Uttam Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.3593 of 2021 ====================================================== Uttam Kumar Son of Uma Shankar Paswan, Resident of Village-Shakman, P.S. Naya Ram Nagar, District-Munger.

... ... Petitioner/s

Versus

1.

The State of Bihar through Director General of Police, Old Secretariat, Government of Bihar, Patna.

2.

The Chairman Central Selection Committee (Constable Recruitment), Government of Bihar, Patna.

3.

The Secretary General Selection Committee (Constable Recruitment), Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Vijay Kumar Mishra For the Respondent/s :

Mr. Sheo Shankar Prasad, SC-8 For CSBC :

Mr. Sanjay Pandey Mr. Binod Kumar Mishra Mr. Vivek Anand Amritesh ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT Date : 31-01-2022 The matter is heard via video conferencing due to circumstances prevailing on account of the COVID-19 pandemic.

2. In the instant petition, petitioner has prayed for following reliefs:- "1. That this is an application by the above named petitioner for issuance of writ of mandamus, or any appropriate writ/writs, direction/directions, order/orders for following reliefs:- (i) To consider and appoint these petitioner on the post of constable as they were declared successfully in written test, their results

2/7 were published and they have declared qualified in physical evaluation test conducted by Central Selection Board.

(ii) To consider their appointment on the vacant post (999) as these post are still vacant after the appointment as some appointed constable did not joined the post after their recruitment.

(iii) To supply the marks obtained by these candidates and cut of marks on which selection has been made in different categories.

(iv) To pass such order as your lordships deem fit and proper."

3. Perusal of the records it is evident that petitioner has not arrayed such of those selected candidates whose rights are likely to be affected, in the event of granting any relief to the petitioner.

4. Therefore, the present petition stands dismissed in the light of Apex Court's decision rendered in the case of Ranjan Kumar & Ors Vs. State of Bihar & Ors. reported in (2014) 16 SCC 187 wherein para 3 to 11 read as under:

"3. The learned counsel for the appellants have raised two principal contentions, first, most of the appellants haerein were not impleaded as respondents before the High Court and without taking note of the said aspect the High Court has invalidated the selection and nullified their appointments which is violative of the

3/7 principles of natural justice; and second, all the private respondents who were writ petitioners before the High Court having participated in the interview which was the procedure adopted, could not have challenged the said process in a court of law because their failure, for the same is not permissible in law.

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 and others v.

State of Uttar Pradesh and others [(1984) 4 SCC 251], 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.

4/7 to be joined individually as respondents.

Thereafter the Court ruled thus: - "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 any rule nor regulation was 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 and others v. State of U.P. it has been held thus:- (SCC p. 151, para 56) "56. There is another aspect of the matter. The

5/7 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 (supra) and Indu Shekhar Singh (supra), 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 and others 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, Uttaranchal v. Mamta Bisht and others [(2010) 12 SCC 204] this Court, while dealing with the concept of necessary parties and the effect of nonimplementation of such a party in the matter when the selection process is assailed, observed thus:

"9....in Udit Narain Singh Malpaharia v. Board of Revenue [AIR 1963 SC 786], wherein the Court has explained

6/7 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, (hereinafter called 'Code of Civil Procedure') provides that nonjoinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 Code of Civil Procedure but the principles enshrined therein are applicable.

(Vide Gulabchand Chhotalal Parikh v.

State of Gujarat [AIR 1965 SC 1153], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706] and Sarguja Transport Service v. STAT [(1987) 1 SCC 5)'

10. In J.S. Yadav v. State of Uttar Pradesh [(2011) 6 SCC 570] it has been held that:

"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:

"31. ... The litigant has to ensure that the necessary party is before the Court, be it

7/7 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 and Ors. v. Union of India [(2012) 7 SCC 610] it has been ruled thus:

"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."

5. The petitioner is at liberty to file a fresh petition in accordance with law.

(P. B. Bajanthri, J) rakhi/- AFR/NAFR CAV DATE Uploading Date Transmission Date