Allowed

Md. Nurul Hauqe v. the State of Assam and Ors.

Gauhati HC6 Feb 2018WP(C)/2373/2010

Case brief

AI extract

What is this about?

The court allowed a writ petition seeking the appointment of a Gaonburah. It set aside an appointment order made after a fresh advertisement, holding that the respondent authorities erred by not revisiting the earlier process as directed by the High Court to accord preferential consideration to the son of the former appointee.

What did the court decide?

The impugned appointment order dated 23.3.2010 was set aside and the matter was remitted to the Deputy Commissioner, Darrang, for reconsideration of the petitioner's claim based on the earlier appoint

Md. Nurul Hauqe Vs the State of Assam and Ors. — Service and Employment | Gauhati HC (2018)

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Page No.# 1/5

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GAHC010198922010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2373/2010

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1:MD. NURUL HAUQE

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S/O LT.IDRIS ALI, VILL. TARAGAON, P.O. CHENGLIAJAN, P.S. SIPAJHAR DIST DARRANG,ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND ORS

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REP. BY COMMISSIONER AND SECY. TO THE GOVT.OF ASSAM, REVENUE DEPTT, DISPUR, GHY-6

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2:THE COMMISSIONER NORTHERN ASSAM DIVN TEZPUR.

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3:THE DY.COMMISSIONER

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DARRANG DIST P.O.MANGALDOI DARRANG

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4:THE ADDL.DY. COMMISSIONER REVENUE DARRANG DIST. P.O. MANGALDOI

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5:MD. AFAZUDDIN AHMED S/O MOHAMMAD FARHAD VILL. TARAGOAN P.O.CHANGLIAJAN P.S. SIPAJHAR DIST DARRANG

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Advocate for the Petitioner : MR.R ALI

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Advocate for the Respondent : MR. M. R. ADHIKARI, GA, ASSAM

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Page No.# 2/5

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BEFORE HONOURABLE MR. JUSTICE HRISHIKESH ROY

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JUDGMENT

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06-02-2018.

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Heard Mr. R. Ali, the learned counsel appearing for the petitioner. The respondent Nos.1—4, are represented by Mr. M.R. Adhikari, the learned Govt. Advocate. However the respondent No.5 is unrepresented.

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The matter pertains to appointment of the Gaonburah of village Taragaon of the Patharighat Revenue Circle, in Darrang District. the petitioner’s father Late Idris Ali served as the Gaonburah for over three decades but due to ill health, he put in his resignation in the year 2001.

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The Gaonburah’s vacancy was advertised on 11.10.2001 and the petitioner as the son of the former Gaonburah, offered his candidature along with other contenders. On 12.3.2001, Md. Afazuddin Ahmed (respondent No.5) was appointed as the Gaonburah. Since preferential consideration was not shown for the son of the former Gaonburah, the petitioner filed an Appeal before the Commissioner, North Assam Division, to challenge the appointment of the respondent No.5. The Appellate Authorities noted that the petitioner is the son of the former Gaonburha and accordingly he is entitled to preferential consideration, under Clause 162 of the Executive Instruction, under the Assam Land & Revenue Regulation, which requires the appointing authority to consider the claims of the family members of the former Gaonburhas.

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The authority opined that unless there is something adverse against the applicant, who is a family member of the former Gaonburah, he is entitled to preferential consideration over other candidates. On this basis, under the order dated 5.10.2002 (Annexure-2), the appointment of Md. Afazuddin Ahmed (respondent No.5), was quashed by the Division Commissioner and the Dy. Commissioner, Darrang, was directed for reconsideration of claim of the appellant.

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Aggrieved by the above decision of the Commissioner, North Assam Division, Md. Afazuddin Ahmed filed the WP(C) No.6771/2002 and this case was dismissed on 14.5.2009 (Annexure-3), with the following observation:

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“………………… .

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11. Under Clause 162(d) it is provided that the State Govt. has a power of review against the order passed by the Deputy Commissioner and the State Govt. on receipt of such application for review, after giving

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Page No.# 3/5

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reasonable opportunities of being heard to the parties, may either affirm or set aside the order of the Commissioner or remit the case directing him to take further action or enquiry as considered appropriate in the circumstances of the case. The petitioner, however has not availed the aforesaid remedy by way of review as provided under Clause 162(d), framed under the Regulation.

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12. From the overall considerations and the aforesaid discussions, I have no hesitation to hold that the Deputy Commissioner, Darrang, Mangaldoi in selecting the petitioner to the post of Gaonburah committed error apparent on the face of the record in the decision making process by not considering the relevant facts that was mandatorily required to be considered for selecting the candidate. On such consideration the learned Commissioner, North Assam Division set aside the order of appointment of the petitioner as Gaonburah and remanded the matter back to the Deputy Commissioner for fresh consideration of the claim of the respondent No.5.

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11. In view of what has been discussed above, I do not find any reason to interfere with the impugned order dated 1.10.2002, passed by the Commissioner, North Assam Division. Consequently, the writ petition fails and it stands dismissed.

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12. It is further directed that the Deputy Commissioner, Darrang, in terms of the directions contained in the appellate order shall dispose of the matter, as expeditiously as possible and at any rate not later than 3 months from the date of receipt of a certified copy of this order, giving opportunities to the parties.

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……………………… .”.

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Then the Writ Appeal No.211/2009, was filed by Md. Afazuddin Ahmed but this case came to be withdrawn on 21.9.2010, as infructuous.

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However, during the pendency of the Writ Appeal, the Deputy Commissioner, Darrang, Mangaldoi issued the advertisement 20.2.2010 (Annexure-6), for appointment of the Gaonburah in the Taragaon village and after a purported selection, Md. Afazuddin Ahmed (respondent No.5), was appointed afresh, under the impugned order dated 23.3.2010 (Annexure-10).

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The learned counsel Mr. R. Ali submits that when the direction of the Commissioner, North Assam Division and the High Court was for reconsideration of the selection exercise with due preference for the family member, there was no justification for issuance of a 2^nd advertisement to invite fresh applications for the vacancy. The petitioner argues that since preferential consideration was not made in the earlier exercise, the authority should have revisited the earlier process to consider the candidature of the son of the former Gaonburah, in accordance with Clause 162 of the Executive Instruction, under the Assam Land & Revenue Regulation. However, instead of complying with the direction of the High Court, which affirmed the decision of the Divisional Commissioner, the Dy. Commissioner had erroneously decided to issue the 2^nd advertisement to fill up the vacancy, in the Taragaon village.

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Appearing for the official respondents, Mr. M.R. Adhikari, the learned Govt. Advocate submits that the Gaonburahs are to be appointed by the Dy. Commissioner and not only the claim of the family member of the former Gaonburah is to be considered, the suitability of the person should also be assessed. The Govt. Advocate however submits that under the directions of the Division

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Commissioner and the High Court, the Dy. Commissioner should have re-visited the earlier process instead of going for a fresh advertisement.

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The petitioner’s father Md. Idris Ali was appointed as the Gaonburah of Taragaon village on 21.4.1970 and after blemishless service of over 30 years, the Gaonburah resigned for ill health, in the year 2001. When the advertisement for the vacancy was issued on 11.10.2001, the petitioner as the son of the former Gaonburah, applied and was hoping for preferential consideration. But the Divisional Commissioner found in his order dated 5.10.2002 (Annexure-2), that the appointment of Md. Afazuddin Ahmed was made by disregarding the provisions of Clause 162 of the Executive Instruction, under the Assam Land & Revenue Regulation. Thus direction was issued for redoing the exercise with preferential consideration for the son of the former Gaonburah.

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Notwithstanding the remand of the matter for re-consideration, the Dy. Commissioner started a fresh process of recruitment, by issuing the 2^nd advertisement dated 20.2.2010 and this, in my perception, was wholly unjustified. This is because the direction of the Commissioner, as was upheld by the High Court was to re-visit the earlier process, instead of initiating a 2^nd process of recruitment, through advertisement.

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That apart, when Md. Afazuddin Ahmed (respondent No.5), was re-appointed on 23.3.2010 (Annexure-10), the claim of the son of the former Gaonburah, was ignored again. If a family member is unsuitable, he need not be appointed and the test of suitability is permissible, under Clause 162 of the Executive Instruction, of the Assam Land & Revenue Regulation. But here in the first process, no such exercise was undertaken.

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On perusal of the order passed by the Commissioner, North Assam Division on 5.10.2002 (Annexure-2) and the order of the High Court, in the WP(C) No.6771/2002, recorded on 14.5.2009 (Annexure-3), it is apparent that the Dy. Commissioner was required to re-visit the earlier process and make the due consideration with weightage to the candidature of the son of former Gaonburah. But this was not done and instead a 2^nd advertisement was issued and Md. Afazuddin Ahmed (respondent No.5) was re-appointed on 23.3.2010 (Annexure-10), although his earlier appointment made on 12.3.2001, was quashed by the Commissioner of North Assam Division. The method adopted by the authorities was faulty and accordingly, the decision making process leading to the issuance of the appointment order dated 23.3.2010 (Annexure-10), is found to be vitiated.

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In view of such conclusion, the Writ Petition is allowed and the matter is remitted back to the authorities for re-consideration of the case of the petitioner in terms of the direction dated 5.10.2002

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(Annexure-2), of the Commissioner, North Assam Division. The re-consideration should be in pursuant to the earlier advertisement dated 11.10.2001 and the 2^nd advertisement dated 20.2.2010 (Annexure6), should not be made the basis for the process. The ordered exercise be carried out expeditiously and preferably within a period of eight (8) weeks, from receipt of intimation. To facilitate the exercise, the petitioner may furnish a copy of this order to the Dy. Commissioner, Darrang, for necessary compliance. It is ordered accordingly.

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With the above order, the case stands allowed, without any order on cost.

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JUDGE

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Comparing Assistant

Md. Nurul Hauqe v. the State of Assam and Ors.

Case brief

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Md. Nurul Hauqe v. the State of Assam and Ors.

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