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Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 4455-4458 OF 2009

Ranjan Kumar etc. etc.     ... Appellants

Versus

State of Bihar & Ors.             ...Respondents

WITH

CIVIL APPEAL NOS. 4459-4462, 4463-4466, 4471-4474,  4467-4470, 4477-4480 AND 4475-4476 OF 2009

J U D G M E N T

Dipak Misra, J.

In these appeals, assail is to the judgment and order  

dated 19.9.2003 passed by the High Court of Judicature at  

Patna in  a batch of  letters  patent appeals  whereby the  

Division Bench has concurred with the opinion expressed  

by the learned Single Judge wherein he had quashed the

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appointment of a number of appointees in respect of the  

post, namely, Medical Laboratory Technician (MLT) on the  

ground  that  the  procedure  adopted  for  selection  was  

vitiated as the candidates were selected only by interview  

without holding any written test though the past practice  

was  to  conduct  an  examination  and  thereafter  hold  

interview for selection; that the interview was held in a  

hurried  manner;  and  that  the  posts  being  technical  in  

nature, holding of an examination was warranted.      

2. We need not state the facts in detail.  Suffice it to say  

that  in  pursuance  of  an  advertisement  issued  by  the  

concerned  department  of  the  State  Government,  182  

persons  were  appointed  on  the  post  of  MLT.   The  writ  

petitioners who participated in the interview could not be  

selected  as  they  obtained  lesser  marks  than  the  

successful candidates.  Their failure necessitated them to  

knock  at  the  doors  of  the  High  Court  and  the  learned  

Single Judge, as has been stated hereinbefore, accepting  

the grounds put forth, quashed the selection.    

4. Learned counsel for the appellants have raised two  

principal contentions, first, most of the appellants herein  

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were not impleaded as respondents before the High Court  

and without taking note of the said aspect the High Court  

has  invalidated  the  selection  and  nullified  their  

appointments which is violative of the principles of natural  

justice; and second, all the private respondents who were  

writ petitioners before the High Court having participated  

in the interview which was the procedure adopted, could  

not  have challenged the said process in  a  court  of  law  

because of their failure, for the same is not permissible in  

law.   

4. On a perusal of the orders impugned, we find that  

only 40 persons were made respondents before the High  

Court and hardly a few appointees filed applications for  

intervention.  It is well settled in law that no adverse order  

can be passed against persons who were not made parties  

to the litigation.  In this context, we may refer with profit  

to the authority in Prabodh Verma and others v. State  

of Uttar Pradesh and others1, wherein a three-Judge  

Bench was dealing with the constitutional validity of two  

Uttar Pradesh Ordinances which had been struck down by  

the  Division  Bench of  the  Allahabad High  Court  on  the  1 (1984) 4 SCC 251

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ground  that  the  provisions  therein  were  violative  of  

Articles 14 and 16(1) of the Constitution of India.  In that  

context, a question arose whether the termination of the  

services of the appellants and the petitioners therein as  

secondary  school  teachers  and  intermediate  college  

lecturers  following  upon  the  High  Court  judgment  was  

valid  without  making  the  said  appointees  as  parties.  

Learned Judges observed that the writ petition filed by the  

Sangh suffered from two serious,  though not  incurable,  

defects;  the  core  defect  was  that  of  non-joinder  of  

necessary parties, for respondents to the Sangh’s petition  

were the State of Uttar Pradesh and its concerned officers  

and  those  who  were  vitally  concerned,  namely,  the  

reserve pool teachers, were not made parties — not even  

by  joining  some  of  them  in  a  representative  capacity,  

considering that their number was too large for all of them  

to be joined individually  as respondents.  Thereafter  the  

Court ruled thus: -

“The matter, therefore, came to be decided  in their absence. 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 or at least by  some of them being before it as respondents  

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in a representative capacity if their number  is  too  large,  and,  therefore,  the  Allahabad  High Court ought not to have proceeded to  hear and dispose of the Sangh’s writ petition  without  insisting  upon  the  reserve  pool  teachers  being  made  respondents  to  that  writ petition, or at least some of them being  made  respondents  in  a  representative  capacity, and had the petitioners refused to  do so, ought to have dismissed that petition  for non-joinder of necessary parties.”

5. In the case at hand neither any rule nor regulation  

was challenged.  In fact, we have been apprised that at  

the time of selection and appointment there was no rule  

or regulation.   A procedure used to be adopted by the  

administrative instructions.  That apart, it was not a large  

body of appointees but only 182 appointees.  Quite apart  

from  that  the  persons  who  were  impleaded,  were  not  

treated  to  be  in  the  representative  capacity.   In  this  

regard,  it  is  profitable  to  refer  to  some authorities.   In  

Indu Shekhar Singh and others v. State of U.P. and  

others2 it has been held thus: -

“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.”

2 (2006) 8 SCC 129

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6. In  Km.  Rashmi  Mishra  v.  M.P.  Public  Service  

Commission  and others3,  after  referring  to  Prabodh  

Verma (supra)  and  Indu Shekhar  Singh (supra),  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.

7. In  Tridip Kumar Dingal and others v.  State of  

West Bengal and others4, 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.

3 (2006) 12 SCC 724 4 (2009) 1 SCC 768

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8. In  Public  Service  Commission,  Uttaranchal  v.  

Mamta Bisht and others5 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: -

“....in Udit  Narain  Singh  Malpaharia v. Board  of  Revenue6,  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  Code of  Civil  Procedure are not applicable in writ jurisdiction  by virtue of the provision of Section 141 Code of  Civil  Procedure  but  the  principles  enshrined  therein  are  applicable.  (Vide Gulabchand  Chhotalal  Parikh v. State  of  Gujarat7, Babubhai  Muljibhai  Patel v. Nandlal  Khodidas  Barot8  and Sarguja Transport Service v. STAT9)”

9. In  J.S.  Yadav  v.  State  of  Uttar  Pradesh  and  

another10 it has been held that no order can be passed  

behind the back of a person adversely affecting him and  5 (2010) 12 SCC 204 6 AIR 1963 SC 786 7 AIR 1965 SC 1153 8 (1974) 2 SCC 706 9 (1987) 1 SCC 5 10 (2011) 6 SCC 570

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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.  It was further  

held  that  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.

10. In Vijay Kumar Kaul and Ors. v. Union of India  

and Ors.11 it has been ruled thus:

“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.”

11. Recently  in  State  of  Rajasthan  v.  Ucchab  Lal  

Chhanwal12, it has been opined that: -

“Despite  the  indefatigable  effort,  we  are  not  persuaded  to  accept  the  aforesaid  

11 (2012) 7 SCC 610 12 (2014) 1 SCC 144

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preponement,  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.”

12. 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 petitioners.

13. The  next  submission  which  has  been  presented  

before us is that when the respondents had appeared in  

the interview knowing fully well the process, they could  

not  have resiled later  on or  taken a somersault  saying  

that  the  procedure as  adopted by the department  was  

vitiated.   In  this  connection,  it  is  apt  to  refer  to  the  

principle  stated  in  Om  Prakash  Shukla  v.  Akhilesh  

Kumar Shukla and others13, in the said case a three-

Judge Bench, taking note of the fact that the petitioner in  

the  writ  petition  had  appeared  for  the  examination  

without  protest  and  filed  the  petition  only  after  he  

realized that he would not succeed in the examination,  

13 1986 (Supp) SCC 285

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held that the writ petitioner should not have been granted  

any relief by the High Court.

14. In  this  context,  we  may  quote  a  passage  from  

Madan Lal v. State of J & K14 with profit: -

“It is now well settled that if a candidate takes a  calculated chance and appears at the interview,  then, only because the result of the interview is  not palatable to him, he cannot turn round and  subsequently  contend  that  the  process  of  interview was unfair or the Selection Committee  was not properly constituted. In the case of Om  Prakash Shukla v. Akhilesh Kumar Shukla it has  been  clearly  laid  down  by  a  Bench  of  three  learned  Judges  of  this  Court  that  when  the  petitioner appeared at the examination without  protest and when he found that he would not  succeed  in  examination  he  filed  a  petition  challenging  the  said  examination,  the  High  Court should not have granted any relief to such  a petitioner.”

15. In  Chandra  Prakash  Tiwari  and  others  v.  

Shakuntala Shukla and others15,  the Court observed  

as follows: -

“34. There is thus no doubt that while question  of any estoppel by conduct would not arise in  the contextual  facts  but  the law seems to be  well  settled  that  in  the  event  a  candidate  appears  at  the  interview  and  participates  therein, only because the result of the interview  is not “palatable” to him, he cannot turn round  and subsequently contend that the process of  

14 (1995) 3 SCC 486 15 (2002) 6 SCC 127

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interview was unfair or there was some lacuna  in the process.”

16. In  Union of India & Ors.  v.  S. Vinod Kumar &  

Ors.16,  the Court  reiterated the principle  that  it  is  also  

well settled that those candidates who had taken part in  

the selection process knowing fully well the procedure laid  

down therein were not entitled to question the same.

17. Thus, the twin contentions proponed by the learned  

counsel  for  the  appellant  deserve  acceptation  and,  

accordingly,  we allow the appeals and,  ex consequenti,  

the judgment and order passed by the Division Bench in  

the batch of appeals and the judgment and order passed  

by the learned Single Judge in C.W.J.C. No. 2130 of 1999  

are set aside.  There shall be no order as to costs.      

…………….……………….J. [Dipak Misra]

….………………………….J.                                               [M.Y. Eqbal]

New Delhi; April 16, 2014.   

16 AIR 2008 SC 5

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