Rajeshwar Das Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - 8019/ 2001 was selected by the competent authority after necessary test/ interview on evaluation of overall suitability and, as such, the additional deputy commissioner as well as the commissioner erred in law in reversing the decision of the selection committee. sri das claims himself to be a better candidate on the ground that he is related to the outgoing gaonburah who had tendered his resignation. a reading of the executive instruction 162(a) clearly shows that apart from relationship, suitability of the person for the post is an important factor for selection and appointment to the post of gaonburah. the expressions 'near relative' and 'distant relative' are always vague and ambiguous unless clearly defined in the relevant text. it can be perceived that the purpose of giving preference to a member of the family of the gaonburah is that he is expected to have better knowledge of the day today functioning of a gaonburah. this prompted sri sarma to approach this court and the learned single judge while issuing notice by the order dated 26.11.2001 allowed sri sarma to continue as gaonburah pursuant to his appointment in the year 1999 and stayed the order passed by the commissioner, lower assam division, the order of stay was passed by the learned single judge being satisfied as to the maintainability of the writ petition and, therefore, at this belated stage it would not be in aid of justice to non-suit the writ petitioner on the ground of maintainability. d. biswas, j.1. writ petition (c) no. 4169/2000 and writ petition (c) no. 8019/2001 are being disposed of by this common judgment and order.2. i have heard mr. ak purkayastha, learned counsel for the petitioner in wp(c) no. 4169/2000 and mr. p.k. tiwari, learned counsel for the petitioner in wp(c) no. 8019/2001. i have also heard mr. a. bora, learned state counsel.3. sri rajeswar das, petitioner in wp(c) no. 4169/2000 and sri kandarpa sarma, petitioner in wp(c) no. 8019/2001 were candidates for appointment to the post of gaonburah of titkagaria gaon, mouza - sariha in the district of barpeta. an advertisement was issued on 11.11.1998 by the s.d.o., bajali sub-division for selection and appointment of gaonburah. both the above named writ petitioners submitted their applications giving full particulars. interview was held on 25.6.1999 and by the order dated 28.6.1999 the s.d.o. (c), bajali sub-division appointed sri kandarpa sarma as gaonburah of titkagaria gaon as he has been evaluated as the most suitable candidate for appointment to the post. sri rajeswar das, petitioner in wp(c) no. 4169/2000 being aggrieved by the appointment of sri kadarpa sarma preferred an appeal no. 1/2000 before the deputy commissioner, barpeta. on 7.4.2000, the additional deputy commissioner allowed the appeal setting aside the appointment of kandarpa sarma and directed that rajeswar das be appointed. being aggrieved, sri kandarpa sarma preferred appeal no. 36/2000 before the commissioner, lower assam division. the said appeal was heard and judgment reserved on 24th/25th may, 2001. thereafter, on 9.11.2001, the order dated 5.8.2001 was communicated to sri kandarpa sarma whereby direction was given to the s.d.o., bajali to appoint sri rajeswar das as the gaonburah. rajeswar das filed wp(c) no. 4169/ 2000 for implementation of the order passed by the commissioner. sri kandarpa sarma filed wp(c) no. 8019/2001 challenging the order dated 5.8.2001 passed by the commissioner, lower assam division, guwahati in appeal no. 36/2000. this court by the order dated 26.11.2001 passed in wp(c) no. 8019/2001 stayed the impugned order dated 5.8.2001 passed by the commissioner.4. in view of the stay granted by this court, sri kandarpa sarma is still continuing as gaonburah. the case of sri rajeswar das is that he is a member of the family of the former gaonburah and, therefore, entitled to appointment to the post which fell vacant after his uncle resigned from the said post. sri a.k. purkayastha laid emphasis on the relationship between rajeswar das and the former gaonburah and submitted that as per government instructions applicable, preference ought to have been given to rajeswar das. sri p.k. tiwari, learned counsel submitted that kandarpa sarma, petitioner in wp(c) no. 8019/ 2001 was selected by the competent authority after necessary test/ interview on evaluation of overall suitability and, as such, the additional deputy commissioner as well as the commissioner erred in law in reversing the decision of the selection committee. according to sri tiwari, family relationship cannot be given precedence of suitability.5. the provisions relating to appointment of gaonburah are embodied in the executive instruction no. 162(a). the executive instruction provide that besides the claim of family membership of gaonburah, suitability of the person for the post has to be taken into consideration along with the views of the mouzadar. there is also no dispute with regard to the fact that kandarpa sarma was found more suitable for the post than rajeswar das. sri das claims himself to be a better candidate on the ground that he is related to the outgoing gaonburah who had tendered his resignation. the question, therefore, is whether relationship with the family of the earlier gaonburah would alone be enough for the purpose of selection. a reading of the executive instruction 162(a) clearly shows that apart from relationship, suitability of the person for the post is an important factor for selection and appointment to the post of gaonburah. it will be perilous to hold that relationship with the family of the gaonburah despite deficiency in merit would be determinative in selecting a person for appointment. executive instruction no. 162(a) has to be read as a whole. a reading as such would show that preference to a member of the family as contemplated cannot be a ground for complete ouster of an eligible and more suitable candidate. for family relationship some weightage may be permissible for assessment of overall suitability. a division bench of this court in narendra nath kalita v. state of assam, (1992) 1 glr 89 held the executive instructions to be the sole guideline and basis for selection and appointment of gaonburah. this is also the view available in lilambar bora v. deputy commissioner, nagaon and ors., 1996 (2) glt 615. the executive instructions issued in exercise of constitutional powers conferred under article 162 will have binding force and shall be enforceable unless replaced by any act of the legislature. the executive instruction 162(a) provides for preference to the member of the family of the gaonburah. the expression 'claim of the family of the gaonburah' cannot be stretched to include near or distant relative of the gaonburah. rajeswar das is a nephew of the earlier gaonburah and does not belong to his family. the expressions 'near relative' and 'distant relative' are always vague and ambiguous unless clearly defined in the relevant text. therefore, sri rajeswar das, in the considered opinion of this court, cannot be treated as a member of the family of the erstwhile gaonburah for the purpose of any weightage for selection. it can be perceived that the purpose of giving preference to a member of the family of the gaonburah is that he is expected to have better knowledge of the day today functioning of a gaonburah. but it must be subject to overall suitability. a liberal construction of the instruction would result in appointment of undesirable democracy the concept of preference on the basis of family relationship cannot be encouraged. it is merit which alone would prevail. otherwise, it would frustrate the very purpose of advertisement for selection and appointment if the claim of a family member, whether near or distant, is declared decisive in the matter of appointment.6. the first and second appellate authority were also patently in error in imposing a decision of their own instead of referring the matter to the selection committee for re-consideration. however, in the given circumstances of the case, this court is of the opinion that no interference with the decision of the selection committee is warranted.7. it has been argued that the writ petition is not maintainable since a review petition filed by sri kandrapa sarma is pending with the state government. there is no dispute with regard to this proposition of law. in 2000 (2) glt 614, state of assam and ors. v. jhanendra choudhury law has been propounded to this effect. however, in para 18 of the writ petition filed by kandarpa sarma, it has been submitted that the interim order was urgently necessary for suspending the order of the commissioner, lower assam division. the state government as reviewing authority did not pass any order and simply kept the review petition pending. this prompted sri sarma to approach this court and the learned single judge while issuing notice by the order dated 26.11.2001 allowed sri sarma to continue as gaonburah pursuant to his appointment in the year 1999 and stayed the order passed by the commissioner, lower assam division, the order of stay was passed by the learned single judge being satisfied as to the maintainability of the writ petition and, therefore, at this belated stage it would not be in aid of justice to non-suit the writ petitioner on the ground of maintainability. when substantial justice is possible on factual matrix, it should be done without relegating the parties to earlier position.8. in the result, wp(c) no. 8019/2001 is allowed and the interim order dated 26.11.2001 passed by this court is hereby made absolute. the order passed by the commissioner, lower assam division is hereby set aside. sri kandarpa sarma shall continue as gaonburah of titka garia gaon, mouza sariha in the district of barpeta. consequently, wp(c) no. 4169/2000 is dismissed.9. no costs.

Judgment:

D. Biswas, J.

1. Writ Petition (C) No. 4169/2000 and Writ Petition (C) No. 8019/2001 are being disposed of by this common judgment and order.

2. I have heard Mr. AK Purkayastha, learned counsel for the petitioner in WP(C) No. 4169/2000 and Mr. P.K. Tiwari, learned counsel for the petitioner in WP(C) No. 8019/2001. I have also heard Mr. A. Bora, learned State counsel.

3. Sri Rajeswar Das, petitioner in WP(C) No. 4169/2000 and Sri Kandarpa Sarma, petitioner in WP(C) No. 8019/2001 were candidates for appointment to the post of Gaonburah of Titkagaria Gaon, Mouza - Sariha in the district of Barpeta. An advertisement was issued on 11.11.1998 by the S.D.O., Bajali Sub-Division for selection and appointment of Gaonburah. Both the above named writ petitioners submitted their applications giving full particulars. Interview was held on 25.6.1999 and by the order dated 28.6.1999 the S.D.O. (C), Bajali Sub-Division appointed Sri Kandarpa Sarma as Gaonburah of Titkagaria Gaon as he has been evaluated as the most suitable candidate for appointment to the post. Sri Rajeswar Das, petitioner in WP(C) No. 4169/2000 being aggrieved by the appointment of Sri Kadarpa Sarma preferred an appeal No. 1/2000 before the Deputy Commissioner, Barpeta. On 7.4.2000, the Additional Deputy Commissioner allowed the appeal setting aside the appointment of Kandarpa Sarma and directed that Rajeswar Das be appointed. Being aggrieved, Sri Kandarpa Sarma preferred appeal No. 36/2000 before the Commissioner, Lower Assam Division. The said appeal was heard and judgment reserved on 24th/25th May, 2001. Thereafter, on 9.11.2001, the order dated 5.8.2001 was communicated to Sri Kandarpa Sarma whereby direction was given to the S.D.O., Bajali to appoint Sri Rajeswar Das as the Gaonburah. Rajeswar Das filed WP(C) No. 4169/ 2000 for implementation of the order passed by the Commissioner. Sri Kandarpa Sarma filed WP(C) No. 8019/2001 challenging the order dated 5.8.2001 passed by the Commissioner, Lower Assam Division, Guwahati in appeal No. 36/2000. This Court by the order dated 26.11.2001 passed in WP(C) No. 8019/2001 stayed the impugned order dated 5.8.2001 passed by the Commissioner.

4. In view of the stay granted by this Court, Sri Kandarpa Sarma is still continuing as Gaonburah. The case of Sri Rajeswar Das is that he is a member of the family of the former Gaonburah and, therefore, entitled to appointment to the post which fell vacant after his uncle resigned from the said post. Sri A.K. Purkayastha laid emphasis on the relationship between Rajeswar Das and the former Gaonburah and submitted that as per Government instructions applicable, preference ought to have been given to Rajeswar Das. Sri P.K. Tiwari, learned counsel submitted that Kandarpa Sarma, petitioner in WP(C) No. 8019/ 2001 was selected by the competent authority after necessary test/ interview on evaluation of overall suitability and, as such, the Additional Deputy Commissioner as well as the Commissioner erred in law in reversing the decision of the Selection Committee. According to Sri Tiwari, family relationship cannot be given precedence of suitability.

5. The provisions relating to appointment of Gaonburah are embodied in the Executive Instruction No. 162(A). The Executive Instruction provide that besides the claim of family membership of Gaonburah, suitability of the person for the post has to be taken into consideration along with the views of the Mouzadar. There is also no dispute with regard to the fact that Kandarpa Sarma was found more suitable for the post than Rajeswar Das. Sri Das claims himself to be a better candidate on the ground that he is related to the outgoing Gaonburah who had tendered his resignation. The question, therefore, is whether relationship with the family of the earlier Gaonburah would alone be enough for the purpose of selection. A reading of the Executive Instruction 162(A) clearly shows that apart from relationship, suitability of the person for the post is an important factor for selection and appointment to the post of Gaonburah. It will be perilous to hold that relationship with the family of the Gaonburah despite deficiency in merit would be determinative in selecting a person for appointment. Executive Instruction No. 162(A) has to be read as a whole. A reading as such would show that preference to a member of the family as contemplated cannot be a ground for complete ouster of an eligible and more suitable candidate. For family relationship some weightage may be permissible for assessment of overall suitability. A Division Bench of this Court in Narendra Nath Kalita v. State of Assam, (1992) 1 GLR 89 held the Executive Instructions to be the sole guideline and basis for selection and appointment of Gaonburah. This is also the view available in Lilambar Bora v. Deputy Commissioner, Nagaon and Ors., 1996 (2) GLT 615. The Executive Instructions issued in exercise of constitutional powers conferred under Article 162 will have binding force and shall be enforceable unless replaced by any Act of the legislature. The Executive Instruction 162(A) provides for preference to the member of the family of the Gaonburah. The expression 'claim of the family of the Gaonburah' cannot be stretched to include near or distant relative of the Gaonburah. Rajeswar Das is a nephew of the earlier Gaonburah and does not belong to his family. The expressions 'near relative' and 'distant relative' are always vague and ambiguous unless clearly defined in the relevant text. Therefore, Sri Rajeswar Das, in the considered opinion of this Court, cannot be treated as a member of the family of the erstwhile Gaonburah for the purpose of any weightage for selection. It can be perceived that the purpose of giving preference to a member of the family of the Gaonburah is that he is expected to have better knowledge of the day today functioning of a Gaonburah. But it must be subject to overall suitability. A liberal construction of the instruction would result in appointment of undesirable democracy the concept of preference on the basis of family relationship cannot be encouraged. It is merit which alone would prevail. Otherwise, it would frustrate the very purpose of advertisement for selection and appointment if the claim of a family member, whether near or distant, is declared decisive in the matter of appointment.

6. The first and second appellate authority were also patently in error in imposing a decision of their own instead of referring the matter to the Selection Committee for re-consideration. However, in the given circumstances of the case, this Court is of the opinion that no interference with the decision of the Selection Committee is warranted.

7. It has been argued that the writ petition is not maintainable since a review petition filed by Sri Kandrapa Sarma is pending with the State Government. There is no dispute with regard to this proposition of law. In 2000 (2) GLT 614, State of Assam and Ors. v. Jhanendra Choudhury law has been propounded to this effect. However, in para 18 of the writ petition filed by Kandarpa Sarma, it has been submitted that the interim order was urgently necessary for suspending the order of the Commissioner, Lower Assam Division. The State Government as reviewing authority did not pass any order and simply kept the review petition pending. This prompted Sri Sarma to approach this Court and the learned Single Judge while issuing notice by the order dated 26.11.2001 allowed Sri Sarma to continue as Gaonburah pursuant to his appointment in the year 1999 and stayed the order passed by the Commissioner, Lower Assam Division, The order of stay was passed by the learned Single Judge being satisfied as to the maintainability of the writ petition and, therefore, at this belated stage it would not be in aid of justice to non-suit the writ petitioner on the ground of maintainability. When substantial justice is possible on factual matrix, it should be done without relegating the parties to earlier position.

8. In the result, WP(C) No. 8019/2001 is allowed and the interim order dated 26.11.2001 passed by this Court is hereby made absolute. The order passed by the Commissioner, Lower Assam Division is hereby set aside. Sri Kandarpa Sarma shall continue as Gaonburah of Titka Garia Gaon, Mouza Sariha in the district of Barpeta. Consequently, WP(C) No. 4169/2000 is dismissed.

9. No costs.