Shyam Lal vs State of U.P.

Shabihul Hasnain, J.—Heard counsel for the appellant Sri Pankaj Khare and Sri Mukund Tiwari for the State and S/Sri P.K. Srivastava and O.P. Srivastava for the private respondents.

Under challenge is the order passed by learned Single Judge ( Hon''ble Rakesh Sharma, J. ) dated 23rd September 2008 by means of which the seniority list already finalized and circulated on 19th October 2006 of the Regional Inspectors ( Technical ) of the U.P. Transport Department has been set aside and further a direction has been issued that the case of the private respondent be considered against available vacancies meant for Scheduled Caste candidates w.e.f. 9th September 2008 i.e. the date when admittedly such a vacancy infact was available.

The appellants were impleaded as opposite party nos. 3, 4, and 5 in the writ petition and were directly affected by the order which was claimed in the relief clause of the writ petition. Admittedly and provenly from the record at no point of time any order was passed for issuing notices to the respondents to the writ petition i.e. the present appellants, therefore, since the notices were never issued they were obviously not served. Naturally they were also not aware about the pendency of the writ petition.

Learned counsel for the appellants submitted that in the absence of notices being issued to the private respondents the order passed by the learned Single Judge can not be sustained and deserves to be set aside only on this ground.

Sri P.K. Srivastava assisted by Sri O.P. Srivastava, however, defended the order by saying that it is not necessary for the court to issue notices to the private respondents impleaded in the writ petition in each and every case and that it is the discretion of the court either to issue notice to the private respondents or not, therefore, the order can not be said to be bad in law merely because the notices were not ordered to be issued to the private respondents namely the present appellants. In the alternative he also submitted that if any prejudice has been caused to the appellants because of the impugned order, they can place their case before this court in Special Appeal and the matter may be decided finally.

We have considered the aforesaid arguments and are of the view that the arguments aforesaid have been raised only for being rejected straight away. In case a person is impleaded in the writ petition as respondent primafacie it shows that the petitioner himself was conscious that the impleadment of such a person is necessary, since he is claiming a relief which would affect him in case the writ petition is allowed. Even if a person is not impleaded as respondent in the writ petition, still he can be aggrieved by an order passed by the court. In such a situation if the court finds during the proceedings that some person is likely to be affected who is not impleaded, it can require that person to be impleaded or can refuse the relief if it finds deliberate nonimpleadment of the necessary party. The court will be justified in throwing the petition on this ground alone if the petitioner fails to implead such a necessary party, even after being pointed out.

In a situation like the present case where the seniority list already settled and circulated was challenged in which the appellants had been placed over and above the respondent and that his claim of promotion on the higher post was either rejected or not considered when he became eligible, in the Scheduled Caste quota, were such questions which if decided in favour of the respondent would certainly affect adversely the appellant''s interest. It is not that the respondent was not aware of this position and, therefore, he himself impleaded the appellants as respondents to the writ petition. He also knew that no orders have been passed for issuing notices to the private opposite parties but even then this was not pointed out by the respondent or his counsel before the learned Single Judge.

The respondent can not show his ignorance about the non issuance of notices to the private opposite parties as he had never taken any steps for service upon the opposite parties. Had there been an order for issuing notices, the respondent would have taken steps and he would have known that whether service of notice has been effected upon the private opposite parties to the writ petition or not. The very fact that the respondent never took any steps goes to show that he was having full knowledge of the fact that the notices have not been issued to the present appellants who were impleaded as opposite parties.

Be that as it may. The fact remains that the orders were not passed for issuance of notices to the appellants nor any steps were taken for service and obviously they were not served when the matter was finally decided by the learned Single Judge.

The argument of the learned counsel for the respondent that it is the discretion of the court to either issue notice to the opposite parties in the writ petition or not is bereft of any merit. The doctrine of audi alteram paltram and the rules of natural justice would stand grossly violated in case notices are not issued to the opposite parties who are impleaded in the writ petition and any order is passed which is likely to affect them adversely. Of course if a party is impleaded in a proforma manner without affecting his rights irrespective of the fate of the writ petition, the court may in its discretion say that the notices may not be issued to such a respondent but there can not be any reason or occasion where the court can at its discretion refuse to issue notice to opposite parties impleaded in the writ petition who is likely to be affected by the order passed in the writ petition.

It is not in the discretion of the court but the requirement of law apart from the requirement of principles of natural justice that the court is bound to issue notice to an affected party who is already impleaded unless any cogent reason is recorded for not issuing the notice to the opposite parties in the writ petition. We fail to appreciate the arguments raised by Sri P.K. Srivastava more so when he has not been able to place any material in support of this argument nor any case law nor any authority.

In case such a discretion is exercised by the High Court or by any court for granting relief to the petitioner or to the plaintiff who comes to the court without issuing notices to the respondent or the defendants it would be against all legal jurisprudence and the system of delivering justice prevailing in our country.

It was the duty of the respondent to point out to the court that the notices have not been ordered to be issued to the opposite parties and, therefore, first notice be issued and then only the matter be considered. The counsel can not take shelter that he was not aware of the nonissuance of the notice. The record of the writ petition ought to have been looked into before proceeding with the case, particularly when private opposite parties were impleaded in the writ petition and none had appeared to defend on their behalf. The Bench Secretary concerned also should have informed the court about the service report. The ordersheets are maintained in the files only for the purpose of knowing as to what orders have been passed and whether the service has been affected on the concerned parties or not. The Bench Secretary failed in his duty, in not bringing the aforesaid fact, to the notice of the learned Single Judge, and the learned Single Judge also proceeded to decide the writ petition, without verifying the fact of service being affected upon the opposite parties.

So far the argument of learned counsel for the respondent that the appeal may be heard on merits is concerned that also can not be accepted. The writ petition is decided on the basis of the affidavits. No opportunity has been given to the present appellants to file counter affidavit. This court sitting in Special Appeal jurisdiction is not supposed to decide the writ petition merely because the order passed by the learned Single Judge can not be sustained under law. The parties were supposed to have full opportunity for filing counter affidavit and the rejoinder affidavit. It was thereafter the matter would have been decided by the learned Single Judge. If any party fails to file necessary affidavits it would not allow to keep the matter pending indefinitely and the matter can be decided on the basis of existing materials, as per the discretion of the court.

We, therefore, do not find any merit in the contentions raised by learned counsel for the respondent. The order passed by the learned Single Judge can not be sustained under law, the same having been passed without issuance of any notice to the opposite parties who were already impleaded in the writ petition, particularly when the order passed therein unsettles the existing seniority. The order, therefore, is set aside. The appeal is allowed.

Let the writ petition be listed in the first week of December 2008 before the learned Single Judge having jurisdiction. The present appellants who are impleaded as respondents in the writ petition may file counter affidavit within three weeks.