High Court
Case Details
WP(C) 930/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
(cid:28)From the above recital of facts, it will be clear and evident that the validity of the appointments of the Respondents No. 4 to 50 have already been adjudicate d upon by this Court in WP(C) No. 2046/2003. The aforesaid judgement and order o f this court dated 26.6.2003 has attained finality in law. In such circumstances , there will be no occasion for this Court to once again consider the same chall enge which has already been decided in WP(C) No. 2046/2003 and other connected c ases. In the above circumstances, it will not be possible for this Court to grant any relief to the petitioners save and except that the directions passed by this Cou rt on 26.6.2003 in WP(C) No. 2046/2003 and other connected cases, which have bee n indicated by the respondents to be in the process of implementation, shall not be finalised by the competent authority in the State Government within a period of 3 (three) months from the date of receipt of a certified copy of this order. The competent authority shall within the aforesaid period of time complete the process of implementation of this Court’s order dated 26.6.2003 and thereafter, take necessary action in accordance with law. (cid:29) The said order dated 21.6.2005 passed in WP(C) No. 1540/2004 was carried on appe al, registered and numbered as WA No. 507/2005. The appeal was dismissed by orde r dated 20.1.2006. After the aforesaid developments, the petitioners filed the instant writ petitio n claiming appointment on the ground that their names were included in the selec t list and candidates below them had been appointed. In the counter affidavit filed by the respondents, it has been reiterated that t he appointments had been made illegally de hors the recruitment rules. As stated in the affidavit, it is the definite case of the respondents that there was no advertisement and selection as required to be held as per the recruitment rules. As regards the stage of the show cause notice issued to the appointees, it is t he stand of the respondents that the matter was at the stage of show cause notic e and no final decision could be taken. Mr. D.K. Sarmah, learned counsel for the petitioners submits that when the other appointees have been allowed to continue in their services, the petitioners sho uld also be appointed irrespective of the aforesaid findings that the appointmen ts were illegal. On the other hand, Mr. B. Gogoi, learned Standing Counsel, Fina nce, submits that since the petitioners are not selected candidates and the appo intments of the private respondents have been held to be illegal / irregular, th e petitioners cannot claim appointments. During the course of hearing, Mr. B. Gogoi, learned Standing Counsel, Finance, h as produced the order dated 19.1.2009, by which the Govt. of Assam in the Financ e Department, conveyed the decision to close the matter relating to appointment of the private respondents. While doing so, the performance appraisal of the app ointees and their educational qualification etc were also taken into account. We are not concerned with the legality or otherwise of the said decision contained in the order dated 19.1.2009 as there is no challenge to the same. As could be gathered from the earlier writ petition filed by the present petitio ners i.e. WP(C) No. 1540/2004, their challenge was to the appointments of the pr ivate respondents. Being unsuccessful on that occasion, now they have filed the present writ petition seeking their appointment. It is not understood as to how the petitioners can make different prayers at different stage. If they were dis- satisfied with the selection in question and the appointment of the private resp ondents making a challenge to which they had filed their earlier writ petition, they could not have filed the present writ petition claiming appointments. If the selection was illegal, which is evident from the materials on record, thi s Court exercising writ jurisdiction cannot issue any direction to perpetuate th e illegality by appointing the petitioners. It will be pertinent to mention here that the advertisement was not published in the newspaper but was purportedly h anged in the notice board. The advertisement is dated 1.2.2003 and the last date of submission of application was 10.2.2003. It is submitted that the selection was conducted on 17.2.2003 and the appointments were made on 24-25/2/2003. Above being the position, no relief can be granted to the petitioners and accord ingly, the writ petition stands dismissed, leaving the parties to bear their own costs.
Arguments
By means of this writ petition, the four petitioners have prayed for a direction to the respondents to appoint them as L.D. Assistant and Peon in the Directorat e of Audit (Local Fund), Assam. While the petitioners No. 1, 2 and 3 aspire for appointment as LDA, the petitioner No.4 aspires for appointment as Peon. I have heard Mr. D.K. Sarmah, learned counsel for the petitioners. Also heard Mr . B. Gogoi, learned Standing Counsel, Finance. I have also gone through the enti re materials on record. As the materials would disclose the services of the private respondents from 5 t o 51 were terminated on the ground of they being illegal appointees. It was alle ged that the then Director of Audit (Local Fund), Assam just at the eve of his r etirement from service on attaining the age of superannuation made the appointme nt to the post of LDA and Peon. Such appointment of the private respondents were put to challenge by filing several writ petitions. The writ petitions were disp osed of by judgement and order dated 26.6.2003 setting aside the order of termin ation but at the same time granted liberty to the respondents to proceed with th e matter by issuing show cause notice for the purpose of termination of service and thereafter to take action as per law. It appears that pursuant to the said j udgement, show cause notices had been issued to the appointees on 27.8.2003, whe rein it was stated that the appointments had been made without any wide publicit y of the advertisement as required under the rules. It was also stated that the appointments had been made without any selection / interview for selection of su itable candidates and that there was no select list. It was also alleged in the show cause notice that appointments had been made in excess of the vacancies. It appears that the present petitioners had filed a writ petition being WP(C) No . 1540/2004 challenging the validity of the selection. The said writ petition wa s disposed of in terms of the earlier judgement of this court referred to above. For a ready reference, the operative part of the said judgement is quoted below :-