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RAJVIR SINGH versus COMMITTEE OF MANAGEMENT. K.D.C.

High Court of Judicature at Allahabad

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Rajvir Singh v. Committee Of Management. K.D.C. - WRIT - A No. 2949 of 1990 [2006] RD-AH 104 (2 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

State is a necessary party                             COURT NO. 34

Necessary party in general

Plead and prove

Acquiescence

Order 2 Rule 2 CPC

Interim order merges into final order      

CIVIL MISC. WRIT PETITION NO. 2949 OF 1990

Rajvir Singh       -------------            Petitioner              

Versus.

The Committee of Management,

Kisan Degree College,

Simbhaoli & Ors.        -------------          Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

The petitioner who claims to have been appointed as a Lecturer in Agronomy in the Kisan Degree College, Simbhaoli, District Ghaziabad (hereinafter referred to as a College), has filed this petition for quashing the selection made on 18th January, 1990 by the U.P. Higher Education Service Commission (hereinafter referred to as the Commission) on the post of Lecturer in Agronomy in the College, and for a direction to consider the case of the petitioner for substantive appointment under the provisions of Section 31 (3) (b) of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act).

The aforesaid College is affiliated to the Meerut University (now known as the Chaudhary Charan Singh University, Meerut). The Director of Education sanctioned a temporary post of Lecturer in Agronomy in the College under the provisions of Section 60-A of the Act. This sanction was initially up to 30th June, 1986, but was subsequently extended up to 30th June, 1987. The case of the petitioner is that he was appointed on a temporary basis on the aforesaid temporary post in accordance with the provisions of Section 31 of the Act, and that after the temporary post was converted into a permanent post by the Director of Higher Education, the petitioner was entitled for substantive appointment in view of the provisions of Section 31 (3) (b) of the Act.

We have heard the learned counsel for the petitioner and have examined the materials available on record.

Before dealing with the contentions advanced by the learned counsel for the petitioner, we wish to point out that the petitioner has neither impleaded the State of U.P., the University, or the person whose name had been recommended by the Commission for appointment against the permanent post of Lecturer in Agronomy, on which post, the petitioner claims appointment on substantive basis.

In Ranjeet Mal Vs General Manager, Northern Railway, New Delhi & Anr, AIR 1977 SC 1701, the Hon'ble Apex Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Apex Court held as under:

     "The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court."

While considering the similar view in Chief Conservator of Forests, Government of A. P.  Vs. Collector & Ors; (2003) 3 SCC 472, the Hon'ble Supreme Court accepted the submission that writ cannot be entertained without impleading the  State if relief is sought against the State. The Hon'ble Apex Court had drawn the analogy from Section 79 of the Code of Civil Procedure, 1908, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order 27 lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the Code of Civil Procedure, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

      The Court also considered the provisions of Article 300 of the Constitution which provide for legal proceedings by or against the Union of India or State and held that in  a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.

       Rule 1 of Order 27 only deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorise in that behalf and shall be verified by any person whom the Government may so appoint. The Court further held as under:-  

     "It needs to be noted here that a legal entity - a natural person or an artificial person- can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 Of order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings."

      The Court thus held that writ is not maintainable unless the Union of India or the State, as the case may be, impleaded as a party.

     A Full Bench of Kerala High Court in State of Kerala Vs. The General Manager, Southern Railway, Madras, AIR 1965 Ker 277 held that suit is not maintainable if instituted against Railway Administration. The condition precedent for its maintainability is that it must be instituted against the Union of India.

     A similar view has been reiterated by Hon'ble Apex Court in The State of Kerala Vs. The General Manager, Southern Railway, Madras, AIR 1976 SC 2538.

     A Constitution Bench of Supreme Court in The State of Punjab Vs. Okara Grain Buyers Syndicate Ltd., Okara & Anr., AIR 1964 SC 669 held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority, e.g., in a case where the property comes to it under a decree of the court.

     The Rajasthan High Court in Pusha Ram Vs. Modern Construction Co. (P) Ltd, AIR 1981 Raj 47, held that to institute a suit for seeking relief against the State, the State has to be impleaded as a party. But misdescription showing the State as Government of the State may not be fatal and the name of party may be permitted to be amended, if such an application is filed.

    Thus, we reach the inescapable conclusion that the writ is not maintainable against the Government officers or the employees of the State. It lies only against the State, and if the State is not impleaded, the writ is not maintainable. It has fairly been conceded by Shri Khare that the State is paying the salary of the petitioner and shall be responsible for all future liabilities if the petition is allowed. The instant petition is not maintainable.

The person duly selected by the Commission has also not been impleaded as a respondent, though he is a necessary party. In such a case no order adversely affecting any person can be passed behind his back. (Vide Prabodh Verma & Ors Vs. State of U.P. & Ors, AIR 1985, SC 167; Ishwar Singh & Ors  Vs. Kuldeep Singh & Ors, 1995 (Supp) 1, SCC 179; Bhagwanti & Ors. Vs. Subordinate Services Selection Board, Haryana & Anr., 1995 (Supp) 2 SCC 663; Central Bank of India Vs. S. Satyam & Ors., (1996) 5 SCC 419; J. Jose Dhanapaul Vs. S. Thomas & Ors., (1996) 3 SCC 587; Arun Tewari & Ors. Vs. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Azar Hasan & Ors. Vs. District Judge, Saharanpur & Ors, (1998) 3 SCC 246; Ram Swarup & Ors. Vs. S.N. Maira & Ors., AIR 1999 SC 941; L. Chandrakishore Singh Vs. State of Manipur & Ors., (1999) 8 S.C.C. 287; Mohd. Riazul Usman Gani & Ors. Vs. District & Sessions Judge, Nagpur & Ors., AIR 2000 SC 919; Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors., AIR 2002 SC 2090; M.P. Rajya Sahkari Bank Maryadit Vs. Indian Coffee Workers' Cooperative Society Ltd. & Ors., AIR 2002 SC 3055; and Ramrao & Ors. Vs. All India Backward Class Bank Employees Welfare Association & Ors., AIR 2004 SC 1459).

In view of the above, we are of the considered opinion that writ petition is liable to be rejected for non-joinder of necessary parties.

We have also perused the petition and we find that only a bald statement  has been made by the petitioner that he had been appointed in accordance with the provisions of Section 31 of the Act against the temporary post, sanctioned by the Director of Education. A perusal of the provisions of Section 31 of the Act shows that no appointment can be made except after advertisement of the vacancy in at least three issues of two news-papers, having adequate circulation in Uttar Pradesh, and that the Selection Committee, constituted in accordance with the provisions of Section 31, has to recommend the name to the Committee of Management, and thereafter approval of the Vice Chancellor of the concerned University has to be obtained before issuing the letter of appointment.

In the present case, it is true that the Director of Education has sanctioned a temporary post of Lecturer of Agronomy in the College, but the petitioner has neither enclosed with the petition the news-papers in which the advertisement, if any, was issued, nor has he placed the appointment letter, and nor the approval given by the Vice Chancellor of the University, if any.

Thus, we are not in a position to ascertain as to whether the proper procedure required in law had been followed and for what tenure the  appointment had been offered to the petitioner.

It  is settled proposition of law that  a party has  to plead the case and produce/adduce  sufficient evidence to substantiate his submissions  made in the petitions and in case the pleadings are not complete, the Court is under no obligation  to  entertain the pleas. In  Bharat Singh & Ors. Vs. State  of Haryana & Ors., AIR 1988 SC  2181, the Hon'ble Supreme Court has observed as under:-

"In  our opinion, when a point, which  is ostensibly a point of law is required to be  substantiated  by  facts,  the  party raising  the  point,  if he is  the  writ petitioner,  must  plead and  prove  such facts  by evidence which must appear from the  writ  petition  and  if  he  is  the respondent,  from the counter  affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded.  In a writ petition or   in the   counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."        

Similar view has been reiterated in M/s. Larsen and  Toubro  Ltd. & Ors.  Vs.  State of Gujarat & Ors., AIR 1998 SC 1608; National  Buildings Construction  Corporation Vs. S. Raghunathan  & ors., AIR  1998  SC 2779;  Ram Narain  Arora  Vs. Asha Rani  &  ors.,  (1999) 1  SCC 141; Chitra Kumari Vs.   Union  of India, AIR 2001  SC 1237;  and  State  of U.P. Vs.   Chandra Prakash Pandey, AIR 2001 SC 1298.

In   Atul   Castings   Ltd.   Vs.    Bawa Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble Apex Court observed as under:-                    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                    

Similar  view  has   been  reiterated  in Vithal N.   Shetti  &  Anr. Vs.   Prakash N. Rudrakar & Ors., (2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. Vs. P. Savithramma & Ors. (2005) 7 SCC 653; and Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252.

In view of the above, petitioner miserably failed to substantiate the foundational pleadings.

It also transpires from the records of the writ petition that the petitioner had applied for being considered for appointment on the basis of advertisement issued by the Commission. In fact, as the petitioner was not called for interview, he filed a writ petition in this Court, being Writ Petition No. 2769 of 1990, with a prayer that a direction be issued to the Commission to call the petitioner for interview for the seven posts of Lecturer in Agronomy and for not giving effect  to the selection and recommendation of the candidates by the Commission in respect of the post of Lecturer in Agronomy. This petition was dismissed by this Court by means of the judgment and order dated 30th January, 1990. The order passed by this Court is quoted below:

"Heard the learned counsel for the petitioner and the learned counsel for the Commission. The petitioner does not have the requisite qualification. We do not think it a fit case for interference under Article 227 of the Constitution of India. It is accordingly, dismissed." (Emphasis added).

This order has become final inasmuch as the petitioner has not stated that any appeal was filed by him against the aforesaid order.

In our opinion, the petitioner is not entitled to any relief.

The petitioner himself submitted an application for being considered for appointment on the post of Lecturer in Agronomy and had also filed writ petition in this Court for seeking direction to permit him to appear before the Selection Committee constituted for the said purpose. It is, therefore,  not open to the petitioner now to turn around and contend that the Commission had no authority to make any appointments as the petitioner had acquiesced in the matter.

Acquiescence, being the principle of equity, must be made applicable in a case where the order has been passed and complied with without raising any objection.

A  Constitution  Bench  of  the Hon'ble Supreme Court,  in M/s.  Pannalal Binjraj &  Ors. Vs. Union  of India & Ors., AIR 1957 SC 397, had explained  the  scope of estoppel observing  that once an order  is  passed  against a  person  and without raising  any objection he submits to  the jurisdiction  or  complies  with such  order,  he cannot be  permitted to challenge the said  order merely because  he  could not succeed there,  for the reason that such conduct of that person would disentitle  him for any relief before the  Court. A similar view  has been reiterated by the Hon'ble Supreme Court  in  Manak Lal Vs. Dr. Prem Chand Singhvi & Ors., AIR 1957 SC 425; Maharashtra State Road Transport Corporation Vs.  Balwant Regular Motor Service, Amravati  & Ors., AIR 1969 SC 329.

When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. The result of interview itself on merit, cannot be successfully challenged by a candidate who get a chance to be selected in the interview. It is thus held that these writ petitions, challenging the criterion for promotion, are not maintainable at the instance of candidates who have participated in the selection without raising any objection. (Vide Dr. G. Sarena Vs. University of Lucknow, AIR 1976 SC 2428; Maj. Chandrabhan  Singh  Vs. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Om Prakash Shukla Vs.  Akhilesh Kumar Shukla & Ors., AIR  1986  SC 1043; Madan Lal  &  Ors.   Vs. State of Jammu & Kashmir & Ors., AIR 1995 SC 1088; Union of India &  Anr. Vs. N. Chandrasekharan & Ors., AIR 1998 SC 795; and Utkal University & Ors. Vs. Dr. Nrusingha Charan Sarangi & Ors., AIR 1999 SC 943).        

In State of Punjab & Ors. Vs.  Krishan  Niwas, AIR 1997 SC 2349, the Hon'ble Apex Court examined a case where the services of the employee were terminated in exercise of the powers under Article 311 (2) (b) of the Constitution. The Appellate Court reduced the punishment imposed by the trial court. In the Departmental Appeal, the order of dismissed was also converted into that of a lesser punishment. The employee had acted upon it and joined the post. He was held not entitled to challenge  the  reduced  punishment as  he  was stopped by his conduct.

Undoubtedly, inaction in every case does not lead  to  an inference of implied consent  or acquiescence as has been held by the Hon'ble Apex Court in  P. John Chandy & Co. (P)  Ltd. Vs. John P. Thomas, AIR 2002 SC 2057.  But the Court has to examine the facts and circumstances in an individual case.  

In M/s. Power Control Appliances & Ors. Vs. Sumeet Machines Pvt. Ltd., (1994) 2SCC 448 the Apex Court held as under:-

"Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent with the claim... It implies positive acts; not merely silence or inaction such as involved in laches. In Harcourt Vs.  White, 54 ER 382, Sir John Romilly said: ''It is important to distinguish mere negligence and acquiescence.' Therefore, acquiescence is one facet of delay.... If the acquiescence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. Vs. Boehm. (1884) 26 Ch.D. 406. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers Vs. Nowill. (1847) 2 DeGM & G 614."  

Similar principle had been made applicable  even  in contractual matters. (Vide State of  Orissa & Ors. Vs. Narain Prasad & Ors., (1996) 5 SCC 740;  and  State of Rajasthan & Ors.  Vs. Anil Kumar Sunil  Kumar & Party & Anr., AIR 2000 SC 1441).                                            

In view of the above, as the petitioner himself appeared in the test/interview and remained unsuccessful, he cannot be permitted to take somersault and challenge the selection at all.

We may further point out that such a contention as sought to be raised  in the present petition that the Commission had no authority to make the substantive appointments, should have been raised in the earlier petition, which he had filed. But, no such contention was raised. Thus, it is not open to the petitioner to now raise such a contention.

If a relief which could have been claimed is not claimed, party cannot claim it in a subsequent suit/petition.

The rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will support both actions and the cause of action is also the same. (Mohd Khalil Khan Vs. Mahbub Ali Mian, AIR 1949 PC 78).

A Constitution Bench of Hon'ble Supreme Court in Gurubux Singh Vs. Bhooralal, AIR 1964 SC 1810, held that even  if  a party does not pray  for  the relief in  the  earlier writ petition, which  he ought to have claimed in the earlier petition, he cannot file  a successive writ petition  claiming that relief,  as  it  would  be  barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order II Rule 2 C.P.C.  as has been  explained, in unambiguous  and  crystal clear language  by  the Hon'ble Supreme  Court in M/s.  D. Cawasji &  Co. Vs. State of Mysore, AIR 1975 SC 813; Commissioner of Income Tax Vs. T.P. Kumaran,  (1996) 10  SCC  561;  Union of  India and others Vs. Punnilal & Ors., (1996) 11 SCC  112; Deva Ram & Anr. Vs. Ishwar Chand & Anr., AIR 1996 SC 378; and M/s. Bengal Waterproof Limited Vs.  M/s. Bombay Waterproof Manufacturing Company & Anr, AIR 1997 SC 1398.

In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair & Ors., 2004 AIR SCW 894, the Apex Court  explained the scope of Order II, Rule 2 C.P.C. observing as under:-

"The doctrine of res judicata differs from the principle underlying Order II, Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiff shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted."

In the instant case, petitioner approached this Court earlier and the grounds of challenge in the instant case were available to him, but for the reasons best known to him, he had not agitated these issues therein, he cannot  be permitted to raise those issues by filing the fresh petition.

We are also of the opinion that the petitioner is not entitled to any substantive appointment under the provisions of Section 31 (3)(b) of the Act, inasmuch as a bare perusal of the aforesaid provision indicates that any teacher who had been appointed after reference to a Selection Committee, to a temporary post, likely to last for more than six months, can be considered for substantive appointment if the post is subsequently converted into a permanent post, provided the candidate holds the prescribed qualification for the post at the time of the substantive appointment.

In the present case, apart from the fact that there is nothing to indicate that the petitioner had been appointed against the temporary post after reference to the Selection Committee, there is also a decision of this Court holding that the petitioner did not possess the requisite qualification. This decision rendered in Writ Petition No. 2769 of 1990 on 30th January, 1990 clearly mentions that the petitioner does not have the requisite qualification. Thus, the petitioner is not entitled to substantive appointment under the provisions of Section 31 (3)(b) of the Act. We must also hasten to add at this stage that the petitioner did not place the aforesaid judgment before us and it is only when we summoned the record of the case that we were able to peruse the judgment. We highly deprecate the conduct of the petitioner as he has concealed the material facts and it is doubtful that this Court would have passed any interim order had the petitioner placed this decision before this Court.

In view of the aforesaid, petitioner is not entitled for the relief claimed.

At this juncture, Shri Krishna Ji Khare, learned counsel for the petitioner has submitted that petitioner had been working under the interim order of the Court for the last 15 years. Therefore, there could be no justification displacing him at such a belated stage as the petitioner has become over-age and would not be adjusted for any other work.

No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and  thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.  (Vide Dr.  A.R. Sircar Vs. State of Uttar Pradesh & Ors., 1993 Suppl. (2) SCC 734; Shiv Shanker & Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl (2) SCC 726; the Committee of Management, Arya Inter College Vs. Sree Kumar Tiwary, AIR  1997  SC 3071; GTC Industries Ltd. Vs.  Union of India & Ors., (1998) 3  SCC 376; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC 423).

It is not a case where the Court can grant relief to the petitioner on the ground that he had been working for long under the interim order of the Court as the petitioner's earlier writ petition has been rejected for not possessing the requisite qualification and that order has attained finality.

In view of the above, the petition is devoid of any merit and is accordingly dismissed. Interim order passed earlier stands vacated.

2.1.2006

AKSI


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