Madhya Pradesh High Court
Smt. Chandra Kumari Pandya vs State Of M.P. on 11 April, 2019
1 WP-1964-2008
HIGH COURT OF MADHYA PRADESH
WP-1964-2008
(Smt. Chandrakumari Pandya Vs. State of M.P. & others)
Gwalior, Dated : 11/04/2019
Shri Neeraj Shrivastava, counsel for the petitioner.
Shri P.S. Raghuvanshi, Government Advocate for the
respondents/State.
This petition under Article 226 of the Constitution of India has been filed seeking the following relief:-
"fiVh'ku esa of.kZr rF;ksa ,oe~~ vk/kkjksa ij fiVh'kuj ekuuh; U;k;ky; ls izkFkZuk gS fd fjV] vkns'k] funsZ'k bl vk'k; dk fjLiksUMsUV~l ds fo:) tkjh fd;k tkos fd fiVh'kuj dh fiVh'ku Lohdkj djrs gq, fiVh'kuj dks fjLiksUMsUV~l@foHkkx dks ;g vkns'k@funsZ'k tkjh djus dh d`ik djsa fd fiV'kuj ds twfu;j Jh ';keckcw R;kxh ,oa vU; twfu;j ds leku gh fnukad 30-04-2000 ls mPp Js.kh f'k{kd ds in ij ,oa fnukad 30&10&2006 ls twfu;jksa dh Jh ';keckcw R;kxh ,oa vU; twfu;j ds leku iz/kku v/;kid ek/;fed fo| ky; ds inkssa ij inksUufr iznku djrs gqq, fiVh'kuj dks mDr inksa ds lsokfgr ykHk ,oa vU; ifj.kkfed ykHk iznku fd, tkus ds vkns'k@funsZ'k fjLiksUMsUV&foHkkx dks iznku djsa ,oa vU; lgk;rk tks fiVh'kuj ds fgr esa gks iznku djus dh d`ik djsa A"
It appears that this petition was filed in the year 2008 and the petitioner has retired in the year 2009. A preliminary objection has been raised by the counsel for the respondents that since the petitioner has not impleaded the juniors, therefore, this petition is liable to be dismissed because of non-joinder of necessary parties. To buttress his contention, counsel for the respondents has relied upon the judgments passed in the cases of Ranjan Kumar and others Vs. State of Bihar and others reported in (2014) 16 SCC 187; State of 2 WP-1964-2008 Rajasthan Vs. Ucchab Lal Chhanwal reported in (2014) 1 SCC 144 and Sitaram Baghele Vs. State of M.P. and another reported in 2013 (4) MPLJ 432.
It is submitted by the counsel for the petitioner that although this petition was filed in the year 2008 but since the respondents never filed the return, therefore, the petitioner was not aware of the requirement of impleading the juniors as a party and if such objection had been raised at earlier point of time, then the counsel for the petitioner could have filed the application for impleading them also. Therefore, the respondents should not be allowed to raise this preliminary objection at this belated stage.
Heard the learned counsel for the parties. So far as the stage of objection raised by the counsel for the respondents is concerned, it has already been settled by the Supreme court as well as by this Court by a catena of judgments that whenever a promotion is sought on the ground that the petitioner has been denied promotion although his or her juniors have been promoted, then it is incumbent upon the petitioner to implead the juniors.
The objection, which have been raised by the counsel for the respondent is purely a legal objection and is not a factual objection, which could have been cured by the petitioner by filing necessary application for amendment. If the petitioner has filed the petition in ignorance of the law of the land, then the objection which goes to the root of the petition, cannot be rejected merely on the ground that it 3 WP-1964-2008 was not raised at the earliest.
Accordingly, the submission made by the counsel for the petitioner that since the objection was not raised at the earliest, therefore, it cannot be taken note of at this stage cannot be accepted and, hence, it is rejected.
The Supreme Court in the case of Sitaram Baghele Vs. State of M.P. and another reported in 2013 (4) MPLJ 432, has held as under:-
"7. The petitioner has not challenged any vires of the rules or any policy decision of the Government which affects his seniority or promotion. In the event of such challenge, there may be no need to implead the affected parties but where there is no such challenge to policy or rule and challenge is only to the promotion orders of the juniors, the juniors are necessary parties. In other words, if the petitioner succeeds and the impugned order of promotion is set aside, it will have an adverse impact on the persons who were promoted by the said order. This cannot be done without hearing those parties whose rights are sought to be affected. A bizarre argument is advanced stating that the order of promotion of juniors may not be disturbed but a mandamus may be issued to promote the petitioner from a date earlier or from the date juniors were promoted. I am not able to persuade myself with this line of argument. This is a matter of common knowledge that whenever promotions are made, the same are made against certain number of vacant posts. In the event of supersession, those posts are occupied by the junior persons. If that promotion order is not under challenge and the promotion order is not set aside, any mandamus in favour of the petitioner to promote him will tantamount to enhancement of cadre strength. In other words, withstanding the promotion order herein because of which promotional posts are already occupied by the junior promotees, if petitioner is also directed to be promoted, it will have an impact of indirectly directing for creation of a post to accommodate the petitioner. I
4 WP-1964-2008 am afraid, this is beyond the jurisdiction of the writ Court. This is settled in law that the writ Courts normally cannot direct for issuance of promotion order. This view was taken by Supreme Court way back in Brooke Bond India (P) Ltd. Vs. Workmen, AIR 1966 SC 668. The relevant paragraphs reads as under:-
"Even so after a finding of mala fides or victimisation, it is not the function of a tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If it finds that promotions have been made which are unjustified on the ground of mala fides or of victimisation, the proper course for it to take is to set aside the promotions and ask the management to consider the cases of superseded employees and decide for itself whom to promote, except of course the persons whose promotion has been set aside by the tribunal."
This Court in 2002 (94) FLR 1125 (The Executive Engineer, (ST/RE), Construction Division, Madhya Pradesh Electricity Board Vs. Manik Chand and others) followed the ratio of the same." The Supreme Court in the case of Ranjan Kumar and others Vs. State of Bihar and others reported in (2014) 16 SCC 187, has held as under:-
"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."
The Supreme Court in the case of State of Rajasthan Vs. Ucchab Lal Chhanwal reported in (2014) 1 SCC 144, has held as 5 WP-1964-2008 under:-
"11. In this context, we may refer with profit to the decision in Vijay Kumar Kaul v. Union of India wherein it has been held 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."
Thus, it is clear that unless and until a person is made party in the writ petition, no adverse order can be passed against him. In the present case also, juniors have not been impleaded as respondent and, therefore, their promotion orders cannot be quashed. Under these circumstances, no relief can be granted to the petitioner in the present case.
Accordingly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.04.16 14:21:48 +05'30'