JUDGMENT :

1. The instant Special Appeal arises out of a judgment and order rendered by a learned Single Judge on 14.05.2019 in Writ-A No.53123 of 2012, Rajeev Nain Upadhyay and others v. State of U.P. and others, wherein the learned Single Judge was pleased to allow the writ petition after quashing the seniority list dated 05.09.2006 and 05.03.2010.

2. A writ in the nature of mandamus was also issued by the learned Single Judge, directing the respondents to draw up a fresh seniority list in accordance with Rule 5 of the Seniority Rules of 1991. Relevant directions of the learned Single Judge are extracted hereunder:

“37. Writ petition consequently succeeds and is allowed. Impugned seniority lists dated 5.9.2006 and 5.3.2010 stands quashed. A writ of mandamus is issued directing the respondents to draw a fresh seniority list in accordance with Rule 5 of the Seniority Rules of 1991, particularly as relevant records relating to selection are available with the U.P. Public Service Commission. Any promotion made during the pendency of present writ petition would not be interfered with but would remain subject to the fresh seniority list to be prepared in terms of the Seniority Rules of 1991. No order is passed as to costs.”

3. An application for leave to appeal was filed in aid of the memo of appeal since the applicants were not impleaded as co-respondents in the writ petition. The application for leave to appeal was allowed by this Court by an order dated 02.07.2019. Consequently, the applicants are now the appellants before this Court in the instant Special Appeal.

4. Two questions arise for consideration in the instant special appeal:

(a) Whether on account of non-joinder of the appellants as co-respondents, the writ petition was liable to be dismissed?

(b) Whether the impugned judgment erred in law by quashing the seniority list of 2006 and directing the respondents to draw up a fresh seniority list in the light of Rule 5 of the Seniority Rules of 1991?

5. The appellants were senior to the writ petitioners in the seniority list created by the respondent department in 2006. The appellants were not impleaded as co-respondents to the writ petition. The appellants were necessary parties to the writ petition inasmuch as their interests would be directly affected by the adjudication of the seniority list of 2006 as well as of 2010. Further, the prejudice caused by non-impleadment has been realised in the form of the judgment rendered by the learned Single Judge, which is clearly adverse to the appellants.

6. This short narrative establishes the fact that the proceedings before the learned Single Judge were ex parte to the appellants and in violation of principles of natural justice. The prejudice caused to the appellants is beyond recall.

7. Some persons who were part of the seniority list of 2006, were indeed arrayed as co-respondents in the writ petition. However, it is admitted that the said private respondents were not arrayed in a representative capacity and never represented the interests of the appellants. The number of respondents/persons to be directly affected was only 77 (seventy seven). This was not too large a number to be impleaded. The appellants were never noticed on the proceedings before the learned Single Judge. Non-joinder of necessary parties or those persons who would be vitally affected by the judgment of the Court, renders the writ petition virtually having no legs to stand on. The fatal consequences of non-joinder of parties who would be vitally affected by the judgment emanates from applicability of the first principles of Code of Civil Procedure regarding joinder of parties as applicable analogously to a writ petition. The proposition shall now be reinforced by good authority in point.

8. The Hon'ble Supreme Court in Prabodh Verma v. State of U.P., reported at (1984) 4 SCC 251, discussed the consequences of