# State Of U.P. & Ors v. Shiv Datt Joshi & Ors

- **Citation:** (2025) 7 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-21
- **Case number:** Special Appeal No. 120 of 2025
- **Bench:** Arun Bhansali, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-shiv-datt-joshi-ors-53536
- **Pages:** 29

## Headnote

Gaurav Mehrotra, Akhilesh Kumar Kalra,
Rajesh Chandra Mishra, Ritika Singh

Issue for Consideration
(A) Effect of not impleading all the affected
parties and not providing them opportunity of
hearing in compliance of the principle of natural
justice, particularly in the light of fact that few
similarly
situated
affected
parties
were
impleaded and had contested the matter before
the learned Single Judge.
(B) Legality of the promotion granted from antidate.
(C) Impact and purpose of 'Proviso'.
(D)
Applicability
of
doctrine
of
Ut
Res
MagisValeat Quam Pereat.
(E) Use of the word 'Person', whether it
connotes singular or plural.
 (F) Meaning of the word 'Adjudication'.
Headnotes
(A)
Service
law
-
Constitution
of
India,1950 - Article 14 - Principle of
natural justice - Non-joinder of all the
affected parties - Seniority list was
finalized after considering the objections -
In writ petition arising out of challenge to
seniority list, it is claimed that the
appellant, who are the direct recruits,
were
not
afforded
a
reasonable
opportunity
of
hearing,
though
few
affected parties belonging to the direct
quota groups were impleaded as private
respondents and they were represented
through their respective counsel - Effect :
Held : Impleadment of a few affected
employees would be sufficient compliance
relating to the principles of joinder of parties as
they are in a position to defend the interest of
all other affected parties in representative
capacity and non-joining of all the parties would
not be fatal - If the party raises a plea of noncompliance of principles of natural justice, this
in itself may not always work for setting aside a
judgment unless it is shown that the party
raising
such
an
objection
has
suffered
consequential failure of justice - This Court does
not find much substance in the submissions of
the learned Senior Counsel seeking to set aside
the order passed by the learned Single Judge
solely on the ground of not being provided with
an opportunity of hearing especially when no
prejudice could be established. [Paras 42, 43
and 49]
(B) Service Law - Promotion - Granted
from an ante-date - Validity challenged -
It is claimed that the promotion could
have been made only from the date of
issuance of the order - Earlier objections
of directly appointed employee regarding
date of promotion was rejected thrice -
Raising of same issue after 7 years -
Permissibility - Relevancy of Proviso to R.
8 of the Rules of 1991 considered:
Held: The proviso carves an exception and it is
an indicator of the fact that the Rules reserves
the power or rather it enabled the employer to
invoke
the
said
proviso
and
provide
appointment on the promoted post from a
particular back date, if required. If at all, the
promotions were to be covered only from the
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
309
date on which the promotion order was to take
effect and it was to apply uniformally then there
was no purpose of incor

## Text

_Characters 0–39,834 of 92,472. This is a partial read: ask again with offset=39834 for what follows._

308 INDIAN LAW REPORTS ALLAHABAD SERIES

30.
Special
Appeal
is,
therefore,
dismissed.
----------
(2025) 7 ILRA 308
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2025
BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 120 of 2025
&
Special Appeal No. 122 of 2025

State Of U.P. & Ors. ...Appellants
Versus
Shiv Datt Joshi & Ors. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Gaurav Mehrotra, Akhilesh Kumar Kalra,
Rajesh Chandra Mishra, Ritika Singh

Issue for Consideration
(A) Effect of not impleading all the affected
parties and not providing them opportunity of
hearing in compliance of the principle of natural
justice, particularly in the light of fact that few
similarly
situated
affected
parties
were
impleaded and had contested the matter before
the learned Single Judge.
(B) Legality of the promotion granted from antidate.
(C) Impact and purpose of 'Proviso'.
(D)
Applicability
of
doctrine
of
Ut
Res
MagisValeat Quam Pereat.
(E) Use of the word 'Person', whether it
connotes singular or plural.
 (F) Meaning of the word 'Adjudication'.
Headnotes
(A)
Service
law
-
Constitution
of
India,1950 - Article 14 - Principle of
natural justice - Non-joinder of all the
affected parties - Seniority list was
finalized after considering the objections -
In writ petition arising out of challenge to
seniority list, it is claimed that the
appellant, who are the direct recruits,
were
not
afforded
a
reasonable
opportunity
of
hearing,
though
few
affected parties belonging to the direct
quota groups were impleaded as private
respondents and they were represented
through their respective counsel - Effect :
Held : Impleadment of a few affected
employees would be sufficient compliance
relating to the principles of joinder of parties as
they are in a position to defend the interest of
all other affected parties in representative
capacity and non-joining of all the parties would
not be fatal - If the party raises a plea of noncompliance of principles of natural justice, this
in itself may not always work for setting aside a
judgment unless it is shown that the party
raising
such
an
objection
has
suffered
consequential failure of justice - This Court does
not find much substance in the submissions of
the learned Senior Counsel seeking to set aside
the order passed by the learned Single Judge
solely on the ground of not being provided with
an opportunity of hearing especially when no
prejudice could be established. [Paras 42, 43
and 49]
(B) Service Law - Promotion - Granted
from an ante-date - Validity challenged -
It is claimed that the promotion could
have been made only from the date of
issuance of the order - Earlier objections
of directly appointed employee regarding
date of promotion was rejected thrice -
Raising of same issue after 7 years -
Permissibility - Relevancy of Proviso to R.
8 of the Rules of 1991 considered:
Held: The proviso carves an exception and it is
an indicator of the fact that the Rules reserves
the power or rather it enabled the employer to
invoke
the
said
proviso
and
provide
appointment on the promoted post from a
particular back date, if required. If at all, the
promotions were to be covered only from the
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
309
date on which the promotion order was to take
effect and it was to apply uniformally then there
was no purpose of incorporating the proviso -
Where the objections regarding the date of
promotion of the writ petitioners was raised by
the persons belonging to the direct quota on 3
different occasions and after considerations,
they were rejected by the State and never
assailed by the aggrieved party before any court
of law. After 7 years, now taking a ground that
the writ-petitioners were granted promotion
erroneously appears to be arbitrary, inasmuch
as, this error, if at all, as stated by the State,
was in their knowledge and it was considered on
three different occasions. [Paras 61 and 87]
(C) Interpretation of statute - 'Proviso' to
any general provision - Impact and
purpose:
Held : In the words of Lord Macmillan the
purpose of a proviso is expressed as 'the proper
function of a proviso is to except and to deal
with a case which would otherwise fall within
the general language of the main enactment
and its effect is to confine it to that case - The
purpose of incorporating a proviso is to qualify
the main provision or to create an exception to
what is in the enactment. [Paras 55 and 59]
(D) Interpretation of statute - Doctrine of
Ut Res MagisValeat Quam Pereat -
Applicability:
Held : One of the cardinal principles of
interpretation is that nothing should be read in
an enactment and the use of the words in the
enactment should not be interpreted in such a
manner that the words used in the enactment
are made superfluous. [Para 62]
(E) Word 'Person' - Meaning - Whether it
connotes singular or plural:
Held : Use of the phrase in singular would also
include its plural. Thus, to state that merely
because the word 'person' has been used in the
singular context, it would not include several
persons, in plurality, cannot be accepted. [Para
63]
(F) Word 'Adjudication' - Meaning:
Held : Adjudication is a legal process by which
a neutral authority/court or Tribunal resolves a
dispute between the parties by considering the
material, evidence and by applying the law and
then issue a binding decision. [Para 81] (E-1)
Case Law Cited
P. Sudhakar Rao v. U. Govinda Rao, (2013) 8
SCC 693; Vinod Kumar v. State of Haryana and
Others, (2013) 16 SCC 293; Union of India and
Another v. Narendra Singh, (2008) 2 SCC 750;
State W.B. v. Amal Satpathi, 2024 SCC OnLine
SC 3512; Ashok Kumar Das v. University of
Burdwan, (2010) 3 SCC 616; Vikas Pratap Singh
v. State of Chhattisgarh, (2013) 14 SCC 494;
Union of India v. Manpreet Singh Poonam;
(2022) 6 SCC 105; P.S. Sadasivaswamy v. State
of T.N., (1975) 1 SCC 152; Union of India v. C.
Girija, (2019) 15 SCC 633; Ajay Kumar Shukla v.
Arvind Rai, (2022) 12 SCC 579; Prabodh Verma
v. State of U.P., (1984) 4 SCC 251; Amit Singh
v. Ravindra Nath Pandey, (2022) 20 SCC 559;
Durgawati Singh v. Deputy Registrar, Firms
Societies and Chits, Lucknow, 2022 (2) ALJ 200;
State of U.P. v. Sudhir Kumar, 2020 SCC OnLine
SC 847; Sundaram Pillai V. VR. Pattabiraman,
AIR 1985 SC 582; Southern Petrochemical
Industries Co. Ltd. v. Electricity Inspector &
ETIO, (2007) 5 SCC 447; Indore Development
Authority v. Manoharlal and Others, (2020) 8
SCC 129 - referred to.
List of Acts
Uttar Pradesh Government Servants Seniority
Rules, 1991 - Rule 8 and its proviso.
List of Keywords
Seniority; Promotion; Direct recruit; Tentative
Seniority
List;
Reasonable
opportunity
of
hearing; Principle of natural justice; Cursory
order; non-speaking order; non-reasoned order;
Impleadment; Impleadment in a representative
capacity; Non-impleading all the parties; Nonjoinder of necessary parties; Principle of joinder
of
parties;
Principle
of
interpretation;
Superfluous; Proviso; Person; Singular; Plural;
State; Model employer; Doctrine of res-judicata;
Adjudication.
Case Arising From
310 INDIAN LAW REPORTS ALLAHABAD SERIES
Judgment and order dated 24.02.2025 passed in
Writ A No. 9193 of 2023, and Writ A No. 5381
of 2024
(Delivered by Hon'ble Jaspreet Singh, J.)

1. In these two intra-court appeals, the
dispute of seniority between the direct
recruits and promotees of the Secretariat,
Administration Department is in question.
Two writ petitions were filed before the
learned Single Judge by the promotees
wherein they had challenged the orders
impugned
by
which
the
date
of
appointment of the writ-petitioners was
changed from 30.06.2016 to 13.07.2016 as
well as the subsequent seniority list issued
on 06.09.2023 wherein the writ petitioners
were placed lower in seniority.

2. Since the issue involved in both the
petitions was identical, hence, both the writ
petitions were decided by a common
judgment/order dated 24.02.2025 whereby
the writ petitions were allowed and the
order dated 09.08.2023, the seniority list
dated 06.09.2023 and the consequential
promotion order dated 25.10.2023 were set
aside
and
the
State-respondents
was
directed to prepare a fresh seniority list.
The aforeasaid judgment and order dated
24.02.2025 corrected on 28.02.2025 passed
in Writ-A No. 9193 of 2023 and Writ-A
No. 5381 of 2024 has been put to challenge
in the instant two intra-court appeals.

3. The State has preferred intra-court
appeal No. 120 of 2025 which arises out of
Writ-A No. 9193 of 2023. Sri Mukesh
Pradhan and Mukesh Chandra Yadav, as
appellants of the connected intra-court
appeal no. 122 of 2025, who were the
respondent nos. 5 and 7 respectively in
Writ-A No. 5381 of 2024, too have assailed
the same judgment and order dated
24.02.2025 corrected on 28.02.2025. Since
the issue in both the appeals is common,
hence, both the intra-court appeal are being
decided by this common judgment.

4. Sri Kuldeep Pati Tripathi, learned
Additional Advocate General and Sri Vivek
Shukla, learned Additional Chief Standing
Counsel for the State have challenged the
order of the writ court urging that the order
impugned does not take note of the relevant
Service Rules. It was urged that the learned
Single Judge fell in error in upholding an
ante-dated promotion order which was dehors the rules. The seniority is to be granted
from the date of the promotion order which
is provided in the Service Rules and the
State having corrected an error, by
correcting the date from which the
promotion was to take effect in sync with
the date of the promotion order, actually
amounted to setting right, a wrong done
earlier and in such circumstances there was
not much scope for interference in writ
jurisdiction but the learned Single Judge
failed to consider this aspect of the matter,
which has resulted in sheer miscarriage of
justice.

5. It was urged that the State could not
have
granted
retrospectivity
to
the
promotions and in the aforesaid backdrop
the grant of promotion to the respondents
from a date earlier than the date of the
promotion order could not be justified,
however, the learned Single Judge did not
appreciate this aspect and has applied the
principles of res-judicata which was not
applicable, hence, the order impugned
cannot be sustained and it deserves to be
set aside.

6. The learned counsel for the Stateappellants in support of their submissions
has relied upon the following decisions:-
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
311

(i) P. Sudhakar Rao v. U.
Govinda Rao, (2013) 8 SCC 693;

(ii) Vinod Kumar v. State of
Haryana and Others; Vinod Kumar v.
State of Haryana, (2013) 16 SCC 293;

(iii) Union of India and Another
v. Narendra Singh; (2008) 2 SCC 750;

(iv)
State
W.B.
v.
Amal
Satpathi, 2024 SCC OnLine SC 3512;

7. Sri H.G.S. Parihar, learned Senior
Counsel assisted by Ms. Meenakshi Parihar
Singh, learned counsel for the appellants of
the connected intra-court appeal No. 122 of
2025 has primarily supported the aforesaid
submissions advanced by the learned
Additional Advocate General, however, in
addition, it was urged that the appellants
who were respondent nos. 5 and 7 in the
connected petition no. Writ-A No. 5381 of
2024 were not given an opportunity of
hearing and they have been castigated
without an opportunity which has caused
sheer miscarriage of justice. Neither notices
were issued nor the appellants were granted
an opportunity to file their response, hence,
as far as the appellants of the intra-court
appeal No. 122 of 2025 are concerned, the
order impugned passed by the learned
Single Judge practically is an ex-parte
order and in such circumstances, it would
be appropriate for the impugned order to be
set aside while remanding the matter before
the learned Single Judge with liberty to the
appellants of Intra-court Appeal No. 122 of
2025 to file their response and the matter
be re-considered and decided on merits.

8. Sri Gaurav Mehrotra, learned
counsel assisted by Ms. Ritika Singh and
Mr. Ahad Abdul Moin, learned counsel
appearing for the writ petitioners in both
the connected petitions and the respondents
herein,
has
refuted
the
aforesaid
contentions and submitted that the issue of
seniority had come to be settled in the year
2016. No challenge was ever raised to the
said seniority list, however, later again in
April, 2019 an attempt was made to
challenge the seniority of the writpetitioners which again was turned down.
Finally in the year 2022, once again an
attempt was made to challenge the seniority
which did not find favour with the State.

9. Almost after 7 years, upon an
indirect attempt made by certain persons of
the direct recruit quota, the issue relating to
promotion date of the writ petitioners was
raised once again and the State considering
the same passed the impugned order dated
09.08.2023 unsettling the seniority which
was settled 7 years ago. This came to be
challenged by the respondents herein,
before the writ court who after hearing the
parties and after meticulously considering
the
records,
set
aside
order
dated
09.08.2023.

10. It was further urged that the
submissions advanced by the State that the
service rule was violated, is misconceived
as the rules clearly provided the requisite
power to the State to grant seniority from a
date prior to the date of the order. After
complying with the necessary formalities
and in accordance with the relevant rule,
the order of promotion was issued and then
the seniority list was prepared, hence, it
cannot be said that the learned Single Judge
has ignored the applicable rules.

11. It was also submitted that the State
had issued a notice calling upon the writpetitioners to furnish their reply as to why
their date of appoitnmnet on the promotion
post, may not be changed and despite
312 INDIAN LAW REPORTS ALLAHABAD SERIES
having submitted a detailed reply, the State
did not consider the same and rejected it by
a cursory, non-speaking and a nonreasoned order.

12. It was further submitted that the
appellants of the connected intra-court
appeal
were
duly
represented
as
respondents in the writ petitions and they
were represented by their counsel. Ample
opportunity was available with them to
furnish their replies but they chose not to
do so and in such circumstances, it cannot
be said that the appellants of the connected
appeal were not given any opportunity to
place their submissions or contest the
peittion on merits.

13. It was urged that in matters
relating to seniority, where large number of
persons may be affected, in such cases even
if few persons are impleaded and they
represent the cause which is under
consideration of the court then it would not
hamper the rights of the some persons
concerned who may not have personally
contested the matter.

14. It was further urged that as far as
the appellants of the connected intra-court
appeal are concerned namely Mukesh
Pradhan and Mukesh Chandra Yadav, they
were both impleaded as respondent nos. 5
and 7 in the writ petition which was filed
by Sri Sanjeev Kumar Sinha and 2 Others
i.e. Writ-A No. 5381 of 2024. The other
respondents of Writ-A No. 9193 of 2024
i.e. the respondent no. 4 to 11 though
affected, have not assailed the order passed
by the writ court though they are in the
same bracket as the appellants of the intracourt appeal No. 122 of 2025.

15. Similarly, the respondents in Writ-A
No. 5381 of 2024 i.e. respondent nos. 4, 6, 8 to
11 have also not assailed the order passed by
the learned Single Judge and it is only the
respondent no. 5 and 7 who have filed the
intra-court appeal bearing No. 122 of 2025.

In such circumstances where the
parties were adequately represented and the
issue of seniority had been decided, hence, no
interference was required from this Court on
the ground that the appellants of the connected
intra-court appeal were not provided any
personal opportunity. For the aforesaid
reasons, it was urged that the intra-court
appeals deserve to be dismissed.

16. The learned counsel for the
respondents
relied
upon
the
following
decisions:-

(i)
Ashok
Kumar
Das
v.
University of Burdwan, (2010) 3 SCC 616;

(ii) Vikas Pratap Singh v. State of
Chhattisgarh, (2013) 14 SCC 494;

(iii) Union of India v. Manpreet
Singh Poonam; (2022) 6 SCC 105;

(iv) P.S. Sadasivaswamy v. State
of T.N., (1975) 1 SCC 152;

(v) Union of India v. C. Girija,
(2019) 15 SCC 633;

(vi) Ajay Kumar Shukla v.
Arvind Rai, (2022) 12 SCC 579;

(vi) Prabodh Verma v. State of
U.P., (1984) 4 SCC 251;

(vii) Amit Singh v. Ravindra Nath
Pandey, (2022) 20 SCC 559;

17. The Court had heard the learned
counsel for the respective parties and has
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
313
also perused the material available on
record.

18.
In
order
to
appreciate
the
controversy involved in the instant intracourt appeals, certain brief facts may be
noticed which are as under:-

19. The original writ-petitioners before
the writ court were appointed on the post of
Junior Grade Clerk in the year 1990 in the
Secretariat Administration Department. In
the year 2005, they were promoted to the
post of Assistant Review-Officer. After
satisfactory performance of their duties on
the post of Assistant Review-Officer and
having served on the said post for
substantial length of time, they were
eligible to be promoted to the post of
Review-Officer.

20. The exercise for promotion of the
writ petitioners commenced with issuance
of letter dated 26.07.2016, to the Secretary
of the Uttar Pradesh Public Service
Commission requiring it to convene the
meeting of the Selection Committee for the
purposes of conducting selections for the
vacant and newly created posts of ReviewOfficer in the promotion quota for the
selection year 2015-16.

21. The
Departmental
Promotion
Commitee held its meeting on 30.06.2016
and intimated the result to the StateGovernment. Thereafter the matter was
sent to the Uttar Pradesh Public Service
Commission to give its approval. The
approval was received by the State on
13.07.2016 in respect of 144 persons and
their promotion orders were issued on
13.07.2016 w.e.f. 30.06.2016. The persons
so promoted were placed on probation for a
period of two years and their seniority in
the cadre of review-officers was to be
considered.

22. In the aforesaid backdrop, a
tentative seniority list was issued on
23.07.2016, upon which objections were
invited
and
several
objections
were
received from the direct recruits of 2013
Batch wherein the specific issue raised was
regarding the grant of promotion to the
writ-petitioners from 30.06.2016 even
though their promotion orders were dated
13.07.2016.

23. In order to consider the said
objections, a 3 member Committee was
constituted who after due consideration
rejected the objections and the final
seniority list was published on 05.08.2016.

24.
On
18.08.2018,
a
tentative
seniority list was once again published for
the purposes of inviting objections. This
time too a four member Committee was
constituted. The recruits of the 2013 Batch
again raised the same objections regarding
the date of promotion given to the writpetitioners w.e.f. 30.06.2016 instead of
13.07.2016. These objections were once
again considered and rejected and then the
final seniority list was published on
03.04.2019 and this time too the same was
never challenged before any judicial forum.

25. On 15.07.2022, yet again a
tentative seniority list was published
against which objections were invited
wherein similar objections as were raised
earlier were filed by the direct recruits
relating to the date of grant of appointment
to the writ-petitioners from 30.06.2016
instead of 13.07.2016.

26. Again a 3 member Committee was
constituted which did not find favour with
314 INDIAN LAW REPORTS ALLAHABAD SERIES
the objections so raised and the date of
promotion given to the writ petitioners was
upheld vide order dated 11.08.2022.

27. However, on 14.07.2023, notices
were
issued
to
the
writ-petitioners
informing them that they had been
erroneously promoted w.e.f. 30.06.2016
whereas they ought to have been promoted
w.e.f. 13.07.2016, while calling for a
response from the writ-petitioners. The writ
petitioners furnished their detailed reply
which did not find favour with the StateAuthorities who rejected the same vide
order dated 06.09.2023. Immediately at the
said stage, a writ petition was filed by the
writ-petitioners, however, since the final
seniority list was issued, the same was
withdrawn and the instant two writpetitions bearing Writ-A No. 9193 of 2023
and Writ-A No. 5381 of 2024 came to be
filed assailing the promotion order dated
25.10.2023, the office memorandum dated
06.09.2023 and the order rejecting the
objections of the writ petitioners dated
09.08.2023.

28. Both the writ petitions were
connected and have been allowed by the
common order passed by the writ court
dated 24.02.2025. Since there was a
typographical error in the impugned order,
hence, the same was corrected vide order
dated 28.02.2025.

29. At the outset, this Court finds that
it will be appropriate to first take up the
issue as raised by the appellants of
connected intra-court appeal no. 122 of
2025 who are the direct recruits canvassing
the proposition that the said appellants
were not afforded a reasonable opportunity
of hearing and that they must be granted an
opportunity to contest the matter.

30. In this regard, if the record along
with the undisputed facts are perused, it
would indicate that Writ-A No. 5381 of
2024 came to be filed by Sanjeev Kumar
Sinha and 2 Others, who were the writpetitioners and belonging to the promotee
quota. In the said writ petition, apart from
the State-respondents, the appellants of
intra-court appeal no. 122 of 2025 were
impleaded as private respondents nos. 5
and 7.

31. The record would indicate that the
writ court in its order dated 16.07.2024 had
noticed that the State had raised a
preliminary
objection
regarding
maintainability whereas some of the
advocates had also raised an objection that
some parties were not impleaded in the writ
petition and, therefore, liberty be granted to
them to file their impleadment application.
The writ Court noticed and directed the
State to file a detailed counter affidavit
raising all pleas including the issue of
maintainability and the matter was directed
to be listed on 05.08.2024. The order dated
16.07.2024 is being reproduced hereinafter
for ready reference:-

"Heard Sri Gaurav Mehrotra,
assisted by Ms. Ritika Singh, learned
counsel for the petitioners, Sri Kuldeep
Pati Tripathi, learned Additional Advocate
General of Uttar Pradesh and Sri Vevek
Kumar Shukla, learned counsel for the
private respondents.

At the very outset, Sri Kuldeep Pati
Tripathi raised preliminary objection regarding
the maintainability of the writ petition by
submitting that this writ petition is not
maintainable on various grounds which may be
indicated in his affidavit and prays that for the
same, some reasonable time may be given to him.
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
315

Some of advocates have raised
objection to the effect that some parties
have not been impleaded in the writ
petition, therefore, liberty may be granted
to them to file impleadment application.

Sri
Gaurav
Mehrotra
has
informed this Court that the identical issue
is pending consideration before this Court
wherein pleadings are complete and
hearing is going on, therefore, this matter
may be adjudicated on merits.

Let a detailed counter affidavit be
filed by the State respondent taking therein
additional
plea
regarding
the
maintainability of the writ petition and the
objection regarding maintainability would
be heard and disposed of first and after
disposal
of
pleas
regarding
the
maintainability of the writ petition, the
matter may be proceeded further on merits.

Therefore, the detailed counter
affidavit would be filed within a period of
two weeks from today.

List this case in the week
commencing 05.08.2024 as fresh. This
matter may be taken up immediately after
fresh."

32. The record would further indicate
that when the matter was taken up on
06.08.2024 before the writ court, the State
was granted three week's time to file a
counter affidavit. The matter was thereafter
listed on several dates and on 30.10.2024,
the writ court directed the said Writ-A No.
5381 of 2024 to be connected with Writ-A
No. 9193 of 2023 and it is in this fashion
that both the writ petitions came to be
connected which were finally heard at a
later date and came to be decided on
24.02.2025.

33. The record also indicates that in
Writ-A No. 5381 of 2024, the State had
filed its detailed counter affidavit and the
petitioners were granted a week's time to
file its rejoinder as indicated in the order of
the writ court date 28.08.2024.

34. Thus, it would be seen that as far
as the both the writ petitions are concerned,
the affected parties belonging to the direct
quota groups were already impleaded as
private
respondents
and
they
were
represented
through
their
respective
counsel, as well.

35. The record further indicates that as
far as the private respondents in both the
writ petitions are concerned, they all have
been
joined
and
impleaded
in
a
representative capacity and all the said
persons, though juniors to the writ
petitioners have been placed at a higher
rank above the writ petitioners in the
impugned
final
seniority
list
dated
11.08.2023 and 06.09.2023.

36. It could not be disputed that all
such person who were higher in rank than
the writ petitioners as indicated in the
seniority list dated 11.08.2023 and who
have been promoted in terms of the final
seniority list dated 06.09.2023, would not
be affected by the outcome of the present
controversy as in any case they were
already higher in rank and it is only those
persons who as per the petitioners were
lower in rank but for the seniority list dated
06.09.2023 have been placed higher than
the writ petitioners would be the ones
actually aggrieved.

37. It is also not disputed that the
private respondent nos. 10 and 11 namely
Vipul Singh and Manas Kumar Pandey
(relating to Writ-A No. 9193 of 2024) are
316 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2014 Batch and were appointed on
28.03.2017 and 16.05.2017 respectively
and they too belonged to the same batch as
that of Sri Mukesh Pradhan and Mukesh
Chadra Yadav, who are the appellants of
the connected intra-court appeal no. 122 of
2025 were issued notices and they had
ample time to file their response.

38. Thus, on the basis of the aforesaid
undisputed facts as reflected from the
records, it cannot be said that the direct
recruits of 2014 Batch were not noticed or
that they were not granted any opportunity
to contest the case on merits.

39. The record would further indicate
that certain other persons who were the
beneficiaries of the final seniority list had
moved their applications for impleadment
and they were allowed to contest the
proceedings. Thus, there is no dispute in so
far as the presence of such contesting
parties being on record and who were the
beneficiaries of the impugned seniority list.
As indicated above, the State had filed its
detailed counter affidavit which was on the
record.

40. At this stage, it will be worthwhile
to examine as to whether any prejudice has
been caused to the appellants of the intracourt appeal No. 122 of 2025 for nonimpleading all the parties of the impugned
seniority list. In this regard, it will be
relevant to notice the decision of the Apex
Court in Pramod Verma (supra), wherein
in paragraph 28, the Apex Court flagged an
issue relating to non-joinder of necessary
parties in context of a litigation relating to
promotion. Thereafter in paragraph 50, it
noticed that a writ court under Article 226
of the Constitution of India ought not to
hear and dispose of the writ petitions
without the persons who are vitally affected
by the judgment being made parties or
being before the court or at least some of
them
being
before
the
court
in
a
representative capacity if their numbers are
too large to join them as respondents
individually.

41. In Ajay Kumar Shukla (supra),
the Apex Court was faced with a similar
situation
and
considering
the
earlier
decisions on the said subject, the Apex
Court in paragraph 45 to 51 held as under:-

"45. The other ground taken by
the High Court for non-suiting the
appellants
were
that
they
had
not
impleaded
all
the
affected
Junior
Engineers. For the said proposition, the
Division Bench [Rajesh Kumar Singh v.
Rajeev Nain Upadhyay, 2019 SCC OnLine
All 4782] of the High Court has placed
reliance upon the judgment of this Court in
Ranjan Kumar v. State of Bihar (2014) 16
SCC 187 . The above case was in respect of
selection and appointment on the ground
that the same had been made only on the
basis of interview without holding any
written test. The High Court had quashed
[Vinay Kumar v. State of Bihar, 2003 SCC
OnLine Pat 960] such selection and
appointments even of those appointees who
were not even parties to the petition. It was
in these circumstances that this Court held
that the appointments of non-parties could
not be quashed. Facts of the said case are
clearly distinguishable.

46. The Division Bench of the
High Court also relied upon another
judgment of this Court in Prabodh Verma
v. State of U.P. (1984) 4 SCC 251. This
case
again
related
to
challenge
to
appointments and in the said case there
was
no
impleadment
even
in
the
representative
capacity.
In
such
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
317
circumstances, this Court said that the
petition was liable to be dismissed for nonjoinder of necessary parties. In fact, this
judgment helps the appellants. Para 50
thereof is reproduced below : (SCC pp.
288-89)

"50. ... (1) A High Court ought
not to hear and dispose of a writ petition
under Article 226 of the Constitution
without the persons who would be vitally
affected by its judgment being before it as
the respondents or at least some of them
being before it as the respondents in a
representative capacity if their number is
too large to join them as the respondents
individually, and, if the petitioners refuse to
so join them, the High Court ought to
dismiss the petition for non-joinder of
necessary parties."

(emphasis supplied)

47. The third case relied upon by
the
Division
Bench
for
the
above
proposition, namely, State of Uttaranchal
v. Madan Mohan Joshi (2008) 6 SCC 797
was again a case where none of the
affected parties were impleaded not even in
the
representative
capacity.
In
such
circumstances, this Court remanded the
matter to the High Court leaving it open to
the original petitioners therein to move an
appropriate application for impleading
some of the affected teachers in their
representative capacity.

48. The fourth case relied upon
by the Division Bench on the above
proposition is Indu Shekhar Singh v. State
of U.P. (2006) 8 SCC 129. In this case also,
the affected parties were not impleaded and
this Court relied upon the judgment of this
Court in Prabodh Verma [Prabodh Verma
v. State of U.P., (1984) 4 SCC 251] .

49. In Tridip Kumar Dingal v.
State of W.B. (2009) 1 SCC 768, C.K.
Thakker, J., held that the case falls within
the ambit of non-joinder of necessary
parties as none of the 66 candidates
against whom the complaint was made,
were made parties. It further held that
some of the respondents should have been
arrayed in representative capacity. Para 41
is reproduced below : (SCC p. 780)

"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
the respondents in the original application,
which was not done. In any case, some of
them ought to have been arrayed as the
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."

(emphasis supplied)

50. In the recent case of Mukul
Kumar Tyagi v. State of U.P. (2020) 4 SCC
86, Ashok Bhushan, J., laid emphasis that
when there is a long list of candidates
against whom the case is proceeded, then it
becomes unnecessary and irrelevant to
implead each and every candidate. If some
of the candidates are impleaded then they
will be said to be representing the interest
of rest of the candidates as well. The
relevant portion of para 81 from the
318 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment is reproduced below : (SCC p.
119)

"81. ... We may further notice
that the Division Bench [Deepak Sharma v.
State of U.P., 2019 SCC OnLine All 5970]
also noticed the above argument of nonimpleadment of all the selected candidates
in the writ petition but the Division Bench
has not based its judgment on the above
argument. When the inclusion in the select
list of large number of candidates is on the
basis of an arbitrary or illegal process, the
aggrieved parties can complain and in such
cases necessity of impleadment of each and
every
person
cannot
be
insisted.
Furthermore, when select list contained
names of 2211 candidates, it becomes
unnecessary to implead every candidate in
view of the nature of the challenge, which
was levelled in the writ petition. Moreover,
few
selected
candidates
were
also
impleaded
in
the
writ
petitions
in
representative capacity."

51. The present case is a case of
preparation of seniority list and that too in
a situation where the appellants (original
writ petitioners) did not even know the
marks
obtained
by
them
or
their
proficiency in the examination conducted
by the Commission. The challenge was on
the
ground
that
the Rules
on
the
preparation of seniority list had not been
followed.
There
were
18
private
respondents arrayed to the writ petition.
The original petitioners could not have
known who all would be affected. They had
thus broadly impleaded 18 of such Junior
Engineers who could be adversely affected.
In
matters
relating
to
service
jurisprudence, time and again it has been
held that it is not essential to implead each
and every one who could be affected but if
a section of such affected employees is
impleaded then the interest of all is
represented and protected. In view of the
above, it is well settled that impleadment of
a few of the affected employees would be
sufficient compliance of the principle of
joinder of parties and they could defend the
interest of all affected persons in their
representative capacity. Non-joining of all
the
parties
cannot
be
held
to
be
fatal.........................."

42. The aforesaid decision clearly lays
down that impleadment of a few affected
employees would be sufficient compliance
relating to the principles of joinder of
parties as they are in a position to defend
the interest of all other affected parties in
representative capacity and non-joining of
all the parties would not be fatal.

43. There is another way to look at this
issue and i.e. if the party raises a plea of
non-compliance of principles of natural
justice, this in itself may not always work
for setting aside a judgment unless it is
shown that the party raising such an
objection has suffered consequential failure
of justice.

44. It will also be relevant to point out
that the learned Senior Counsel on behalf
of the appellants of the connected intracourt appeal no. 122 of 2025 could not
indicate as to what additional material or
additional submissions could have been
made by the appellants, had they contested
the proceedings before the writ court, as all
possible submissions raised by the said
appellants were already advanced by the
State and it was the State who was to
defend the impugned order.

45. A coordinate Bench of this Court
in Durgawati Singh V. Deputy Registrar,
Firms Societies and Chits, Lucknow; 2022
7 All. State of U.P. & Ors. Vs. Shiv Dutt Joshi & Ors.
319
(2) ALJ 200 wherein one of us (Jaspreet
Singh, J.) had the occasion to consider as to
whether an order passed without affording
an opportunity of hearing can be set aside
simplicitor on the aforesaid ground or the
person seeking the indulgence of the Court
must also establish real prejudice or
consequential failure of justice.

46. This Court in Durgawati (supra)
in para 33 considering the decision of the
Apex Court in State of U.P. v. Sudhir
Kumar, 2020 SCC OnLine SC 847
wherein the Apex Court after considering
the large number of authorities culled out
principles which have been noted in para39 of the decision of Sudhir Kumar
(supra) which was relied upon by the
Division Bench of this Court in para-33 in
Durgawati (supra) which reads as under:-

"33. Lately, the Apex Court in
State of U.P. v. Sudhir Kumar, 2020 SCC
OnLine SC 847 had the occasion to
consider the issue once again and after
noticing a large number of authorities and
previous decisions, culled out the following
principles noted in Para 39, which reads as
under:-

"39. An analysis of the aforesaid
judgments thus reveals:

(1) Natural justice is a flexible
tool in the hands of the judiciary to reach
out in fit cases to remedy injustice. The
breach of the audi alteram partem rule
cannot by itself, without more, lead to the
conclusion
that
prejudice
is
thereby
caused.

(2)
Where
procedural
and/or
substantive provisions of law embody the
principles of natural justice, their infraction per
se does not lead to invalidity of the orders
passed. Here again, prejudice must be caused
to the litigant, except in the case of a mandatory
provision of law which is conceived not only in
individual interest, but also in public interest.

(3) No prejudice is caused to the
person complaining of the breach of natural
justice where such person does not dispute the
case against him or it. This can happen by
reason of estoppel, acquiescence, waiver and
by way of non-challenge or non-denial or
admission of facts, in cases in which the Court
finds on facts that no real prejudice can
therefore be said to have been caused to the
person complaining of the breach of natural
justice.

(4) In cases where facts can be stated
to be admitted or indisputable, and only one
conclusion is possible, the Court does not pass
futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an
appraisal of the facts of a case, and not by the
authority who denies natural justice to a
person.

(5) The "prejudice" exception must
be more than a mere apprehension or even a
reasonable suspicion of a litigant. It should
exist as a matter of fact, or be based upon a
definite inference of likelihood of prejudice
flowing from the non-observance of natural
justice."

47. Now, applying the aforesaid principles
to the instant case, this Court finds that first and
foremost, some persons from the impugned
seniority list were impleaded as a party in the
two writ petitions and they had contested the
matter before the learned Single Judge.

48. The matter was contested tooth
and nail along with the State by their side
and merely because the appellants of the
320 INDIAN LAW REPORTS ALLAHABAD SERIES
intra court appeal No.