Judgment · High Court · 2012

So far as the petitioner in the other writ petition, i.e. W.P.(C) No. 43 5. 27/2011 is concerned, he had earlier filed W.P.(C) No. 6115/2010 questioning th e selection of the respondent No. 8 to the post of Director of Agriculture, Assa m. The writ petition was dismissed making a grievance against which he had prefe rred a writ appeal being W.A. No. 417/2010. The writ appeal also having been dis missed, he had approached the Apex Court by filing an appeal. However, the appea l being SLP (C) No. 2280/2011, was also dismissed.

#6. Apart from the above proceedings, one Shri Amit Deori also filed two wri t petitions being W.P.(C) No. 6452/2010 and W.P.(C) No. 1564/2011 challenging th e selection and recommendation made in favour of the respondent No. 8 for appoin tment to the post of Director of Agriculture, Assam. All the above writ petitions by which the selection of the respondent N 7. o. 8 was challenged having been dismissed and such dismissal being upheld by th e Apex Court, it is the stand of the respondents that by way of another set of w rit petitions, the same matter cannot be allowed to reopen. According to the res pondents, the principle relating to finality of the judicial proceeding demands that these two writ petitions be dismissed in limine without entering into the merit of the case which has already been decided in the earlier proceedings. I have heard Mr. A. Choudhury alongwith Ms. B. Choudhury, learned coun 8. sel for the petitioners as well as Mr. K.N. Choudhury, learned Sr. Addl. Advocat e General, Assam assisted by Ms. B. Dutta, learned State counsel. I have also he ard Mr. M.K. Choudhury, learned Sr. counsel assisted by Mr. U.K. Nair and Mr. A. Borkatakey, learned counsel appearing for the respondent No. 8. Mr. R.K. Talukd ar, learned SC, APSC has also made his submissions. During the course of hearing of the writ petitions, learned counsel for 9. the parties have submitted various documents including the judgments and orders delivered in the earlier writ proceedings including the orders passed in the wr it appeal and SLP.

#10. Mr. A. Choudhury, learned counsel for the petitioners submits that irres pective of the earlier finding arrived at by this Court and the concurrence ther eof by the Apex Court, in view of the subsequent disclosures made relating to qu alification of the respondent No. 8 required for appointment as the Director of Agriculture, Assam, the instant writ petitions are maintainable. He submits that there being suppression of material fact on the part of the respondent No. 8 in offering his candidature for the post of Director of Agriculture, Assam and als o having regard to the position of the said post presently occupied by the respo ndent No. 8, a writ of Quowarranto is called for. On the question of maintainab ility of the writ petitions, referring to two decisions of the Apex Court report ed in (1) (2007) 4 SCC 221 (A.V. Papayya Sastry and ors. Vs. Govt. of A.P. and o rs.) and (2) (2009) 7 SCC 1 (N. Kannadasan vs. Ajoy Khose), he submits that if i t is found that in the earlier proceeding there was misrepresentation and that m aterial fact was not considered by the Court, it will not be a bar for this Cour t to entertain the writ petitions exercising the power of judicial review under Article 226 of the Constitution of India.

#11. Countering the above argument, Mr. K.N. Choudhury, learned Sr. Addl. Adv ocate General, Assam submits that both the writ petitions are not maintainable i n view of the earlier judgments concluding the issue once again raised in this w rit petitions. He submits that the very basis of the writ petitions is wrong and is an abuse of the process of law. According to him, the writ petitions are to be dismissed with exemplary costs. In support of his argument, he has placed rel iance on two decisions of the Apex Court reported in (1) (1989) 3 SCC 151 (M/s. Kesho Ram and Co. and ors. Vs. Union of India and ors.) and (2) (2005) 7 SCC 190 (Ishwar Dutt vs. land acquisition Collector and anr.) .

#12. Mr. M. K. Choudhury, learned Sr. counsel representing the respondent No. 8 has submitted that when the recommendation made in favour of the respondent N o. 8 has been upheld by this Court on the basis of the same pleadings, the petit ioners are not permitted to raise the same issue once again by means of the inst ant writ petitions. He submits that the particular qualification in respect of w hich the petitioners have agitated their grievances having already been gone int o in the earlier proceedings recording the finding in favour of the respondent N o. 8, the same issue cannot be allowed to be re-agitated again by filing the ins tant writ petitions. Mr. R.K. Taluldar, learned SC, APSC has adopted the aforesaid arguments 13. advanced by both Mr. K.N. Choudhury, learned counsel appearing for the responden ts and Mr. M.K. Choudhury, learned counsel for the respondent No. 8.

#14. The question of maintainability of the writ petitions having been raised at the very threshold of the argument necessarily reference will have to be mad e to the earlier proceedings which will also touch the merit of the case of the petitioners.

#15. The whole basis of the series of the litigations in the matter of selec tion and appointment of the respondent No. 8 centres around the qualification pr escribed under Rule-8 of the Recruitment Rules, namely Assam Agricultural Servic es Rules, 1980. As per Rule-8, academic qualification of a candidate for direct recruitment shall be as prescribed by the Governor from time to time. The qualif ication and experience prescribed as on the date of commencement of the Rules ar e to be found in Schedule-II. We are concerned with clause-1 (iii) of the Sched ule to the said Rules. As per the requirement of the said clause, for the post of the Director of Agriculture, the person is required to have experience in adm inistration of Agriculture in a senior post at least for 8 years.

#16. According to the petitioners, the respondent No. 8 was lacking in the sa id qualification inasmuch as he had no experience in a senior post for 8 years. Another ground of attack on behalf of the petitioners is that there has been sup pression of material fact on the part of the respondent No. 8 in projecting that he had the requisite experience of 8 years. In this connection, the petitioner s have referred to Annexure-P/6 letter dated 22.11.2010 addressed to one Shri Ka ilash Barman by the Deputy Secretary, Govt. of Assam and SPIO, Agricultural Depa rtment. By the said letter particulars furnished by the respondent No. 8 towards offering his candidature were fowarded. In the particular document, it was indi cated by the respondent No. 8 that he was promoted from the post of Agricultural Extension Officer (AEO) to that of Subject Matter Specialist. It is because of this word (cid:28)promoted (cid:29) used by the respondent No. 8 in his document offering c andidature, the case of the petitioners is that there had been misrepresentation on both the posts, i.e. Agriculture Extension Officer and Subject Matter Specia list, are in the same cadre and did not involve any promotion in moving to the p ost of SMS from AEO.

#17. From the above and also from the tenor of the arguments advanced by the learned counsel for the petitioners, what is seen is that the whole basis of the writ petitions is the alleged lack of experience of the respondent No. 8 as env isaged under Clause 1 (iii) of the Schedule-II of the aforesaid Rules and the al leged suppression of the material fact as indicated above. Let us now test the aforesaid two issues in the touchtone of the stand 18. of the respondents that present writ proceeding is not maintainable as both the issues had already been gone into in the earlier proceedings. As noticed above, one of the petitioners had earlier filed a writ petiti 19. on being W.P.(C) No. 6115/2010. The said writ petition was dismissed by judgment and order dated 29.11.2010. In the writ petition the challenge was the very sel ection and recommendation made in favour of the respondent No. 8. In paragraph - 4 of the said judgment, this Court noticing the plea taken by the petitioners re corded thus: (cid:28)4. &The respondent No. 7 having been selected by the Commission and recommende d for the post, the petitioner has impeached the same on the ground that he bein g bereft of experience in administration of Agriculture in a senior post for a p eriod of eight years, a mandatory prescription of the Rules, his candidature was void ab initio and ought to have been rejected in limine. (cid:29)

#12. Though the facts and particulars of the experience of respondent No. 7 as se t out in tabular form in his affidavit vis-à-vis the Department of Agriculture d oes not indicate the nature of his duties for the post of Sr. Scientific Assista nt, Agricultural Extension Officer and Subject Matter Specialist (Agro), the res t tally with those furnished by him to the Commission as is reflected by Anenxur e-13 to the affidavit in reply of the petitioner. As a matter of fact, this docu ment (annexure-13) is not complete in the sense that it does not disclose the de tails of the respondent No. 7’s experience in posts held by him under the Depart ment of Soil Science, Assam Agriculture University, in connection with various h andling research projects. The certificates dated 16.11.2010 (Annexure A and B) to his affidavit, however, set out the same. The period as the certificate (Anne xure-A) would reveal spans over from 01.04.1997 to November, 2010. Apart therefr om he had held the post of Professor and Associate Professor under the universit y from 02.04.1990 and prior thereto. During 10.09.1980 to 01.11.1998, he had ser ved as Sr. Scientific Assistant, Agricultural Extension Officer and Subject Matt er Specialist (Agro). The certificates dated 13.10.2010 of the Director of Agri culture in favour of the petitioner affirming his required length of experience in administration of agriculture at various capacities in a senior post include s his office as Agricultural Extension Officer and Assistant Horticulturist (Jun ior SMS) as well. Though the eligibility of the petitioner is not an aspect unde r scrutiny, on a comparison of the posts and the duties relatable thereto as dis charged by both the incumbents, the plea of absence of essential length of exper ience of the respondent No. 7 in administration of agriculture in a senior post does not commended for acceptance.

#13. & the Commission having accepted the candidature of respondent No. 7 being fully conscious of the Rules in this regard, this Court is disinclined to sustai n the challenge against his eligibility. A perusal of the records of the selecti on maintained by the Commission does not indicate anything contrary to return a different finding. That experience in administration of agriculture permissibly comprehends one under the Agriculture University as well as underlined by this C ourt in Manjura Mohan Kalita (supra). The relevant portion of the rendering to t his effect deserves to be extracted. (cid:28)Serial No. 3, in my considered opinion, cannot be read in isolation wit h serial No. 4, and so read it will encompass not only the experience in adminis tration of agriculture under the Government, but also the experience in administ ration of agriculture under an Agriculture University where the outstanding rese arch training or extension and education are carried on. Thus, the contention of respondent No. 3 in the affidavit in opposition that the experience in administ ration of agriculture under the Assam Agriculture University is not the experien ce in administration of agriculture as stipulated in serial No. 4 quoted above i s misconceived. (cid:29) (cid:28)Firstly, in serial No. 3 quoted above, it has not been mentioned that e xperience in administration of agriculture should be only under the Government, but it has only been mentioned that a candidate must have experience in administ ration of agriculture in a senior post at least for 8 years. The word ’administr ation’ in Black’s Law Dictionary, Fifth Edition, has been defined to mean-manag ement or conduct of an office or employment, the performance of the executive du ties of an institution, business, or the like. In Chambers Twentieth Century Dic tionary, similarly, the word ’administration’ has been referred to mean-the act of administering; management, etc. Thus, experience in administration would incl ude not only experience in government administration but also experience in othe r administration, such as administration under a University. (cid:29)

#14. The reservation expressed by the petitioner based on certain omissions qua t he nature of his duties as Sr. Scientific Assistant, Agricultural Extension Offi cer and Sub Matter Specialist (Agro) in the face of other regnant materials is o f no overriding significance. The Rules do not enjoin experience in an administr ative post and the certificates issued by the authorities concerned do not as su ch admit of any doubt of the authenticity thereof to sustain the plea of the pet itioner. On a totality of the conclusions recorded hereinabove, this Court is of the view that no interference with the selection and or recommendation of the re spondent No. 7 by the Commission for the post of Director of Agriculture in the State of Assam warrants interference in the exercise of its power of judicial re view. The petition, therefore, lacks in merit and is dismissed. The interim rest raint stands vacated. No costs. (cid:29) (Emphasis supplied)

#20. The writ petition having been dismissed, the petitioner had approached t he Division Bench by filing the writ appeal being W.A. No. 417/2010. The said wr it appeal was also dismissed by judgment and order dated 23.12.2010 recording th at the appellant resisted his case only on the item No. 3, i.e. experience in ad ministration of Agriculture in a senior post of administration for 8 years and r ejecting the plea of lacking of experience on the part of the respondent No. 8, observed thus: (cid:28)It must be noted that the advertisement mentions (cid:28)experience in administration of Agriculture in a Senior Post at least for 8 years (cid:29) but what is a Senior post that has not been mentioned not (cid:28)experience in administration (cid:29) has been specifie d. Respondent No. 7, from the record, seems to had a long career starting from s ome time 1980 onwards and has held various posts including that of Senior Scient ific Assistant, Agriculture Extension Officer, SMS (Agro), Assistant Professor, Associate professor and Professor. The Selection Committee, which includes an expert from the Government, w ould have surely looked into the materials for the purposes of determining wheth er respondent No. 7 met the qualifications laid down in the advertisement. (cid:29)

#21. As against the aforesaid order of the Division Bench the petitioner appr oached the Apex Court by filing SLP (C) No. 2280/2011. The said SLP was dismisse d by order dated 11.02.2011 with the following order: (cid:28)Heard Mr. F.S. Nariman, learned senior counsel appearing for the petitioner. We find no merit in this petition for special leave. It is dismissed. (cid:29) As noted above, one Shri Amit Deori had also questioned the selection an 22. d recommendation made in favour of the respondent No. 8. He had filed W.P.(C) No . 6452/2010, but the same was dismissed by order dated 12.01.2011. While dismiss ing the writ petition, the aforesaid judgment and order passed by this Court in W.P.(C) No. 6115/2010 and W.A. No. 4171/2010 was duly taken note of. On being po inted out the said judgment and order, learned counsel for the petitioner sought for withdrawal of the writ petition. While allowing the said prayer, the writ p etition was dismissed. Even after dismissal of the aforesaid writ petition, same very petitioner, i.e. Shri Amit Deori, filed another writ petition being W.P.(C ) No. 1564/2011 and the same was also dismissed by order dated 21.03.2011. As in the earlier writ petition in the said writ petition also, the challenge was to the selection and recommendation made in favour of the respondent No. 8 for the post of Director of Agriculture, Assam. Then came the turn of the petitioner inv olved in W.P.(C) No. 4319/2011 who filed another writ petition being W.P.(C) No. 1587/2011. As in the earlier writ petition, in the said writ petition also the challenge was to the selection and recommendation of the respondent No. 8. The s aid writ petition was also dismissed by order dated 25.03.2011 noticing the afor esaid judgments and orders including dismissal of the SLP by the Apex Court by i ts order dated 11.02.2011 in Civil Appeal No. 2280/2011. Against the said order dated 25.03.2011 and also the Division Bench orde 23. r dated 23.12.2010 passed in WA No. 417/2010, the petitioner had approached the Apex Court by filing an appeal. The appeal was dismissed by order dated 02.05.20 11 with the following order: (cid:29)Upon hearing counsel the Court made the following order After some arguments, Mr. Huzefa Ahmedi, counsel for the petitioner in b oth the petitions seeks permission to withdraw these special leave potions so th at petitioners may agitate their grievances by filing their representations befo re the concerned authorities and the State Government. The Special leave petitions are dismissed as withdrawn. (cid:29)

#24. At this stage, it is submitted by the learned counsel for the parties th at the petitioner involved in the second writ petition, i.e. W.P.(C) No. 4327/20 11, had filed a review petition in respect of the order dated 11.02.2011 by whic h his appeal against the Division Bench judgment and order dated 23.12.2010 pass ed in WA No. 417/2010 was dismissed. The said review petition was also dismissed by order dated 19.07.2011 by the following order: (cid:28)IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION REVIEW PETITION (CIVIL) NO. 1568/2011 IN SPECIAL LEAVE PETITION (CIVIL) NO. 2280 of 2011 TIMOTHY HANSE (DAS) STATE OF ASSAM & ORS. PETITIONER RESPONDENTS VERSUS ORDER This petition is filed seeking review of order dated February 11, 2011 p

#1. assed in Special Leave Petition (Civil) No. 2280 of 2011. Prayer for oral hearing is rejected. 2. We have gone through the review petition and the record of the special l 3. eave petition. We find that the order of which review is sought does not suffer from any infirmity, much less any apparent error on the fact of the record. No c ase is made out for review. 4. The review petition is dismissed. (cid:29)

#25. At this stage it will be pertinent to place on record the fact that the petitioner in W.P.(C) No. 4327/2011 in his rejoinder affidavit filed in W.P.(C) No. 6115/2010 had urged more or less the same grounds as has been urged in the present writ petition. Both the points, i.e. (1) the respondent No. 8 lacks expe rience and (2) he has misled the APSC in offering his candidature, had been agit ated with the following statements: (cid:28)The respondent No. 7 mentioned that he had promoted to the post of SMS(Agro) fr om Agricultural Extension Officer, which is misleading inasmuch as the feeder po st for promotion to (cid:28)Subject Matter Specialist (cid:29) is (cid:28)Sub-Divisional Agricultural Officer (cid:29). The Annexure-c Series annexed to the preliminarily affidavit at page 2 3, it was noted as follows: (cid:28)Joined as Subject Matter Specialist (Agro), Roha on 10.11.88 vide A.D.A. (Extn. ) Assam order No. Agri/Esstt./53/KB/5 dated 05.11.88. (cid:29) Therefore, the said Annexure-C series contradicts the contents of Annexure-4. Th e respondent No. 7 did not disclose as to how he promoted from the post of Agric ultural Extension Officer to SMS (Agro). Hence, the posts held with effect from 09.10.80 to 31.03.90 were not Senior Posts and the nature of duty mentioned agai nst the said posts held with effect from 09.10.80 to 31.03.90 cannot be construe d to be duties discharged in an Administrative post. Therefore, such experience has no relevancy to satisfy the requirements set out in Serial No. 3 of Educatio nal Qualification of the Advertisement dated 22.04.10, i.e. Experience in admini stration of Agriculture in a Senior post at least for 8 years as well as Clause 1(3) of Schedule-II of Rule 6/ Rule 8 of the Rules, 1980, which is a mandatory s tatutory requirement. (cid:29)

#26. Above apart, in the earlier writ petition filed by him, i.e. W.P.(C) No. 6115/2010, while structuring his case against the selection and recommendation of the respondent No. 8, made specific pleadings urging both the grounds, i.e. lack of experience of 8 years and suppression of material fact in offering his c andidature. Not only that the documents which have now been placed to put emphas is on the word (cid:28)promoted (cid:29) so as to contend that the respondent No. 8 wrongly rep resented that he was promoted to the post of Subject Matter Specialist (SMS) fro m Agriculture Extension Officer (AEO) was also annexed to the writ petition.

#27. In the earlier writ petition filed by the petitioner involved in W.P. No . 4319/2011, i.e. W.P.(C) No. 158/2011, the whole basis of the case was the alle ged lack of experience as envisaged in the Rules and misrepresentation of the ac tual position held by the respondent No. 8. Thus, there is absolutely no manner of doubt that the issues now raised in the two writ petitions were the issues in the earlier litigations. Yet, undaunted, the petitioners have once again raised the same issue by filing the instant writ petitions. Referring to the particular notings in the file of the decision making p 28. rocess, Mr. A. Choudhury, learned counsel for the petitioners has submitted that although in one of the notings there was clear indication that the respondent N o. 8 was lacking the required experience, but in the ultimate decision of the au thority the said note was totally ignored.

#29. I have very carefully gone through the said notings annexed to the addit ional affidavit filed by the petitioners. On perusal of the same, nothing is dis cernible that any decision was taken not to accept the recommendation of the APS C in the matter of selection and appointment of the respondent No. 8. Apart from the fact that the matter cannot be decided on the basis of the some internal no tings, such notes at the intermediary stages cannot be lifted by the petitioners favouring their case. In the decision making process notes in the file are boun d to be given/recorded. But it is the final decision which matters. In the insta nt case, recommendation made in favour of the respondent No. 8 was accepted by t he Departmental Minister including the Chief Minister. That being the position, I am not inclined to accept the submissions made by Mr. A. Choudhury, learned co unsel for the petitioners that the decision making process was wrong. Further, c onsultation at the departmental level through files cannot be the subject matte of the judicial scrutiny of this Court. As has been held by the Apex Court in M D U.P. Land Development Corporation vs. Amar Singh reported in (2003) 5 SCC 388, internal notes and orders of the office are meant for official purposes and sha ll not be produced before the Court in support of claim of the petitioner.

#30. Let us now discuss the decisions on which Mr. A. Choudhury, learned coun sel for the petitioners has placed reliance. In A.V. Papayya Sastry (Supra), the Apex Court referred to the well known principle of law that if any judgment and order is obtained by fraud, it cannot be said to be judgment and order in law. The decision has been pressed into service to buttress the argument that there b eing misrepresentation on the part of the respondent No. 8, the earlier judgment holding the field cannot stall the instant proceeding and this Court is require d to interfere with the recommendation made in favour of the respondent No. 8 fo r ends of justice. I am afraid, the said decision is of no help to the case of t he petitioners. It is not a case of obtaining a judgment by the respondent No. 8 committing fraud on Court. As to what was his experience required for the purpo se of selection, has already been gone into in the earlier pro0ceedings and the recommendation made in his favour has also been sustained. That being the positi on, the petitioners cannot again reopen the matter, the same being clearly barr ed by the principles of resjudicata.

#31. In N. Kannadasan (supra), it was held by the Apex Court that a writ of q uowarranto can be issued when the holder of the public office has been appointed in violation of the Constitutional and statutory provision. According to the le arned counsel for the petitioners, the respondent No. 8 having been appointed in violation of the statutory provisions, his appointment is required to be interf ered with issuing a writ of quowarranto. Be it stated here that the respondent N o. 8 has been appointed by the notification dated 30.06.2011. As to what is the statutory provision relating to appointment of the Director of Agriculture, Assa m has been noted above. This Court has already gone into the question of experie nce of the respondent No. 8 in reference to the said statutory provisions. It ca nnot be said that the respondent No. 8 has been recommended and appointed in vio lation of the statutory provisions. That apart, if this argument is allowed, sam e will amount to permitting the petitioners to raise the particular point again and again which will be an abuse of the process of law. The decisions on which Mr. K.N. Choudhury, learned Sr. Addl. Advocate Ge 32. neral has placed reliance are M/s. Kesho Ram (supra) and Ishwar Dutt (supra). In M/s Keso Ram, the Court was concerned with the validity of the particular provi sion/notification. It was held that once the petitioners challenged the validity of the earlier notification, they ought to have raised all the grounds which co uld have been raised against the impugned notification. Emphasising the need for finality in the litigation, it was observed that finality in litigation and pub lic policy both require that a litigant should not be permitted to challenge val idity of the provisions of the Act or notification at different times on differe nt grounds.

#33. In Ishwar Dutt (supra), the Apex Court dealing with principle of resjud icata observed that once the matter which was the subject matter of lis stood d etermined by a competent Court, no party thereof can be permitted to reopen in a subsequent litigation. Such a rule was brought into statutory book with a view to bring the litigation to an end so that other side may not be harassed. In the instant case, the issues which have been raised in the instant wr 34. it petitions having already been gone into and decided with the finality to it, the petitioners are precluded and estopped from raising the same issues again in the garb of the aforesaid order of the Apex Court by which SLP was dismissed re cording the submissions made on behalf of the petitioners that they would like t o make representation. Even if any representation is made and the same is decide d, I am of the considered opinion that same cannot give rise a fresh cause of ac tion to the petitioners as the issue raised in the writ petition was the reitera tion of the earlier issues raised in the earlier proceeding. As has been held by the Apex Court in Post Graduate Institute of Medical Education Vs. A.P. Wasar, reported in (2003) 5 SCC 321, the issue which has become final in judicial proce edings cannot be reopened as is sought to be done in the instant case.

#35. It is on record that the representation made by the petitioners has been rejected by the authority. On perusal of the pleadings and other related materi als, it gives an impression that the petitioners have structured the instant wr it petitions on the basis of the order of the Apex Court referred to above, i.e. the order dated 02.05.2011, quoted above. By the said order, the petitioner was permitted to withdraw the SLP recording the statement that the petitioner would prefer representation before the concerned authority. Such submission and the d ismissal of the SLP has been projected to be the permission grated by the Apex C ourt for making representation giving rise to a fresh cause of action. Such a co nduct on the part of the petitioners is unbecoming of a responsible Govt. office r. For all the aforesaid reasons, I am of the firm opinion that the writ pe 36. titions are not maintainable. Filing of such writ petitions once again agitating the same issues which have attained the finality, is an abuse of the process of law. Considering the matter in its entirety and having regard to the facts and circumstance involved, I am of the considered opinion that awarding of cost is a ttracted in this case. Accordingly, both the writ petitions are dismissed imposi ng a cost of Rs. 50,000/- to each one of the petitioners which they will deposit with the Registry of this Court within one month. While the respondent No. 8 wi ll be entitled to withdraw Rs. 50,000/- being the cost of the successive legal p roceedings, the remaining amount of Rs. 50,000/- shall be credited to the accoun t of the legal aid cell of the High Court.

#37. Both the writ petitions are dismissed imposing costs as aforesaid.