J.S. YADAV versus STATE OF U.P. & ANR.

Citation: [2011] 5 S.C.R. 460 · Decided: 18-04-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Case Partly allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2011] 5 S.C.R. 460 
J.S. YADAV 
v. 
STATE OF U.P. & ANR. 
(Civil Appeal No. 3299 of 2011) 
APRIL 18, 2011 
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] 
Protection of Human Rights Act, 1993: ss.21, 23, 25, 26 
- Protection of Human Rights (Amendment) Act, 2006 -
C Appellant, District Judge appointed as Member of the State 
Human Rights Commission in 2006 for a period of 5 years 
under the provisions of the Act of 1993 - After coming into 
force of Amendment Act of 2006, the eligibility criteria for 
appointment of Member was changed and it required 
o experience of seven years as District Judge -
State 
Government issued Notification declaring that appellant did 
not fulfill the criteria of the Amendment Act and, therefore, 
incurred disability to hold the office as a Member of the 
Commission - Validity of Notification challenged - Held: An 
E employee appointed for a fixed period under a statute is 
entitled to continue till the expiry of the tenure - Moreover, 
s. 26 specifically provided that neither the salary and 
allowances nor other terms and conditions of service of a 
Member shall be varied to his disadvantage after his 
F appointment - As the appellant was fully eligible and 
competent to be appointed under the Act of 1993 and he was 
duly appointed and worked for about 2 years including the 
period after the commencement of the Amendment Act 2006, 
the declaration that he ceased to hold the post as a Member 
G of the Commission, was in flagrant violation of the statutory 
provisions contained in s.26 of the Act of 1993 itself - The 
Notification was, thus, patently illegal - However, the 
vacancies of the Members were already filled - Appellant had 
also not impleaded any person who had been appointed in 
H 
460 
J.S. YADAV v. STATE OF U.P. & ANR. 
461 
his place as a Member of the Commission - In the light of A 
that the public exchequer cannot be burdened with the liability 
to pay the salary of two persons against one sanctioned post 
- Therefore, appellant is not granted any other relief except 
the declaration in his favour that the impugned Notification 
is illegal - However, in the peculiar facts and circumstances 
B 
of the case, the appellant is awarded cost to the tune of Rs. 1 
lakh - Constitution of India, 1950 - Article 236(a) - Costs. 
Protection of Human Rights (Amendment) Act, 2006: The 
amendment would apply prospectively, particularly in view of C 
the fact that the Amendment Act 2006 does not expressly or 
by necessary implication gives retrospective effect to the 
Amendment Act - Prospective effect. 
UP. Higher Judicial Service Rules 1975: r.4 - Post of 
District Judge and Additional District Judge in the State of D 
UP. is neither inter-changeable nor inter-transferable. 
Service law: Appointment - Tenure appointment - Held: 
An employee appointed for a fixed period under the Statute 
is entitled to continue till the expiry of the tenure and in such 
E 
a case there can be no occasion to pass the order of 
superannuation for the reason that the tenure comes to an 
end automatically by afflux of time. 
Repeal: Accrued rights cannot be taken away by 
repealing the statutory provisions arbitrarily. 
F 
Party: Necessary party - lmpleadment of - Held: No 
order can be passed behind the back of a person adversely 
affecting him and such an order if passed, is liable to be 
ignored being not binding on such a party as the same has 
G 
been passed in violation of the principles of natural justice -
The principles enshrined in the proviso to Order I Rule 9, CPC 
provide that impleadment of a necessary parly is mandatory 
and in case of non-joinder of necessary parly, the plaintiff/ 
H 
462 
SUPREME COURT REPORTS 
[2011] 5 S.C.R. 
A petitioner may not be entitled for the relief sought by him - In 
service jurisprudence, if an unsuccessful candidate 
challenges the selection process, he is bound to implead at 
least some of the successful candidates in representative 
capacity - In case the services of a person is terminated and 
s another person is appointed at his place, in order to get relief, 
the person appointed at his place is the necessary party for 
the reason that even if the plaintiff/petitioner succeeds, it may 
not be possible for the Court to issue direction to 
accommodate the petitioner without removing the person who 
c filled up the post manned by plaintiff/petitioner - Service law 
- Code of Civil Procedure, 1908 - 0. 1 r. 9. 
Words and phrases: cadre, 'Tenure', 'Justifiab

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