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. 1

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  15

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  

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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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