Partly allowed

Union of India, through G.M.Central Railway v. Mrs.Uma Shanka Mahajan and Ors.

Bombay HC4 Oct 2018WP/3064/2001

Case brief

AI extract

What is this about?

The High Court held that the Central Administrative Tribunal violated procedural requirements akin to Order I Rule 8 CPC by refusing to implead promoted candidates or issue notices before quashing the selection process, setting aside the impugned order on this ground.

What did the court decide?

Impugned order of Central Administrative Tribunal quashing selection process is set aside; Original Applications remanded to Tribunal with direction to call applicants and implead necessary parties.

Union of India, through G.M.Central Railway Vs Mrs.Uma… — Service and Employment | Bombay HC (2018)

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ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

 WRIT PETITION NO.3064 OF 2001

¶6

Union of India through
G.M.Central Railway ...Petitioner
vs.
Ms Uma Shankar Mahajan & Ors. ...Respondents

¶7

WITH WRIT PETITION NO.3065 OF 2001

¶8

Union of India through
G.M.Central Railway ...Petitioner
vs.
Ms Urmila VasudeoLad & Ors. ...Respondents

¶9

Mr.Suresh Kumar for the Petitioner in both petitions
Mr.Sandeep Marne for the intervenor in both
petitions

¶10

CORAM : A.S.OKA, &
 M.S.SONAK,JJ.
 DATE : OCTOBER 4, 2018

¶11

ORAL JUDGMENT: (PER A.S.OKA,J.)

¶12

1Heard the learned counsel for the petitioner
and the learned counsel for the intervenors. By
common impugned Judgment and Order dated 8th August
2001 passed by the Central Administrative Tribunal
(for short `the Tribunal'). Two Original
Applications preferred by the contesting private
respondents have been allowed by the Tribunal. In
both the Original Applications filed before the
Tribunal, the challenge was essentially to the
selection process undertaken by the Central Railways

¶13

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by virtue of notification dated 31st January 1997 for
filling up 97 vacancies in the post of Office
Superintendent Grade II. The promotion to the post
of Office Superintendent is by way of selection.
About 291 employees were appeared for the written
test. The applicants in the Original Application
appeared for the test, but they could not qualify.
They were working as Head Clerks. By the impugned
Judgment and order, the Tribunal proceeded to quash
and set aside the selection process as well as the
result of the selection process announced on 30th
June 1997. The respondents in the Original
Application (the petitioners herein) were directed
to undertake a fresh process in terms of the
directions issued in the Judgment and order.
However, the Tribunal did not pass an order of
reversion of those who were promoted in the
process. But they were ordered to be continued on
the promotional post on purely ad-hoc basis till
such new selection as directed was completed.

¶16

2Apart from the merits, the main submission of
the learned counsel for the petitioner is that
neither the selected candidates were impleaded as
party respondents/opponents in the Original
Application nor the procedure analogous to Rule 8
of Order I of the Code of Civil Procedure,1908 (for
short “the said Code of 1908”) was followed. He
invited our attention to the findings recorded in
paragraph 13 of the impugned Judgment and contended
that though this objection was raised, it was

¶17

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brushed aside by the Tribunal. He relied upon the
Judgment and Order dated 26th September 2018 passed
by this Bench in Writ Petition No.1519 of 2006 in
the case of Bharat K. Dehade and others Vs.
Purushottam Das Sharma and others in support of his
case. The learned counsel for the intervenor has
supported the petitioner. None appeared for the
contesting respondents (applicants in the Original
Applications)

¶20

3The question before us is whether all the
persons who were selected/promoted on the basis of
the selection process subject matter of challenge in
the Original Applications can be said to be the
necessary parties and whether their non joinder is
fatal.

¶21

4Though the contention based on non-joinder was
specifically raised, the same has been rejected by
the Tribunal by recording reasons in paragraph 13 of
the impugned Judgment. Paragraph 13 reads thus:

¶22

“13The first objection raised by the
respondents that the applicant's claim is
liable to be dismissed on account of non-
joinder of necessary parties cannot be
accepted. It is found that the OA
No.448/97 has been filed on 15.5.1997 and
OA No.537/97 on 10.6.97. The list of
successful candidates was published only on
30.6.1997 and therefore, the applicants

¶23

¶24

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could not have issued any notice to those
candidates. Even otherwise it is found
that in both the Oas, an order has been
passed by the Tribunal on 11.7.1997 that
any promotion made will be subject to the
outcome of the Oas. Therefore, the
concerned parties have been put on notice
and the objection relating to non-joinder
of parties has ceased to be of any
relevance. It is accordingly rejected.”

¶26

5Thus, in the facts of the case, it is clear
that the candidates whose names appeared in the list
published on 30th June 1997 were neither impleaded as
parties nor any notice in any form was served to any
of them. The objection regarding non-joinder was
overruled on two grounds. The first ground is that
the list of successful candidates was published on
30th June 1997 during the pendency of both the
Original Applications. The second ground was that
an interim order was passed on 11th July 1997 by
observing that the promotions will be subject to
final outcome of the Original Applications.

¶27

6In the case of Bharat K. Dehade and others
(supra), this very issue came up for consideration
of this Court. The question was when on an Original
Application, the Administrative Tribunal sets aside
the entire selection process, whether the selected
candidates are necessary parties. In paragraph 24,

¶28

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¶30

the Division Bench held thus:

¶31

“24As noted earlier, there is no order
available or produced before us to indicate
that empanellement of 9 empanelled/appointed
employees as the respondents in pursuance of
M.P.No.195 of 2002 taken out by the original
applicants was in some representative
capacity. Admittedly, neither the
provisions nor the principles as set out in
Order 1 Rule 8 of CPC were ever complied
with in the present case. In such
circumstances, the CAT was not at all
justified in brushing aside binding
precedents emanating from Apex Court on the
premise that at least 9 empanelled/appointed
employees had been impleaded in some
representative capacity.”

¶32

7Thereafter, this Court proceeded to discuss
section 22 of the Administrative Tribunal Act,1995
as well as various Rules under the Central
Administrative Tribunal (Procedure) Rules, 1987 and
in particular Rule 11 thereof. After considering the
said provision in the context of applicability of
the procedure in the said Code of 1908, in
paragraphs 32 to 35, the Division Bench held thus:

¶33

“32] Rule 11(8) of the Central Administrative
Tribunal (Procedure), 1987 applies to a case
where parties have in fact been impleaded as

¶34

¶35

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¶36

respondents but it is not reasonably
practicable to serve the notice of the
application on all such respondents. In the
present case, the original applicants did not
even brother to implead of the necessary
parties as respondents. Further, even for the
provisions of Rule 11(8) to apply, the
Tribunal has to record a satisfaction that it
is not reasonably practicable to serve notice
of application upon all the respondents and
only thereafter, the Tribunal may, for the
reasons to be recorded in writing direct that
theapplicationshallbeheard
notwithstanding that some of the respondents
have not been served with the notice of the
application. Before the Tribunal proceeds in
this manner, the Tribunal has to also ensure
that the notice of application has been
served on the Central Government or the State
Government if such Government is a
respondent, notice of the application has
been served on the authority which passed the
order against which the application has been
filed, and the Tribunal must be satisfied
that the interests of the respondents on whom
notice of the application has not been served
are adequately and sufficiently represented
by the respondents on whom notice of the
application has been served.

¶37

33]Order 1 Rule 8 (1) of the CPC provides

¶38

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that where there are numerous persons having
the same interest in one suit, then one or
more of such persons may, with the permission
of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit
of, all persons so interested. The Court may,
in such a situation direct that one or more
of such persons may sue or be sued or may
defend such suit, on behalf of, or for the
benefit of, all persons so interested.

¶41

34]Order 1 Rule 8(2) in terms provides that
the Court shall in every case where a
permission or direction is given under sub-
rule (1), at the plaintiff's expense, give
notice of the institution of the suit to all
the persons so interested, either by personal
service, or, where, by reason of the number
of persons or any other cause, such service
is not reasonably practicable, by public
advertisement, as the Court in each case may
direct. Thereafter, any person on whose
behalf, or for whose benefit, a suit is
instituted, or defended under sub-rule (1),
may apply to the Court to be made a party to
such suit. Only after all such safeguards are
adopted that it can be said that a decree
passed in such a suit under this Rule shall
be binding on all persons on whose behalf or
for whose benefit, the suit was instituted,
or defended, as the case may be.

¶42

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35]True, as noticed earlier, the provisions
of Order 1 Rule 8 of CPC may not apply with
all their rigor to the proceedings before the
CAT in view of the provisions of Section 22
of the Administrative Tribunals Act, 1985.
Nevertheless, as was held by the Apex Court
that even though the provisions of CPC may
not apply to the proceedings under Article
226 of the Constitution of India in view of
the provisions of Section 141 of the CPC,
nevertheless, the principles analogous
thereto would certainly apply and will have
to be followed. This is more so since Section
22 of the Administrative Tribunals Act, 1985,
in terms provides that the Tribunal in
regulating its own procedure shall be guided
by the principles of natural justice.“

¶45

(emphasis added)

¶46

8Coming back to the facts of the present case,
the Tribunal was conscious of the fact that the
promotions have been granted on the basis of the
selection process which was the subject matter of
challenge in the Original Applications. The Tribunal
passed a drastic order of quashing and setting aside
the entire selection process and the results
pronounced on 30th June 1997. Moreover, it was
directed that the promoted candidates will continue
to hold their posts only on ad-hoc basis and that
also till the new process is completed.

¶47

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¶48

9In our view, following the law laid down in the
case of Bharat K. Dehade and Others (supra), it was
mandatory for the Tribunal to ensure that either
affected promoted employees are made parties or at
least some of them are made parties and the
procedure analogous to the procedure laid down under
Rule 8 of Order I of the said Code of 1908 is
followed.

¶49

10The Tribunal is duty bound to follow the
principles of natural justice especially in view of
section 22 of the Administrative Tribunal Act,1985
and Rule 11 of the Rules framed therein. In fact,
in case of Bharat K. Dehade and others (supra), this
Court has held in paragraph 35 that though the
provisions of the said Code of 1908 may apply to
the proceedings under Article 226 of the
Constitution of India, in view of the provisions of
sections 141 of the said Code of 1908, nevertheless,
the principles analogous thereto would certainly
apply to the Tribunal and will have to be followed.

¶50

11Therefore, in our considered view, the reasons
recorded by the Tribunal in paragraph 13 are
completely erroneous and only on this ground, we
are inclined to set aside the impugned order.

¶51

12The learned counsel for the petitioner
submitted that even on merits, the view taken by the
Tribunal is wrong. He relied upon the decision of

¶52

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the Apex Court in the case of Prabhat Ranjan Singh
vs. R.K.Kushwaha1 in support his submissions.

¶54

13We find from the Farad Sheet that the impugned
Judgment and Order dated 8th August 2001 was stayed
by the order dated 14th January 2002 by grant ad-
interim relief. While admitting the petition by
issuing Rule, the said ad-interim relief was
continued by the order dated 5th March 2002. Thus,
the persons who were promoted in the impugned
selection process have continued to hold their
posts. We are not sure whether the applicants in
the Original Applications are interested in
prosecuting their Original Applications any further.
However, with a view to give them an opportunity of
prosecuting the Original Applications by impleading
necessary parties or by adopting the procedure
analogous to Rule 8 of Order I of the said Code of
1908, we propose to remand the Original Applications
to the Tribunal. Therefore, it is not necessary for
us to deal with the findings recorded in the
impugned Judgment and Order on merits.

¶55

14Accordingly, we pass the following order:

¶56

(I) Impugned Judgment and Order dated 8th August 2001
in Original Application Nos.448 of 1997 and 537 of
1997 is quashed and set aside and both the Original
Applications are remanded to the Central
Administrative Tribunal, Bench at Mumbai;

¶57

1 2018 SCC OnLine SC 1387

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(ii) We direct that remanded Original Applications
shall be listed before the Tribunal on 29th November
2018 at 11.00 a.m so that the Tribunal can issue
notice to the applicants in both the Original
Applications;

¶61

(iii) If the applicants appear on the basis of
notice and are interested in prosecuting their
Original Applications, the Tribunal shall permit
them either to implead selected employees as
necessary parties and/or to follow the procedure
analogous Rule 8 of Order I of the said Code of
1908;

¶62

(iv) Needless to add that if the applicants are no
more interested in prosecuting their Original
Applications, even after service of notice, the
Tribunal is free to dispose of the Original
Applications for want of prosecution;

¶63

(v)We make it clear that we have made no
adjudication on the merits of the challenge to the
selection process;

¶64

(vi)Rule is made partly absolute on above terms with
no order as to costs.

¶65

(M.S.SONAK,J.)

Union of India, through G.M.Central Railway v. Mrs.Uma Shanka Mahajan and Ors.

Case brief

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Union of India, through G.M.Central Railway v. Mrs.Uma Shanka Mahajan and Ors.

Case brief

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