Kandarpa Sarma vs Rajeswar Das & Ors

CIVIL APPEAL NO. 7401 OF 2011 (Arising out of SLP(Civil) No. 21013 of 2006)

KANDARPA SARMA Appellant(s)

VERSUS

RAJESWAR DAS & ORS. Respondent(s)

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

1

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

2

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'

3

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

4

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

5

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

6

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

7

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.

8

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

9

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.

10

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

11

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

12