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SCA/2590/2001 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2590 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AJITBHAI
JIVRAJBHAI PARMAR & 4 - Petitioner(s)
Versus
UNION
OF INDIA & 4 - Respondent(s)
=========================================================
Appearance :
MR
PH PATHAK for Petitioner(s) : 1 - 5.
MR SHAKEEL A QURESHI for
Respondent(s) : 1-3,
MR SHALIN MEHTA for MR MANOJ SHRIMALI for
Respondent(s)
4-5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 21/09/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Mr. Pathak, learned counsel appearing for the petitioners,
Mr. Qureshi, learned counsel appearing for respondents nos. 1 to 3
and Mr. Shalin Mehta, learned counsel appearing for Mr. Shrimali, for
respondents nos. 4 and 5.
2. This
petition has been filed by the petitioners challenging the judgment
and order dated 18.07.2000 passed in O.A. No. 149 of 2000 and
judgment and order dated 17.10.2000 passed in Review Application No.
49 of 2000.
3.
The main grievance of the petitioners is that when the selection of
‘Peon’ was held, the petitioners were selected candidates. Their
selection was challenged by respondents nos. 4 and 5 on the ground
that proper procedure was not followed and that none of the selected
candidates were impleaded. Therefore the candidates were impleaded as
party in OA No. 149 of 2000. The Tribunal by order dated 18.07.2000
allowed the said OA and set aside the selection of the present
petitioners on the ground that selection procedure was not properly
followed and was ab-initio. Since the petitioners were not
heard, they preferred an application for review being Review
Application no. 49 of 2000 inter alia contending that they
were the necessary party and without hearing them the selection could
not be quashed by the Tribunal. The Tribunal vide order dated
17.10.2000 rejected the review application on the ground that there
is no error apparent on the face of the record and the scope of
review being very limited, no interference was called for in the
judgment of the Tribunal.
3.1. Mr.
Mehta, learned counsel appearing with Mr. Shrimali, for respondents
nos. 4 and 5 urged that the writ petition filed by the Union of India
has been dismissed summarily.
4. Having
heard the learned counsel for the respective parties, we are of the
opinion that the petitioners had no choice except to bring to the
notice of the Tribunal by way of filing review application that they
were the necessary party and in any case the proper parties and
without impleading them or some of the selected candidates, the
Tribunal could not set aside the entire selection of the selected
candidates and prima facie the Tribunal rejected the review
application. The Apex Court in the case of GRIJESH SHRIVASTAVA &
ORS. v. STATE OF MADHYA PRADESH & ORS. (2010) 10 SCC 707, in
paragraphs nos. 20 to 23 has held as under :-
“20.
The next point urged by the appellants, that they had never been
impleaded in the two petitions, even as orders passed by the High
Court had a direct effect on their livelihood, also goes to the root
of the matter as it violates the principle of audi alteram partem.
21.
This Court in Prabodh Verma and others vs.State of Uttar Pradesh and
others,[(1984) 4 SCC 251 at p. 273 para 28]
“28. …… 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…”.
22.
Similarly this Court in Ramarao and others vs. All India Backward
Class Bank Employees Welfare Association and others,[(2004) 2 SCC 76,
at pp 86-87 said (SCC para 27)
“27.
……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.
23.
Also in B. Ramanjini and others v. State of Andhra Pradesh and
others, [(2002) 5 SCC 533 at pp 542-43, para 9]
“19.
Selection of certain teachers was challenged without impleading them,
this Court held, “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.”
5. In
view of the aforesaid decision, some of the selected candidates ought
to have been impleaded as respondents in OA No. 149 of 2000. In their
absence the selection could not be quashed. In this view of the
matter, since no selected candidates were employed with the
respondents, the order of the Tribunal passed in OA No 149 of 2000
and the order passed in Review Application cannot be maintained.
6. In
the result, the petition succeeds and is allowed. The judgment and
order dated 18.07.2000 passed in O.A. No. 149 of 2000 and judgment
and order dated 17.10.2000 passed in Review Application No. 49 of
2000 are quashed and set aside. The Tribunal is directed to decide
the matter afresh after permitting the petitioners to implead
selected candidates and respondents and after serving the
respondents. We made it clear that we have not decided the matter on
merits, which shall be decided by the Tribunal. However, the
appointment of the selected candidates which was allowed by this
Court by way interim order shall be subject to final decision of the
Tribunal. Rule is made absolute to the above extent with no order as
to costs.
[V.M.
SAHAI, J.]
[K.S.
JHAVERI, J.]
/phalguni/
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