REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9227 OF 2010

(Arising out of SLP (C) No.20428/2004)

Girjesh Shrivastava and Others ...Appellant(s)

- Versus -

State of M.P. and Others ...Respondent(s)

WITH

CIVIL APPEAL NO.9228-9230 OF 2010

(Arising out of SLP (C) No.22223-22225/2004)

WITH

CIVIL APPEAL NO.9231 OF 2010

(Arising out of SLP (C) No.24787/2004)

WITH

CIVIL APPEAL NO.9232-9233 OF 2010

(Arising out of SLP (C) No.24788-24789/2004)

J U D G M E N T

GANGULY, J.

1. Leave is granted in all these Special Leave

Petitions.

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2. These appeals arise from the decision

delivered on 06.08.2004 by the High Court

of Madhya Pradesh in Review Petitions

1071/2003, 1074/2003, and decision of the

High Court of Madhya Pradesh in WP(C)

63/2002 and WP (C) 1529/2001 dated

03.11.2003. The Review Petitions were filed

by those teachers who, though not impleaded

in the writ petitions, were affected by

High Court’s decision dated 3.11.2003.

3. Appellants are a group of Grade II and III

school teachers working in Panchayat

Schools as Samvida Shala Shikshak

(contractual teachers). They had been

appointed under the provisions of the

Madhya Pradesh Panchayat Contractual

Teachers (Conditions of Appointment and

Service) Rules, 2001 (hereinafter “2001

Rules”). These selection rules which had

come into force on 11.07.2001 were made in

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exercise of the powers conferred under sub-

section (1) of Section 95 read with sub-

section (2) of Section 70 of the Madhya

Pradesh Panchayati Raj Avam Gram Swaraj

Adhiniyam 1993 (Act 1 of 1994).

4. Pursuant to the provisions of the said

rules, an advertisement was issued by the

Zila Panchayat Office, District Bhind, to

initiate selection process for the

appointments. All the appellants had

applied and were selected and consequently

appointed as Samvida Shala Shikshak.

5. These appointments however were challenged

in two Public Interest Litigations being

WP(C) 1529/2001 and WP(C) 63/2002, inter

alia, on the ground that in contravention

of the 2001 Rules, no proper advertisement

for reservation for ex-servicemen

had been made. It was further challenged as

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being held in contravention of para 5

(viii) of the order passed by the State

Government vide memo dated 11.7.2001, as

members of the selection committee had

their near relatives appear as candidates

for selection. While WP (C) 1529/2001

challenged the appointments made by Janpad

Panchayat Mehagaon, WP (C) 63/2002

challenged the appointments made by Janpad

Panchayat Raun. Both the panchayats are

within the district of Bhind, Madhya

Pradesh.

Rule 5 (4) (b) of 2001 Rules provides:

“For each category of the vacant

posts, the reservation shall be -

(i) xxx

(ii) xxx

(iii) 10% for ex-army personnel;

(iv) Reservation shall also be

provided to any other category which

is notified by the Government from

time to time.

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6. Para 5 (viii) of the memo dated 11.07.2001

provides:

(5) Some provisions of the Contractual

Teachers (Appointment and Service

Conditions) Rules 2001 are to be

specifically kept in mind, which are

as follows:-

(i)xxx

(ii)xxx

(iii)xxx

(iv)xxx

(v)xxx

(vi)xxx

(vii)xxx

(viii) Prior to the constitution of

the interview board it will be ensured

that the son/daughter or real

relatives of the Members of the Board

are not participating in the

interview. It will be appropriate that

an undertaking may be taken from the

Members in this behalf.”

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7. Before the High Court the petitions were

heard mainly on the points mentioned above.

8. With respect to WP No. 1529/2001 the High

Court allowed the writ petition and ordered

the cancellation of appointments, inter

alia, on the grounds that appointments were

illegal as members of the selection

committee allowed their near relatives to

appear in the selection process. It stated

that on the basis of an inquiry conducted

by the District Collector, show-cause

notices were issued to three members of the

selection committee asking them as to why

did their relatives appeared as candidates

in the selection.

9. The High Court further held that in

contravention of Rule 5 (4) (b) which

mandated 10 per cent reservation for ex-

servicemen, no proper advertisement had

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been made so as to invite applications from

ex-servicemen. The High Court noted that

the Respondent-State of Madhya Pradesh had

accepted this mistake on its part. On the

question as to whether those who had

already been appointed and were being

affected by the said order of quashing the

appointments, were to be impleaded or not,

the Court held that in an earlier order

dated 07.11.2001, it had stated that the

issuance of the appointment letters in the

concerned matter was subject to the outcome

in the writ petition. Therefore the

question of impleadment of those who were

appointed did not arise anew.

10. However, in WP No. 63/2002, even though the

High Court allowed the petition in view of

contravention of provision for 10 per cent

reservation, it held in the writ petition,

near relatives of the members of the

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selection committee did not appear for

selection. Hence, as against the decision

in WP (C) 1529/2001, the Court in WP (c)

63/2002 did not strike down the selection

on the basis of the presence of near

relatives. Instead it invalidated the

selection only for being in violation of

Rule 5 (4) (b) which mandated a reservation

of 10 per cent for ex-servicemen.

11. Aggrieved by the decision of the High Court

some of the successful candidates, who are

appellants herein, and were not impleaded

in either of the two writ petitions, filed

Review Petitions No. 1071/2003, 1074/2003

and 1117/2003 before the High Court. They

pleaded that the selection process was

quashed in WP 1529/2001 and WP 63/2002, to

their great prejudice without impleading

them to the proceedings. They further

argued whether the alleged improper

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recruitment of a handful of candidates had

flawed the entire selection is a matter to

be considered by the High Court. They also

argued that in a service matter where

express remedy is available, a Public

Interest Litigation is not maintainable.

12. The High Court in its order dated

06.08.2004 dismissed all the review

petitions. While upholding the impugned

orders it said that having regard to the

grave irregularity in the selection

process, the quashing of the entire

selection process was just and proper.

13. In these appeals it is contended that WP(C)

1529/2001 and WP (C) 63/2002 cannot be

called Public Interest petitions as there

was an element of Personal Interest

involved. This is clear from the fact that

these PILs had been filed with respect to

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only two janpads, whereas the advertisement

inviting applications for selection, and

the consequent selection process had been

made in six janpads. Also, the challenge to

the advertisement was made as late as three

months after the date of its issuance.

14. However, the main argument by the

appellants against entertaining WP (C)

1520/2001 and WP (C) 63/2002 is on the

ground that a PIL in a service matter is

not maintainable. This Court is of the

opinion that there is considerable merit in

that contention.

15. It is common ground that dispute in this

case is over selection and appointment

which is a service matter.

16. In the case of Dr. Duryodhan Sahu and

others vs. Jitendra Kumar Mishra and others

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(1998) 7 SCC 273, a three judge Bench of

this Court held a PIL is not maintainable

in service matters. This Court, speaking

through Srinivasan, J. explained the

purpose of administrative tribunals created

under Article 323-A in the backdrop of

extraordinary jurisdiction of the High

Courts under Articles 226 and 227. This

Court held “if public interest litigations

at the instance of strangers are allowed to

be entertained by the (Administrative)

Tribunal, the very object of speedy

disposal of service matters would get

defeated” (para 18). Same reasoning applies

here as a Public Interest Litigation has

been filed when the entire dispute relates

to selection and appointment.

17. In B. Srinivasa Reddy v. Karnataka Urban

Water Supply & Drainage Board Employees’

Association and others, reported in (2006)

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11 SCC 731 (II), this Court held that in

service matters only the non-appointees can

assail the legality of the appointment

procedure (See para 61, page 755 of the

report).

18. This view was very strongly expressed by

this Court in Dattaraj Nathuji Thaware v.

State of Maharashtra and others, reported

in (2005) 1 SCC 590, by pointing out that

despite the decision in Duryodhan Sahu

(supra), PILs in service matters ‘continue

unabated’. This Court opined that High

Courts should ‘throw out’ such petitions in

view of the decision in Duryodhan Sahu

(supra) (Para 16, page 596).

19. Same principles have been reiterated in

Ashok Kumar Pandey v. State of W.B.,

reported in (2004) 3 SCC 349, at page 358

(Para 16).

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20. In a recent decision of this Court

delivered on 30.8.2010, in Hari Bansh Lal

v. Sahodar Prasad Mahto and others,

(MANU/SC/9654/2010), it has been held that

except in a case for a writ of ‘Quo

Warranto’, PIL in a service matter is not

maintainable (See paras 6 and 7).

21. The next point urged by the appellants,

that they had never been impleaded in the

two petitions, even as orders passed by the

High Court had a direct effect on their

livelihood, also goes to the root of the

matter as it violates the principle of audi

alteram partem.

22. This Court in Prabodh Verma and others vs.

State of Uttar Pradesh and others,[(1984) 4

SCC 251 at p. 273] held, “A High Court

ought not to decide a writ petition under

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Article 226 of the Constitution without the

persons who would be vitally affected by

its judgment being before it as

respondents...”. Similarly this Court in

Ramarao and others vs. All India Backward

Class Bank Employees Welfare Association

and others,[(2004) 2 SCC 76, at page 86]

said, “…An order issued against a person

without impleading him as a party and thus,

without giving an opportunity of hearing

must be held to be bad in law. The

appellants herein, keeping in view the fact

that by reason of the impugned direction,

the orders of promotion effected in their

favour had been directed to be withdrawn,

indisputably were necessary parties. In

their absence, therefore, the writ petition

could not have been effectively adjudicated

upon.” Also in B. Ramanjini and others v.

State of Andhra Pradesh and others, [(2002)

5 SCC 533 at pages 542-543, paragraph 19]

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where selection of certain teachers was

challenged without impleading them, this

Court held, “Selection process had

commenced long back as early as in 1998 and

it had been completed. The persons selected

were appointed pursuant to the selections

made and had been performing their duties.

However, the selected candidates had not

been impleaded as parties to the

proceedings either in their individual

capacity or in any representative capacity.

In that view of the matter, the High Court

ought not to have examined any of the

questions raised before it in the

proceedings initiated before it. The writ

petitions filed by the respondents

concerned ought to have been dismissed

which are more or less in the nature of a

public interest litigation.”

23. The High Court while dismissing the review

petitions stated that in view of the grave

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irregularity of allowing near relations to

appear in the selection process, the entire

selection had been rightly set aside. This

finding is a rather sweeping one as

factually it appears that in W.P. (C)

No.63/2002 none of the members of the

selection committee allowed their near

relatives to appear as candidates. It is,

therefore, important to note that the

selection process had been struck down on

the ground of presence of near relatives in

WP (C) No.1529/2001 alone and not in WP (C)

No.63/2002. Furthermore even in WP (C)

No.1529/2001 an order dated 10/12/2001

(i.e. prior to the dismissal of the review

petition) was made by the District

Collector after conducting an inquiry that

out of the three alleged cases of relatives

of the selectors being selected, two were

not ‘relatives’ as defined under Section 40

of the Madhya Pradesh Panchayati Raj Act,

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1993. One Jai Pal Singh who was found to be

a ‘relative’ of Layak Singh Gurjar, a

member of the District Panchayat, within

the meaning of Section 40 of the Act was

interviewed, but was never selected. This

has been certified by the Chief Executive

Officer of the District Panchayat.

24. From these facts it can be concluded that

the alleged participation of near relatives

in the selection process was not such a

factor as to vitiate the entire selection

process. Even if there were some illegal

beneficiaries from the selection process,

they should have been weeded out instead of

striking down the entire selection process.

In Charanjit Singh and others vs. Harinder

Sharma and others [(2002) 9 SCC 732] a

similar situation had arisen. In that case,

while not approving the interference of the

High Court in the selection process, this

17

Court held that merely because some of the

candidates in the selection process

happened to be relatives of the members of

the selection committee, it did not mean

that all the candidates were relatives of

the members of the selection committee and

had been illegally selected. It was also

held that since the petition was not made

by any of the candidates who had appeared

in the selection process and was instead

filed as a Public Interest Litigation, it

was improper for the High Court to

interfere in the matter.

25. On a more detailed analysis of this issue,

in Union of India and others v. Rajesh P. U.,

Puthuvalnikathu and another, [(2003) 7 SCC 285 at

p. 290, paragraph 6], this Court held that

“In the light of the above and in the

absence of any specific or categorical

finding supported by any concrete and

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relevant material that widespread

infirmities of an all pervasive nature,

which could be really said to have

undermined the very process itself in its

entirety or as a whole and it was

impossible to weed out the beneficiaries of

one or other of irregularities, or

illegalities, if any, there was hardly any

justification in law to deny appointment to

the other selected candidates whose

selections were not found to be, in any

manner, vitiated for any one or other

reasons. Applying an unilaterally rigid and

arbitrary standard to cancel the entirety

of the selections despite the firm and

positive information that except 31 of such

selected candidates, no infirmity could be

found with reference to others, is nothing

but total disregard of relevancies and

allowing to be carried away by

irrelevancies, giving a complete go bye to

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contextual considerations throwing to winds

the principle of proportionality in going

farther than what was strictly and

reasonably required to meet the situation.

In short, the Competent Authority

completely misdirected itself in taking

such an extreme and unreasonable decision

of cancelling the entire selections, wholly

unwarranted and unnecessary even on the

factual situation found too, and totally in

excess of the nature and gravity of what

was at stake, thereby virtually rendering

such decision to be irrational ”.

26. Coming to the issue of selection and

appointment of ex-servicemen as a reserved

category, from what has been placed before

us, we understand that while in Mehagaon 5

ex-servicemen had been appointed out of a

total of 9 applicants, in Raun none had

been so appointed. As stated above, if at

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all there was an issue with respect to the

reservation policy of the ex-servicemen it

ought to have been brought up as a service

dispute and not in a PIL. The High Court,

with due respect, should have displayed a

little more restraint and balance before

quashing a selection process in which the

persons selected had already put in 3 years

of service.

27. Furthermore it should be noted that para 10

of the application form for the candidates

stated that if the applicant person was

either a handicap or an ex-serviceman then

he was required to mention so in the

application form and that a certificate to

the same effect from a competent authority

should be enclosed. As noted earlier in WP

(C) No.1529/2001 as many as 9 ex-servicemen

had applied, out of which 5 had been

selected and appointed in the reserved

category. The rest 4 were not selected in

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the selection process. Therefore, it would

be incorrect to say that the advertisement

was so made so as to prevent ex-servicemen

from applying.

28. More importantly, in deciding these issues,

the High Court should have been mindful of

the fact that an order for cancellation of

appointment would render most of the

appellants unemployed. Most of them were

earlier teaching in Non-formal education

centers, from where they had resigned to

apply in response to the advertisement.

They had left their previous employment in

view of the fact that for their three year

long teaching experiences, the interview

process in the present selection was

awarding them grace marks of 25 per cent.

It had also given them a relaxation of 8

years with respect to their age. Now, if

they lose their jobs as a result of High

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Court’s order, they would be effectively

unemployed as they cannot even revert to

their earlier jobs in the Non-formal

education centers, which have been

abolished since then. This would severely

affect the economic security of many

families. Most of them are between the age

group of 35-45 years, and the prospects for

them of finding another job are rather dim.

Some of them were in fact awaiting their

salary rise at the time of quashing of

their appointment by the High Court.

29. With utmost respect to the High Court, we

are constrained to observe that equities

were not properly balanced in the exercise

of discretion by the High Court.

30. For the reasons aforesaid, the appeals are

allowed. The impugned judgments of the High

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Court are quashed. The selection

proceedings are upheld.

31. Parties are left to bear their own costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

October 22, 2010

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