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2021 DIGILAW 173 (MP)

Ravindra Ucharia v. State of M. P.

2021-02-18

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. Heard finally. This petition under Article 226 of the Constitution of India has been filed against the order dated 28-9-2004 by which promotions were made to the post of Naib Tahsildar in an intra Departmental Examination. 2. It is the case of the petitioner, that he belongs to Scheduled Caste Category and is also a handicapped person, but the departmental quota of 6% of reservation to the reserved/handicapped category persons has not been followed and less meritorious persons have been appointed on the post of Naib Tahsildar. 3. Before considering the facts of the case, it would be appropriate for this Court, to consider the effect of non-impleadment of any private candidate as respondent. 4. In the present petition, only State of Madhya Pradesh and Commissioner, Land Records, have been impleaded as respondents. 5. It is submitted by the Counsel for the petitioner, that since, he has challenged the appointment order dated 28-9-2004 on the ground that the departmental quota of 6% of reservation to the reserved/handicapped person was not followed, therefore, it is not necessary for the petitioner to implead any private person as respondent. 6. Considered the submissions made by the Counsel for the Petitioner. 7. The respondents have made appointment on the basis of Intra Department Limited Examination and the seats were limited. If the petitioner is directed to be considered for his appointment to the post of Naib-Tahsildar, then the candidate who was placed at the bottom of the list of selected candidates, will have to give way to the petitioner. Thus, it is incorrect to say, that the outcome of this Petition would not affect any of the selected candidate. 8. The Supreme Court in the case of State of Bihar Vs. Kameshwar Prasad Singh reported in (2000) 9 SCC 94 has held as under : 26. It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioner nor did the Court feel it necessary to deal with this aspect of the matter. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioner nor did the Court feel it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 Deputy SPs. The writ petition filed by Brij Bihari Prasad Singh being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment. The Supreme Court in the case of Ranjan Kumar Vs. State of Bihar, reported in (2014) 16 SCC 187 has held as under : 5. In the case at hand neither was any rule nor any regulation challenged. In fact, we have been apprised that at the time of selection and appointment there was no rule or regulation. A procedure used to be adopted by the administrative instructions. That apart, it was not a large body of appointees but only 182 appointees. Quite apart from that the persons who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities. 6. In Indu Shekhar Singh v. State of U.P. 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." 7. In Rashmi Mishra v. M.P. Public Service Commission, after referring to Prabodh Verma and Indu Shekhar Singh, the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein. 8. In Tridip Kumar Dingal v. State of W.B., this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside. 9. In Public Service Commission v. Mamta Bisht this Court, while dealing with the concept of necessary parties and the effect of non-implementation of such a party in the matter when the selection process is assailed, observed thus: (SCC pp. 207-08, para 9) "9. in Udit Narain Singh Malpaharia v. Board of Revenue, wherein 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 'Code of Civil Procedure') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of the Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 of the Code of Civil Procedure 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. STAT.)" 10. In J.S. Yadav v. State of U.P., it has been held that: (SCC p. 583, para 31) "31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice." It was further held that: (SCC p. 583, para 31) "31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice." It was further held that: (SCC p. 583, para 31) "31. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity." 11. In Vijay Kumar Kaul v. Union of India it has been ruled thus: (SCC p. 619, para 36) "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 jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant." 12. Recently in State of Rajasthan v. Ucchab Lal Chhanwal, it has been opined that: (SCC p. 149, para 14) "14. Despite the indefatigable effort, we are not persuaded to accept the aforesaid proponent, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice." 9. If the submissions made by the Counsel for the petitioner are accepted, then the last selected candidate will have to be denied his appointment in view of the limited number of seats and since, the last selected candidate has not been arrayed as a respondent, therefore, no adverse order can be passed against him. 10. Under these circumstances, this petition suffers from non-joinder of necessary party. 11. Accordingly, this petition fails and is hereby dismissed.