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2003 DIGILAW 218 (GAU)

Keshab Ch. Paul v. State of Assam

2003-05-21

RANJAN GOGOI

body2003
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. B.K. Sharma, learned senior Counsel for the writ Petitioner and Mr. B.P. Kataky, learned senior Counsel appearing for the Respondents Nos. 4 to 7. Also heard Mr. H.K. Mahanta, learned Govt. Advocate, Assam. 2. A selection was held for appointment to the post of L.D.A. in the establishment of the District and Sessions Judge, Kokrajhar in the year 1990 and pursuant thereto a select list was prepared and published on 20.4.90. The name of the Petitioner appeared at Sl. No. 2 of the Select list whereas the Respondent Nos. 4 to 7 were placed at Sl. No. 3 to 6. By an order dated 23.4.1990, the Respondents Nos. 4 to 7 were appointed as L.D.A.s but the case of the Petitioner was not considered for appointment on the ground that there were some objections raised regarding the involvement of the Petitioner in a criminal case. The Petitioner instituted a writ proceeding i.e. Civil Rule No. 859/90 before this Court contending that he had been acquitted by the appellate judgment and order passed in the criminal proceedings registered against him. This Court taking note of the contentions advanced, by judgment and order dated 16.5.90, directed the District and Sessions Judge, Kokrajhar to give appointment to the writ Petitioner which was accordingly done on 23.5.90. The seniority of the ministerial staff in the establishment of the District and Sessions Judge, Kokrajhar was provisionally circulated by Memo dated 31.12.94 wherein the Petitioner was shown junior to the Respondent Nos. 4 to 7, on the basis of his date of appointment. The Petitioner objected to the seniority assigned to him by filling a representation before the District and Sessions Judge, Kokrajhar. When the same was dismissed, the Petitioner filed an appeal before the State Government and though the Petitioner was heard in the said appeal on 20.10.95, the final order in the appeal was not pronounced in time. The Petitioner represented before the appellate authority for pronouncement of the verdict and all attempts in this regard having failed, a proceeding registered as W.P.(C) No. 2438 of 1999 was instituted by the writ Petitioner before this Court. The Petitioner represented before the appellate authority for pronouncement of the verdict and all attempts in this regard having failed, a proceeding registered as W.P.(C) No. 2438 of 1999 was instituted by the writ Petitioner before this Court. The aforesaid writ proceeding was finalised by order dated 24.5.99 passed by this Court, inter-alia, directed the appellate authority to pass final orders on the appeal petition filed by the writ Petitioner after hearing both sides i.e. including the present Respondent Nos. 4 to 7. Thereafter the appeal filed by the Petitioner having been dismissed by order dated 18.3.2000, the instant writ petition has been instituted against the aforesaid order passed in appeal. 3. Mr. B.K. Sharma, learned senior Counsel appearing for the writ Petitioner has contended that the Petitioner being placed higher in merit than the Respondent Nos. 4 to 7 in the select list for appointment and the appointment of the writ Petitioner having been held back on grounds which were subsequently established to be not justified, the seniority of the Petitioner in the cadre of L.D.A. vis-a-vis the Respondent Nos. 4 to 7 has to be determined on the basis of the merit position in the select list and not as per the date of appointment or date of joining. So computed, according to the learned Counsel, the Petitioner would be senior to the Respondent Nos. 4 to 7 and the March that the said Respondents had stolen over the writ Petitioner is required to be appropriately halted by giving suitable relief to the writ Petitioner. 4. Controverting the submissions advanced on behalf of the writ Petitioner, arguments have been made by Mr. Katakey, learned Counsel for the Respondent Nos. 4 to 7 that as per Rule 12 of Assam District and Sessions Judge Establishment (Ministerial) Service Rule, 1987, seniority is required to be determined on the basis of the date of appointment. The Petitioner having been appointed later would be junior to the Respondent Nos. 4 to 7. It is further argued by learned Counsel that the proviso to Rule 12 which require the merit position in the select list to be taken into account for determination of the seniority would not be applicable in the instant case as the said proviso would apply only when several persons are appointed on the same day. As the dates of appointment of the writ Petitioner and the Respondent Nos. As the dates of appointment of the writ Petitioner and the Respondent Nos. 4 to 7 are different, the proviso will not apply. Seniority, therefore, has to be fixed in-accordance with the main part of the Rule 12 of the Assam District and Sessions Judge Establishment (Ministerial) Service Rule, 1987, it is contended. Mr. Katakey, learned Counsel for the Respondents has further argued that the facts of the case amply demonstrate the Petitioner had filed an appeal before the State Govt. in the year 1995 and though the appeal was not being disposed of by the appellate authority, it is only in the year 1999 that the writ Petitioner had approached the Court seeking appropriate orders for disposal of the appeal filed by him. The Petitioner is guilty of laches and delay and the institution of the writ proceeding in the year 1999 i.e. W.P(C) No. 2438/99 cannot furnish him with a fresh cause of action as against the seniority fixed. Reliance in this regard is placed on the Division Bench judgment in the case of Arabinda Chanda v. Regional Director, O.N.G.C. Ltd. and Ors. reported in 2002 (2) GLT 211. Learned Counsel for the Respondents has further argued that in the meantime by order dated 28.7.2000 the Respondent Nos. 4 and 5 have been promoted to the next higher post of U.D.A. whereas the Respondent No. 6 has also been promoted subsequently. The aforesaid promotions in so far Respondent Nos. 4 and 5 are concerned are regular promotions made after due selection. Any entertainment of the grievances raised by the writ Petitioner and consequential orders would have the effect of un-settling what became settled by efflux of time. The writ Court would avoid such a course of action, if possible, learned Counsel argues. Reliance has been placed on a judgment of the Apex Court in the case of B.S. Bajwa and Anr. v. State of Punjab and Ors. reported in (1998) 2 SCC 523 in this regard. 5. The question of delay in approaching this Court, as raised by the Respondents, has naturally to be considered first. The materials on record would go to show that seniority of the Petitioner vis-a-vis Respondent Nos. 4 to 7 was determined in the year 1994. Immediately, the writ Petitioner filed a representation and the same having been rejected, an appeal was filed in the year 1995. The materials on record would go to show that seniority of the Petitioner vis-a-vis Respondent Nos. 4 to 7 was determined in the year 1994. Immediately, the writ Petitioner filed a representation and the same having been rejected, an appeal was filed in the year 1995. As the appeal was not being disposed of, the Petitioner instituted a writ proceeding before this Court in the year 1999 i.e. W.P. (C) No. 2438/99. Pursuant to the final order passed by this Court in the said writ proceeding, the appeal filed by the Petitioner, was dismissed on 18.3.2000. The present writ proceeding was instituted immediately thereafter. In the above facts, it can hardly be said that the writ Petitioner is guilty of laches and negligence in prosecuting his remedies so as to disentitle him to an adjudication of the claims raised by him in the present writ proceeding. 6. Having answered to aforesaid question in the manner indicated above, the Court must now must turn to the question as to whether the Petitioner is entitled to seniority over the Respondent Nos. 4 to 7. The admitted and undisputed facts of the case would go to show that the Petitioner was placed higher than the Respondent Nos. 4 to 7 in the merit list for appointment to the post of L.D.A. The reasons for which the Petitioner was denied appointment have been found to be untenable by this Court by order dated 16.5.1990 passed in C.R. No. 859/90. If the reasons for withholding the appointment of the Petitioner were unjustified, the obvious consequence that has to follow is a finding that the Petitioner was entitled to be appointed atleast from the date on which Respondents Nos. 4 to 7 were so appointed. In the facts of the present case, the proviso to Rule 12, as noticed above, would come into operation and the Petitioner would be senior to the Respondent Nos. 4 to 7 in view of his higher merit position. Remedial measures, as may be called for, is the essence of the judicial process and therefore, a declaration must follow that the writ Petitioner is senior to the Respondent Nos. 4 to 7 in the cadre of L.D.A. 7. The last question that has to how be decided is the relief/reliefs that the writ Petitioner would be entitled to. Remedial measures, as may be called for, is the essence of the judicial process and therefore, a declaration must follow that the writ Petitioner is senior to the Respondent Nos. 4 to 7 in the cadre of L.D.A. 7. The last question that has to how be decided is the relief/reliefs that the writ Petitioner would be entitled to. The declaration of seniority made in favour of the writ Petitioner must be taken to its logical conclusion. The writ Petitioner will therefore have to be considered for promotion with effect from the date/dates his juniors were so promoted and if he is found fit and eligible for promotion according to the criteria prescribed, such promotion shall be conferred to him. At the same time regard must be had to the fact that the Respondent Nos. 4, 5 and 6 have, in the meantime, been promoted to the next higher post of U.D.A. It would hardly be equitable to cause any disturbance in the present status of the above stated respondents. Consequently, the appropriate authority in the State Govt. shall take necessary steps to implement the directions contained in the present case without, however, in any way disturbing the Respondent Nos. 4, 5 and 6. The writ petition shall stand allowed as indicated above. Petition allowed