Sudha Devi And Ors vs Principal Secretary Health And Family Welfare Departmen And Ors

Sl. No.,Name of Post,Total No. of Post,Selection Process & Criteria,,,Salary Per Month

1,"Lab Technician

(NUHM)",100,"Computer

Based Test

(CBT)","Academic

Qualification",Inter view,

,,,50,"50(0.5 for

each

percentage of

marks in

Essential

Qualification)",NA,"12,000

2.,ANM (NUHM),500,50,"50(0.5 for

each

percentage of

marks in

Essential

Qualification)",NA,"11,500

is profitable to refer to some authorities.,,,,,,

In Indu Shekhar Singh v. State of U.P. [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] it has been held thus:",,,,,,

(SCC p. 151, para 56)",,,,,,

“56. There is another aspect of the matter. The 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.â€​",,,,,,

In Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC",,,,,,

(L&S) 345] , after referring to Prabodh Verma [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] and Indu Shekhar Singh",,,,,,

[Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] , 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.",,,,,,

In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] , 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.",,,,,,

In Public Service Commission v. Mamta Bisht [Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204 : (2011) 1 SCC (L&S) 208] this",,,,,,

Court, while dealing with the concept of necessary parties and the effect of non-implementation of such a party in the matter when the selection",,,,,,

process is assailed, observed thus: (SCC pp. 207-08, para 9)",,,,,,

“9. … in Udit Narain Singh Malpaharia v. Board of Revenue [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] , wherein",,,,,,

the Court has explained 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, 1908 (hereinafter called ‘Code of Civil",,,,,,

Procedure’) provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of the Code of Civil Procedure are not applicable in",,,,,,

writ jurisdiction by virtue of the provision of Section 141 of the Code of Civil Procedure but the principles enshrined therein are applicable. (Vide,,,,,,

Gulabchand Chhotalal Parikh v. State of Gujarat [Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153] , Babubhai Muljibhai Patel v.",,,,,,

Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Sarguja Transport Service v. STAT [Sarguja",,,,,,

Transport Service v. STAT, (1987) 1 SCC 5 : 1987 SCC (Cri) 19] .)â€​",,,,,,

In J.S. Yadav v. State of U.P. [J.S. Yadav v. State of U.P., (2011) 6 SCC 570 : (2011) 2 SCC (L&S) 140] , it has been held that: (SCC p. 583,",,,,,,

para 31),,,,,,

“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.â€​,,,,,,

It was further held that: (SCC p. 583, para 31)",,,,,,

“31. … 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.â€​,,,,,,

In Vijay Kumar Kaul v. Union of India [Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610 : (2012) 2 SCC (L&S) 491] it has been ruled 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.â€​,,,,,,

Recently in State of Rajasthan v. Ucchab Lal Chhanwal [State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144 : (2014) 1 SCC (L&S)",,,,,,

34] , 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.â€​,,,,,,

In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ",,,,,,

petition was defective and hence, no relief could have been granted to the writ petitionersâ€​.",,,,,,

It is thus apparent from the law laid down by the Hon’ble Apex Court in the cases of Mamta Bisht (supra) and Ranjan Kumar (supra) that in,,,,,,

a case where the appointees have not been impleaded, the petitioners herein cannot be granted any relief for the reasons that firstly the selection of",,,,,,

the successful/ appointed candidates cannot be set aside without affording an opportunity of hearing to them and secondly, the writ petition suffers",,,,,,

from the vice of non-joinder of necessary parties, thus, on this score as well, the instant writ petition is fit to be dismissed.",,,,,,

Having regard to the facts and circumstances of the case and for the reasons mentioned herein above in the preceding paragraphs, I do not find",,,,,,

any merit in the present writ petition, hence, the same stands dismissed, however, without any order as to costs.",,,,,,