J.S.YADAV Vs STATE OF U.P
Bench: P. SATHASIVAM,B.S. CHAUHAN, , ,
Case number: C.A. No.-003299-003299 / 2011
Diary number: 18468 / 2009
Advocates: SHILPA SINGH Vs
GUNNAM VENKATESWARA RAO
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3299 OF 2011 (Arising out of SLP (C) NO. 16427 OF 2009)
J.S. Yadav …Appellant
Versus State of U.P. & Anr. …Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. Leave granted.
2. This appeal is focused animadverting upon the judgment and
order dated 21.4.2009 passed by the High Court of Judicature at
Allahabad in Civil Misc. Writ Petition No. 27315 of 2008, by which
the High Court dismissed the writ petition filed by the appellant,
challenging the Notification dated 28.5.2008, by which on the date of
reconstitution of the U.P. State Human Rights Commission
(hereinafter referred to as `Commission’), the appellant was declared
to have ceased to hold the office as a Member of the said
Commission.
3. Compendiously and concisely, the relevant facts necessary and
germane to the disposal of this appeal run as under:
(A) Appellant entered the U.P. Judicial Services as Munsiff
in the year 1972 and was promoted to the post of Additional District
Judge in the year 1985 and further promoted to the post of District
Judge w.e.f. 14.1.2003.
(B) The appellant while working as a Principal Secretary
and Legal Remembrancer, Government of U.P., was appointed as a
Member of the Commission on 29.6.2006 for a period of five years
i.e. till 30.6.2011. The appellant joined on the said post on 1.7.2006.
(C) Sections 21, 23, 25 and 26 of The Protection of Human
Rights Act, 1993 (hereinafter called `the Act 1993’), stood amended
vide The Protection of Human Rights (Amendment) Act, 2006
(hereinafter referred to ‘Amendment Act 2006’). The said
amendment came into force on 23.11.2006.
(D) After completion of the tenure by the then Chairperson
of the Commission and other Members in October 2007, the
appellant remained the lone working Member of the Commission.
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The State of U.P. issued Notification dated 28.5.2008 to the effect
that appellant ceased to hold the office as a Member of the
Commission.
(E) The appellant challenged the said Notification dated
28.5.2008 by filing Writ Petition No. 27315 of 2008, mainly on the
grounds that he had been appointed for a tenure of five years and that
period could not be curtailed. The amendment Act 2006 could not
take away the accrued rights of the appellant as he had been
appointed prior to the said amendment.
(F) The appellant did not implead anyone except the State of
U.P. and its Principal Home Secretary as respondents in the said writ
petition. However, the vacancies on the post of the Chairperson as
well as of the Members of the Commission were filled up on
6.6.2008 and, in view thereof, no interim order could be passed by
the High Court.
(G) The High Court dismissed the writ petition vide
impugned judgment and order dated 21.4.2009. Hence, this appeal.
4. Shri V. Shekhar, learned senior counsel with Ms. Shilpa
Singh, appearing for the appellant, has submitted that as the appellant
was holding the tenure post for a period of five years, he was entitled
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to continue till 30.6.2011; the Amendment Act 2006 could not be
applied retrospectively and it could not curtail the tenure of the
persons who had been appointed and continuing as a
Chairperson/Member of the Commission prior to the commencement
of the amended provisions in force. Appointments subsequent to
22.11.2006, could be made as per the provisions of the Amendment
Act 2006. Even otherwise, the appellant fulfilled the eligibility of
having seven years experience as a District Judge required under the
Amendment Act 2006, in view of the fact that the U.P. Higher
Judicial Service Rules, 1975 (hereinafter referred to as `the Rules
1975’), clearly provided that there would be a single cadre
comprising the posts of District and Sessions Judges and Additional
District and Sessions Judges. More so, Article 236(a) of the
Constitution of India clearly stipulates that District Judge includes
the Additional District Judge and Assistant District Judge. Thus, the
appellant was fully eligible/qualified to be appointed afresh as a
member of the Commission even as per the Amendment Act 2006.
The appellant did not incur any disability during the period of
holding the post as a Member of the Commission, thus, could not be
removed from the service, except in the manner set out under Section
23 of the Act 1993. More so, it was not a case where the
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Commission itself stood dissolved/disbanded as a whole and new
Commission has been constituted under the amended provisions of
law. Thus, the impugned judgment and order is liable to be set aside.
The appeal deserves to be allowed.
5. Per contra, Shri Pramod Swarup, learned senior counsel
appearing on behalf of the respondents, has opposed the appeal
vehemently contending that High Court could not have entertained
the writ petition on merit as no relief could be granted to the
appellant for the reason that fresh appointments on the posts of
Member of the Commission had been made on 6.6.2008 itself.
During the pendency of the writ petition, the appellant did not amend
his petition impleading the newly appointed member(s), thus,
petition was liable to be dismissed only on the ground of non-joinder
of necessary parties. Even this Court cannot grant pecuniary benefits
to the appellant for the reason that the public exchequer of the State
of U.P. cannot be fastened with liability of the payment of salary to
two persons on one post. The appellant suffered the disability by
virtue of operation of the amended law and ceased to be competent to
hold the post in view of the Amendment Act 2006. Thus, he has
rightly been declared to have ceased to hold the post as a Member of
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the Commission. The Legislature is competent to alter the service
conditions of an employee unilaterally, and that too, with a
retrospective effect. The appellant has submitted before the High
Court that he did not want any relief so as to dislodge the newly
appointed Member(s) of the Commission and was seeking only a
declaration that he had unlawfully been discontinued, so as to avoid
to further exercise the power so vested in the State Government.
Thus, the matter remained purely academic before the High Court.
Peculiar facts of the case do not warrant deciding the appeal on
merit. Even otherwise, the appeal lacks merit and is liable to be
dismissed.
6. We have considered the rival submissions made by learned
counsel for the parties and perused the records.
7. Relevant provisions of the Act 1993 and provisions inserted by
Amendment Act 2006 read as under:
UNDER ACT NO. 1 OF 1994 (AS IT STOOD ON THE DATE OF APPOINTMENT OF THE APPELLANT)
Under the Amendment Act 2006 (w.e.f. 23.11.2006)
SECTION 21: (2) The State Commission shall consist of
(2) The State Commission shall, with effect from such date as the
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(a) ………………. (b) one member who is, or has been, a Judge of a High Court. (c) one member who is, or has been, a district Judge in that State. SECTION 23:
23. Removal of a Member of the State Commission – (1) Subject to the provisions of Sub- section (2), the Chairperson or, any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved mis-behaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be ought on any such ground to be removed.
…………………… SECTION 26:
26. Terms and conditions of service of Members of the State
State Government may by Notification specify, consist of:- (a) ………………………… (b) one member who is, or has been a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge;
23. [Resignation and Removal of Chairperson or a Member of the State Commission] [(1) The Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed to the Governor, resign his office. (1A) Subject to the provisions of Sub-section (2), the Chairperson or, any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved mis-behaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be ought on any such ground to be removed.
……………………….
26. [Terms and conditions of service of Chairperson and
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Commission – The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed by the State Government.
Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment.
Members of the State Commission- The salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be such as may be prescribed by the State Government.
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Members shall be varied to his disadvantage after his appointment. (Emphasis added)
8. The other legal provisions which may be relevant for
consideration of the Court are as under:
(i) Article 236(a) of the Constitution of India reads as under:
“(a) the expression “district judge” includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge”.
(ii) Section 3(17) of the General Clauses Act, 1897 (hereinafter
referred to as `the Act 1897’), provides that “District Judge” means:
“(17) “District Judge” shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its
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ordinary or extraordinary original civil jurisdiction.”
Section 6: Effect of repeal- Where this Act or any Central
Act or Regulation made after the commencement of this Act, repeals
any enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not -
(a) ………………………
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) ………………….. (e) …………………..
(iii) Rule 4 of the Rules, 1975 reads:
Strength of the Service: (1) The service shall consist of a
single cadre comprising the posts of –
(a) District and Sessions Judges, and
(b) Additional District and Sessions Judges. (Emphasis added)
9. Against the aforesaid backdrops and in view of the aforesaid
statutory provisions, it has been canvassed on behalf of the appellant
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that as the experience of Additional District Judge can also be taken
into consideration as that of a District Judge, the appellant possessed
the eligibility even under the amended provisions and thus, was not
liable to be dislodged
The High Court dealt with the issue elaborately and came to
the conclusion that ordinary and natural meaning is not to be
controlled by supposed intention of the Legislature. A court cannot
stretch the language of a statutory provision to bring it in accord with
the supposed legislative intent underlying it, unless the words are
susceptible of carrying out that intention. Thus, considering the
object and purpose of the amendment, it cannot be held that
experience of the appellant as Additional District Judge could also be
taken into consideration as that of a District Judge. Much reliance
has been placed by Shri Shekhar, learned senior counsel for the
appellant on the language of Rule 4 of the Rules 1975 that there is a
single cadre comprising the posts of District and Sessions Judges and
Additional District and Sessions Judges. Thus, there is no basic
difference between the said two posts.
10. The aforesaid submission seems to be very attractive but has
no substance for the reason that a cadre generally denotes a strength
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of a service or a part of service sanctioned as a separate unit. It also
includes sanctioned strength with reference to grades in a particular
service. Cadre may also include temporary, supernumerary and
shadow posts created in different grades. The expression “cadre”,
“posts” and “service” cannot be equated with each other. (See:
Union of India v. Pushpa Rani & Ors., (2008) 9 SCC 242; and
State of Karnataka & Ors. v. K. Govindappa & Anr., AIR 2009
SC 618). There is no prohibition in law to have two or more separate
grades in the same cadre based on an intelligent differential.
Admittedly, the post of District Judge and Additional District Judge
in the State of U.P. is neither inter-changeable nor inter-transferable.
The aforesaid Rules merely provide for an integrated cadre for the
aforesaid posts. Thus, the submission is liable to be rejected being
preposterous.
11. Same remains the position so far as the provisions of Article
236(a) of the Constitution of India are concerned. The said Article
relates to the procedure of appointment on the post of the District
Judge and other Civil Judicial posts inferior to the post of District
Judge. The definition in Article 236 covers the higher section of the
State Judicial Service both in the civil and criminal sides. (See: All
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India Judges’ Association v. Union of India & Ors., AIR 1992 SC
165).
12. In such a fact-situation, we do not see any cogent reason to
take a view contrary to the same for the reason that in case the
Legislature in its wisdom has prescribed a minimum experience of
seven years as District Judge knowing it fully well the existing
statutory and constitutional provisions, it does not require to be
interpreted ignoring the legislative intent. We cannot proceed with an
assumption that Legislature had committed any mistake enacting the
said provision. Clear statutory provision in such a case is required to
be literally construed by considering the legislative policy. Thus, no
fault can be found with the impugned judgment and order of the
High Court on this count.
13. The question does arise as to whether the State could issue the
Notification making a declaration that the appellant ceased to be the
member of the Commission and whether the said Notification could
take away the accrued rights of the appellant?
14. The appellant had joined as a member of the Commission vide
order dated 29.6.2006 under the Act 1993. Section 26 of the Act
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1993 specifically provided that neither the salary and allowances nor
other terms and conditions of service of a member shall be varied to
his dis-advantage after his appointment. The submission so made on
behalf of the appellant in this regard has not been considered by the
High Court taking into consideration the provisions of Section 26 at
all. As the appellant was fully eligible and competent to be
appointed under the Act 1993 and he had duly been appointed and
worked for about 2 years including the period after the
commencement of the Amendment Act 2006, the declaration that he
ceased to hold the post as a Member of the Commission, is in
flagrant violation of the statutory provisions contained in Section 26
of the Act 1993 itself.
15. Needless to say that “the expression `terms of service’ clearly
includes tenure of service”. (Vide: Dr. D.C. Saxena v. State of
Haryana & Ors., AIR 1987 SC 1463).
16. The view taken by the High Court in this respect is not in
consonance with the statutory provisions. The amendment would
apply prospectively, particularly in view of the fact that the
Amendment Act 2006 does not expressly or by necessary implication
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suggest that such a drastic step is permissible giving retrospective
effect to the Amendment Act 2006.
17. An employee appointed for a fixed period under the Statute is
entitled to continue till the expiry of the tenure and in such a case
there can be no occasion to pass the order of superannuation for the
reason that the tenure comes to an end automatically by afflux of
time. (Vide: Dr. L.P. Agarwal v. Union of India & Ors., AIR 1992
SC 1872; and State of U.P. & Anr. v. Dr. S.K. Sinha & Ors., AIR
1995 SC 768).
18. In P. Venugopal v. Union of India, (2008) 5 SCC 1, this
Court considered the case wherein the Director of All India Institute
of Medical Sciences, New Delhi, having been duly appointed for a
period of five years had been removed prior to completion of the said
period. The court observed as under:
“Service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise at all….. The appointment is for a tenure to which the principle of superannuation does not apply. ‘Tenure’ means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and when it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person
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does not superannuate. He only comes out of the office on completion of his tenure.” (Emphasis added)
19. Justifiable grounds, as referred to hereinabove by this Court
in P. Venugopal (supra), means the grounds of incurring any
disqualification while holding the post i.e. the grounds incorporated
in Section 23 of the Act 1993. If we give the dictionary meanings to
the said expression, it means: “done on adequate reasons sufficiently
supported by credible evidence, when weighed by unprejudiced
mind, guided by common sense and by correct rules of law. The
showing in court that one had sufficient reason for doing that which
he is called to answer; the ground for such a plea. Lexically, the
sense is clear. An act is “justified by law” if it is warranted, validated
and made blameless by law”. (Vide: Raj Kapoor v. Laxman, AIR
1980 SC 605).
20. “The word 'vested' is defined in Black's Law Dictionary (6th
Edition) at page 1563, as vested; fixed; accrued; settled; absolute;
complete. Having the character or given the rights of absolute
ownership; not contingent; not subject to be defeated by a condition
precedent.' Rights are 'vested' when right to enjoyment, present or
prospective, has become property of some particular person or
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persons as present interest; mere expectancy of future benefits, or
contingent interest in property founded on anticipated continuance of
existing laws, does not constitute vested rights. In Webster’s
Comprehensive Dictionary (International Edition) at page 1397,
'vested' is defined as (law held by a tenure subject to no contingency;
complete; established by law as a permanent right; vested interest.”
(See: Mosammat Bibi Sayeeda & Ors. etc. v. State of Bihar & Ors. etc.,
AIR 1996 SC 1936).
21. The word “vest” is normally used where an immediate fixed
right in present or future enjoyment in respect of a property is
created. With the long usage the said word “vest” has also acquired a
meaning as “an absolute or indefeasible right”. It had a “legitimate”
or “settled expectation” to obtain right to enjoy the property etc.
Such “settled expectation” can be rendered impossible of fulfilment
due to change in law by the Legislature. Besides this, such a “settled
expectation” or the so-called “vested right” cannot be countenanced
against public interest and convenience which are sought to be
served by amendment of the law. (Vide: Howrah Municipal Corpn.
& Ors. v. Ganges Rope Co. Ltd. & Ors., (2004) 1 SCC 663).
22. Thus, “vested right” is a right independent of any contingency.
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Such a right can arise from a contract, statute or by operation of law.
A vested right can be taken away only if the law specifically or by
necessary implication provide for such a course.
23. The appellant had been appointed under the provisions of the
Act 1993 which did not require seven years’ experience as a District
Judge. In the instant case, the Amendment Act 2006 came into force
on 23.11.2006. The State of U.P. did not take any step for
discontinuation of the appellant upto May 2008 on the ground that he
did not possess the eligibility as per the Amendment Act 2006.
24. The Legislature is competent to unilaterally alter the service
conditions of the employee and that can be done with retrospective
effect also, but the intention of the Legislature to apply the amended
provisions with retrospective effect must be evident from the
Amendment Act itself expressly or by necessary implication. The
aforesaid power of the Legislature is qualified further that such a
unilateral alteration of service conditions should be in conformity
with legal and constitutional provisions. (Vide: Roshan Lal Tandon
v. Union of India & Ors., AIR 1967 SC 1889; State of Mysore v.
Krishna Murthy & Ors., AIR 1973 SC 1146; Raj Kumar v. Union
of India & Ors., AIR 1975 SC 1116; Ex-Capt. K.C. Arora & Anr.
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v. State of Haryana & Ors., (1984) 3 SCC 281; and State of
Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR 1984
SC 161).
25. In Union of India & Ors. V. Tushar Ranjan Mohanty &
Ors., (1994) 5 SCC 450, this Court declared the amendment with
retrospective operation as ultra vires as it takes away the vested
rights of the petitioners therein and thus, was unreasonable, arbitrary
and violative of Articles 14 and 16 of the Constitution. While
deciding the said case, this Court placed very heavy reliance on the
judgment in P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR
1987 SC 1676, wherein this Court has held as under:
“…the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution.”
26. In the instant case, the Amendment Act 2006 is not under
challenge. However, the issue agitated by the appellant has been that
the Legislature never intended to apply the amended provisions with
retrospective effect and therefore, the appellant could not be
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discontinued from the post. His rights stood protected by the
provisions of Section 6 of the Act 1897.
The issue of applicability of the said provision has been
considered by this Court in State of Punjab v. Mohar Singh Pratap
Singh, AIR 1955 SC 84; M.S. Shivananda v. The Karnataka State
Road Transport Corpn. & Ors., AIR 1980 SC 77; Commissioner
of Income Tax U.P. v. M/s. Shah Sadiq & Sons, AIR 1987 SC
1217; and Vishwant Kumar v. Madan Lal Sharma & Anr., AIR
2004 SC 1887, wherein it has been held that the rights accrued under
the Act/Ordinance which stood repealed would continue to exist
unless it has specifically or by necessary implication been taken
away by the repealing Act.
27. This Court in State of Punjab & Ors. v. Bhajan Kaur &
Ors., AIR 2008 SC 2276, while dealing with the provisions of
Section 6 of the Act 1897 held as under:
“A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law…..Where a right is created by an enactment, in the absence of a clear provision in the statute, it is not to be applied retrospectively.”
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28. In Sangam Spinners v. Regional Provident Fund
Commissioner I, AIR 2008 SC 739, this court held as under:
“It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question. In terms of Section 6(c) of the General Clauses Act 1897 unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repealed.”
29. A Constitution Bench of this Court in Chairman, Railway
Board & Ors. v. C.R.Rangadhamaiah & Ors., AIR 1997 SC 3828,
dealt with the case where the pension admissible under the Rules in
force at the time of retirement was reduced with retrospective effect.
This Court held such an action to be unreasonable and arbitrary being
violative of Articles 14 and 16 of the Constitution of India. The
Court observed as under:
“It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively……………
In many of these decisions the expressions “vested rights” or “accrued rights” have been
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used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.”
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.
30. There is no specific word in the Amendment Act 2006 to
suggest its retrospective applicability. Rather the positive provisions
of Section 1 suggests to the contrary as it reads:-
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”.
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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,
date 23.11.2006 is the pointer and put the matter beyond doubt.
31. Thus, in view of the above, we do not have any hesitation to
declare that the Notification dated 28.5.2008 is patently illegal.
32. 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 Order I Rule 9, of the Code of Civil
Procedure, 1908 provide that impleadment of a necessary party is
mandatory and in case of non-joinder of necessary party, the
plaintiff/petitioner may not be entitled for the relief sought by him.
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. In case the services
of a person is terminated and another person is appointed at his place,
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in order to get relief, the person appointed at his place is the
necessary party for the reason that even if the plaintiff/petitioner
succeeds, it may not be possible for the Court to issue direction to
accommodate the petitioner without removing the person who filled
up the post manned by plaintiff/petitioner. (Vide: Prabodh Verma
& Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 1985 SC 167;
Ishwar Singh & Ors. v. Kuldip Singh & Ors., 1995 (supp) 1 SCC
179; Tridip Kumar Dingal & Ors. v. State of West Bengal &
Ors., (2009) 1 SCC 768; State of Assam v Union of India & Ors.,
(2010) 10 SCC 408; and Public Service Commission, Uttaranchal
v. Mamta Bisht & Ors., AIR 2010 SC 2613).
More so, the public exchequer cannot be burdened with the
liability to pay the salary of two persons against one sanctioned post.
33. The appellant did not implead any person who had been
appointed in his place as a Member of the Commission. More so, he
made it clear before the High Court that his cause would be
vindicated if the Court made a declaration that he had illegally been
dislodged/restrained to continue as a Member of the Commission. In
view of the above, he cannot be entitled for any other relief except
the declaration in his favour which had been made hereinabove that
the impugned Notification dated 28.5.2008 is illegal.
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34. In view of above, the appeal is allowed to the extent as
explained hereinabove. However, in the peculiar facts and
circumstances of the case, the appellant is entitled for cost to the tune
of Rs. 1 lakh which the respondents must pay within a period of two
months from today.
……………………………J. (P. SATHASIVAM)
New Delhi, ……………………………J. April 18, 2011 (Dr. B.S. CHAUHAN)
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