Fulsan Ali vs The State Of Assam And 6 Ors
2021 Latest Caselaw 2918 Gua

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GAHC010125572014




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

                          Case No. : WP(C)/3536/2014

         FULSAN ALI
         S/O IYAR BAKS, R/O KAHIBARI, P.O. DHAKUA, MOUZA- BARPETA, DIST-
         BARPETA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPT. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
         ASSAM, REVENUE DEPT., DISPUR, GHY-6

         2:THE Y. COMMISSIONER
          BARPETA
          DIST- BARPETA
         ASSAM

         3:THE SELECTION COMMITTEE
          CONSTITUTED FOR SELECTION OF GAONBURA OF CHARGE NO.4 OF
         BARPETA MOUZA
          DIST- BARPETA
          REPRESENTED BY ITS CHAIRMAN
         ADDL. DY. COMMISSIONER
          BARPETA
          DIST- BARPETA
         ASSAM

         4:THE ADDL. DY. COMMISSIONER SADAR
          BARPETA
          DIST- BARPETA
         ASSAM

         5:THE ADDL. DY. COMMISISONER
          REVENUE
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             BARPETA
             DIST- BARPETA
             ASSAM

            6:THE CIRCLE OFFICER
             BARPETA REVENUE CIRCLE
             BARPETA
             DIST- BARPETA
            ASSAM

            7:JAHANGIR ALI
             S/O AHMED ALI
             R/O TEMURA
             MOUZA- BARPETA
             CHARGE NO.4
             DIST- BARPETA
            ASSA

Advocate for the Petitioner   : MR.A TALUKDAR

Advocate for the Respondent :




                                       BEFORE
             THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
                              ORDER

17.11.2021 Heard Mr. R. Sarma, the learned counsel for the petitioner. Also heard Mr. D. Nath, the learned Senior Government Advocate, Assam.

The petitioner by way of this writ petition, challenges the appointment of respondent No. 7 as the Gaonburah of Charge No. 4, Mouza- Barpeta under Barpeta Revenue Circle. The basic grievance of the writ petitioner is that he is the nephew of the erstwhile Gaonburah of that charge No. 4. During the lifetime, the earlier Gaonburah who happens to be his paternal uncle issued a certificate to the effect that he was suffering from incurable deceased and he is Page No.# 3/7

bed ridden. Since both of his sons are in Government job, he requested the authority to engaged his nephew i.e. the present writ petitioner as Gaonburah of the Kahibari village i.e. Charge No. 4. Such certificate was issued on 02.02.2009. Subsequent to this, the Gaonburah / uncle of the petitioner expired. On expiry of the Gaonburah, the District Administration vide advertisement dated 18.05.2009 invited applications for intending local candidates for filling up the post of Gaonburah of the Charge No. 4 in Mouza- Barpeta under Barpeta Revenue Circle. Pursuant to such advertisement, the petitioner applied for such post.

The claim of the petitioner to the post of Gaoburah is based on his relation with the earlier Gaonburah. According to the petitioner, as per the provision of Executive Instruction No. 162A appended to the Assam Land Revenue Regulation, 1886, a preferential treatment should be given to the family members of the Gaonburah. Since the petitioner is a family member of the Gaonburah and the respondent authorities were well aware of such fact by virtue of the certificate dated 02.02.2009, the respondent authority has committed serious illegality by not awarding any mark against that column (being family member of the Gaonburah) and thus deprived of the petitioner of his legitimate right.

Mr. Sarma contends that a nephew will come within the definition of a family and to supplement such submission, Mr. Sarma relied on a judgment passed by the Hon'ble Division Bench of this Court and reported in 2006 (4) GLT 925 (Rajeswar Das -Vs- Assam of Assam and others). In the said judgment, this Court came to a conclusion that the expression family used in Executive Instruction 162(A) appended to the Assam Land Revenue Regulation, 1886, Page No.# 4/7

should not be given a restricted meaning. A nephew in the given context of the rural environment cannot be said to be not the member of the family. In view of such judicial pronouncement, Mr. Sarma submits that the respondent authority has committed serious irregularity and thereby violated his right under Article 14 of the Constitution of India.

The further case of Mr. Sarma is that there is a provision for appeal under Executive Instruction 162 (B) appended to the Assam Land Revenue Regulation, 1886 and according to such provision, an appeal lies to the Commissioner, Lower Assam Division within a period of 60 days. Though the petitioner preferred an appeal but the same was dismissed being barred by limitation. According to Mr. Sarma, the appellate authority ought to have condoned the delay as the appellate authority is having inherent power to condone such delay, thou there is no express provision. Thus, according to Mr. Sarma, learned Counse, the appellate authority has also committed serious illegality and this court should intervene in exercise of its extraordinary power. Accordingly, this Court should condone such delay and the appellate authority should be directed to re-hear the matter afresh.

Per contra, Mr. D. Nath, the learned Senior Government Advocate, Assam with support of the pleadings of the respondent authority submits that during the selection procedure, not only the petitioner, all together six persons claimed to be nephew of the earlier Gaonburah and sought for preferential accommodation. Further the stand has been taken in the affidavit that though the petitioner claimed to be the nephew of the earlier Gaonburah no supporting document was either annexed with the application or has been submitted during the interview inasmuchas, the condition of the advertisement stipulates that the Page No.# 5/7

persons who are called to appear in the interview was bound to produce all the certificate at the time of interview. Therefore, according to Mr. Nath, in absence of any materials before the interview board, the interview Board could not have granted any mark to the petitioner he being the nephew. Therefore, the selection committee has not committed any error. It is the fault of the petitioner for whom such situation has arisen. Further altogether the six persons over and above the petitioner, also claimed to be the nephew of the petitioner. So such preference could not be granted to a single person.

Though, a time was sought for and was granted to the petitioner vide order dtd,10.11.2021 to file reply affidavit, no such reply affidavit has been filed by the petitioner. Thus the stand taken by the respondents in their affidavit in opposition remained uncontroverted.

This Court has given an anxious consideration to submissions of the learned Counsel and also have gone through their pleadings.

There is no dispute at the bar that the Executive instruction 162A appended to the Assam Land Revenue Regulation, 1886 mandates for a preferential treatment to the family member of former Gaoburah, in the selection process for filling up of the post of Gaoburah. There is also no controversy to the legal proposition as laid down in Rajeswar Das (Supra). In fact, the record reveals that the application porforma appended to the connected advertisement dated

18th May'2009, provides for declaration of relation with former Gaoburaha in the Serial No.6 (row 6). The calling letter dtd.21.05.2010, (Annexure-G) addressed to all the applicant including the petitioner for interview mandates for production of all necessary certificates.

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The specific case of the respondent is that the petitioner has not submitted any certificate in proof of his claim of being nephew of the former Gaoburah. Such, assertion of the respondents not being controverted by the petitoner, the Court is left with no option but to hold that the respondent selecting authority can not be faulted with for non granting of Mark to the petitioner on his claim of being nephew of the former Gaoburah.

In the backdrop of the conduct of the petitioner as discussed above, the petitioner is not having any right to question the decision of the selection committee for not granting the mark for he being the nephew of the former Gaonburah, as the petitioner has not submitted any such proof/certificate either along with his application or submitted at the time of interview. Thus the petitioner does not qualify under the category of family member of the earlier Gaonburah. It is settled law that the scope of judicial review of Court and / or Tribunal in matters of selection is extremely limited. The recommendation of selection committees could not be challenged except on grounds of malafide or violation of statutory rule or violation of right under Article 14 or 16 of the Constitution of India. Court cannot sit as an appellate authority to examine the recommendation or finding of a selection committee. It is not the business of the court to examine the recommendation of the selection committees for evaluating and substituting its opinion for that committee. In the case in hand, it is apparent that the petitioner could neither been able to bring melis or arbitrariness on the part of the respondent authorities.

Since, the matter has been argued on merit of selection process and in view of the forgoing paragraph holding the selection process to be valid, this court is not inclined to adjucate the validity of the decision of the Appellate Authority Page No.# 7/7

dismissing the appeal on the ground of limitation inasmuch as even in the event of remanding the matter condoning the delay, the appellate authority will be bound by the decision of this Court.

In view of the aforesaid discussion and reasons, this writ petition is dismissed however no order as to the cost.

JUDGE

Comparing Assistant