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2017 DIGILAW 1229 (GAU)

Fakar Uddin, S/o Late Sadat Ali v. State of Assam

2017-09-05

A.K.GOSWAMI

body2017
JUDGMENT AND ORDER : 1. Heard Ms. J. Kalita, learned counsel appearing for the writ petitioner. Also heard Mr. A. Tai, learned State counsel, appearing for respondent Nos. 1 to 4 as well as Mr. A. Matin and Mr. H. Ali, learned counsel appearing for respondent No. 5. 2. By this writ application, the petitioner prays for a direction to set aside the order dated 27.11.2013 issued by the respondent No. 3, i.e., Deputy Commissioner (Gaonburah Branch), Nagaon, whereby the respondent No. 5 was appointed as the Gaonburah of Gerajai Pam Lot/Kisamat, under Gerubat Mouza, in the District of Nagaon. 3. The petitioner is the son of late Sadat Ali, who was the Gaonburah of the said village. Sadat Ali died on 10.04.2013. Respondent No. 5 is the grandson of late Sadat Ali, being son of Md. Sultan Ali, another son of late Sadat Ali. On the death of Sadat Ali, an advertisement dated 24.06.2013 was issued by the Deputy Commissioner (Gaonburah Branch), Nagaon, inviting applications for recruitment to the said post of Gaonburah fixing the last date for submission of application on 08.07.2013. The date of interview was fixed on 29.10.2013. 4. The allegations made in the writ petition are that after the interview was held, without declaring the result and without publishing the select list, appointment order was issued in favour of respondent No. 5 appointing him as the Gaonburah. It is pleaded that such appointment of the respondent No. 5 was made without considering the relevant factors as provided under Clause 162A of the Executive Instructions of the Assam Land and Revenue Regulation, 1886 (for short, “Regulation of 1886”). It is also pleaded that the claims of the family members of the late Gaonburah and the views of the Mouzadar were not at all taken into consideration while giving appointment to the respondent No. 5. 5. Respondent Nos. 2 and 3 had filed an affidavit and while denying the allegations made in the writ petition, it is stated that respondent No. 5 had secured highest marks in the interview and the writ petitioner had secured the least marks. 5. Respondent Nos. 2 and 3 had filed an affidavit and while denying the allegations made in the writ petition, it is stated that respondent No. 5 had secured highest marks in the interview and the writ petitioner had secured the least marks. It is also stated that the interview was held on 29.10.2013 and the appointment order was issued on 27.11.2013, i.e., after a lapse of almost one month and not hurriedly as contended by the petitioner and that all relevant considerations, as enjoined by Clause 162A of the Executive Instructions were taken into consideration. In support of the candidature of respondent No. 5, more than 900 persons had submitted a petition and, on top of that, during the lifetime of late Sadat Ali, he himself had submitted a petition on 28.02.2013 requesting appointment of respondent No. 5 as Gaonburah in his place. It is also stated in the affidavit that the report of the Mouzadar was also taken into consideration and, thereafter, finding that the respondent No. 5 is the most suitable candidate, he was appointed as the Gaonburah. It is further stated that as the advertisement was for a lone post of Gaonburah and as there is no provision for maintaining Wait List, the question of publication of select list did not arise. 6. In the reply affidavit, it is stated that on 06.11.2013, the mother of the petitioner had submitted a representation praying for appointment of the petitioner as Gaonburah and without taking into consideration the said representation, appointment was offered to respondent No. 5. It is also pleaded that the Circle Officer, Kampur Revenue Circle, had submitted a report dated 24.06.2013, wherein it was mentioned that the respondent No. 5 was aged about 22 years and that he was studying HSSLC course. However, the said report of the Circle Officer was not taken into consideration. 7. Respondent No. 5 had also filed an affidavit in opposition taking a plea that the writ petition is not maintainable in view of efficacious and alternative remedy being available to the writ petitioner under Clause 162B of the Executive Instructions. It is also pleaded that 980 villagers submitted a representation before the respondent No. 2 recommending the respondent No. 5 as the suitable person for the post of Gaonburah of the village in question. It is also pleaded that 980 villagers submitted a representation before the respondent No. 2 recommending the respondent No. 5 as the suitable person for the post of Gaonburah of the village in question. Further plea is that respondent No. 5 was selected on the basis of relevant considerations and that there is no infirmity in the process of selection and appointment. It is also pleaded that a written complaint was filed before respondent No. 2 by the father of the respondent No. 5 regarding doubtful educational qualification certificate of the petitioner and that in respect of the same, an enquiry was conducted by the Circle Officer, who had submitted a report dated 07.10.2013 stating that the certificate obtained by the petitioner from Madhabpara High School is forged and fake. 8. The learned counsel for the petitioner has submitted that the writ petition was entertained on 12.3.2014 and direction was issued to the learned State counsel for production of records and it was also recorded therein that an endeavour will be made to dispose of the writ petition and therefore, at this point of time, the plea raised by the respondent No. 5 regarding maintainability of the writ petition has got no force. She has submitted that the petitioner being the son of the Gaonburah and the mother of the petitioner having submitted a representation before the select list was published, it was incumbent on the part of the respondents to have considered such representation. Even otherwise, wishes of the family of the Gaonburah in terms of Section 162A of the 1886 Regulation is a consideration which cannot be wished away. It is also submitted that the view of the Mouzadar was not taken into consideration before selection of respondent No. 5 was made. Ms Kalita has placed reliance on the decision rendered in the case of Promode Chandra Roy vs. State of Assam & ors., reported in 2006 (2) GLT 604. 9. By placing reliance on the case of Mahbubur Rahman vs. State of Assam and Ors., reported in 2005 (4) GLT 397, Mr. Matin and Mr. Ali have submitted that in view of availability of alternative remedy, the writ petition ought to be dismissed. Mr. 9. By placing reliance on the case of Mahbubur Rahman vs. State of Assam and Ors., reported in 2005 (4) GLT 397, Mr. Matin and Mr. Ali have submitted that in view of availability of alternative remedy, the writ petition ought to be dismissed. Mr. Ali has submitted that the decision rendered in the case of Promode Chandra Roy (supra) will not be attracted in the fact situation of this case, in as much as, in the said case the writ petition was filed after exhaustion of all the remedies available under the Regulation of 1886. He has also submitted that the writ petition raises disputed questions of facts and accordingly, placing reliance on an order of this Court dated 5.12.2012 passed in WP(C) No. 9457/2003 (Idrish Ali vs. State of Assam and ors.), it is submitted that this Court ought not to invoke its jurisdiction under Article 226 of the Constitution of India. He has further submitted the selection and appointment of respondent No 5, in any case, having been made in accordance with law, this petition is liable to be dismissed. 10. By producing records, Mr. Tai has submitted that no interference is called for with regard to the selection and appointment of respondent No. 5. 11. I have considered the submissions of the learned counsel for the parties and have perused the records of the case as well as the records produced by Mr. Tai. 12. In Mahbubur Rahman (supra), taking note of the provisions contained in the Regulation of 1886, this Court had held that Clause 162B and 162C are to be read conjointly and a conjoint reading of the same will go to show that there is a provision for appeal against an order of appointment/suspension/dismissal of a Gaonburah. A review petition also lies under Clause 162B of the Executive Instructions against an order of appointment, suspension and dismissal of a Gaonburah before the State Government. 13. A perusal of the judgment in Mahbubur Rahman (supra) further goes to show that the writ petition was not dismissed on the ground that it was not maintainable on account of alternative remedy. 14. 13. A perusal of the judgment in Mahbubur Rahman (supra) further goes to show that the writ petition was not dismissed on the ground that it was not maintainable on account of alternative remedy. 14. In Ram & Shyam Company vs. State of Haryana & ors, reported in (1985) 3 SCC 267 , the Supreme Court had stated that the Court had imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 of the Constitution where party invoking the jurisdiction has an effective adequate alternative remedy. It is expressly stated therein that the rule which requires the exercise of an alternative remedy is a rule of convenience and discretion rather than rule of law. 15. In the instant case, having noticed the order dated 12.3.2014, I am of the considered opinion that it will be wholly inequitable to relegate the petitioner at this distance of time to seek alternative remedy and therefore, the argument advanced by Mr. Matin and Mr. Ali for dismissal of the writ petition on the ground of availability of alternative remedy is repelled. 16. Clause 162A of the Executive Instruction of the Regulation of 1886 lays down that in the matter of appointment of Gaonburah, the following factors shall be taken into consideration: 1. Claims of the family members of the Gaonburah; 2. Views of the Mouzadar; 3. Suitability of the person for the post. 17. In Promode Chandra Roy (supra), this Court found that the claims of the family members of the Gaonburah and the view of the Mouzadar were not taken into consideration at all and, thus, relevant considerations under Clause 162A of the Executive Instructions having not been taken into account, this Court had set aside the order of appointment made in favour of the selected candidate and had remitted the matter for fresh consideration limiting the exercise to the persons who had responded to the advertisement in question. 18. A perusal of the Compilation-sheet of oral test held for appointment to the post of Gaonburah at page 227 of the records produced by Mr. Tai goes to show that, in all, 30 marks were assigned on three components: (i) Education, (ii) General Knowledge and (iii) Experience, and 10 marks were allotted to each of the components. 19. 18. A perusal of the Compilation-sheet of oral test held for appointment to the post of Gaonburah at page 227 of the records produced by Mr. Tai goes to show that, in all, 30 marks were assigned on three components: (i) Education, (ii) General Knowledge and (iii) Experience, and 10 marks were allotted to each of the components. 19. It appears that Additional Deputy Commissioner In-charge, Gaonburah Branch, Sub-Divisional Officer (Sadar), Gaonburah Branch and Circle Officer, Gaonburah Branch were the members of the Selection Board. Having regard to the contents of the oral interview and allotment of marks, there can be no manner of doubt that the oral interview component was conducted to find out the suitability of the candidates for the post and the respondent No. 5 had secured highest marks in such exercise. 20. Though in the affidavit of the respondent Nos. 1 to 4, averments are made to project a picture that due consideration of relevant materials had taken place, records, however, do not reveal that there was any consideration by the appointing authority with regard to the two factors, namely, the claims of the family of the Gaonburah and views of the Mouzadar as required under Clause 162A of the Executive Instruction though there are materials on record in that regard. It is not for the writ Court to evaluate comparative merit of the candidates, vis-à-vis the aforesaid two components. I am unable to subscribe to the submission of the learned counsel for the respondent No. 5 that the writ petition raises any disputed question of fact. No disputed question of fact has arisen in the instant case. The Court is only required to examine the decision making process. 21. As two relevant considerations as ordained under Clause 162A of the Executive Instructions of Regulation of 1886 for appointment of Gaonburah had not been taken into consideration, I am of the considered opinion that selection and appointment of respondent No. 5 cannot be sustained in law. 22. Taking that view, this writ petition is allowed and the matter is remitted to the competent authority for fresh consideration of the case of the petitioner, respondent No. 5 and the other candidate who had submitted candidature, on the basis of materials available on record which is produced by Mr. Tai, and to pass appropriate order selecting and appointing one among them as the Gaonburah. Tai, and to pass appropriate order selecting and appointing one among them as the Gaonburah. Such exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order. As respondent No. 5 has been functioning as Gaonburah for a period of about four years, notwithstanding setting aside of his order of appointment, he will be allowed to continue for the aforesaid period of four months. 23. No cost.