IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2050 of 2008 with CWP(T) Nos. 2052,2054,2057 and 2059 of 2008. Reserved on: 23.02.2010. Decided on: 23.02.2010. _________________________________________________________ 1. Sumita Sood. …Petitioner. -Versus- State of H.P. and Others. …Respondents. 2. Devinder Parshad. ….Petitioner. -Versus- State of H.P. and Others. ….Respondents. 3. Dinesh Kumar. ….Petitioner. -Versus- State of H.P. and Others. ….Respondents. 4. Avtar Krishan. ….Petitioner. -Versus- State of H.P. and Others. ….Respondents. 5. Hira Lal. ….Petitioner. -Versus- State of H.P. and Others. ….Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner(s). : Dr. Lalit Sharma, Advocate in CWP(T) No. 2050 of 2008. Mr. D.P. Gupta, Advocate vice counsel in CWP(T) No. 2052 of 2008. Mr. Neel Kamal Sharma, Advocate in CWP(T) No. 2054 of 2008. None for the petitioner(s) in CWP(T) Nos. 2057 and 2059 of 2008. For respondents No. 1& 2 : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General in all the petitions. For respondent No. 3. : Mr. D.K. Khanna, Advocate in all the petitions. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. Rajiv Sharma, Judge: Since common questions of law and facts are involved in these petitions, these were heard together and are being disposed of by this common judgment. Material facts necessary for adjudication of these petitions are that the process for filling up the posts of Lecturers (School Cadre) in various subjects was initiated by respondent No. 3. Petitioners submitted their applications to be considered for the posts of Lecturers (School Cadre) in the subjects of English, Political Science and Chemistry. The screening test was held on 16th June, 1989. They had qualified the screening test and were called for the interview. The result was declared on 15th January, 1990 and respondent No. 3 prepared the list of selected candidates. However, the appointment letters were not issued to the petitioners and similarly situate persons. The case of the petitioners, in nut-shell, is that once the process has been initiated by the respondents for filling up the posts of Lecturers (School Cadre) in various subjects, the criteria of reservation could not be changed. The case of the respondents is that after the judgment of the Apex Court reported in AIR 1988 Supreme Court 959, titled Dr. Chakradhar Paswan versus State of Bihar and others, dated 8th March, 1988, the earlier instructions dated 25th February, 1988 were withdrawn on 5th March, 1992. It was decided to make the reservation subject-wise. Mr. Lalit Sharma, Mr. D.P. Gupta and Mr. Neel Kamal Sharma, learned counsel for the petitioners have vehemently argued that the decision not to appoint the petitioners and to re-cast the merit list on the basis of letter dated 5th March, 1992 is illegal, arbitrary, unjust and, thus violative of Articles 14 and 16 of the Constitution of India. They have also argued that once the process has been initiated by the respondents, the same could not be changed mid way by re- casting the merit list on 17th June, 1992. Mr. Rajender Dogra, learned Additional Advocate General and Mr. D.K. Khanna, learned counsel have vehemently argued that the decision to make reservation subject-wise has been done on the basis of the judgment pronounced by their Lordships of the Hon’ble Supreme Court in AIR 1988 Supreme Court 959. They further contended that the petitioners have not arrayed those candidates as respondents who have been selected and appointed pursuant to fresh list prepared on 17th June, 1992. I have heard the learned counsel for the parties and gone through the pleadings carefully. The State Government has initiated the process of filling up 105 vacancies of Lecturers (School Cadre) in twelve subjects by notifying the same to the various employment exchanges. According to the instructions issued on 25th February, 1988, the system of subject-wise reservation was done away with and instead reservation was required to be given on total vacancies to be filled up. Accordingly, the selection process was completed and the list of selected candidates was prepared on 15th January, 1990. The names of the petitioners find mention in this list. However, the fact of matter is that before the selection process was initiated by the respondents, their Lordships of the Hon’ble Supreme Court in AIR 1988 Supreme Court 959 have laid down that the reservation should be subject-wise and not according to the total vacancies to be filled up. A letter was issued on 5th March, 1992, whereby earlier instructions issued on 25th February, 1988 were withdrawn. The effect of issuance of letter dated 5th March, 1992 was that the reservation was to be made in each subject as reflected in Annexure R-3-B. The cumulative effect of the exercise under taken by the respondents on the basis of letter dated 5th March, 1992 was that the merit list was re-drawn on 17th June, 1992. The respondents have not reduced the number of posts, but had drawn the new merit list according to subject-wise reservation as worked out by the Director. The Court is of the considered view that once the judgment was pronounced by the Apex Court on 8th March, 1988, the same was required to be scrupulously followed. It was the law declared by the Hon’ble Supreme Court to make reservation subject-wise and not according to the total cadre strength. In these circumstances, there is no illegality in the process of re-casting the merit list by the respondents on 17th June, 1992. There is merit in the submissions made by the learned counsel appearing on behalf of the respondents that the petitioners have not added necessary parties by impleading the selected candidates pursuant to fresh select list dated 17th June, 1992. It is settled law by now that the appointment of the candidates who have been appointed cannot be quashed and set aside without hearing them. Petitioners knew that the fresh select list has been prepared and despite that they have not impleaded the selected candidates as respondents. Learned counsel appearing on behalf of the petitioners have argued that interim orders were passed by the learned H.P. State Administrative Tribunal that the selection/appointment shall abide by the out-come of the petition. However, the fact of the matter is that the appointment of selected candidates cannot be quashed in these petitions without hearing them. The selected candidates were appointed in the year 1992. Their Lordships of the Hon’ble Supreme Court in Prabodh Verma and others versus State of Uttar Pradesh and others, (1984) 4 Supreme Court Cases 251 have held as under: “28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh’s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh’s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.” Similarly, their Lordships of the Hon’ble Supreme Court in Tridip Kumar Dingal and Others versus State of West Bengal and Others, (2009) 1 Supreme Court Cases 768 have held as under: “41. Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as respondents in a “representative capacity”. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside.” Accordingly, in view of the observations made hereinabove, there is no merit in these petitions and the same are dismissed. No costs. (Rajiv Sharma) Judge February 23, 2009. bhupender