D.S. Tewatia, J.
1. Civil Writ Petitions Nos. 313 of 1976, 1097 of 1975 and 2375 of 1975 raise common questions of law and, therefore, a common judgment is proposed. Wherever reference to facts is considered necessary these would be referred from Civil Writ No. 313 of 1976.
2. The petitioners in these writ petitions as also the respondents to this writ petition had been recruited in the erstwhile States of Pepsu and Punjab as Clerks and after the merger of the erstwhile State of Punjab and Pepsu with effect from 1st November, 1956 by virtue of the States Reorganisation Act, 1956, they were absorbed in the subordinate offices of the Education Department of Punjab State. An integrated seniority list of such clerks was drawn up on 27th April, 1966 reflecting the position that obtained on 1st November, 1956.
3. The conditions of service applicable to the employees of the Education Department in the Subordinate Offices of the Punjab State were governed by the Rules called the Punjab Education Department (Subordinate Offices) Clerical Services Rules, 1941. The cadre covered by these rules does not contain the post of Assistant, Assistant Superintedent and Superintendent. The posts of Assistants were created by executive instructions in February, 1961. The said instructions provided for the promotion of clerks to the post of Assistant after passing a qualifying test. Prior to the enforcement of these instructions some clerks including the petitioners and respondents were, however promoted without passing the qualifying test on the condition that they shall have to pass Assistant's Grade Examination to be conducted by the Subordinate Service Selection Board, which was likely to be held in November, 1961. Since some of the clerks, who were promoted without first passing the qualifying test for the post of Assistant, failed to pass the said test, they were reverted. Some of them challenged their revision in the Civil Court. The matter reached the Supreme Court in Civil Appeal No. 1678 of 1970 reported as State of Punjab v. S.P. Sharma : AIR1973SC2468 . Their Lordships following their earlier judgment reported in State of Haryana v. Shamsher Jang Shukla 1972 II L.L.J. 186 known as Samsher Jang Shukla's case dismissed the appeal of the State of Punjab and upheld the judgment of the High Court in which it was held that requirement of passing the qualifying test for promotion to the post of Assistant from that of clerk amounted to a change in the existing conditions of service and since that had been done without taking prior approval of the Central Government, the requirement of test was illegally imposed upon the concerned clerks and the order regarding their reversion was, therefore, quashed.
4. The Education Department Director of Public Instruction, Punjab vide order No. 11/611-62-ME-2-11319-13509 dated 11th December, 1962 (Annexure P. 3) laid down the method of determination of seniority of Assistants who passed the test. Counting their seniority on the basis of date of qualifying the Assistant's Grade Examination. Some of the Assistants, who otherwise were senior as Clerks but had not passed the said test were shown in the list so formulated below the Assistants who as clerks were their juniors but had passed the given qualifying test.
5. Four Assistants, namely, Mohinder Lal, Ajit Singh, Chanan Singh and Harbans Lal, who were affected by the very executive instructions challenged the v. of the same through Civil Writ No. 3099 of 1969. The proposition that passing of qualifying test by the Clerks for promotion to the post of Assistant was illegal was rejected by this Court vide judgment dated 8th November, 1971. To this writ petition some of the petitioners herein and respondents Nos. 15 to 59 were impleaded as respondents. The petitioners in that case did not challenge the correctness of the said decision either in this Court or in the Supreme Court with the result that the said judgment of the single Judge became final and binding between the actual parties to it.
6. The State tried to take an additional ground in the appeal that it had filed in the Supreme Court (C.A. No. 1678 of 1970) to the effect that the post of Assistant was created by executive instructions and the method of recruitment to it was also prescribed by executive instructions and, therefore, no violation of rules or variation of conditions of service was involved. Their Lordships by order dated 27th July, 1973 passed in Civil Misc. (P) No. 193/73 filed in Civil Appeal No. 1678 of 1970 dismissed the application holding that even if the contention of State was accepted, then too it involved violation of the provisions of Section 115(7) of the States Reorganisation Act, 1956.
7. The State-respondent prepared a fresh seniority list by giving effect to the judgment of Supreme Court rendered in S.P. Sharma's case (supra) and the judgment of this Court rendered in Civil Writ No. 3099 of 1969 dated 8th November, 1971 and brought down the petitioners in seniority in relation to respondents Nos. 15 to 59 on the basis of this Court's judgment in which prescribed test was upheld. The petitioners were also brought down in the seniority list in relation to respondents Nos. 3 to 14 on the basis that passing of the test was not necessary for promotion to the post of Assistant in view of the judgment of the Supreme Court in S.P. Sharma case (supra) with the result that so far as the petitioners are concerned, in the final reckoning neither their seniority as clerk qua the respondents Nos. 15 to 59 has availed them nor their passing of the qualifying test earlier than respondents Nos. 3 to 14 (who were otherwise to the petitioners as clerks) has availed them. It is from this unhappy situation that the petitioners have come to this Court with a fond hope to be extricated.
8. The stand taken by the respondent-State is that the petitioners as also the State were bound by the decisions in Mohinder Lal case and, therefore, whatever the decision of the Supreme Court qua them the requirement of qualifying test for promotion to the post of Assistant shall have to be given effect to and therefore the seniority of the petitioners has been rightly assigned qua respondents Nos. 15 to 59, who have passed the test earlier than the petitioners.
9. Regarding respondents Nos. 3 to 14, the State has taken the stand that the Supreme Court by its judgment rendered in S.P. Sharma's case (supra) had prevented the reversion of these respondents by holding that passing of the qualifying test was not necessary for promotion to the post of Assistant and the State was bound to give effect to that judgment and the respondents Nos. 3 to 14 were entitled to hold on to the post of Assistant without passing the qualifying test and were also entitled to seniority on the basis of their seniority as Assistants.
10. While the question of status of respondents Nos. 15 to 59 does not pose much difficulty and is of easy resolution in as much as judgment in Mohinder Lal's case was binding upon them. It is, however, the question of their seniority qua respondents Nos. 3 to 14 that poses a problem.
11. Mr. J.L. Gupta, learned Counsel for the petitioners, who has primarily addressed the Court, canvassed that the petitioners not being party to the suit filed by the respondents Nos. 3 to 14 at any stage of the proceedings, the said judgment is not binding upon them and they are entitled to urge that the judgment of the Supreme Court in Civil Appeal No. 1678 of 1970 did not lay down the correct law in the light of later judgment in Shujat Ali's case 1974 S.C. 1631.
12. Mr. Kuldip Singh on behalf of affected respondents on the other hand urged that the petitioners were not necessary party to the suit filed by respondents Nos. 3 to 14 as the State was the only necessary party as they had challenged its action and orders and the judgment of the Supreme Court would be binding on the State which shall have to give effect to it even qua the petitioners.
13. Mr. Kuldip Singh sought sustenance for his submission from State of Punjab v. S.P. Sharma (supra), The General Manager, South Central Railway, Secunderabad and Anr. v. A.R. Siddhantia and Ors. 1974 I L.L.J. 312, State of U.P. and Anr. v. Ram Gopal Shukla 1981 (2) S.L.R. 3, Vishwanath N. v. State of Karnataka and Ors. 1979 (2) S.L.R. 670 Kar., Shanti Lal Sikka v. State of Haryana 1972 S.L.R. 617 (B.D.), J.S. Sachdev and Anr. v. Reserve Bank of India, New Delhi and Anr. I.L.R. (1973) 2 Delhi 392, and N.K. Dholakia and Ors. v. State of Gujarat and Ors. 1979 (3) S.L.R. 766.
14. On behalf of the petitioners reliance was placed on T. Devadason v. Union of India : (1965)IILLJ560SC , and two Division Bench judgments of this Court rendered in Baldev Singh and Ors. v. State of Punjab C.W.P. No. 6975 of 1976 and S.P. Sharma v. S.S. Lamba etc. L.P.A. No. 199 of 1976.
15. While because of the dilemma already highlighted in which the petitioners find themselves, my sympathies are with them, however, nothing can be done for them because the judgment reported in S.P. Sharma's case (supra), holding that the executive instructions requiring the clerks to pass a qualifying test for entitling them to be promoted to the post of Assistant was illegal, and therefore, the order of reversion of respondents 3 to 14 herein on the ground that they had not passed the qualifying test and therefore were not entitled to function as Assistants was bad is binding upon the State Government and it has to give effect to it. Persons who may be affected in the process of giving effect to that judgment cannot be heard to say that the said judgment cannot be given given effect to as its implementation adversely effects their rights to seniority. Declaratory judgment of the Court dealing with the legality of the statutes, rules and Governmental Policies are binding not only on persons who are party thereto but on others also who may be incidentally affected by such a declaration. It is only a party which was a necessary party before the Court and had not been impleaded as such, that may feel free to legally challenge the binding nature of a given judgment of the court if that judgment adversely affects its rights and interest.
16. In General Manager's case (supra), their Lordships were called upon to pronounce upon the validity of certain administrative instructions containing policy decisions regarding seniority, pay etc. of the railways. A preliminary objection was raised on behalf of the respondent-General Manager, South Central Railway to the maintainability of the petition in the absence of the employees who had not been impleaded as respondents to the petition, who might be affected by the pronouncement of the Court regarding the validity of the said instructions. Their Lordships while rejecting the preliminary objection observed that the petitioners were impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings were analogous to those in which the constitutionality of a statutory rule regulate seniority of Government servants was assailed. In such proceedings the necessary parties to be impleaded were those against whom the relief was sought and in whose absence no effective decision could be rendered by the Court. Their Lordships further observed that in the case in hand, the relief was claimed only against the railway which had been impleaded through its representatives. The employees who were likely to be affected as a result of the readjustment of the petitioners' seniority in accordance with the principles laid down in the Board's decisions of October 16, 1952, were, at the most, proper parties and not necessary parties and their non-joinder could not be fatal to the writ petition.
17. Their Lordships in the latter judgments reiterated the same very view in State of U.P. and Anr. v. Ram Gopal Shukla (supra), Gujarat High Court in N.K. Dholakia and Ors. v. State of Gujarat and Ors. (supra) and rejected the preliminary objections to the maintainability of the petition based on the ground of the necessary parties not being before the Court.
18. As to the three decisions that have been relied upon on behalf of the petitioners it may be observed that their Lordships in T. Devadasan v. Union of India and Anr. (supra) in para 20 expressly desisted from giving relief to the petitioners before them because the persons who might be affected were not joined as respondents to the petition. In fact, the petitioner also, only wanted that he be given a declaration that carry forward rule as modified in 1975 was unconstitutional. While giving effect to the judgment in T. Devadasan's case (supra), the Department did not hear the affected parties. Employees who were affected by this ex-parte exercise of giving effect to T. Devadasan's case (supra) approached this Court. this Court in the two decisions in question took the view that in view of the observations of the Supreme Court in that very judgment T. Devadasan's case that their Lordships would not give any relief to the petitioner in the absence of the affected persons, the order of the State Government giving effect to T. Devadasan 's case (supra) without hearing the affected parties was clearly against the principles of natural justice and was held to be void.
19. The ratio of that judgment, in fact, is that T. Devadasan's case (supra) was not binding upon the affected parties because their Lordships had themselves said so in the judgment.
20. Mr. Gupta then highlighted the fact that in the present case the impugned order has been passed by the State Government, admittedly without affording any opportunity of hearing to the petitioners: Normally no adverse orders of the kind ought to have been passed without affording an opportunity of hearing to the petitioners but once it is held that the judgment of the Supreme Court reported in State of Punjab v. S.P. Sharma (supra) is held to be binding on the State Government and others, then what useful purpose could have been served by affording opportunity to the petitioners for it is not their case that the impugned order is bad on any other score. Hence, it would be futile to set aside the order on the ground that the order is bad because it had been passed without hearing the petitioners when only this very order shall have to be passed by the respondent-Government.
21. For the reasons aforementioned, all the three petitions are dismissed but with no order as to costs.