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2014 DIGILAW 468 (GAU)

Protiva Nath v. State of Assam

2014-04-29

TINLIANTHANG VAIPHEI

body2014
Judgment Tinlianthang Vaiphei, J. 1. Having heard Mr. A. Buragohain, the learned counsel for the petitioner and Mr. A. Deka, the learned standing counsel for Education Department, I am of the view that this writ petition is not maintainable being barred by the principles of res judicata. The case of the petitioner, briefly stated, is that in response to the advertisement dated 28.12.1996 issued by the Government of Assam in the daily "Dainik Janambhumi" for filling up 7500 posts of Assistant Teacher, the petitioner applied for one of the posts of Middle English School (M.E. School). The Sub-Divisional Level Advisory Board conducted the selection process and held the interview on 23.2.2001 in which the petitioner duly appeared and was selected for the post of Assistant Teacher in the M.E. School category. She was accordingly appointed as Assistant Teacher of Duliajan Nabojyoti M.E. School in the pay scale of Rs. 3,130-6,000/- plus other admissible allowances vide the appointment letter dated 12.3.3001. The District Elementary Education Officer, Dibrugarh (respondent 3), however, on the next day itself by the order dated 13.3.2001 cancelled all these appointments including that of the petitioner on the ground that he was forced to sign the appointment letters in a hotel somewhere in Guwahati. Aggrieved by this, two writ petitions being WP(C) No. 3571/2001, WP(C) No. 5346 of 2001 and WP(C) No. 5385/2001 were filed before this Court. It may be noticed that the petitioner herein was the petitioner No. 77 in WP(C) No. 3571/2001. This Court by the judgment dated 7.6.2007, while dismissing the writ petitions, held: A consideration of the case pleaded by the petitioners and what has been stated by the district Elementary Education Officer, Dibrugarh, in the affidavit filed, as noticed above, give rise to two conflicting versions relating to the appointments in question. While the petitioners assert such appointments to be legal and justified in law, the appointing authority contends to the contrary. The Court exercising jurisdiction under Article 226 of the Constitution will not be in a position to decide the correctness of either of the versions. Which of the aforesaid two versions is correct; what are the facts and circumstances surrounding the appointments of the petitioners are questions that will require a detail consideration of several facts and particularly the records. The Court exercising jurisdiction under Article 226 of the Constitution will not be in a position to decide the correctness of either of the versions. Which of the aforesaid two versions is correct; what are the facts and circumstances surrounding the appointments of the petitioners are questions that will require a detail consideration of several facts and particularly the records. It is not known to the Court whether any inquiry in the matter was held by the Department, though, as noted in the earlier order of this Court, the Department had repeatedly represented about some enquiry being made without, however, informing the court of the outcome of such enquiry/enquiries. It is because of this reason that the Court by its order dated 13.3.2007 had directed a police investigation into the matter. The progress of such investigation and the result hereof will definitely be monitored by the Court but not in the present proceedings. In so far as the present cases are concerned because of the highly disputed nature of the projections and counter-projections made by the contesting parties, the Court is of the view that the present will hot be fit cases for effective adjudication under Article 226 of the Constitution. No relief, therefore, can be afforded to the petitioners. All the writ petitions are, therefore, dismissed, however, without imposing any cost. (Underlined for emphasis) 2. No appeal was preferred by the petitioner against the aforesaid judgment. The issue as to whether the petitioners were duly appointed for the post of Assistant Teacher of M.E. Schools was already heard and decided by this Court, which dismissed the writ petitions on the ground that there are disputed questions of fact which could not be decided in a writ petition under Article 226 of the Constitution. In my opinion, this writ petition is indisputably barred by the principles of res judicata; To overcome this bar, Mr. A. Buragohain, the learned counsel for the petitioner, would like to contend that the name of the petitioner did not appear in the list of fake appointees of the Dibrugarh District, which was submitted by the respondent No. 3: in fact, her name appears in the list of genuinely appointed teachers which the respondent No. 3 had submitted to the higher authorities as "verified appointees" in contradistinction to fake appointees. He further submits that the respondent No. 2 has also submitted a report in connection with WP(C) No. 5385/2001 (Kabita Baruah Ors. Vs. State of Assam) to the respondent No. 1 indicating therein that as per the report of the respondent No. 2, the name of the petitioner appeared in the list of 34 persons out of 51 genuinely appointed persons. On perusing these documents, which are at annexed at Annexure-G-"1" and Annexure-"H series" to the writ petition, it becomes obvious that these documents were already in existence in 2001 before the tiling of, or during the pendency of WP(C) No. 3571/2001. This plea ought to have been taken by the petitioner at the time of hearing of WP(C) No. 3571/2001. In my judgment, these contentions made by the petitioner now are based on the afore-noted documents thereby making them to be matters which might or ought to have been made the ground of attack in WP(C) No. 3571/2001. Having not done so, such pleas are necessarily barred by the principles of constructive res judicata. In any case, the contention by the learned counsel for the petitioner in this behalf is nothing more than an attempt to decant an old wine in a new bottle. In other words, the learned counsel for the petitioner is unable to overcome the said bar: he did not even challenge the verdict of this Court in the previous cases filed by her along with other candidates. Unfortunately, the position of the petitioner cannot improve after dismissal of the earlier writ petition filed by her: the interference of this Court is not called for. For the aforementioned reasons, this writ petition is not maintainable, which is, accordingly, dismissed. No costs. Petition dismissed.