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2018 DIGILAW 832 (GAU)

HANPOT JUGLI v. NABAM PARIO

2018-05-18

KALYAN RAI SURANA

body2018
ORDER : KALYAN RAI SURANA, J. 1. Heard Mr. N. Ratan, the learned Counsel for the applicant. Also heard Mr. P.K. Tiwari, the learned Senior Counsel, assisted by Mr. K. Saxena, the learned counsel for the Opp. Parties No.1 to 136. Mr. K. Ete, the learned Senior Addl. Advocate General for the State, assisted by Ms. R. Basar, Senior Govt. Advocate, appearing for the \opp. \parties No. 137 to 139 has also made his submissions. 2. By this application, the 98 applicants herein have prayed for impleading them as party respondents in the connected W.P.(C) No. 9 (AP)/2018. The application is being opposed by the Opp. Parties No.1 to 136 herein, who are the writ petitioners in the said connected writ petition. 3. The applicants claim that they are Trained Graduate Teachers ('TGT' for short) and Primary Teachers ('PRT' for short), and that they were appointed on contractual basis under Sarva Siksha Abhiyan ('SSA' for short) in the State of Arunachal Pradesh. It is claimed that the applicants are having the requisite qualification and that they are seniors to the Opp. Parties No. 1 to 136 herein and, as such, the applicants are having more eligibility than the Opp. Parties No.1 to 136 herein to be regularized in service under scheme initiated by the State. It is projected that the service of the Opp. Parties No.1 to 136 were illegally regularized by order dated 07.12.2017, as such, upon representation dated 20.12.2017, filed by the applicants before the Chief Minister of the State, the regularization of service of the Opp. Parties were withdrawn by order dated 21.12.2017. The said order dated 21.12.2017 has been challenged by the Opp. Parties No. 1 to 136 in the connected writ petition. Hence, the applicants, having common interest, seek their impleading in the said connected writ petition. 4. The learned Counsel for the applicants submit that under the scheme initiated by the State to regularize services of TGTs and PGTs, appointed under SSA, 122 posts were created by the State and that all appointments was supposed to be made on the basis of district-wise seniority. However, the State authorities had illegally regularized the services of the said 122 illegal appointees, as such, the applicants had submitted their representation dated 20.12.2017 before the Chief Minister of the State and accordingly, the regularization of 122 appointees were withdrawn by order dated 21.12.2017. 5. However, the State authorities had illegally regularized the services of the said 122 illegal appointees, as such, the applicants had submitted their representation dated 20.12.2017 before the Chief Minister of the State and accordingly, the regularization of 122 appointees were withdrawn by order dated 21.12.2017. 5. It is submitted that the illegality in the regularization is writ large on the face of the writ petition, where 136 writ petitioners had originally joined as writ petitioners and they had annexing their respective appointment letters and they had all claimed that their services had been regularized, notwithstanding that in so far as the State Govt. is concerned, they had regularized services of only 63 TGTs and 59 PRTs, i.e. 122 appointees. It is submitted that when the said discrepancy was exposed before this Court, on application made by some writ petitioners, the names of writ petitioners No. 63, 66, 70, 72, 73, 74, 77, 92, 93, 94, 98, 106, 107, 109, 113, 114, 133 were deleted, as such, now only 119 writ petitioners remain as petitioners in the connected writ petition. Nonetheless, the documents of appointment of all 136 original writ petitioners are on record in respect of 122 appointments made on paper. 6. It is submitted that the applicants had ventilated their grievance against the illegal regularization of the surviving Opp. Parties (119 writ petitioners left), and that their grievances had been duly redressed by withdrawing of the regularization orders of all the 122 illegal appointees. Hence, the applicants had no more reason to agitate their cause any further as they were expecting that the said posts would be duly filled-up in accordance with law. However, as the applicants have now come to know that the Opp. Parties had filed the connected writ petition. It is submitted that as the applicants have a better claim, the applicants seek their impleading as respondents with an intention to only apprise this Court about their better candidature for regularization before the case of the surviving Opp. Parties out of Respondents No. 1 to 136 can be considered by this Court in the connected writ petition. Hence, it is submitted that this is a fit and proper case wherein this Court would allow the applicants to be impleaded in the connected writ petition. 7. Parties out of Respondents No. 1 to 136 can be considered by this Court in the connected writ petition. Hence, it is submitted that this is a fit and proper case wherein this Court would allow the applicants to be impleaded in the connected writ petition. 7. The learned Counsel for the applicants submit that if the order dated 22.12.2017, impugned in the connected writ petition is interfered with, then the applicants would be the most affected party, as they would be deprived of their legitimate right as well as legitimate expectation to be considered for regularization because of their respective district-seniority over the Opp. Parties No. 1 to 136. In this connection, the learned Counsel for the applicants has referred to the seniority position of the applicants vis-a-vis the Opp. Parties No. 1 to 136 herein. 8. In support of his contentions, the learned counsel for the applicants has placed reliance on the case of Poonam v. State of U.P., (2016) 2 SCC 779 . 9. Per contra, the learned Senior Counsel for the Opp. Parties submit that upon deletion of names of some writ petitioners, he is now instructed to submit in respect of 119 remaining writ petitioners in the connected writ petition, who are hereinafter referred to as "surviving Opp. Parties" for their easy identification. The learned Senior Counsel for the surviving Opp. Parties disputes that there is any common seniority list as sought to be projected by the learned Counsel for the applicants, but he submits that the district-wise seniority list on the basis of which the services of the 119 surviving Opp. Parties were regularized has been annexed as Annexure-5 to the connected writ petition, and it is further submitted that no one has challenged the said district-wise seniority list. It is submitted that the Govt. had regularized individual teachers by issuing separate orders and all the regularized appointees had joined their respective posts by separate joining reports and that the authorities had passed separate individual orders for withdrawing the order of regularization. 10. It is further submitted that as per information received by the surviving Opp. Parties, only the person arrayed as respondent No.18 in the connected writ petition had submitted a representation against the regularization of services of the surviving Opp. Parties, as such, the said party has been duly impleaded in the writ petition. 11. 10. It is further submitted that as per information received by the surviving Opp. Parties, only the person arrayed as respondent No.18 in the connected writ petition had submitted a representation against the regularization of services of the surviving Opp. Parties, as such, the said party has been duly impleaded in the writ petition. 11. It is also submitted that neither the seniority list annexed to the writ petition has been challenged by anyone and nor the regularization orders of the Opp. Parties had ever been challenged before any Court. Moreover, it is submitted that the alleged seniority list produced by the applicants was not the basis on which the services of the surviving Opp. Parties had been regularized. Hence, it is submitted that in the writ petition filed by the surviving Opp. Parties, there is no way that any relief can be granted to the applicants, as the concept of a counterclaim is foreign in a writ proceeding under Article 226 of the Constitution of India. It is submitted that if the applicants are canvassing their case by claiming regularization of service, then the applicants must file and sustain their separate writ petition, but the applicants cannot be permitted to be impleaded in the connected writ petition and change the boundaries and contours of the writ petition. Hence, it is submitted that as per the nature of challenge made in the writ petition, the applicants herein are neither proper nor a necessary parties in the connected writ petition and the surviving Opp. Parties cannot be compelled to implead unnecessary parties in the writ petition against whom they are not claiming any relief. It is submitted that the connected writ petition can be effectively adjudicated and decided even in the absence of the applicants as the surviving Opp. Parties are only assailing the respective orders by which their respective regularizations were withdrawn. 12. In support of this contention, the learned Senior Counsel for the surviving Opp. Parties has placed reliance on the case of (i) Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre And Hotels Pvt. Ltd. & Ors., (2010) 7 SCC 417 , and (ii) Bhagwati v. Custodian General & Anr., AIR 1976 J&K 29 : (1975) Supreme(J&K) 27. 13. The learned Senior Addl. Parties has placed reliance on the case of (i) Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre And Hotels Pvt. Ltd. & Ors., (2010) 7 SCC 417 , and (ii) Bhagwati v. Custodian General & Anr., AIR 1976 J&K 29 : (1975) Supreme(J&K) 27. 13. The learned Senior Addl. Advocate General for the State has submitted that his submissions is only to clarify that the allegation of illegal gratification against a section of govt. officials is the subject matter of vigilance enquiry and that the orders withdrawing regularization was passed as the due process of regularization was not followed, as such, the authorities are looking in the matter. 14. At the outset in order to understand the ratio laid down in the case of Poonam (supra), the facts are revisited. In the said case, the 5th Respondent therein was running a fair price shop at shop No.2 in Gram Sabha Ardauna, allotted to him on 11.05.2001. In enquiry about non-distribution/improper distribution of fair price commodities, enquiry was made by the Deputy Commissioner concerned. As per order dated 03.06.2007, it was recorded that the shop of the 5th Respondent was attached to another shop being run by one Bhupendra Singh, to whom charge was handed over on 19.07.2008. Thereafter, the competent authority had cancelled the allotment of Respondent No.5. While the 5th respondent had preferred an appeal, the appellant i.e. Poonam had got herself impleaded in the said appeal on the ground that the shop No. 2 was allotted to her. In the meanwhile, the appeal was allowed and the appellate authority had restored the status of the 5th respondent. The order was challenged by the appellant i.e. Poonam by filing CMWP No. 16390 of 2012 before the High Court. The High Court dismissed the writ petition on the ground that she had no right to maintain a challenge on being the subsequent allottee. After discussing the law relating to impleading of necessary parties, the Hon'ble Supreme Court had dismissed the appeal. In the process, it was held in paragraph 53 as follows:- "53] We have referred to the said decision in Ramesh Hirachand case [ (1992) 2 SCC 524 ] in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. In the process, it was held in paragraph 53 as follows:- "53] We have referred to the said decision in Ramesh Hirachand case [ (1992) 2 SCC 524 ] in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party." 15. It would be now relevant to quote paragraph 52 of the case of Poonam (supra):- "52] This Court referred to the authority in Razia Begum v. Anwar Begum and came to hold that there is a clear distinction between suits relating to property and those suits in which the subject-matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held: 14. ... The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally, that is, by curtailing his legal rights." 16. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally, that is, by curtailing his legal rights." 16. Thus, under the facts of the present case in hand, the case of Poonam (supra) does not appear to help the applicant in any way, because in the instant case, the applicants have approached this Court when their regularization of service was withdrawn and, as such, this Court is of the opinion that as the concluded right of the applicant has not yet been declared, it would mean as if in the connected writ petition, the applicants would be seeking enforcement of their purported right. In the opinion of this Court, in light of the judgment rendered by the Hon'ble Supreme Court in the case of Poonam (supra), the real test to decide if the applicants are required to be impleaded as respondents in the connected W.P.(C) No. 9(AP)/2018 is whether the applicants would be bound to the result of the said writ petition. 17. In the said context, it is seen that assuming that it was by virtue of the joint representation dated 20.12.2017, which is referred to by the applicant, the order dated 21.12.2017 was passed for withdrawing the regularization of service of the surviving Opp. Parties, the said representation is signed by only 15 persons. On a perusal of the said representation, it is seen that the first complainant was one Baro Pertin, the second complainant was one Tamo Jamoh, and one Bompi Basar was the eleventh complainant therein, but none of them have joined as the applicants in this application. Hence, it is evident that not all the complainants have approached this Court and reversely, all the applicants are also not the complainants in letter dated 20.12.2017. From the various orders dated 21.12.2017, withdrawing the regularization of the surviving Opp. Parties, it is not discernible whether such orders were passed on the basis of the complaint made by 15 complainants. Moreover, in the opinion of this Court, it is too well settled that the applicants, even after getting themselves impleaded in the connected writ petition, cannot seek any relief in the writ petition filed by the surviving Opp. Parties. Parties, it is not discernible whether such orders were passed on the basis of the complaint made by 15 complainants. Moreover, in the opinion of this Court, it is too well settled that the applicants, even after getting themselves impleaded in the connected writ petition, cannot seek any relief in the writ petition filed by the surviving Opp. Parties. Therefore, assuming that the result of the said writ petition will not be favourable to the applicants, being not a party to the writ petition, in the opinion of this Court, the applicants would not be bound by the said order and they would have a right to make a claim for the regularization of their respective services on their own respective merit. Furthermore, if in course of regularization, the applicants are superseded by any of the surviving Opp. Parties, there would also be no impediment for the applicants to challenge such appointment. 18. Therefore, if the applicants have any ground to agitate their cause, at best their case would be that despite their seniority, their claim was not considered, which would be violative of Article 16 of the Constitution of India. In the present case, it is seen that the surviving Opp. Parties have not staked their claim on the basis of district - wise seniority, but they are challenging the legality of various orders dated 21.12.2017, by which the order of their regularization was withdrawn. This Court does not find that the applicants have any right to stake their own claim in the writ petition filed by the surviving Opp. Parties. 19. Thus, while, the applicants may pray to address this Court as interveners to address this Court on the issue of law that may arise in this case, but this is not found to be a fit case where the applicants can be allowed to be impleaded as respondents and thereby change the nature, character and contours of the writ petition, where the Opp. Parties are only challenging the legality of various orders dated 21.12.2017, by which the order of the regularization of their services were withdrawn. Alternatively, the applicants have every right to agitate their grievance by filing another writ petition, if so advised, and a prayer can be made therein for analogous hearing with the present writ petition. 20. Parties are only challenging the legality of various orders dated 21.12.2017, by which the order of the regularization of their services were withdrawn. Alternatively, the applicants have every right to agitate their grievance by filing another writ petition, if so advised, and a prayer can be made therein for analogous hearing with the present writ petition. 20. There is yet another way to view the application of the applicants, which is whether the rights of the applicants have been declared to be district-wise senior to the surviving Opp. Parties. The answer to the question would be an emphatic no because, while the applicants are claiming seniority on the basis of a seniority list. The learned Senior Counsel for the surviving Opp. Parties deny that their regularization was not done on the basis of the seniority list allegedly produced by the applicants in this application, as such, in the opinion of this Court, unless the right of the applicant was well established, the applicants cannot be permitted to change the boundaries and contours of the writ petition filed by the surviving Opp. Parties and to decide the respective rights of the parties. Moreover, no materials has been placed before this Court to show that the concept of a counter-claim within the meaning of Order 8, Rule 6A of Civil Procedure Code can be invoked also in a writ proceeding. Therefore, when the writ court cannot decide the respective rights of the applicants herein if they are permitted to be impleaded as respondents, under such circumstances, the impleading of the applicants in the writ petition cannot be permitted. 21. As a result, this application fails. While this Court disallows the impleading of the applicants as respondents in W.P.(C) 9(AP)/2018, it would be open to them to pray before this Court to allow the applicants assist this Court merely as interveners, if so advised. It will be needless to mention, that it would be open to the applicants to file a separate writ petition to agitate their cause separately, if so advised. 22. This IA stands dismissed. The parties are left to bear their own cost.