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Judgment
Heard Mr. Sunil Singh, learned counsel for the petitioners in W.P. (S) No. 3450 of 2017 and Ms. Ekta Bharati, learned counsel for the petitioner in
W.P. (S) No.6215 of 2014 and Mr. Arun Kumar Dubey, learned counsel for the respondent- State in W.P. (S) No. 3450 of 2017 and Mr. Sreenu
Garapati, learned counsel for the respondent-State in W.P. (S) No. 6215 of 2014.
These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been
heard on merit. The facts of both the writ petitions are similar and that is why both these cases are heard together.
W.P. (S) No. 3450 of 2017 In this writ petition, the prayer is made by the petitioners for preparation of fresh panel list after granting the weightage for
the work experience for the appointment in terms of Advertisement no. 01 of 2016.
At the outset, Mr. Arun Kumar Dubey, learned counsel for the respondent- State submits that Advertisement No. 01 of 2016 has already been
withdrawn by the respondents and no appointment has been made pursuant to that advertisement.
In that view of the matter, there is nothing to be decided in this writ petition. It is open to the petitioners if they are entitled and further advertisement is
there, they may avail it.
Accordingly, this writ petition being W.P. (S) No. 3450 of 2017 stands dismissed.
W.P. (S) No. 6215 of 2014 The petitioner has preferred this writ petition for quashing final panel for 4th Grade appointment of District- Koderma and
for appointment of the petitioner in 4th Grade in the District of Koderma.
Ms. Ekta Bharati, learned counsel for the petitioner submits that pursuant to Advertisement no. 01 of 2010, the petitioner applied for the appointment.
She further submits that there is criteria that if a person is working for more than 240 days, he is required to be empanelled for the appointment. She
also submits that the appointed persons are less eligible than the petitioner and in spite of that they have been appointed and the petitioner has been left
out. By way of referring certain annexures of the writ petition as well as certain averments made in the counter affidavit, she submits that illegality is
very much there and the petitioner is fit to be appointed. She draws attention of this Court to the order passed by this Court dated 09.12.2016 in this
writ petition and submits that the said order has not been complied with by the respondents, whereby, the learned State counsel was directed to
requisition the original record pertaining to the appointments in question. She further submits that as the order dated 09.12.2016 has not been complied
with by the respondents, in that view of the matter this writ petition is fit to be allowed.
Per contra, Mr. Sreenu Garapati, learned counsel for the respondent-State submits that the petitioner was working as seasonal employee in the Forest
Department, which is apparent from page 15 of the counter affidavit. Page 14 of the counter affidavit is the document, issued by the Forest Range
Officer, Koderma which also speaks that the petitioner has worked as a daily wager. He further submits that panel has already been exhausted and
there is no illegality in the appointment. He also submits that moreover the persons who have been appointed they are not appeared before the Court
as they have not been made party-respondents in this writ petition. He further submits that pursuant to the order passed by this Court dated
09.12.2016, two counter affidavits dated 06.01.2017 and 15.02.2017 have been filed on behalf of the Deputy Commissioner, Koderma. The entire list
has been annexed with the counter affidavit dated 15.02.2017, wherein, it has been pointed out that 13 over-aged persons have been appointed. He
further submits that by letter dated 17.10.2014, it has been communicated that the Commissioner, North Chhotanagpur Division, Hazaribagh has
relaxed the age criteria for 13 persons, who were working since long period, under Rule 54 of the Jharkhand Service Code.
The letter dated 17.10.2014 is not on record. Mr. Sreenu Garapati, learned counsel for the respondent-State read the said letter at Bar and he is
directed to transmit the said letter to the Court Master and the said document shall be placed on record.
Having heard learned counsel for the parties and perused the records of the writ petition as well as the counter affidavit, the Court finds that the
advertisement is of the year 2010. The documents at pages 14 and 15 of the counter affidavit speak that the petitioner was working on daily wages.
The undertaking of the petitioner is there at page 15 of the counter affidavit. It is well settled provision of law that panel exists for a year and by now
much water has flown in the meantime. Moreover, the persons, who have been appointed pursuant to the said advertisement, have not been made
party-respondents in this writ petition and in their absence, no relief can be extended to the petitioner particularly considering the fact that panel has
already been exhausted. Reference in this regard made be made to the judgment rendered by the Hon'ble Supreme Court in the case of Vishal Ashok
Thorat v. Rajesh Shrirambapu Fate, reported in 2019 SCC Online SC 886
Paragraph 33 of the said judgment is quoted herein below:
One more submission raised by the learned counsel for the appellant in civil appeal filed by Vishal Ashok Thorat needs to be noticed. The
submission of the appellant is that respondent No.1 in his Writ Petition No.1270 of 2018 did not implead any of the selected candidates out of the list of
No selected candidate having been impleaded by respondent No.1, the High Court erred in issuing direction to modify and review the select list.
The direction of the High Court in paragraph 51 is clearly against the interest of the appellants, who as per direction shall go out of the select list, the
select list having been published on 31.03.2018, i.e., much before the date when respondent No.1 filed application for amendment in the writ petition
for challenging the advertisement Nos.2 of 2017 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already
published by the MPSC. Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the
selected candidates. The appellants rightly placed reliance on the Constitution Bench judgment of this Court in Udit Narain Singh, Malpatharia vs.
Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786. The Constitution Bench in paragraphs 6, 7 and 9 laid down following:
The question is whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose favour a tribunal or
authority had made an order, which is sought to be quashed, is or are necessary party or parties. While learned Additional Solicitor General contends
that in such a writ the said tribunal or authority is the only necessary party and the parties in whose favour the said tribunal or authority made an order
or created rights are not necessary parties but may at best be only proper parties and that it is open to this Court, even at this very late stage, to direct
the impleading of the said parties for a final adjudication of the controversy, learned counsel for the respondents contends that whether or not the
authority concerned is necessary party, the said parties would certainly be necessary parties, for otherwise the High Court would be deciding a case
behind the back of the parties that would be affected by its decision.
To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the
subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party
is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in
the proceedings.
The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a
tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of
one or the other of the parties before it. In a writ of certiorari, the defeated party seeks for the quashing of the order issued by the tribunal in favour of
the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the
successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can
be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the
tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without
making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are
directly affected is, therefore, a necessary party.
In the counter affidavit filed by the Deputy Commissioner, Koderma, the list has been annexed, wherein, it has been stated that 13 over-aged persons
have been appointed pursuant to the relaxation granted by the Commissioner, North Chhotanagpur Division, Hazaribagh under Rule 54 of the
Jharkhand Service Code, no relief can be extended to the petitioner in this writ petition.
This Court has perused the counter affidavit filed by the Deputy Commissioner, Koderma, whereby, it has been clarified how the appointment has
been made. There is a series of disputed question of fact in this writ petition, which cannot be entertained in the writ jurisdiction under Article 226 of
the Constitution of India. It appears that the petitioner is a workman and claim of more than 240 days under the Industrial Disputes Act is being made.
It is open to the petitioner to raise industrial dispute before the competent Court for redressal of his grievance.
Accordingly, this writ petition being W.P. (S) No. 6215 of 2014 stands dismissed.