARAT SANCHAR NIGAM LIMITED [Active] CIN = U74899DL2000GOI107739

Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- L H TELECOMMUNICATIONS INDIA PRIVATE LIMITED [Strike Off] CIN = U74900JK2009PTC003032

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NEW COMMUNICATION TECHNOLOGY PVT LTD [Active] CIN = U31909GJ1989PTC012512

Company & Directors' Information:- C H C INFORMATION TECHNOLOGY LIMITED [Strike Off] CIN = U72200WB2001PLC093126

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- V R INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900MH2000PTC128632

Company & Directors' Information:- K. K. INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72200OR2009PTC011100

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- S A I S INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72100TN2010PTC075284

Company & Directors' Information:- CORPORATE TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U30007MH2009PTC192254

Company & Directors' Information:- V & D TELECOMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64200MH2008PTC179961

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- S H INFORMATION TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135610

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- V G TELECOMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64202DL2005PTC138929

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- CORPORATE TELECOMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U45204TN1994PTC029182

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

Company & Directors' Information:- G & D COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64200MP2007PTC019633

    R.P. Nos. 145, 154 to 156 of 2018 in O.P.(CAT) Nos. 21, 142, 29029 & 20 of 2010

    Decided On, 07 August 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE C.T. RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M. BABU

    For the Petitioner: P.J. Philip, SC, K. Ramakumar, Sr. Advocate. For the Respondents: R1, N. Nagaresh, Assistant Solicitor General, R2, N.N. Sugunapalan, Sr. Advocate, S. Sujin, Advocate.



Judgment Text


Ravikumar, J.

1. Questions of seminal importance call for resolution in the captioned review petitions filed seeking review of the common judgment dated 4.11.2011 passed by this Court in O.P.(CAT).Nos.20, 21 & 142, of 2010 and W.P.(C).No.29029 of 2010. As per the said common judgment, a Division Bench of this Court dismissed the original petitions and also the writ petition and the petitioners herein who were the official respondents before the Tribunal were directed to comply with the common order passed by the Tribunal within the time stipulated therein. Further, it was directed to fill up all the vacancies which were existing during the period when Assistant Director (Official Language) Recruitment Rules, 2002 was in force, in accordance with the said Rules and the remaining vacancies were directed to be filled up from among persons who came out successful in the Limited Internal Competitive Examination conducted as per the Rajabhasha Adhikari Recruitment Rules, 2005. The review petitioners unsuccessfully challenged the common judgment before the Apex Court. The Apex Court, as per order in SLP (Civil) No.8575/2012 and connected matters, dismissed the SLPs as per order dated 27.3.2017 as hereunder:-

“In such circumstances of these cases, we are not inclined to interfere with the impugned judgment(s). The special leave petitions are, accordingly dismissed.”

2. The petitioners herein filed Review Petition (Civil) No.2451/2017 and connected matters in all the SLPs. Those review petitions filed against order dated 27.3.2017 were dismissed by the Apex Court as per order dated 16.11.2017 as hereunder:-

“We have perused the Review Petitions as well as the grounds in support thereof. In our opinion, no case for review of order dated 27.03.2017 is made out. Consequently, the review petitions are dismissed.”

3. Admittedly, it is after the dismissal of the SLPs as also the review petitions filed in those SLPs that the captioned review petitions have been filed seeking review of the judgment dated 4.11.2011 in O.P.(CAT).No.21/2010 and connected matters. Various contentions have been raised by the learned Senior Counsel appearing for the review petitioners in support of the prayer for review of the judgment dated 4.11.2011 in O.P.(CAT).21/2010 and connected matters. Before considering the said contentions on merits, the preliminary objection raised by the learned counsel appearing for the party respondents herein/applicants before the Tribunal regarding the maintainability of the review petitions requires consideration. We will deal with that issue first.

4. We have already taken note of the fact that the review petitioners who were the official respondents before the Tribunal and the petitioners in the above mentioned original petitions and the writ petition unsuccessfully challenged the said common judgment before the Apex Court by filing the SLPs and thereafter, unsuccessfully attempted to get order dated 27.3.2017 passed in the SLPs reviewed. Those review petitions were dismissed as per order dated 16.11.2017. It is based on the said circumstances that the preliminary objection was raised by the party respondents herein. According to them, in view of the dismissal of the SLPs and the review petitions in the SLPs, the review petitions filed by the petitioners in the above mentioned original petitions and the writ petition could not be maintained. In support of the contention, they rely on the decision of the Apex Court in Sunni Central Board of Waqf v. The Deputy Director of Consolidation and Ors. [LAWS (UTN) 2014 2 91= 2015 (3) UC 1723].

5. Per contra, the learned counsel for the review petitioners submitted that the said objection is untenable and in order to strengthen his contention that the review petitions are maintainable, he relied on the decisions of the Apex Court in K.Rajamouli v. A.V.K.N. Swamy [(2001) 5 SCC 37], Kunhayammed and Ors. v. State of Kerala and Ors. [AIR 2000 SC 8527] and the decision in Gangadhara Palo v. The Revenue Divisional Officer and Ors. [(2011) 4 SCC 602]. Thus, essentially, the question is whether a review petition filed before this Court against a judgment from which SLPs and review petitions in the SLPs were unsuccessfully attempted, can be maintained?

6. In the context of the rival contentions made based on the aforesaid common judgment dated 4.11.2011, orders in the SLPs and in the review petitions filed in the SLPs, it is only appropriate to refer to the decisions referred (supra), relied on by the parties. In Kunhayammed's case (supra), the legal implication and impact of an order rejecting a petition seeking grant of special leave to appeal under Article 136 of the Constitution of India were considered by the Apex Court. In the context of the contentions raised therein, the Apex Court referred to the doctrine of merger and held that it is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. It was also held that the said doctrine is not of universal or unlimited application and that the nature of the jurisdiction exercised by the superior forum and the content or the subject matter of challenge laid or which could have been laid should have to be kept in mind. After referring thus on the doctrine of merger, the Apex Court considered various authorities pronounced by it on the issue of impact of rejection of the petition seeking grant of special leave under Article 136 of the Constitution of India and held that exercise of jurisdiction conferred under Article 136 of the Constitution consists of two steps viz., consideration whether leave is to be granted or not; and upon granting leave hearing the appeal itself. Though both dealt with by Article 136 of the Constitution, they are clearly distinct stages and having held thus, the Apex Court laid the legal position emerged thus:-

1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal, the petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave.

2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out.

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.

4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. Dismissal at stage of special leave - without reasons - no resjudicata, no merger.

It was further held in paragraph 18 there under thus:-

“In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a nonspeaking order the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.”

(Underline supplied)

7. The Apex Court held that a petition for leave to appeal to the Apex Court may be dismissed by a non-speaking order or a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in the place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons, then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. In short, the Apex Court concluded that an order refusing leave to appeal may be a non-speaking order or a speaking one and in either case, it would not attract the doctrine of merger as the order refusing special leave to appeal would not stand substituted in place of the order under challenge. It was held that all that it would mean is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

8. In Rajamouli's case, following the decision in Kunhayammed's case, the Apex Court held that dismissal of a special leave petition against the main judgment of the High Court would not constitute res judicata whereby special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. In paragraph 4 therein, the Apex Court held:-

The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.

9. In Gangadhara Palo's case (supra), the Apex Court referred to its earlier decisions in Rajamouli's case and Kunhayammed's case and declined to agree with the finding in Rajamouli's case to the extent it holds that there is a distinction between a case where review petition was filed in the High Court before the dismissal of the special leave petition and a case where review petition was filed after the dismissal of the special leave petition. In paragraph 7 therein, it was held:-

“We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.

10. So also, in Gangadhara Palo's case, the Apex Court did not agree with the decision in Kunhayammed's case (supra) to the extent even when a special leave petition was dismissed by a speaking order, it would not attract the doctrine merger. In that context, paragraph 8 of the decision in Gangadhara Palo's case assumes more relevance and it reads thus:-

“When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges in to the judgment of the higher court. Hence, if some reasons, however meager, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.

(emphasis added)

Shortly stated, the Apex Court made the position of law clear in Gangadhara Palo's case that there would be no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the review petition and further that a merger would take place when a SLP is dismissed by giving some reasons, however meagre and that it can even of just one sentence. In such eventuality, the judgment of the High Court would merge with the order of the Apex Court dismissing the special leave petition and after such merger, there would be no judgment of the High Court so as to make a review of it. At the same time, it was held that when a special leave petition is dismissed without giving any reason whatsoever, there would be no merger of the judgment of the High Court with the order of the Apex Court and in such circumstances, the High Court could review its judgment since it continues to exist, though the scope of review would be limited to errors apparent on the face of the record.

11. True that the decision relied on by the party respondents viz., Sunni Central Board of Waqf's case was also rendered relying on the decision of the Apex Court in Gangadhara Palo's case (supra). Paragraph 6 of the decision of the Apex Court in Rajamouli's case was also referred therein. After taking note of the same, the Uttarakhand High Court in the said decision held thus:-

In the present case the SLP has been dismissed on the grounds that no ground is made out, thereafter the review petition was also made before the Hon'ble Apex Court, which is also dismissed by the Hon'ble Apex Court vide order dated 19.11.2014 (referred above). Reasons have been assigned.

12. In the contextual situation, orders in the special leave petition and in the review petition referred to in paragraph 10 of the decision in Sunni Central Board of Waqf's case (supra) are worthy to be extracted. The special leave petition mentioned therein was dismissed by order dated 6.9.2014 on the following lines:-

Heard the learned counsel for the parties. No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India. The special leave petition is dismissed.

13. The review petition seeking review of the said order dated 6.9.2014 was dismissed as per order dated 19.11.2014 as hereunder:-

We have perused the review petition and connected papers.

We do not find any error in the order impugned, much less an apparent error on the face of the record, so as to call for its review.

The review petition is dismissed accordingly.

14. We have carefully gone through the decision in Sunni Central Board of Waqf's case. We find it very difficult to concur with the reasoning of the High Court on certain points. The Apex Court in unambiguous terms held that if some reasons are given for dismissing the special leave petition, however meagre they are (it could even be just one sentence), there would be merger of the judgment of the High Court into the order of the Apex Court dismissing the SLP. But then, in the decision in Sunni Central Board of Waqf's case (supra), the Single Bench of the High Court of Uttarakhand virtually held dismissal of the SLP on the ground that 'no ground is made out' should be taken as an order of dismissal of SLP by a speaking order. In other words, as per the said decision, the phraseology 'no ground is made out' used in the order of dismissal of SLP is a reason which would make the said order a speaking one. According to us, the reason assigned for dismissal viz., 'no ground made out' cannot be taken as a reason to hold that it got merged with the order of the High Court and thereby made it non-available for review, by the High Court, going by the very decisions of the Hon'ble Apex Court.

15. In Indian Oil Corporation Ltd. v. State of Bihar and Ors. reported in (1987) 1 LLJ 17 SC , the Apex Court held :-

“........the effect of a non-speaking order of dismissal of a special leave petition, without anything more indicating the grounds or reasons of it dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition.”

(emphasis added)

16. We have already extracted paragraph 18 of the decision in Kunhayammed's case (supra). There, the Apex Court held:-

“As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a nonspeaking order.”

17. Thus, the above extracted portion of the judgment would make it clear that in order to be a speaking order the reason for dismissal of leave petition must have been specifically given therein. Our view would be further strengthened by the following recital in paragraph 27 of the decision in Kunhayammed's case:- Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.

(emphasis added)

18. In that context, it is also relevant to refer to the following paragraph from the decision of the Apex Court in Supreme Court Employees' Welfare Association v. Union of India and Anr. [(1989) IILLJ 506 SC]:-

When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted.

19. In view of the aforesaid decision, according to us, the words, “by giving some reasons” must be understood as a specific reason, be it meagre or even in one sentence (as held by the Hon'ble Apex Court in Gangadhara Palo's case), but it should specifically conveying the reason for dismissal. According to us, it should be viewed on another angle as well. Even if the Hon'ble Apex Court dismissed a special leave petition without using the phraseology 'no ground made out' or by using the said phraseology it would make the said order a 'speaking order' as it does not assign specific other reason for dismissing the same. This is because one can only take that if a ground was made, the Hon'ble Apex Court would have granted leave to appeal and therefore, even if a special leave petition is dismissed without using the phraseology 'no ground made out' it could only presume that it was dismissed as no ground was made out. Hence, according to us, the mere usage 'no ground made out' cannot be taken as a factor making the order of dismissal of a leave petition a 'speaking order' in the absence of any other specific reason. At the risk of repetition, at this juncture, we will refer to the following recital from paragraph 18 of the decision in Kunhayammed's case (supra):-

“As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a nonspeaking order.”

In that context, it is apropos to refer to paragraph 15 of the decision in Gangadhara Palo's case, as well. The Apex Court held:-

By a judicial order, the power of review cannot be taken away as that has been conferred by the statute or the Constitution. This Court by judicial orders cannot amend the statute or the Constitution.

20. When the aforesaid being the declaration of position of law by the Apex Court, while holding that a review would not lie especially in the light of the position settled by the Apex Court in Gangadhara Palo's case regarding the maintainability of review petition filed prior or after dismissal of the special leave petition by the Apex Court, we are of the considered view that this Court has to be more cautious while being called upon to decide such a question to ensure that our guess on the reason for dismissal of a leave petition shall not result in deprivation of the statutory right of seeking review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had stood rejected by the Supreme Court.

21. In such circumstances, when a review petition is filed against judgment of this Court after approaching the Hon'ble Apex Court by filing a special leave petition, the first question to be considered is whether there is a merger of the judgment sought to be reviewed with the order of the Hon'ble Apex Court dismissing the special leave petition filed against the same. In that regard, the answer would depend upon the question whether the Apex Court had dismissed the special leave petition by giving some reasons, however meagre (it can be even of one sentence), as held by the Apex Court and whether there occurred a merger of the judgment of the High Court sought to be reviewed with the order of the Supreme Court dismissing the special leave petition.

22. In the circumstances, it is only worthwhile to refer to the orders of the Apex Court passed in the special leave petitions as also in the review petitions filed thereon. We have already extracted those orders. In fact, the order of the Apex Court in the special leave petitions is produced as Annexure A4 in R.P.No.145 of 2018 and the order of the Apex Court in the review petitions filed in the special leave petitions is also produced therein as Annexure A5. In both Annexure A4 order as also in Annexure A5 order, no specific reason has been given. Annexure A5 reads thus:-

“Delay condoned. These review petitions are dismissed in terms of the signed order.”

The signed order has been extracted earlier.

23. In such circumstances, in the light of the decisions of the Hon'ble Apex Court referred (supra), the question whether the common judgment of this Court sought to be reviewed had merged with the orders of the Apex Court can be answered in the negative. In this context, it is also relevant to note that the position obtained in this case is somewhat similar to the position obtained in Rajamouli's case (supra). A bare perusal of paragraph 1 in Rajamouli's case would reveal that during the pendency of the review petition filed before the High Court of Andra Pradesh in C.R.P.No.3077/1992, the special leave petition was filed against the main judgment of the High Court in the CRP. Evidently, such a special leave petition was filed citing the delay in the matter of disposal of the review petition by the High Court. The special leave petition filed against the main judgment of the High Court was summarily rejected without assigning any reason. Thereupon, the appellant therein filed a review petition against the order in the SLP. But that review petition was also dismissed. The order in the review petition preferred before the High Court against its common judgment in C.R.P.No. 3077/1992 was taken up and disposed of only subsequent to the dismissal of the special leave petition and the review petition in the said special leave petition. Even then, the Apex Court held that the exercise of review jurisdiction by the High Court after the dismissal of the special leave petition and the review petition in the special leave petition is only legal. In such circumstances as also in view of the fact that no reason even by a single sentence was made in Annexure A4 or in Annexure A5, we are of the considered view that the preliminary objection raised by the respondent herein/respondent in the original petitions based on Annexures A4 and A5, is absolutely bereft of any basis. It cannot be said that by virtue of Annexure-A4 or A5, there occurred a merger of the common judgment with any one of them. In such circumstances, we hold that the review petitions are maintainable.

24. The next question to be considered is whether any error apparent on the face of the record is made out by the petitioners inviting for the exercise of the review jurisdiction of this Court. In that regard, we will consider the merits of the contentions in the review petitions so as to decide whether any ground for that purpose is brought or not. As noticed hereinbefore, various grounds were raised in the review petitions. The nub of the contentions, as can be seen from the various grounds raised in the review petitions, is that this Court had made an apparent error in coming to the conclusion that Recruitment Rules, 2002 was in operation, relying on paragraph 9 of the judgment of the Apex Court in BSNL v. Mishri Lal and others [(2011) 14 SCC 739]. It is the contention that mistaken conclusion is arrived at solely due to the error in extracting paragraph 9 of the said decision as paragraph 10 thereof. Actually carried no declaration as to the question whether Recruitment Rules, 2002 were in operation or not and further that in paragraph 10 of the said decision, an assertion is there to the effect that Recruitment Rules, 2002 were never in operation. A bare perusal of the extracted portion in paragraph 6 of the common judgment dated 4.11.2011 and paragraphs 9 and 10 of the judgment in Mishri Lal's case would reveal the same, it is contended. As a matter of fact, such a perusal would reveal that there is substance in the contention of the review petitioners. From paragraph 6 of the common judgment sought to be reviewed dated 4.11.2011, it is evident that what is extracted as paragraph 10 of the decision in Mishri Lal's case is nothing but paragraph 9 thereof. True that in paragraph 9 of the said decision, there is no specific statement or declaration as to the question whether the Recruitment Rules, 2002 was in operation or not, at any point of time. But at the same time, a perusal of paragraph 10 of the decision in Mishri Lal's case would reveal that the Apex Court had clearly entered into a finding that the Recruitment Rules, 2002 were never in operation at any point of time.

25. In this context, it is only appropriate to extract paragraph 10 of the judgment in Mishri Lal's case. It reads thus:-

It may be mentioned that the respondents herein were never regularly promoted as Hindi Officer at any point of time either under the 1984 Rules or the Recruitment Rules, 2002. They had never been appointed on the basis of the recommendation of the Departmental Promotion Committee duly approved by the Union Public Service Commission. In fact, they were appointed purely on a local officiating basis under the powers delegated to the heads of telecom circles on the basis of administrative instructions dated 28-4-1994. Thus, they were never regular appointees and hence had no vested rights for promotion to the post of Hindi Officer under the Recruitment Rules of 2002, which, in fact, were never in operation at any point of time. Besides this, when the revised Recruitment Rules, 2005 were formulated, 120 posts were classified as executive, and for the executive cadre posts, the mode of recruitment was changed and it was now to be filled up by a limited internal competitive examination. It cannot now be allowed to be filled up by promotion of persons working on officiating basis. In our opinion there was nothing illegal in this change of policy.

26. In short, this categoric declaration of the factual situation by the Apex Court regarding the question as to whether Recruitment Rules, 2002 was operational or non-operational was mistakenly understood owing to the said error in taking paragraph 9 of the decision in Mishri Lal's case as paragraph 10. True that immediately after extracting paragraph 9 (as paragraph 10), it is stated in the judgment sought to be reviewed as follows:-

A casual observation that allegedly the Rules were never in operation is not a finding at all. Therefore, we find that the above quoted

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observation in para 10 of the judgment is not at all pertaining to the commencement or validity of the Rules 2002. Here, in this case, we find that neither of the petitioners has a plea that the Rules 2002 has not come into force or it was never in operation. In the absence of specific pleading, the argument now raised for the first time is not entertainable. 27. In this context, it will not be inappropriate to note the observation made by the learned Division Bench which passed order dated 12.3.2018 condoning the delay in filing the captioned review petition. Taking note of the huge delay, the learned Judges had also considered the question whether there is any merit in the review petition. True that it is only an order passed in the I.A. Still, we think that it has some relevance. It is stated therein:- While passing the judgment on 04.11.2011, this Court had adverted to Ext.P15, to hold that the '2002 Rules' were brought on force, but it is not seen considered whether any promotion was made based on the '2002 Rules' or whether any conscious decision was taken not to fill up the vacancies based on the '2002 Rules' or to have all the vacancies filled up only as per the new/'2005' Rules. A further scrutiny in this regard is felt necessary, giving further opportunity of hearing to the respondents/applicants, in view of the observations made by the Apex Court in paragraphs 10, 13 and 14 of the verdict reported in 2011 (14) SCC 739 [cited supra]. It is also to be noted that in the journal Kerala High Court Cases, the decision Mishri Lal's case has been reported (see 2011 KHC 4385). In the said journal, the paragraph from Mishri Lal's case extracted in paragraph 6 of the common judgment viz., referred to as paragraph 9 hereinbefore, is actually given as paragraph 10. But at the same time, the said extracted paragraph in paragraph 6 of the common judgment is given as paragraph 9 in the decision reported in 2011(14) SCC 739 and the relevant statement that the 2002 Recruitment Rules was not operational at any point of time, is contained in paragraph 10 of the decision reported in 2011 (14) SCC 739. In such circumstances, it is evident that the said relevant paragraph was not extracted correctly and proper attention was not bestowed to paragraph 10 thereof. In such circumstances, we unhesitatingly hold that the review petitioners did bring out error apparent on the face of the record to invoke the review jurisdiction of this Court. In this context, we also have to acknowledge the applicability of the maxim 'actus curiae neminem gravabit'. For the aforesaid reasons, we are inclined to allow the captioned review petitions. Consequently, the impugned judgment dated 4.11.2011 in O.P.(CAT) Nos.20, 21 & 142 of 2010 and W.P.(C).No.29029 of 2010 is recalled. The original petitions and the writ petition are restored into the files for hearing afresh. The learned counsel for the party respondents submitted that till the matter is reheard, the interim order passed by this Court in the O.Ps to maintain status quo may be restored and maintained. Evidently, during the pendency of the original petitions, stay of reversion of the review petitioners was in force. In such circumstances, the status quo available as on today with respect to the party respondents shall be maintained till the disposal of the original petitions. List the captioned original petitions and the writ petition for hearing.
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