WP(C) 4319/2011 - Gauhati High Court

for appointment as the Director of Agriculture, Assam, the instant writpetitions are maintainable. He submits that there being suppression ofmaterial fact on the part of the respondent No. 8 in offering hiscandidature for the post of Director of Agriculture, Assam and also havingregard to the position of the said post presently occupied by therespondent No. 8, a writ of Quowarranto is called for. On the question ofmaintainability of the writ petitions, referring to two decisions of the ApexCourt reported in (1) (2007) 4 SCC 221 (A.V. Papayya Sastry andors. Vs. Govt. of A.P. and ors.) and (2) (2009) 7 SCC 1 (N.Kannadasan vs. Ajoy Khose), he submits that if it is found that in theearlier proceeding there was misrepresentation and that material fact wasnot considered by the Court, it will not be a bar for this Court to entertainthe writ petitions exercising the power of judicial review under Article 226of the Constitution of India.11. Countering the above argument, Mr. K.N. Choudhury, learned Sr.Addl. Advocate General, Assam submits that both the writ petitions arenot maintainable in view of the earlier judgments concluding the issueonce again raised in this writ petitions. He submits that the very basis ofthe writ petitions is wrong and is an abuse of the process of law.According to him, the writ petitions are to be dismissed with exemplarycosts. In support of his argument, he has placed reliance on two decisionsof the Apex Court reported in (1) (1989) 3 SCC 151 (M/s. KeshoRam and Co. and ors. Vs. Union of India and ors.) and (2) (2005)7 SCC 190 (Ishwar Dutt vs. land acquisition Collector and anr.) .12. Mr. M. K. Choudhury, learned Sr. counsel representing therespondent No. 8 has submitted that when the recommendation made infavour of the respondent No. 8 has been upheld by this Court on the basisof the same pleadings, the petitioners are not permitted to raise the sameissue once again by means of the instant writ petitions. He submits thatthe particular qualification in respect of which the petitioners haveagitated their grievances having already been gone into in the earlierproceedings recording the finding in favour of the respondent No. 8, theW.P.(C) No. 4319/2011 Page 6 of 6W.P.(C) No. 4327/2011

same issue cannot be allowed to be re-agitated again by filing the instantwrit petitions.13. Mr. R.K. Taluldar, learned SC, APSC has adopted the aforesaidarguments advanced by both Mr. K.N. Choudhury, learned counselappearing for the respondents and Mr. M.K. Choudhury, learned counselfor the respondent No. 8.14. The question of maintainability of the writ petitions having beenraised at the very threshold of the argument necessarily reference willhave to be made to the earlier proceedings which will also touch the meritof the case of the petitioners.15. The whole basis of the series of the litigations in the matter ofselection and appointment of the respondent No. 8 centres around thequalification prescribed under Rule-8 of the Recruitment Rules, namelyAssam Agricultural Services Rules, 1980. As per Rule-8, academicqualification of a candidate for direct recruitment shall be as prescribed bythe Governor from time to time. The qualification and experienceprescribed as on the date of commencement of the Rules are to be foundin Schedule-II. We are concerned with clause-1 (iii) of the Scheduleto the said Rules. As per the requirement of the said clause, for the postof the Director of Agriculture, the person is required to have experience inadministration of Agriculture in a senior post at least for 8 years.16. According to the petitioners, the respondent No. 8 was lacking inthe said qualification inasmuch as he had no experience in a senior postfor 8 years. Another ground of attack on behalf of the petitioners is thatthere has been suppression of material fact on the part of the respondentNo. 8 in projecting that he had the requisite experience of 8 years. In thisconnection, the petitioners have referred to Annexure-P/6 letter dated22.11.2010 addressed to one Shri Kailash Barman by the DeputySecretary, Govt. of Assam and SPIO, Agricultural Department. By the saidletter particulars furnished by the respondent No. 8 towards offering hisW.P.(C) No. 4319/2011 Page 7 of 7W.P.(C) No. 4327/2011

candidature were fowarded. In the particular document, it was indicatedby the respondent No. 8 that he was promoted from the post ofAgricultural Extension Officer (AEO) to that of Subject Matter Specialist.It is because of this word “promoted” used by the respondent No. 8 inhis document offering candidature, the case of the petitioners is thatthere had been misrepresentation on both the posts, i.e. AgricultureExtension Officer and Subject Matter Specialist, are in the same cadre anddid not involve any promotion in moving to the post of SMS from AEO.17. From the above and also from the tenor of the arguments advancedby the learned counsel for the petitioners, what is seen is that the wholebasis of the writ petitions is the alleged lack of experience of therespondent No. 8 as envisaged under Clause 1 (iii) of the Schedule-II ofthe aforesaid Rules and the alleged suppression of the material fact asindicated above.18. Let us now test the aforesaid two issues in the touchtone of thestand of the respondents that present writ proceeding is not maintainableas both the issues had already been gone into in the earlier proceedings.19. As noticed above, one of the petitioners had earlier filed a writpetition being W.P.(C) No. 6115/2010. The said writ petition wasdismissed by judgment and order dated 29.11.2010. In the writ petitionthe challenge was the very selection and recommendation made in favourof the respondent No. 8. In paragraph -4 of the said judgment, this Courtnoticing the plea taken by the petitioners recorded thus:“4. …The respondent No. 7 having been selected by theCommission and recommended for the post, the petitionerhas impeached the same on the ground that he being bereftof experience in administration of Agriculture in a seniorpost for a period of eight years, a mandatory prescription ofthe Rules, his candidature was void ab initio and ought tohave been rejected in limine.”12. Though the facts and particulars of the experience ofrespondent No. 7 as set out in tabular form in his affidavitvis-à-vis the Department of Agriculture does not indicatethe nature of his duties for the post of Sr. ScientificW.P.(C) No. 4319/2011 Page 8 of 8W.P.(C) No. 4327/2011

Assistant, Agricultural Extension Officer and Subject MatterSpecialist (Agro), the rest tally with those furnished by himto the Commission as is reflected by Anenxure-13 to theaffidavit in reply of the petitioner. As a matter of fact, thisdocument (annexure-13) is not complete in the sense thatit does not disclose the details of the respondent No. 7’sexperience in posts held by him under the Department ofSoil Science, Assam Agriculture University, in connectionwith various handling research projects. The certificatesdated 16.11.2010 (Annexure A and B) to his affidavit,however, set out the same. The period as the certificate(Annexure-A) would reveal spans over from 01.04.1997 toNovember, 2010. Apart therefrom he had held the post ofProfessor and Associate Professor under the universityfrom 02.04.1990 and prior thereto. During 10.09.1980 to01.11.1998, he had served as Sr. Scientific Assistant,Agricultural Extension Officer and Subject Matter Specialist(Agro). The certificates dated 13.10.2010 of the Director ofAgriculture in favour of the petitioner affirming his requiredlength of experience in administration of agriculture atvarious capacities in a senior post includes his office asAgricultural Extension Officer and Assistant Horticulturist(Junior SMS) as well. Though the eligibility of the petitioneris not an aspect under scrutiny, on a comparison of theposts and the duties relatable thereto as discharged byboth the incumbents, the plea of absence of essentiallength of experience of the respondent No. 7 inadministration of agriculture in a senior post does notcommended for acceptance.13. … the Commission having accepted the candidature ofrespondent No. 7 being fully conscious of the Rules in thisregard, this Court is disinclined to sustain the challengeagainst his eligibility. A perusal of the records of theselection maintained by the Commission does not indicateanything contrary to return a different finding. Thatexperience in administration of agriculture permissiblycomprehends one under the Agriculture University as wellas underlined by this Court in Manjura Mohan Kalita(supra). The relevant portion of the rendering to this effectdeserves to be extracted.“Serial No. 3, in my considered opinion, cannot beread in isolation with serial No. 4, and so read it willencompass not only the experience in administration ofagriculture under the Government, but also the experiencein administration of agriculture under an AgricultureUniversity where the outstanding research training orextension and education are carried on. Thus, thecontention of respondent No. 3 in the affidavit in oppositionthat the experience in administration of agriculture underthe Assam Agriculture University is not the experience inW.P.(C) No. 4319/2011 Page 9 of 9W.P.(C) No. 4327/2011

“It must be noted that the advertisement mentions“experience in administration of Agriculture in a SeniorPost at least for 8 years” but what is a Senior post that hasnot been mentioned not “experience in administration” hasbeen specified. Respondent No. 7, from the record, seemsto had a long career starting from some time 1980 onwardsand has held various posts including that of SeniorScientific Assistant, Agriculture Extension Officer, SMS(Agro), Assistant Professor, Associate professor andProfessor.The Selection Committee, which includes an expertfrom the Government, would have surely looked into thematerials for the purposes of determining whetherrespondent No. 7 met the qualifications laid down in theadvertisement.”21. As against the aforesaid order of the Division Bench the petitionerapproached the Apex Court by filing SLP (C) No. 2280/2011. The saidSLP was dismissed by order dated 11.02.2011 with the following order:“Heard Mr. F.S. Nariman, learned senior counsel appearingfor the petitioner.We find no merit in this petition for special leave. It isdismissed.”22. As noted above, one Shri Amit Deori had also questioned theselection and recommendation made in favour of the respondent No. 8.He had filed W.P.(C) No. 6452/2010, but the same was dismissed byorder dated 12.01.2011. While dismissing the writ petition, the aforesaidjudgment and order passed by this Court in W.P.(C) No. 6115/2010and W.A. No. 4171/2010 was duly taken note of. On being pointed outthe said judgment and order, learned counsel for the petitioner sought forwithdrawal of the writ petition. While allowing the said prayer, the writpetition was dismissed. Even after dismissal of the aforesaid writ petition,same very petitioner, i.e. Shri Amit Deori, filed another writ petition beingW.P.(C) No. 1564/2011 and the same was also dismissed by orderdated 21.03.2011. As in the earlier writ petition in the said writ petitionW.P.(C) No. 4319/2011 Page 11 of 11W.P.(C) No. 4327/2011

also, the challenge was to the selection and recommendation made infavour of the respondent No. 8 for the post of Director of Agriculture,Assam. Then came the turn of the petitioner involved in W.P.(C) No.4319/2011 who filed another writ petition being W.P.(C) No.1587/2011. As in the earlier writ petition, in the said writ petition alsothe challenge was to the selection and recommendation of the respondentNo. 8. The said writ petition was also dismissed by order dated25.03.2011 noticing the aforesaid judgments and orders includingdismissal of the SLP by the Apex Court by its order dated 11.02.2011 inCivil Appeal No. 2280/2011.23. Against the said order dated 25.03.2011 and also the DivisionBench order dated 23.12.2010 passed in WA No. 417/2010, thepetitioner had approached the Apex Court by filing an appeal. The appealwas dismissed by order dated 02.05.2011 with the following order:”Upon hearing counsel the Court made the following orderAfter some arguments, Mr. Huzefa Ahmedi, counselfor the petitioner in both the petitions seeks permission towithdraw these special leave potions so that petitionersmay agitate their grievances by filing their representationsbefore the concerned authorities and the StateGovernment.The Special leave petitions are dismissed aswithdrawn.”24. At this stage, it is submitted by the learned counsel for the partiesthat the petitioner involved in the second writ petition, i.e. W.P.(C) No.4327/2011, had filed a review petition in respect of the order dated11.02.2011 by which his appeal against the Division Bench judgment andorder dated 23.12.2010 passed in WA No. 417/2010 was dismissed. Thesaid review petition was also dismissed by order dated 19.07.2011 by thefollowing order:W.P.(C) No. 4319/2011 Page 12 of 12W.P.(C) No. 4327/2011

“IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONREVIEW PETITION (CIVIL) NO. 1568/2011IN SPECIAL LEAVE PETITION (CIVIL) NO. 2280 of 2011TIMOTHY HANSE (DAS)VERSUSSTATE OF ASSAM & ORS.PETITIONERRESPONDENTSORDER1. This petition is filed seeking review of order datedFebruary 11, 2011 passed in Special Leave Petition(Civil) No. 2280 of 2011.2. Prayer for oral hearing is rejected.3. We have gone through the review petition and therecord of the special leave petition. We find that theorder of which review is sought does not suffer fromany infirmity, much less any apparent error on thefact of the record. No case is made out for review.4. The review petition is dismissed.”25. At this stage it will be pertinent to place on record the fact that thepetitioner in W.P.(C) No. 4327/2011 in his rejoinder affidavit filed inW.P.(C) No. 6115/2010 had urged more or less the same grounds ashas been urged in the present writ petition. Both the points, i.e. (1) therespondent No. 8 lacks experience and (2) he has misled the APSC inoffering his candidature, had been agitated with the following statements:“The respondent No. 7 mentioned that he had promoted tothe post of SMS(Agro) from Agricultural Extension Officer,which is misleading inasmuch as the feeder post forpromotion to “Subject Matter Specialist” is “Sub-DivisionalAgricultural Officer”. The Annexure-c Series annexed to thepreliminarily affidavit at page 23, it was noted as follows:“Joined as Subject Matter Specialist (Agro), Roha on10.11.88 vide A.D.A. (Extn.) Assam order No.Agri/Esstt./53/KB/5 dated 05.11.88.”Therefore, the said Annexure-C series contradicts thecontents of Annexure-4. The respondent No. 7 did notdisclose as to how he promoted from the post ofW.P.(C) No. 4319/2011 Page 13 of 13W.P.(C) No. 4327/2011

Agricultural Extension Officer to SMS (Agro). Hence, theposts held with effect from 09.10.80 to 31.03.90 were notSenior Posts and the nature of duty mentioned against thesaid posts held with effect from 09.10.80 to 31.03.90cannot be construed to be duties discharged in anAdministrative post. Therefore, such experience has norelevancy to satisfy the requirements set out in Serial No. 3of Educational Qualification of the Advertisement dated22.04.10, i.e. Experience in administration of Agriculture ina Senior post at least for 8 years as well as Clause 1(3) ofSchedule-II of Rule 6/ Rule 8 of the Rules, 1980, which is amandatory statutory requirement.”26. Above apart, in the earlier writ petition filed by him, i.e. W.P.(C)No. 6115/2010, while structuring his case against the selection andrecommendation of the respondent No. 8, made specific pleadings urgingboth the grounds, i.e. lack of experience of 8 years and suppression ofmaterial fact in offering his candidature. Not only that the documentswhich have now been placed to put emphasis on the word “promoted”so as to contend that the respondent No. 8 wrongly represented that hewas promoted to the post of Subject Matter Specialist (SMS) fromAgriculture Extension Officer (AEO) was also annexed to the writ petition.27. In the earlier writ petition filed by the petitioner involved in W.P.No. 4319/2011, i.e. W.P.(C) No. 158/2011, the whole basis of thecase was the alleged lack of experience as envisaged in the Rules andmisrepresentation of the actual position held by the respondent No. 8.Thus, there is absolutely no manner of doubt that the issues now raised inthe two writ petitions were the issues in the earlier litigations. Yet,undaunted, the petitioners have once again raised the same issue by filingthe instant writ petitions.28. Referring to the particular notings in the file of the decision makingprocess, Mr. A. Choudhury, learned counsel for the petitioners hassubmitted that although in one of the notings there was clear indicationthat the respondent No. 8 was lacking the required experience, but in theultimate decision of the authority the said note was totally ignored.W.P.(C) No. 4319/2011 Page 14 of 14W.P.(C) No. 4327/2011

29. I have very carefully gone through the said notings annexed to theadditional affidavit filed by the petitioners. On perusal of the same,nothing is discernible that any decision was taken not to accept therecommendation of the APSC in the matter of selection and appointmentof the respondent No. 8. Apart from the fact that the matter cannot bedecided on the basis of the some internal notings, such notes at theintermediary stages cannot be lifted by the petitioners favouring theircase. In the decision making process notes in the file are bound to begiven/recorded. But it is the final decision which matters. In the instantcase, recommendation made in favour of the respondent No. 8 wasaccepted by the Departmental Minister including the Chief Minister. Thatbeing the position, I am not inclined to accept the submissions made byMr. A. Choudhury, learned counsel for the petitioners that the decisionmaking process was wrong. Further, consultation at the departmentallevel through files cannot be the subject matte of the judicial scrutiny ofthis Court. As has been held by the Apex Court in MD U.P. LandDevelopment Corporation vs. Amar Singh reported in (2003) 5 SCC388, internal notes and orders of the office are meant for officialpurposes and shall not be produced before the Court in support of claimof the petitioner.30. Let us now discuss the decisions on which Mr. A. Choudhury,learned counsel for the petitioners has placed reliance. In A.V. PapayyaSastry (Supra), the Apex Court referred to the well known principle oflaw that if any judgment and order is obtained by fraud, it cannot be saidto be judgment and order in law. The decision has been pressed intoservice to buttress the argument that there being misrepresentation onthe part of the respondent No. 8, the earlier judgment holding the fieldcannot stall the instant proceeding and this Court is required to interferewith the recommendation made in favour of the respondent No. 8 forends of justice. I am afraid, the said decision is of no help to the case ofthe petitioners. It is not a case of obtaining a judgment by the respondentNo. 8 committing fraud on Court. As to what was his experience requiredfor the purpose of selection, has already been gone into in the earlierW.P.(C) No. 4319/2011 Page 15 of 15W.P.(C) No. 4327/2011

pro0ceedings and the recommendation made in his favour has also beensustained. That being the position, the petitioners cannot again reopenthe matter, the same being clearly barred by the principles of resjudicata.31. In N. Kannadasan (supra), it was held by the Apex Court that awrit of quowarranto can be issued when the holder of the public officehas been appointed in violation of the Constitutional and statutoryprovision. According to the learned counsel for the petitioners, therespondent No. 8 having been appointed in violation of the statutoryprovisions, his appointment is required to be interfered with issuing a writof quowarranto. Be it stated here that the respondent No. 8 has beenappointed by the notification dated 30.06.2011. As to what is thestatutory provision relating to appointment of the Director of Agriculture,Assam has been noted above. This Court has already gone into thequestion of experience of the respondent No. 8 in reference to the saidstatutory provisions. It cannot be said that the respondent No. 8 has beenrecommended and appointed in violation of the statutory provisions. Thatapart, if this argument is allowed, same will amount to permitting thepetitioners to raise the particular point again and again which will be anabuse of the process of law.32. The decisions on which Mr. K.N. Choudhury, learned Sr. Addl.Advocate General has placed reliance are M/s. Kesho Ram (supra) andIshwar Dutt (supra). In M/s Keso Ram, the Court was concerned withthe validity of the particular provision/notification. It was held that oncethe petitioners challenged the validity of the earlier notification, theyought to have raised all the grounds which could have been raised againstthe impugned notification. Emphasising the need for finality in thelitigation, it was observed that finality in litigation and public policy bothrequire that a litigant should not be permitted to challenge validity of theprovisions of the Act or notification at different times on differentgrounds.W.P.(C) No. 4319/2011 Page 16 of 16W.P.(C) No. 4327/2011

33. In Ishwar Dutt (supra), the Apex Court dealing with principle ofresjudicata observed that once the matter which was the subject matterof lis stood determined by a competent Court, no party thereof can bepermitted to reopen in a subsequent litigation. Such a rule was broughtinto statutory book with a view to bring the litigation to an end so thatother side may not be harassed.34. In the instant case, the issues which have been raised in the instantwrit petitions having already been gone into and decided with the finalityto it, the petitioners are precluded and estopped from raising the sameissues again in the garb of the aforesaid order of the Apex Court by whichSLP was dismissed recording the submissions made on behalf of thepetitioners that they would like to make representation. Even if anyrepresentation is made and the same is decided, I am of the consideredopinion that same cannot give rise a fresh cause of action to thepetitioners as the issue raised in the writ petition was the reiteration ofthe earlier issues raised in the earlier proceeding. As has been held by theApex Court in Post Graduate Institute of Medical Education Vs.A.P. Wasar, reported in (2003) 5 SCC 321, the issue which hasbecome final in judicial proceedings cannot be reopened as is sought tobe done in the instant case.35. It is on record that the representation made by the petitioners hasbeen rejected by the authority. On perusal of the pleadings and otherrelated materials, it gives an impression that the petitioners havestructured the instant writ petitions on the basis of the order of the ApexCourt referred to above, i.e. the order dated 02.05.2011, quoted above.By the said order, the petitioner was permitted to withdraw the SLPrecording the statement that the petitioner would prefer representationbefore the concerned authority. Such submission and the dismissal of theSLP has been projected to be the permission grated by the Apex Court formaking representation giving rise to a fresh cause of action. Such aconduct on the part of the petitioners is unbecoming of a responsibleGovt. officer.W.P.(C) No. 4319/2011 Page 17 of 17W.P.(C) No. 4327/2011

36. For all the aforesaid reasons, I am of the firm opinion that the writpetitions are not maintainable. Filing of such writ petitions once againagitating the same issues which have attained the finality, is an abuse ofthe process of law. Considering the matter in its entirety and havingregard to the facts and circumstance involved, I am of the consideredopinion that awarding of cost is attracted in this case. Accordingly, boththe writ petitions are dismissed imposing a cost of Rs. 50,000/- to eachone of the petitioners which they will deposit with the Registry of thisCourt within one month. While the respondent No. 8 will be entitled towithdraw Rs. 50,000/- being the cost of the successive legal proceedings,the remaining amount of Rs. 50,000/- shall be credited to the account ofthe legal aid cell of the High Court.37. Both the writ petitions are dismissed imposing costs as aforesaid.KborahJUDGEW.P.(C) No. 4319/2011 Page 18 of 18W.P.(C) No. 4327/2011