Gauhati High Court
Shyam Sundar Saha vs The State Of Assam And 4 Ors on 25 August, 2023
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GAHC010140732023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/308/2023
SHYAM SUNDAR SAHA
S/O- KHAGENDRA CH. SAHA, R/O- SILCHAR TOWN, WARD NO. 18, P.S.
SILCHAR, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, WATER
RESOURCES DEPARTMENT, DISPUR, GUWAHATI- 06.
2:THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT
WATER CENTRE
BASISTHA
GHY-29.
3:THE EXECUITVE ENGINEER
SILCHAR WATER RESOURCES DIVISION
SILCHAR
DIST. CACHAR
ASSAM
4:THE SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GHY-06.
5:SUKHENDU NARAYAN DHAR CHOUDHURY
S/O- SRI NIRMALENDU DHAR CHOUDHURY
R/O- LATA KANDI T.C (RANGPUR III)
DIST. HAILAKANDI
ASSAM PIN- 788161
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-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the appellant : Mr. B.K. Goswami,
Mr. N. Barman, Advocates
For the respondents : Ms. J. Gogoi,
Standing Counsel,
Water Resources Department
: Mr. D. Chakrabarty,
Advocate for respondent No.5.
Date of Hearing : 11.08.2023
Date of Judgment : 25.08.2023
JUDGMENT & ORDER
S. Mehta, C.J.
The instant intra-Court writ appeal has been preferred by the
appellant/writ petitioner for assailing the common judgment and order dated
24.05.2023 whereby the learned Single Judge dismissed three separate writ
petitions, being, WP(C) 6236/2022, WP(C) 2959/2023 and WP(C) 6052/2022,
filed by the appellant herein for assailing the appointment of the respondent
No.5, Sukhendu Narayan Dhar Choudhury, in the post of LDA so as to deprive
him of seniority in the gradation list on the ground that the initial appointment
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of the respondent No.5 was illegal.
2. Heard learned counsel appearing for the parties and perused the
impugned judgment and the material placed on record.
3. Learned counsel Mr. B.K. Goswami, representing the appellant vehemently
and fervently urged that the appointment of the respondent No.5 on the post of
LDA, as projected to have been made by order dated 07.03.1994, was illegal
because the very Advertisement/Notice dated 24.09.1993 issued by the
department for making appointment on the said post was de hors the rules and
thus, appointment of the respondent against the vacant post of LDA under the
Executive Engineer, Silchar, F.C. Division was void ab initio and illegal. As the
very appointment of the respondent No.5 was illegal, he could not have been
assigned seniority in the gradation list over and above the appellant/writ
petitioner. He thus implored the Court to accept the writ appeal; set aside the
impugned judgment; and as a consequence, direct the respondents to terminate
the respondent No.5 from services and accord appropriate seniority to the
appellant/writ petitioner over and above the respondent No.5.
4. Per contra, learned counsel representing the respondents vehemently and
fervently opposed the submissions advanced by appellant's counsel. They urged
that the appellant herein filed an earlier writ petition, being, WP(C) 3727/2022
for challenging the provisional gradation list of Senior Assistants which was
disposed of by order dated 06.06.2022 directing the respondents to consider the
representation dated 17.02.2022 filed by the appellant/writ petitioner. The said
representation was objectively considered and rejected by a speaking order
dated 08.09.2022. The appellant/writ petitioner challenged the said rejection by
filing WP(C) 6052/2022. He also filed another writ petition, being, WP(C)
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6236/2022 challenging the final gradation list dated 13.09.2022 issued by the
department. They urged that the appellant/writ petitioner claimed that during
pendency of these two writ petitions, i.e. WP(C) 6052/2022 and WP(C)
6236/2022, the appellant/writ petitioner received information under the RTI Act,
which disclosed that the very recruitment notice dated 24.09.1993 issued by the
departmental authorities was illegal and was de hors the rules. Learned counsel
for the respondents drew the Court's attention to the facts noted in paragraph
13 of the impugned judgment wherein it is reflected that the appellant's counsel
gave up the challenge laid to the appointment of the respondent No.5. Hence, it
is contended that as the challenge to the appointment of the respondent No.5
had been given up, the appellant cannot be allowed to challenge the seniority
list, which is based on the length of service of the respondent No.5 in the
department. They further submitted that the learned Single Judge, while
dismissing the writ petitions, has observed that the endeavour of the writ
petitioner lacks bona fide and his conduct deserves to be deprecated. Thus,
they urged that this intra-Court writ appeal should be dismissed with exemplary
cost.
5. We have given our thoughtful consideration to the submissions advanced
at Bar.
From a bare perusal of the impugned judgment, we find that the
petitioner's counsel did not press the challenge laid to the appointment/selection
of the respondent No.5, which fact was noted by the learned Single Judge at
paragraph 13 of the impugned judgment. Even while arguing the appeal before
us, learned counsel Mr. B.K. Goswami was not in a position to dispute the fact
that the appointment of the respondent No.5 was made in the year 1994. The
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appellant herein was born in the service in the year 2011 and, for the first time,
challenge was laid to the appointment of the respondent No.5 on the post of
LDA in the year 2022. In this background, we are in agreement with the
observations made by the learned Single Judge in the impugned judgment that
the conduct of the appellant/writ petitioner in filing the writ petitions was not
bona fide. We find ourselves unable to accept the contention of the appellant's
counsel that the selection process undertaken by the respondent authorities,
whereby respondent No.5 was appointed as an LDA way back in the year 1993,
suffered from any irregularity/illegality. No such challenge can be entertained
after a period of almost three decades. The bravado of the appellant/writ
petitioner in trying to invoke writ jurisdiction of this Court for such a lame and
belated challenge was rightly deprecated. The fact remains that the writ
petitioner/appellant herein was born in the cadre of Junior Assistant in the office
of the Executive Engineer, Silchar W.R. Division in the year 2011 and he woke
up from his slumber to challenge the appointment of the respondent No.5 in the
year 2022 when the final gradation list was issued. Thus, by no means it could
be said that the writ petitions filed by the appellant/writ petitioner herein had
any element of bona fides.
6. In view of the above, we are of the firm view that the learned Single
Judge was perfectly justified in dismissing the writ petitions filed by the
appellant herein and in denying the relief prayed for by him. As a matter of fact,
the appellant, being a government servant, has tried to invoke the extra-
ordinary writ jurisdiction of this Court to lay a lame challenge to an action which
took place nearly 29 years ago which attempt by itself is deprecable. The
impugned judgment does not suffer from any infirmity warranting interference
in this intra-Court writ appeal, which fails and is dismissed as being devoid of
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merit.
7. A cost of Rs.25,000/- is imposed upon the appellant/writ petitioner, which
shall be deposited with the Registry of this Court within a period of 30 (thirty)
days from today. Out of the cost amount, a sum of Rs.20,000/- shall be paid to
the respondent No.5 for the undue harassment, which he faced on account of
this frivolous litigation. The remaining amount of Rs.5,000/- shall be
appropriated in the funds of the Assam State Legal Services Authority.
The writ appeal is dismissed with the above observations and directions.
JUDGE CHIEF JUSTICE
Comparing Assistant
