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Madhya Pradesh High Court · body

2013 DIGILAW 1253 (MP)

Usha Kushwaha v. State of M. P.

2013-10-17

S.K.Gangele, Sheel Nagu

body2013
ORDER 1. This writ appeal has been filed by the appellant against the order dated 7.8.2013 passed in Writ Petition No.1641/2011. 2. M.P. Public Service Commission issued an advertisement in regard to selection for the post of Professor in Sociology and for other posts. A corrigendum was also issued on 22.1.2009 by the PSC in regard to change in minimum qualification. Appellant applied for the post of Professor in Sociology. She also participated in the interview. When she was not selected, she filed a writ petition before the writ Court and questioned the criteria adopted by the selection committee in the interview. The appellant also challenged the subsequent corrigendum in regard to minimum qualification. The appellant was permitted to participate in the interview, hence, the aforesaid point raised by her in regard to eligibility criteria does not subsist. 3. The appellant challenged awarding of marks and the procedure adopted by the selection committee. She was placed at Sr.No.46 in the list because she received 35 marks. Photo copy of the select list and the record of the selection committee has been produced by the learned senior advocate appearing on behalf of MPPSC The last candidate who was appointed received 44 marks. 4. The learned senior advocate appearing on behalf of the appellant contended that the selection committee did not award proper marks to the appellant and the selection procedure was contrary to the regulations framed by the University Grant Committed named “UGS Regulations on minimum qualifications for appointment of Teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in Higher Education, 2010”. Learned senior advocate submits that Regulation 6.0.0 of the aforesaid Regulations prescribes selection procedure and it was obligatory on the part of selection committee to follow the aforesaid selection procedure. 5. We have perused the writ petition. From perusal of the writ petition, it is clear that the appellant did not join selected candidates as party in the writ petition; only State of Madhya Pradesh and Madhya Pradesh Public Service Commission have been arrayed as respondents before the writ Court and this Court. In pursuance to the advertisement issued by the Public Service Commission, near about 14 persons have been appointed to the post of Professor. Learned Senior Advocate appearing on behalf of respondent No.2 PSC has submitted that the persons who were selected have also joined the services. 6. In pursuance to the advertisement issued by the Public Service Commission, near about 14 persons have been appointed to the post of Professor. Learned Senior Advocate appearing on behalf of respondent No.2 PSC has submitted that the persons who were selected have also joined the services. 6. Hon’ble the Supreme Court in Arun Tewari v. Zila Mansavi Shikshak Sangh [AIR 1998 SC 331], has held in regard to non-joinder of party in a writ petition under Article 226 of the Constitution of India, who would be vitally affected by the judgment of the Court, as under : “12. All the original applicants before the Tribunal who have challenged these provisions for recruitment of Assistant Teachers under the Operation Black Board Scheme did not possess the requisite qualifications for being selected under the said scheme as Assistant Teachers. Their names do not figure among the lists forwarded by the concerned District Employment Exchanges. Surprisingly, the applications fileld by all these persons and/or groups before the Tribunal did not make the selected/appointed candidates who were directly affected by the outcome of their applications, as party respondents. The Tribunal has passed the impugned order without making them parties or issuing notice to any of them. The entire exercise is seriously distorted because of this omission. They have now filed the present appeals after they have been granted leave to file the appeals. In the case of Prabodh Verma v. State of Uttar Pradesh [ (1984)4 SCC 251 at p.273= AIR 1985 SC 167 at p.180], this Court observed that in the case before them there was a serious defect on non-joinder of necessary parties and the only respondents of the Sangh’s petition were the State of Uttar Pradesh and its concerned officers. The employees who were directly concerned were not made parties not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. This Court observed that High Court ought not have decided a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents in a representative capacity. These observations apply with equal force here. This Court observed that High Court ought not have decided a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents in a representative capacity. These observations apply with equal force here. The same view has been reiterated by this Court in Ishwar Singh v. Kuldip Singh [1995 Supp.(1) SCC 179], where the Court said that a writ petition challenging selection and appointments without impleading the selected candidates was not maintainable. {Vide also J. Jose Dhanapaul v. S. Thomas [ (1996)3 SCC 587 , paragraph 4]}. On this ground alone the decision of the Tribunal is vitiated. However, even on merit we do not find that the judgment of the Tribunal can be sustained.” 7. The aforesaid principle has been reiterated by Hon’ble the Supreme Court in another judgment in Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee [ (2006)8 SCC 487 ], and the Hon’ble Supreme Court has held as under : “31. In our view no relief could have been granted to the writ petitioners on account of the fact that the newly elected office-bearers of the Executive Board, who would have been affected by the decision of the writ petitions, were not impleaded as party to the writ petitions. In Udit Narain Singh Malpaharia v. Additional Members, Board of Revenue, it was observed that where in a petition for a writ of certiorari made to the High Court, only the Tribunal whose order was sought to be quashed was made a party but the persons who were parties before the lower Tribunal and in whose favour the impugned order was passed were not joined as parties; the writ petition was incompetent and had been rightly rejected by the High Court. In Prabodh Verma v. State of U.P. (supra). It was held (SCC p.256) : “A High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.” 32. In Ishwar Singh v. Kuldip Singh [1995 Supp.(1) SCC 179], it was held that a writ petition challenging selection and appointment to some posts without impleading the selected candidate was not maintainable. This view has been reiterated in Arun Tewari v. Zila Mansavi Shikshak Sangh [AIR 1998 SC 331]. 33. This being the settled legal position, the non-impleadment of the newly elected office-bearers of the Executive Board was fatal and no relief could have been granted to the writ petitioners. The result of granting any relief in the writ petitions, as was done by the learned Single Judge, was that the members of the newly elected Executive Board lost the office which they were holding without affording them an opportunity to present their case which is clearly impermissible in law. The writ petitions were liable to be dismissed on this count as well.” 8. From the aforesaid quoted judgments of the Hon’ble Supreme Court, the principle of law is that if any person is being affected by the order of the Court, that person or persons have to be impleaded as a party and if there are number of persons, then some of them in a representative capacity be impleaded as party. 9. In the present case, if the proceedings of the selection committee are set aside, then certainly the persons who have been selected pursuant to the proceedings of the selection committee would be adversely affected. Hence, the aforesaid persons or some of them are necessary party and they are required to be heard before passing any order by the Court. The appellant has not impleaded any person as party in the writ petition, hence, on account of non-joinder of necessary party, no relief could be granted in favour of the appellant. 10. Learned senior advocate appearing on behalf of the appellant has relied upon a judgment of the Supreme Court in Minor A. Peeriakaruppan v. State of Tamil Nadu [ AIR 1971 SC 2303 ], and contended that it is not necessary to add the persons who have been selected as respondents. In view of the judgments of the Hon’ble Supreme Court quoted above considered by us, in our opinion, the argument advanced by the learned Senior Advocate could not be accepted. 11. In this view of the matter, in our opinion, it is not necessary to consider the merits of the case. In view of the judgments of the Hon’ble Supreme Court quoted above considered by us, in our opinion, the argument advanced by the learned Senior Advocate could not be accepted. 11. In this view of the matter, in our opinion, it is not necessary to consider the merits of the case. Hence, the appeal is disposed of with the following observations : (i) That the appeal filed by the appellant is hereby dismissed. (ii) The appellant is at liberty to file appropriate writ petition after adding affected persons as party. The appeal is disposed of accordingly. No order as to costs. .............