High Court · 2012

Heard Mr. M.K. Choudhury, learned Sr. counsel assisted by Mr. J.M. Borbh uyan, learned counsel for the petitioner as well as Mr. U.K. Das, learned SC, SW D. By means of this writ petition filed on 11.09.2012, the petitioner seeks implementation of the select list published way back in 2005 and to be precise on 11.11.2005 (Annexure-3) by which results had been declared amongst others for the post of Supervisor in Social Welfare Department. The basic ground urged in the writ petition is that although the petitio ner had occupied higher merit position than the private respondents, i.e. respon dent No. 4, 5 and 6, but she was deprived of her appointment. Instead, the said respondents had been appointed. In this connection, the petitioner has referred to Annexure- 5, 5(i) and 8 appointment orders dated 27.02.2006, 27.02.2006 and 0 6.08.2001. Out of these three orders, Annexure-5 and 5(i) orders both dated 27.0 2.2006 were issued towards appointing the respondent Nos. 4 and 6 pursuant to th eir selection as Supervisor. Annexure-8 appointment order dated 06.08.2011 is in respect of one Smt. Abida Mazumdar who is not a party respondent to this proce eding. She was appointed as per the direction of this Court dated 09.03.2010 pas sed in a writ petition filed by her, namely W.P.(C) No. 4756/2006. Although the grievance raised by the petitioner does not have anything to do with the said or der, but the petitioner has placed on record the said order so as to claim immun ity from being questioned that her writ petition is barred by the principles of delay and laches. Learned counsel for the petitioner has tried to justify the delay and la ches with the statement that the petitioner was not aware of Annexure-5 and 5(i) appointment orders both dated 27.02.2006 and now after having come to know the same after six years, the petitioner has filed the instant writ petition. Anothe r leg of argument laid by him is that since the authority has made appointment b y aforesaid Annexure-8 order, the select list is still valid and accordingly the case of the petitioner is required to be considered. As per the own showing of the petitioner, the select list was published vide notification dated 11.11.2005. By now almost 7 years have gone by. Only exp lanation furnished in the writ petition for delay in filing the writ petition is as follows:

11. That the petitioner respectfully begs to state that though the select was pu blished on 11.11.2005 but she was not aware about the appointment of the private respondent Nos. 4, 5 and 6, whose appointments were made by superseding the pet itioner and does not necessitate to approach the Hon’ble Court. Of late, however , as the respondent No. 2 made appointment to the above mentioned candidate on 6 th August, 2011 (Anenxure-8) the petitioner on this source got the knowledge of appointment of Respondent Nos. 4, 5 and 6 and somehow managed to collect the app ointment of the respondent Nos. 4 and 6 but the petitioner unable to collect the appointment order of respondent No. 5. For this reason, there is some delay in filing the instant writ petition. Therefore, considering the above mentioned fac ts and circumstances of the case this Court may be pleased to condone such delay for the ends of justice. The cause as stated above is not intentional and beyon d the scope and ambit of the petitioner. (cid:29) Irrespective of noticing the delay in filing the writ petition and being not satisfied with the explanation furnished for condoning the delay, learned S C, SWD was directed to obtain instruction in this matter. He has been furnished with the required instruction by letter dated 27.09.2012 in which it has been st ated that as against the petitioner being a general category candidate, the resp ondent No. 4 and 5 being ST (P) candidate, irrespective of their merit positions in the select list, they had been appointed as reserved category candidates. As regards the appointment of the respondent No. 6, it has been stated in the said letter that no candidate of her name has been found in the select list for whic h the selection was conducted in Cachar District and her name did not figure in the select list. As has been held by the Apex Court in Sow Chandra Kanta and another vs. Sheik Habib reported in AIR 1975 SC 1500 , delay itself defeats the cause of ac tion. Only explanation furnished for the delay that the petitioner was not awar e of the appointment orders dated 27.02.2006, does not appeal to this Court. If the petitioner was a selected candidate allegedly superseded in the matter of a ppointment, she could not have sat over the matter so as to await long seven yea rs to approach this Court seeking appointment on the basis of the aforesaid sele ct list of 2005. As already noted above, the petitioner does not equate her case with tha t of Smt. Abida Mazumdar who had filed W.P.(C) No. 4756/2006. In the said case, the plea of the petitioner was that she was superseded in the matter of appoint ment inasmuch as although she had secured equal marks in the selection alongwith another candidate who was appointed, but the petitioner was left out from such appointment. Noticing the facts and circumstances of the case, this court by ord er dated 09.03.2010 disposed of the same directing consideration of the case of the said petitioner. The purpose for which the said order has been placed on rec ord is to show that the appointment had been made even on 06.08.2011, after expi ry of six years. However, the fact of the matter is that the petitioner in W.P.( C) No. 4756/2006 had approached the Court immediately after the select list, unl ike the petitioner in the instant writ petition who has approached this court on

11.09.2012 after long seven years of the of publication of the select list. Irrespective of the delay in filing the writ petition, even on merit als o the writ petitioner is not entitled to get any relief. The two candidates agai nst whom the grievance has been made belong to ST(P) category and they have been appointed as reserved category candidates. The petitioner being a general categ ory candidate cannot make a comparison of her case with those reserved category candidates. As regards the 3rd candidate, i.e. the respondent No. 6, specific s tand of the Director of SWD, Assam in his letter dated 27.09.2012 is that her na me was not included in the select list. That aspect of the matter may be dealt w ith by the Departmental authority taking note of all the attending facts and ci rcumstances of the case. Having regard to the delay and laches in filing the wri t petition, the prayer for setting aside and quashing the said appointment canno t be granted. Even if the said appointment is wrong, another wrong can not be ma de by directing appointment of the petitioner. Accordingly the writ petition is dismissed. The letter dated 27.09.2012 shall form part of the record.