Rituparna Kakati v. The State of Assam and 11 Ors

ORDER Date : 18.12.2023 Heard Mr. S Borthakur learned counsel for the applicant and Mr. A Phukan learned counsel for the writ petitioner. Though this interlocutory application was fixed in the month of January, 2024 by this court under its order dated 06.12.2023, however, the connected writ petition has been listed today and as the matter is listed today, and as agreed by the learned counsel for the parties, the I.A is taken up for consideration. The present application is filed for impleadment of the applicant as party respondent WP(C) No.4538/2023. The writ petitioner amongst others has prayed for a writ to recall, rescind and cancel a gradation list dated 13.12.2022 (Annexure – 7 to the writ petition). Page No.# 4/5 It is an admitted position that the name of the present applicant is included in the aforesaid gradation list. Accordingly Mr. Borthakur learned counsel for the applicant submits that in the event this writ petition is allowed by this court, a valuable right of the applicant shall be violated without hearing him. Mr. A Phukan, learned counsel for the writ petitioner on the other hand has vehemently opposed such impleadment on the ground that the present applicant, in terms of the extant service rule is not having any right to the next higher promotion and therefore, he is not a necessary party and the twin test as laid down by the honble Apex court in the case of Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi (D) and others reported in (2022) SCC Online SC 1307 is not satisfied in the present case. According to Mr. Phukan the present application is required to be dismissed. The determination made by the hon'ble Apex Court and relied on by Mr. A Phukan in the considered opinion of this court rather helps the case of the applicants. The hon'ble Apex court in no unambiguous term held that the twin test i.e., the right to some relief against such party in respect of the controversies involved in the proceeding is required to be satisfied and secondly, that no effective decree can be passed in absence of such party. In the case in hand, the gradation list impugned in the writ petition figures the name of the applicant. Therefore, prima facie his employer has included his case for consideration of promotion to the next higher grade. Such gradation list is under challenge and by seeking interference with such gradation list, a relief has been sought Page No.# 5/5 by the writ petitioner in the writ petition against the applicant, however, he has not made the applicant a party respondent. That being the position, he shall definitely have a right to contest the present proceeding for the reason that in the event the writ petition is allowed, the applicant shall be deprived of his right alleged to have accrued by virtue of the inclusion of his name in gradation list in question inasmuch as this court at this stage cannot reject an impleadment petition entering into the merit of the case holding that the applicant is having no right to get promotion in terms of the extant service rule and therefore, he is not a necessary party. Such course of action is not permissible under law. The second condition that no effective decree can be passed in absence of such party is also applicable in this case for the same reason that in the event an order is passed, same will violate the right of the applicant, without he being heard. In that view of the matter the objection raised by Mr. A Phukan, learned counsel stands rejected and the present application stands allowed. Registry to correct the cause title of the writ petition. Accordingly, the instant interlocutory application stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010174212023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A(Civil)o3354/2023oinoWP(C)/4538/2023o RITUPARNAoKAKATI S/OoLATEoBIRENDRAoNATHoKAKATI oS.S.oROAD oTOWNoABHAYAPURI oP.O.oANDoP.S.oABHAYAPURI oDIST.oBONGAIGAON oASSAM oPINo783384 oASSAM oVERSUS THEoSTATEoOFoASSAMoANDo11oORS REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oINFORMATIONoANDoPUBLICoRELATIONS oPoANDoSoDEPARTMENT oDISPUR oGUWAHATI-6. 2:UNDERoSECRETARYoTOoTHEoGOVT.oOFoASSAM INFORMATIONoANDoPUBLICoRELATIONS oPoANDoSoDEPARTMENT oDISPUR oGHY-6. o3:DIRECTOR DIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6. PageoNo.#o2/5 o4:REGISTRAR DIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6. o5:PRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM PERSONNELoDEPARTMENT oDISPUR oGHY-6. o6:SECRETARY ASSAMoPUBLICoSERVICEoCOMMISSION oJAWAHARoNAGAR oKHANAPARA-781022. o7:MOUCHUMIoBHATTACHARYYAoBARUAH PRESSoRESEARCHoOFFICERo(PRO) oDIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6.oASSAM o8:HIMANGSHUoLAHKAR TRANSLATOR oDIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6.oASSAM o9:MANOJoKALITA DIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6.oASSAM o10:RUBINAoISLAM TRANSLATOR oDIRECTORATEoOFoINFORMATIONoANDoPUBLICoRELATIONSoANDoPoANDoSo DEPARTMENT o(DIPR) oGOVERNMENToOFoASSAM oLASToGATE oGHY-6.oASSAM Page No.# 3/5 11:SUMIT PAUL S/O- K.C. PAUL VILL. AND P.O. IRONGMARA (NEAR ASSAM UNIVERSITY SILCHAR) LANE RADHA MADHAB ROAD-788001. 12:NEELAM SAIKIA D/O- PITAMBAR SAIKIA NEAR LGB COLLEGE MISSION CHARIALI PATIACHUBURI TEZPUR-784001. ------------ Advocate for : MR S BORTHAKUR Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 11 ORS BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY