IMPORTANT POINT
Authority or Tribunal who are required to defend their orders must be impleaded otherwise they are not necessary party in a writ application.

JUDGMENT

Dr D Y CHANDRACHUD, J

A Division Bench of the High Court of Gujarat dismissed a Letters Patent Appeal filed by the Appellant. The LPA arose out of the dismissal of a Special Civil Application under Articles 226 and 227 of the Constitution by a learned Single Judge on the ground that it was not maintainable. In arriving at this conclusion the Division Bench relied upon a judgment rendered by a five-Judge Bench of the High Court in Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Anr., 2014(1) GLH 1 in which it was held that a Special Civil Application under Articles 226 and 227 of the Constitution is not maintainable where the court or tribunal whose order is sought to be quashed is not impleaded as a party to the proceedings. The Appellant assails the judgment of the Division Bench.

2. The Appellant was employed as an Assistant Teacher on 30 June 1978 in a school conducted by the first Respondent, which is a minority institution. On 25 June 2002 a chargesheet was issued to the Appellant alleging that between 29 November 2001 and 15 December 2001, he had proceeded on a pilgrimage without prior permission and was absent without sanctioned leave. Apart from this allegation, which constituted the first article of charge, the second was that whereas in his application for withdrawal from the provident fund, the reason of the pilgrimage was shown to be Haj, the application for leave indicated a pilgrimage to Umrah. The Appellant denied the charges. Upon a departmental inquiry, the charges were found to be established and the Appellant was dismissed from service on 13 January 2004. The Appellant moved the Gujarat Higher Secondary Education Tribunal for challenging the order of dismissal. On 13 June 2006, the Tribunal dismissed the application.

3. Aggrieved by the order of the Tribunal, the Appellant instituted a Special Civil Application under Articles 226 and 227 of the Constitution before the High Court. Besides seeking to challenge the order of the Tribunal and the punishment of dismissal, the Appellant sought consequential reliefs for treating him in service until October 2005 when he attained the age of superannuation and the grant of pensionary benefits.

4. The learned Single Judge of the High Court dismissed the writ petition on 24 December 2012 on merits holding that the charge of misconduct stood established and there was no illegality in the view taken by the Tribunal or in the decision of the disciplinary authority. An LPA under Clause 15 of the Letters Patent was thereupon filed.

5. The Division Bench by its judgment dated 28 March 2014 held that the appeal was not maintainable. From the record, it appears that though the Tribunal was not impleaded as a party to the Special Civil Application, it was impleaded to the LPA. Be that as it may, the High Court relied upon a judgment of a Bench of five-Judges of that court in Gujarat State Road Transport Corporation (supra). The judgment, inter alia, holds that where a Special Civil Application is described as one under Articles 226 and 227 of the Constitution and the court or tribunal whose order is impugned is not made a party, the application would not be maintainable. In such an event, the objection to maintainability would – it was held not be cured merely by impleading the tribunal or court to the LPA against a judgment of the Single Judge.

6. The issue whether a tribunal or court whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceedings has been considered in a judgment of this Court in Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Ors., (2015) 9 SCC 1. The judgment of this Court has also adverted to the view that was taken in the judgment rendered by a Bench of five Judges of the Gujarat High Court, noted above. After considering the position in law emanating from the earlier decisions of this Court, the judgment holds thus:-

“43…………..Therefore, the proposition that can