High Court
Case Details
WP(C) 3901/2011 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Both these two writ petitions, being inter-connected, are heard toget her today and are now being disposed of by this common judgment. For simplificat ion, I will first decide W.P.(C) No. 5833 of 2010 and will thereafter my decisio n thereon on the facts of W.P.(C) No.3901 of 2011 to the extent possible. 2.
Legal Reasoning
The case of the petitioner is that he obtained a certificate from the Director of Land Records under Rule 13 of the Assam Land Records Manual and tha t as per the provisions of Rule 8(3) of the said Manual, persons having passed t he Survey Training having possession of Certificate of Assam Survey School or a Certificate granted by the Director of Land Records, Assam under Rule 13 are eli gible for the post of Mandal. According to the petitioner, in clear violation of the provisions of Rule 8(3), the Deputy Commissioner, Barpeta (respondent No.4) issued the advertisement dated 8.10.2010 inviting application from interested c andidates, who have passed six months of Record Certificate Class Course (RCCC) training from Assam Survey and Settlement Centre, Guwahati. The case of the peti tioner is that in terms of the condition in this advertisement, the persons havi ng certificate under Rule 13 have been disqualified from applying for the post o f Mandal. As the petitioner has been disqualified from applying for the post of Mandal in response to the said advertisement, this writ petition has been filed by him for appropriate direction. At the outset, Mr. M. Choudhury, learned Stand ing Counsel, DLR, drawing my attention to the decision of the Division Bench of this Court in Sapon Borah Vs. State of Assam reported in (2011) 6 GLR 468, submi ts that a person possessing a certificate granted by the Director of Land Record s under Rule 13 of the Assam Land Records Manual is not eligible for the post of Mandal and as such the writ petition has no merit and is liable to be dismissed . Refuting the contention of the learned Standing Counsel for DLR, Mr. I. Saikia , learned counsel for the petitioner contends that as the petitioner was granted the certificate under Rule 13 before deleting this rule, which has no retrospec tive effect, the petitioner cannot be held to be ineligible for the post of Mand al. He, therefore, maintains that the petitioner is eligible for the post and, a s such, a direction may be issued to the respondents not to exclude the petition er and other similarly situated candidates from applying for the post of Mandal. 3. After hearing the learned counsel for the parties and after going thr ough the decision of this Court in Sapon Borah (Supra), I am of the view that th e contention of the learned counsel for the petitioner has no merit. Similar con tention was already urged by the learned counsel for the petitioner in Sapon Bor ah (Supra) case which has been repelled by a Division Bench of this Court. For b etter appreciation of the controversy, I may refer to the decision of this Court in the case of Sapon Borah (Supra), which are at paragraph 7 and 8 of the judgm ent, which are quoted below - 7. Indisputably, no formal deletion of rule (clause?) 13 of Assam Land Records Manual has been made pursuant to the recommendation of the State Level Committee. Nevertheless, in the year 2009, the Director of Land Records and Surv ey, Assam wrote to the State Government stating that a large number of applicati ons were received by him from Deputy Commissioners as well as Settlement Officer s for granting Survey Certificates to candidates so that a number of posts of Mo ndal lying vacant could be filled up from such Certificate holders as well. The Principal Secretary, Revenue and Disaster Manageme in the letter dated 29.8.2009 that his instruction to the Deputy Commissioners in respect of the advertisemen t for filling up of the vacant posts of Mondal under rule 13 as one of the eligi bility criteria of candidates was not warranted. The letter referred to the earl ier letter dated 2.4.2009. The learned Single Judge was of the view that it was in acceptance of the recommendation of the State Level Committee that the letter dated 29.8.2009 had been issued by which it disapproved the proposal of the Dir ector of Land Records and Survey for filling up the post of Mondal from amongst the Certificate holders under rule 13 and that the provisions of Assam Land Reco rds Manual being only executive instructions, it could be amended by issuing sub sequent executive instructions. In other words, what the learned Single Judge ha d held is that the Government decision contained in the letter dated 29.8.2009 h ad the effect of deleting rule 13 from the Manual though no formal amendment was made thereto. In our opinion, the learned Single Judge was not wide of the mark in taking this view. The view taken by the learned Single Judge that if any adv ertisement is issued for the post of Mondal, the requisite qualification would h ave to be considered on the basis of the existing instructions, and it could not be said that the earlier qualification which the appellant and other had obtain ed should hold the field, is a possible view and does not suffer from perversity . 8. Coming now to the second limb of contention of the learned senior counsel for the appellant that the recommendation of the State Level Committee for delet ion of rule 13, assuming without admitting that the State Government has accepte d it also, it cannot have retrospective effect and cannot have the effect of de -recognizing the Certificates already so granted, there is also no merit in this contention. As already observed by the learned Single Judge that the provisions of Assam Land Records Manual are merely executive instructions, no enforceable right to apply for the post of Mondal ever accrued to the appellant when Certifi cate of Survey was granted to him under rule 13. It is a settled law without ref erence to cases that non-statutory executive instructions such as Assam Land Rec ords Manual do not confer an enforceable right on a person, or impose an obligat ion on the Administration or any person. This is the difference between a statut ory provision and an executive instruction. Though rule 13 has not been expressl y deleted from the Manual, yet a conscious decision has already been taken by th e State Government not follow rule 13 of the Manual as evident from the letter d ated 2.4.2009 of Principal Secretary to the Government of Assam, Revenue and Dis aster Management Department conveying the decision of the State disapproving the proposal of the Director of Land Records and Surveys, Assam for allowing the ca ndidature of the holders of Survey Certificates under rule 13 for the post of Mo ndal. In our opinion, the letter dated 2.4.2009 has, by necessary implication, d eleted the provision of rule 13 from the Manual, and the absence of formal or ex press deletion will not preclude the State-respondents from decision of the Stat e disapproving the proposal of the Director of Land Records and Surveys, Assam f or allowing the candidature of the holders of Survey Certificates under rule 13 for the post of Mondal. In our opinion, the letter dated 2.4.2009 has, by necess ary implication, deleted the provision of rule 13 from the Manual, and the absen ce of formal or express deletion will not preclude the State-respondents from di squalifying the petitioner for the post of Mondal as has been done now. No other substantial issue survives for consideration. 4. The paragraphs extracted in the foregoing, I think, have completely answe red the contentions of the learned counsel for the petitioner. That decision has not been challenged or set aside by a superior court till now and, is, therefor e, binding upon this Court. It is however, contended by the learned counsel for the petitioner that since there is a practice of the State respondents in the pa st sending the intending candidates for the post of Mandal on training for six ( 6) months, the petitioner, with a view to enable him to apply for the post in fu ture, should also allowed to undergo such training, for which necessary directio n may be passed by this Court. Mr. M. Choudhury, learned Standing counsel, DLR, however, denies that the existence of such practice of sending intending candida tes for undergoing training without floating advertisement by the respondent and , as such, such prayer cannot b entertained by this Court. As this writ petition is undoubtedly covered by Sapon Borah (Supra), this writ petition must also mee t similar fate.
Decision
5. The writ petition is, accordingly, dismissed. However, if there is a p ractice of sending intending candidates for undergoing six (6) months course of RCCC training in the Assam Survey and Training Centre, the State respondents sha ll duly consider the case of the petitioner for undergoing such training. 6. Coming now to the facts of W.P.(C) No.3901 of 2011, the petitioners in this writ petition are the fortunate victims of the first writ petition which h as just been disposed of above. In this writ petition, they are seeking the inte rference of this Court to complete the selection process for filling up of the p osts of Mandal in terms of the advertisement dated 8-10-2010. There is no disput e at the Bar that the petitioners are eligible for the post of Mandal and that c onsideration of their case for the appointment has been blocked only due to the pendency of the just concluded writ petition. The State-respondents shall now re -start the selection process for the appointment to the post of Mandal on merit in terms of the advertisement dated 8.10.2010. Needless to say, if any of the pe titioners have become age bar during the pendency of the first writ petition i.e . W.P.(C) No.5833 of 2010, the same shall be relaxed by the State Respondents in -accordance with the applicable rules. No costs.