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2015 DIGILAW 1174 (GAU)

Md. Atowar Rahman v. State of Assam

2015-09-11

K.SREEDHAR RAO, P.K.SAIKIA

body2015
JUDGMENT P. K. Saikia, J 1. This appeal is directed against the judgment dated 21.04.2015, rendered by the learned Single Judge in WP(C) No. 6472/2013, dismissing the claim of the appellant herein (who would be referred to as the petitioner hereinafter) seeking appointment as a Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur in Palashbari Revenue Circle, Kamrup (R). 2. We have heard Mr. S.S. Rahman, learned counsel for the appellant and also heard Ms. B.Goyal, GA as well as Mr. M. Z. Ahmed, learned counsel for the respondents. 3. The facts necessary for disposal of the present appeal, in brief, are that the petitioner is the son of Matif Ali, since deceased, who worked as a Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur in Palashbari Revenue Circle, Kamrup (R). Because of his ill health, he found it difficult to discharge his duties and therefore, he took voluntary retirement on 01.07.2011. Since then, the Gaon Burah of neighbouring village is looking after the affairs of the village in question and the petitioner has been assisting him in discharging such duties for which he acquired sufficient experience, necessary for discharging the duties of the Gaon Bura. 4. The petitioner came to know that the respondent authorities were contemplating to appoint one Moinul Haque, respondent No. 4 in WP(C) No. 6472/2013 who is also arraigned as respondent No. 4 in present appeal as Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur in Palashbari Revenue Circle, Kamrup (R). He, therefore, approached this court by way of WP(C) No. 6472/2013 seeking direction requiring the respondent authorities to appoint him as Gaon Burah of the village aforesaid. 5. On being served with notice of the proceeding, the Deputy Commissioner, Kamrup(R) has filed an affidavit on behalf of the respondent No. 2 and 3 to contend that advertisement dated 18.01.2012 was issued by Deputy Commissioner for filling up several posts of Gaon Burah of different villages including village in question. Pursuant to advertisement dated 18.01.2012, 4 9 four) candidates offered their candidature in respect of post of Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur in Palashbari Revenue Circle, Kamrup (R). 6. Thereafter in due course, a selection test, consisting of written examination and oral interview was held notice of which was given to all concerned. In that selection test, respondent No. 4 secured highest mark same being 39.25. 6. Thereafter in due course, a selection test, consisting of written examination and oral interview was held notice of which was given to all concerned. In that selection test, respondent No. 4 secured highest mark same being 39.25. But then, despite petitioner being given 3 marks for his being a member of a Gaon Burah family, he could secure only 34 marks and as such, respondent No. 4 was favoured with the appointment. 7. Respondent No. 4 filed a counter affidavit to contend that there was no infirmity in appointing him as Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur since selection was conducted in accordance with the prescription Executive Instruction No. 162A under the Assam Land and Revenue Regularization Act 1986. He also disputed the claim of the petitioner that he has been discharging the duty of Gaon Burah after the voluntary retirement of his father and therefore, prays for dismissal of the proceeding. 8. The petitioner having filed affidavit in reply reiterated his earlier stand in the writ petition. On hearing the submissions advanced by the learned counsel for the parties, the learned Single Judge dismissed the petition holding as follows:- “Executive Instruction No. 162 deals with appointment of Gaonburah. It provides that Gaonburahc are appointed by the Deputy Commissioner by taking into consideration a) claim of the family of the late Gaonburah, b) the wishes of the villagers and c) the views of the Mouzadar. Deputy Commissioner shall appoint the person whom he considers most suitable for the post. Under Executive Instruction, 162A, in case of Sadar Sub-Division Gaonburhas are appointed by the Deputy Commissioner and in case of outlying Sub- Divisions by the Sub- Divisional Officers. Executive Instruction No. 162 B provides for filling of appeal before the Deputy Commissioner against an order of appointment, suspension and dismissal of Gaonburaha by Sub- divisional Officer. Executive Instruction No. 162 C provides for second appeal to the Commissioner of the Division, whereas there is provision for review under Executive Instruction 162 D. Duties of Gaonburah are laid down in Executive Instruction No. 164. The matter relating to appointment of Gaonburah, particularly in the context of claim of the family of the late Gaonburah, was examined by a Division Bench of this court in the case of Rajeswar Das (supra). The matter relating to appointment of Gaonburah, particularly in the context of claim of the family of the late Gaonburah, was examined by a Division Bench of this court in the case of Rajeswar Das (supra). It was held that in the matter of appointment of Gaonburah, the claim of the family member of the Gaonburah, the views of Mouzadar and the suitability of the person for the post are required to be take to consideration by the appointing authority. The Division Bench held that there cannot be any doubt whatsoever that the office of the Gaonburah is not a hereditary one; no family member of Gaonburah can claim to be appointed as Gaonburah as a matter of right. In view of the selection criteria provided in Executive Instruction No. 162, if some marks are awarded towards the claim of the family of the Gaonburah that would be sufficient compliance of the said requirement. It was observed that all things being equal, the claim of the family member of the Gaonburah may have to be preferred, but not at the cost of the suitability of the person for the post. From the record, it is seen that to assess the suitability of the four contenders, a selection process was devised comprising of written test of objective nature of 50 marks and a viva-voce of 20 marks, total 70 marks. 20 marks of viva-voce included 3 marks an account of claim of family members of Gaonburah. It is seen that members of the selection Committee (four in number), had awarded the maximum of 3 marks under that head to the petitioner. In the written test, the petitioner had secured 20.5 marks as against 28.5 secured by respondent No. 4, whereas in the viva-voce, petitioner had secured 11.5 marks as against 10.75 secured by respondent No. 4. But overall, respondent No. 4 secured 39.25 marks against 32 marks secured by the petitioner. Thus, respondent No. 4 secured the maximum marks and was adjudged to be the most suitable. Having regard to the above, particularly the decision of the Division Bench in the case of Rajeswas Das (supra), the contention of the learned counsel for the petitioner that petitioner being the son of the previous Gaonburah should have a preferential claim, cannot be accepted. Having regard to the above, particularly the decision of the Division Bench in the case of Rajeswas Das (supra), the contention of the learned counsel for the petitioner that petitioner being the son of the previous Gaonburah should have a preferential claim, cannot be accepted. Reliance placed on the decision of Mukut Sharma (supra), appears to be misplaced inasmuch as, the said case pertains to appointment of Mouzadar; besides the said case was decided on different factual foundation.” 9. On a perusal of the record, we have found that vide calling letter dated 26.09.2012 which was annexed as annexure 18 (18A is the original) the petitioner was asked to appear in written examination/ oral interview, scheduled on 07.10.2012. More important, the petitioner had unconditionally accepted such conditions in calling letter and participated in such written/oral interview without any murmur, conducted pursuant to the advertisement dated 18.01.2012 issued by the Deputy Commissioner, Kamrup(R). 10. However, having failed to clear the test and having failed to secure his appointment, he approached this court with a petition Under Article 226 of the Constitution of India seeking quashment of the order in quesdtion. Such a conduct on the part of the petitioner needs to be deprecated since once the petitioner chose to participate in the selection test above without any murmur, he forfeits his right to question such selection subsequently contending that such selection was not done in accordance with the prescription made. On this count alone the present proceeding is liable to be dismissed. 11. That apart, we have found that for his being a member of the Gaon Burah family, he was given 3 marks but no such marks were given to any other candidates vying for the post of Gaon Burah of village Chapathuri/Natun Simina, under Mouza Rampur. But despite above, the petitioner could secure 32 marks as against 39.25 marks secured by respondent No. 4. 12. These revelations firmly show that there was no infirmity in the order under challenge, more so, when there is no allegation, whatsoever, of respondent authorities favouring the respondent No. 4 with post above with some oblique or ulterior motive. 13. That being so, we have found no infirmity in the order under challenge and therefore, the present appeal is dismissed.