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2016 DIGILAW 281 (JK)

Ab. Samad Bhat v. State of J&K

2016-05-19

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed by the petitioners seeking their placement at Position Nos. 24 and 25 respectively in the list of officers of Industries and Commerce Department appointed by promotion to the time scale of the service of the Kashmir Administrative Service by the respondent No. 1 vide Govt. Order No. 1532-GAD, dated 23.09.1997. When the writ petition was filed, the age of the petitioners was 53 and 55 respectively. They may have retired as of now and, as such, the placement of petitioners at position Nos. 24 and 25 respectively is inconsequential after retirement. Hence, prayer has become infructuous. 2. Further, the persons who are likely to be affected if the prayer of the petitioners is allowed, such persons are not impleaded as party respondents. The same is clear from the interim order dated 01.02.2001 wherein it was mentioned that the two petitioners who originally filed writ petition have challenged the seniority list and their placement and unless seniority list is set aside disturbing the finding of the Selection Committee, the petitioners are not prima facie entitled to seek consideration for selection grade. Even on earlier occasion, when the matter was listed, non-impleadment of the persons who are likely to be affected has been raised and the learned senior counsel vide order dated 18.09.2015 sought time to produce the judgment to show that in certain circumstances when seniority is questioned, the persons who are likely to be affected, need not be impleaded as party respondents. 3. It is the settled position of law that altering seniority of the persons who are likely to be disturbed shall be impleaded as party respondents, without their impleadment no relief can be granted. In the decision reported as (2012) 7 SCC 610 (Vijay Kumar Kaul & Ors v. Union of India & Ors.) Hon'ble the Supreme Court in paragraphs 36 to 39 held thus: "36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardize their interest. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardize their interest. When they have not been impleaded as parties such p. relief is difficult to grant. 37. In this context we may refer with profit to the decision in Indu Shekhar Singh v. State of U.P. wherein it has been held thus: (SCC p.151, para 56). "56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority." 38. In Public Service Commission v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "9. .......in Udit Narain Singh Malpaharia v. Board of Revenue, where the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Sarguja Transport Service v. State. 10. In Prabodh Verma v. State of U.P. & Tridip Kumar Dingal v. State of W.B. it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties." 39. From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard. From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard. The contention of Learned senior counsel, while citing the judgment of Hon'ble the Apex Court reported in (1983) 2 SCC 235 (Col. D.D. Joshi & Ors v. Union of India & Ors.), that the persons who are likely to be affected need not be impleaded, cannot be accepted as in this case the seniority list was not sought to be altered. In view of the above findings, the writ petition is dismissed. No costs.