Orissa High Court
Abhaya Kumar Padhi & Others vs State Of Orissa And Others on 10 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.29089 of 2020
Abhaya Kumar Padhi & others ..... Petitioners
Mr. B. Mohanty, Adv.
Vs.
State of Orissa and others ..... Opposite Parties
Mr. G.N. Rout, ASC
Mr. S.K. Das, Adv.
(for O.P. Nos.4 to 6)
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
10.02.2023
I.A. No.10287 of 2021
Order No. The matter is taken up through hybrid mode.
09.
2. The matter is taken up today on being listed under the
heading 'To be mentioned' seeking some clarifications from the
learned Counsel for the Petitioners.
3. Mr. Das, learned Counsel for the Opposite Party Nos. 4 to
6, relying on the judgment of the apex Court in case of Udit
Narain Singh Malpaharia v. Additional Member, Board of
Revenue, Bihar and another, reported in AIR 1963 SC 786,
submitted that though the proposed prayer for amendment is to
quash the Order of promotion in respect of direct recruit of ASOs
from Sl. No.7 to 533 of the Order of promotion dated 23.07.2021,
but in the schedule of amendment, as proposed in the I.A., it has
not been prayed/proposed to add those Assistant Section Officers
as Opposite Parties, who are going to be affected in case the Writ
Petition is allowed. To substantiate his argument, Mr. Das, learned
Counsel for the Opposite Party Nos. 4 to 6, relied on paragraphs 7,
12 and 13 of the said judgment, which are extracted below.
"7. To answer the question raised it would be convenient
at the outset to ascertain who are necessary or proper
parties in a proceeding. The law on the subject is well
settled: it is enough if we state the principle. A necessary
party is one without whom no order can be made
effectively; a proper party is one in whose absence an
effective order can be made but whose presence is
necessary for a complete and final decision on the
question involved in the proceeding.
12. To summarize in a writ of certiorari not only the
tribunal or authority whose order is sought to be quashed
but also parties in whose favour the said order is issued
are necessary parties. But it is in the discretion of the
court to add or implead proper parties for completely
settling all the questions that may be involved in the
controversy either suo motu or on the application of a
party to the writ or an application filed at the instance of
such proper party.
13. In the present case Phudan Manjhi and Bhagwan
Rajak were parties before the Commissioner as well as
before the Board of Revenue. They succeeded in the said
proceedings and the orders of the said tribunal were in
their favour. It would be against all principles of natural
justice to make an order adverse to them behind their
back; and any order so made could not be an effective
one. They were, therefore, necessary parties before the
High Court. The record discloses that the appellant first
impleaded them in his petition but struck them out at the
time of the presentation of the petition. He did not file
any application before the High Court for impleading
them as respondents. In the circumstances, the petition
filed by him was incompetent and was rightly rejected."
Mr. Das, learned Counsel for the Opposite Party Nos. 4 to 6,
further submitted that the ASOs from Sl. Nos. 7 to 533 of the
Order of Promotion dated 23.07.2021 are necessary and proper
Parties to the present proceeding and no prayer has been made in
the I.A. to implead them as Opposite Parties in the Writ Petition,
though a prayer has been made in the I.A. to challenge the said
Order of promotion dated 23.07.2021 by way of amendment.
4. In response to the said submission made by Mr. Das,
Mr. Mohanty, learned Counsel for the Petitioners, relying on the
judgment of the apex Court in case of Ajay Kumar Shukla and
others v. Arvind Rai and others, reported in 2021 SCC Online
SC 1195, submitted that it is not essential to implead each and
every one who could be affected but if a section of such affected
employees is impleaded then the interest of all is represented and
protected. He further submitted that similarly placed some of the
ASOs, who are going to be affected, have been arrayed as
Opposite Party Nos. 4 to 7 in the Writ Petition. To substantiate his
argument, Mr. Mohanty, learned Counsel for the Petitioners relied
on paragraph-47 of the said judgment, which is reproduced below.
"47. The present case is a case of preparation of seniority
list and that too in a situation where the appellants (original
writ petitioners) did not even know the marks obtained by
them or their proficiency in the examination conducted by
the Commission. The challenge was on the ground that the
Rules on the preparation of seniority list had not been
followed. There were 18 private respondents arrayed to the
writ petition. The original petitioners could not have known
who all would be affected. They had thus broadly
impleaded 18 of such Junior Engineers who could be
adversely affected. In matters relating to service
jurisprudence, time and again it has been held that it is
not essential to implead each and every one who could
be affected but if a section of such affected employees is
impleaded then the interest of all is represented and
protected. In view of the above, it is well settled that
impleadment of a few of the affected employees would be
sufficient compliance of the principle of joinder of parties
and they could defend the interest of all affected persons in
their representative capacity. Non-joining of all the parties
cannot be held to be fatal."
(Emphasis supplied)
5. As is revealed from Notification dated 23rd July, 2021, vide
which 533 A.S.Os. were promoted to the rank of Section Officer
in OSS Cadre (Group-B) in Level-10 in terms of ORSP Rules,
2017, it has been clearly indicated that the said Notification shall
be subject to the outcome of number of Writ Petitions, including
W.P.(C) No.29089 of 2020 pending before this Court and other
cases, if any. Hence, it can be well presumed that the said
beneficiaries in terms of the Notification dated 23rd July, 2021 are
well aware about pendency of the present Writ Petition, so also
other connected Writ Petitions. That part, it is ascertain from the
said Notification dated 23rd July, 2021 that Sarbasree P. Sriram
Prasad, Sambit Kumar Swain, Bikash Ranjan Sahoo and Truptilata
Naik, whose names find place at Sl Nos.7, 8, 15 and 527 in the
said Notification, have already been arrayed as Opposite Party
Nos. 4 to 7 in the Writ Petition.
6. In view of the reasons indicated above, so also settled
position of law, this Court is inclined to allow the I.A. for
amendment of the Writ Petition.
7. Accordingly, the I.A. is disposed of.
8. Learned Counsel for the Petitioners is directed to file the
consolidated Writ Petition with annexures after serving copy of
the same on the learned Counsel for the State, so also learned
Counsel for the private Opposite Parties on 15.02.2023, to which
date the other connected Writ Petitions have been posted. The
same will be accepted on the adjourned date upon advance copy
served on the learned Counsel for the Opposite Parties.
9. Matter be listed along with other connected Writ Petitions
on 15.02.2023.
Padma
(S.K. MISHRA)
JUDGE
