WP(C) 5666/2000 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI By this common judgment and order, I propose to dispose of both these writ petit ions inasmuch as these writ petitions involve many undisputed common facts, whic h the contesting parties rely upon, and the questions of law, raised in the two writ petitions, are substantially common in nature and, further, on the request of the learned counsel for the parties concerned, both the writ petitions have b een heard together, because the decision, in any of the two writ petitions, woul d have a bearing on the outcome of the other writ petition. BACKGROUND FACTS : 2. Pursuant to a Combined Administrative Examination, conducted by the Assa m Public Service Commission (in short, ’APSC’), for filling up the posts of Clas s-I and Class-II ACS officers, a select list was published on 26-07-1983. The AC S Class-II posts include, amongst others, Deputy Superintendent of Police (in sh ort, ’DSP’) and District Transport Officer (in short, ’DTO’). The merit position of the contesting parties were as under: Bipulananda Pathak (petitioner in WP(C) No. 7864 of 2003) was placed at Sl. No. 26, JC Handique at Sl. No. 46 (respondent No. 3 in WP(C) No. 7864/2003 a nd respondent No. 4 in WP(C) No. 5666/2000) and Kushal Chandra Hazarika (petitio ner in WP(C) No. 5666/2000) at Sl. No. 176. Thus, in terms of the merit position , Bipulananda Pathak was ahead of JC Handique, which was followed by Kushal Chan dra Hazarika. 3. From the said select list, JC Handique was appointed, on 25-01-1984, as Executive Magistrate. At the time of his selection and appointment, as Executive Magistrate, JC Handique had been functioning as regularly appointed Agriculture Extension Officer. JC Handique, therefore, on being released, on 10-02-1994, fr om the post of Agriculture Extension Officer, Government of Assam, joined, at Te zpur, on 13-02-1984, as Executive Magistrate. 4. After about 3 ‰ months of the appointment of JC Handique, a letter was, on 11-05-1984, issued by the Department of Home (A), Government of Assam, inform ing, amongst others, Bipulananda Pathak that the Government had decided to appoi nt him (Bipulananda Pathak) to the Assam Police Service, as probationary DSP, an d directed him to keep himself in readiness to report to the Assam Police Traini ng College, Dergaon, on receipt of information from the Director General of Poli ce, Assam. The letter, dated 11-05-1984, however, also mentioned that it was not known to the Department of Home, Government of Assam, if Bipulananda Pathak and others (in whose favour the letter, dated 11-05-1984, aforementioned was being issued), had appeared before the Medical Board for their examination to get thei r fitness for service determined. The letter, dated 11-05-1984, aforementioned m ade it clear that if they were not medically found fit, they would not be allowe d to join the Assam Police Training College, Dergaon. The letter, dated 11-05-19 84, further stated that the appointments would be formally notified after the pe rsons, who had been decided to be appointed to the Assam Police Service, on prob ationary basis, as DSP, join the Assam Police Training College and in case, any of them was unwilling to accept the offer, he must inform the Department concern ed accordingly within 7 days from the date of receipt of the said letter, dated 11-05-1984, aforementioned. 5. The letter, dated 11-05-1984, was followed by a WT Message, dated 13-06- 1984, issued by the Personal (A) Department, Government of Assam, addressed to B ipulananda Pathak, C/O Principal, Assam Police Training College, Dergaon, intima ting the latter, with reference to his representation, dated 30-05-1984, that he (Bipulananda Pathak) may be posted, subject to his release by the Home Departme nt, as DTO and he may join the post of DTO on receipt of posting order from the Transport Department. By the WT Message, dated 13-06-1984, aforementioned, the C ommissioner and Secretary to the Government of Assam, Home Department, was also requested to release Bipulananda Pathak so as to enable him to join as DTO, when Bipulananda Pathak is appointed by the Transport Department. A copy of WT Messa ge given aforementioned was also endorsed to the Commissioner and Secretary to t he Government of Assam, Transport Department. 6. Though the WT Message, dated 13-06-1984, aforementioned, indicated that the Government was willing to appoint Bipulananda Pathak as DTO subject to his r elease from the Home Department and Bipulananda Pathak could join the post on re ceipt of posting order from the Transport Department, a notification was issued, on 20-06-1984, by the Home Department, Personal (A) Branch, Government of Assam , appointing as many as 12 persons to the Assam Police Service, on probation, wi th effect from the date of joining as shown against each of them and they were d irected to be deputed to the Assam Police Training College, Dergaon, to undergo a course of training for a period of 12 months making it clear that their inter se seniority would be determined later on. In this notification, dated 20-06-198 4, name of Bipulananda Pathak appeared at Sl. No. 11 and his date of joining was shown as 01-06-1984. In fact, all the appointees, according to the notification , dated 20-06-1984, had joined the Assam Police Training College on 01-06-1984 ( FN). Thus, before Bipulananda Pathak could be appointed to the ’cadre’ of DTO, h e became, by virtue of his appointment by the notification, dated 20-06-1984, a member of the ’cadre’ of the Assam Police Service, in the grade of DSP, on proba tionary basis, with effect from 01-06-1984. 7. Close on the heels of the notification, dated 20-06-1984, aforementioned , issued by the Commissioner and Secretary to the Government of Assam, Home Depa rtment, another notification was published, on 26-06-1984, by the Government of Assam, Home Department, Personal (A) Branch, whereby Bipulananda Pathak, the the n probationary DSP, undergoing training in Assam Police Training College, Dergao n, was released from the Assam Police Service, with effect from the date his han ding over charge for appointment as DTO, making thereby clear that Bipulananda P athak could be considered released with effect from the moment he hands over cha rge. On the following day, i.e., 27-06-1984, a notification was published by the Government of Assam, Transport and Tourism Department, appointing Bipulananda P athak as DTO at the Headquarter, whereupon Bipulananda Pathak claims to have han ded over, on 02-07-1984, the charge, as DSP probationary and assumed the charge of office of DTO on 23.06.1984. 8. Before, however, the notification, dated 27-06-1984, aforementioned was issued by Transport and Tourism Department, Government of Assam, appointing Bipu lananda Pathak as DTO, Kushal Chandra Hazarika (i.e., the petitioner in WP(C) No . 5666/2000), was already appointed by the said Department, on 23-06-1984, as th e DTO and he accordingly joined the post on 23-06-1984 itself. 9. On 20-04-1984, a WT Message was issued by Personal (A) Department, Gover nment of Assam, informing JC Handique that he was likely to be considered for ap pointment to the post of DTO and Government wants his willingness to accept the post of DTO. JC Handique, having intimated his willingness to join the post as D TO, a notification was issued, on 30-05-1985, by the Deputy Secretary to the Gov ernment of Assam, Transport, Department, appointing him as DTO. On 29-06-1985, J C Handique was released from the post of the Executive Magistrate, with effect f rom 01-07-1985, to enable him to join as DTO and pursuant thereto, JC Handique j oined, as DTO, on the same day, i.e., on 01-07-1985. By subsequent letter, dated 24-07-1984, Government of Assam, while fixing JC Handique’s pay, as an officer of ACS-II service, provided pay protection of the last pay drawn by JC Handique, as Agriculture Extension Officer. 10. A provisional gradation list was, then, published on 31-07-1989, wherein the name of Kushal Ch. Hazarika figured at Sl. No. 9, whereas the names of Bipu lananda Pathak and JC Handique appeared at Sl. No, 14 and 11 respectively, 11. A provisional gradation list was published on 02-06-1994, wherein the na me of JC Handique appeared below Bipulananda Pathak. JC Handique submitted his r epresentation against the said provisional gradation list by contending to the e ffect that his tenure as Agriculture Extension Officer as well as Executive Magi strate ought to have been counted and he ought to have been, consequently, treat ed senior to Bipulananda Pathak by taking into account his previous service rend ered in the post of Agriculture Extension Officer and the period of service rend ered as Executive Magistrate, because there was no break in his service. 12. As JC Handique’s objection, so raised, did not yield any favourable resu lt, JC Handique filed an appeal under Section 4 of the Assam Administrative Trib unal Act, 1977, claiming relief of declaration that he ought to have been treate d as senior, in the ’cadre’ of DTO, to Bipulananda Pathak. This appeal gave rise to Case No. 15ATA/1995. By order, dated 14-09-1995, the Tribunal dismissed the said application. JC Handique challenged the order, dated 14-09-1995, whereby th e learned Tribunal had rejected his claim for seniority over Bipulananda Pathak, in the ’cadre’ of DTO, by filing a writ petition, which gave rise to Civil Rule No. 5476/1995. An interim order was, initially, passed, on 20-12-1995, in Civil Rule No. 5476/1995, preventing promotion on the basis of the said provisional g radation list, dated 02-06-1994. This writ petition was, eventually, dismissed, on 18-07-2001, for non-prosecution. Thus, the order, dated 14-09-2005, passed by the learned Tribunal dismissing JC Handique’s appeal against the provisional gr adation list, wherein Bipulananda Pathak had figured as senior to JC Handique, r emained undisturbed and attained finality. 13. Thereafter, a show cause notice was issued, on 29-03-1997, to Bipulanand a Pathak on various charges and pursuant thereto, a departmental proceeding was initiated against him. While the departmental proceeding was pending, a provisio nal gradation list was published on 12-08-1999, wherein Bipulananda Pathak was s hown at Sl. No. 7, JC Handique at Sl. No. 8 and KC Hazarika was place at Sl. No. 9 thereof. 14. Yet another gradation list was circulated on 27-08-1999, wherein inter s e seniority position, as in the gradation list, dated 12-08-1999, was maintained . 15. Notwithstanding the fact that his earlier claim for seniority over Bipul ananda Pathak had been rejected by the learned Assam Administrative Tribunal, JC Handique filed another objection, on 22-09-1999, against the said provisional g radation list, dated 27-08-1999. During the pendency of the objection, so raised , by JC Handique, selection for the post of Assistant Commissioner, Transport, w hich is a promotional post with the post of DTO as the feeder post, was held on 30-11-1999. Following the selection, so held, Bipulananda Pathak was placed at S l. No. 2. However, selection of Bipulananda Pathak was kept in a sealed cover du e to the pendency of the disciplinary proceeding drawn against him. In the meanw hile, the candidate at Sl. No. 1 retired on superannuation. The other post of As sistant Commissioner, Transport, fell vacant due to promotion of its earlier inc umbent to the post of Deputy Commissioner, Transport. However, there was no sele cted candidate available to be promoted to the post of the Deputy Commissioner, Transport, because of the fact that there was no regularly appointed Assistant C ommissioner, Transport. In these circumstances, orders were made for holding fre sh selection for filling up the vacancies in the posts of Assistant Commissioner , Transport, as well as Deputy Commissioner, Transport. 16. In the meanwhile, however, Bipulananda Pathak filed a writ petition agai nst the process of fresh selection so initiated and also against the disciplinar y proceeding, which had been drawn against him on the strength of the show cause notice, dated 29-03-1997, aforementioned. The writ petition gave rise to WP(C) No. 1466 of 2000. The Selection Committee was, then, constituted, on 06-04-2000, for holding fresh selection. As against constitution of the Selection Committee , Bipulananda Pathak filed another writ petition, which gave rise to WP(C) No. 1 905 of 2000. Both these writ petitions, namely, WP(C) Nos. 1466/2000 and 1905 of 2000, were allowed, on11-05-2001, in favour of Bipulananda Pathak. Against the order, dated 11-05-2001, aforementioned, passed in the said two writ petitions, JC Handique filed Writ Appeal No. 205 of 2001; but this writ appeal was dismisse d on 24-06-2009. Against the dismissal of the appeal, JC Handique filed a Specia l Leave Petition, which gave rise to SLP (C) No. 12258/2001. By order, dated 12- 09-2003, special leave was granted; but this special leave petition was, eventua lly, dismissed. 17. JC Handique, once again, filed a writ petition, which gave rise to WP(C) No. 660 of 2003. In this writ petition, no reference was made as regards dismis sal of his earlier appeal, made to the learned Assam Administrative Tribunal, cl aiming seniority over Bipulananda Pathak. This writ petition was disposed of, on 28-01-2003, with a direction to publish the final gradation list within a perio d of three months after considering the representations submitted by him (JC Han dique). Bipulananda Pathak too filed a writ petition being WP(C) No. 3345 of 200 3 raising, inter alia, dispute as regards seniority. This writ petition too was disposed of, on 13-05-2003, with a direction to the Principal Secretary, Transpo rt Department, to consider the representations of JC Handique and Bipulananda Pa thak. The Principal Secretary, Department of Transport, Government of Assam, pas sed an order, on 09-09-2003, declaring JC Handique senior to Bipulananda Pathak on the ground that while JC Handique joined as Executive Magistrate on 13-02-198 4, Bipulananda Pathak joined, as probationary DSP, on 01-06-1984, and there was, thus, a difference of more than three months between the dates of appointment o f the two officers in two different posts based on one competitive list and sinc e the date of appointment of JC Handique as Executive Magistrate is earlier than Bipulananda Pathak’s appointment as DSP and the Government had protected the pa y of JC Handique, while appointing him to the ’cadre’ of DTO, JC Handique is sen ior to Bipulananda Pathak. 18. Before, however, the order, dated 09-09-2003, aforementioned was passed by the Principal Secretary, to the Government of Assam, Transport Department, KC Hazarika filed a writ petition claiming seniority over both Bipulananda Pathak and also JC Handique. The writ petition has given rise to WP(C) No. 5666/2000. 19. Aggrieved by the order, dated 09-09-2003, whereby JC Handique has been d eclared senior to Bipulananda Pathak, Bipulananda Pathak too has filed a writ pe tition, which has given rise to WP(C) No. 7864 of 2003, putting to challenge the order, dated 09-09-2003, aforementioned. 20. By this common judgment and order, I propose to dispose of, as already i ndicated above, both the writ petitions, namely, WP(C) No.5666/2000 and WP(C) No .7864/2003. 21. I have heard Mr. MK Choudhury, learned Senior counsel, appearing for KC Hazarika, and Mr. N Dutta, learned Senior counsel, for JC Handique. I have also heard Mr. DK Mishra, learned Senior counsel, for Bipulananda Pathak, and Mr. B.J . Talukdar, learned counsel, appearing on behalf of the State respondents. 22. Shocking though it may sound, I may pause here to point out that the ent ire records, relating to the selection process, which forms the subject-matter o f the present writ petitions, are, according to the State Government, untraceabl e. These writ petitions, therefore, need to be decided on the basis of the plead ings of the parties and the materials on record. It may, however, be clarified that the pleadings and the relevant records are adequate enough to reach effecti ve decision in these two intensely contested writ petitions. The case of Bipulananda Pathak vis-à-vis the case of J. C. Handique: 23. Before entering into the discussion of the merit of the case of Kushal C handra Hazarika [petitioner in WP(C) No. 5666/2000] vis-à-vis the cases of the o ther two concerned parties, namely, Bipulananda Pathak and J. C. Handique, not o nly desirable but more appropriate it is that the dispute over the inter se seni ority between Bipulananda Pathak and J. C. Handique be discussed and decided fir st. 24. While considering the respective cases of Bipulananda Pathak [petitioner in WP(C) 7864/2003] and J. C. Handique [respondent No. 3 in WP(C) No. 7864/2003 and respondent No. 4 in WP(C) No. 5666/2000), it is of utmost importance to not e that, on publication of a provisional gradation list, on 12.08.1999, wherein t he name of J. C. Handique appeared below the name of Bipulananda Pathak, J. C. H andique submitted a representation against the said provisional gradation list, as indicated above, by contending to the effect that his tenure as Agriculture E xtension Officer as well as Executive Magistrate ought to have been counted and he ought to have been, consequently, treated senior to Bipulananda Pathak by tak ing into account his previous service rendered in the post of Agriculture Extens ion Officer and also the period of service rendered as Executive Magistrate, bec ause there was no break in his service. J. C. Handique’s said representation, ob jecting to the said provisional gradation list, having yielded no favourable res ult, he filed an appeal, under Section 4 of the Assam Administrative Tribunal Ac t, 1977, claiming relief of declaration that in the ’cadre’ of District Transpor t Officer (hereinafter referred to as ’DTO’), he ought to have been treated as s enior to Bipulananda Pathak. This appeal gave rise to Case No. 15 ATA/1995. By its order, dated 14.09.1995, the learned Assam Administrative Tribunal (hereina fter referred to as ’the Tribunal’), which had the jurisdiction to decide the qu estion of inter se seniority between the two parties aforementioned, specificall y dealt with the appellant’s (J.C. Handique’s) contention, in the said appeal, t hat while determining inter se seniority, the period the service, rendered by hi m (the appellant), in the post of Agriculture Extension Officer and also in the post of Executive Magistrate, ought to have been counted. Having, thus, consider ed J.C. Handique’s grievances, the learned Tribunal concluded and held that when a person, having been appointed, in a department, on direct recruitment, goes a nd joins an identical post, on transfer, in a new department, he cannot claim se niority in the new department on the basis of his previous service rendered and, hence, the appellant, J. C. Handique, cannot claim seniority over Bipulananda P athak on the basis of the service, which he had rendered in the post of Agricult ure Extension Officer. As regards the service, which the appellant, J. C. Handi que, had rendered in the post of Executive Magistrate, the learned Tribunal poin ted out that both Bipulananda Pathak and J. C. Handique had been appointed out o f the same merit list and, since J. C. Handique’s position in the merit list was 46th, whereas Bipulananda Pathak’s position in the merit list was 26th, J. C. H andique cannot claim seniority over Bipulananda Pathak. The correctness of the order of the learned Tribunal and the legality thereof were put to challenge by J. C. Handique by filing a writ petition, which gave rise to Civil Rule No. 5476 /1995. This writ petition, as indicated above, was, eventually, dismissed on 18 .07.2001, for non-prosecution. 25. Thus, the order, dated 14.09.1995, passed by the learned Tribunal, dismi ssing J. C. Handique’s appeal against the provisional gradation list, wherein Bi pulananda Pathak had figured as senior to J. C. Handique, remained undisturbed a nd attained, thus, finality. Hence, the question as to who, between the two, na mely, J. C. Handique and Bipulananda Pathak, was senior, could not have been dis turbed/reconsidered in any subsequent proceeding so long as the dismissal order of the appeal aforementioned remained intact and in force. 26. Notwithstanding the above-stated position of law, J. C. Handique, once a gain, filed a writ petition, which gave rise to WP(C) 660/2003. In this writ pe tition, however, no reference was made as regards the dismissal of his earlier a ppeal, which had been filed by him claiming seniority over Bipulananda Pathak. T hus, this writ petition [WP(C) 660/2003] ex facie suffered from the vires of sup pression of material facts and, consequently, any judicial order, obtained in th e said writ petition, namely, WP(C) 660/2003, cannot but be regarded as an order obtained by, if not committing fraud, misleading the Court. Writ jurisdiction i s substantially equitable in nature and a person, who attempts to invoke the ext ra-ordinary jurisdiction of the High Court, under Article 226 of the Constitutio n of India, by suppressing material facts, must be treated to have approached th e writ Court with unclean hands. 27. Be that as it may, the writ petition, namely, WP(C) 660/2003, did not di sturb the position of seniority between the parties concerned, as had been decid ed by the learned Tribunal, inasmuch as the writ petition was disposed of, on 28 .01.2003, with direction to the respondents (Government) to publish final gradat ion list within a period of three months after consideration of the representati on submitted by J. C. Handique. The said direction of the Court, which was give n, on 28.01.2003, in WP(C) 660/2003, cannot be treated to have annulled or super seded the findings of the learned Tribunal with regard to the inter se seniority between the two contesting parties, namely, J. C. Handique and Bipulananda Path ak, which had attained finality by operation of law. 28. Obviously, therefore, the Government could not have disposed of the repr esentation contrary to the findings of the learned Tribunal inasmuch as the deci sion of the Tribunal, according to the provisions, embodied under Section 9 of t he Assam Administrative Tribunal Act, 1977, shall be treated as final. The auth orities concerned, therefore, could not have but dismissed J. C. Handique’s repr esentation claiming seniority over Bipulananda Pathak. Similarly, though Bipula nanda Pathak too filed a writ petition (which gave rise to WP(C) 3345/2003) rais ing, inter alia, dispute as regards seniority and though this writ petition too was disposed of, on 13.05.2003, with a direction to the Principal Secretary, Tra nsport Department, to consider the representations of J. C. Handique and Bipulan anda Pathak, the fact remains that even the order, dated 13.05.2003, (whereby th is Court disposed of WP(C) 3345/2003, with direction to the Principal Secretary, Transport Department, Government of Assam, to consider the representation of J. C. Handique and Bipulananda Pathak), could not have been taken to have, and c annot be taken to have, annulled or superseded the order, dated 14.09.1995, passed by the learned Tribunal, rejecting J. C. Handique’s claim of seniority over Bipulananda Pathak. 29. When direction had been given by the High Court, in WP(C) 660/2003 as we ll WP(C) 3345/2003, to the Principal Secretary, Transport Department, to dispose of the representations, the Principal Secretary ought to have disposed of/dismi ssed the representations by clearly indicating therein that the question of inte r se seniority, between the parties concerned, had already been decided by the l earned Assam Administrative Tribunal and that in the face of such an order, whic h had, in the light of the provisions of Section 9 of the Assam Administrative T ribunal Act, 1977, attained finality by operation of law, Bipulananda Pathak can not but be treated as senior to J. C. Handique. The Principal Secretary, Transpo rt Department, Govt. of Assam, had no authority to supersede or set at naught th e order of the learned Tribunal, which had already decided the controversy with regard to seniority between Bipulananda Pathak and J. C. Handique and which orde r had attained finality by virtue of Section 9 of the Assam Administrative Tribu nal Act, 1977. 30. The Principal Secretary, however, took a strange ground in holding J. C. Handique senior to