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2020 DIGILAW 749 (JHR)

Tripti Rani Mondal, wife of Sri. Bipad Baran Mondal v. State of Jharkhand, through the Secretary, Social Welfare, Female and Child Development Department

2020-07-21

SANJAY KUMAR DWIVEDI

body2020
ORDER : Heard, Ms. Neha Bhardwaj, the learned counsel for the petitioners and Ms. Shivani Kapoor, learned AC to Mr. Prabhat Kumar Sinha, the learned SC-II for the respondent-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioners have filed this writ petition for a direction to issue appointment letters to the petitioners on the post of Lady Supervisor in Santhal Pargana Division, Dumka. 4. Ms. Neha Bhardwaj, the learned counsel appearing for the petitioners submits that the petitioners belong to backward caste category and they have applied for the post of Lady Supervisor in terms of the Advertisement for the said post. She submits that although the petitioners having secured the marks for appointment but the petitioners have not been appointed on the post. She further submits that the OBC candidates have not been considered in that appointment and in that view of the matter the direction may kindly be issued to appoint the petitioners on the post of Lady Supervisor. 5. Ms. Shivani Kapoor, the learned State counsel submits that six candidates have obtained 142 marks in the test examination. She further submits that Angangabi Sevika of highest age Champa Devi has been appointed on the post of Lady Supervisor out of the aforesaid six candidates who has obtained 142 marks against the available vacant post of Lady Supervisor. She further submits that the petitioner no.3 obtained only 140 marks. She submits that there were 42 posts of Lady Supervisor was available for the appointment out of Anganbari Sevika out of whom 21 posts was available for the unreserved category 19 posts were reserved for S.T. Category and 2 posts were reserved for S.C category. She further submits that the following category were appointed; General category-4, S.T.-3, B.C.+O.B.C.-14 that out of 21 unreserved posts, 14 candidates of B.C.+O.B.C have been appointed. She further submits that as the petitioners have got lessor marks and the OBC have already been appointed, no cause of interference is made out. 6. She further submits that the following category were appointed; General category-4, S.T.-3, B.C.+O.B.C.-14 that out of 21 unreserved posts, 14 candidates of B.C.+O.B.C have been appointed. She further submits that as the petitioners have got lessor marks and the OBC have already been appointed, no cause of interference is made out. 6. The Court has perused the documents as well as the statement made in the counter affidavit wherein specific statement has been made that the petitioners have received the lessor marks whereas the person who was having the higher age was given priority who got 142 marks in 6 candidates for the same marks. The bifurcation of the seats is also stated in the counter affidavit. This case is of the year 2010. The persons who have been appointed are not made party in the writ petition. A reference in this regard may be made in case of “Vishal Ashok Thorat & Ors. v. Rajesh Shrirambapu Fate & Ors.” in Civil Appeal No.5444 of 2019 [arising out of SLP (Civil) No.31957 of 2018] reported in 2019 SCC Online SC 886. Paragraph no.33 of the said judgment is quoted here-in-below : “33. One more submission raised by the learned counsel for the appellant in civil appeal filed by Vishal Ahok Thorat needs to be noticed. The submission of the appellant is that respondent No.1 in his Writ Petition No.1270 of 2018 did not implead any of the selected candidates out of the list of 832. No selected candidate having been impleaded by respondent no.1, the High Court erred in issuing direction to modify and review the select list. The direction of the High Court in paragraph 51 is clearly against the interest of the appellants, who as per direction shall go out of the select list, the select list having been published on 31.03.2018 i.e., much before the date when respondent no.1 filed application for amendment in the writ petition for challenging the advertisement nos.2 of 2017 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already published by the MPSC. Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates. The appellants rightly placed reliance on the Constitution Bench judgment of this Court in “Udit Narain Singh, Malpaharia v. Additional Member Board of Revenue, Bihar”, AIR 1963 SC 786 . Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates. The appellants rightly placed reliance on the Constitution Bench judgment of this Court in “Udit Narain Singh, Malpaharia v. Additional Member Board of Revenue, Bihar”, AIR 1963 SC 786 . The Constitution Bench in paragraphs 6,7, and 9 laid down following: “6. The question is whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose favour a tribunal or authority had made an order, which is sought to be quashed, is or are necessary party or parties. While learned Additional Solicitor General contends that in such a writ the said tribunal or authority is the only necessary party and the parties in whose favour the said tribunal or authority made an order or created rights are not necessary parties but may at best be only proper parties and that it is open to this Court, even at this very late stage, to direct the impleading of the said parties for a final adjudication of the controversy, learned counsel for the respondents contends that whether or not the authority concerned is necessary party, the said parties would certainly be necessary parties, for otherwise the High Court would be deciding a case behind the back of the parties that would be affected by its decision. 7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” 9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari, the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.” 7. As a cumulative effect of the facts and circumstances of the present case, no case for interference is made out. 8. Accordingly, the writ petition [W.P.(S) No.4638 of 2010] is dismissed. 9. I.A. If any also stands disposed of.