Dismissed

Md. Habibur Rahman v. the State of Assam and 4 Ors.

Gauhati HC5 May 2022WP(C)/4835/2016

Case brief

AI extract

What is this about?

This court dismissed three writ petitions seeking reinstatement of cancelled government appointments. The petitioners were selected by a committee that included close relatives, violating natural justice. The court held the error was on the face of the record and applied the 'useless formality' exception, dismissing the petitions without prejudice or costs. (Note: Case text seems to have a contrad

What did the court decide?

No costs imposed. Writ petitions dismissed as the appointments were legally invalid due to inherent bias in the selection process, negating the need for a procedure to reinstate them.

Md. Habibur Rahman Vs the State of Assam and 4 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/14

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GAHC010021942016

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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)/4608/2016

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HASSINA DILRUBA

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W/O MD. AYUB ISLAM AND D/O JAINUL ABEDIN, R/O VILL- KADAMONI PATHAR, P.O. KADAMONI, P.S. BATADRAVA, DIST. NAGAON, -782122, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 2 ORS

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REP. BY THE PRINCIPAL SECRETARY, GOVT. OF ASSAM, DEPARTMENT OF SECONDARY EDUCATION, DISPUR, GUWAHATI, ASSAM, GUWAHATI -6.

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2:THE SECRETARY

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GOVT. OF ASSAM DEPARTMENT OF SECONDARY EDUCATION DISPUR GUWAHATI-6.

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3:THE DIRECTOR

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MADRASSA EDUCATION ASSAM KAHILIPARA GUWAHATI - 781019.

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4:KADAMONI SENIOIR MADRASSA P.O. KADAMONI NAGAON DIST. NAGAON ASSAM PIN - 782122 REP. BY ITS SUPERINTENDENT.

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5:THE MANAGING COMMITTEE KADAMONI SENIOR MADRASSA P.O. KADAMONI NAGAON DIST. NAGAON ASSAM PIN - 782122 REP. BY ITS SECRETARY. 6:MD. AMRAN HUSSAIN S/O MD. ALI AKBAR VILL- SONAIBERA P.O.- ALITANGANI P.S.- JIRIA DIST- NAGAON PIN-782124 ASSAM

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Advocate for the Petitioner : MR.K N CHOUDHURY

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Advocate for the Respondent :

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Linked Case : WP(C)/4838/2016

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MD. MUKTAR HUSSAIN S/O LT. JUBED ALI VILL- RAMPUR SATRA P.O. KADAMONI P.S. BATADRAVA DIST.NAGAON ASSAM VERSUS THE STATE OF ASSAM AND 2 ORS REP. BY THE PRINCIPAL SECRETARY GOVT. OF ASSAM DEPARTMENT OF SECONDARY EDUCATION DISPUR ASSAM GUWAHATI-6. 2:THE SECRETARY GOVT. OF ASSAM DEPARTMENT OF SECONDARY EDUCATION DISPUR ASSAM

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GUWAHATI-6. 3:THE DIRECTOR MADRASSA EDUCATION ASSAM KAHILIPARA GUWAHATI- 781019. 4:KADAMONI SENIOR MADRASA P.O. KADAMONI NAGAON DIST.NAGAON ASSAM -782122 REP. BY ITS SUPERINTENDENT. 5:THE MANAGING COMMITTEE KADAMONI SENIOR MADRASSA P.O. KADAMONI NAGAON DIST. NAGAON ASSAM-782122 REP. BY ITS SECRETARY. 6:MD. MOINUL HOQUE S/O LATE MD. ISRAFI VILL- RAMPUR SATRA P.O.- KADAMONI P.S.- JIRIA DIST- NAGAON PIN-782122 ASSAM -----------Advocate for : MS.A B KAYASTHA Advocate for : appearing for THE STATE OF ASSAM AND 2 ORS Linked Case : WP(C)/4835/2016

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MD. HABIBUR RAHMAN S/O ABDUL MALEQUE VILL. and P.O. DHUPAGURI P.S. DHING DIST- NAGAON DIST- NAGAON PIN-782122 ASSAM VERSUS

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THE STATE OF ASSAM AND 4 ORS REP. BY THE PRINCIPAL SECY. GOVT. OF ASSAM DEPTT. OF SECONDARY EDUCATION DISPUR GHY-6 ASSAM 2:THE SECRETARY GOVT. OF ASSAM DEPTT. OF SECONDARY EDUCATION DISPUR GHY-6 ASSAM 3:THE DIRECTOR MADRASSA EDUCATION ASSAM KAHILIPARA GHY-19 4:KADAMONI SENIOR MADRASSA P.O. KADAMONI NAGAON DIST- NAGAON ASSAM PIN-782122 REP. BY ITS SUPERINTENDENT 5:THE MANAGING COMMITTEE KADAMONI SENIOR MADRASSA P.O. KADAMONI NAGAON DIST- NAGAON ASSAM PIN-782122 REP. BY ITS SECRETARY 6:MD. KAZIM UDDIN S/O- MD. ALTAB UDDIN VILL- BHAKATGAON P.O.- SHILLONGOMI P.S.- NAGAON SADAR DIST- NAGAON ASSAM. -----------Advocate for : MR.R DUBEY Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER(ORAL)

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Date : 05-05-2022

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Heard Mr. R. Dubey, the learned counsel for the Petitioner and Mr.R.

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Majumdar, the learned Standing Counsel appearing on behalf of the Secondary Education Department.

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All the three writ petitions are taken up together taking into consideration that the Petitioners in all the three writ petitions have been challenged the termination by a common order dated 17/2/2016; the order dated 10/12/2015 passed by the Secretary to the Government of Assam, Education Department by which the Petitioners appointments were cancelled with immediate effect as well as also the order dated 22/7/2016, and the dismissal of the joint appeal filed by the Petitioners by the Director of Madrassa, Education, Assam.

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The facts of the instant case is that in the year 1995, the State Government enacted the Assam Madrassa Education (Provincialised) Act, 1995 (for short ‘the Act of 1995’) by which the services of teaching and non teaching staff of 74 Madrassas were provincialised, however, the property of the said Madrassa remained with the Managing Committee of the said concerned Madrassas. Thereupon the State Government took steps for filling up various posts of teaching and non teaching staff of 74 provincialised Madrassas under the Act of 1995 and for that purpose all required

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approval including approval from the Finance Department was taken. Initially there was approval of 323 posts which was later increased to 470 posts, which would be evident from the letter dated 19/4/2008 as well as from the list annexed with the letter dated 21/6/2012 issued by the Director of Madrassa Education, Assam.

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The Director of the Madrassa Education, Assam vide Office Letter dated 13/9/2012 communicated the Notification dated 12/9/2012 to all the institutions directing the concerned heads of the Institutions to issue advertisements as per the Notification and draft advertisement enclosed therewith and further instructed to complete the selection process.

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At this stage, it may be relevant herein to mention that in terms with the Notification dated 12/9/2012 the Government of Assam, Education Secondary Department in contemplation for quite some time, the decentralization of the process of selection of candidates for filling up of essential unreserved sanctioned vacant posts and procedure for selection and appointment of candidates in Senior/Title Madrassas and Arabic Colleges in the State had issued the said Notification. It was decided by the Government in exercise of the power conferred under the provision of Article 30(1) of

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the Constitution and Sub-Section (1) of Section 5 of the Act of 1995 to adopt a particular procedure stipulated in the notification for filling up of the unreserved vacant posts in Senior/Title Madrassas and Arabic Colleges except the posts of Principals/Superintendence and Grade –IV under the Director of Madrassas Education, Assam.

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In terms with the a communication dated 13/9/2012 advertisements were issued for filling up of 470 Nos. of vacant posts. The respective details stated in the writ petitions are not relevant but it is pertinent to mention that all the three petitioners participated in the selection process and their names were recommended by the Selection Committee of the Respondent No. 4 i.e. Kadamoni Senior Madrassa. Thereupon the Respondent No. 4 i.e. Kadamoni Senior Madrassa sent the results of selection to the Respondent No. 3 vide a Communication dated 17/5/2013 for appointment to the post of Assistant Teacher/Librarian/Junior Assistant of Kadamoni Senior Madrassa to the Commissioner and Secretary to the Government of Assam Education (S) Department. In the said Communication the Petitioner’s name in W.P.(C) No. 4608/2016 appears at Serial No. 5; the Petitioner’s name in W.P.(C) No. 4835/2016 appears at Serial No. 11 and the Petitioner’s name in W.P.(C) No. 4838/2016 appears at Serial No.12. The said approved list which was forwarded to the Respondent No. 2 was also published in the newspaper by the Respondent No. 3 and vide three different orders all dated 6/6/2013, the Petitioner in W.P.(C) No. 4608/2016 was appointed as the Assistant Teacher (FM) in Kadamoni Senior Madrassa; the Petitioner in W.P.(C) No. 4835/2016 was appointed to the post of Librarian in Kadamoni Senior Madrassa and the Petitioner in W.P.(C) No.4838/2016 was appointed as the Junior Assistant in the same Kadamoni Senior Madrassas.

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Thereupon various allegations were levelled as regards certain illegalities being committed in the selection procedure and in that regard, a PIL was also filed before

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this Court, which was registered and numbered as PIL No. 48/2013 challenging the said selection process. While the said PIL was pending, the Commissioner and Secretary to the Government Assam vide a W.T. Message dated 21/12/2013 informed to all the Principals/Superintendents of Arabic Colleges,Title Madrassas and Senior Madrassa (provincialised) that it has come to the notice of the Government that large scale anomalies have occurred in the selection process of teaching and non-teaching staff of the Provincialised Madrassa Educational Institution which was being held at the level of Superintendents of Madrassas and concerned Management Committees, wherein it has been alleged that illegal monetary transactions have also occurred in some institutions in giving viva-voce marks and thereby depriving the meritorious candidates/organizations/individuals on many occasions have not only approached the State Government but have also approached this Court by filing a PIL. Accordingly in the said W.T. Message, it was directed that the selection process currently under force at all level was hereby cancelled and the same shall be resumed when selection process is streamlined and guidelines prepared for the same.

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Thereupon the records reveal that an enquiry was conducted in respect to the appointments made in the provincialised Madrassas and in pursuance thereto a report was submitted on 1/9/2014. A perusal of the said enquiry report which Mr. R. Majumdar, the learned Standing Counsel for the Secondary Education Department has produced shows that while conducting the process of verification of all the seven Madrassa after issuing notice to the concerned Madrassas for attending the hearing, it

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was found that the academic marks secured by the candidates were correctly recorded

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in the original evaluation sheets prepared by the Selection Committees of the respective Madrassas. However, in the said enquiry report, it was also mentioned that the Petitioner in W.P.(C) No. 4608/2016 and the Petitioner in W.P.(c) No.4835/2016 were the daughter and brother of one Joynul Abedin respectively and the Petitioner in W.P.(c) No.4338/2016 was the brother of one Idris Ali Karmy. The said Joynul Abedin and Idris Ali Karmy were the Member and Member Secretary of the Selection Committee which had recommended the case of the Petitioners. In pursuance thereto, the order dated 10/12/2015 were issued by the Secretary to the Government of Assam, Secondary Education Department and thereupon a common order dated 2/1/2016 was issued by the Director, Madrassa Education whereby the appointments of the Petitioners herein were cancelled with immediate effect.

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All the Petitioners herein in the three petitions filed a common appeal to the Minister of Education, Assam challenging the order of cancellation of the appointment as arbitrary and in violation to the principles of natural justice. Upon the said appeal being filed the Director Madrassa Education, Assam issued an order dated 17/2/2016, whereby the order dated 2-1-2016 was kept in abeyance till the final order is issued after completion of the enquiry by the Joint Secretary to the Government of Assam, Secondary Education Department.

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Thereupon on 12/7/2016 the Secretary to the Government of Assam after taking into consideration the enquiry report submitted by the Joint Secretary to the

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Government of Assam and also after consultation with the judicial department decided

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to cancel the appointments of the Petitioners with immediate effect and it was mentioned that the Petitioners would be entitled to payment of salary till the date of issue of the order. Thereupon vide an order dated 22/7/2016 the Director Incharge Madrassa Education gave effect to the order dated 12/7/2016 stipulating therein that the orders of appointments dated 6/6/2013 issued in favour of the Petitioners were cancelled with immediate effect. The Petitioners being aggrieved by the cancellation of their appointments have approached this Court under Article 226 of the Constitution.

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Mr. R. Dubey, the learned counsel appearing on behalf of the Petitioners submits that with the issuance of the appointment orders dated 6/6/2013 a vested right had accrued upon the Petitioners and as such, the Respondent Authorities could not have cancelled the said appointment orders without affording an opportunity of hearing to the Petitioners. He further submits that the action of the Respondent Authorities were in violation to the principles of natural justice and consequently arbitrary and in violation to Article 14 of the Constitution of India.

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Mr. R. Majumder, the learned Standing Counsel appearing for the Secondary Education Department submits that the question of issuance of notice do not arise to the Petitioners in as much as the facts are not disputed that in the Selection Committee the father of the Petitioner in W.P.(C) No. 4608/2016 and the brother in W.P.(C) No. 4835/2016 was a Member and the brother of the Petitioner in W.P.(C) No. 4838/2016 was the Member Secretary of the said Selection Committee and under such

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circumstances the recommendation so made was in violation to the principles of natural justice. He further submits that the said facts are duly admitted and on the basis thereof if only one conclusion is possible the useless formality theory which is an exception to the principles of natural justice duly comes into play.

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I have heard the learned counsels for the parties and given my anxious consideration to the matter. There is no dispute that the father and the brother of the Petitioner In W.P.(C) No. 4608/2016 and W.P.(C) No. 4835/2016 one Mr. Joynul Abedin who was the member of the Selection Committee. There is also no dispute that the brother of the Petitioner In W.P.(C) No. 4838/2016, one Mr. Idris Ali Karmy who was the Member Secretary of the said Selection Committee. Consequently, the selection and the recommendation so made are on the face of it in violation to the principles of natural justice. Now in this regard, taking into consideration the submissions made by the learned counsel for the Petitioners, it is relevant to take note of the judgment of the Supreme court rendered in the case of Aligarh Muslim University and Ors. Vs. Monsur Ali Khan reported in ( 2000 ) 7 SCC 529 . In the said judgment the Supreme Court observed that there are two exceptions to the principles of natural justice, namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation to the principles of natural justice. The second exception is that prejudice must also be proved. Paragraph No. 21

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to 26 being relevant are quoted herein below : -

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“ 21. As pointed recently in M.C. Mehta v. Union of India there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P.2 it is not necessary to quash the order merely because of violation of principles of natural justice.

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22. In M.C. Mehta1 it was pointed out that at one time, it was held in Ridge v. Baldwin3 that breach of principles of natural justice was in itself treated as prejudice and that no other “de facto” prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan4 Chinnappa Reddy, J. followed Ridge v. Baldwin3 and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.

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23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.

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24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade’s Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31)

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“ It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. … There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.”

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Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma6. In that case, the principle of “prejudice” has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.7

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25. The “useless formality” theory, it must be noted, is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta1 referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

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26. It will be sufficient, for the purpose of the case of Mr Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan4, namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr Mansoor Ali Khan though notice has not been issued.

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In the backdrop of the above enunciation of the law by the Supreme Court if

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this Court takes into account the facts involved in the instant case, it would be seen

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that the Selection Committee which recommended the Petitioners consisted of the Member and Member Secretary who were close relatives of the Petitioners and as such the said recommendations made by the Selection Committee were on the face of it illegal insofar as the Petitioners are concerned. Issuance of a notice would not change the facts and as such, the same could come within one of the exceptions to the requirement of the principles of natural justice. Now let this Court take into

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consideration, the question of prejudice. The facts would show that after the initial order which was passed on 10/12/2015 and 2/1/2016, the Petitioners had submitted a joint appeal and in pursuance to the appeal again an enquiry was conducted through the Joint Secretary to the Government of Assam and on the basis thereof a report has been submitted to the effect that the Member and the Member Secretary were close relatives to the Petitioners and as such the question of prejudice also does not arise, as in pursuance to the appeal a fresh enquiry was again conducted in that regard.

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Consequently this Court therefore do not find any merit in all the three writ

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petitions for which the writ petitions dismissed. However, in the facts of the case, no costs is imposed.

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JUDGE

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Comparing Assistant

Md. Habibur Rahman v. the State of Assam and 4 Ors.

Case brief

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What did the court decide?

Md. Habibur Rahman v. the State of Assam and 4 Ors.

Case brief

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