Kandarpa Sarma Vs.
Rajeswar Das & Ors.
O R D E R
1.
Leave
granted.
2.
This
appeal is directed against the judgment and order passed by the Gauhati High Court
on 17.11.2006 allowing the appeal filed by the respondent no. 1 whereby the learned
Division Bench set aside the judgment and order passed by the learned Single Judge
allowing the writ petition filed by the appellant herein.
3.
The
respondent State issued an advertisement for filling up the post of Gaonburah
of Tikka Garia Gaon, Mouza: Sariha in the District of Barpeta. The appellant as
also respondent no. 1 along with others submitted their candidature as against the
aforesaid advertisement which was issued on 11.11.1998 by the Sub-Divisional
Office, Balaji Sub Division. After submission of the applications by the various
candidates, the circle officer submitted a report along with other records regarding
suitability of the candidates which was considered by the Selection Committee consisting
of the Sub-Divisional Officer Balaji Sub Division,, the Circle Officer and the Election
Officer. The said selection committee considered the records and found the appellant
as the most suitable candidate and appointed him as the Gaonburah.
4.
Being
aggrieved by the said order of appointment issued by the Sub-Divisional
Officer, respondent no. 1 filed an appeal in terms of paragraph 162(B) of the
Executive Instructions which was entertained. The aforesaid appeal was heard by
the Additional Deputy Commissioner and upon consideration he set aside the
order of appointment of the appellant and also issued a direction to appoint respondent
no. 1 as the Gaonburah in place of the appellant. The said decision of the First
Appellate Authority was challenged by the appellant herein in Second Appeal as provided
for under paragraph 162(C) of the Executive Instructions.
5.
The
aforesaid Second Appeal was dismissed consequent upon which the appellant
herein filed a Writ Petition before the High Court which was registered as Writ
Petition (C ) No. 8019/2001. The learned Single Judge by a judgment and order
dated 11.5.2004 allowed the writ petition and directed that the appellant be allowed
to continue as Gaonburah of Tikka Garia Gaon, Mouza: Sariha in the District of
Barpeta.
6.
Being
aggrieved by the aforesaid judgment and order passed by the learned Single Judge,
respondent no. 1 filed an appeal before the Division Bench of the Gauhati High
Court which was registered as Writ Appeal No. 228 of 2004. The Division Bench, after
hearing the counsel appearing for the parties on 15.11.2006 allowed the appeal by
its judgment and order dated 17.11.2006 whereby the Division Bench not only set
aside the judgment and order of the learned Single Judge but it also restored the
order passed by the Second Appellate Authority directing appointment of respondent
no. 1 as Gaonburah. By virtue of the aforesaid order, respondent no. 1 assumed
charge of the office and he, as of today, continues to hold the post of Gaonburah.
7.
Being
aggrieved by the aforesaid order passed by the Division Bench, the appellant
herein filed the present appeal on which we have heard the learned counsel appearing
for the parties.
8.
Mr.
P.K. Goswami, learned senior counsel appearing for the appellant has submitted before
us that the Division Bench committed manifest error in holding that the
expression 'family' used in the Executive Instructions should receive an extended
meaning so as to include 'nephew' within the expression 'family'. He has also submitted
before us that the selection committee after taking into consideration all the
factors found the appellant as the best candidate for the post and the said decision
being based on records should not have been interfered with by the Appellate
Authority as also by the Division Bench of the High Court on extraneous
consideration and also by wrongly reading the documents particularly when the
learned Single Judge has upheld the aforesaid order of the selection committee.
In support of his contention, he has relied upon the decisions of Constitution
Bench of this Court in State of Assam and another Vs. Nahar Chutia and another reported
in 1974 Assam Law Reports 163 as also in State of Assam and Others Vs. Kanak
Chandra Dutta reported in AIR 1967 SC 884. He has also drawn our attention to the
Executive Instructions which are part of the Assam Land Revenue Regulation by referring
to paragraph 162 of the said instructions as also paragraph 163.
9.
It
was also brought to our notice that in terms of the ratio of the decisions of
the aforesaid two cases decided by the Constitution Bench of this Court, the status
of Gaonburah in Assam is that he holds a Civil post under the State of Assam
and he is entitled to the protection as provided for under Article 311 of the
Constitution of India. Consequently, the State has the power and also the jurisdiction
to select and appoint a Gaonburah and also to dismiss him. He has also pointed
out to us the settled position that Gaonburah works under the supervision of
Moujadar who is also a State government servant as held in the aforesaid Constitution
Bench decision of this Court.
10.
Mr.
Pravir Choudhary appearing for the respondent no. 1, however, has submitted
that the judgment and order passed by the High Court is justified as in the context
of the expression 'family' used in the Executive Instructions. According to
him, the said expression should receive a wider and extensive interpretation so
as to include a nephew. He has also submitted that respondent no. 1 was working
with and helping and assisting the earlier Gaonburah for a very long time and, therefore,
he has sound experience in the working and functioning of the Gaonburah and, so
he was the best candidate and the High Court was justified in directing for his
appointment to the aforesaid post.
11.
The
State is also represented by the counsel who has submitted that the impugned
judgment and order should not have been interfered with for the reasons that the
decision of the selection committee should have been preferred as the selection
committee had the privilege of looking into all the records and also had the
privilege of interviewing the candidates.
12.
Having
heard the learned counsel appearing for the parties and having gone through the
connected records, we propose to dispose of this appeal by giving our reasons
thereof.
13.
The
post of Gaonburah is an executive post in the sense that he works under the
supervision of the Moujadar. He holds a civil post and, therefore, is entitled to
the protection as provided for under Article 311 of the Constitution of India. In
that view of the matter, there has to be some service conditions governing his service.
A Government Servant who is usually appointed to a civil post has to have minimum
age requirement for appointment and there is always a maximum age on completion
of which he stands retired from the government service. He has other service conditions
also prescribed for his service and status. However, on going through the Executive
Instructions, we do not find any such terms and conditions of service envisaged
and laid down which would govern his service condition. A government servant
cannot be appointed unless he fulfills a minimum age criteria. He should not
also be allowed to continue to work as Gaonburah in perpetuity. There has to be
some age limit or duration of period for his service on completion of which he
should stand relieved. The other service conditions like the reasons for removal
of the Gaonburah are also required to be clearly stated by the State Government
either in the executive instruction or by framing a separate set of rules. Since
all these fall within the domain of the State Government, we request and leave
it to the State Government to frame such service conditions of the Gaonburahs
as expeditiously as possible preferably within a period of three months from today
keeping in view the observation made hereinbefore. We also feel that the contents
of the Executive instructions relating to appointment of Gaonburah requires updating
and further amendments to be in tune with the present day requirement, which shall
be done simultaneously with the aforesaid exercise.
14.
The
next question that arises for our consideration is whether the respondent no. 1
herein is entitled to get a preferential treatment for appointment as a Gaonburah
on the ground that he was the nephew of an earlier Gaonburah. The executive
instruction in para 162 provides that in the matter of appointment of
Gaonburah, certain factors are to be taken into consideration which are
(1)claim of the family of the Gaonburah (2) the views of the Maujadar (3) the
suitability of the person for the post.
15.
On
going through the records, we find that the selection committee considered the suitability
of the candidates by allotting 80 marks in all. For the factors stated above, the
selection committee had allotted 10 marks for the claims of the family of
Gaonburah and for the views of the Moujadar, another 10 marks were allotted by
the selection committee and it appears that the rest 60 marks were allotted for
consideration of the suitability of the person for the post.
16.
For
the scheme of compassionate appointment in government service, the expression
'family' in the natural course, includes the family of the deceased, namely,
his son, daughter and widow. The surviving dependents in the family are
considered for such appointment on compassionate grounds. The said expression 'family'
in those cases is always restricted to the aforesaid members, namely, son,
daughter or widow. This expression also has come to be used in various ceiling Acts
in the Assam Fixation of Ceiling on Land Holdings Act, 1956. The expression 'family'
has been defined to mean a family consisting of any one or more or all of the following
namely (1) husband, (2) wife, (3) minor children, and also includes a joint family.
In the explanation thereto, joint family has been defined to mean a family of which
the members are descendents from a common ancestor and have a common mess, and shall
include wife or husband, as the case may be, but shall exclude married daughters,
married sons and their children.
17.
A
joint family could be considered to be a family only when they are sharing a common
residence and common mess. To give an extended meaning to mean any 'nephew' would
also be inappropriate for the word nephew is a very vague expression for it could
include not only nephew being the son from the own brother but it could also be
nephew being the son not only from the sister but being son of even from the cousin
brothers or sisters. It is difficult to give such a wide meaning to the expression
'family'. It is, therefore, appropriate that the State Government also while
laying down the criteria identifies the members of the family who could be entitled
to some preferential consideration in the matter of such appointment to the post
of Gaonburah. The State Government should also therefore frame proper
guidelines laying down the conditions as stated hereinbefore.
18.
Now,
coming to the facts of the present case, we find that the Circle Officer
submitted a report on consideration of all the materials on record that the appellant
should be considered for appointment to the post of Gaonburah as he satisfies all
the requirements and because he is the best candidate. The selection committee considered
the records and thereafter selected the appellant herein despite being aware of
the fact that the recommendation of the Moujadar is for another candidate
neither being the appellant nor being respondent no. 1 and also being aware of the
fact that respondent no. 1 was related to the earlier Gaonburah. The said
selection was made keeping in view the mandate of executive instructions. The executive
instructions which lay down the criteria for selection have force in law as they
were made part of the Assam Land Revenue Regulation. They also have a binding
force having been issued in exercise of constitutional powers conferred under Article
162 of the constitution of India.
19.
Pursuant
to the aforesaid selection made by the selection committee which had considered
all the factors and also the criteria laid down for the purpose, the appellant
was appointed to the said post which came to be set aside by the Appellate Authority
which order was confirmed by the Second Appellate Authority. Having gone through
the records, we find that the First Appellate Authority has set aside the
appointment of the selection committee and the order passed by the Sub-Divisional
Officer on the ground that respondent no. 1 is entitled to a preferential treatment,
he being the nephew of the earlier Gaonburah. We have found that the aforesaid
view taken by the Deputy Commissioner was incorrect and without jurisdiction
and, therefore, the aforesaid findings which are also rendered by the Division Bench
and also by the First Appellate Authority and Second Appellate Authority have
to be set aside which we hereby do.
20.
In
our considered opinion, the entire matter of appointment to the post of
Gaonburah in the present case has to be considered afresh in accordance with
law de novo taking into consideration the relevant factors only and in the
light of the observations made hereinbefore. Therefore, while setting aside the
orders of the Division bench of the High Court and also of the learned Single Judge,
we remit back the matter to the selection committee who shall consider the records
and take a final decision regarding the appointment of Gaonburah as expeditiously
as possible preferably within a period of four months from the date of receipt
of a copy of this order. The State Government shall make the entire records
available to the concerned selection committee so as to enable them to take a conscious
and informed decision. It would be also appropriate that the State Government
would also take a decision regarding updating the administrative instructions in
this regard and also laying down the service conditions of the Gaonburah in
terms of this order. It would be appropriate that these decisions are also
taken within three months so that the selection committee may be in a position to
consider the said criterion which are laid down by the State afresh in terms of
this order.
21.
Since
the selection committee has been directed to complete the entire process of fresh
selection and appointment within four months from the date of receipt of the
copy of this order, respondent no. 1 would continue to hold the post till the order
of appointment is issued by the sub-Divisional Officer in accordance with law within
a period of four months. The said continuation would be only as a stop gap
arrangement so that the working of Gaonburah is not affected in any manner. He
shall in no case be allowed to continue beyond a period of four months. We make
it clear that respondent no. 1 will not claim any equity also to hold the post beyond
four months and also beyond the terms as mentioned herein.
22.
The
appeal is allowed to the aforesaid extent leaving the parties to bear their own
costs.
23.
I.A.
is also disposed of in terms of the aforesaid order.
.........................J.
(DR. MUKUNDAKAM SHARMA)
.........................J.
(ANIL R. DAVE)
NEW
DELHI
AUGUST
25, 2011
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