Page No.# 1/11 GAHC010294342023 2025:GAU-AS:3451- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/103/2025 TILAK NATH S/O SHRI SUNESWAR NATH, R/O CHARING TELIAL GAON, P.O. HAFOLUTING DIST. SIVASAGAR, ASSAM VERSUS THE STATE OF ASSAM AND 16 ORS REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF INDUSTRIES and COMMERCE, DISPUR, GUWAHATI-6. 2:THE DIRECTOR OF INDUSTRIES ASSAM BAMUNIMAIDAM GUWAHATI-21. 3:THE DIRECTOR OF PANCHAYAT and RURAL DEVELOPMENT GOVT. OF ASSAM JURIPAR PANJABARI ROAD GUWAHATI-22 DISTRICT- KAMRUP ASSAM. 4:THE DEPUTY DIRECTOR OF INDUSTRIES and COMMERCE ESTABLISHMENT BAMUNIMAIDAM GUWAHATI-21 Page No.# 2/11 5:THE CHAIRMAN OF STATE LEVEL EMPOWERED COMMITTEE OF THE DIRECTOR OF INDUSTRIES ASSAM GUWAHATI-21. 6:SRI MUKUL GOSWAMI S/O SRI NABIN CHANDRA GOSWAMI R/O VILL and P.O. HAZARIKAPARA DIST. DARRANG ASSAM. 7:SRI DWIJEN CHAKRABORTY C/O SMT. SABHA CHAKRABORTY MISTRESS ZOO ROAD VIDYAPEETH AMBIKA NAGAR GUWAHATI-24 DIST. KAMRUP ASSAM. 8:SRI DEBEN KALITA S/O SRI HARMOHAN KALITA VILL- DHIRENPARA RAGHUNATH PATH P.S. FATASIL DIST. KAMRUP ASSAM. 9:SRI KARIM KAZI S/O HARMUJ ALI KARI R/O P.O. RANGIA DIST.KAMRUP ASSAM. 10:SHRI BIPUL DUTTA S/O- LATE GANESH DUTTA R/O- DEDARU PATH P.O. AND P.S.- DISPUR PIN- 781006 DIST.- KAMRUP ASSAM 11:SHRI PUSNA SURI S/O- LATE DUKHIA SURI R/O- RUPNAGAR P.O.-CINNAMORA AND P.S.- JORHAT PIN- 785008 DIST.- JORHAT ASSAM Page No.# 3/11 12:SHRI JOGEN DAS S/O- LATE MONPUR DAS R/O- VILLAGE- BACHAGAON P.O.- PANIGAON AND P.S.- JORHAT PIN- 787052 DIST.- LAKHIMPUR ASSAM 13:SHRI KANKANJYOTI LAHKAR S/O- SHRI HAREN CHANDRA LAHKAR R/O- WARD NO. 4 P.O. AND P.S.- RANGIA PIN- 781354 DIST.- KAMRUP ASSAM 14:SHRI BIKASH GANGULY S/O- LATE MANINDRA CHANDRA GANGULY R/O- M.C.GANGULY ROAD P.O. AND P.S.- TEZPUR PIN- 784001 DIST.- SONITPUR ASSAM 15:SHRI NIRMAL DAS S/O- LATE RAJMOHAN DAS R/O- WARD NO. 20 BARPETA TOWN P.O.- SANTIPARA PIN- 781301 DIST.- BARPETA ASSAM 16:MD. MASUD AHMED LASKAR S/O- LATE SAMSUDDIN LASKAR R/O- AMBIKAPATTY P.O. AND P.S.- SILCHAR PIN- 788001 DIST.- CACHAR ASSAM 17:SHRI TAPAN SAHA S/O- LATE GOPAL CHANDRA SAHA R/O- WARD NO. 3 LAOKHOWA ROAD P.O.- HAIBORGAON PIN- 782002 DIST.- NAGAON ASSAM Page No.# 4/11 For the appellant : Dr. Aziz Khan, Ms. D. Gupta, Advocates For the respondents : Mr. A. Kalita, S.C., Industries & Commerce Department for Respondent Nos.1, 2, 4 & 5 Mr. J. Bora, Advocate for Respondent No.3 Mr. M. Nath, Sr. Advocate Assisted by Mr. A. Bhattacharjee, Advocate for Respondent Nos.6 to 12 & 14 to 17 – B E F O R E – HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR 26-03-2025 (Vijay Bishnoi, C.J.) In view of the order passed today in I.A.(C) 203/2024 [in WA (Filing Number) 15932/2023], this writ appeal is registered and with the consent of the parties, this writ appeal is heard on merits. 2. The instant writ appeal is preferred on behalf of the appellant being aggrieved with the judgment and order dated 20.09.2023 passed in WP(C) 997/2010, whereby the learned Single Judge has dismissed the said writ petition preferred by the appellant. 3. The case is having a chequered history, which have been taken note of by the learned Single Judge in the impugned judgment and order. However, we are Page No.# 5/11 of the opinion that for the purpose of deciding this writ appeal, the said history need not be repeated and, accordingly, only the relevant facts of the case are taken note of. 4. The appellant has approached the Writ Court by filing the above-referred writ petition praying for the following relief: “(1) Call for the records of the cases relating to the services of the Extension Officers serving under the Directorate of Industries or who have been sent on deputation to other departments whose appointments have been quashed by the Hon’ble Court and are still continuing in their services and/or – (2) Institute an enquiry by an independent investigating agency to fix responsibility on the persons who have appointed and allowed the illegal appointees to continue in their services till date as Extension Officers under the Directorate of Industries in spite of their appointments being declared illegal by the Hon’ble Court and / or; (3) Issue a writ in the nature of mandamus directing the respondents to disclose as to what steps have been taken to fill up the vacant posts of Extension Officers under the Directorate of Industries pursuant to the advertisement published in the Assam Tribune in its issue dated 26/10/2002 and/or (4) Directing the respondent authorities to consider the appointment of the petitioner as Extension Officer in the office of the Directorate of Industries & Commerce, Assam, Industries and Commerce Department, Bamunimaidam, Guwahati-21 (Respondent no.2) and/or ; (4) Pass such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 5. The said writ petition was contested by the respondents. However, the Writ Court vide order dated 26.04.2013 directed the Chief Secretary to the Government of Assam to look into the matter and furnish a comprehensive Page No.# 6/11 report. Pursuant to the said direction, the Chief Secretary to the Government of Assam submitted a report wherein certain adverse observations were made against some of the selected/appointed candidates, who were subsequently impleaded as party respondent Nos.6 to 14 in the writ petition. However, before impleading them as party respondents, the said respondents had assailed the order dated 26.04.2013 passed by the learned Single Judge by way of filing writ appeal, being, WA No.253/2013 and the Division Bench of this Court, vide order dated 03.02.2014, disposed of the said appeal by passing the following order: “Having regard to the nature of the controversy and the fact that on previous occasion even interim order was passed in appeal, we give indulgence to the appellants to file this appeal. We do not wish to burden this order by narrating facts in details in as much as having heard learned counsel for the parties and on perusal of the record of the case, we are of the considered opinion to allow the appeal and remand the case to the writ Court for deciding the writ petition filed by respondent No.11 against the other respondents in accordance with law afresh. Since we have formed an opinion to remand the matter to the writ Court, and, hence, we refrain from recording any finding on merits of the controversy and leave the writ Court to decide afresh the writ petition on merit afresh. The remand is called for because firstly, the rights of the parties were not decided; secondly, it did not contain sufficient reasons and thirdly, in the light of the fact that the appellants have filed the appeal as an intervener having interest in the subject matter of writ petition and were not heard and hence they can now be given indulgence to become parties to the writ petition and have their say before any final order is passed in the writ petition by the writ court. It is for these reasons, we allow the appeal, set aside the impugned order and remand the case to the writ Court to decide the writ petition afresh on merit after allowing the appellants to formally become parties to the said writ petition as party respondents and file their say/return. The writ Court may also afford opportunity to all the parties to complete their pleadings and then decide the Page No.# 7/11 writ petition in accordance with law. Parties would be at liberty to make application for grant of appropriate interim relief during the pendency of the writ petition. Registry is directed to list the writ petition before the writ Court as per roster. No cost.” 6. Pursuant to the order passed by the Division Bench, the matter was remanded to the learned Single Judge for fresh decision. The appellants in the above-referred appeal were allowed to be impleaded as respondent Nos. 6 to 14 in the writ petition and the Writ Court, after hearing the counsel for the respective parties, has dismissed the writ petition vide the impugned judgment and order. 7. The operative portion of the impugned judgment and order is reproduced hereunder: “11. I have considered the submissions made at the Bar and have also gone through the materials available on record. 12. The facts and circumstances of the case, as notice herein above, are more or less admitted. It is the admitted position of fact that the petitioner had participated in the selection process initiated by the Director of Industries and Commerce by issuing the advertisement notice dated 30/11/1993 and his name appeared in Sl. No. 80 of the merit list published on 22/03/1995. Thereafter, in terms of the judgement and order dated 01/09/1997 as well as the judgement dated 18/11/99 passed by the Division Bench, a fresh advertisement dated 26/10/2002 was issued by the authorities, in response to which, the petitioner had submitted his candidature for appointment to the post of Extension Officer. The aforesaid advertisement notice was evidently issued on the premise that the earlier recruitment process conducted as per the advertisement notice dated 30/11/1993 was illegal as declared by this Court and, hence, advertisement notice was issued for conducting the recruitment process afresh for filling up the aforesaid posts of E.Os. Despite knowing fully well about the circumstance under which the advertisement notice dated 26/10/2002 was issued, the petitioner did not seek enforcement of his right, if any, under the select list dated 22/03/1995 at the relevant point of time although, he was aware of the fact that many candidates had in the meantime, been appointed as Extension Officers in terms of the said select list. It appears that the sole reason for which the writ petitioner is aggrieved is on account of Page No.# 8/11 the fact that as per the communication dated 29/09/2000, six candidates placed below the petitioner in the select list including the respondent nos. 6 to 10 were appointed merely because they had approached this Court by filing writ petitions, bringing the irregularities in the recruitment process to light. There can be no doubt about the fact that the reason cited by the department for appointing the six candidates cannot be held to be valid. However, the question that would arise is that, in the absence of any challenge made to the appointment orders, whether any relief can be granted to the petitioner in the facts and circumstances of the case against any of the private respondents. If not, can a direction be issued to appoint the writ petitioner against any of the posts of E.Os, by operating the select list dated 22/03/1995, which posts were filled up by appointing other selected candidates? The answer to the said question, in the opinion of this Court, has to be in the negative. 13. In the year 2006, the petitioner had filed WP(C) No. 4916/2006 but no direction was prayed so as to issue a Writ for issuing order of appointment in his favour. Rather, as would be apparent for the observations made above, the aforesaid writ petition proceeded on the basis that the earlier recruitment process was illegal and, therefore, an enquiry was required to be made into the circumstances under which the illegal appointees were allowed to continue in service. 14. As has also been mentioned herein above, by the order dated 28/04/2009, the learned Single Judge had dismissed the writ petition filed by the petitioner by holding that there was no merit in the case. The judgement and order dated 28/04/2009 dismissing the writ petition i.e. WP(C) 4916/2006 has attained finality in the eyes of law. Thereafter, the petitioner had once again approached this Court by filing the instant writ petition with the prayers as noted above. 15. A careful reading of the prayer portion of the present writ petition would go to show that the prayer of petitioner is clearly self contradictory. In clauses I, II and III of the prayer portion of the writ petition, the petitioner has projected that the recruitment process was vitiated due to illegalities and, therefore, he had sought an order from this Court to institute an enquiry by an independent investigating agency so as to fix responsibility on the persons who had allowed illegal appointees to continue in service as Extension Officers. On the other hand, in prayer No. IV, the petitioner has sought a direction for appointing him as Extension Officer on the basis of the same recruitment process, which has been projected in the writ petition to be illegal. Such contradictory prayer made in the writ petition, in the considered opinion of this Court, would be sufficient ground to deny him any relief in the facts and circumstances of the case. However, there are other circumstances, which would be equally significant so as to deny relief to the writ petitioner in this case. 16. In the case of State of U.P. Vs. Nawab Hussain reported in (1977) 2 SCC 806 relied upon by Mr. Kalita, it has been held that a plea which was well within the knowledge of a party to the proceeding and could well have been Page No.# 9/11 taken in the writ petition, cannot be raised in a subsequent proceeding as the same would be clearly barred by principles of res-judicata. 17. In the case of S.S. Balu and another Vs. State of Kerala and others reported in (2009) 2 SCC 479 also relied upon by Mr. Kalita, it has been held that it is trite law that where the writ petitioner approaches the Court after long delay, relief prayed for may be denied on the ground of delay and laches, irrespective of the fact that the petitioner is similarly situated as the other candidates, who had obtained benefit of a judgement. 18. In the present case, in order to issue a Writ of Mandamus directing the respondents to issue order of appointment in favour of the petitioner, the Court would necessarily have to come to a conclusion that the petitioner has a right to be appointed as a selected candidates against the vacant post of Extension Officer. Such a conclusion is not possible in this case firstly, on account of the fact that there is no such pleading in the writ petition. Secondly, the petitioner himself, having questioned the validity of the selection processing by seeking an enquiry into the matter, cannot now turn back and seek appointment against one of the posts sought to be filled up by the same recruitment process. 19. It is also to be noted herein that to entertain the plea of the petitioner for appointment in the post of Extension Officer, this Court would have to set aside the appointment of one of the selected candidates, who was below the petitioner in the select list. After the lapse of more than 28 years since their appointment, more particularly, when some of them have already expired or retired from service and are drawing pension, such an order would be highly inequitable. In exercise of discretionary jurisdiction, this Court would be reluctant in granting such relief merely because of the fact that some candidates below the petitioner in the select list had been appointed by ignoring his claim, more so, since there is no challenge to their appointment orders in the present case. 20. Finally, this Court has also taken note of the fact that the petitioner is presently aged about 52 years and he has surpassed the upper age limit of being appointed in a Government job. Therefore, even assuming that a case is made out on the ground of negative equality, no such right of the petitioner to be appointed can be enforced in this writ petition due to the reasons stated above. 21. For the reasons stated herein above, this Court is, therefore, of the opinion that there is no merit in the writ petition. The same is accordingly dismissed. There would be no order as to costs.” 8. Assailing the judgment and order impugned, learned counsel for the appellant has argued that the learned Single Judge ought to have granted the Page No.# 10/11 relief to the petitioner by directing the respondents to provide him appointment to the post of Extension Officer. 9. In support of his argument, learned counsel for the appellant has placed reliance on the decision of the Hon’ble Supreme Court rendered in the case of Union of India vs. Uzair Imran and others, reported in 2023 SCC OnLine SC 1308. Learned counsel for the appellant has also placed reliance on the decision of this Court rendered in the case of Khudeja Khatun Chaudhury vs. State of Assam, reported in 2023 SCC OnLine Gau 4138. 10. It is to be noticed that the Hon’ble Supreme Court granted relief to the appellant before it while exercising powers under Article 142 of the Constitution of India. Needless to say that this Court has no power to issue similar directions, while exercising the powers under Article 226 and 227 of the Constitution of India. The learned Single Judge of this Court in Khudeja Khatun Chaudhury (supra), without noticing the fact that the Hon’ble Supreme Court had passed the directions in the case of Union of India vs. Uzair Imran (supra) while exercising powers under Article 142 of the Constitution of India, has followed the said judgment, which, in our view, is not proper. In the present case, the learned Single Judge has exercised the discretionary jurisdiction in the facts and circumstances of the case which, in our view, is not liable to be interfered with in this intra-Court appeal. 11. Recently, the Hon’ble Supreme Court in Airport Authority of India vs. Pradip Kumar Banerjee reported in 2025 SCC OnLine SC 232 has held that it is settled that in an intra-Court appeal, the appellate Court must restrain itself and interference into the judgment passed by the learned Single Judge is permissible only if the judgment of the learned Single Judge is perverse or suffers from an error apparent in law. Page No.# 11/11 12. We are of the candid view that no such circumstance is available in the present case. Hence, no interference is called for. 13. Accordingly, this intra-Court appeal is dismissed. JUDGE CHIEF JUSTICE Comparing Assistant