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2004 DIGILAW 531 (GAU)

Mahbubur Rahman v. State of Assam

2004-09-22

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. A. Sharif, learned Counsel for the Petitioner, Mr. F.U. Barbhuiya, learned Counsel for the private Respondent and Mr. N.C. Phukan, learned Government Advocate. 2. The matter relates to appointment of Gaobura of village Baguriguri Pathar, Charge No. 17 on the death of the incumbent Gaonbura of the village. The Sub-Divisional officer (Sadar) Barpeta issued an advertisement on 3.9.2002 inviting applications from eligible candidates for appointment to the post of Gaobura. Pursuant to the said advertisement, six persons including the Petitioner and the private Respondent submitted their applications and thereafter interview was held on 19.6.2003 and on the basis of selection Md. Taleb Ali Mandal was appointed as Gaonbura by the Deputy Commissioner, Barpeta vide order dated 14.7.2003. The order of appointment has been challenged by the present Petitioner Mahbubur Rahman who happens to be the son of Abdul Kuddus, the then Gaonbura on whose death the vacancy arose. 3. The impugned order of appointment has been challenged on the ground of alleged violation of the provisions of Clause 162 of the Executive Instructions issued under the Assam Land and Revenue Regulations. Clause 162 reads as follows : 162. Nomination and appointment of gaoburas: Gaoburas are appointed by the Deputy Commissioner. In the case of vacancy, the Deputy Commissioner shall take into consideration (a) the claims of the family of the late gaonbura, (b) the wishes of the villagers and (c) the views of the mouzadar, and shall appoint the person whom he considers most suitable for the post. In charges consisting entirely of nisf-khiraj or lakhiraj estate the nomination of gaonburas shall rest with the proprietors unless the nominee is plainly unfit. The Deputy Commissioner may dismiss a gaonbura from office after recording his reasons in writing. 4. Mr. A. Sharif, the learned Counsel for the Petitioner submits that the Petitioner has not claimed the Gaonburaship on the ground that he is the son of the deceased gaobura. In the case of Shri Chakradhar Das v. Karuna Kanta Pathak and Ors. reported in (1983) 2 GLR 171 this Court held that this is not a hereditary post and in view of the nature and qualities of the public duties that a Gaobura is to perform for the village and the villagers, a person can not have a claim to this public office merely because he happened to be son of the deceased Gaonburah. 5. Under the above Clause 162, the appointing authority is required to consider the claim of the family of late Gaoburah, the wishes of the villagers, the views of the Mouzadar and thereafter appoint the person whom he considers most suitable for the post. 6. Respondents have filed an affidavit-in-opposition wherein it is stated that Respondent No. 4 was appointed on the basis of his merit and having found suitable after considering the reports of the circle officer and the Mouzadar concerned. Thus, we find that all the requirements under Clause 162 were considered by the appointing authority before considering appointment of Respondent No. 4. Mr. A. Sharif, learned Counsel for the Petitioner submits that in the affidavit-in-opposition the Respondents have not stated that the Mouzadar or the Circle Officer did not support the case of the Petitioner. The selection committee was not duty bound to obtain a detailed report against other persons. The report of the Circle Officer or Mouzadar is required in respect of person whom the committee or the concerned authority finds most suitable. Such reports are not required to be called for in respect of all the candidates. 7. On perusal of the entire writ petition, we find that the Petitioner nowhere alleged that Respondent No. 4 is not eligible for appointment. There is also no allegation or whisper that Respondent No. 4 is not competent As regards the public wishes, learned Counsel for the private Respondent has filed a copy of the document to show that almost all the villagers have submitted a report before the SDO (S) Barpeta on 8.3.2003 giving in writing their preferences in favour of Respondent No. 4. 8. In view of what has been stated above, we find that the concerned authority has exercised their discretion on the relevant consideration and there was no violation of the provisions of Clause 162 as alleged. 9. The Petitioner in para-9 of the writ petition has submitted that as there was no provision for appeal, the Petitioner has approached this Court under Article 226 of the Constitution. In this context we may refer to the relevant provisions of Clause 162(B), 162 (C) and 162(D) of the Executive Instructions as follows : 162. (B). 9. The Petitioner in para-9 of the writ petition has submitted that as there was no provision for appeal, the Petitioner has approached this Court under Article 226 of the Constitution. In this context we may refer to the relevant provisions of Clause 162(B), 162 (C) and 162(D) of the Executive Instructions as follows : 162. (B). An appeal against the order of appointment, suspension and dismissal of a Gaobura by the Sub-Divisional Officer (sadar) and the Sub-divisional officers of the outlying Sub-Divisions shall lie to the Deputy Commissioner within a period of 60 days from the date on which the Appellant receives a copy of the order. 162. (C) A second appeal from the order of the Deputy Commissioner shall lie to the Commissioner of Divisions within a period of 60 (sixty) days from the date of passing of the order by the Deputy Commissioner and the Commissioner may. (a) Confirm or set aside the order, (b) remit the case to the Deputy Commissioner, directing him such further action or inquiry as he considers proper in the circumstances of the case. 162. (D) A petition for review the order of the Commissioner of Divisions shall lie to the State Government within a period of 90 (ninety) days from the date of passing of such order by the Commissioner. The State Government, on receipt of such application for review and after giving reasonable opportunity of being heard to the parties likely to be affected, may- (a) confirm or set aside the order of the Commissioner, (b) remit the case directing him to take such further action or inquiry as he considers proper in the circumstances of the case provided that petition shall however be accepted by the State Government for review of any petition after the expiry of 90 (ninety) days and unless the relief sought under different appellate authorities were exhausted as provided under Executive Instructions 162 B and 162 C. 10. Thus, we find that against the order of appointment issued by the SDO, an appeal lies before the Deputy Commissioner and likewise against the order passed by the Deputy Commissioner, an appeal lies before the Commissioner of Division and thereafter a review petition lies before the State Government against the order of Commissioner of Division. Mr. Thus, we find that against the order of appointment issued by the SDO, an appeal lies before the Deputy Commissioner and likewise against the order passed by the Deputy Commissioner, an appeal lies before the Commissioner of Division and thereafter a review petition lies before the State Government against the order of Commissioner of Division. Mr. A. Sharif submits that the word 'second appeal' used in Clause 162 creates confusion in the sense that it was second appeal against the order of the SDO as provided as there is no specific provision that an appeal against the order of Deputy Commissioner lies. The provisions of Clause 162(B) and (C) are to be read conjointly which provides for filing of appeal against the order of appointment, suspension and dismissal of a Gaobura used in the sense that against the order of SDO, an appeal lies before the Deputy Commissioner and against the order of the Deputy Commissioner, an appeal lies before the Commissioner of Division. It is also apparent from the provision of Clause 162(D) that against the order of the Commissioner of Division, a petition for review lies before the State Government. 11. In view of what has been stated above, we find no merit in this writ petition and the writ petition stands dismissed accordingly. Interim order, if any, stands vacated. Respondent No. 4 may resume his duties and function as Gaoburah of the concerned village. Petition dismissed.