Noushad Ali vs The State Of Assam And 4 Ors
2023 Latest Caselaw 4260 Gua

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GAHC010086992022




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

                            Case No. : WP(C)/3053/2022

          NOUSHAD ALI
          S/O TAIJUDDIN AHMED, VILL-DURGAMARI, P.O.-BIDYAPUR, P.S.-
          BONGAIGAON, DIST-BONGIAGAON, ASSAM, PIN-783380


          VERSUS

          THE STATE OF ASSAM AND 4 ORS.
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
          OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI-6

          2:THE DISTRICT DEFENCE OFFICER CUM SUPERINTENDENT OF POLICE
           BONGAIGAON
          ASSAM

          3:THE CIRCLE ORGANIZATIONER OF VILLAGE DEFENCE ORGANIZATION
           BONGAIGAON
          ASSAM

          4:THE SUB-DIVISIONAL DEFENCE OFFICER CUM OFFICER-IN-CHARGE
           BONGAIGAON POLICE STATION
           P.O. AND P.S.-BONGAIGAON
          ASSAM

          5:PIYAR ALI SARKAR
           S/O NURUL HAQUE
          VILL-DURGAMARI
           P.O.-BIDYAPUR
           DIST-BONGAIGAON
          ASSAM, PIN-78337

Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : GA, ASSAM

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BEFORE Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioner : Shri M. U. Mahmud, Advocate.

Advocate for the respondents : Shri D. Borah, GA.

Date of hearing               : 12.10.2023
Date of judgment               : 12.10.2023



                              JUDGMENT & ORDER

Heard Shri M. U. Mahmud, learned counsel for the petitioner. Also heard Shri D. Borah, learned State Counsel. This Court in its last order dated 04.10.2023 has also recorded that the service upon the respondent no. 5 was deemed to be complete as he had refused to accept notice of this case said by Dasti and in that regard, an affidavit has also been filed.

2. The present challenge made in this writ petition is with regard to filling up of the post of Secretary of the Durgamari Village Defence Party (VDP) in the district of Bongaigaon. It is the case of the petitioner that he was the earlier Secretary for the tenure from 20.05.2016 to 06.03.2022. After completion of the term of the VDP, which is 5 years, the said VDP was required to be reconstituted. The petitioner and the respondent no. 5 were contenders for the post of the Secretary.

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3. A General Meeting was held on 27.02.2022 in the presence of the concerned persons including the In-charge of Bidyapur Outpost and the OC of Bongaigaon PS. In the said meeting, it was resolved that though there were certain allegations against the petitioner, the same were found to be false and the meeting had ultimately left the decision to be taken by the OC and IC of the concerned police station and outpost. The said two officers, after deliberation and considering the credibility of the two candidates had selected the petitioner as the Secretary of the said VDP and accordingly the VDP was constituted with the petitioner as its Secretary. The grievance of the petitioner is however with regard to a communication dated 07.04.2022 issued by the Superintendent of Police, Bongaigaon of constitutions of various VDPs under the Bongaigaon PS and so far as the Durgamari VDP is concerned, the respondent no. 5 has been shown to be the Secretary.

4. Shri Mahmud, the learned counsel for the petitioner has submitted that there are no reasons for ignoring the claim of the petitioner and also to take a contrary stand after the General Meeting has selected the petitioner for the said post. It is further submitted that in the said meeting, the officials of the concerned Thana were there who had taken into account the credentials of the two candidates and came to a finality to select the petitioner and that decision was not the matter of any challenge. He, accordingly, submits that the impugned communication, so far as it relates to Durgabari VDP is liable to be set aside and a direction be issued to have the said Committee constituted with the petitioner as its Secretary. The learned counsel has also submitted that the records would show that the majority of the people are in support of the petitioner and for some extraneous consideration and political influence, the Page No.# 4/6

respondent no. 5 has been sought to be favoured.

5. Per contra, Shri D. Borah, the learned State Counsel has submitted that the projection made by the petitioner is not correct. By referring to the affidavit- in-opposition filed on 29.07.2022, it is submitted that the tenure of the earlier Committee in which the petitioner had served as a Secretary was already over and therefore a chance has been given to the respondent no. 5. He has also drawn the attention of this Court to the communication dated 30.03.2022 by the OC whereby the name of the respondent no. 5 has been forwarded. He submits that in the General Meeting, there is a mention about there being certain complaints against the petitioner and these factors were taken into consideration before taking the impugned decision.

6. Responding to the said submissions, Shri Mahmud, the learned counsel for the petitioner has submitted that though there were certain stray allegations against the petitioner, the Minutes of Meeting dated 27.02.2022 itself makes it clear that such allegations were held to be false. With regard to the completion of the earlier tenure, the learned counsel for the petitioner has submitted that there is no bar for re-appointment of an incumbent as Secretary of a VDP and in this regard, he has referred to a list annexed to the affidavit-in-reply dated 21.09.2022 wherein many incumbents have been appointed for further tenures after completion of the initial tenure of 5 years. The learned counsel has also submitted that even in terms of qualification, the petitioner is better qualified being having passed the Higher Secondary Examination whereas the respondent no. 4 does not have any formal education.

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7. The rival submissions made by the learned counsel for the parties have been duly considered.

8. The impugned order dated 07.04.2022 by which the respondent no. 5 has been made the Secretary of the VDP in question does not contain any reasons. This Court has also seen that the order is contrary to the resolutions taken in the General Meeting dated 27.02.2022 whereby the petitioner was found to be more suitable and in fact the VDP was constituted with the petitioner as the Secretary. This Court has also noticed that the respondent no. 2 in his first affidavit dated 29.07.2022, more particularly in paragraph 5 thereof has stated that the service of the petitioner as the VDP in the earlier tenure was satisfactory. The petitioner has also made a categorical statement in his reply affidavit in paragraph 8 that it is only because of political interference that the impugned order has been passed.

9. Though the learned State Counsel has tried to defend the impugned decision by stating that the matter for appointment was left to the officers of the concerned police station pursuant to which the letter dated 30.03.2022 was issued, the Minutes of the General Meeting dated 27.02.2022 which is a part of the records would itself show not only the meeting was attended by the said officers, a conscious decision was taken to appoint the petitioner as the Secretary of the VDP. Under such circumstances, this Court is of the opinion that there is no acceptable reasons as to why the impugned communication dated 07.04.2022 was issued by excluding the petitioner from the post of Secretary and replacing his name by the respondent no. 5. Such communication does not appear to be based on any relevant consideration and rather appears to be Page No.# 6/6

cryptic and based on some irrelevant and extraneous considerations.

10. This Court in exercise of powers under Article 226 of the Constitution of India is required to examine the decision making process and in the instant case, the culmination of the decision making process does not appear to be in consonance with the materials placed before this Court, more particularly the Minutes of the General Meeting held on 27.02.2022. This Court is also unable to accept the defence made on behalf of the respondents that the tenure of the petitioner being over, he was not appointed. There being no bar in the rules for re-election and there being materials in on record to show that incumbents are allowed to be re-appointed, this Court cannot accept the said ground of defence.

11. Accordingly, the writ petition stands allowed and the impugned communication dated 07.04.2022, so far as it relates to formation of the Durgamari VDP with the respondent no. 5 as the Secretary is set aside.

12. Accordingly, the said VDP is directed to be constituted with the petitioner as its Secretary in consonance with the Minutes of the General Meeting dated 27.02.2022 in which the officers of the concerned Thana were also present and had taken the decisions.

13. Writ petition accordingly stands allowed.

14. No order as to cost.

JUDGE

Comparing Assistant