Allahabad High Court
Bramha Prakash Srivastava ( S/S ... vs State Of U.P. Thru Prin.Secy. Higher ... on 18 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2508
Bench: Anil Kumar, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 7 Case :- SPECIAL APPEAL No. - 338 of 2007 Appellant :- Bramha Prakash Srivastava ( S/S 1276/2003 ) Respondent :- State Of U.P. Thru Prin.Secy. Higher Education & 3 Ors. Counsel for Appellant :- P.K. Khare Counsel for Respondent :- Cs.C..,Prashant Chandra Hon'ble Anil Kumar,J.
Hon'ble Mrs. Rekha Dikshit,J.
Heard Shri P. K. Khare, learned counsel for the appellant, learned Standing Counsel and perused the record.
By means of the present special appeal, the appellant has challenged the judgment and order dated 12.03.2007 passed by this Court in Writ Petition No.1276 (SS) of 2003.
Facts in brief of the present case are that in the city of Unnao, there is an institution known as D. S. N. Degree College (hereinafter referred to as College), affiliated to Chatra Pati Sahuji Maharaj University, Kanpur and governed by the provisions of U. P. University Act, 1973 as amended in the year 1974. One Sri Durga Prasad Trivedi, who was working on the post of Deputy Librarian in the institution was promoted to the post of Librarian. So, the post of Deputy Librarian of the College had fallen vacant. In order to fill up the said post, advertisements were published in the daily newspaper i.e. Dainik Jagran and Pioneer.
In pursuance of the said advertisement, appellant submitted his candidature for appointment on the post of Deputy Librarian. On 15.07.1997, selection was made by the Selection Committee. Selection Committee selected one Sri Sanjay Kumar Yadav and the petitioner-appellant was put at serial no.2 in the merit list. On 17.08.1998, letter of appointment was issued to Sri Sanjay Kumar Yadav through registered post. However, Sri Sanjay Kumar Yadav did not respond to the said appointment letter and not joined on the post of Deputy Librarian.
As such, after three years from the date of issuing of appointment letter of Sri Sanjay Kumar Yadav, he was not joined on the post of Deputy Librarian. So, a request has been made by the appellant for considering his case for appointment on the said post, but heed paid in spite of the several representations made by him. Hence, the appellant filed Writ Petition No.1276 (SS) of 2003 before this Court. On 28.02.2003, an interim order was passed. The relevant portion of the same reads as under :-
"It remains a fact that the petitioner Bramha Prakash Srivastava was appointed on the post of Deputy Librarian vide appointment letter of August 29, 2002 (Annexure-9) and probation period of one year too was prescribed. It is not clear from the records as to whether the prescribed standard of keeping the post of Deputy Librarian alive as contained in the Government order dated 14-03-1984 (Annexure-14) has been deleted or not by means of some specific order of the competent authority. Until this position is clarified and relevant records brought before the court, the petitioner, who is already in service in pursuance of the appointment letter referred to above shall continue to discharge his duty as Deputy Librarian and he shall be entitled to get his salary as usual."
Lastly, by order dated 12.03.2007, the said writ petition was dismissed.
Learned counsel for the petitioner while challenging the impugned order submits that in the present case, admittedly when Shri Sanjay Kumar Yadav has not joined on the post in question in spite of repeated requests and reminders, then petitioner, who was found in the selected list at serial no.2, has been given appointment and allowed to work and discharge his duties. Thus, taking into consideration the said fact as well as order dated 28.02.2003 passed earlier, the impugned order dated 12.03.2007 passed by learned Single Judge is contrary to the facts on record, liable to be set aside.
Learned Standing Counsel while defending the finding given by learned Single Judge that no adequate opportunity has been provided to Shri Sanajay Kumar Yadav to defend his case and even he has not impleaded as a party in the writ petition. So, the judgment and order dated 12.03.2007 under challenge in the present writ petition is perfectly valid.
We have heard learned counsel for the parties and gone through the records.
The operative portion of the judgment and order dated 12.03.2007 under challenge in the present special appeal reads as under :-
"Accordingly, there appears to be unfair practice on the part of the Committee of Management in implementation of the decision taken by the Selection Committee selecting Sanjay Kumar Yadav. The Committee of Management has not discharged its duty in a just and fair manner to communicate Mr. Sanjay Kumar Yadav to resume duty. It appears that in spite of due selection in accordance with rules, Mr. Sanjay Kumar Yadav has not been provided opportunity to resume duty or defend his cause in the present writ petition. The writ petition is bad because of non-joinder of necessary party. In case Mr. Sanjay Kumar Gupta was at serial No.1 and the petitioner was at Sl. No.2 in the select list and there is allegation that Mr. Sanjay Kumar Yadav has not resumed duty, then he is a necessary party in the present case.
In view of the above, I do not find any reason to interfere with the impugned order dated 06.02.2003.
The Director, Higher Education is hereby directed to look into the matter and communicate Mr. Sanjay Kumar Yadav to resume duty forthwith. However, in case Sanjay Kumar Yadav does not join and still sanctioned post of Deputy Librarian exists, the Committee of Management may proceed to hold fresh selection in accordance with law."
In view of the above said facts, the first and foremost question which is to be considered in the present case is that whether the order passed by learned Single Judge thereby dismissing the writ petition filed by the appellant-petitioner on the ground of non-joinder of necessary party is correct or not.
Hon'ble the Apex Court in the case of Prabodh Verma vs. State of U. P., (1984) 4 SCC 251 has held that ".......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...."
In the case of Jagbir Singh vs. State of Haryana and others, (1996) 11 SCC 752, Hon'ble the Apex Court has again reiterated the said view.
Hon'ble the Apex Court in the case of Girjesh Shrivastava and others vs. State of Madhya Pradesh and others, (2010) 10 SCC 707 after placing reliance on the judgment given by Hon'ble the Apex Court in the case of Prabodh Verma (Supra), Ramrao vs. All India Backward Class Bank Employees Welfare Association, (2004) 2 SCC 76 and B. Ramanjini vs. State of A. P., (2002) 5 SCC 533 has held as under :-
"An order issued against a person without impleading him as a party and thus, without giving an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon.
Selection process had commenced long back as early as in 1998 and it had been completed. The persons selected were appointed pursuant to the selections made and had been performing their duties. However, the selected candidates had not been impleaded as parties to the proceedings either in their individual capacity or in any representative capacity. In that view of the matter, the High Court ought not to have examined any of the questions raised before it in the proceedings initiated before it. The writ petitions filed by the respondents concerned ought to have been dismissed which are more or less in the nature of a public interest litigation."
Hon'ble the Apex Court in the case of J. S. Yadav vs. State of Uttar Pradesh and another, (2011) 6 SCC 570 has held that "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. The principles enshrined in the proviso to Order I Rule 9, of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the Plaintiff/Petitioner may not be entitled for the relief sought by him. 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. In case the services of a person is terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the Plaintiff/Petitioner succeeds, it may not be possible for the Court to issue direction to accommodate the Petitioner without removing the person who filled up the post manned by Plaintiff/Petitioner. More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post."
In view of the above said facts and law, we do not find any illegality or infirmity in the impugned order passed by this Court. Accordingly, the special appeal is dismissed..
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(Rekha Dikshit,J.) (Anil Kumar,J.) Order Date :- 18.7.2018/Mahesh