Dismissed

Imran Hussain Barbhuiyan v. the State of Assam and 4 Ors.

Gauhati HC4 Oct 2019WP(C)/7173/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging non-selection of a constable candidate. Due to substantial delay and laches, the petitioner was deemed a fence-sitter taking unfair advantage of another batch's litigation. The court declined interference as the petitioner's representation had already been dismissed by a Division Bench.

What the court decided

AI extract

Imran Hussain Barbhuiyan Vs the State of Assam and 4… — Service and Employment | Gauhati HC (2019)

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GAHC010230892019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 7173/2019

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1:IMRAN HUSSAIN BARBHUIYAN S/O- AZIZUR RAHMAN BHUYIAN, R/O- VILL- HATIRKHAR, P.O. SRIKUNA, P.S. SILCHAR, DIST- CACHAR, ASSAM, PIN- 788003

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT. DISPUR, GHY-06

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI B.K.KAKATI ROAD GHY-07

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3:THE ADDL. DIRECTOR GENERAL OF POLICE (TAP) ASSAM ULUBARI B.K.KAKATI ROAD GHY-07

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4:THE INSPECTOR GENERAL OF POLICE (ADMN.) ASSAM ULUBARI B.K.KAKATI ROAD GHY-07 5:THE SUPERINTENDENT OF POLICE CACHAR SILCAR

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DIST- CACHAR ASSA

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Advocate for the Petitioner : MR H R A CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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THE HON’BLE MR JUSTICE PRASANTA KUMAR DEKA O R D E R

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04. 10. 2019

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Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. M A Choudhury, learned counsel for the petitioner and Mr. D Nath, learned Additional Senior Govt. Advocate for the State respondents.

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The petitioner is the candidate in a recruitment process initiated on the basis of an advertisement issued in the month of February, 2009 by the Additional Director General of Police, Assam Police (TAP), respondent No. 3 for recruitment of AB constables district wise. The petitioner who hails from Cachar district offered his candidature against the said advertisement. After due verification of the applications along with other necessary documents, the petitioner’s testimonials were found correct in all respect. The petitioner along with other candidates had undergone physical measurement and fitness test in the month of August, September and October, 2009. The petitioner’s name was selected to appear in the oral interview/ viva voce comprising 50 marks and the qualifying mark was 25. The petitioner faced the oral interview/ viva voce and when the respondent authority published the select list, the name of the petitioner did not find place therein. The petitioner preferred WP(C) No. 3033/2010 which was dismissed on 06.08.2016. Writ appeal was also dismissed. Review petition filed was also dismissed on 18.12.2018. Alleging anomalies in the advertise published in the month of February, 2009 and that too after appearing in the said selection process on the basis of the advertisement, the petitioner filed this writ petition citing that in WP(C) No. 2725/2010 (Palash Phukan and 166 others Vs State of Assam and others) this Hon’ble court made roving enquiry regarding the contention of the petitioner and finally vide order dated 22.02.2019 disposed of the said writ petition with an observation that

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without interfering with the select list prepared by the authority and directed the respondent authority to consider the case of the petitioners therein in WP(C) No. 2725/2010 for appointment in the post of AB constables or any other equivalent posts against current and next available vacancies in a phased manner. Mr. Choudhury relying the said decision passed in WP(C) No. 2725/2010 sought for interference in the selection process for the Cachar district also citing various anomalies in the selection process. Mr. Nath on the other hand vehemently objected to the said prayer made by the learned counsel for the petitioner on the ground that there is a substantial delay on the part of the petitioner in preferring the writ petition and in a similar petition learned Single Judge of this Hon’ble Court was satisfied to dismiss WP(C) No. 4921/2019 on 05.08.2019 for the following grounds:

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“As would be evident from the narration of facts as above, the employment notice was issued i.e., results were declared on 20.2.2009. A group of petitioners from Sivasagar district assailed their non-selection in the year 2010 by filing WP(C) No. 2725/2010. After a long legal battle, they have got the fruits of their litigation by way of the judgment and order dated 22.02.2019.

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Petitioners had participated in the same recruitment process culminating in the employment notice dated 20.02.2009. For more than 10 years, they did not raise any objection or any grievance regarding their non-selection. Only after the judgment and order dated 22.02.2019, they filed the representation purportedly on 18.03.2019 with no acknowledgment of receipt. It is evident that petitioners had no grievance as to their non-selection for more than 10 years. At this distant point of time, petitioners cannot be permitted to rake up a dead issue in so far they are considered and seek advantage of the fruits of litigation of another batch of petitioners who had raised their grievance at the appropriate time. Moreover, there is no averment worth considering either in the writ petition or in the additional-affidavit explaining the delay in raising their grievance.

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In such circumstances, court is not inclined to entertain the writ petition which has been filed so belatedly. Consequently, court finds no merit in the writ petition, which is accordingly dismissed. ”

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If the factual matrix are considered in the present writ petition I do not find any difference in the conduct of the present petitioner with the one in WP(C) No. 4921/2019. The claim of the petitioner cannot be entertained at this belated stage wherein their roles were nothing but fence sitters. Accordingly, for the delay and laches the petitioner are not entitled for any reliefs as there are no explanation in the writ petition. Even if there be any

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explanation the same cannot be considered inasmuch as the petitioner allowed his rights to be taken away by the act of acquiescence on his part which forms the part of laches on the part of the petitioner. The laches is apparent and the delay factor cannot be waived. Mr. Choudhury the learned senior counsel submits that the petitioner filed a representation dated 22.07.2019 before the Inspector General of Police, (Admin) Assam that may be directed to be disposed of. The petitioner no doubt is pursuing the matter but his writ petition was dismissed which was upheld by the Hon’ble Division Bench of this court and under such circumstances the representation of the petitioner cannot be directed to be disposed of in the light of the finding in WP(C) No. 2725/2010 which would amount to interference of the findings of this Hon’ble Court in WP(C) No. 3033/2010, finding of which was upheld by the Hon’ble Division Bench of this court.

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Accordingly, this writ petition stands dismissed at the motion stage.

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JUDGE

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Comparing Assistant

Imran Hussain Barbhuiyan v. the State of Assam and 4 Ors.

Case brief

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Imran Hussain Barbhuiyan v. the State of Assam and 4 Ors.

Case brief

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