High Court
Case Details
CR 984/1995 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. F.U. Borbhuya, learned counsel for the petitioner and Mr. S. Chakrabor ty, learned Govt. Advocate, Assam for the respondents. By way of this writ petition under Article 226 of the Constitution of In dia, petitioner seeks quashing of order dated 4.11.1994 and for a direction to r egularize his service as Forester-I against the post held by him in terms of ord er dated 29.10.1994.
Legal Reasoning
Facts of the case as projected in the writ petition may be briefly noted . Petitioner was appointed in September, 1990 as Typist in the office of D ivisional Forest Officer, Cachar Division, Silchar (respondent No. 3). Thereafte r, on 2.12.1991, he was appointed as LDA on temporary basis. By notice dated 10.6.1994, petitioner was called for interview in the of fice of respondent No. 3 scheduled on 7.7.1994 for the post of Forester-I. Petit ioner appeared in the interview and was selected. By order dated 29.10.1994 issu ed by Chief Conservator of Forests, (H.Q), Assam, petitioner was appointed tempo rarily as Forester-I in the Waste Land Development Project. However, petitioner was not allowed to join on the ground that the Princ ipal Chief Conservator of Forests, Assam had issued order on 4.11.1994 that thos e persons recently appointed by the Chief Conservator Forests (H.Q) should not b e allowed to join under any circumstances. Petitioner submitted representation before the Principal Chief Conservat or of Forests to regularize his appointment as Forester-I. But respondent No. 3 instead issued order dated 8.2.1995 temporarily appointing the petitioner to off iciate as Forester-I for a period of 89 days w.e.f. 1.2.1995.
Decision
At that stage, petitioner filed the present writ petition. This Court by order dated 10.3.1995, admitted the writ petition and as a n interim measure, directed that petitioner should not be disturbed from his ser vice. Ultimately, case was taken up for hearing on 19.2.2002. As the responden ts did not file counter affidavit contesting the proceeding, a Single Bench of t his Court proceeded to hear the matter by treating the averments made in the wri t petition as uncontroverted and correct. The Single Bench quashed the order dat ed 4.11.1994 and also the order dated 8.2.1995 to the extent of appointing the p etitioner on temporary basis. It was directed that petitioner’s appointment on 2 9.10.1994 be maintained and he should be treated to have been appointed on regul ar basis against the vacant post w.e.f. the date of appointment i.e. 29.10.1994. Belatedly, the respondents filed writ appeal against the said judgment d ated 19.2.2002, which was registered and numbered as WA No. 49/2009. In the appe al, it was pointed out on behalf of the State that though no counter was filed b efore the Single Bench, order dated 15.3.1996 passed by this Court in Civil Rule No. 4609/1994 (N.A. Mazumdar -vs- State of Assam & Ors.) gave the reason why th e petitioner was not allowed to join. It was held that CBI after due enquiry fou nd that the Chief Conservator of Forests had committed fraud by giving wrong inf ormation to the Forest Department and made illegal appointments. Petitioner was selected because of favouritism and his appointment was vitiated by fraud. Notic ing that the petitioner was unable to dispute the above factual aspect, the Divi sion Bench vide order dated 3.4.2012 set aside the order of the Single Bench dat ed 19.2.2002 and remitted the matter to the Single Bench for fresh decision afte r taking into account the order dated 15.3.1996 or any other relevant issues rai sed by the parties. That is how the present writ petition is again before the Single Bench f or fresh consideration. However, this Court by order dated 20.11.2012 had dismissed the writ pet ition for non-prosecution and had vacated the interim order passed earlier. Subs equently, on application filed by the petitioner, case was restored to file and is now being taken up for hearing. On the matter being remitted back, an affidavit has been filed on behalf of the Principal Chief Conservator of Forests, Assam on 21.5.2012. Stand taken is that an ex-cadre post of Chief Conservator of Forests (H.Q), Assam was tempor arily created by the Government for the period from 8.2.1993 to 31.5.1993 which was extended upto 31.10.1994 till the retirement of Sri A.H. Choudhury who was h olding the said post. On his retirement, the said post was abolished. It is stat ed that just on the eve of his retirement, Sri A.H. Choudhury, the then Chief Co nservator of Forests (H.Q) had appointed as many as 107 persons including the pe titioner as Forester-I on temporary basis vide orders dated 29.10.1994 against p osts sanctioned under the Waste Land Development Project. The appointments made by Sri A.H. Choudhury were found to be tainted with fraud. The appointment lette rs were issued illegally and arbitrarily, without following any procedure and we re actuated with malafide intention. Moreover, the Waste Land Development Projec t had already been abolished. The above facts having come to notice, the State Government decided that nobody should be allowed to join pursuant to such illegal orders. Accordingly, the Principal Chief Conservator of Forests immediately issued order dated 4.11.1 994, directing all concerned not to allow joining of any of the appointees. Similarly situated persons like the writ petitioner had filed writ petit ions before this Court, which were registered as Civil Rule Nos. 3647/1994, 4950 /1994 and 4609/1994. While hearing those writ petitions, this Court directed CBI to make an enquiry and to submit report before this Court. After CBI submitted its report, the contents of which have been noticed above, this Court vide judgm ent and order dated 15.3.1996 passed in MC No. 12/1996 in Civil Rule No. 4609/19 94 dismissed all the writ petitions. Mr. Borbhuya, learned counsel for the petitioner submits that petitioner had appeared in an interview pursuant to call letter issued by the Chief Conser vator of Forests and, thereafter, he was appointed. On the strength of the inter im order of this Court passed on 10.3.1995, petitioner had continued in service as Forester-I for a long time i.e. for almost 18 years. He has also placed befor e the Court a letter dated 16.10.1996, issued by the respondent No. 3, requestin g the Conservator of Forests, Southern Assam Circle to consider the case of the petitioner for permanent absorption. Learned counsel submits that there was no w rong on the part of the petitioner and after rendering service for almost 18 yea rs, it will be very harsh if the case of the petitioner is not considered. Mr. Chakraborty, learned Govt. Advocate has referred to the affidavit fi led by the Principal Chief Conservator of Forests and submits that after the ord er of this Court dated 15.3.1996, which has also been taken note of by the Divis ion Bench, the question of entertaining the prayer of the petitioner does not ar ise. Since the very entry of the petitioner into service is tainted with fraud, no relief can be granted to the petitioner. Submissions made have been considered. Facts which have emerged and which have been noticed above are quite gla ring and speak for itself. This Court in its order dated 15.3.1996, after referr ing to the report submitted by the CBI, came to the conclusion that the appointm ents made by Sri A.H. Choudhury, the then Chief Conservator of Forests (HQ), wer e tainted with fraud and question of granting relief to the petitioners in exerc ise of writ jurisdiction of this Court did not arise in as much as the writ Cour t cannot put a premium on fraud and if the relief was granted to the petitioners , it was exactly what would have happened. All the writ petitions were according ly dismissed. The petitioners of those writ petitions that were dismissed vide the ord er dated 15.3.1996 i.e. Civil Rule Nos. 3647/1994, 4950/1994 and 4609/1994 were appointed like the present petitioner by Sri A.H. Choudhury on 29.10.1994, two d ays prior to his retirement. It is brought on record that the appointments were made against the Waste Land Development Project, which had already been abolishe d. When the initial appointment of the petitioner is vitiated by such fraud which has already been noticed by this Court, question of granting any relief t o the petitioner does not arise. Petitioner may have continued in service for a long time on the strength of the interim order of this Court, but as is the sett led position, interim orders are always subject to final orders of the Court. In terim orders cannot confer any right on a petitioner. In a case when the foundat ion is removed, the superstructure is bound to fall. The Hon’ble Supreme Court i n the case of Kalabharati Advertising -vs- Hemant Vimalnath Narichania and other s reported in (2010) 9 SCC 437 examined the effect of dismissal/withdrawal of a case on the interim relief granted. Hon’ble Apex Court held that no litigant can derive any benefit from the mere pendency of a case in a court of law, as the i nterim order always merges into the final order and if the case is ultimately di smissed, the interim order stands nullified automatically. Paragraph 15 of the s aid judgment may be gainfully quoted:- (cid:28)15. No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to b e passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withd rew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the co urt is under an obligation to undo the wrong done to a party by the act of the c ourt. Thus, any undeserved or unfair advantage gained by a party invoking the ju risdiction of the court must be neutralised, as the institution of litigation ca nnot be permitted to confer any advantage on a party by the delayed action of th e court. (cid:29) In such circumstances and considering the earlier order of this Court da ted 15.3.1996, this Court finds no good ground to grant the relief(s) as prayed for by the petitioner. Writ petition is devoid of merit and is accordingly dismissed. No cost.