Issue of Non-Joinder of proper parties, is not sufficient enough to dismiss an appeal: Orissa High Court

 ORISSA HIGH COURT CUTTACK WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 Appeals against the orders dated 29.11.2019 passed by the learned Single Judge in W.P(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015) In W.A No.7019 Babita Satpathy & others Appellants Versus State of Odisha & Others Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass In W.A No.7019 Dibakar Panda Versus State of Odisha & Another For Appellant : M s.B. Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Standing Counsel School & Mass Education Department Appellants In W.A No.7019 Ramakanta Nath & Others State of Odisha & Others Versus Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass In W.A No.7019 Hrusikesh Panda & Another Appellants Versus State of Odisha & Others Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass P R E S E N T: THE HONOURABLE KUMARI JUSTICE S. PANDA AND THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI Date of hearing: 01.12.2020 Date of Judgment: 23.12.2020 S.K. Panigrahi J. 1. In the present Writ Appeals the appellants seek to challenge the Order dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015 which were dismissed for non joinder of proper parties without going into the merits of the case. 2. Since common question of facts and law are involved in all these Writ Appeals the same are heard together and disposed of by this common judgment. 3. The appellants seek direction from the respondents opposite parties to recast the Selection List of Sikshya Sahayaks drawn pursuant to the advertisement as per merit and engage them as Sikshya Sahayaks in all the districts and grant the consequential service benefits to 4. The appellants having required requisite qualification and being trained as well as OTET qualified persons had sought engagement to the post of Sikshya Sahayak on the basis of their Online Applications on 12.09.2014. The factual conspectus of the case revolves around issue of selection of some less meritorious candidates whereas the appellants claim to be more meritorious in comparison to other candidates to be accommodated. The resolution contending guidelines of the School and Mass Education Department for appointment of Sikshya Sahayaks which allowed the appellants to apply for the said post. 5. The short grievance of the appellants herein is that they are the eligible candidates for the post of Sikshya Sahayaks and pursuant to a direction of this Court in Writ PetitionNo.18720 of 2014 and some other connected matters the Commissioner cum Secretary was pleased to enhance the upper age limit by three to four years for the purpose of engagement of Sikshya Sahayak. Though the present appellants were applicants in response to the advertisement published on 12.09.2014 but their candidature were rejected on the ground of their overage. 6. The School and Mass Education Department though allowed the over aged eligible candidates but the cases of the appellants were rejected only due to their overage in their 3rd preference choice district. However during the course of OnLine applications since the appellants were over aged candidates i.e. more than 35 years the website did not accept OnLine applications from the appellants. Being aggrieved by such non acceptance of their OnLine applications all the appellants have approached this Court and this Court was pleased to give direction to the State Government to take a decision on the matter of fixation of overage. Pursuant to the order passed by this Court in W.P.(C) 18542 of 2014 a High Power Committee was constituted and a meeting was held under Chairmanship of Commissioner cum Secretary to Govt. S & M.E. Department for relaxation of upper age limit for engagement of Sikshya Sahayaks and by their meeting decided to enhance their overage limit from 35 years to 42 years. When such decision was taken by the High Power Committee the first and second preference choice district selections were almost over. In that context the appellants made their grievance before the School and Mass Education Department and the said Department directed the OPEPA to allow over aged candidates to participate in the selection process in their third preference districts which they have opted during On line application. 7. Since the OPEPA was conducting the selection process during the first preference selection the appellants were shown to be rejected under the heading of “Cause of Rejection” as overage and the said rejected candidates due to overage has not yet been engaged. 8. Pursuant to the letter dated 30.07.2015 the School and Mass Education Department specifically directed the OPEPA which is Nodal Agency for selection of Sikhya Sahayak on the basis of the advertisement published in the year 2014 15 and 2016 17 to accommodate all over aged eligible candidates in the third preference choice district. It has also been directed that a separate list of over aged candidates as per their third preference choice district was available in the district Log in and that list to be treated as authenticated document for third preference recruitment process. Further in the said letter it has been clearly mentioned that the candidatures of over aged candidates will be considered in their third preference choice district who have submitted their applications through OnLine subject to positive order of the Hon’ble Court. 9. Learned Single Judge has not considered the Writ Petitions filed by the appellants on merit but dismissed it solely on the ground of non joinder of the necessary parties. Since there are large number of candidates for the said appointment as against large number of vacancies and the appellants do not have any grievance against the candidates who have already been appointed before the decision was taken by the State Government to enhance upper age limit from 35 to 42 years learned counsel for the appellants submitted that it is very difficult to array all the candidates as parties and serving them by post will take long time to get the service completed which practically becomes very difficult. Hence the issue of non joinder of parties is not a pertinent issue. Further the appellants are not against the appointment of any candidates they seek appointment against the existing vacant posts. 10. The appellants’ grievance is only to accommodate them on vacant seats with the enhanced upper age limit. Mr. S.K. Samal learned counsel for the appellants submits that as per information sought under the RTI Act there are about 7062 numbers of posts of Sikshya Sahayaks which are lying vacant after the selection of Sikhya Sahayaks pursuant to the completion of recruitment process as per advertisement published in the year 2014 15. Since sufficient number of posts are lying vacant the appellants can easily be accommodated without disturbing any selected candidates. Therefore the orders passed by the learned Single Judge deserve to be quashed. 11. Learned Standing Counsel for the School and Mass Education Department submits that the appellants have filed this appeal under Clause 10 of Letter Patent’s Act read with Chapter VIII Rule 2 of the Orissa High Court Rules challenging the order dated 29.11.2016 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015 which were dismissed solely on the ground of non joinder of proper further submitted that the appellants’ allegation about less meritorious candidates have been vis à vis the present appellants erroneous. He has further contended that the appellants have been given opportunity to appear in fourth preference district and they were found below the cut off marks. Hence they were not engaged as Sikhya Sahayaks. 12. On perusal of the materials available on record and considering the submissions of learned counsels for both sides we set aside the orders dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 223615 189015 and 187615. However it is made clear that since there are unfulfilled vacancies of posts of Sikhya Sahayaks available against which the 9 appellants could be accommodated we therefore direct the respondents to accommodate these appellants against the said vacant posts as they are eligible for the said posts. 13. In the light of the above we dispose of all the Writ Appeals. No order as to cost. Sanju Panda J. I agree. ….. …. Orissa High Court Cuttack The 23rd December 2020 AKK LNB 

Summary: “The issue of non-joinder of parties is not a pertinent issue”, this remarkable stand was forwarded by Hon’ble Orissa High Court, in a two judge bench chaired by Hon’ble Justice Mr. S.K. Panigrahi &amp; Hon’ble Justice Mr. Sanju Panda, where a common judgment was advanced in the Writ appeal cases of Babita Satpathy &amp; Ors. V. State of Odisha &amp; Ors., [W.A. NO.701 of 2019]; Dibakar Panda V. State of Odisha &amp; anr., [W.A No.700 of 2019]; Ramakanta Nath &amp; Ors. V. State of Odisha &amp; ors., [W.A No.702 of 2019]; Hrusikesh Panda V. State of Odisha, [W.A No.703 of 2019]. In the present Writ Appeals, the appellants seek to challenge the Order dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016, 22369 of 2015, 18904 of 2015 and 18768 of 2015 which were dismissed for non-joinder of proper parties without going into the merits of the case. Since common question of facts and law are involved in all these Writ Appeals, the same are heard together and disposed of by this common judgment. The appellants seek direction from the respondents/opposite parties to recast the Selection List of Sikshya Sahayaks drawn pursuant to the advertisement as per merit and engage them as Sikshya Sahayaks in all the districts and grant the consequential service benefits to them. The factual conspectus of the case revolves around issue of selection of some less meritorious candidates whereas the appellants claim to be more meritorious in comparison to other candidates to be accommodated. The grievance of the appellants herein is that they are the eligible candidates for the post of Sikshya Sahayaks and pursuant to a direction of this Court in Writ Petition (Civil) No.18720 of 2014 and some other connected matters, the Commissioner-cum-Secretary was pleased to enhance the upper age limit by three to four years for the purpose of engagement of Sikshya Sahayak. Though the present appellants were applicants in response to the advertisement published on 12.09.2014, but their candidature were rejected on the ground of their overage. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “Since there are large number of candidates for the said appointment as against large number of vacancies and the appellants do not have any grievance against the candidates who have already been appointed before the decision was taken by the State Government to enhance upper age limit from 35 to 42 years, learned counsel for the appellants submitted that it is very difficult to array all the candidates as parties and serving them by post will take long time to get the service completed which practically becomes very difficult. Hence, the issue of non-joinder of parties is not a pertinent issue. Further the appellants are not against the appointment of any candidates rather they seek appointment against the existing vacant posts.”