What is SLP?

Under the Constitution of India, we have a three-tier court system starting from the Subordinate Courts (district courts), High Court/ Tribunals and Supreme Court. Most of the original and appellate jurisdictions are confined within the first two-tier court system. Approaching the Supreme Court in an appeal against any order of the High Court or Tribunal has three ways:

1. Where Appeal is provided under the Statute /act itself.
2. Where High Court through a separate order in a matter (certificate to appeal) certifies that there is substantial question of law of public or general importance in the matter that should be decided by the Supreme Court.
3. Leave to Appeal allowed by the Supreme Court in a Special Leave Petition.

Special Leave Petition is filed before the Supreme Court u/A 136 of the Constitution with a prayer that permission/leave to appeal before it be granted as there is a substantial question of law of public or general importance in the matter. Granting permission/ leave to appeal before the Court is an extraordinary discretionary power of the court and in my opinion, leave is granted where the court feels that:

1. substantial question of law of public or general importance are involved in the matter
2. court feels that sufficient justice has not been done to the parties
3. justice may have been done but the reasoning is not well founded
4. ends of justice demand interference from the supreme court;
5. complete justice is required to be done.
6. Etc.

Effect of filing SLP & its dismissal without grant of leave of appeal?

Let’s take one example. Three persons (A, B & C) instituted a single writ petition or let’s say three persons (A, B & C) instituted three different writ petitions before High Court with similar issues. All three writs were decided with common judgment and order by the High Court. Person A approached Supreme Court in Special Leave Petition (SLP) which is dismissed by the Supreme Court in-limine (at threshold) without reasons. Now:

1. Can person A file review before High Court?
2. Can person B file another SLP before Supreme Court?
3. Can Person C file review before High Court?
4. Can the respondent State approach in SLP before the Supreme Court or in Review before the High Court?

The above questions often arise, and, in this article, I try to answer them.

Recently, such questions arose before the Hon’ble Supreme Court in State of Uttar Pradesh v. Atul Kumar Dwivedi & Ors. (Civil Appeal No. 228 of 2022; Judgment dt. 07.01.022. In this case, the Police recruitment process was challenged by certain candidates before the High Court. The High Court allowed the writ petition against the State of U.P. Few of the selected candidates rushed the Supreme Court, but the SLP was dismissed in-limine i.e. on the threshold without assigning any reasons. A few days later State of U.P. filed the S.L.P. and the first obstacle for the court was to decide whether on dismissal of the first SLP against the same judgment/ order is the second SLP maintainable.  The Court went ahead with the second SLP and granted leave and reversed the order of the High Court by on the law laid in the cases which are discussed below:

In P. Singaravelan and others vs. District Collector, Tiruppur and DT and others [(2020)3 SCC 133], while dealing similar question it was observed by the Court that it is evident that all the above orders (passed in previous SLP) were non-speaking orders, inasmuch as they were confined to a mere refusal to grant special leave to appeal to the petitioners therein. At this juncture, it is useful to recall that it is well-settled that the dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same. If such an order of this Court is non-speaking, it does not constitute a declaration of law under Article 141 of the Constitution or attract the doctrine of merger.

The above view has been constantly adopted in a plethora of decisions of this Court, including the recent decision in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. [(2019) 4 SCC 376] said that applying these observations to the present case, it is clear that there has been no pronouncement by this Court constituting the law of the land as to the interpretation of GOMs No. 162. In such a situation, it is open for us to proceed to decide the instant appeals uninfluenced by the prior orders of this Court dismissing SLPs against the grant of relief to drivers placed similarly as the appellants herein… 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 became an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. ..

Also, in case of C.G. Govindan v. State of Gujarat and others [(1998) 7 SCC 625], where issue pertained to parity between pay scales of the PA’s of the Hon’ble Judges of the High Court of different High Court and State Secretariat etc. and various order of various High Courts were cited,  the Supreme Court observed that this Court in the case of Supreme Court Employees’ Welfare Association v. Union of India and Anr. (1989(4) SCC 187,  State of Orissa and another v. Dhirendra Sundar Das and others [(2019) 6 SCC 270],  Employees’ Welfare Association v. Union of India & Anr.12 and State of Punjab v. Davinder Pal Singh Bhullar13, has observed and reiterated that it is a well settled principle of law that when a special leave petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law as envisaged by Article 141 of the Constitution. It, therefore, follows that when a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution.

Can Writ Petition be filed after dismissal of SLP?

It may be noted that a writ petition before High Court after SLP against an order of Tribunal/Authority is a wholly different and distinct proceeding. Although questions which can be said to have been decided by Supreme Court expressly, implicitly or even constructively while dismissing the special leave petition cannot be reopened in a subsequent writ proceeding before the High Court, but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of Supreme Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by Supreme Court at least by implication. The exercise of discretionary jurisdiction of the High Court to grant leave under Article 226 is to be guided by established legal principles. It will not be a sound exercise of that discretion to refuse to consider a writ petition on its merits solely on the ground that a special leave petition filed by the petitioner in the Supreme Court had been dismissed by a non-speaking order.”