Gauhati High Court
Page No.# 1/6 vs The State Of Assam And 7 Ors Represented ... on 28 February, 2025
Page No.# 1/6
GAHC010196352024
2025:GAU-AS:2098-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/353/2024
RAJA ALI
S/O LATE NURUL AMIN, R/O VILL-PUTHIKHAITY
(GHUNABARI), P.O.-RUPAHI, DIST-NAGAON, ASSAM, PIN-782125.
VERSUS
1: THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE CHIEF
SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-781006.
2:THE ADDITIONAL CHIEF SECRERTARY TO THE GOVT. OF ASSAM
DISPUR GUWAHATI-781006.
3:COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPARTMENT DISPUR
GUWAHATI-6.
4:THE COMMISSIONER OF CENTRAL ASSAM DIVISION
NAGAON CAMP GUWAHATI.
5:THE DEPUTY COMMISSIONER NAGAON CHAIRMAN OF SELECTION
BOARD FOR GAONBURAH POSTS IN NAGAON DISTRICT DIST- NAGAON
ASSAM PIN-782001.
6:THE ADDITIONAL DEPUTY COMMISSIONER (G.B)
NAGAON DIST-NAGAON ASSAM PIN-782001.
7:THE CIRCLE OFFICER SAMAGURI REVENUE CIRCLE
SAMAGURI P.O.-SAMAGURI DIST- NAGAON ASSAM PIN-782140.
8:SAFIQUE AHMED
S/O BASHIR AHMED VILL-BATAMARI
P.O.-RUPAHI DIST- NAGAON ASSAM PIN-78212.
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For the Appellant(s) : Mr. N. Gautam, Advocate.
For the Respondent(s) : Mrs. R.B. Bora, Junior Govt. Advocate, Assam for respondent Nos.1, 2,
4, 5, 6 & 7.
: Mr. S. Dutta, Advocate for respondent No.3.
: Mr. T.J. Mahanta, Senior Advocate, Assisted by Mr. S. Alom, Advocate
for respondent No.8.
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
28.02.2025
(Vijay Bishnoi, CJ)
This writ appeal is filed laying a challenge to the judgment & order
dated 30.08.2024 passed by the learned Single Judge in WP(C) No.6774/2022,
whereby the writ petition filed by the appellant has been dismissed.
2. The dispute is regarding the appointment of Gaonburah in Tamulitup
Batamari village in the district of Barpeta. Several writ petitions were filed in
relation to the appointment for the post of Gaonburah in the above referred
village, details of which have already been noted and considered by the learned
Single Judge in the impugned judgment. However, WP(C) No.6774/2022 was
preferred on behalf of the appellant challenging the order of appointment of the
respondent No.8 herein, Safique Ahmed, who was also respondent No.8 in the
writ petition, wherein the order dated 07.07.2022 was put to challenge, whereby
pursuant to the direction issued by this Court in WP(C) No.2453/2022, the
reviewing authority has allowed the review petition preferred on behalf of the
respondent No.8 leading to his appointment as Gaonburah of the above referred
village.
3. The challenge of appointment of the respondent No.8 as Gaonburah
was made on the ground that the Executive Instructions 162 of the Assam Land
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& Revenue Regulations, as amended, had not been followed in its letter and
spirit. Another argument which was pressed into service was that the Finance &
Accounts Officer (FAO) had participated in awarding the marks in the process of
selection though he was not a part of selection process as per the Scheme.
Another allegation of the appellant was that the marks were not fairly awarded
but were awarded to favour the respondent No.8.
The claim of the appellant before the Writ Court was contradicted by
the State Counsel, Standing Counsel for Revenue Department as well as the
counsel for the respondent No.8.
4. The learned Single Judge, after hearing the parties, has dismissed
the writ petition. Relevant portion of the impugned judgment is reproduced
hereunder:-
"9. The rival submissions have been duly considered and the
materials placed before this Court have carefully examined.
10. The challenge is based on the ground that the advertisement
dated 23.10.2018 is not in accordance with the prescription of the rules
namely Executive Instruction 162 (2). To examine the argument/aspect that
many of the prescription of the Rules have not been incorporated in the
advertisement, this Court has carefully looked into the advertisement dated
23.10.2018. A bare look would reveal that apart from the seven number of
criteria laid down in the advertisement, there is a specific mention that the
requirements would be as per the government order dated 10.04.2018. As
observed above, the aforesaid notification 10.04.2018 pertains to the
amendment of the Executive Instructions. As regards the presence of the
FAO in the selection process, this Court has noted from the records that
though the FAO was present, the markings given are uniform in nature. This
Court also would accept the submission that the FAO was the nominee of
the Deputy Commissioner who is said to be present in all such selection of
Gaonburah. The records which have been placed before this Court not only
contains the consolidated statement of marks but also the breakup. The
petitioner had participated in the selection and was never aggrieved by the
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presence of the FAO. In this regard, it would also be relevant to note that
this Court, in the order dated 14.06.2019 while disposing of WP(C)/
3867/2019 had recorded the submission of the petitioner which is extracted
herein below:
'2) It has been submitted by the learned counsel for the petitioner that
the petitioner will be satisfied for the time being if a direction is issued
to respondent authorities to take necessary steps in accordance with
law for appointment of Gaonburah in respect of Lot No.5 of Tamulitup
and Batamari Village under Khatowal Mouza of Samaguri Revenue
Circle in the District of Nagaon, Assam.'
11. In the case of Madan Lal and Ors. Vs. State of J & K and Ors.,
reported in (1995) 3 SCC 486, the Hon'ble Supreme Court has laid down
that an unsuccessful candidate who participates in the recruitment process
without any objection cannot be allowed to turn around and challenge the
same.
12. With regard to the submission that preference is required to be
given, this Court is of the opinion that the question of preference would come
only when the marks obtained are equal. In this case, it is not in dispute
that the respondent no.8 had secured 46 marks whereas the petitioner had
secured 41 marks.
13. Under the facts and circumstances and the discussions made
above, this Court is of the opinion that no case for interference is made out
and accordingly the writ petition is dismissed. The interim order passed
earlier stands vacated."
5. The learned counsel for the appellant has reiterated that
participation of the FAO in the process of awarding the marks is beyond the
provisions of the Scheme and on this count only the whole selection process
held for the post of Gaonburah of the concerned village is vitiated and is liable
to be set aside.
Another contention of the learned counsel for the appellant is that
as per the Scheme, the appellant being son of former Gaonburah, is required to
be given preference over the respondent No.8.
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On the strength of the above argument, learned counsel for the
appellant has submitted that this writ appeal may kindly be allowed and the
impugned judgment passed by the learned Single Judge may be set aside.
6. Per contra, Mrs. R.B. Bora, learned Junior Government Advocate,
Assam, Mr. S. Dutta, learned counsel for the respondent No.3 and Mr. T.J.
Mahanta, learned senior counsel appearing for the respondent No.8 have
supported the impugned judgment and have argued that the learned Single
Judge has rightly refused to interfere with the matter and, therefore, the writ
appeal is liable to be dismissed.
7. We have considered the submission advanced by the learned
counsel for the appellant to the effect that the presence of the FAO in the
process of awarding marks is unwarranted and is contrary to the Scheme.
The learned Single Judge has dealt with this argument in detail and
has come to a conclusion that the appellant had participated in the selection
without any objection to the presence of the FAO in the selection process. It is
also emphasized that the appellant in WP(C) No.3867/2019 has made a
submission that he would be satisfied if a direction is issued to the respondent
authorities to take necessary steps for filling up the post of Gaonburah of the
concerned village and from the said fact, it can be gathered that he was aware
of the presence of the FAO during the selection process and had accepted the
same without raising any objection and, therefore, now it is not open for the
appellant to turn around and challenge the same.
The learned Single Judge has also observed that the presence of the
FAO in the selection process, being a nominee of the Deputy Commissioner,
cannot be said to be unwarranted. The learned Single Judge has also taken note
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of the fact that though the FAO was present, the marks awarded by him are
uniform in nature. The learned Single Judge has also observed that the question
of preference would only arise in case 2(two) candidates obtain equal marks.
However, since the respondent No.8 has secured more marks than the
appellant, the question of preference will not arise.
8. Learned counsel for the appellant has failed to persuade us to take a
different view than the view as has been taken by the learned Single Judge and
in our opinion, the reasoning given by the learned Single Judge in the impugned
judgment for rejecting the submissions made on behalf of the appellant are just
and proper and not liable to be interfered with.
9. In view of the above discussion, we do not find any merit in this writ
appeal, the same is, therefore, dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
