Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 908 (PAT)

Umesh Sharma v. Sadanand Jha

2014-08-22

I.A.ANSARI, SAMARENDRA PRATAP SINGH

body2014
ORDER SAMARENDRA PRATAP SINGH, J. The appellant in this appeal is respondent No.6 in C.W.J.C. No.5827 of 2010. In the year 2008, an advertisement was issued by the respondent University for appointment to different teaching posts including one post of Professor in the Department of Vyakaran. Both, the appellant as well as writ petitioner, along with others, applied for the post of Professor in the Department of Vyakaran. Between 20.02.2009 and 01.03.2009, interviews were held for appointment to the said post of Professor, wherein the writ petitioner and others participated. The appellant was selected and appointed as Professor in the Department of Vyakaran. Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans” were placed second and third, in the merit list, respectively; whereas the writ petitioner was at the fourth position. Being aggrieved, the writ petitioner filed writ application, bearing C.W.J.C. No. 5827 of 2010, seeking following reliefs: “This is an application for issuance of writ in the nature of writ of Certiorari for quashing the appointment of Dr. Umesh Sharma, who was appointed vide letter no.1356 dated 02.03.2009 to the post of Professor, in Vyakaran pursuant to Advertisement no.01/2008. This is further for issuance of writ in the nature of writ of mandamus of any other appropriate order or direction appointing the petitioner to the post of Professor in Vyakaran as he was the only candidate, among those who were called for interview, who holds the requisite qualification as on the date of appointment”. 2. In the writ application, though the appellant was arrayed as respondent No. 6, Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans”, who were second and third respectively, in the merit list, and were, thus, just above the writ petitioner, had not been made parties. 3. The writ petitioner challenged the appointment of the appellant on a number of grounds. According to him, the appellant did not possess the requisite qualifications and his appointment was contrary to the terms of the advertisement. The writ petitioner also contended that the constitution of Selection Committee was wrong and that the Vice Chancellor had nominated expert members of his choice, who had influenced the selection process and that the award of marks by the Selection Committee was also not proper. 4. During the pendency of the writ application, the writ petitioner filed three Interlocutory Applications, bearing I. A. Nos. 4. During the pendency of the writ application, the writ petitioner filed three Interlocutory Applications, bearing I. A. Nos. 687 of 2013, 1905 of 2013 and 1906 of 2013. 5. What may, now, be noted is that I. A. No. 687 of 2013 was with respect to addition of relief in the prayer portion. In I.A. No.1905 of 2013, the petitioner sought for interim stay of notification, dated 24.09.2013, as well as an order cancelling results of Acharya examination. The relief sought for, in I.A. No.687 of 2013 and I.A. No.1905 of 2013, are not much in issue in this appeal. 6. In I.A. No.1906 of 2013, with which we are concerned, the writ petitioner sought for impleadment of following persons/bodies as party respondents, in order of seriatim, in addition to the persons, who already stood impleaded as respondents: (i) The Government of Bihar, through the Principal Secretary (Higher Education), Old Secretariat, Patna (ii) Dr. Bodh Kumar Jha, at present Associate Professor (Vyakaran Department) K.J. Sommaya Sanskrit Vidyapith, Rastriya Sanskrit Sansthan, Second Floor, SIMSR Building, Vidyavihar, Mumbai-400077. (iii) Dr. Ramkrishna Pandey “Parmahans” at present Principal, KBK Adarsh Mahavidyalaya village- Kaliachak, P.O. Heria, District Purba Medinipur-7214730 (iv) Dr. Ram Chandra Jha, at present Professor, Department of Jyotish, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga (v) The Rastriya Sanskrit Sansthan, New Delhi (a deemed University) through its Registrar, Okhla Institutional Area, New Delhi (vi) The Chairman, Managing Committee, J.N.B. Adarsh Sanskrit Mahavidyalaya, Lagma (Darbhanga) 7. As already indicated in the preceding paragraphs, Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans” were second and third in the merit position for selection to the post of Professor of Vyakaran, immediately below the appellant, who stood first in the select list and were, thus, placed just above the writ petitioner, who was fourth in the seriatim. The stand of the appellant, in the writ petition, was that in view of nature of reliefs sought for in the writ petition, non-impleadment of Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans”, who were above him (writ petitioner) in the merit list, the writ petition cannot be effectively adjudicated upon and should, therefore, be rejected as non-maintainable. 8. The stand of the appellant, in the writ petition, was that in view of nature of reliefs sought for in the writ petition, non-impleadment of Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans”, who were above him (writ petitioner) in the merit list, the writ petition cannot be effectively adjudicated upon and should, therefore, be rejected as non-maintainable. 8. The case of the appellant was that even if the writ petitioner succeeds with respect to first prayer, wherein he sought for quashing of the appellant’s appointment, his prayer for appointment as Professor cannot be considered as he was not the second and/or third person in the merit list and, hence, Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans” are necessary parties for effective adjudication of the writ petition. It was appellant’s further case that the writ petitioner, having been placed at the fourth position in the select list, could not have been described as a person aggrieved inasmuch as he could not have succeeded in receiving the promotion. 9. The case of the writ petitioner was that it cannot be outright ruled that he was not a person aggrieved in contra-distinction to strangers, who are not remotely attached to the outcome of the matter. In support of his submissions, the writ petitioner relied upon decision reported in (2013) 1 PLJR 84 SC (A. N. Pathan v. State of Maharashtra). 10. Agreeing with the submission of writ petitioner, a learned single Judge of this Court, vide order dated 03.02.2014, allowed withdrawal of the three Interlocutory Applications and rejected the preliminary objection of the appellant against withdrawal of I.A. No. 1906 of 2013. The order, dated 03.02.2014, of the learned single Judge allowing withdrawal of I.A. No.1906 of 2013, in particular, is under challenge in this appeal. 11. On consideration of facts of the case and prayers made in writ application, we are of the view that even if the prayer of the writ petitioner is allowed and appointment of the appellant is quashed, no effective relief can be granted to the writ petitioner as he was not the next person in the merit list. Further-more, even if the writ petitioner would not come within the meaning of „stranger’, the writ application would still not be maintainable as no effective relief can be granted to the writ petitioner. Further-more, even if the writ petitioner would not come within the meaning of „stranger’, the writ application would still not be maintainable as no effective relief can be granted to the writ petitioner. It is true that if a person has some semblance of right to property or if wrongly treated, affecting his right, he would have locus standi to challenge the action, which he is aggrieved by. 12. It is well settled principle of law that right to maintain a writ application, under Article 226 of the Constitution of India, postulates rights, which must be subsisting till the final hearing of the writ application. Further-more, no legal right of a person can be said to subsist if the consequential relief asked by him cannot be granted for non-joinder of a necessary party. 13. In view of nature of reliefs sought for in a writ application, the writ petitioner, (in the absence of impleadment of respondent nos. 2 and 3), cannot claim any right of appointment as Dr. Bodh Kumar Jha and Dr. Ramkrishna Pandey “Parmahans”, being second and third respectively in the merit list and having been placed above writ petitioner, would have first claim to the post even if appointment of the appellant is quashed. The plea of the writ petitioner that he was the only suitable candidate to be selected cannot be accepted on the basis of his mere pleadings and he has to establish that respondent nos.2 and 3 were not fit for appointment, but this aspect cannot be adjudicated upon behind their back and without making them parties. As such, the impugned order, passed by learned Single Judge rejecting the preliminary objection to the withdrawal of I.A. No.1906 of 2013, would render the writ application non-maintainable and needs to be set aside. 14. In view of the forgoing discussions and reasons stated above, we find that the learned Single Judge erred in rejecting the preliminary objection of the appellant with respect to maintainability of writ application in absence of persons, who were above the writ petitioner in the merit list. 15. The impugned order is, therefore, set aside and this appeal is, accordingly, allowed. 15. The impugned order is, therefore, set aside and this appeal is, accordingly, allowed. The writ petition is remitted to the learned single Judge for consideration, on merit, after impleading necessary party inasmuch as a Court has the power to implead, on its own motion, a person, who is a necessary party to the adjudication of a lis.