Dr. Archana Kanungo vs State Of Odisha And Another on 28 March, 2024

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Orissa High Court

Dr. Archana Kanungo vs State Of Odisha And Another on 28 March, 2024

1. The appellant has put to challenge a judgment dated 24.11.2023 rendered by a learned Single Judge of this Court in W.P.(C) No.36916 of 2022 filed by the appellant under Articles 226 and 227 of the Constitution of India, whereby the said writ petition has been dismissed.

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2. The short facts, which are not in dispute, are that the Odisha Public Service Commission (in short 'OPSC') had come out with an advertisement on 08.10.2021 inviting applications from eligible candidates for recruitment to 606 posts of Assistant Professors (Stage-I) in different disciplines in Group-A of Odisha Education Service (College Branch) of Government Degree Colleges in the State. 1% of the total posts were reserved for the sportspersons. 03.12.2021 was the last date for submission of online applications. The appellant is said to have submitted her application online, but was not called for interview. The appellant approached this Court by filing a writ petition giving rise to W.P.(C) No.21038 of 2022 raising grievance against non- inclusion of her PPSAN number in the list of candidates called for verification of documents for selection to the post of Assistant Professors (Stage-I) Sociology. The appellant is a National Level Taekwondo player recognized by the Directorate of Sports, Government of Odisha. She claimed that she had a brilliant academic credentials with Master Degree in Sociology from Utkal University, M.phil Degree from Delhi University and Ph.D Degree with Institutional Research Fellowships of ICSSR in 2012 and 2014. In the said writ proceeding, the OPSC took a stand that W.A. No.2999 of 2023 Page 2 of 15 the appellant had failed to make necessary entries in her online application. The learned Single Judge of this Court, by an order dated 20.10.2022, disposed of the said writ petition i.e. W.P.(C) No.21038 of 2022 with an observation for considering the appellant's application sympathetically and allowing her for the verification of the documents. The OPSC was directed to fix a date for document verification. While passing the said order, learned Single Judge noted that the petitioner had represented in sports at the National Level and that the Government of Odisha was promoting sportspersons of different sports categories and promoting sustainable employment opportunities also to them.

3. The appellant's documents were verified and she was allowed to participate in the interview held on 12.12.2022.

4. The OPSC thereafter published a list of successful candidates in which the appellant's name did not figure. With a claim that the appellant had performed very well and her API score was 102 as per the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (in short W.A. No.2999 of 2023 Page 3 of 15 'UGC Regulations'), she approached this Court by filing writ petition giving rise to W.P.(C) No.36916 of 2022. She also alleged that the principle of horizontal reservation for sports persons was not followed by the OPSC.

5. The OPSC in its counter affidavit in the writ proceeding controverted the statement of the appellant that the UGC guidelines were not followed in the selection process. OPSC also took a plea that since the appellant could not qualify in the original merit (vertical) list of unreserved (Women) candidates, there was no question of applying horizontal reservation. A specific stand was taken on behalf of the OPSC that the appellant did not secure minimum qualifying marks of 50% in the interview. The OPSC also denied the appellant's claim of having secured 102 marks under the API score since as per the UGC Guidelines, maximum API score could be 100 against which the appellant had scored 73 only.

6. The appellant argued before the learned Single Judge that one post i.e. 1% of the 12 vacancies in Sociology discipline ought to have been earmarked for sportspersons as per the advertisement, which the OPSC had not done. Secondly, she W.A. No.2999 of 2023 Page 4 of 15 being a brilliant scholar with several research publications to her credit, had performed very well in the interview but was deliberately given less marks. She questioned the correctness of determination of her API score and reiterated that her API score ought to have been taken as 102. She also alleged that OPSC had illegally fixed the cutoff marks in the interview though the same was never mentioned in the advertisement.

7. The OPSC took a stand in the writ proceeding that 1% of total posts advertised were reserved for the sportspersons. In accordance with the said policy, 6 sportspersons in all could be appointed depending upon the discipline against which each of them had applied. However, such appointment could only be considered if the concerned candidate had qualified in the original merit list of the candidates in the concerned discipline. The petitioner secured only 40 marks, which is less than the marks secured by the last person in the discipline of Sociology in the unreserved (in short 'UR') category. Only three persons had applied under the sportspersons category, one each in the disciplines of Commerce, Odia and Sociology. The petitioner could have been considered under the sportspersons category only W.A. No.2999 of 2023 Page 5 of 15 if she had qualified in the original merit list prepared for UR candidates in Sociology discipline.

8. We have heard the appellant, who has appeared in person.

9. Learned Single Judge noticed the admitted fact that all the 12 UR posts of Sociology discipline, which were advertised, were already filled up based on the said selection. In such view of the matter, learned Single Judge opined that the appellant's relief as sought in the writ petition could be entertained only by cancelling appointment of at least one of the selected candidates against the said 12 posts of Sociology discipline. Learned Single Judge has noted in the impugned judgment that the appellant was not inclined to implead the persons already appointed under UR category as parties despite the opportunity granted to her. Paragraph-8 of the judgment under challenge is relevant, which is reproduced hereinbelow:

"8. It goes without saying that the persons who would be adversely affected by such challenge to the selection process ought to be made parties and be given opportunity of hearing in the case. At least one person or the last person in the list of six UR category candidates ought to have been impleaded as he/she is a necessary party in the absence of whom, the lis cannot be effectively adjudicated. There being only six posts, all of which have already been filled up, if the W.A. No.2999 of 2023 Page 6 of 15 petitioner's prayer as quoted in the beginning of this order were to be allowed then one out of the six selected candidates would have to give way. Keeping this in view, this Court granted opportunity to the petitioner to implead the persons already appointed under UR category as parties to the writ application. However, the petitioner for reasons best known to her was not inclined to do so by submitting that she is not competing against them. But then, as already stated, the petitioner's prayer cannot be allowed without adversely affecting at least one of the selected candidates. Law is well settled that persons likely to be vitally affected by the judgment/order of the Court are necessary parties and therefore, no order can be passed in their absence."

10. After having held as above, the learned Single Judge reached a conclusion that since number of posts notified was fixed, granting relief to the appellant as claimed, would entail quashing the selection of at least one selected candidate, which could not be validly done in his/her absence. The appellant's writ petition has been dismissed mainly on the ground of non-joinder of necessary party, relying on the Supreme Court's decision in case of Prabodh Verma v. State of U.P., reported in (1984) 4 SCC 251.

11. During the course of hearing of the present appeal, we offered the appellant for appointment of an Amicus Curiae to plead her case. She, however, declined and argued her case herself.

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12. It is a fact not in dispute that the appellant had applied against the post of Assistant Professor in Sociology. She belongs to UR category and claimed horizontal reservation against 1% of the posts reserved for the sportspersons. There were 12 posts in unreserved category of Assistant Professor in Sociology. All the 12 UR posts have already been filled up. Without disturbing someone, who has been appointed against the aforesaid 12 unreserved posts, relief as sought by the appellant could not have been granted to her. We concur with the view taken by the learned Single Judge relying on the Supreme Court's decision in case of Prabodh Verma (supra) that the writ petition deserved to be dismissed on the ground of non-joinder of necessary party alone. The Supreme Court's decision in case of Prabodh Verma (supra) has been consistently followed in subsequent decisions. Illustratively, in case of All India SC & ST Employees' Association and another v. A. Arthur Jeen and others, reported in (2001) 6 SCC 380, the Supreme Court has held in paragraph-13 as under:

"13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is an admitted position that before the Tribunal the W.A. No.2999 of 2023 Page 8 of 15 successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates, maybe, in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma v. State of U.P. [(1984) 4 SCC 251 : 1984 SCC (L&S) 704] has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of the respondents has stated that: (SCC pp. 288-89) "A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties."

13. In case of Ranjan Kumar and others v. State of Bihar and others reported in (2014) 16 SCC 187, the Supreme Court has W.A. No.2999 of 2023 Page 9 of 15 taken note of various precedents while holding that as the appointees were not impleaded, writ petition was defective and no relief could have been granted. The paragraps-4 to 13 of the said decision in case of Ranjan Kumar (supra) are being reproduced hereinbelow:

"4. On a perusal of the orders impugned, we find that only 40 persons were made respondents before the High Court and hardly a few appointees filed applications for intervention. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation. In this context, we may refer with profit to the authority in Prabodh Verma v. State of U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] , wherein a three-Judge Bench was dealing with the constitutional validity of two Uttar Pradesh Ordinances which had been struck down by the Division Bench of the Allahabad High Court on the ground that the provisions therein were violative of Articles 14 and 16(1) of the Constitution of India. In that context, a question arose whether the termination of the services of the appellants and the petitioners therein as secondary school teachers and intermediate college lecturers following upon the High Court judgment was valid without making the said appointees as parties. The learned Judges observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects; the core defect was that of non-joinder of necessary parties, for respondents to the Sangh's petition were the State of Uttar Pradesh and its officers concerned and those who were vitally concerned, namely, the reserve pool teachers, were not made parties -- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. Thereafter the Court ruled thus:

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(Prabodh Verma case [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] , SCC pp. 273-74, para 28) "28. ... The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."

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. [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] 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." W.A. No.2999 of 2023 Page 11 of 15

7. In Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345] , after referring to Prabodh Verma [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] and Indu Shekhar Singh [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] , 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. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 :

(2009) 2 SCC (L&S) 119] , 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 [Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204 : (2011) 1 SCC (L&S) 208] 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 [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] , wherein the Court has explained the W.A. No.2999 of 2023 Page 12 of 15 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 [Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Sarguja Transport Service v. STAT [Sarguja Transport Service v. STAT, (1987) 1 SCC 5 : 1987 SCC (Cri) 19] .)"

10. In J.S. Yadav v. State of U.P. [J.S. Yadav v. State of U.P., (2011) 6 SCC 570 : (2011) 2 SCC (L&S) 140] , 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. ... 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 W.A. No.2999 of 2023 Page 13 of 15 the successful candidates in representative capacity."

11. In Vijay Kumar Kaul v. Union of India [Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610 :

(2012) 2 SCC (L&S) 491] 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 [State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144 : (2014) 1 SCC (L&S) 34] , 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."

13. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners."

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14. Similar view has been expressed in cases of Sanjay Prakash and others v. Union of India and others, reported in (2021) 9 SCC 79 and Poonam v. State of Uttar Pradesh and others, reported in (2016) 2 SCC 779.

15. Considering the judicial pronouncements as noted above, in our opinion, the learned Single Judge has rightly declined to entertain the appellant's writ petition for non-joinder of necessary parties, despite opportunity having been given to her to implead some of the appointed persons, even in their representative capacity.

16. Accordingly, we do not find any merit in the appeal, which is accordingly dismissed. There shall be no order as to the costs.

(Chakradhari Sharan Singh) Chief Justice (S. K. Sahoo) Judge Signature Not Verified Digitally Signed M. Panda Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 28-Mar-2024 16:36:26 W.A. No.2999 of 2023 Page 15 of 15

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