Narayana Pillai v. State of Kerala — 1964 DIGILAW 360 (KER)

Judgment :- 1. These writ petitions raise common questions of fact and law and they are therefore disposed of by this common judgment. 2. The petitioners in these writ petitions were appointed as Village Assistants. The appointments were made by the District Collectors after getting the list of qualified hands from the Employment Exchange. The qualifications necessary for appointment as Village Assistant at that time were that the candidate should have passed the S.S.L.C. Examination, the Village Officers' Test and the Chain Survey Test. It was because the petitioners had these qualifications they were appointed as Village Assistants. On 25th July 1961 the Government, the 1st respondent, issued an order G.O.MS. 709/Rev., dated 25th July 1961 revising the qualifications prescribed for appointment to the post of Village Assistant in the Travancore Cochin area. It is as follows: "Government issue the following rules with regard to qualifications for direct recruitment to the posts of Village Assistants in the Travancore-Cochin area. Educational: Minimum General educational qualification of the S.S.L.C. standard as specified in the schedule to the rules. (This will not however apply to the disbanded village assistants who are awaiting recruitment. For them V.S.L.C. qualification will be sufficient.) Special qualifications: Candidates selected by the Public Service Commission should be required to pass the Chain Survey Test after undergoing the three months course at their own cost before they become eligible for appointment. Selected candidates will be given admission to the Chain Survey Schools in accordance with the rank assigned by the Public Service Commission. Probation: Candidates appointed will be on probation for a period of two years on duty within a continuous period of three years. During the period of probation they will be required to pass the village officers' test conducted by the Public Service Commission. Probation: Candidates appointed will be on probation for a period of two years on duty within a continuous period of three years. During the period of probation they will be required to pass the village officers' test conducted by the Public Service Commission. Age: Candidates must not have attained the age of 25 on the 1st day of July of the year in which applications are invited by the Public Service Commission, subject to the usual concession being granted to candidates belonging to the Backward Class, Scheduled Caste and Scheduled Tribes." Thereafter a notification was issued by the Public Service Commission inviting applications for selection to the post of Village Assistants in the Travancore-Cochin area on the basis of this G.O. Supplementary notifications were issued by the Kerala Public Service Commission in the Gazettes, dated 17th October 1961, 18th May 1962 and 2nd October 1962 relaxing the conditions specified in the original notification in favour of the last grade servants of the Revenue Department, overaged candidates, and provisional Village Assistants appointed directly by the Collector or through their subordinates or through Employment Exchange. All the petitioners applied for appointment as Village Assistants in pursuance of the notification. For making the selection the Government had constituted as per G.O. MS. 631, dated 26th June 1959, District Recruitment Boards in consultation with the Public Service Commission. Government had also directed by G.O. MS. No. 720, dated 27th July 1959 that pending constitution of the District Councils, the District Recruitment Boards will consist of a member of the Public Service Commission as Chairman and the District Collector as a member. The District Recruitment Boards made the selections and drew up lists, but since the rank obtained by the petitioners in the lists were low they were not advised for appointment. 3. The main contentions of the petitioners were that the Government had no right to relax the qualifications originally fixed for appointment to the post of Village Assistants by issuing G.O. MS. 3. The main contentions of the petitioners were that the Government had no right to relax the qualifications originally fixed for appointment to the post of Village Assistants by issuing G.O. MS. 709/ Rev., dated 25th July 1961, as that could have been done only by framing special rules under Art.309 of the Constitution, that the Government cannot by an, executive order prescribe the qualifications for selection which are different from the qualifications necessary for appointment to the post of Village Assistant, that the constitution of the District Boards for making the selection was unauthorised as the only body which could have made the selection after interviewing the candidates, was the Public Service Commission, that the petitioners have become quasi-permanent in the posts, and that they cannot be ousted from service by persons with inferior qualifications. Most of the petitioners have also raised the contention that the concession in favour of the so-called backward classes in the matter of selection of the candidates for appointment, was unconstitutional as the classes in favour of which reservations were made were not really backward classes, and that there was nothing on record to show that they were not adequately represented in the Services of the State. 4. The main prayers in the writ petitions are for the issue of the appropriate writs or orders for quashing G.O. 709/ Rev., dated 25th July 1961 by which the qualifications originally fixed for the post were relaxed, and G.O. MS. 631, dated 26th June 1959 by which the District Recruitment Boards were constituted, for declaring the selections of candidates made by the District Recruitment Boards invalid, and for the issue of a writ of mandamus directing the respondents to appoint the petitioners in the available vacancies, and for an order prohibiting the appointments of Village Assistants from the list prepared by the District Recruitment Boards. 5. The State has filed counter-affidavits in which they have controverted allegations in the various petitions. It was contended by the State that the Government had the authority to relax the qualifications, that the District Recruitment Boards were legally constituted bodies with authority to make the selections, that the petitioners were appointed as Village Assistants only on a provisional basis, that they have no right to claim any quasi-permanency in the posts and that the petitioners were not legally aggrieved by the selections. 6. 6. The learned Advocate-General, appearing for the State raised a preliminary objection that the petitions are not maintainable, as persons whose interests are directly affected, have not been made parties to the petitions. It was submitted by the learned Advocate-General that the substantial prayer in these writ petitions is to quash the selections made by the District Recruitment Boards, and if that prayer is granted it would affect the interest of persons who have got higher ranks than the petitioners in the lists, and that those persons are interested in maintaining the regularity of the proceedings of the District Recruitment Boards, and therefore they are necessary parties to the petitions. In support of this submission the learned Advocate-General cited the decision of the Supreme Court in Udit Narain Singh v. Board of Revenue AIR. 1963 S.C. 786. On the other hand, it was submitted on behalf of the petitioners that it is only if the candidates selected are appointed that they need be impleaded and that the mere ranking of the names of the selected candidates in the lists would not give them any vested right as against the Government to get the appointment to the posts. 7. Reliance was placed on behalf of the petitioners on R.3 (b) of the Kerala State and Subordinate Service Rules, Part II (General Rules) to show that the mere inclusion of the names of candidates in the lists on the basis of the selection would not confer a right on the persons so included to get the appointments to the posts, and that the higher rankings of the candidates in the lists, created no vested right in them, and therefore they are not necessary parties to the petitions. 8. After anxiously considering the matter, we have come to the conclusion that the preliminary objection ought to prevail. The main prayers in these writ petitions are for quashing the selections made by the various District Recruitment Boards on the basis of the revised qualifications as announced by the Government in their G.O.MS. 709, dated 25th July 1961. That the petitioners never felt themselves aggrieved by the passing of G.O. MS. 709 of 1961 and G.O. MS. 631 of 1959, is clear from the fact that they had not chosen to challenge the validity of those orders within a reasonable time of their issue. 709, dated 25th July 1961. That the petitioners never felt themselves aggrieved by the passing of G.O. MS. 709 of 1961 and G.O. MS. 631 of 1959, is clear from the fact that they had not chosen to challenge the validity of those orders within a reasonable time of their issue. We think that the persons, who were selected by the District Recruitment Boards, and who got higher ranks than the petitioners in the lists prepared by them, have obtained a definite advantage over the petitioners and that they are interested in maintaining the ranks given to them in the lists. It is true that the higher ranks of the candidates in the lists would not give them a vested right as against the Government for being appointed to the posts. But, at the same time, it is clear from the relevant rule that the Government are normally precluded from making the appointment of any persons outside the lists or in disregard of the rankings given in them. To the extent that persons who have got higher ranks in the lists have a superior right as against those who got only lower ranks, it must be said that they are interested in maintaining the ranks given to them in the lists prepared by the District Recruitment Boards. Even assuming that the persons who are ranked above the petitioners in the lists have no right as against the Government for being appointed as Village Assistants, as against the petitioners, they have got a right of priority for being appointed to the posts. If the petitioners want to overcome or set aside that priority in these proceedings, these persons must be parties to these proceedings. It would be a violation of the principles of natural justice if persons who have been ranked above the petitioners in the lists are not given an opportunity of being heard, if the benefit of those rankings are to be upset in these proceedings. Immunity from competition from those ranked below is a valuable right. In Udit Narin Singh v. Board of Revenue AIR. Immunity from competition from those ranked below is a valuable right. In Udit Narin Singh v. Board of Revenue AIR. 1963 S.C. 786, Subba Rao, J. in dealing with the question as to who are ail necessary parties to a writ of certiorari under Art.226 of the Constitution, has extracted the following passage in his judgment from "The Law of Extraordinary Legal Remedies" by Ferris: "Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of such action remains, are not only proper, but necessary parties. It is to such parties that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought. But in order that the court may do ample and complete justice, and render a judgment which will be binding on all persons concerned, all persons who are parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties respondent." and then he said: "This passage indicates that both the authority whose order is sought to be quashed and the persons who are interested in maintaining the regularity of the proceeding of which a review is sought should be added as parties in a writ proceeding A Division Bench of this Court has taken the same view in Writ Appeal No. 89 of 1962 and dismissed the petition for defect of parties. This being the law on the subject we have no hesitation in holding that the persons who were included in the lists and who were ranked above the petitioners, are necessary parties to these writ petitions, as they are interested in maintaining the regularity of the proceedings of the District Recruitment Boards in making the selections on the basis of the G.Os. impugned in these petitions. In their absence it would not be possible for the Court to adjudicate the various questions raised in these writ petitions. impugned in these petitions. In their absence it would not be possible for the Court to adjudicate the various questions raised in these writ petitions. It may be noted that one of the contentions of most of the petitioners is that the District Recruitment Boards, in making the selections gave reservations for certain backward classes, but that those classes are in reality not backward classes within the meaning of clause (4) of Art.16 of the Constitution. Persons who got selections on this basis and who are ranked higher than the petitioners in the lists are vitally interested in the decision, one way or other, of the question, as their selections and rankings would depend upon it. They are therefore necessary parties in those writ petitions where the question of reservation in favour of backward classes is in issue. 9. It was argued for the petitioners that even if the selections and rankings could not be upset in the absence of the necessary parties, it is open to this Court to quash G.O. MS. 709 of 1961 and G.O. MS. 631 of 1959 as the Government which passed these orders is a party to the proceedings. We think that if we adopt this course we would be allowing the petitioners to achieve indirectly what they could not achieve directly. There would be an automatic cancellation of the lists if the two G.Os. are quashed and that, without the persons affected by the cancellation being given an opportunity of being heard. Secondly the petitions themselves would be belated, if the only prayer in them were to quash the two G.Os., as the G.Os. were passed in 1961 and 1959. In these circumstances, we have come to the conclusion that it is not proper to deal with the merits of the contentions raised in these writ petitions. We do not, therefore, make any evaluation of the merits of the contentions urged by the petitioner's counsel. Even if the contentions of the petitioners are tenable, we feel that we would not be justified in passing upon them in the absence of persons vitally interested in opposing them, and in maintaining the legality and the regularity of the proceedings of the District Recruitment Boards, in drawing up the lists and in assigning the ranks in them. We however, give liberty to the petitioners to file fresh petitions with all the necessary parties. We however, give liberty to the petitioners to file fresh petitions with all the necessary parties. In view of the long lapse of time it would not be proper for us to allow the petitioners to amend the petitions by adding the necessary parties. 10. We dismiss the writ petitions, but in the circumstances, without any order as to costs. Dismissed.