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2019 DIGILAW 1180 (GAU)

Ajmal Hoque v. State of Assam

2019-11-01

M.R.PATHAK

body2019
ORDER : M.R. PATHAK, J. 1. Heard Mr. M.A. Sheikh, learned counsel for the petitioner and Mr. J. Handique, learned Standing Counsel, Revenue and Disaster Management (L.R.) Department for the respondent No. 1. Also heard Ms. M.D. Borah, learned Government Advocate, Assam for the respondent Nos. 2 and 3. 2. The State Government in the Revenue and Disaster Management (L.R) Department vide Notification No. RLR 187/2007/39 dated 10.04.2018 amended the existing provisions of Clauses 160, 162, 162-A, 162-C and 164 in regard to minimum qualifications, duties and responsibilities and capacity building of Gaonburas in Assam of the Executive Instructions under the Assam Land Revenue Regulations, 1886; notifying that it would come into force on the date of its publication in the Official Gazette (Annexure-11). The said Notification dated 10.04.2018 was published in the Assam Gazette on 23.04.2018 and from the said date, the amended provisions of Executive Instructions under the Assam Land Revenue Regulations, 1886 came into force. As per the amended provisions of Executive Instruction No. 162 (1) (ii), the Gaonburas in Assam should be of minimum of 35 years of age and he should be minimum 10th pass from a Board/Institution recognized by the State Government. 3. The petitioner's father, Rokman Ali, since 17.05.1971 was a Sarkari Gaonbura (Government Village Headman) of No. 1 Malibari Pathar of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District During his said service, because of his ill health, the petitioner since 12.10.2011 to 14.10.2017 helped his father to continue with the task of Gaonbura of said No. 1 Malibari Pathar. Because of his old age, petitioners' father, the Gaonbura of said No. 1 Malibari Pathar, expired on 14.10.2017 and, thereafter, the petitioner is temporarily serving as Gaonbura of said No. 1 Malibari Pathar. 4. The Deputy Commissioner, Kamrup on 18.05.2018, issued an advertisement for filling up the posts of Gaonburhas under his jurisdiction, including the No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District, stipulating the requisite qualifications and specifying that the eligible intending candidates should have to file their applications for such post on-or before 12.06.2018 before the concerned Circle Officer (Annexure-10). 5. The petitioner passed his Class IX standard in the year 2001 and he is yet to pass Class-X standard from any Board or Institution recognised by the State Government. 5. The petitioner passed his Class IX standard in the year 2001 and he is yet to pass Class-X standard from any Board or Institution recognised by the State Government. He earlier approached this Court on 19.06.2018 by preferring a writ petition, being W.P.(C) No. 4278/2018, with the following prayers: (i) to set aside the Sub-Clause (ii) of Clause 1 of Principal Executive Instruction No. 162 dated 10.04.2018 (of the Executive Instructions under the Assam Land Revenue Regulations, 1886), (ii) to fix the minimum age for the post of Gaonbura at 18 years, (iii) to fix the educational qualification of Gaonbura in commensuration with the qualification for Grade-IV post under the Government of Assam and also an interim prayer. 6. The Court, on 09.07.2018 issued notice to the respondents in said W.P.(C) No. 4278/2018, made it returnable by four weeks and in the interim, directed that if the application of the petitioner is found to be valid for the post of Gaonbura of said No. 1 Malibari Pathar Lat under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District and if his application is within the time limit prescribed in the advertisement dated 18.5.2018, then the respondents shall allow the petitioner to participate in the selection process for the said post along with other eligible candidates, who have filed their valid applications; with the observations that the respondents shall not finalise the result for the post of Gaonbura of said No. 1 Malibari Pathar Lat under of Sontoli Mouza under Chamaria Revenue Circle without the leave of the Court. 7. It is stated by the petitioner that on 29.10.2018, he submitted an application before the Deputy Commissioner, Kamrup (Annexure-13 to the writ petition), stating that earlier he filed an application with the certified copy of the said order dated 09.07.2018 passed in W.P.(C) No. 4278/2018, whereby the High Court allowed his candidature and allowed him to sit in the interview for the post of Gaonbura of No. 1 Malibari Pathar of Sontoli Mouza under Chamaria Revenue Circle and from reliable source, he had come to know that the interview for the said post will be held on 31.10.2018 and 01.11.2018, but due to unknown reason, he did not receive call letter for interview/selection process till that date. By the said application dated 29.10.2018, the petitioner requested the Deputy Commissioner, Kamrup to issue him the call letter and to allow him to sit in the interview for the said post of Gaonbura in terms of the order of this Court dated 9.7.2018 passed in W.P.(C) No. 4278/2018 and to take needful action in that regard. With the said application dated 29.10.2018, the petitioner enclosed a copy of the order dated 9.712018 passed in W.P.(C) No. 4278/2018. 8. Petitioner stated that thereafter, he received a call letter dated 25.10.2018 from the Member Secretary and Additional Deputy Commissioner, Kamrup, asking him to appear in the Office of the Deputy Commissioner, Kamrup, Amingaonon 31.10.2018 at 10:00 a.m. in the interview for the said advertised vacant post of Gaonbura along with his testimonials (Annexure-14), pursuant to which he appeared in the said interview and fared well. Petitioner stated that the result of said selection has not yet been declared. 9. Petitioner contended that by Notification No. RLR187/2007/Pt.24 dated 19.7.2019 (Annexure-15), the State Government in the Revenue and Disaster Management (L.R.) Department partially modified its earlier Notification No. RLR 187/2007/39 dated 10.4.2018 (Annexure-11) and added certain conditions in No. 162 (1) and 162-Ainthe Executive-Instructions under the Assam and Revenue Regulations, 1886 to amend the said Notification dated 10.04.2018 (Annexure-11). 10. It is submitted that as a fresh cause of action has arisen because of the Notification dated 19.07.2019 (Annexure-15), which was not a subject matter in his earlier writ petition W.P.(C) No. 4278/2018, therefore, on 6.9.2019, the petitioner submitted that he would not press his said writ petition and, accordingly, by order dated 06.09.2019, said W.P.(C) No. 4278/2018 that was preferred by him, was dismissed as not pressed (Annexure-16). 11. 11. The petitioner has now filed this writ petition on 25.10.2019 with similar prayers that of his earlier writ petition, being W.P.(C) No. 4278/2018, which are- (1) to set aside the Sub-Clause (ii) of Clause 1 of Principal Executive Instruction No. 162 dated 10.04.2018 in respect of educational qualification (of the Gaonburas provided in the Executive Instructions under the Assam Land Revenue Regulations, 1886 as amended in 2018), (2) to fix the educational qualification (of Gaonburas) in commensurating with the qualification for Grade-TV post under the Government of Assam and with an additional prayer- (3) to direct the State respondents to appoint him in the post of Gaonbura of No. 1 Malibari Pathar of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District, if he has come under the zone of selection for the said post, keeping aside his educational qualification by giving him a chance to pass Class-X from the Board or Institution recognised by the State Government. 12. Petitioner's contention is that the Notification dated 10.04.2018 (Anexure-11) of the respondents in the Revenue and D.M. (L.R.) Department has created an unreasonable classification for the post of Gaonbura with other Government employee in respect of educational qualification because a person who has passed Class-VIII can hold the Grade-TV post under the State Government. Therefore, said Notification dated 10.4.2018 (Anexure-11) is arbitrary and unfair in respect of minimum qualification of Class-X pass because of its classification it cannot overcome the test under Article 14 of the Constitution of India. 13. Petitioner's another contention is that by the Notification dated 19.7.2019 (Annex-ure-15), the respondents in the Revenue and D.M. (L.R.) Department, though modified the required minimum age of Gaonburas in Assam (from 35 years to 25 years) but, the respondents have not modified the educational qualification and therefore, said Notification dated 19.07.2019 (Anexure-15) is arbitrary. 14. Petitioner submitted that such, amendments and modification of Principal Executive Instructions under the Assam Land Revenue Regulations, 1886 deprived him from equal participation in public employments, which is in violation of the provisions of Constitution of India, and hence, this writ petition. 15. 14. Petitioner submitted that such, amendments and modification of Principal Executive Instructions under the Assam Land Revenue Regulations, 1886 deprived him from equal participation in public employments, which is in violation of the provisions of Constitution of India, and hence, this writ petition. 15. By the Notification dated 19.07.2019 (Annexure-15), the State Government in the Revenue and D.M. (L.R.) Department, amongst others, partially modified the amended provisions of Executive Instruction No. 162 (1)(ii) (Annexure-11), stating that instead of "35" years to be the minimum age of Gaonburas in Assam, the said "35" years shall be substituted as "25" years. 16. From perusal of the said Notification dated 19.07.2019 (Annexure-15), it is seen that though by the same, the Revenue and DM. (L.R.) Department partially modified its earlier Notification dated 10.04.2008, (Annexure-11), but in the said Notification dated 19.07.2019, the State respondents did not state that it would have retrospective effect and nor it notified that said Notification dated 19.07.2019 would also govern the selection to the post of Gaonburas, where the selection to such posts are already over and results are awaited. Moreover, the State respondents also did not notify as to when the said Notification dated 19.07.2019 would come into force. 17. The requisite qualification and experience, etc. for a post depend upon the nature of duty, the responsibility of the post, working condition and a host of other factors, the authorities involved in the administration and workings of the post concerned are required to decide what should be the requisite educational qualification for the said post. The posts of Gaonburas under the Deputy Commissioners of the Districts in the State are under the authority of the State Government in the Revenue and Disaster Management (L.R.) Department. Therefore, it is only the Revenue and Disaster Management (L.R.) Department of the State which can regulate the method of selection and appointment to the post of Gaonbura, including the requisite qualification for the said post. 18. In the advertisement dated 18.5.2018 issued by the Deputy Commissioner, Kamrup for the post of Gaonbura of No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District, the last date for filing application for the post before the concerned Circle Officer was 12.06.2018 (Annexure-10). 19. 18. In the advertisement dated 18.5.2018 issued by the Deputy Commissioner, Kamrup for the post of Gaonbura of No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District, the last date for filing application for the post before the concerned Circle Officer was 12.06.2018 (Annexure-10). 19. In the order dated 09.07.2018 passed in W.P.(C) No. 4278/2018 (Annexure-12), preferred by the petitioner, the Court in the interim, observed as follows: "The petitioner submits that he has filed an application for the post of Gaonbura of No. 1 Malibari Pathar Lat prior to the last date of filing application in terms of the Advertisement dated 18.05.2018. The last date of filing application for the said post was 12.06.2018 whereas the petitioner has filed this writ petition 19.06.2018. Subject to filing of any such application by the petitioner for the post of Gaonbura of No. 1 Malibari Pathar of Chamaria Revenue Circle of Kamrup District pursuant to the Advertisement dated 18.05.2018 issued by the Deputy Commissioner of Kamrup District within the time limit prescribed in it, in the interim, the petitioner is allowed to participate in the selection process for the said post along with other candidates, who have filed their valid applications. However, the respondents shall not finalise the result of the post of Gaonbura of No. 1 Malibari Pathar Lat without the leave of the Court." 20. It can be seen from the said order dated 9.7.2018 passed in W.P.(C) No. 4278/2018 that there was no relaxation of eligibility by the Court, like age, requisite qualification and last date of filing application or any other condition etc. for the post of Gaonbura of No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District as advertised by the Deputy Commissioner, Kamrup on 18.05.2018. However, from his application dated 29.10.2018 (An-nexure-13), it is seen that the petitioner misrepresented before the Deputy Commissioner, Kamrup. 21. From the order dated 06.09.2019 passed in W.P.(C) No. 4278/2018 (Annex-ure-16), it can be seen that the petitioner unconditionally submitted that he does not want to press the said writ petition and also did not obtain any liberty to file a fresh writ petition and accordingly, on 06.09.2019 said W.P.(C) No. 4278/2018 was dismissed as not pressed. 21. From the order dated 06.09.2019 passed in W.P.(C) No. 4278/2018 (Annex-ure-16), it can be seen that the petitioner unconditionally submitted that he does not want to press the said writ petition and also did not obtain any liberty to file a fresh writ petition and accordingly, on 06.09.2019 said W.P.(C) No. 4278/2018 was dismissed as not pressed. Apparently, on such dismissal of W.P.(C) No. 4278/2018 on 6,9.2019, the interim order dated 9.7.2018 passed in said W.P. (C) No. 4278/2018 also becomes nullity. 22. From the above it can be seen that Petitioner's prayer Nos. (i) and (iii) in his earlier writ petition W.P.(C) No. 4278/2018 are similar to the prayer Nos. (1) and (2) of the present petition. In the present writ petition, the petitioner did not pray anything with regard to Notification dated 19.07.2019 of the Revenue and D.M. (L.R.) Department of the State (Annexure-15). 23. The law is well settled that withdrawal of a writ petition without seeking permission to file a fresh writ petition, would bar filing of a fresh writ petition. 24. In Sarguja Transport Service Vs. S.T.A.T., reported in (1987) 1 SCC 5 , the Hon'ble Supreme Court have held that- "It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code (Code of Civil Procedure), he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur -- the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. Invito beneficium non datur -- the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code." "The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article......................We are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether." 25. For the post of Gaonbura of No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District as advertised by the Deputy Commissioner, Kamrup on 18.05.2018 (Annexure-10), the concerned post involved in the case in hand, one of the eligibility criteria for recruitment to the said post is that the candidate must pass Class-X from any Board or Institution recognised by the State. In the present case, the petitioner has not yet passed Class-X from any Board or Institution recognised by the State. 26. With regard to lack of eligibility, the Hon'ble Supreme Court in catena of cases, have settled that, while applying for any post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the advertisement or in the application form. A bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Dolly Chhanda Vs. Chairman, JEE, reported in (2005) 9 SCC 779 have held that- The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or mark sheets. 27. In the case of State of Orissa Vs. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or mark sheets. 27. In the case of State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 , the Hon'ble Apex Court have held that- "Lacking eligibility as per the rules/advertisement cannot be cured at any stage and making appointment of such a person tantarriounts to an illegality and not an irregularity, and thus cannot be cured. A person lacking the eligibility cannot approach the court for the reason that he does not have a right which can be enforced through court." "If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can be." 28. It is also well settled by the Hon'ble Apex Court that conditions of service can be relaxed but the conditions of eligibility for consideration for appointment or promotion in service, being conditions of recruitment, cannot be relaxed as the compliance of conditions of recruitment are mandatory for appointment or for promotion in service. Therefore, the Writ Court cannot alter the requisite qualification for recruitment to the post of Gaonbura of No. 1 Malibari Pathar under of Sontoli Mouza under Chamaria Revenue Circle of Kamrup District as advertised on 18.5.2018 (Annexure-10 to the writ petition). 29. For the reasons discussed above, this writ petition is not maintainable and it also lacks merit. 30. Accordingly, this writ petition stands dismissed.