Page No.# 1/7 vs The State Of Assam And 12 Ors
2022 Latest Caselaw 2432 Gua

                                                                    Page No.# 1/7

GAHC010126672014




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/4573/2014

         NAZIMUDDIN BARBHUIYA and 2 ORS,
         S/O ABDUL JABBAR BARBHUIYA, VILL. NARAINPUR PT.-IV, P.O.
         NARAINPUR, DIST- HAILAKANDI

         2: ANNAMUDDIN MAZUMDER
          S/O LT. ABDUL JABBAR MAZUMDAR VILL- BASHDAHAR PT-I
          P.O. MATIJURY DIST. HAILAKANDI
         ASSAM.

         3: MONTU BAISHYA
          S/O SRI SARAT BAISHYA PIYALI PHUKAN NAGAR
          BAMUNIMAIDAM
          GHY-21

         VERSUS

         THE STATE OF ASSAM and 12 ORS,
         REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, SOCIAL
         WELFARE DEPTT., DIPSUR, GHY-6

         2:DIRECTOR OF SOCIAL WELFARE

          ASSAM
          UJANBAZAR
          GHY-1.

         3:DISTRICT SOCIAL WELFARE OFFICER

          HAILAKANDI.

         4:CHILD DEVELOPMENT PROJECT OFFICER

          ALGAPUR ICDS PROJECT
          P.O. KALIBARIBAZAR
                                                  Page No.# 2/7

HAILAKANDI.

5:CHILD DEVELOPMENT PROJECT OFFICER

LALA ICDS PROJECT
P.O. MONACHERRA
DIST. HAILAKANDI
ASSAM.

6:CHILD DEVELOPMENT PROJECT OFFICER

KATLICHERRA ICDS PROJECT
P.O. KATLICHERRA
DIST. HAILAKANDI
ASSAM.

7:DISTRICT SOCIAL WELFARE OFFICER
 KAMRUP

BELTOLA
GHY-28.

8:TAPAN BARUA
 LDA-CUM TYPIST
 OFFICE OF THE DISTRICT SOCIAL WELFARE OFFICER
 KAMRUP
 BELTOLA
 GHY-28.

9:MANAB DAS
 LDA-CUM TUYPIST
 GOROIMARI ICDS PROJECT
 DIST. KAMRUP
ASSAM.

10:AKTAR HUSSAIN LASKAR
 LDA-CUM TYPIST
ALGAPUR ICDS PROJECT
 DIST. HAILAKANDI
ASSAM.

11:KHABIR UDDIN AHMED
 LDA-CUM TUYPIST
 KATLICHERRA ICDS PROJECT
 DIST. HAILAKANDI
ASSAM.

12:NATARAJ MAZUMDER
                                                                                   Page No.# 3/7

             LDA-CUM TYPIST
             OFFICE SALCHAPRA ICDS PROJECT
             DIST. HAILAKANDI
             ASSAM.

            13:ABDUL HANNAN BARBHUIYAN
             LDA-CUM TYPIST
             HAILAKANDI ICDS PROJECT
             DIST. HAILAKANDI
            ASSAM

Advocate for the Petitioner    : MR.K MIRA

Advocate for the Respondent :




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          JUDGMENT

Date of Judgment & Order : 22.07.2022

Heard Mr. S.B. Laskar, learned counsel for the petitioners as well as Mr. J.K. Goswami, learned Senior Addl. Govt. Advocate appearing for the respondent Nos. 1 to

7.

2. The petitioners counsel submits that the petitioner No. 3 would not like to pursue the matter, as per instructions received by him from the petitioner No. 3. As such, the petitioner No. 3 may be deleted as a party from this case.

3. The prayer of the petitioners counsel is allowed. The petitioner No. 3 is accordingly deleted as a party from the case.

4. The petitioners prayer is for setting aside the order dated 11.01.2005 and order dated 24.09.2010, which is to the effect that the petitioners are illegal appointees, who have been appointed against non- existent posts. The further prayer of the petitioner is that a direction should be issued to the State respondents to release the current salary and arrear salary of the petitioners.

5. The petitioners counsel submits that the petitioner Nos. 1 & 2 were appointed as Page No.# 4/7

LDA-cum-Typist in the office of the Child Development Project Officer, Dalgaon ICDS Project against sanctioned vacant posts on 11.11.1998. However, as they were not being given their salary, the petitioners filed WP(C) No. 7517/2003. In WP(C) No. 7517/2003, an order dated 16.09.2003 was issued directing the State respondents to dispose of the petitioners appeal dated 12.08.2003 and to make payment of the arrear salary of the petitioners as well as current salary. Subsequent to the order dated 16.09.2003 passed in WP(C) No. 7517/2003, the petitioners were given their arrear and current salary. However, as the petitioners were not being given their salary from June, 2007, the petitioners filed WP(C) No. 1564/2010. This Court, vide order dated 09.04.2010 disposed of WP(C) No. 1564/2010, with a direction to the State respondents and particularly to the Director of Social Welfare, Assam to examine the grievances of the petitioners and do the needful in accordance with law. Subsequent to the above order dated 09.04.2010 passed in WP(C) No. 1564/2010, the Director of Social Welfare, Assam passed the impugned order dated 24.09.2010, which was to the effect that the service of the petitioners had been declared to be void vide order dated 11.01.2005 and as such, they did not have any right to continue in their service since issuance of the said order dated 11.01.2005. Hence, the prayer for payment of arrear/current salary was rejected.

6. The petitioners counsel submits that the impugned order dated 24.09.2010 had been issued in pursuant to the impugned order dated 11.01.2005, which was to the effect that the petitioners appointments were illegal, as they had been appointed against non-existent posts. He thus prays that the impugned orders dated 11.01.2005 and 24.09.2010 should be set aside, as the petitioners were appointed against sanctioned vacant posts.

7. Mr. J.K. Goswami, learned Senior Addl. Govt. Advocate submits that the petitioners do not have any right to claim arrear or current salary, as their initial appointments were illegal and as it had been made in excess of vacancies i.e., they were appointed against non-existent posts. He has also submitted 2 letters dated 15.09.2021, issued by the respondent Nos. 4 & 6, which states that the petitioner No. 1 has been absent from office from 28.02.2009, while the petitioner No. 2 has been Page No.# 5/7

absent from 06.04.2018. He submits that as the petitioners, who were working without pay, are no longer working as indicated above, the present writ petition should be dismissed.

8. I have heard the learned counsels for the parties.

9. As per the submission made by the petitioners counsel, the issue to be decided is basically a disputed question of fact, i.e., whether the appointments of the petitioners had been made against regular sanctioned posts or had been made against non-existent posts. While the appointment orders of the petitioners, as reflected in the writ petition, shows that they had been appointed on 11.11.1998 against sanctioned vacant posts, the impugned orders dated 11.01.2005 and 24.09.2010 states that the petitioners had been appointed against non-existent posts.

10. For clarification of the issue raised by the petitioner, the records of the disposed of cases, i.e., WP(C) No. 7517/2003 and WP(C) No. 1564/2010 was called for. A perusal of the orders passed by this Court in WP(C) No. 7517/2003 shows that the order dated 16.09.2003 was an interim order, directing the Director of Social Welfare to dispose of the petitioners appeal dated 12.08.2003 and to make payment of the arrear salary of the petitioners along with the current salary. Till such time, the said appeal was disposed of, the petitioners were allowed to continue in their services under the respondent No. 3. The above being said, WP(C) No. 7517/2003 was disposed of vide order dated 23.05.2012, by holding that as the petitioners were appointed dehors the recruitment rule and as their appointments were purely temporary and adhoc, no direction for reinstatement of the petitioners could be issued. However, the Director of Social Welfare could dispose of Annexure-8 appeal dated 12.08.2003, strictly in accordance with law. The operative portion of the order dated 23.05.2012 disposing of WP(C) No. 7517/2003 is reproduced below:-

"Having regard to the fact that the petitioners were appointed dehors the recruitment rule and their appointments were also purely temporary and adhoc, this Court exercising the power of judicial review under Article 226 of the Constitution of India in the matter of public Page No.# 6/7

appointment cannot issue any direction to reinstate the petitioners. However, the Director of Social Welfare, Assam may dispose of the Annexure-8 appeal dated 12.8.2003 strictly in accordance with law.

Writ petition is disposed of."

11. As reflected in the foregoing paragraphs, the petitioners thereafter filed WP(C) No. 1564/2010, wherein the prayer made by the petitioners, was to direct the State respondents to release the arrear salary and current salary of the petitioners. There was nothing stated by the writ petitioners in WP(C) No. 1564/2010 with regard to the appeal dated 12.08.2003, which was to be disposed of by the Director of Social Welfare, in terms of the order dated 23.05.2012 passed in WP(C) No. 7517/2003.

In the present case also, the petitioners have not made any averment with respect to the fate of the appeal dated 12.08.2003, which was to be decided by the Director of Social Welfare in terms of the order dated 23.05.2012 passed in WP(C) No. 7517/2003.

12. Thus, the only question that has to be decided in the present writ petition, is as to whether a direction can be issued to the respondents for allowing the petitioners to continue in their service, in terms of their appointment orders dated 11.11.1998. This question having already been decided to the detriment of the petitioners in WP(C) No. 7517/2003, vide order dated 23.05.2012, this Court is of the view that nothing remains to be decided in the present writ petition. Further, the order dated 23.05.2012 passed in WP(C) No. 7517/2003 has not been put to challenge till date. As such, the petitioners challenge to the impugned orders dated 24.09.2010 and 11.01.2011 fails. The above being said, this Court finds that the petitioner has suppressed facts while filing the present writ petition. The petitioners have not made a mention of the fact that the petitioners prayer for reinstatement into service had been rejected by this Court in WP(C) No. 7517/2003 vide order dated 23.05.2012. In the case of K.D Sharma Vs. Steel Authority of India Ltd. & Ors. reported in (2008) 12 SCC 481, the Apex Court has held that the party who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution is supposed to be truthful, frank and Page No.# 7/7

open. He cannot be allowed to play 'hide and seek' or 'pick and choose' facts. If material facts are suppressed or distorted, the very functioning of Writ Courts would become impossible. The Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.

13. In view of the fact that the petitioners have tried to mislead the Court by suppressing material facts, this Court is of the view that costs should be imposed upon the petitioners. Accordingly, the petitioner Nos. 1 & 2 are imposed costs of Rs. 5,000/- each, which should be deposited with the Registry of this Court within 1 (one) week from today. The costs should thereafter be disbursed to the Gauhati High Court Employees Welfare Association. The Writ Petition is accordingly dismissed.

JUDGE

Comparing Assistant