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Gauhati High Court · body

2009 DIGILAW 805 (GAU)

Md. Safiqul Islam v. State of Assam

2009-11-16

A.C.UPADHYAY, RANJAN GOGOI

body2009
JUDGMENT A.C. Upadhyay, J. 1. These two appeals have been preferred against a common judgment and order passed by the learned Single Judge in W.P.(C) No. 641 of 2008 Hazarat Husnuzzoman and Ors. v. State of Assam and Ors and W.P. (C) No. 3909 of 2008 Md. Shahjan Ali v. State of Assam and Ors., whereby the learned Single Judge quashed and set aside the appointment order of the appellant and directed the respondent College Authority to advertise the post of Lecturer in Arabic and to make appointment therein by following the necessary Rules and the U.G.C. Guidelines holding the field for appointment to the post of lecturer in a deficit college. 2. Both the writ appeals carry common questions of law structured on almost identical factual premises. Therefore, these appeals have been taken up together for analogous hearing and disposal. 3. The relevant facts which will be required to be noticed for adjudication of the two writ appeals may briefly be stated as follows: The B.H. College at Howly was a deficit college, subsequently provincialised under the provisions of the Assam College Employees Provincialisation Act, 2005. For the deficit colleges, sanctioned posts were allocated by the State Government and the salaries and allowances against such posts was by way of grants-in-aid to the College. However, it is an acknowledged fact that the posts sanctioned in deficit colleges were in adequate compelling such Colleges to make recruitments against non-sanctioned posts, the expenditure in respect of which posts is to be borne by the College from its own funds. Following the aforesaid practice, an advertisement dated 21.11.2003 was issued by the B.H. College, Howly for appointment in a non-sanctioned post of Lecturer in the Arabic Department Pursuant to the said advertisement, the appellant as well as the respondent No. 6 in Writ Appeal No. 34 of 2009 and others applied for the post in question. A selection committee was constituted to hold a selection for the post in question. Accordingly, on the basis of the selection held, a select list dated 12.12.2003 was prepared wherein the name of the writ; appellant appeared at Serial No. 2, whereas the respondent No. 6 in W.A. No. 34 of 2009, [petitioner in W.P.(C) No. 3909/2008] was placed at Serial No. 1. Accordingly, on the basis of the selection held, a select list dated 12.12.2003 was prepared wherein the name of the writ; appellant appeared at Serial No. 2, whereas the respondent No. 6 in W.A. No. 34 of 2009, [petitioner in W.P.(C) No. 3909/2008] was placed at Serial No. 1. The Governing Body of the College in its meeting held on 29.12.2003 recommended appointment of the writ appellant in the non-sanctioned post or Lecturer in Arabic. Accordingly, appointment letter dated 3.2.2004 was issued to the writ appellant. On the basis of the aforesaid appointment order the Writ Appellant Joined the College on 19.7.2004 and has been working continuously, in the non-sanctioned post. By a Resolution of the Governing Body dated 24.1.2008 his name was recommended for regularization against a vacant sanctioned post of Lecturer in Arabic, which vacancy had occurred due to superannuation of the Head of the Department of Arabic in the College. It may be recalled at this stage, that the service rendered by a large number of Lecturers against non-sanctioned posts in deficit colleges for long years had engaged the attention of the Government and pursuant to certain court orders, details of which need not be noticed, an Office Memorandum dated 17.7.2004 was issued, inter alia, providing for regularization of Lecturers working in non-sanctioned posts against vacancies occurring in sanctioned posts on death or retirement. Such regularization was to be on the basis of the seniority of the concerned incumbents in the non-sanctioned posts provided the initial entry of the incumbent against the non-sanctioned post was on the basis of selection. It is on the basis of the aforesaid Office Memorandum dated 17.7.2004 that the Governing Body of the College by Resolution dated 24.1.2008 had recommended the name of the writ appellant for regularization against the vacancy occurring in the sanctioned post in the Arabic Department of the College. 4. At this stage. Writ Petition (C) No. 641 of 2008 (corresponding to Writ Appeal No. 35 of 2009) was instituted by the two petitioners therein contending that the vacancy in the sanctioned post in the Arabic Department that had occurred due to superannuation of the concerned incumbent should be advertised. The aforesaid two petitioners, it may be noticed, were not candidates in the selection held for filling up the non-sanctioned post in which post the petitioner was appointed on 3.2.2004. 5. The aforesaid two petitioners, it may be noticed, were not candidates in the selection held for filling up the non-sanctioned post in which post the petitioner was appointed on 3.2.2004. 5. Another Writ Petition, i.e., W.P.(C) No. 3909/2008 (corresponding to Writ Appeal No. 34 of 2009) was instituted by respondent No. 6 contending that as he was placed in Serial No. 1 of the select list prepared for the non-sanctioned post in Arabic Department, the appointment of the writ appellant against the said post was arbitrary and illegal inasmuch as the writ appellant was placed at Serial No. 2 of the select list. 6. The learned Single Judge hearing both the writ petitions took the view that as the writ petitioner in W.P.(C) No. 3909/2008 (respondent No. 6 in W.A. No. 34/2009) was better placed in merit and there were no explanations forthcoming from the Governing Body of the College why the better claim of the writ petitioner was overlooked, it would be appropriate to interfere with the appointment of the writ appellant in the non-sanctioned post made as far back as on 3.2.2004. The consequence of the aforesaid interference by the learned Single Judge, inter alia, brought to naught the recommendation of the Governing Body dated 24.1.2008 for regularization of the writ appellant against the sanctioned post that had become available. The learned Single Judge, however, on ground of delay in approaching the court, refused to pass any order for appointment of the writ petitioner in W.P.(C) No. 3909/2008 against the non-sanctioned post in which the writ appellant was appointed and, instead, the learned Single Judge directed that the vacancy in the sanctioned post in the Arabic Department should be advertised. The aforesaid direction of the learned Single Judge, it may be noticed, took appropriate care of the prayers made in W.P.(C) No. 641/2008. Consequently, both the writ petitions were allowed to the extent noticed above. Aggrieved by the aforesaid order of the learned Single Judge dated 22.12.2008, the present appeals have been filed. 7. We have heard Mr. A.K. Goswami, Learned Senior Counsel assisted by Mrs. K. Goswami, Learned Counsel appearing for the appellant in both cases. Mr. A.S. Choudhury, senior advocate assisted by Mr. J. Ahmed, Learned Counsel appearing for the respondent No. 6 in W.A. No. 34 of 2009 as well as for respondent Nos. 6 and 7 in W.A. No. 35 of 2009 and Mr. A.K. Goswami, Learned Senior Counsel assisted by Mrs. K. Goswami, Learned Counsel appearing for the appellant in both cases. Mr. A.S. Choudhury, senior advocate assisted by Mr. J. Ahmed, Learned Counsel appearing for the respondent No. 6 in W.A. No. 34 of 2009 as well as for respondent Nos. 6 and 7 in W.A. No. 35 of 2009 and Mr. N. Dutta, learned senior advocate assisted by Ms. A. Dutta, Learned Counsel appearing for respondent Nos. 3, 4 and 5 and Mr. M.R. Pathak, learned Standing Counsel, Education Department in both the writ appeals have also been heard. 8. Shri A.K. Goswami, Learned Counsel for the writ appellant has submitted that W.P.(C) No. 3909/2008 filed by the respondent No. 6 in W.A. No. 34/09 sought to raise the question of validity of the initial appointment of the writ appellant in a non-sanctioned post made as far back as on 3.2.2004. The writ petition was inordinately delayed and no explanation has been forthcoming for the delay. Additionally, Shri Goswami has submitted that the said delay also is indicative of the fact that the petitioner therein was not interested in accepting the non-sanctioned post and only when the prospect of regularization of the incumbent working in the non-sanctioned post against a sanctioned post had materialized, the writ petitioner had woken up and sought to ventilate his grievance with regard to the initial appointment. According to Shri Goswami, the said inaction on the part of the writ petitioner in W.P.(C) No. 3909/2009 will have the effect of a forfeiture of his rights under the law and disentitle him to any benefit in exercise of the discretionary jurisdiction of the court under Article 226. Arguing further, Shri Goswami, leaned counsel, with particular reference to the issues arising in the second writ petition, i.e., W.P.(C) No. 641 of 2008, has submitted that under the Office Memorandum dated 17.7.2004 certain rights have accrued to the writ appellant by virtue of the long years of service rendered in a non-sanctioned post and the Office Memorandum having contemplated regularization of such an incumbent without any advertisement of the sanctioned vacancy, the issues raised in the Writ Petition (C) No. 641 of 2008 are without any merit or substance. In this regard, Shri Goswami has further pointed out to a Government order dated 12.10.2004 prohibiting any further appointment in non-sanctioned posts on and from the said date. In this regard, Shri Goswami has further pointed out to a Government order dated 12.10.2004 prohibiting any further appointment in non-sanctioned posts on and from the said date. According to Shri Goswami, the aforesaid order dated 12.10.2004 was passed to give full effect to the Office Memorandum dated 17.7.2004, i.e., for regularization of incumbents holding non-sanctioned posts. Shri Goswami has further submitted that as a matter of fact all holders of non-sanctioned posts appointed prior to 12.10.2004, have been regularized on the basis of the Office Memorandum dated 17.7.2004 though on a plain reading, the same would suggest that it was intended to apply to holders of non-sanctioned posts with a minimum of five years of service as on the date of the said memorandum. 9. Shri N. Dutta, Learned Senior Counsel appearing for the Governing Body of the College had argued that the basis of the decision of the Governing Body to appoint the writ appellant against the non-sanctioned vacancy, though he was placed at Serial No. 2 of the merit list, is not disclosed by the records. However, according to Shri Dutta, the said decision could have been actuated by several good reasons which are deducible from whatever is available on record. The salary in the non-sanctioned post was a paltry amount of Rs. 1,000 and, therefore, the Governing Body could very well have taken into account that the writ appellant who was a local person would be more suitable for the job on the salary offered than the writ petitioner in W.P.(C) No. 3909/2008 who was a resident of the far away place, i.e., Bongaigaon. According to Shri Dutta, the preference of the local candidate could very well have been on the ground that the local candidate on the paltry salary of Rs. 1,000 per month could devote himself to the duties in a better way than the petitioner in W.P.(C) No. 3909/2008. 10. Shri A.S. Choudhury, Learned Counsel for both sets of the respondents in the two appeals under consideration, however, contended that apart from the question of delay and latches in instituting W.P.(C) No. 3909/2008, a question of great significance arises in the two appeals. A reading of the Office Memorandum dated 17.7.2004, Shri Choudhury has submitted, indicates that the same was issued to cover the cases of about 300 lecturers holding non-sanctioned posts for periods between 5 to 14 years. A reading of the Office Memorandum dated 17.7.2004, Shri Choudhury has submitted, indicates that the same was issued to cover the cases of about 300 lecturers holding non-sanctioned posts for periods between 5 to 14 years. Shri Choudhury has submitted that the Office Memorandum, therefore, ex-facie discloses a requirement of minimum period of service of 5 years in a non-sanctioned post on the date of the said memorandum which the writ appellant does not possess. Shri Choudhury has further submitted that with the coming into force of the Assam College Employees Provincialisation Act, 2005, the mode of regularization contemplated by the Office Memorandum dated 17.7.2004 has to be understood to have come to an end and it is only the manner provided by the Provincialisation Act, 2005 which will govern the field. In such circumstances, the Governing Body of the College could not have recommended the writ appellant for regularization against the available sanctioned post in the Arabic Department. 11. The arguments advanced by Shri A.S. Choudhury, Learned Counsel for the respondents in both the appeals having raised questions touching upon the core of the validity of the recommendation for regularization made in favour of the writ petitioner, the aforesaid issue may be taken up in the first instance and depending on the conclusion that may be reached, the other question arising in the appeals, i.e., delay and latches may be answered, if so required. 12. To appreciate the arguments advanced by Shri Choudhury, Learned Senior Counsel for the respondents, the relevant provisions of the Office Memorandum dated 17.7.2004 are reproduced herein below: 1. There are more than 300 College teachers found to be serving in different degree College (deficit-grants-in-aid College), of Assam since 1989 serving for 5 to 14 years without any valid sanctioned posts here in after referred to as non-sanctioned post. These teachers have been serving in Colleges in consolidated pay allowed by the respective college authorities from their own fund. These teachers were appointed by the respective Governing Body of the College on the need basis as per UGC guidelines. The Government have also accorded concurrence to the subject against which they were appointed. These teachers have also been performing similar responsibilities like those teachers who have been working against sanctioned posts in the College. 2. The Government could not sanction any additional post to the deficit grants-in-aid colleges since 1992. 52 Nos. The Government have also accorded concurrence to the subject against which they were appointed. These teachers have also been performing similar responsibilities like those teachers who have been working against sanctioned posts in the College. 2. The Government could not sanction any additional post to the deficit grants-in-aid colleges since 1992. 52 Nos. of Colleges were brought under deficit system of Grants-in-aid by the Government since 1992. Rut the Government have not sanctioned any additional post of lecturers since then over and above originally allocated sanctioned post. As a result, the College authorities appointed lecturers without valid sanctioned posts and have to bear the additional financial burden." a) Vacant posts in a particular department lying in a grants-in-aid College of Assam may be allotted in order of seniority to accommodate teachers in the same College who is working in some other department without a valid sanctioned post provided that such teacher was appointed by respective G.B. observing due procedure, i.e., advertisement selection and having UGC norms required and if the need for such a post is justified by enrolment in that department of the College, etc. Provided further, the post is not being considered essential for the department against which it was originally sanctioned. (b) In case of any future vacancies of sanctioned posts, in a particular department College teachers working without valid sanctioned post but appointed as per procedure stated at (a) above are to be adjusted in preference to fresh teachers. .... 13. On the basis of the issues highlighted by Shri A.S. Choudhury, Learned Counsel for the respondents, this Court by order dated 22.7.2009 required the learned Standing Counsel of the Department to obtain necessary instructions and answer the following two queries: (i) Whether the Office Memorandum dated 17.7.2004 would apply to the holders of non-sanctioned posts who have completed 5 to 14 years of service in view of the Cabinet Memorandum dated 25.3.2004; (ii) The effect of the Provincialisation Act of 2005 particularly. Section 6, thereof, on the Office Memorandum, dated 17.7.2004 with regard to the holders of non-sanctioned posts in aided colleges subsequently covered by the Provincialisation Act of 2005. 14. In response, a set of written instructions was received by the learned Standing Counsel of the Department from the Principal Secretary to the Government of Assam, Higher Education Department. Section 6, thereof, on the Office Memorandum, dated 17.7.2004 with regard to the holders of non-sanctioned posts in aided colleges subsequently covered by the Provincialisation Act of 2005. 14. In response, a set of written instructions was received by the learned Standing Counsel of the Department from the Principal Secretary to the Government of Assam, Higher Education Department. The said instructions which are dated 28.7.2009 may best be extracted hereinbelow: Sub: WA No. 34 and 35 of 2009 Md. Sofiqul Islam v. State of Assam and Ors. Please refer to your letter dated 24th July, 2009 on the above mentioned subject. The answer to the questions of the Hon'ble High Court are as follows: 1. The last sentence of paragraph 4 of the Office Memorandum dated 17.7.2004 reads - In view of the same and in pursuance of the approval of the Cabinet dated 9.6.2004, the following procedure/modalities are hereby prescribed for adjustment of service of College teachers working without sanction posts as mentioned above. In view of this provision our understanding is that the procedure for adjustment has been laid down for the 300 plus College teacher, who wore found to be serving in different Degree Colleges since 1989 serving for 5 to 14 years without valid sanctioned posts as mentioned in the earlier part of the Office Memorandum. The Circular would thus be applicable only to teachers who had 5 years or more of service on the date of issue of the Office Memorandum. 2. The Assam College Employees (Provincialisation) Act, 2005 has certain contradictions in it which we are trying to resolve by way of amendment. Section 3(a) reads - All Rules including the rules of conduct and discipline, which are applicable to the Government Servants of corresponding grade similarly situated shall be applicable. Similarly situated Government servants are teachers of Government Colleges. Under the Rules applicable to them they are Gazetted Officers and A.P.S.C. Regulations are applicable to them. Accordingly the recruitment has to be done by the A.P.S.C. while the Appointing Authority is the Government. As against this Section 6 reads - Appointments of both teaching and non-teaching in the College shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective College in accordance with the Rules and Procedure of the Government in force. As against this Section 6 reads - Appointments of both teaching and non-teaching in the College shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective College in accordance with the Rules and Procedure of the Government in force. This section requires the recruitment to be done by the Governing body while the Director will be the Appointing Authority. However, so far the question raised by the Hon'ble High Court is concerned, the change in the Appointing Authority or in the status of the teachers from being teachers of a private College receiving grant-in-aid to teachers whose services have been provincialised, in our understanding, would not end our obligations created by the Office Memorandum under reference. 15. A reading of the aforesaid stand taken by the Principal Secretary in the matter under consideration may indicate that so far as the first issue is concerned, regularization under the Office Memorandum dated 17.7.2004 may require a minimum of five years of service as on the date of the said memorandum. Insofar as, the position after coming into force of the Provincialisation Act, 2005 is concerned, the stand appears to be that the said Act will not affect the obligation created by the Office Memorandum dated 17.7.2004. 16. The stand in the first issue highlighted above seems to be contrary to the stand taken by the State in its counter affidavit filed in W.P.(C) No. 641 of 2008. The relevant part of the said affidavit is extracted below: 4. The deponent states that there have been more than 395 College teachers serving against non-sanctioned post in different Grants-in-aid degree Colleges of Assam and these teachers have been serving the College (now provincialised) in a consolidated pay provided by the fund of the respective College authority. Pursuant to the orders dated 11.2.2003 and 23.7.2003 passed in W.P.(C) No. 626/2002 and W.P.(C) No. 2368/2002 respectively, the Government considered the matter of absorption of those non-sanctioned Lecturers. However, in view of the Government ban on creation of new posts, instead of sanctioning new posts of Lecturers for absorption of those Lecturers working in non-sanctioned posts, the department proposes certain steps for redressal of grievances of the non-sanctioned teachers. Accordingly, the Cabinet took a decision vide Cabinet Memorandum No. 8(2)G.97/2003/114 dated 25.3.2004 and decided the matter. However, in view of the Government ban on creation of new posts, instead of sanctioning new posts of Lecturers for absorption of those Lecturers working in non-sanctioned posts, the department proposes certain steps for redressal of grievances of the non-sanctioned teachers. Accordingly, the Cabinet took a decision vide Cabinet Memorandum No. 8(2)G.97/2003/114 dated 25.3.2004 and decided the matter. As per the said Cabinet decision, the vacant sanctioned posts of the Colleges to be allotted to the Lecturer serving without sanctioned post in the respective Colleges, provided that they were initially appointed against the non-sanctioned post as Lecturer after observing due procedure and fulfilling the norms. It was further decided that while filling up the future vacancies, preference to be given to such Lecturers. Clause 6(a), (b), (c) and (d) of the cabinet Memorandum lays down the manner in which the posts are to be allocated. A copy of the Cabinet Memorandum dated 25.3.2004 is annexed herewith as ANNEXURE-A/1. 5. That the deponent states that in terms of the aforesaid Cabinet Memorandum, the Government of Assam, Education Deportment issued an Office Memorandum bearing No. 1 B92) h. 97/2003/90 dated 17.7.2004 considering the facts that more than 300 College teachers working in the deficit grants-in-aid Colleges of the State without any valid sanctioned post, i.e., Non-sanctioned post and they have been performing their responsibilities like the teachers working against sanctioned posts. The government was not in a position to sanction any more new post for the College to accommodate the College teachers serving without sanctioned post. In view of the same, some procedure/modalities are adopted with the approval of the Cabinet to adjust the services of the College teachers working without sanctioned posts. Clause 4(a), (b), (c) and (d) lays down the manner in which the posts are to be allocated. A copy of the O.M. dated 17.07.2004 is annexed here as ANNEXURE-A/2. 7. That the deponent state that as per provision of Clause 4(b) of the aforesaid O.M. dated 17.7.2007 (sic) provides". In case of any future vacancies of sanctioned posts, in a particular Department College teachers working without valid sanctioned post but appointed as per procedure stated at (a) above are to be adjusted in preference to fresh teachers. 17. That apart, in paragraph 11 of the aforesaid affidavit, it has been categorically stated that 88 Nos. of Lecturers holding non-sanctioned posts who were appointed after 17.7.2004 have been regularized. 17. That apart, in paragraph 11 of the aforesaid affidavit, it has been categorically stated that 88 Nos. of Lecturers holding non-sanctioned posts who were appointed after 17.7.2004 have been regularized. In this regard, in para-8 of the affidavit, it has been further stated that appointment against non-sanctioned posts continued to be made even after publication of the O.M. dated 17.7.2004. Consequently, by another Office Memorandum dated 12.10.2004 such engagements were prohibited and it was made clear that any appointment in non-sanctioned posts made after 12.10.2004 will have to be understood to be without any authority. 18. From the above, it is crystal clear that notwithstanding what had been recited in the Office Memorandum dated 17.7.2004 with regard to applicability of the terms of the office memorandum to the non-sanctioned teachers who had put in between 5 to 14 years of service, as a matter of fact, appointments made against non-sanctioned post till the date of issuance of the second office memorandum dated 12.10.2004 have been regularized in terms of the earlier Office Memorandum dated 17.7.2004. It is not in dispute in the present case that the petitioner was appointed by order dated 3.2.2004 and he joined in service on 19.7.2004. In such a situation, it is difficult to visualize as to how the benefit already granted to similarly situated persons can be refused or denied to the writ appellant. The court, therefore, will have to hold that the contention advanced on behalf of the respondents that the writ appellant will not be covered by the office memorandum dated 17.7.2004 as he had not completed the minimum of 5 years of service in the non-sanctioned post as on the date of the aforesaid Office Memorandum is untenable and unacceptable. 19. Shri A.S. Choudhury, Learned Counsel for the respondents has also argued that with the coming into force of the Provincialisation Act of 2005, the provisions of the Office Memorandum dated 17.7.2004 must be understood to have become ineffective and, therefore, unavailable for being acted upon. In this regard, the provisions of Section 6 of the Provincialisation Act have been placed before the court to show that appointments henceforth are. required to be made in the provincialised college by the Director of Higher Education and not by the Governing Body of the College, which was the practice earlier in vogue i.e. prior to provincialisotion. In this regard, the provisions of Section 6 of the Provincialisation Act have been placed before the court to show that appointments henceforth are. required to be made in the provincialised college by the Director of Higher Education and not by the Governing Body of the College, which was the practice earlier in vogue i.e. prior to provincialisotion. As already noted, many of the earlier deficit colleges in the State including the B.H. College. Howly have been covered by the provisions of the Provinciatisation Act. 20. Section 6 of the Provincialisation Act is in the following terms: 6. Selection and appointment of employees. -Appointments of both teaching and non-teaching posts in the College shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective College in accordance with the Rules and Procedure of the Government in force. 21. Admittedly, no rules under the Provincialisation Act have been framed and the procedure prescribed by the Rules framed in respect of Non-Government Colleges continues to hold the field. A mere change of the procedure of appointment that has been affected by the Provincialisation Rules, in our considered view, will not bring to an end the legal obligation created by the Office Memorandum dated 17.7.2004 so long the said office memorandum remains in force and is not otherwise inconsistent with the provisions of the Provincialisation Act. The Office Memorandum dated 17.7.2004 continues to remain in force till date and no inconsistency in the appointment procedure which cannot be suitably brought in tune with the requirements of the Provincialisation Act has been brought to our notice so as to enable us to hold the question raised in favour of the respondents. 22. The arguments advanced on behalf of the respondents on the two fold issues highlighted in the case having been found to be unacceptable, the next question that has to engage the attention of the court is the issue with regard to the delay in instituting the writ proceeding registered and numbered as W.P.(C) No. 3909 of 2008. The aforesaid proceeding is undoubtedly a belated one; no explanation is forthcoming for the delay. The aforesaid proceeding is undoubtedly a belated one; no explanation is forthcoming for the delay. Time and again, judicial opinion has been that delay, though not an absolute principle for refusing relief in a writ petition, should be taken into account by the court while granting relief(s), particularly in a situation where rights have been allowed to accrue or stabilize during the interregnum. In the present case, the petitioner in W.P.(C) No. 3909/2008 not having challenged the initial appointment of the writ appellant in the non-sanctioned post for a period of over four years, certain rights have accrued to the writ appellant under the Office Memorandum dated 17.7.2004. In the absence of any cogent explanation as to why the writ petition could not be filed earlier, it would be both be inequitable as well as against the settled principles of law laid down, inter alia, in the decisions cited in Rabindranath Bose v. Union of India (1970) 1 SCC 84 and in Amrit Lal Berry v. CCE (1975) 4 SCC 714 to grant any relief to the writ petitioner in the said writ petition, i.e., W.P.(C) No. 3909 of 2008. in fact, in the present case, the learned Single Judge after setting aside the initial appointment of the writ appellant had refused to grant any relief by way of a direction for appointment of the writ petitioner against the post held by the writ appellant on the ground that the writ petitioner had approached the court belatedly. If that be so, we fail to see why the legal consequences of the delay should not also be extended to the first aspect of the relief prayed for, i.e., interference with the initial appointment of the writ appellant. 23. For all the aforesaid reasons, we have not been, able to persuade ourselves to accept the view adopted by the learned Single Judge. Consequently, we allow both the appeals and set aside the order dated 22.12.2008 passed by the learned Single Judge. Appeal allowed.