Holding

An order passed without impleading necessary parties is a nullity and a writ of mandamus cannot be issued directing appointment; the matter must be remitted for fresh decision after proper impleadment.

Summary

The Orissa Public Service Commission selected 39 candidates for temporary Munsif posts and sent its merit list to the State Government, which prepared a different list omitting several selectees. Writ petitions were filed challenging the State list; the Orissa High Court prepared its own list and directed appointments without giving notice to other affected candidates, who were necessary parties. The omitted candidates appealed to the Supreme Court, contending that the High Court's order was void for non‑impleadment of necessary parties. The Supreme Court held that both procedural and substantive law require the presence of all necessary parties, making any order passed in their absence a nullity, and that a writ of mandamus cannot be issued directing the State Government to appoint candidates based on the High Court's list. Accordingly, the Supreme Court set aside the High Court's order and remitted the matter to the High Court for a fresh decision after impleading all necessary parties. The appeals were allowed with no order as to costs.

Issues considered

Whether the High Court's order directing appointments, made without impleading all necessary parties, is a nullity.
Whether a writ of mandamus can be issued directing the State Government to appoint candidates based on the High Court's list.
Whether the matter should be remitted to the High Court for fresh adjudication after proper impleadment of parties.

Legislation cited

Constitution of Indias. 142, s. 226

Subjects

Service lawTemporary Munsif recruitmentNecessary partyNullity of orderMandamusArticle 226Article 142Public Service Commission

Judgment

A KHETRABASl BlSWAL
v.
AJA YA KUMAR BARAL 'A-ND ORS.

NOVEMBER 20, 2003

B [V.N. KHARE, CJ. AND S.B. SINHA, J.]

Service Law :
• . , .• ~• ..,. '"~ ....: . • 1 << •. r ~. , ~ .·i ,,.. ,_ r \ · 1 · ,:.· __~ "' ~ '"""' .> . ; ~
Jtiditia~Postf ·of Temporary Muns if (Emer[f~ncy, lj.ecn;.itn:ze~t)-
C Orissa Public Service Commission sending list of selected candidates to
Government-Government preparing another list omitting names of
candidates Sf!lected by Commission-Writ petition filed before High Court~
High Court preparing its own list without issuing notice to affected
candidates-Offers ofappointment issued by State Government in terms of
D list prepared by High Court-Held, candidates who ~uffered prejudice by
reason of directions issued by High Court were necessary parties-The
procedural as well as the substantive law both mandate that in the absenc€
of a necessary party, the order passed is a nullity and does not have a
binding effect-In exercise of jurisdiction unde.r Article 142 and with a
E view to do complete justice matter remitted to High Court for a fresh
decision on merits and after giving opportunity to writ petitioners to
implead all the' necessary parties-Constitution of India-Article 142.

Practice and Procedure-Non-impleadment of necessary parties-
Effect of
F
Constitution of India, 1952 :

Article 226-Writ of mandanus-Selection to posts of Temporary
Munsifs-Dispute arising out of State Government preparing a different
G list than that sent to it by Orissa Public Service Commission-Writ petition
filed before High Court-High Court preparing its own list and giving
directions accordingly-Held, a writ ofor in the nature ofmandamus could
not have been issued directing State Government to appoint the selectees
in terms ofthe select list prepared by High Court-High Court should have,
H if such a case was made out, relegated the matter to the Commission.
8
KHETRABASI BISWAL v. A.K. BARAL 9

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5984 of A
1998.

From the Judgment and Order dated 22.8.97 of the Orissa High Court
in O.J.C. No. 14380 of 1996.

WITH B

C.A. Nos. 5986, 5987 and 5985 of 1998.

Dr. K.S. C:hauhan,
'
Chand
.
Kiran and V.K. Burman for the Appellant
in C.A. No. 5984/98. c
Goodwill Indeevar for the Appellant in C.A. No. 5985/98.

V .A. Mohta, Bharat Sangal, Ms. Sangeeta Panicker and R.R. Kumar
for the Appellants in C.A. No. 5986-87/98.
D
Jana Kalayan Das Respondent for State .
. , Ms. Kirti Mishra for Orissa Public Service Commission.

The following Order of the Court was delivered :
E
On 17.6.1996 the Orissa Public Service Commission (for short 'the
Commission') issued an advertisement No. 5 of 1996-97, inviting application
in the prescribed form for 25 posts of Temporary Munsif (Emergency
Recruitment) in Class II of Orissa Judicial Service.
F
The appellants herein and the respondents along with the others
submitted an application before the Commission.

A written examination was held by the Commission and in terms
thereof, a list of the successful candidates was prepared. The selectees were
later on interviewed by the Commission and in the said proceeding a sitting G
Judge of the High Court acted as an expert. Thereafter the select list has
been prepared on the basis of merit, which contained 39 names. The names
of the appellants, admittedly, found place therein. The said list was sent
to the State Government for its approval. The State Government, however,
on receiving the said list, prepared another list. The name of Khetrabasi H
10 SUPREME COURT REPORTS [:2003] SUPP. 6 S.C.R.
A Biswal also found place therein. The names of the appellants, namely,
Dipali Chand and Govinda Chandra Parida and another were omitted:
Several wrif applications were filed by Ajaya Kumar Baral, Pradipta
Kishore Bhuyan, Krushna Chandra Jena, Bijaya Kumar Patra and Govinda
Chandra Parida and Anr. filed petitions bearing O.J.<::;_. Nos; 14,380' of
B 1996, 5566, 6040, 6041 and 6088 of 1997 respectively. It is also n'ot in'.
dispute that one of the appellants, namely, Dipali Chand· in Civil Appeaf
Nos. 5986 and 5987of1998 also filed a Writ Petition No. 13687-of1997,
which it still pending. By reason of the impugned judgment, the High Court-
purporting to interpret the s~rvice rules prepared the list of the candidates,
who should have been selected. Pursuant to and in furtherance of the
C directions issued by the High Court, offers of appointment were issued bt
the State Government in terms of the list prepared by the High Court. The
appellants herein were not party to the writ applications. The High Court,
while preparing its own list, did not think it fit to issue notices to other
candidates like the appellants herein, who had suffered prejudice by reason
D of the directions issued by the High Court. The appellants, therefore, were
necessary parties.

The State Government after receiving the list from the Commission,
prepared another list out of the list prepared by the Commission. In this
E list of the State Government, names of certain persons, who were in merit
list did ~ot find place. One of such situated person filed a petition under
Article 226 of the Constitution of India before the Orissa High Court,"
challenging the list prepared by the State Governme~t. It is not disputed
that the appellants herein were not parties to the writ petition.

F It is against the said judgment of the High_ Court, the appellants are
in appeal before us.

The procedural law as well as the substantive law both mandates that
in- the absence of a necessary party, the order passed is a nullity and does
G not have a binding effect.

. It is true that the successful candidates have not been parties before l
us, but it appears that the appellants herein proceeded to implead only
Ajaya Kumar Baral, who was also a writ petitioner before the High Court.
Having regard to the peculiar facts and circumstances of the case, we are
H of.the opinion that in exercise of our jurisdictio~. under Artide 142 of the
KHETRABASI BISWAL v. A.K. BARAL 11

Constitution of India and ~ith a view to do complete justice to the parties, A
the matters may be remitted to the High Court for a fresh decision on merits
and after giving opportunity to the writ petitioners to implead all the
necessary parties therein. The writ petition filed by Dipali Chand should
be heard along with the other writ petitioners. In our opinion a writ of or
in the nature of mandamus could not have been issued, directing the State B
Government to appoint the selectees in terms of the select list prepared by
the High Comt. The High Court should have, if such a case was made out,
relegated the matters to the Commission. The writ petitioners before the
High Court and the other persons, who have been appointed pursuant to
or in furtherance of the judgment of the High Court, would continue to hold C
the post till a final decision is rendered in the matters by the High Cuort.

In that view of the matter, we set aside tohe order under challenge and
remit the matter to the High Court for decision on merits after giving an
oppo1tunity to the writ petitioners to implead all the necessary parties in
the writ petition. D
The appeals are allowed with the aforementioned directions. There
shall be no order as to costs.

Let the records be sent forthwith.
E
Since the matters relate to the vacancies in the year 1996-97, it
requires expeditious hearing. The High Court may dispose of the matters
as early as possible.

R.P. Appeals allowed.

-