STATE OF MAHARASHTRA v. SUDHIR S/O MOTIRAMJI HIWARKAR & ORS.

2026 INSC 1118 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2963-2964 OF 2016

STATE OF MAHARASHTRA … APPELLANT

SUDHIR S/O MOTIRAMJI HIWARKAR & ORS. … RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

1. These civil appeals, by special leave granted on 11th March, 2016, are

directed against the judgment and order dated 7th October, 20151,

passed by the High Court of Judicature at Bombay, Bench at Nagpur 2,

allowing a writ petition3 of the first respondent4 as well as a subsequent

order of dismissal of a review application5 of the Joint Director of Higher

Education, Nagpur6, dated 12th January, 2016. While granting leave, the

direction contained in paragraph 26 (iv) of the impugned judgment was

stayed.

Signature Not Verified

Digitally signed by MANIK KUMAR 1 impugned judgment Date: 2026.10.13 18:40:55 IST

High Court Reason: 2

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2. The factual matrix, confined to what is necessary for the disposal of the

present appeals, is that Sudhir was appointed as a Lecturer in the

Commerce Faculty of the third respondent7 (run by the second

respondent8) in the academic session 1990-1991. The College was

granted permission to operate strictly on a “no grant-in-aid” basis9.

Following a series of earlier terminations and reinstatements, Sudhir was

placed under suspension, and the Management of the Society initiated

a departmental enquiry. Upon completion of the enquiry and after

obtaining permission from the University, Sudhir was terminated from

service on 17th August, 1999. Contemporaneously, the University also

granted permission to the Management to close down the Commerce

Faculty from the academic session 1999-2000 for want of students.

3. Sudhir challenged his termination before the University and College

Tribunal, Nagpur10, which dismissed his appeal vide order dated 24th

April, 2000. Aggrieved thereby, Sudhir filed a writ petition before the

High Court. By the impugned judgment, the High Court set aside the

order of the Tribunal and quashed the order of termination. Inter alia,

the High Court directed the “Joint Director” to take steps to include

Sudhir’s name in the list of surplus lecturers/teachers and to absorb him

in any other college [paragraph 26 (iv)]. The High Court further directed

the Management to pay a sum of Rs. 10,00,000/- (Rupees ten lakh) to

Sudhir towards compensation in lieu of arrears. Aggrieved by the

7 College 8 Society 9 Communication dated 21st July, 1990 addressed to Respondent No. 4 (University) 10 Tribunal

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direction regarding absorption, the Joint Director filed a review

application, which came to be dismissed as noted above.

4. We have accorded our thoughtful consideration to the rival submissions

advanced by learned counsel appearing for the respective parties and

have perused the materials on record.

5. On behalf of the appellant, it was primarily urged that the College was

functioning entirely on a “no grant-in-aid” basis. Relying upon

Government Resolution (G.R.) dated 24th March, 1994 and a subsequent

corrigendum dated 21st March, 1997, it was submitted that the policy

for the absorption of surplus lecturers/teachers is applicable exclusively

to grant-in-aid colleges and that the High Court exceeded its jurisdiction

in directing the absorption of Sudhir, quite contrary to law.

6. Per contra, learned counsel for Sudhir submitted that under Section

79(4) of the Maharashtra Universities Act, 199411, the mandate to

absorb surplus lecturers/teachers applies to all “affiliated colleges”

without distinguishing between aided and unaided institutions, rendering

the 1997 G.R. non-est in law. To claim parity, reliance has been placed

on the absorption of another similarly situated lecturer, Bhaurao s/o

Pundlikrao Kadav (since deceased).

7. Having considered the rival submissions, the fulcrum of the present

dispute lies, notably, in a fundamental procedural infirmity that goes to

the root of the matter: the non-impleadment of the State of Maharashtra

in the writ proceedings before the High Court.

11 Universities Act

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8. It is an admitted position that the State of Maharashtra was not arrayed

as a party respondent in the writ petition instituted by Sudhir. It was

only in March 2015—nearly fifteen years after the institution of the writ

petition—that Sudhir filed an application seeking impleadment of the

“Joint Director” as the sixth respondent, and not the State eo nomine.

The High Court proceeded to issue a writ of mandamus directing the

inclusion of Sudhir in the list of surplus lecturers/teachers for his

absorption—a direction that unequivocally fastens a direct and

continuous financial and administrative liability upon the State.

9. On behalf of Sudhir, it was contended that the writ petition was

competent, since the State of Maharashtra was duly represented

through the office of the Joint Director and the learned Assistant

Government Pleader had contested the matter on merits. The

contention, however, overlooks the settled position of law that the State,

as the necessary party, should have been duly impleaded in the

proceedings; mere representation through one of its officers cannot

dispense with such impleadment. The law on the subject is no longer res

integra. In Ranjeet Mal v. General Manager, Northern Railway12, a

three-Judge Bench of this Court held that an employee of the Union

cannot seek to enforce an order setting aside removal from service by

merely impleading the General Manager. This Court categorically laid

down that the Union of India is a necessary party, as any order passed

would have to be enforced against the Union, not merely its servants.

12 (1977) 1 SCC 484

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10. This principle was reiterated in Jagtu v. Suraj Mal13, wherein this Court,

reading Section 79 and Order 27 Rule 1 alongside Order 1 Rule 9 of the

Code of Civil Procedure, 1908, held that where a declaration of rights is

sought in respect of land belonging to the State, the State is a necessary

party. In the absence of the State, the proceedings cannot continue, and

the suit is not maintainable. Furthermore, in Chaman Lal v. State of

Punjab14, this Court deprecated the practice of granting relief against

the State exchequer when the State itself has not been formally

impleaded. It was clarified that a decree erroneously passed in such a

suit would not bind the State, even if it had attained finality.

11. The impleadment of an officer or a department, without formally

arraying the State as a juristic entity under Article 300 of the

Constitution, renders the petition fundamentally defective when

substantive relief is sought against the public exchequer.

12. Applying the aforesaid established principles to the present case, the

direction contained in paragraph 26 (iv) of the impugned judgment

cannot be sustained. The belated impleadment of the “Joint Director”

does not cure the fundamental defect of non-joinder of the State of

Maharashtra. An officer or a department of the State cannot be equated

with the State itself for the purposes of fastening sovereign or financial

liability. The High Court thus grossly erred in fastening liability for

absorption upon the appellant without its formal impleadment as a

necessary party.

13 (2010) 13 SCC 769 14 (2014) 15 SCC 715

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13. Even otherwise, on merits too, the claim of Sudhir for absorption cannot

be sustained. The undisputed fact that Sudhir was appointed in a “no

grant-in-aid” college, clearly places him outside the protective umbrella

of the State’s surplus absorption policy as clarified in the corrigendum

dated 21st March, 1997. Sudhir did not challenge this corrigendum.

Without any challenge, reference to the Universities Act cannot aid

Sudhir. To bypass this executive policy, Sudhir seeks parity with another

lecturer, late Bhaurao, who was allegedly absorbed. However, as held by

this Court in Chaman Lal (supra), Article 14 of the Constitution does

not envisage negative equality. If an illegal or irregular benefit has been

conferred upon a similarly situated person inadvertently or by mistake,

it does not confer any legal right on others to claim the same relief to

perpetuate an illegality.

14. The appeals, therefore, have to and must succeed.

15. However, despite the aforesaid legal position, we cannot remain

oblivious to the peculiar equities of the present case. Having battled the

sword of Damocles over his employment since 1993, Sudhir ultimately

attained the age of superannuation on 30th November, 2025, during the

pendency of these proceedings. Because of the order of stay, he could

not reap the fruits of the reinstatement order passed by the High Court.

He accepted the lump-sum compensation of Rs. 10,00,000/- (Rupees

ten lakh) from the Management in lieu of arrears, perhaps on the

expectation that he would be absorbed in service, as directed by the

High Court. He remained out of employment since 1999. While the

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appellant is correct in its submission that the legal mandate for

absorption does not apply to a “no grant-in-aid” college, leaving Sudhir

destitute at this advanced stage of his life would result in a travesty of

justice. Indeed, the appellant, too, shares a degree of blame for not

raising the specific objection regarding its non-impleadment firmly at the

earliest opportunity before the High Court.

16. Therefore, having regard to the larger scheme of things, we are of the

view that Sudhir may not be left without any succour at the twilight of

his life. At our request, recorded in the order dated 12th August, 2026,

the appellant has placed on record a calculation chart setting out the

arrears of salary which Sudhir would have been entitled to, had he

continued to serve as a college lecturer during the period from 7 th

October, 2015 to 30th November, 2025. The net amount, so calculated,

is staggering.

17. Nonetheless, with a view to securing complete justice between the

parties, we deem it appropriate to invoke our extraordinary jurisdiction

under Article 142 of the Constitution and mould the relief.

18. While setting aside paragraph 26 (iv) of the impugned judgment, we

direct the appellant-State to pay to Sudhir a consolidated sum of

Rs. 10,00,000/- (Rupees ten lakh only), within a period of eight weeks

from date, in full and final settlement of all his claims. The compensation

already paid by the Management shall remain undisturbed. This direction

is passed in the unique facts and circumstances of this case and shall

not be treated as a precedent.

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19. The appeals are allowed on the above terms.

20. Pending application(s), if any, shall also stand disposed of. Interim

orders, if any, stand vacated. There shall be no order as to costs.

…………………………….J. (DIPANKAR DATTA)

…………………………….J. (SHEEL NAGU) NEW DELHI; OCTOBER 13, 2026.

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