Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 4 Ors on 21 September, 2023
Page No.# 1/5
GAHC010202302022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/330/2022
NAZIM UDDIN BARBHUIYA AND ANR.
S/O- LATE ABDUL JABBAR BARBHUIYA, RESIDENT OF VILLAGE-
NARAINPUR PART-IV, P.O.- NARAINPUR, P.S.- ALGAPUR, DIST.-
HAILAKANDI, ASSAM, PIN- 788101
2: ANAM UDDIN MAZUMDER
S/O- LATE ABDUL JABBAR MAZUMDER
VILLAGE- BASHDAHAR Pt.I
P.O.- MATIJURY
P.S.- ALGAPUR
DIST.- HAILAKANDI
ASSAM
PIN- 78815
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, SOCIAL
WELFARE DEPTT., DISPUR, ASSAM, GUWAHATI-06
2:THE DIRECTOR
SOCIAL WELFARE
ASSAM
UJANBAZAR
GUWAHATI- 781001
3:DISTRICT SOCIAL WELFARE OFFICER
HAILAKANDI
P.O.- AND P.S.- HAILAKANDI
DIST.- HAILAKANDI
ASSAM
Page No.# 2/5
PIN- 788151
4:CHILD DEVELOPMENT PROJECT OFFICER
ALGAPUR ICDS PROJECT
P.O.- KALIBARI BAZAR
DIST.- HAILAKANDI
ASSAM
PIN- 788150
5:CHILD DEVELOPMENT PROJECT OFFICER
LALA ICDS PROJECT
P.O.- LALA
DIST.- HAILAKANDI
ASSAM
Advocate for the Petitioner : MR. A M BARBHUIYA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 21-09-2023
1. The appellants herein have approached this court by way of this
intra-court writ appeal for assailing the order dated 22.07.2022, passed by the
learned Single Bench dismissing WP(C) 4573/2014 filed by the appellants herein
and one Sri Mantu Baishya. It may be stated here that the said Sri Mantu Baishya
has chosen not to challenge the judgment rendered by the learned Single Bench.
The aforesaid writ petition came to be instituted by the appellants/writ petitioners
with the following prayers:
"Under the circumstances, it is humbly prayed that your lordships would be
pleased to admit this petition, call for the records, issue rule, calling upon the
respondents to show causes, if any, as to why a writ in the nature of
certiorari/Mandamus or any other appropriate writ, order or direction shall not
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be issued quashing and setting aside the order No. DSW/(ICDS)E/1/2005/45,
dated 11/01/2005 (Annexure-12) read with an order No.
DSW(LC)489/2010/107 dated 24/09/2010 (Annexure-11) and also directing the
respondent No. 1 and 2 to release the current and arrear salaries of the
petitioners against their respective posts and after hearing the parties and on
perusal of records make the rule absolute and pass other order or orders as
your lordships may deem fit and proper."
2. The appellants have projected a case in this appeal as well as in the writ
petition that they were appointed as LDA-cum-typist on ad hoc basis in the office of
the Child Development Project Officer, Dalgaon ICDS Project vide order dated
11.11.1998. The appellants claim that their appointments were against sanctioned
posts. They further assert that they had filed an appeal dated 12.08.2003 before the
Director of Social Welfare, Assam, praying for continuation of their ad hoc services and
for payment of current as well as arrear salaries. When the appeal was not
considered, they preferred WP(C) 7517/2003, wherein an interim order dated
16.09.2003 was passed requiring the Director, Social Welfare Department, Assam, to
dispose of the appeal dated 12.08.2003 within a stipulated period of two months. The
authorities were also directed to make payment of the appellants' current as well as
arrear salaries and also to allow the appellants to continue in their service till disposal
of the appeal. The Director of Social Welfare, Assam, disposed of the appeal of the
appellants by order dated 14.03.2005 directing release of salaries of the appellants.
However, significantly enough, in this order, there was no direction to continue the
services of the appellants herein. As there was no pertinent direction to continue the
services of the appellants, the Child Development Project Officer, Hailakandi, wrote
communications to the Director of Social Welfare, Assam, seeking clarification in this
regard, because the employees were claiming release of salary from April, 2008 to
February, 2009.
3. The appellants herein, thereafter, approached this court by filing WP(C)
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1564/2010 raising the grievance of not having been paid their salaries. The said writ
petition was disposed of vide order dated 09.04.2010 requiring the Director, Social
Welfare Department, Assam, to examine the grievances of the petitioners and to do
the needful in accordance with law. The Director, Social Welfare Department, Assam,
thereafter passed an order dated 24.09.2010 observing that the appeal of the
appellants/petitioners had been disposed of with the pertinent observation that the
appellants were appointed against non-sanctioned posts and as such their services
were fit to be declared void and thus they did not have any right to continue in
service. It was also clarified that in view of the order dated 11.01.2005, the question
of payment of salary, as claimed by them, does not arise.
4. The order dated 11.01.2005, issued by the Director, Social Welfare Department,
Assam, has been placed on record wherein it has been mentioned that the petitioners
(appellants herein) were appointed on ad hoc basis; they were illegally appointed in
excess of the number of vacancies and they neither had a right to claim for
continuation in service nor could they claim for payment of salary when they had not
rendered their services after their release from their place of attached posting. It is
clearly indcated in the order dated 11.01.2005 that the petitioners did not have the
right to continue in service. WP(C) No.7517/2003 preferred by the petitioners was
finally disposed of vide order dated 23.05.2012 with a categoric finding that the
petitioners had been appointed dehors the recruitment rules and their appointments
were purely temporary and adhoc and thus, no direction could be issued to reinstate
the petitioners on their posts. The appellants thereafter filed the present writ petition,
being WP(C) 4573/2014, challenging the orders dated 11.01.2005 and 24.09.2010
issued by the Director of Social Welfare, Assam.
5. It may be stated herein that in the pleadings of the writ petition [WP(C)
4573/2014] the fact regarding disposal of WP(C) 7517/2003 vide order dated
23.05.2012 was not disclosed. The learned Single Bench, while deciding WP(C)
4573/2014 by the impugned order, has recorded a categoric finding that the
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petitioners have not made any averment with respect of the fate of their appeal dated
12.08.2003. We also find that the appellants/writ petitioners have conveniently
omitted to disclose in the writ petition [WP(C) 4573/2014] the fact regarding the
judgment dated 23.05.2012 rendered in the earlier writ petition [WP(C) 7517/2003].
Likewise, even in the subsequent writ petition [WP(C) 1564/2010], the fact regarding
pendency of WP(C) 7517/2003 was not brought to the notice of the Court. It is thus
clear that the appellants/petitioners have blatantly misused the writ jurisdiction of this
Court by filing repeated writ petitions concealing the factum of the earlier litigation in
the subsequent proceedings.
In this background, it is apparent that the petitioners are not entitled to any
equitable relief because they have not approached the Court with clean hands.
6. In view of the above, and since the appellants/petitioners were never
appointed against sanctioned posts by following the recruitment rules, no relief, as
sought for by the appellants/petitioners can be granted to them. Thus, while affirming
order dated 22.07.2022 passed by the learned Single Bench that the appellants/writ
petitioners tried to mislead the Court by suppression of material facts, we hereby
dismiss the writ appeal with Cost of Rs. 20,000/- (Rupees twenty thousand) on each
of the appellants.
7. The Cost shall be deposited before the Registry of this Court within thirty days
from today. Upon the Cost being deposited, the same shall be appropriated in the
funds of the Assam State Legal Services Authority.
JUDGE CHIEF JUSTICE
Comparing Assistant
