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TMI Blog2015 (10) TMI 2630X X X X Extracts X X X X X X X X Extracts X X X X ..... ot confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, along with an application for stay of the cancellation of allotment, but the appellate authority declined to pass any interim protective order. Eventually, the appeal preferred by the appellant was allowed. May it be stated that the appellant herein had got herself impleaded in the appeal on the ground that she had been allotted the shop no.2 after cancellation of the allotment along with the licence granted in favour of the original allottee, the appellant therein. 4. The appellate authority after hearing the appellant and the impleaded party and upon perusal of the file, opined that the entire proceeding against the original allottee was initiated on the basis of the oral statements pertaining to the allegations made by some BPL card holders that the shopkeeper had told them that their cards had been cancelled; and there was no enquiry and investigation by the Deputy District Magistrate from the official documents as regards the cancellation of original ration cards of the BPL card holders; that the allottee was not provided the copy of the investigation report and hence, he was deprived of opportunity to submit his clarification and on the whole, there were serious procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate authority. Learned counsel for the State would further submit that shop no.2 having become available and there being no order that said shop is declared as the shop reserved for any kind of quota, either vertical or horizontal, the present appellant cannot assert any independent right in respect of the said shop. 8. At the very outset, we must unequivocally state that we are not required to enter into the issue whether cancellation was justified or not or the order passed by the appellate authority allowing the appeal is defensible in the facts and circumstances of the case, for the High Court has expressed its disinclination to enter into the said arena at the instance of the present appellant on the foundation that she was an allottee after the cancellation of the allotment who was the licencee to run the fair price shop of the 5th respondent. Learned counsel for the appellant has also rightly not advanced any argument in that regard except emphasising on the facet that as the appellant had an independent right on her own the High Court was under the lawful obligation to address itself with regard to legal substantiality of the order passed by the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 17.8.2002 in respect of the scheduled caste, scheduled tribe and other backward classes. Thereafter, there is reference to certain horizontal reservation which refers to the ladies of certain reserved categories, family members of the army who had expired in the concerned reserved category, exarmy personnel, freedom fighters of the concerned reserved categories and their wives and the handicapped persons of the concerned category. After so stating, the circular proceeds to mention as under:- In this regard I was direction to say that for the allotment of FPS shop in the rural and urban area, according to the above arrangement Horizontal reservation is also approved, under which there is arrangement to give 02% reservation to the candidate of handicapped persons. In view of the problem of the blind persons after appropriate consideration, the administration has decided that the blind handicapped be granted 1% reservation under Horizontal reservation. In this manner now to the handicapped person in place of 2% shall be approved 3% reservation and in this manner 1% increased reservation shall be approved only for the handicapped of blind persons. In this manner in para n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [underling is ours] 13. Though, the narration of facts is reflective of a different contour of controversy. i.e., allotment and grant of licence for a fair price shop, the seminal issue, as noted hereinabove, would hinge on the answer to the question pertaining to right to assail the order passed in appeal. The appellant was not impleaded as a party in the appeal but she herself got impleaded. Assuming the appellant authority would have decided the appeal in favour of the original allottee in her absence, could the present appellant, a subsequent allottee in respect of the same shop, have been allowed in law to make a grievance by invoking the jurisdiction of any statutory forum or for that matter the High Court under Article 227 of the Constitution. In essence, whether she is a necessary party to the litigation and entitled to contest the legal vulnerability of the order of cancellation or in any manner advance the plea that her allotment would not be affected despite the factum that the order of cancellation of the earlier allottee has been quashed. To appreciate the said issue we will dwell upon certain authorities though they may pertain to different jurisprudence. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called CPC ) provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC 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 Prabodh Verma v. State of U.P. (1984) 4 SCC 251 and Tridip Kumar Dingal v. State of W.B. (2009) 1 SCC 768 , it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties. 16. At this juncture, it is necessary to state that in Udit Narain (Supra) question arose whether a tribunal is a necessary party. Recently a two-Judge Bench in Asstt. G.M State Bank of India v. Radhey Shyam Pandey 2015 (3) SCALE 39 referred to Hari Vishnu Kamath v. Ahmad Ishaque and Ors. AIR 1955 SC 233 and adverted to the concept of a tribunal being a necessary party and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n culled out in the said case is that a tribunal or authority would only become a necessary party which is entitled in law to defend the order. 17. The term entitled to defend confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem has its own sanctity but the said principle of natural justice is not always put in strait jacket formula. That apart, a person or an authority must have a legal right or right in law to defend or assail. 18. We may first clarify that as a proposition of law it is not in dispute that natural justice is not an unruly horse. Its applicability has to be adjudged regard being had to the effect and impact of the order and the person who claims to be affected; and that is where the concept of necessary party become significant. In The General Manager, South Central Railway, Secunderabad and another v. A.V.R. Siddhantti and Others (1974) 4 SCC 335 the Court was dealing with an issue whether the private respondent therein had approached the High Court under Article 226 of the Constitution fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank of India, New Delhi ILR (1973) 2 Delhi 392 and Mohan Chandra Joshi v. Union of India and Ors. C.W. No. 650 of 1970, decided by Delhi High Court. In this context reference to the authority in State of Himachal Pradesh and another v. Kailash Chand Mahajan and Others 1992 Supp (2) SCC 251 would be appropriate. In the said case a contention was raised that non-impleadment of the necessary party was fatal to the writ petition. In support of the said stand reliance was placed upon two decisions of two different High Courts; one, State of Kerala v. Miss Rafia Rahim AIR 1978 Ker 176 and the other in Padamraj v. State of Bihar AIR 1979 Pat 266 . The Court distinguished both the decisions by holding thus:- The contention of Mr Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on State of Kerala v. Miss Rafia Rahim. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padamraj Samarendra v. State of Bihar, has no application. This was a case where the plea was founded in Article 14 and arbitrary sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance . 21. We have referred to the aforesaid passages as they state the basic principle behind the doctrine of natural justice, that is, no order should be passed behind the back of a person who is to be adversely affected by the order. The principle behind proviso to Order I Rule 9 that the Code of Civil Procedure enjoins it and the said principle is also applicable to the writs. An unsuccessful candidate challenging the selection as far as the service jurisprudence is concerned is bound to make the selected candidates parties. 22. In J.S. Yadav Vs State of U.P. Anr (2011) 6 SCC 570 in Paragraph 31 it has been held thus:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commission. The State Government issued the notification on 28.05.2008 to the effect that the appellant had ceased to hold the office as a Member of the Commission. The said notification was challenged on the ground that he had been appointed for a tenure of five years and that period could not be curtailed. The appellant had not impleaded any of the members who had been appointed as members on 06.06.2008. Various contentions were raised on behalf of the appellant and the said submissions were resisted by the State on two counts, namely, that the appellant had not impleaded the newly appointed members as parties and further he had suffered the disability by virtue of the operation of the amended law. This court referred to the provision contained in unamended Section 21(2) of the Act and the Amended Section 21(2) of the Act. Prior to the amendment, the qualification prescribed for Member was a person who is or has been a District Judge in that State and after the amendment the qualification of the member was changed to the extent he is or has been a Judge of a High Court or District Judge in the State with a minimum of 7 years experience as a District Judge . The court re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 6 of the General Clauses Act. The Court referred to the authorities in State of Punjab v. Bhajan Kaur (2008) 12 SCC 112 , Sangam Spinners v. Regl. Provident Fund Commr. (2008) 1 SCC 391 , and Railway Board v. C.R. Rangadhamaiah (1997) 6 SCC 623 and held as follows:- Thus, from the above, it is evident that accrued rights cannot be taken away by repealing the statutory provisions arbitrarily. More so, the repealing law must provide for taking away such rights, expressly or by necessary implication. 25. Thereafter, the Court proceeded to lay down as follows:- There is no specific word in the 2006 Amendment Act to suggest its retrospective applicability. Rather the positive provisions of Section 1 suggest to the contrary as it reads:- 1. Short title and commencement.- (1) *** (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Undoubtedly, the amended provisions came into force on 23-11-2006 vide S.O. 2002 (E), dated 23-11-2006, published in the Gazette of India, Extra Pt. II, Section 3(ii) dated 23-11-2006. In fact, the date 23-11-2006 is the pointer and puts the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that arose for determination before this Court was the constitutional validity of two Uttar Pradesh Ordinances, namely, (1) The Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance 10 of 1978), and (2) The Uttar Pradesh High Schools and Intermediate Colleges Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance 22 of 1978). The High Court on certain reasons had struck down the ordinance. Be it noted, the writ petition was filed by the Uttar Pradesh Madhyamik Shikshak Sangh. Apart from the question of validity, the subsidiary question that arose before this Court is whether the termination of the services of the appellants and the petitioner before this Court as secondary school teachers and intermediate college lecturers following upon the High Court judgment is valid and, if not, the relief to which they are entitled. After narrating the facts, the Court observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. We think it appropriate to reproduce the statement of facts as reproduced in the judgment. The first defect was that of non-joinder of necessary parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court had opined that when the constitutional validity of a provision is challenged and there are beneficiaries of the said provision, some of them in a representative capacity have to be made parties failing which the writ court would not be justified in hearing a writ petition in the absence of the selected candidates when they are already appointed on the basis of the provision which was under assail before the writ court. 31. In Ishwar Singh v Kuldip Singh and others 1995 Supp (1) SCC 179 , a two-Judge Bench was dealing with the situation where the selection and consequent appointments were challenged by unsuccessful candidates before the High Court primarily on the ground that the interviews held for the said selection were a sham affair. The High Court had quashed the selection and the appointments on the foundation that the interviews held were neither fair nor proper thereby vitiating the selection. This Court dislodged the order of the High Court on a singular count which is to the following effect: - It is not disputed by the learned counsel for the parties that except Ishwar Singh, no other selected candidate was impleaded before the High Court. The selection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h panel so prepared in order of merit subject to reservation and filling up of vacant posts. The decision of the tribunal was challenged before the High Court and the High Court opined that the question of retaining those candidates who had been appointed must be considered afresh by the tribunal since the tribunal had not assigned any reason as to why they should be permitted to be continued in service. The High Court had expressed the view that no sympathy should have been shown to the candidates when the tribunal itself had expressed the opinion that the selection process was vitiated. Various other reasons were also ascribed by the High Court. After remit, the tribunal considering the rivalised submissions and taking an overall view of the matter found that the selection process was bona fide and in accordance with law and, therefore, it requires to be approved. The tribunal further held that appointments which had already been made by the authorities in respect of 190 candidates who had gained experience of more than three years of work of investigation entrusted to them should not be disturbed. A direction was issued to the State authorities to offer appointments to successfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the candidates and was in the nature of elimination test had no doubt substance, for the said authorities regard being had to the large number of applicants seeking appointment and small number of vacancies, had no other option but to screen candidates by holding a written examination more so, when there were no rules in that regard. This Court further opined that it was an administrative decision and such a plea was raised by the State in the first round of litigation before the tribunal which had held that the action of State authorities to be wrong and the High Court upheld it and State did not challenge the order before this Court and, therefore, in the second round the High Court did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. It was further held that in such a situation it was not open to the State authorities to reiterate and reagitate the same ground on the same occasion. A contention was raised on behalf of the appellant that there cannot be more than 15% marks at the oral interview, which was not accepted by this Court at that stage, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the High Court that it was for the State Government to consider the prayers in accordance with law. A similar writ was filed by another female attendant wherein the Union of India and the State of Assam were arrayed as respondents and the High Court disposed of the writ petition relying on the earlier judgment. The Union of India being aggrieved preferred a writ appeal in which it did not implead the State of Assam as a party to those proceedings. The contention of the Union of India was that the voluntary female attendants were not their employees and, therefore, the Single Judge was not correct in issuing direction to the Union of India for payment of minimum pay scale. It was urged that the State of Assam had issued appointment letters to the said female attendants. There was no mention in those appointment letters that they were appointed under the centrally sponsored scheme. A prayer was made to discharge them of their liability of any payment of wages to the private respondents appointed by the State Government. The Division Bench accepted the stand of the Union of India and held that the appointment letters had nothing to link them with the centrally sponsored scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of the High Court has fixed huge recurring financial liability on the State Government. In our opinion, in matters of this nature, even by mistake of the party, the proper parties were not arrayed in the proceedings, it is the duty of the Court to see that the parties are properly impleaded. It is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the Court should not embark upon the consideration and the correctness of such decision in the absence of such persons. 36. The proposition of law stated hereinabove has to be understood in proper perspective. There were two prayers in the writ petition. One was for payment of salary, the other was for regularisation. Ultimately, the Division Bench absolved the Union of India from liability of payment and fastened it on the State. The State was not arrayed as a party to the lis. That was an accepted fact. Needless to emphasise the State of Assam was a necessary party and more so when the Union of India was taking the stand that it was the State of Assam which had to bear the liability. The State of Assam was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down as a proposition of law that in every case when a termination is challenged, the affected person has to be made a party. What has been stated is when one challenges a provision as ultra vires the persons who are likely to be affected, some of them should be made parties in a representative capacity. That has been the consistent view of this Court in service jurisprudence. Some other decisions, which have been relied upon are directly connected with regard to the selection and selectees. On a perusal of the analysis made in J.S. Yadav (supra), we are disposed to think that the Court has applied the principle pertaining to the constitutional validity by equating it with the interpretation of a provision, whether it is retrospective or prospective. That apart, the Court, as is evident from paragraph 32 of the judgment, has noted that the prayer made by the appellant only related to the declaratory relief. The said decision has to be understood in the context. A ratio of a decision has to be understood in its own context, regard being had to the factual exposition. If there has been advertence to precedents, the same has to be seen to understand and appreciate the true ratio. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislative Assembly which was held in January 1990, the Government issued a notification on March 6, 1990 by which the earlier notification was superseded and the appointment of the said respondent as Chairman was extended from July 25, 1989 to March 6, 1990. Another notification was issued on the same date directing that one R.S. Chauhan shall function as the Chairman of the Board. The first respondent preferred a writ petition assailing the validity of the notification by which his period was curtailed and prayed for certiorari to quash the same. When the writ petition was pending, a notification was issued terminating the appointment of the writ petitioner. The High Court had passed a direction that no appointment to the post of Chairman could be made till further orders of the Court. That order was passed on 30th March, 1990. At the time of conclusion of the hearing, the learned Advocate General after obtaining instructions filed an undertaking to the effect that the notification dated March 6, 1990 curtailing the period of the writ petitioner would be withdrawn. Accepting the undertaking, the writ petition was disposed of. On June 11, 1990, the Government withdrew both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty. The Court has relied on the pronouncement in A. Janardhana (supra). What has been really laid down is that R.S. Chauhan was not entitled in law to contest the lis as Kailash Chand, the aggrieved party, was challenging the ordinance as he had faced the curtailment of period of his tenure. 44. In this context, we may refer to certain other authorities where there has been an expansion of the concept of necessary party. The Constitution Bench in U.P. Awas Evam Vikas Parishad vs. Gyan Devi (Dead) by LRs. Ors. (1995) 2 SCC 326 has laid down that in a land acquisition proceeding, the local authority is a necessary party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. That apart, it has also been stated that in the event of enhancement of the amount of compensation by the Reference Court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. That apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Panchayats or the Panchayat Samiti is elected as the Sarpanch or the Chairman. The removed Sarpanch assails his order of removal as he is aggrieved by the manner, method and the reasons for removal. In his eventual success, he has to hold the post of the Sarpanch, if the tenure is there. The question, thus, arises whether the person who has been elected in the meantime from amongst the members of the Panchayat Samiti or Sabha is a necessary party. The answer has to be a categorical no , for he cannot oppose the order of removal assailed by the affected Sarpanch nor can he defend his election because he has come into being because of a vacancy, arising due different situation. 48. In the instant case, shop no.2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier post holder or allottee succeeds, it will only usher in the reverse situation an anarchy in law. 49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay Ors. (1992) 2 SCC 524 would be fruitful. The two- Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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