Pritin S/O Dharmachandra Walali vs Pranjal S/O Prakashchandra ...
2017 Latest Caselaw 9855 Bom

241-J-SA-52-05                                                                     1/9


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                          SECOND APPEAL NO.52  OF  2005


Pritin s/o Dharamchandra Walali, 
aged about 32 years, Occ. Service, 
R/o Ansing, Tq. & Dist. Washim                        ... Appellant. 

-vs-

1.  Pranjal s/o Prakashchandra Walali,
     aged about 34 years, Occ. Nil, 
     r/o Ansing, Tq. And Dist. Washim. 

2.  Sudhakar s/o Narayansa Rawane,
     aged about 69 years, Occ. Pensioner, 
     R/o Sahakar Nagar, Akola, 
     Tq. and Dist. Akola. 

3.  D. K. Walali (Jain)
     aged about 72 years, Occ. Retired, 
     R/o Ansing Tq. & dist. Washim, 

4.  A. H. Walali,
     aged about 52 years,   
     Occu. Agriculturist, r/o Ansing, 
     Tq. and Dist. Washim,  

5.  Education Officer (Secondary),
     Zilla Parishad, Washim.                          ... Respondents. 


Shri S. U. Nemade, Advocate for appellant. 
Shri A. J. Thakkar, Advocate for respondent No.1. 
Shri Amit  Balpande Assistant Government Pleader for respondent No.4. 




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                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : December 20, 2017

Oral Judgment :

The original defendant No.5 has preferred this second appeal

under Section 100 of Code of Civil Procedure, 1908 being aggrieved by the

decree passed by the trial Court holding his appointment on the post of

Lower Grade Clerk at P.D. Jain Vidyalaya, Ansing to be illegal and arbitrary.

The concerned defendants were directed to hold fresh interviews for making

a fresh appointment by following due procedure of law. This decree has

been confirmed by the appellate Court.

2. Facts giving rise to the present appeal are that it is the case of the

plaintiff that at Ansing there is a Society by name Syadwad Education

Society. A notice was published in a daily newspaper in which it was

advertised that three posts in the school run by that Society were to be filled

and for said purpose interviews were to be held on 11/08/1996. The

plaintiff was concerned with the post of Lower Grade Clerk. In that

interview the plaintiff and the defendant No.5 had participated. According

to the plaintiff the defendant No.5 was not duly qualified to hold said post.

Despite appearing for the interview the results were not declared. The post

was again advertised on 17/09/1996 for holding the interviews on

19/09/1996. The plaintiff's father gave an application on 19/09/1996 to

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the Society that the plaintiff had been interviewed on 11/08/1996 and

therefore it was not necessary for him to be interviewed again. The plaintiff

then learnt that defendant No.5 was given appointment on the post of Lower

Grade Clerk on 06/01/1997. He therefore filed suit for declaration that

defendant No.5 was not an eligible candidate and his appointment dated

06/01/1997 deserves to be cancelled. A further prayer restraining the

Education Officer from granting approval was also made. The defendants

who are arrayed in the suit were the President of the School Committee of

the concerned school, President of the Society, Secretary of the Society as

well as the Education Officer. The candidate who had been issued the order

of appointment was defendant No.5.

3. The defendant No.1/President of the School Committee supported

the case of the plaintiff. The defendant No.3 who was the Secretary of the

School Committee took the stand that in response to the advertisement dated

19/09/1996 about 12 candidates had appeared but they had not been joined

in the suit. The appointment of defendant No.5 was justified on the count

that he was duly qualified. The defendant Nos.2 and 5 also filed their

written statement. According to them the suit was bad in absence of

necessary parties. The defendant No.5 was duly qualified and the School

Committee had rightly taken a decision to appoint defendant No.5.

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4. Parties led evidence and filed various documents on record. After

considering the same the trial Court held that the defendant No.5 was not an

eligible candidate as he was not duly qualified and therefore his appointment

on the post of Lower Grade Clerk was illegal. The trial Court therefore

cancelled his appointment and directed defendant Nos.1 to 3 to hold fresh

interviews and appoint an eligible candidate. The appellate Court

confirmed this decree.

5. The following substantial questions of law were framed when the

appeal was admitted :

(1) Was the Trial Court right in decreeing the suit transgressing the limits of the decree as prayed for, for which defendants had no notice ?

(2) Was the Society running the School is a necessary party ? (3) Is the decree under appeal legal and proper since the Trial Court's recording a finding that the appellant/original defendant No.1 did not hold necessary qualification ?

6. Shri S. U. Nemade, learned counsel for the appellant-defendant

No.5 submitted that in absence of necessary parties, the suit was not liable to

be decreed. The defendant Nos.1 to 3 were impleaded in their individual

capacity. Neither was the Society which was running the School where the

appointment was to be made nor was the said School in question been

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impleaded. In absence of necessary parties, no relief could have been

granted especially when the allegation of the plaintiff was that the interviews

were not conducted in accordance with law and that the defendant No.5 was

not duly qualified. It was then submitted that the trial Court was not

justified in setting aside the appointment of defendant No.5 especially when

said appointment had been duly approved by the Education Officer. The

defendant No.5 had necessary qualifications as prescribed under Schedule-B

of the Maharashtra Employees of Private School (Rules) 1981. Merely

because the plaintiff claimed that he was better qualified it would not mean

that he was eligible for being appointed to the post in question. The decree

was therefore liable to be set aside.

7. Shri A. J. Thakkar, learned counsel appearing for respondent No.1

-plaintiff supported the impugned judgment. According to him both the

Courts had concurrently held that the defendant No.5 was not eligible to

hold the post of Lower Grade Clerk. It was only the plaintiff who had

acquired the requisite qualification. On that count the plaintiff had locus to

challenge the illegal appointment of defendant No.5. It was then submitted

that the defendants had been rightly impleaded in the suit. While defendant

No.1 was the President of the School Committee, the defendant Nos.2 and 3

were the President and Secretary of the Society in question. It was not

necessary to specifically implead the Society or the said School as

241-J-SA-52-05 6/9

defendants. It was thus submitted that both the Courts having held in

favour of the plaintiff and having directed the defendant Nos.1 to 3 to

conduct a fresh recruitment process no case for interference was made out.

Shri Amit Balpande, learned Assistant Government Pleader for

respondent No.5 submitted that presence of the Society and the School was

necessary in the suit considering the nature of relief sought by the plaintiff.

8. I have heard the learned counsel for the parties at length and with

their assistance I have perused the records of the case. The evidence on

record indicates that the post of Lower Grade Clerk was initially advertised

on 01/08/1996 and interviews were scheduled on 04/08/1996. Those

interviews were however cancelled and hence on 10/08/1996 it was again

advertised that the interviews would be held on 11/08/1996. In that

interview the plaintiff as well as defendant No.5 had appeared. According to

the plaintiff he has possessed English typing examination certificate with

speed of 30 w.p.m. and 40 w.p.m. In that interview there were about 15-20

candidates present. The defendant No.5 was only a matriculate and was

taking further education at the Industrial Training Institute. Thereafter on

17/09/1996 same post was again advertised and interviews were scheduled

on 19/09/1996. On that date the plaintiff had gone out of station and

hence his father remained present and gave an application that the plaintiff

was already interviewed for the same post on the earlier occasion. The

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defendant No.5 was interviewed on that date also.

9. As per provisions of Schedule-B Rule (iv) to the Rules of 1981,

the qualifications for the post of Jr. Clerk prescribed is matriculation or

passing of Secondary School Certificate examination or any other equivalent

qualification. From this it can be gathered that both the plaintiff as well as

defendant No.5 were duly qualified inasmuch as it is the case of the plaintiff

that the defendant No.5 was merely a matriculate. The finding recorded by

the trial Court that the defendant No.5 was not having the knowledge

regarding typewriting and stenography is contrary to the requirement

prescribed under Rules of 1981. In absence of any such requirement being

prescribed, the trial Court could not have proceeded to record a finding that

defendant No.5 was not eligible to hold the post of Lower Grade Clerk

despite he being a matriculate. It may be a different matter of grant of

preference to a higher qualified candidate but the candidate who possess

minimum qualification cannot be treated as not qualified for said post. This

was the basis for holding against the defendant No.5. This finding recorded

by the trial Court and confirmed by the appellate Court is therefore liable to

be set aside.

10. It is to be noted that the post in question was to be filled in at P.D.

Jain Vidyalay, Ansing. This school was being run by the Education Society.

241-J-SA-52-05 8/9

Neither the said School nor the said Society in question were impleaded as

defendants in the suit. The Society as well as the school have independent

legal existence and were therefore necessary parties to the suit especially in

the backdrop of the reliefs sought in the plaintiff. Merely impleading the

President of the School Committee or the President and Secretary of the

Society in their individual capacity did not satisfy the legal requirements.

Moreover, the directions issued by the trial Court while deciding the suit that

a fresh recruitment process should be undertaken was against the Society

and the School concerned and the same was in their absence. Merely by

impleading some office bearers in their personal capacity was not sufficient.

I therefore find that considering the nature of reliefs sought, the Society as

well as the School were necessary parties. The trial Court committed an

error in holding otherwise.

11. It is also noted that the trial Court issued directions to hold fresh

interviews by publishing an advertisement and then appointing the eligible

candidate. This relief was never claimed by the plaintiff. Moreover, as

noted above this relief in fact was granted against the Society and the school

especially when they were not parties to the suit. The trial Court therefore

has granted relief beyond the prayers in the suit.

12. In the light of aforesaid discussion, the substantial questions of

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law are answered by holding that the Society as well as the School in

question were necessary parties. The trial Court also committed an error in

holding that the appellant herein did not hold necessary qualifications and

exceeded its limits by passing a decree of which the defendants had no

notice. In view of these answers, the judgment of the trial Court in R.C.S.

No.83 of 1997 dated 02/05/2001 as well as judgment in R.C.A. No.123 of

2001 dated 23/09/2004 are quashed and set aside. R.C.S. No.83 of 1997

stands dismissed.

Second appeal is allowed in aforesaid terms with no order as to

costs.

JUDGE

Asmita