Khudeja Khatun Choudhury vs The State Of Assam And 6 Ors
2022 Latest Caselaw 929 Gua

                                                                  Page No.# 1/4

GAHC010235442017




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

                          Case No. : WP(C)/2558/2017

         KHUDEJA KHATUN CHOUDHURY
         W/O FAKAR UDDIN MIRA, R/O HAILAKANDI TOWN, WARD NO. 11, PO- R.P.
         ROAD, DIST. HAILAKANDI, ASSAM, PIN-788155



         VERSUS

         THE STATE OF ASSAM and 6 ORS.
         REP. BY THE COMMISSIONER and SECY., TO THE GOVT. OF ASSAM,
         EDUCATION ELEMENTARY DEPTT., DISPUR, GUWAHATI-781006

         2:THE DEPUTY SECETARY TO THE GOVT. OF ASSAM
          EDUCATION ELEMENTARY DEPARTMENT
          DISPUR
          GUWAHATI-06

         3:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-781019

         4:THE SECRETARY TO THE GOVT. OF ASSAM
          ELEMENTARY EDUCATION DEPARTMENT
          DISPUR
          GUWAHATI-06

         5:THE DEPUTY COMMISSIONER
          HAILAKANDI

         6:THE DEPUTY INSPECTOR OF SCHOOLS

          HAILAKANDI
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            7:THE SECRETARY

             FINANCE DEPARTMENT
             GOVT. OF ASSAM
             DISPUR
             GUWAHATI-0

Advocate for the Petitioner   : MR.K MIRA

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                            ORDER

Date : 16.03.2022

Heard Mr. M.J. Quadir, learned counsel for the petitioner. Also heard Mr. P.N. Sarma, learned standing counsel for the Elementary Education Department, representing respondent nos. 1 to 6 and Mr. A. Chaliha, learned standing counsel for the Finance Department, representing respondent no. 7.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction upon the respondent authorities to appoint the petitioner as Assistant Teacher in L.P. School in Hailakandi District in terms of orders passed in (i) C.O.P.(C) No. 161/1995 and judgment and decree dated 24.08.1993 passed by the learned Assistant District Judge, Hailakandi in T.S. No. 55/1990. The learned counsel for the petitioner has submitted that another person who was similarly situated to that of the petitioner had been appointed as Assistant Teacher pursuant to order dated 05.04.2017, passed by this Court in W.P.(C) 1908/2017 and accordingly, the learned counsel for the petitioner has raised a plea of parity, equity and good Page No.# 3/4

conscience.

3) For the purpose of this order, it would suffice to mention that the petitioner claims that his name appeared in the select list of the year 1986- 87 of empanelled candidates for being appointed as L.P. School Teacher in Hailakandi District. It is projected that although his name was referred for appointment, but due to absence of formal order and/or approval by the competent authorities, the appointment of the petitioner did not materialize. Therefore, the petitioner had filed the herein before referred suit and as the respondent authorities had not complied with the judgment and decree passed therein, the petitioner had filed a contempt petition before this Court and despite orders passed therein, the decree remained non-complied.

4) In this regard, upon examining the materials available on record, the Court is of the considered opinion that no case is made out by the petitioner to entitle him for issuance of a writ as prayed for. There are six reasons to arrive at the said conclusion. Firstly, the Court is of the considered opinion that in terms of the provisions contained in Article 136 of the Limitation Act, 1963, the enforcement of decree becomes barred by limitation if execution is preferred beyond a period of 12 years from the date when decree was passed. Secondly, the writ jurisdiction cannot be allowed to be a substitute for proceeding for execution of a decree, which is hopelessly barred by limitation. This is an appropriate case to invoke the legal maxim of Vigilantibus non dormientibus jura subveniunt, meaning that the law will assist only those who are vigilant about their rights and not those who sleep over them. Thirdly, the proceeding of contempt proceeding, being C.O.P.(C) No. 161/1995 was closed Page No.# 4/4

by order dated 10.05.1999 as no case for contempt was made out. Fourthly, the admitted case of the petitioner is that the select list where his name had appeared was of the year 1986-87. The learned counsel for the petitioner has not been able to show that merely because his name had appeared in the select list of 1986-87, he has an indefeasible right to be appointed even after 36 years of the said list being prepared, as if the said select list had created some sort of reservation for all named therein being appointed as Assistant Teacher till the list is exhausted. Fifthly, as per the affidavit filed in support of this writ petition, the petitioner was aged about 52 years on 26.04.2017 and therefore, as on the date of this order, the petitioner would be about 57 years and there is nothing on record to show that the petitioner is entitled to enter into service as Assistant Teacher in a Government and/or provincialised school at the age of 57 years.

5) For the six reasons assigned herein before, the petitioner has miserably failed to make out any case for granting any relief to the petitioner on facts and in law or on the principles of parity, equity and good conscience. Therefore, this writ petition stands dismissed. There shall be no order as to cost.

JUDGE

Comparing Assistant