Shiv Dutt Sharma
(Shastri) Vs. State of Up & Ors. [2008] INSC 2156 (12 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7303 OF 2008 (Arising
out of SLP [C] Nos.18008 of 2006) Shiv Dutt Sharma (Shastri) ... Appellant
State of Uttar Pradesh & Ors. ... Respondents
ORDER
1.
Leave
granted. Heard learned counsel.
2.
The
appellant had filed Writ Petition No.15156 of 1983 for quashing the order dated
13.6.1983 passed by the Director of Education and the consequential
communications dated 18.8.1983 and 9.9.1983 issued by the District Inspector of
Schools, Mathura and the Principal of the fifth respondent college, whereby the
appellant was informed that he was not entitled to Lecturer grade pay-scale
from the date of his appointment (17.7.1972). The respondents in the said writ
petition were (i) Deputy Director of Education; (ii) District Inspector of
Schools; and (iii) the Committee of Management 2 of the employer College. The
writ petition was allowed with certain observations, after twenty years, on
15.12.2003.
3.
Feeling
aggrieved by the said order, an intra-court appeal was filed by respondents 1
and 2 in the writ petition (that is Deputy Director of Education and the
District Inspector of Schools) along with two non-parties, namely the State of
Uttar Pradesh and the Director of Education. One of the contentions urged by
the appellant in the appeal was that no relief could have been granted to the
writ petitioner, without the State being impleaded as a party to the writ
petition. The said argument found favour with the Division Bench of the High
Court. The appeal was therefore allowed by order dated 26.7.2006 on the ground
that the state government was a necessary party and non-impleading of the State
Government was fatal to the petition. The said order of the Division Bench is
challenged in this appeal by special leave.
4.
Learned
counsel for the appellant submitted that the writ petition was filed in the
year 1983; that the appellant on advice had proceeded on the assumption that he
had to implead only those 3 authorities, whose orders were challenged by him;
and that the respondents therein did not raise any objection that the writ
petition was not maintainable for non-impleadment of the state government as a
party. He contended that after 20 years of pendency the writ petition was
allowed and if the Division Bench was of the view of that state government was
a necessary party, it ought to have granted an opportunity to the appellant to
implead the state government as a party, or heard the state government which
was already an appellant, instead of rejecting the writ petition after 23 years
on a technical ground.
5.
The
reliefs claimed were with reference to the orders/communications of respondents
1 to 3, denying him Lecturers' pay-scale from 17.7.1972. As respondents 1 and 2
in the writ petition were officers of the state government, and having regard
to the nature of the relief sought, there is no doubt that state government was
a necessary party. But the writ petition not having been dismissed on that
ground by the learned Single Judge, and as 23 years had elapsed from the date
of institution of the writ petition, interests of justice required that the
High Court ought to have either given an 4 opportunity to the appellant to
implead the state or heard the state on merits, as it was already a party to
the appeal. The rigid principle applicable in regard to non-impleading of
necessary parties in suits within the period of limitation, may not apply to
writ proceedings, as the provisions relating to limitation for suits under
Limitation Act, 1963 do not in terms apply to the writ proceedings.
6.
The
appeal before the Division Bench had been filed by the State Government and
Director of Education along with Deputy Director of Education and District
Inspector of Schools. Though they were not parties, they were permitted to file
the appeal. They could have urged all their contentions on merits before the
Division Bench in the appeal and such contentions could have been considered by
the High Court, instead of dismissing the writ petition on the ground of
non-joinder of parties.
7.
We,
therefore, allow this appeal, set aside the impugned order of the Division
Bench, and restore Special Appeal No.401/2004 to the file of the High Court,
for disposal on merits in accordance with law.
It is needless to say
that the state government and the Director of Education will also be heard, on
the merits, even though they were not respondents in the writ petition.
.............................J.
(R V Raveendran)
.............................J.
New
Delhi;
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