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Khetrabasi Biswal v. Ajaya Kumar Baral And Others
Factual and Procedural Background
On 17 June 1996 the Orissa Public Service Commission (OPSC) issued Advertisement No. 5 of 1996-97 inviting applications for twenty-five temporary posts of Munsif (Emergency Recruitment) in Class II of the Orissa Judicial Service. The appellants, the respondents, and many others applied and sat for the written examination. Following interviews—at which a sitting High Court Judge served as an expert—the Commission prepared a merit list of thirty-nine candidates that included the present appellants.
The Commission forwarded this list to the State Government, which prepared its own modified list. Three candidates from the Commission’s merit list—including appellants Dipali Chand and Govinda Chandra Parida—were omitted, while the name of Khetrabasi Biswal was added.
Several aggrieved candidates filed distinct writ petitions (O.J.C. Nos. 14 & 380 of 1996 and 5566, 6040, 6041 & 6088 of 1997) before the Orissa High Court challenging the State Government’s list. Appellant Dipali Chand separately filed Writ Petition No. 13687 of 1997, which remained pending.
The High Court, after interpreting the relevant service rules, substituted its own select list and issued a mandamus directing the State Government to appoint those candidates. Appointment orders were accordingly issued, but the present appellants were neither parties to the High Court proceedings nor given notice.
The appellants then approached the Supreme Court, contending that the High Court’s judgment was invalid for non-joinder of necessary parties and for overstepping its jurisdiction in preparing a fresh selection list.
Legal Issues Presented
- Whether the High Court’s judgment, passed without impleading candidates who would be adversely affected, was a nullity for want of necessary parties.
- Whether the High Court erred in issuing a writ of mandamus directing appointments on the basis of a select list it itself prepared, instead of remitting the matter to the Public Service Commission.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court stated that both procedural and substantive law mandate the presence of all necessary parties; an order passed in their absence is a nullity and lacks binding force. Because the appellants were not impleaded in the High Court, the resulting judgment could not stand.
Recognising that even before the Supreme Court the successful candidates had not been impleaded, the Court invoked its power under Article 142 of the Constitution to “do complete justice.” It determined that the proper course was to remit the matter to the High Court with directions to allow the writ petitioners to implead all necessary parties, including the present appellants.
The Court also held that the High Court exceeded its jurisdiction in issuing a mandamus compelling the State Government to make appointments on the basis of a list prepared by the Court itself; if irregularities existed, the matter should have been referred back to the Commission for reconsideration.
Until the High Court renders a fresh decision, those already appointed pursuant to the impugned judgment are allowed to continue in service.
Holding and Implications
The Supreme Court set aside the High Court’s order, allowed the appeals, and remitted the matter to the Orissa High Court for fresh adjudication on the merits after impleading all necessary parties.
Consequences include: (1) expedited rehearing by the High Court, which must also hear Writ Petition No. 13687 of 1997 filed by appellant Dipali Chand; (2) continuation of service for candidates already appointed under the earlier order until the High Court issues its new decision; and (3) reiteration that courts must not pass dispositive orders affecting absent necessary parties and should refrain from substituting their own selection lists where statutory authorities are competent to decide.
Order
1. On 17-6-1996 the Orissa Public Service Commission (for short “the Commission”) issued Advertisement No. 5 of 1996-97, inviting application in the prescribed form for twenty-five posts of Temporary Munsif (Emergency Recruitment) in Class II of the Orissa Judicial Service.
2. The appellants herein and the respondents along with the others submitted an application before the Commission.
3. A written examination was held by the Commission and in terms thereof, a list of the successful candidates was prepared. The selectees were later on interviewed by the Commission and in the said proceeding a sitting Judge of the High Court acted as an expert. Thereafter the select list has been prepared on the basis of merit, which contained thirty-nine names. The names of the appellants, admittedly, found place therein. The said list was sent to the State Government for its approval. The State Government, however, on receiving the said list, prepared another list. The name of Khetrabasi Biswal also found place therein. The names of the appellants, namely, Dipali Chand and Govinda Chandra Parida and another were omitted. Several writ applications were filed by Ajaya Kumar Baral, Pradipta Kishore Bhuyan, Krushna Chandra Jena, Bijaya Kumar Patra and Govinda Chandra Parida and another filed petitions bearing OJCs Nos. 14 and 380 of 1996, 5566, 6040, 6041 and 6088 of 1997 respectively. It is also not in dispute that one of the appellants, namely, Dipali Chand in Civil Appeals Nos. 5986 and 5987 of 1998 also filed Writ Petition No. 13687 of 1997, which is still pending. By reason of the impugned judgment, the High Court purporting to interpret the service rules prepared the list of the candidates, who should have been selected. Pursuant to and in furtherance of the directions issued by the High Court, offers of appointment were issued by the State Government in terms of the list prepared by the High Court. The appellants herein were not party to the writ applications. The High Court, while preparing its own list, did not think it fit to issue notices to other candidates like the appellants herein, who had suffered prejudice by reason of the directions issued by the High Court. The appellants, therefore, were necessary parties.
4. The State Government after receiving the list from the Commission, prepared another list out of the list prepared by the Commission. In this list of the State Government, names of certain persons, who were in the merit list did not find place. One of such situated persons filed a petition under Article 226 of the Constitution of India before the Orissa High Court, challenging the list prepared by the State Government. It is not disputed that the appellants herein were not parties to the writ petition.
5. It is against the said judgment of the High Court, the appellants are in appeal before us.
6. The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.
7. It is true that the successful candidates have not been parties before us, but it appears that the appellants herein proceeded to implead only Ajaya Kumar Baral, who was also a writ petitioner before the High Court. Having regard to the peculiar facts and circumstances of the case, we are of the opinion that in exercise of our jurisdiction under Article 142 of the Constitution of India and with a view to do complete justice to the parties, the matters may be remitted to the High Court for a fresh decision on merits and after giving opportunity to the writ petitioners to implead all the necessary parties therein. The writ petition filed by Dipali Chand should be heard along with the other writ petitioners. In our opinion a writ of or in the nature of mandamus could not have been issued, directing the State Government to appoint the selectees in terms of the select list prepared by the High Court. The High Court should have, if such a case was made out, relegated the matters to the Commission. The writ petitioners before the High Court and the other persons, who have been appointed pursuant to or in furtherance of the judgment of the High Court, would continue to hold the post till a final decision is rendered in the matters by the High Court.
8. In that view of the matter, we set aside the order under challenge and remit the matter to the High Court for decision on merits after giving an opportunity to the writ petitioners to implead all the necessary parties in the writ petition.
9. The appeals are allowed with the aforementioned directions. There shall be no order as to costs.
10. Let the records be sent forthwith.
11. Since the matters relate to the vacancies in the year 1996-97, it requires expeditious hearing. The High Court may dispose of the matters as early as possible.
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