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

Vs.

State of Uttar Pradesh & Ors. … Respondents

O R D E R

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

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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

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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

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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

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Education will also be heard, on the merits, even though they were

not respondents in the writ petition.       

………………………..J. (R V Raveendran)

New Delhi; ………………………..J. December 12, 2008. (D K Jain)      

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