High Court
Case Details
WP(C) 3117/2010 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mrs. K.Devi, learned counsel for the petitioner and Mr. J.Handique, learne d Govt. Advocate, Assam for Respondent Nos.1 to 4. Mr. M.Choudhury, learned coun sel appears for Respondent No.5. There is no representation on behalf of Respond ent No.6. Matter relates to selection and appointment of Gaonbura. In the present proceeding, petitioner has challenged selection and appointment of Respondent No.5 as Gaonbura of Borigog and Kahikuchi villages in the district of Kamrup (R ural). From the pleadings and documents placed on record, it appears that there has bee n a keen contest for holding the said post. Matter had reached this Court on ear lier occasions also. However, for the purpose of adjudication of the present pro ceeding, a detailed narration of facts of earlier proceedings may not be necessa ry. Suffice it to say that the challenge is to the order dated 2.2.2010 passed by the Sub-Divisional Officer, Rangia appointing Respondent No.5 as Gaonbura f ollowing selection. A perusal of the aforesaid order would indicate that the sa me was passed following a selection held in which Respondent No.5 was selected out of 4 candidates in terms of order of the Commissioner, Lower Assam Division dated 13.3.2009. The said order was passed on an appeal filed by Respondent No.6 , who was also one of the contenders for the said post of Gaonbura. Earlier sele ction proceedings were examined by the Commissioner and those were found to be not in accordance with law. Consequently, direction was issued to re-advertise the post and to make appointment as per law. Petitioner has contended that his father late Rajat Chandra Dutta was the Gaonbu ra of the village. He had assisted his father in the discharge of his duties a s Gaonbura and he himself had also discharged the duties of Gaonbura independe ntly for sometime. Respondent No.5 is the son of the brother of petitioner’s father. Petitioner being the son of late Gaonbura, he has better claim than Res pondent No.5, who is the nephew of late Gaonbura. Respondent No.5 also did not h ave any experience. The proceedings of the selection have been placed on record. Mr. Handique, learn ed Govt. Advocate has also placed before the Court the original selection papers for perusal. The criteria for selection and the marks to be awarded to the cand idates were decided by the Interview Board as under :- (cid:28) 1. Educational Qualification :- 10 Marks (Below HSLC =3 HSLC passed =5 HS Passed =8 Degree& above =10) 2.Experience :- 10 Marks. 3.Suitability :- 10 Marks 4.Whether belongs to Gaon Burah’s Family :- 10 Marks 5.Views of Mouzadar :- 10 Marks. (Total :- 50 Marks). (cid:29) Marks obtained by the respective candidates as can be seen from the selection r ecord are as under :- Name of G.B. Candidate with address Sl.No. Educational Qual ification=10 Below HSLC =3 HSLC Passed=5 H.S .Passed =8 Degree & Above Experience =10 Suitability =10 Whether belongs to Gaonburah’s Family =1 Views of the Mouzadar =10 Total Marks =50 Remark Age Sex =10 0 1 2 3 4 5 6 7 8 9 10 Hitesh Kr.Dutta S/o late Rajat Ch.Dutta, Vill- Nij Barigog, PO- Kaniha M 39 years 2 month 34 Male 05 HSLC Passed 05 Hari Prasad Kalita S/O-Late Rikhab Ch.Kalita Vill-Kanikuchi,PO-Kaniha PS 10 Male 03 Read upto Class-IX 03 03 - 15 Putul Ali S/O-Late Nausad Ali(Ex G.B,), Vill- Niz Barigog 06(should be 3) Read upto Class-IX 04 06 10 28 years 06 11 1 ouza-Pub Barigog PS-Rangia 08 06 2 -Rangia 33 years 06 3 Male‘ 29 4 za-Pub Barigog PS- Rangia 10 Passed 08 08 Chakrapani Dutta S/O-Late Deben Ch.Dutta Vill-Nij Barigog, PO-Kaniha Mou 05 HSLC Male 51 years, 10 month & 6 days. 06 37 Thus, petitioner secured 34 marks whereas Respondent No.5 secured 37 m arks and was accordingly selected.It is seen that both the petitioner and the Re spondent No.5 were given equal marks i.e., 10 under the heading Gaonbura’s fam ily. In the minutes of selection, it is stated that both son and nephew of late Gaonbura were given equal weightage. Under the heading experience, petitioner w as awarded 6 marks as against 8 marks awarded to Respondent No.5. Nothing is di scernible from the selection record as to on what basis the above marks were awa rded.
Legal Reasoning
Provisions for selection and appointment of Gaonbura are laid down in Clauses 162 and 162A of the Executive Instructions to the Assam Land and Reven ue Regulation 1886. As explained by this Court in the case of Rajeswar Das vs. State of Assam & Ors., reported in 2006(4) GLT 925, in the matter of appointment of Gaonbura, 3(three) factors are required to be taken into consideration. Thes e factors are :- (1) (2) (3) Claim of the family of the Gaonbura, Views of the Mouzadar, Suitability of the person for the post. This Court in Rajeswar Das (Supra) was of the opinion that all things bein g equal, the claim of the family member of the Gaonbura may have to be preferred but not at the cost of suitability of the person. This Court after taking the view that the expression (cid:28)family (cid:29) used in the executive instructions should not be given a restricted meaning, observed that in rural set up, a nephew can also be said to be a member of the family. However, in the present case, the contest is between the son and the nephew of the previous Gaonbura. Though the post of Gaonbura is not a hereditary post, the fact that a candidate is the son of earli er Gaonbura is a relevant factor to be taken into consideration. When there is a competing claim between a member of a Gaonbura’s family and a candidate who is not a member of the Gaonbura’s family, a nephew of the Gaonbura can certain ly claim preference as a member of the family of the Gaonbura, other things bei ng equal. But when there is a claim by an immediate family member of the Gaonbu ra, such as son, I am afraid that the claim of the immediate family member may have to be given preference over the nephew. Considering the nature and dutie s of the Gaonbura, the above aspects, it appears, were not gone into by the Int erview Board. Moreover, as noticed above, nothing has been placed on record to s how as to how marks under the heading experience were awarded. Though it is contended by learned counsel for Respondent No.5 that petit ioner had also filed an appeal, considering the fact that the case is pending fo r quite sometime before this Court, no useful purpose would be served by relegat ing the petitioner to the appellate authority at this stage. Consequently and in view of the discussions made above, the impugned selection and appointment of Respondent No.5 is set aside. Matter is remitted back to the Deputy Commissioner, Kamrup (Rural), who shall take necessary steps for fresh s election and appointment of Gaonbura in accordance with law. The same shall be done within a period of 3(three) months from the date of receipt of a certified copy of this order. Writ petition is allowed. No cost.