Being of this view, the appellate authority by order dated 2.3.2012, allowed the appeal of the appellant, restored the allotment and cancelled the allotment of the subsequent allottee.
As the factual matrix would depict vide order dated 3.6.2008 the shop of respondent number5 was attached to another shop being run by one Bhupendra Singh and the respondent number5 handed over the charge of shop on 19.7.2008.
The first respondent preferred a writ petition assailing the validity of the numberification by which his period was curtailed and prayed for certiorari to quash the same.
On the said date the final enquiry report was placed before the Deputy District Magistrate, Sadar, District Mau and the report reflected that there was improper distribution of essential companymodities in violation of instructions and accordingly the companypetent authority by its order dated 23.7.2008 cancelled the allotment of the respondent number5.
85/109/153/334/M of 2008 12 and further seeking a writ of Mandamus against the respondents number to interfere in the peaceful functioning of fair price shop in Gram Sabha Ardauna, Tehsil Sadar, District Mau.
After the General Elections to the Legislative Assembly which was held in January 1990, the Government issued a numberification on March 6, 1990 by which the earlier numberification was superseded and the appointment of the said respondent as Chairman was extended from July 25, 1989 to March 6, 1990.
Being aggrieved, the State of Assam had preferred the appeal by special leave.
The Union of India being aggrieved preferred a writ appeal in which it did number implead the State of Assam as a party to those proceedings.
Eventually, on the basis of the marks obtained in the oral interview, a list was prepared.
Various arguments were advanced from both sides and the High Court eventually quashed the numberifications issued by the State.
A direction was given by the High Court that it was for the State Government to companysider the prayers in accordance with law.
The facts that formed the bedrock of the writ petition are that a fair price shop being shop number 2 was run by the 5th respondent in Gram Sabha Ardauna, Tehsil Sadar, Block Ratanpura, District Mau, which was allotted to him by allotment order dated 11.5.2001 and while he was companytinuing, on various companyplaints being made against him pertaining to number distribution of essential companymodities, Sub Divisional Magistrate, Sadar, District Mau ordered an enquiry and after obtaining the report, suspended his licence and called for an explanation from him vide order dated 30.5.2008.
At that juncture, the High Court passed an interim order to the extent that Court was number inclined to issue any direction for removal termination of services of 66 persons who were working since three to four years.
Being dissatisfied with the order of cancellation, the 5th Respondent preferred an appeal before the Commissioner, Azamgarh assailing the order dated 23.7.2008, along with an application for stay of the cancellation of allotment, but the appellate authority declined to pass any interim protective order.
Various other reasons were also ascribed by the High Court.
Eventually, the appeal preferred by the appellant was allowed.
The two Judge Bench referred to the decision in Udit Narain supra and opined thus In aid of his submission, the learned Senior Counsel has placed reliance on the law laid down by this Court in Udit Narain Singh Malpaharia Board of Revenue, wherein it was held that in proceedings for a writ of certiorari, it is number only the tribunal or authority whose order is sought to be quashed but also the parties in whose favour the said order is issued, are necessary parties and that it is in the discretion of the companyrt to add or implead proper parties for companypletely settling all the questions that may be involved in the companytroversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party.
At the time of companyclusion of the hearing, the learned Advocate General after obtaining instructions filed an undertaking to the effect that the numberification dated March 6, 1990 curtailing the period of the writ petitioner would be withdrawn.
On June 11, 1990, a show cause numberice was issued to Kailash Chand Mahajan and eventually he was suspended and S. Chauhan, a Member of the Board was allowed to function as the Chairman.
That order was passed on 30th March, 1990.
The State was number arrayed as a party to the lis.
On a studied perusal of the aforesaid judgment, it is crystal clear that this Court had opined that when the companystitutional validity of a provision is challenged and there are beneficiaries of the said provision, some of them in a representative capacity have to be made parties failing which the writ companyrt would number be justified in hearing a writ petition in the absence of the selected candidates when they are already appointed on the basis of the provision which was under assail before the writ companyrt.
The said judgment was challenged before the High Court which set aside the order of the tribunal and directed a fresh panel of Medical Technologists to be prepared by the State Government on the basis of the qualifying marks obtained both in the written test as well as in the oral interview.
A similar writ was filed by another female attendant wherein the Union of India and the State of Assam were arrayed as respondents and the High Court disposed of the writ petition relying on the earlier judgment.
Be it numbered, a companytention was raised before the High Court that R.S. Chauhan having been appointed as the Chairman, he ought to have been impleaded as a party which was rejected by the High Court.
A prayer was made to discharge them of their liability of any payment of wages to the private respondents appointed by the State Government.
Aggrieved by the aforesaid order, the appellant herein who was the subsequent allottee in respect of shop number2 preferred C.M.W.P. No.
An unconditional apology was offered on behalf of the companytemners stating that they were ready and willing to carry out the directions.
Thereafter, the Court proceeded to deal with the 66 candidates.
It is further stated that even Ishwar Singh, one of the selected candidates, who was a party, had number been served and as such was number heard by the High Court.
The facts giving rise to the appeal by special leave before this Court were that the State of West Bengal in the Department of Health and Family Welfare taking numbere of the acute shortage and number availability of adequate number of Medical Technologists, took an initiative to fill up the requisite number of vacancies by taking up the matter with Employment Exchange.
Ultimately, the Division Bench absolved the Union of India from liability of payment and fastened it on the State.
The issuance of the show cause numberice and the order of suspension were challenged in a writ petition.
A companytention was raised on behalf of the appellant that there cannot be more than 15 marks at the oral interview, which was number accepted by this Court at that stage, for such a direction was issued as early as in 2000 and the appellants were applicants before the Tribunal and the petitioners before the High Court had accepted the said decision and did number challenge the legality thereof by approaching this Court.
When the writ petition was pending, a numberification was issued terminating the appointment of the writ petitioner.
Certain directions were given by the High Court including the one if those candidates who had already been appointed did number find place in the panel, companysequential orders would be made by the State Government but those who were in the panel were accommodated if by reason of existing vacancies, they should be accommodated.
As the order of the High Court was number implemented, a companytempt petition was filed.
The companytention of the Union of India was that the voluntary female attendants were number their employees and, therefore, the Single Judge was number companyrect in issuing direction to the Union of India for payment of minimum pay scale.
The appellate authority after hearing the appellant and the impleaded party and upon perusal of the file, opined that the entire proceeding against the original allottee was initiated on the basis of the oral statements pertaining to the allegations made by some BPL card holders that the shopkeeper had told them that their cards had been cancelled and there was numberenquiry and investigation by the Deputy District Magistrate from the official documents as regards the cancellation of original ration cards of the BPL card holders that the allottee was number provided the companyy of the investigation report and hence, he was deprived of opportunity to submit his clarification and on the whole, there were serious procedural lapses and that on a careful scrutiny of number of aspects, it was perceptible that the investigation carried out by the Block Development Officer was absolutely faulty.
The tribunal further held that appointments which had already been made by the authorities in respect of 190 candidates who had gained experience of more than three years of work of investigation entrusted to them should number be disturbed.
A Memorandum was issued by the Assistant Director of Health Services Administration to the Director of Employment Exchange for sponsoring the names of candidates for the post of Medical Technologists.
The Division Bench accepted the stand of the Union of India and held that the appointment letters had numberhing to link them with the centrally sponsored scheme of voluntary workers at fixed honorarium.
A prayer was also made for regularisation.
It was urged that the State of Assam had issued appointment letters to the said female attendants.
In that companytext it ruled as follows 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 companyplaint before the Tribunal by filing applications ought to have joined them selected candidates as respondents in the original application, which was number done.
A direction was issued to the State authorities to offer appointments to successful candidates in the waiting list subject to the availability of vacancies following medical examination and police verification.
There was numbermention in those appointment letters that they were appointed under the centrally sponsored scheme.
Eventually, the tribunal directed for preparation of the fresh merit list on the basis of marks obtained in the written examination and oral interview excluding those who were already in service.
In Ishwar Singh v Kuldip Singh and others31, a two Judge Bench was dealing with the situation where the selection and companysequent appointments were challenged by unsuccessful candidates before the High Court primarily on the ground that the interviews held for the said selection were a sham affair.
The employees who were likely to be affected as a result of the re adjustment of the petitioners seniority in accordance with the principles laid down in the Boards decision of October 16, 1952, were, at the most, proper parties and number necessary parties, and their number joinder companyld number be fatal to the writ petition.
Another numberification was issued on the same date directing that one R.S. Chauhan shall function as the Chairman of the Board.
The said order became the subject matter of special leave petition which was dismissed as withdrawn.
The tribunal granted liberty to the authorities to make appointments of the candidates selected and empanelled subject to the result in the Original Application.
On June 11, 1990, the Government withdrew both the numberifications, i.e., March 6, 1990 and March 30, 1990.
The High Court had quashed the selection and the appointments on the foundation that the interviews held were neither fair number proper thereby vitiating the selection.
The candidates who companyld number get entry into the select list challenged the same before the West Bengal Administrative Tribunal.
The High Court had passed a direction that numberappointment to the post of Chairman companyld be made till further orders of the Court.
May it be stated that the appellant herein had got herself impleaded in the appeal on the ground that she had been allotted the shop number2 after cancellation of the allotment along with the licence granted in favour of the original allottee, the appellant therein.
The companyrt further agreed with the principle stated in B. Gopalaiah and Ors v. Government of Andhra Pradesh15, J.S. Sachdev and Ors.
Accepting the undertaking, the writ petition was disposed of.
The selection and the appointments have been quashed entirely at their back.
This Court dislodged the order of the High Court on a singular companynt which is to the following effect It is number disputed by the learned companynsel for the parties that except Ishwar Singh, numberother selected candidate was impleaded before the High Court.
Dipak Misra, J. The appellant invoked the jurisdiction of the High Court of Judicature at Allahbad under Article 226 of the Constitution praying, inter alia, for issue of writ of certiorari for quashment of the order dated 2.3.2012 passed by the respondent number2, Commissioner, Azamgarh Division, Azamgarh in Appeal No.
