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2005 DIGILAW 771 (GAU)

Bipul Paul v. State of Assam

2005-11-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. Both the writ petitions raising the same issue more or less on the same set of facts were heard analogously and are being disposed of by this common judgment and order. 2. While in the first writ petition i.e. WP (C) No. 5688/2004, the 6 Petitioners are the aspirants for appointment as ME School teachers in the district of Karimganj on the basis of their selection way back in 1993, the 4 Petitioners in the second writ petition i.e. WP (C) No. 5696/2004 are the aspirants for appointment as LP School teachers in the same district on the basis of the select list of 1993. 3. The Petitioners in both the cases had earlier approached this Court by filing writ petitions being WP (C) No. 2037/2004 making the same very prayer as in the instant writ petitions for their appointment as ME/LP School Teachers. The writ petitions were disposed of by orders dated 26.3.2004. Since both the orders are in the same line, one of the them is quoted below: WP (C) No. 2095/2004 Before THE HON'BLE MR. JUSTICE D. BISWAS 26.3.2004 Heard Mr. A.M. Mazumdar, the learned senior Counsel for the writ Petitioners and Mr. S.N. Sarma, the learned Standing Council for the Education Department. The Petitioners have filed this writ petition praying for direction to the Respondent State to consider there case for appointment to the post of Teachers in different ME/LP Schools in the district of Karimganj as their names have been empanelled in the select list dated 31.5.93. This belated petition has been filed on the ground that the Respondent State have appointed selected candidates long thereafter, the last one being on 7.1.2001 (Annexure-3). In the above context, it is considered expedient to dispose of this petition with direction to the Respondent State to consider the case of the writ Petitioners if they have been still appointing persons from the said select list to the post of Assistant Teacher pertaining to the year of advertisement. The examination in this behalf shall be undertaken and completed within a period of four months form the day when a copy of this order is furnished. Order according. No cost. Sd/- D. Biswas Judge 4. The examination in this behalf shall be undertaken and completed within a period of four months form the day when a copy of this order is furnished. Order according. No cost. Sd/- D. Biswas Judge 4. Pursuant to the aforesaid orders passed in the writ petitions, the Secretary to the Government of Assam in the education Department, rejected the claim of the Petitioners for their appointment as ME/LP School Teachers. The ground for rejection of the prayer of he Petitioners is that vide notification dated 3.12.2003 issued by the Government of Assam in the Education department, all select list of Elementary and Secondary Education prepared and published prior to April, 2001 stood cancelled with the issuance of the said notification. It was observed that the question of making appointment from the select list of 1993 did not arise. It was also mentioned that there was ban on any kind of appointment as a measure fiscal reform to adopted by the Government of Assam except appointment on compassionate ground. The orders both dated 10.5.2004 read as follows: Government of Assam Education (Elementary & Secondary) Department ORDER Seen the order 26.3.2004 passed by the Hon'ble High Court in WP (C) No. 2037/2004 (Smt. Jyotsna Sinha and Ors. v. State of Assam and Ors.) and WP (C) No. 2095/2004 (Shri Bipul Paul and Ors. v. State of Assam and Ors.) The Hon'ble High court has observed that if anybody is appointed at present form the 1993 select list, in such cases, the Petitioners case should be also considered. It appears form the writ petition that the Petitioners of WP (C) No. 2095/2004 (Shri Bipul Paul and 5 Ors.) were selected for the post of ME School teachers and the Petitioners of WP (C) No. 2037/2004 (Smt. Jyotsna Sinha and 7 Ors.) were selected for the post of LP School teachers under Karimganj district in the year 1993. The claim of the Petitioners is that some candidates below the position in the Select list and some outsiders have already been appointed depriving the case of the Petitioners. Now they have claimed for their appointment as Assistant Teacher in the vacant post of LP/ME school of Karimganj district. Government vide notification No. A(I)E 650/2003/68 dated 3.12.03 has cancelled all select list of Elementary and Secondary Education prepared and published prior to April, 2001. Now they have claimed for their appointment as Assistant Teacher in the vacant post of LP/ME school of Karimganj district. Government vide notification No. A(I)E 650/2003/68 dated 3.12.03 has cancelled all select list of Elementary and Secondary Education prepared and published prior to April, 2001. Therefore, appointment at present, from the select list of 1993 does not attest. There is also a general ban for any kind of appointment as a measure of fiscal reform adopted by Government of Assam except appointment on compassionate ground. This is issued in compliance of Hon'ble High Court order dated 26.3.2004 in WP (C) No. 2037/2004. Sd/- L.N. Tamuly Secretary to the Government of Assam Education Department Dated Dispur the 10th May, 2004 Memo No. ELCAVP(C) 2037/2004/130/47 5. In the present proceeding, the Petitioners, apart form making the aforesaid prayer for their appointment as ME/LP School teachers have also prayed for setting aside and quashing the impugned order dated 10.5.2004; the notification dated 3.12.2003 and the Annexure-14, 15, 16 and 17 orders dated 29.6.95, by which the Respondent No. 5 and 6 in both the writ petitions were purportedly appointed. However, on perusal of WP (C) No. 5688/2004 and the annexures thereto, it appears that the Respondents No. 5 and 6 were not appointed on 29.6.95 but were appointed by Annexure-14 and 15 orders both dated 8.12.93 The Respondent No. 5 and 6 in the other writ petition i.e. WP (C) No. 5696/2004 were appointed by Annexure-15 and 16 orders both dated 29.6.95. Although in the first writ petition the appointees vide Annexure-16 and 17 orders dated 8.12.93 and 22.6.99 have been made party Respondents, but there is no challenge to their orders of appointment. Thus, basically it is only the appointments of Respondents No. 5 and 6 in the second writ petition i.e. WP (C) No. 5696/2004 both dated 29.6.95 have been put to challenge. 6. I have heard Dr. B. Ahmed, learned Counsel for the Petitioners and Mr. M.K. Choudhury, learned senior Advocate and Senior Standing Counsel Education Department, Government of Assam, assisted by Mr. M. Dutta, learned Advocate appearing for the Respondents. Mr. Choudhury, has produced the records of the case, during the course of hearing of the case, Dr. 6. I have heard Dr. B. Ahmed, learned Counsel for the Petitioners and Mr. M.K. Choudhury, learned senior Advocate and Senior Standing Counsel Education Department, Government of Assam, assisted by Mr. M. Dutta, learned Advocate appearing for the Respondents. Mr. Choudhury, has produced the records of the case, during the course of hearing of the case, Dr. Ahmed, learned Counsel for the Petitioners produced copies of the orders dated 20.5.2005, 14.7.2005 and 22.7.2005, by which, the appointments of the Petitioners for which the instant writ petitions have been filed have been materialized. The first order/communication dated 14.7.2005 issued by the Commissioner & Secretary to the Government of Assam in the Education Department directing the Director of Elementary Education, Assam to appoint the Petitioners purportedly pursuant to the aforesaid order of this Court reads as follows: Government of Assam Education (Elementary & Secondary) Department No. ELC/WP (C) 2037/2004/130/89 Dated Dispur the 14th July, 2005 From: Shri P. Dutta, IAS Commissioner & Secretary Government of Assam Education Department To: The Director of Elementary Education, Assam, Kahilipara, Guwahati-19 Sub: WP (C) No. 2037/2004 Smt. Jyotsna Sinha and 7 Ors. and WP (C) No. 2095/2004 (Shri Bipul Paul and 5 Ors. v. State of Assam and Ors.) Sir, With reference to the subject cited above and in pursuance of order dated 26.3.2004 passed by the Hon'ble Court in WP (C) No. 2037/2004 (Smt. Jyotsna Sinha and 7 Ors. v. State of Assam and Ors.) and WP (C) No. 2095/2004 (Shri Bipul Paul and 5 Ors. v. State of Assam and Ors.) I am directed to request you to take necessary steps for appointments of the Petitioners of WP (C) No. 2037/2004 (Smt. Jyotsna Sinha and 7 Ors.) as Asstt. Teachers in LP Schools against the vacancies shown by the Deputy Inspector of Schools Karimganj vide letter No. DIK/2005-06/1897 dated 13.6.2005 (Copy enclosed) and also the Petitioners in WP (C) No. 2095/2004 (Shri Bipul Paul and 5 Ors.) as Asstt. Teachers in Middle Schools against vacancies shown by the District Elementary education Officer Karimganj vide letter No. K-DEO/05-06/4992 dated 6.6.2005 (copy enclosed) with prospective effect in compliance of the order of the Hon'ble High Court to avoid Contempt of Court. This is issued with the approval of judicial Department vide their U/O No. 100/2005 dated 8.2.2005. Teachers in Middle Schools against vacancies shown by the District Elementary education Officer Karimganj vide letter No. K-DEO/05-06/4992 dated 6.6.2005 (copy enclosed) with prospective effect in compliance of the order of the Hon'ble High Court to avoid Contempt of Court. This is issued with the approval of judicial Department vide their U/O No. 100/2005 dated 8.2.2005. Sd/- Commissioner & Secretary to the Government of Assam, Education Department Dated Dispur the 14th July, 2005 Memo No. ELC/WP (C) 2037/2004/130/89-A 7. The aforesaid direction for appointment of the Petitioners was preceded by the query made by the officer on special duty, Education department, Government of Assam by his order/letter dated 20.5.2005 dressed to the DEEO and DI of Schools, Karimganj requesting them to furnish the vacancy positions to accommodate the Petitioners. The letter reads as follows: Government of Assam EDUCATION (ELEMENTARY & SECONDARY) DEPARTMENT No. ELC/WP (C) 2037/2004/130/84 Dated Dispur the 20th May, 2005 From: Smt. Mallika Medhi, ACS Officer on Special Duty Education Department Government of Assam To: 1. The District of Elementary Education Officer, Karimganj 2. The Deputy Inspector of Schools, Karimganj Sub: WP (C) No. 2037/2004 - Smt. Jyotsna Sinha and 7 Ors. and WP (C) No. 2095/2004 - Shri Bipul Paul and 5 Ors. v. State of Assam and Ors.) Sir, With reference to the subject cited above, I am directed to request you to intimate Government (1) Whether there are vacant sanctioned posts under your jurisdiction to accommodate the Petitioners of WP (C) No. 2037/2004 - (Smt. Jyotsna Sinha and 7 Ors) and of WP (C) No. 2095/2004 Shri Bipul Paul and 5 Ors., (2) If so, kindly indicate the vacancy position, where the Petitioners can be accommodated. Yours faithfully Sd/- Officer on Special Duty Education Department, Government of Assam 8. After the aforesaid developments the Petitioners in both the writ Petitioners have been appointed by two separate orders both dated 22.7.2005, one of which is quoted below: Govt. of Assam Office of the Director of elementary Education: Assam Kahilipara :: Guwahati-19 Order In exercise of the power conferred upon vide Govt. letter No. B(3)S-427/2001/3 dtd. 04.01.2002 & in pursuance of the Govt. letter No. ELC/WP (C) 2037/2004/130/89 dtd. 14.07.2005 and in 26.3.2004 in WP (C) No. 2095/2004 following 6 (six) Petitioners of the above High Court case as shown below are hereby appointed temporarily as Asstt. letter No. B(3)S-427/2001/3 dtd. 04.01.2002 & in pursuance of the Govt. letter No. ELC/WP (C) 2037/2004/130/89 dtd. 14.07.2005 and in 26.3.2004 in WP (C) No. 2095/2004 following 6 (six) Petitioners of the above High Court case as shown below are hereby appointed temporarily as Asstt. Teacher in Middle School under Karimganj District and posted in the vacant post shown against each in the scale of pay of Rs. 3130/- to Rs. 6,600/- P.M. plus other allowances as admissible under Rules with effect form the date of joining. The appointees shall have to furnish an under taking before their joining as prescribed in the Govt. letter issued by the Finance (B) Deptt. vide letter No. BW-3/2003/Pt-11/1 dtd. 25.1.2005 regarding introduction of new pension rules which was already communicated to all filed offices by this office under letter No. EAA 3/2002/4 dtd. 3.3.2005. This is issued with the approval of Judicial Department vide their U/O No. 100/2005 dtd. 8.2.2005. Name & address of the Petitioners: Shri Bipul Paul, Son of Kali Pada Paul, resident of Banamali Road, P.O. Karimganj, District-Karimganj. Place of posting: Sibargool Mahabir ME School vice Sri Saytendra Kr. Das, A/T promoted under BEEO, Pathaerkandi Name & address of the Petitioners: Shri Sashi Kumar Sinha, Son Debendra Kumar Sinh, Son of Debendra Kumar Sinha, Vill-Bilbari, P.O. Kalklighat, District-Karimganj. Place of posting: Manik Bond ME School vide Gayatri Sen, A/T transferred under BEEO, Patherkandi Name & address of the Petitioners: Shri Biman Chandra Nath, S/o. Shri Makhan Lal Nath, resident of vill Nayagram, P.O. Girishganj Bazar, District-Karimganj. Place of posting: Pathini ME School vice Joyenti Sen Gupta, A/T promoted under Patherkandi Name & address of the Petitioners: Helal Md. Ashraf Tapadar, S/o Shri Abdur Rouf Tapadar, Vill-Mubarakpur, P.O. Jashimpur, District-Karimganj. Place of posting: Wangirbond Middle School vice Dipak Dev, A/T, transferred under R.K. Nagar. Name & address of the Petitioners: Shri Muminur Rahman, S/o Shri Faizur Rahman, resident of Vill-Alongjuri, P.O. Jabainpur, District-Karimganj. Place of posting: Bhairab Nagar MV School vice Chakkib Uddin, A/T transferred under BEEO, R.K. Nagar. Name & address of the Petitioners: Shri Abdur Rouf, Son of Makhlisur Rahm, resident of Vill-Baliagram, P.O. Gulchera Bazar, District-Karimganj. Place of posting: Pachale Middle School vice Enamul Haque, A/T transferred under R.K. Nagar. Sd/- (M. Ali) Director Dtd. Kahilipara, the 22nd July/2005 Memo No. EHA/683/2005/17 9. Name & address of the Petitioners: Shri Abdur Rouf, Son of Makhlisur Rahm, resident of Vill-Baliagram, P.O. Gulchera Bazar, District-Karimganj. Place of posting: Pachale Middle School vice Enamul Haque, A/T transferred under R.K. Nagar. Sd/- (M. Ali) Director Dtd. Kahilipara, the 22nd July/2005 Memo No. EHA/683/2005/17 9. While the Petitioners in WP (C) No. 5688/2004 have been appointed as ML School Teachers, the Petitioners in the second writ petition i.e. WP (C) No. 5696/2004 have been appointed as LP School Teachers. Strangely enough, the aforementioned course of action which eventually has culminated to appointment of the Petitioners is without any reference to the basic impugned orders in the writ Petitioners, one of which is quoted above. By the said order dated 10.5.2004, the same very Government in the Education Department rejected the claim of the Petitioners. Till date the said orders still hold the field and have not been superseded by passing any order and even by the above quoted communications/orders. 10. It is in the aforesaid backdrop, although at one stage of the proceeding. Dr. Ahmed, learned Counsel for the Petitioners reluctantly submitted that the matters have become infractors but later on insisted for setting aside and quashing of the impugned orders dated 10.5.2004 inasmuch as if the said two orders remain in the field same may tell upon the service prospects of the Petitioners in future. 11. When the aforesaid contradictory stand of the Respondents was pointed out to the learned Counsel for the Respondents, no satisfactory reply could be given and simply the records of the case was produced. 12. To resolve the controversy, let us understand the respective case of the Petitioners as has been projected in the writ petitions. In WP (C) No. 5688/2004 it is the case of the Petitioners that pursuant to Annexure-1 advertisement published in the issue of the Assam Tribune dated 3.9.91 for appointment of ME/LP School teachers, they offered their candidature and duly appeared in the interview etc. for their selection. The select list was published on 31.5.93 in which their names appeared at serial Nos. 7, 9, 10, 27, 32 and 33 respectively. In paragraph 3 of the writ petition, they have stated that there were anomalies in making appointments from the select list and even outsiders were appointed on 8.12.93. for their selection. The select list was published on 31.5.93 in which their names appeared at serial Nos. 7, 9, 10, 27, 32 and 33 respectively. In paragraph 3 of the writ petition, they have stated that there were anomalies in making appointments from the select list and even outsiders were appointed on 8.12.93. One Sri Asad Ahmed, who was also a selected candidate and occupied position at serial No. 8 being aggrieved by his non-appointment approached this Court by filing a writ petition being Civil Rule No. 825/1995 claiming for his appointment, which eventually culminated to Writ Appeal No. 252/2002. The writ appeal was disposed of by order dated 4.10.2002 providing consideration of the case of the Petitioner for his appointment as Assistant Teacher, in case the claim that selectees/candidates below him in the merit list were infact appointed. 13. Pursuant to the aforesaid order passed in the writ appeal, the Commissioner & Secretary to the Government of Assam, Education Department by his order dated 11.7.2003 directed the DEEO, Karimganj to examine the grievance of the Appellant i.e. said Sri Asad Ahmed. Thereafter by Annexure 6 communication dated 16.8.2003, the DEEO, Karimganj intimated the Director of Elementary education, assam that on verification of records it was found that one Smt. Sabita Paul occupying merit position at serial No. 13 of the select list of ME School teachers was appointed. The Director of Elementary Education, assam intimated this position to the Secretary to the Government of Assam, in the Education Department. Thereafter, the Minister, Hill areas, AH & Veterinary etc. by his endorsement/note dated 16.10.2003 requested the said Secretary to appoint Sri Ahmed. Consequently, the Secretary by his communication, dated, 23.12.2003 directed the Director of Elementary Education, Assam to appoint said Sri Ahmed. Thereafter by Annexure-15 order dated 7.1.2004, Sri Ahmed was appointed as ME School teacher. 14. From the above, it will be seen that Sri Ahmed, all along agitated his grievance right from 1995 till filing of the writ appeal and the order passed thereon, unlike the Petitioners who all along slept over the mater and never agitated any grievance relating to their non-appointment pursuant to inclusion of their names in the select lists published on 31.5.1993. It was only after Sri Ahmed was appointed by the aforesaid order dated 7.1.2004, the Petitioners in both the cases filed the earlier writ petitions being WP (C) No. 2095/2004 and WP (C) No. 2037/2004 respectively claiming similar benefits. It will as in the present writ petition being WP (C) No. 5696/2004, the Petitioners claimed/claim then appointment as LP School Teachers, but their such claim is not in reference to any appointment made of any person whose merit position was below them in the select list of LP School teachers. Their such claim is in reference to the ME School select list, with which by no stretch of imagination the Petitioners aspiring for appointment as LP School Teachers pursuant to inclusion of their names in the LP School list can make any comparison. 15. As in WP (C) No. 5688/2004, in the second writ petition i.e. WP (C) No. 5696/2004 also, the Petitioners have referred to the advertisement dated 3.9.91 and the select list of LP School Teachers also published on 31.5.93. Their names in the select list appeared at serial No. 5, 14, 26 and 38. Apart from making vague statements that appointment were made illegally, there is no whisper as to whether any person below them was appointed form the select list. They have only made reference to the aforesaid case of Sri Ahmed, who was a candidate for ME School and not LP School. 16. The question necessarily arises as to whether the Petitioners by filing the writ petitions in 2004 i.e. after more than 11 years of publication of the select list in 1993 could claim implementation of the said select list. As per the provision of Assam Elementary Education (Provincialisation) Rules, 1977 a select list remains valid for one year. Thus the select list prepared on 31.5.93 had spent its force long before and by no stretch of imagination could be implemented in 2004. The case of Sri Ahmed is in a different footing. He had approached this Court way back in 1995 and it was submitted at the bar that the select list was in operation at that time by way of extension granted to the same. Be that as it may, Sri Ahmed all along agitated his grievance and eventually he was appointed pursuant to the orders passed by this Court. He had approached this Court way back in 1995 and it was submitted at the bar that the select list was in operation at that time by way of extension granted to the same. Be that as it may, Sri Ahmed all along agitated his grievance and eventually he was appointed pursuant to the orders passed by this Court. The Petitioners could not have filed the writ petitions on the basis of the order passed appointing said Sri Ahmed. The claim of the Petitioners cannot be accepted on all counts viz. expiry of the select list long back, delay and laches on their part and that the judgment delivered in the case of said Sri Ahmed did not give rise to any cause of action to the Petitioners. Law is well settled that a judgment does not give rise to a cause of action for institution of fresh proceeding, unless the same adversely affects the party concerned. 17. Irrespective of the notification dated 3.12.2003 to which a challenge has been made, the select list dated 31.5.93 got expired way back in 1995 by operation of the aforesaid provisions of the rules. The Petitioners having not approached this Court during the validity of the select list, their writ petitions filed in 2004 are liable to be dismissed on that ground alone. Even if the case of the Petitioners is stated to be somewhat akin to the case of Sri Ahmed, (which is admittedly not, at least in respect of the Petitioners in WP (C) No. 5696/2004 and the Petitioners No. 4, 5 and 6 in WP (C) No. 5688/2004), there being delay and laches on the part of the Petitioners, they are not entitled to get any relief. If any reference is required, one may refer to the decisions of the Apex Court as reported in AIR 1993 SC 2276 (Bhoop Singh v. Union of India and Ors.) AIR 1995 SC 1991 (State of Maharastra v. Digambar) (1997) 2 SCC 617 (State Bank of Indore v. Govindrao) 1994 Supp (1) SCC 56 (Raj Bhushan Gandhi v. Secretary, Haryana State Electricity Board); (1996) 6 SCC 444 (Ram Niwas Todi v. B.B. Jabrunmissa); (1996) 5 SCC 419 (Central Bank of India v. S. Satyam); etc. 18. In the case of Digambar (supra), the Apex Court observed as follow : 24. 18. In the case of Digambar (supra), the Apex Court observed as follow : 24. Thus, when the writ Petitioner (Respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ Petitioner (Respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ Petitioner to explain his blameworthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen form the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 181 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.P.s in this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of S.L.Ps or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegations and seeking common relief, are liable to be interfered with and set aside in the interests of Justice even though only learned Counsel appearing for a few writ Petitioners were heard by us. 19. Similarly, in the case of Ratan Ch. Sammanta (supra) the following observation was made by the Apex Court: Two questions arise, one if the Petitioners are entitled as a matter of law for reemployment and other if they have lost their right, if any, due to delay. Right of causal labourer employer in projects, to be re-employed in railways has been recognized both by the Railway and this Court. But unfortunately the Petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. But unfortunately the Petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for Petitioners that they may be permitted to produce their identity cards etc. before opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. And not for sake of roving enquiry leaving scope for maneuvering; delay itself deprives a person of his remedy available in law. In absence of any fresh case of action or any legislation a person who has lost his remedy by lase of time loses his right as well. From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of Petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed.... 20. Even if it is argued that since relief has been granted to Sri Ahmed in the aforesaid case, the Petitioners being similarly situated are also entitled to grant of similar benefits. Consequence of such an argument has been noticed above in the light of the Apex Court decisions. Even if a relief is claimed on the analogy of being similarly circumstanced, it cannot be said that one can agitate his grievance at any point of time unmindful of limitation and the time consumed in the process. In both the writ petitions, the Petitioners have not made any attempt to explain the reasons for delay in approaching the Court. Only ground assigned is that Sri Ahmed has been appointed in 2004 and thus the Petitioners are also entitled to same benefit. As discussed above, Sri Ahmed made a grievance against his non-appointment way back in 1995 unlike the Petitioners who did not make any such grievance either in the judicial forum or in the departmental forum. The challenge made to the orders of appointment in respect of Respondents No. 5 and 6 is also barred by limitation and delay and laches. As discussed above, Sri Ahmed made a grievance against his non-appointment way back in 1995 unlike the Petitioners who did not make any such grievance either in the judicial forum or in the departmental forum. The challenge made to the orders of appointment in respect of Respondents No. 5 and 6 is also barred by limitation and delay and laches. As noticed above, although the Petitioners in WP (C) No. 5688/2004 have arrayed as many as 7 appointees as party Respondents, but it is only in respect of the appointments of the Respondents No. 5 and 6, a challenge has been made. However, on perusal of their appointment orders, it appears that contrary to the date of their appointment mentioned in the writ petition as 29.6.95, they were appointed way back in 1993 (8.12.93). 21. The aforesaid judgment in Sri Ahmed's case has not been cited as a precedent but has been relied upon as a source and base of actual cause of action. As noticed above, the Petitioners after publication of the select list on 31.5.1993, slept over the matter over the years. Throughout the writ petition, there is no whisper as to what course of action the Petitioners had adopted seeking redressal of their grievance in respect of their non-appointment pursuant to inclusion of their names in the respective select lists. They have simply referred to the course of action adopted by said Sri Ahmed and the order appointing him as Assistant Teacher of ME School pursuant to the judgment delivered by this Court in his case. Needless to say, that the said judgment was a judgment in personam and not a judgment in rem. The judgment in the said case was delivered in the fact situation of that case and when the Petitioner therein all along pursued his remedy right from 1995, when the select list was in operation. A judgment or decision, which is pronounced, must be declaration of mind of the court as it is at the time of pronouncement see Surendra Singh v. State of U.P. AIR 1954 SC 194 . In any case, the judgment in Sri Ahmed's case does not confer any cause of action for the Petitioners, on the well-known principle that a judgment of the Court does not give rise to a cause of action, unless the same adversely affects the party in question. In any case, the judgment in Sri Ahmed's case does not confer any cause of action for the Petitioners, on the well-known principle that a judgment of the Court does not give rise to a cause of action, unless the same adversely affects the party in question. In this connection, the observations made by the Division of this Court in the case of President, M.P. Congress Committee v. Speaker, Manipur Legislative Assembly reported in 1997 (2) GLT 447 is quoted below: ...Howsoever liberally read and construed, the judgment dated 22.1.97, Annexure-6 as seen above, does not confer any cause of action even or otherwise, on principle a judgment seldom confers or creates any cause of action for institution of fresh proceedings save in exceptional cases where adverse findings or remarks are made in a judgment behind the back of the party. In deed, as defined in Black's Law Dictionary to sustain action and seek judicial redress and relief or a declaration of one's right the party seeking a judgment must have a cause of action for institution of proceedings or suit it is not as if cause of action follows judgment. 22. From the above, there is no gainsaying that the Petitioners, on all the counts as discussed above, are not entitled to any relief. The challenge made to the notification dated 3.12.2003 need not be gone into in as much as even without the said notification, the select list of 1993 cannot be said to be in operation in 2004. It is not a case of the Petitioners pursuing their remedy form the stage of validity of the select lists. If the select list of 1993 is allowed to be operated in 2004/2005, on the sole ground on which the writ petitions were filed, same will amount to discrimination leading to violation of Article 14 of the Constitution of India about which the Apex Court emphasized in the cases relating to delay and laches in approaching Court. 23. Although the Petitioners in WP (C) No. 5688/2004 have made a challenge to the appointments of Respondent No. 5 and 6, but they have mentioned about the appointments of the other Respondents vide Annexure-14, 15, 16 and 17 orders, of which the first three orders are dated 8.12.93 and the last one is dated 22.6.99. 23. Although the Petitioners in WP (C) No. 5688/2004 have made a challenge to the appointments of Respondent No. 5 and 6, but they have mentioned about the appointments of the other Respondents vide Annexure-14, 15, 16 and 17 orders, of which the first three orders are dated 8.12.93 and the last one is dated 22.6.99. During the course of hearing, the learned Counsel for the Petitioners did not pray for setting aside and quashing of those orders even if, such submission had been made, same would not have found favour of the Court for the simple reason that the appointments made about 12 years back could not have been put to challenge by filling a writ petition in 2004 and that too without any explanation relating to delay. As regards the Annexure-15 order dated 22.6.99, same is by way of regularization of the services of the incumbents named therein who were appointed in January, 1996. As to under what circumstances the appointments of 1996 were regularized is not known to this Court. It is also not the case of the Petitioners that the appointments were made in 1996 during the validity of the select list of 1993. In any case, the appointment of 1996 could not have been put to challenge after 9 years without any explanation for such delay. 24. There is another aspect of the matter. The Petitioners have made challenge to the orders of appointment of the private Respondents terming them to be illegal. Even if any illegality was committed towards their appointment, same cannot be a ground for the Petitioners to claim relief from this Court, for the simple reason that the Petitioners cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. The concept of equal treatment on the logic of Article 14 of the Constitution of India cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the Petitioners cannot strengthen their case. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the Petitioners cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. The guarantee of equality before law is a positive concept and the Petitioners cannot enforce it in a negative manner. If any illegality or irregularity has been committed towards appointment of the private Respondents, the Petitioners cannot invoke the jurisdiction of the High Court urging that the same irregularity or illegality be committed by the state. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. See (2003) 5 SCC 437 , Union of India v. International Trading Co. (1996) 2 SCC 459 , Gursharan Singh v. New Delhi Municipal Committee. 25. Let us now examine the orders passed by this Court in the earlier writ proceedings initiated by the Petitioners, based on which the Petitioners have now been appointed by the above quoted orders/letters. Such a course of action has been adopted during the substance of the impugned orders dated 10.5.2004, by which the claim of the Petitioners has been rejected. These orders impugned in this proceeding have not been superseded and/or cancelled by the competent authority of the Education department. On bare perusal of the order passed by this Court, it will be seen that the Court was aware of the belated claim made by the Petitioners about which a mention was made in the order itself. However, the case of the Petitioners was directed to be examined on two fold grounds, namely (i) if the Respondents had been still appointing persons from the 1993 select list and (ii) if such appointments to the posts of Assistant Teacher were pertaining to the year of advertisement. Thus the parameters to examine the case of the Petitioners were laid down in the order itself. 26. As regards the first ground, the matter has been discussed above in detail. Thus the parameters to examine the case of the Petitioners were laid down in the order itself. 26. As regards the first ground, the matter has been discussed above in detail. Sri Ahmed was appointed pursuant to the order passed by the division bench of this Court on the basis of the writ proceeding initiating by him way back in 1995. It is not the case of the Petitioners that apart from said Sri Ahmed, the Respondents have been still appointing persons from the select list of 1993. It is also not the case of the Respondents. Even if the first ground is accepted in reference to Sri Ahmed, for arguments sake, (although by no stretch of imagination same can be cited to be a case of making appointment by the Respondents even now from the select list of 1993, because his appointment was pursuant to order of this Court), same is qualified by the second rider in the order of this Court dated 26.3.2004, which is, if such appointments were pertaining to the year of advertisement. Needless to say that an appointment pursuant to an advertisement was issued and not against the posts, which fell fall vacant thereafter. Contrary to this position the Petitioners have been appointed by the present Commissioner & Secretary against the vacancies of 2004-05, which position has come to light from the records produced by the learned Standing Counsel, Education department. This course of action adopted by the said Commissioner & Secretary is contrary to the aforesaid orders passed by this Court. It appears that the Commissioner & Secretary in his over enthusiasm to favor the Petitioners illegally appointed them during the pendency of the writ proceedings and in the process conveniently ignored the impugned orders dated 10.5.2004, by which the claim of the Petitioners was rightly rejected. 27. Learned Standing Counsel, Education Department has produced the records, which was directed to be produced for appreciation of the facts leading to the appointment of the Petitioners during the pendency of the present writ proceedings and a stage when their claim already stood rejected. The record in file No. ELC/WP (C) 2037/2004/WP (C) 2095/2004/130 make interesting reading. The file contains the parawise comments prepared by the department in respect of the earlier proceedings. The record in file No. ELC/WP (C) 2037/2004/WP (C) 2095/2004/130 make interesting reading. The file contains the parawise comments prepared by the department in respect of the earlier proceedings. As per the said comments, it was the contention of the Respondents that the claim of the Petitioners cannot be entertained at this belated stage. In the comments they also referred to the notification dated 3.12.2003, delay and laces on the part of the Petitioners was the specific plea of the Respondents. After the above quoted orders were passed by this Court, the matter was processed and eventually the claim of the Petitioners was rejected by the impugned orders dated 10.5.2004. 28. When the matter rested as above and the Petitioners once again approached this Court by filing the instant writ Petitioners, the things started moving in positive direction in favour of the Petitioners. The Minister, Hill Areas Development, AH & Veterinary department forwarded the representation made for implementation of the 1993 select list. On that basis a note was put up to the OSD of the Department on 16.11.2004 conveniently mentioning therein that the said Minister was the Chairman of the sub-divisional level Advisory Board, Karimganj, when the 1993 select list was prepared. In the note the disposal of the earlier writ petitions was mentioned including the case of said Sri Ahmed. Legal opinion was sought for from the Legal Remembrancer, who without any cross verification of the materials on record opined that the writ Petitioners, more particularly, those whose names had appeared ahead of the persons who had been appointed namely Sri Ahmed shall have to be appointed. Various notes given in the file thereafter simply referred to the case of Sri Ahmed, unmindful of the basic facts that he was a selected candidate for appointment as ME School Teacher unlike the Petitioners in WP (C) No. 5696/2004, who were selected for appointment as LP School Teachers; the select lists expired long back; the claim of the Petitioners, unlike the case of Sri Ahmed was grossly belated and that Sri Ahmed was appointed by the Respondents not of their own but, as per the order of this Court. Most importantly, in the notes, nothing was stated about the rejection of the claim of the Petitioners, by the Secretary of the Department by the impugned orders dated 10.5.2004. 29. Most importantly, in the notes, nothing was stated about the rejection of the claim of the Petitioners, by the Secretary of the Department by the impugned orders dated 10.5.2004. 29. Amidst the aforesaid developments in the file, the Joint Secretary, Personal (B) Department asked for the following clarifications: Education (Legal Cell) Deptt. U/O Your endt. At pre-page you are requested to clarify the following: 1. Whether you are appointing persons form the select list to the post of Asstt. Teacher pertaining to the year of advertisement. 2. In terms of Notification No. A(I) E 650/03/68 dtd. 3.12.03 you had cancelled all the select list prior to 01.04.2004, but how the deptt. Proposed to appoint these Petitioners needs clarification. 3. Appointment letters of the persons below the Petitioners may also be placed in file alongwith the select list. 4. Whether there is vacant sanctioned posts to accommodate the Petitioners. 5. Responsibility should be fixed against the officials responsible for such irregular appointments. Sd/- T.R. Hazarika Joint Secy. Per (B) Deptt. 30. The aforesaid clarification sought for was perfectly in order and in tune with the orders passed by this Court, more particularly, in respect of the query No. 1, by which clarification was sought for as to whether appointments were being made to the posts of Assistant Teacher pertaining to the year of advertisement. The Joint Secretary had given the said note on 19.5.2005. On the same day, clarifications were furnished and in respect of query No. 1 it was stated that appointments would be made with prospective effect only, without, however, making any mention as to whether appointments are being made from the select list to the posts pertaining to the year of advertisement about which specific mention was made in the orders of this Court. On perusal of the file, it appears that with the endorsement made by the aforesaid Minister, things started moving in rapid succession and eventually ignoring the basic facts and the legal positions about which discussions have been made above, the Respondents resorted to illegality by way of appointing the Petitioners, even, without any cross verification as to whether the parameters laid down by this Court in its order dated 26.3.2004 passed in the earlier writ proceedings are fulfilled or not. Needless to say, that any fact, so glaring as in the instant case with the goods testimonies, is better established than by a thousand-arguments. Needless to say, that any fact, so glaring as in the instant case with the goods testimonies, is better established than by a thousand-arguments. Needless also to say that form principles is derived probability, but truth or certainty is obtained only form facts. It has been said longtime ago that there should always be some foundation of fact for the most airy fabric; pure invention is but the talent of a deceiver (Byron). 31. Both the elements mentioned in the aforesaid orders dated 26.4.2004 are missing in the instant case. The Respondents have not been appointing persons from the select list of 1993. No appointments have also been made to the posts pertaining to the year of advertisements. Contrary to such position, the Respondents even after rejecting the claim of the Petitioners by orders dated 10.5.2004 on the basis of their stand in the parawise comments in the earlier writ proceedings, have appointed the Petitioners on the basis of the recommendation made by the aforesaid Minister. The appointment of Sri Ahmed cannot be said to be in the relm of still making appointment form the select list of 1993. Moreover, he Respondents have not appointed any one against the posts pertaining to the year of advertisement. Sri Ahmed had to be appointed prospectively pursuant to the order passed by this Court and he all along agitated his grievance unlike the Petitioners who allowed long 11/12 years to pass by without raising any grievance even before the departmental authorities and suddenly became active after the appointment of said Sri Ahmed. 32. The entire episode created by the Respondents themselves after filing of the writ petitions towards appointment of the Petitioners once again depicts the sorry state of affairs with the Department of Education, about which least said is better. Here is a case in which, the Respondents, more particularly the Commissioner & Secretary and the OSD of the Department readily obliged the Minister by mortgaging their conscience and in the process made use of the aforesaid orders of this Court. By the said orders, directions were issued to consider the case of the Petitioners, laying down the parameters for such considerations. By the said orders, directions were issued to consider the case of the Petitioners, laying down the parameters for such considerations. The Respondents found a handle in the orders of this Court and issued appointment orders in favor of the Petitioners admittedly against the vacancies of 2004-05 and not against the vacancies pertaining to the year of advertisement, which was issued in 1991. By taking recourse to such illegal action they have made a mockery of the entire system and in the process eligible candidates in the long queue seeking appointment have been discriminated about which the Apex Court have made discussions in the aforesaid cases relating to delay and laches in approaching the Court. 33. Although a faint submission was made that since the Petitioners have been appointed, the writ court will not interfere with the same and the matters have become infructous. However, at the same time it was also submitted that having regard to the development, which took place during the pendency of the writ petitions by way of appointment of the Petitioners, the impugned orders dated 10.5.2004 is liable to be interfered with. I am afraid the writ court cannot be a silent spectator to the illegalities committed by the Respondents leading to discrimination in the matter of appointment. It can easily be understood, as to what was that hurry to appoint the Petitioners during the pendency of the present writ proceedings and when their claim stood rejected as per the impugned orders dated 10.5.2004. 34. I am greatly disturbed by the conduct of the Respondents, more particularly the Commissioner & Secretary and the OSD of the Department and their accessories. Even the legal remembrancer made the aforesaid opinion without any cross verification of the factual and legal aspect of the matter. The record gives an impression that every one was eager towards appointments of the Petitioners and with the endorsement of the aforesaid Minister, things started to move in quick succession. Insensitivity reflected in the entire action is disturbing. Time and again the Apex Court has reminded that the power conferred on the High Court under Article 226 of the Constitution is to advance justice and not thwart it. The very purpose of such constitutional powers being conferred on the High Court is to uphold the majesty of law and to frustrate injustice. Time and again the Apex Court has reminded that the power conferred on the High Court under Article 226 of the Constitution is to advance justice and not thwart it. The very purpose of such constitutional powers being conferred on the High Court is to uphold the majesty of law and to frustrate injustice. As has been observed by the Apex Court in the case of Roshan Deen v. Preeti Lal reported in AIR 2002 SC 33 , the High Court is not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous view of the matter. 35. In the instant case, the entire action of the Respondents towards appointing the Petitioners is entirely on a wrong notion on the matter and by way of obliging the power that be. Instances are at galore, in which the orders of this Court are violated with impunity. Even in case of clear direction for appointment and or reinstatement of the incumbent in service, the same very Respondents remain in deep slumber, forcing the incumbents to approach this Court once again by filing contempt petitions. However, in the instant case, the Petitioners have been illegally appointed making use of the orders of this Court as a tool, by which only direction issued was to examine their case within the parameters indicated in the order. While appointing the Petitioners, the said parameters have been completely ignored. When no appointments have been made in 2004 from the 1993 select list to the posts pertaining to the year of advertisement, there is no question of appointing the Petitioners from the said select list after 11/12 years. 36. In view of the above, I have no hesitation to hold that the Petitioners are not entitled to any relief. Due to the reasons assigned above and also in view of the reasons assigned in the impugned orders dated 10.5.2004, same are upheld and will hold the field. The challenge made to the notification, dated 3.12.2003 need not be gone into in view of the findings recorded above. Similarly the challenge made to the appointments of the Respondents No. 5 and 6 also merits rejection for the reasons and conclusions recorded above. The challenge made to the notification, dated 3.12.2003 need not be gone into in view of the findings recorded above. Similarly the challenge made to the appointments of the Respondents No. 5 and 6 also merits rejection for the reasons and conclusions recorded above. Consequently, the appointments made in favour of the Petitioners by taking recourse to the aforesaid illegal action in the name of the orders of this Court are also not sustainable for the same self reasons and conclusion made particularly, when the same is contrary to the parameters laid down in the aforesaid orders of this Court. The appointments made in favour of the Petitioners during the pedency of the writ petition are no-nest and void ab-initio. They are void from their very inception. 37. The Respondents shall now pass appropriate orders consistently with the findings and conclusions arrived at in this proceeding as recorded above; 38. Let copies of this judgment and order be sent to the Chief Secretary of State for his appraisal of the state of affairs discussed above. Copies shall also be sent to the Commissioner & Secretary to the Government of Assam, education Department and the Director of Elementary Education, Assam for their immediate necessary follow up action. The Commissioner & Secretary and the Director shall furnish compliance report of this judgment and order within one month from the date of receipt of the same, for which the matter shall be listed again on 22.12.2005. 39. Bring this judgment and order to the notice of the Deputy Registrar (J). 40. Both the writ petitions are dismissed. However, there shall be no order as to costs. Petition dismissed.