Jadu Ram Sharkar and Anr v. The State of Assam and 6 Ors

JUDGMENT Date : 17-07-2023 (Arun Dev Choudhury, J)

¶1Heard Mr. M. U. Mahmud, learned counsel appearing for the appellant. Also heard Mr. J Handique, learned counsel for the respondent.

¶2The present intra court appeal is directed against the order dated

01.06.2023 passed in WP(C) 5495/2021 by the learned Single Judge dismissing the writ petition.

¶3The writ petition structured as a representative Writ petition filed by Page No.# 3/7 the two writ appellants on behalf of 92 other similarly situated persons.

¶4It is the pleaded case of the writ petitioners that by a communication dated 10.01.2000, the respondent No.1 instructed all the Deputy Commissioners of Assam, excluding Hill districts and sixth schedule areas, to appoint one Honorary Gaonburah in each revenue villages. The petitioners' further case is that, they along with other 92 persons were selected as Gaonburahs of their respective villages by the villagers in General Meetings during the year 2009 to 2012.

¶5According to the petitioners, they are still continuing and performing as Honorary Gaonburahs. The grievance of the appellants are that though they are continuing as Gaonburahs, however they have not been appointed by the government in terms of the communication dated 10.01.2000 (supra) and therefore, a writ is required to be issued to the respondent State to appoint the appellants as Gaonburahs.

¶6Such prayer was rejected by the learned Single Judge, primarily on the ground that a specific selection procedure has been mandated in clause 162(1) of the Executive Instruction issued in exercise of power under Assam Land and revenue Regulation 1886 and in absence of challenge to such notification, no writ can be issued. Accordingly, the writ petition was dismissed.

¶7Mr. Mahmud, learned counsel for the appellants argues that the clause 162(1) was incorporated subsequent to appointment of the petitioners and therefore, the same cannot be made applicable to the petitioners as the said administrative instruction is prospective in nature. It is his contention that the Executive Instruction mandating the selection Page No.# 4/7 procedure itself provides that the same shall come into effect from the date of publication in the official gazette and such notification was gazetted in the year 2018. Accordingly, Mr. Mahmud contends that the learned Single Judge has committed error in law and fact.

¶8The further contention of Mr. Mahmud, learned counsel is that the petitioners are having legitimate expectation to get formally appointed to the post of Gaonburahs inasmuch as they were appointed on the basis of an instruction issued by the State of Assam in Revenue and Disaster Management Department.

¶9We have given our thoughtful considerations to the arguments advanced by the learned counsels for the parties.

¶10Executive Instructions 160 to 164 of the Assam Land and Revenue Regulation, 1886 deal with appointment, nomination and dismissal of Gaonburhas. At the relevant point of time, when the petitioners were allegedly appointed as Gaonburahs, the Executive Instruction 162 and 162A were holding the field. In terms of the aforesaid Executive Instruction, the Gaonburahs were to be appointed by the jurisdictional Deputy Commissioners.

¶11The Hon'ble Apex Court in the case of Kandarpa Sarma vs. Rajeshwar Das and Ors reported in (2011) 14 SCC 752, while dealing with the interpretation of "family" used under Executive Instruction 162, observed that as the Gaonburahs hold a civil post, there need to be some service conditions governing their services. The Hon'ble Apex Court further observed that since such determination is within the domain of State Government, the court expects and left it to Page No.# 5/7 the state Government to frame such service condition as expeditiously as possible.

¶12Be that as it may, by a notification dated 16.01.2016 the Executive Instruction 162 and 162A were deleted and new clause 161(A) was inserted. Such amended clause 161(1) mandated for minimum qualification.

¶13Subsequently, yet another notification was issued, whereby notification dated 06.01.2016 was cancelled and the Executive Instruction 160 to 164 were substituted. The said notification dated 10.04.2018 introduced a procedure for selection in the shape of Executive Instruction 162(2).

¶14The Executive Instruction in question clearly shows that it is prospective in nature. Mr. Mahmud is correct in submitting that even in case of a retrospective legislature or Executive Instruction, vested and concluded right cannot be taken away. Therefore, this court is to look into whether the petitioners are having a vested and concluded right to continue to serve as Honorary Gaonburahs and get appointed.

¶15As discussed herein above, it is undisputed that the post of Gaonburah is a civil post. It is also not in dispute that at the time of appointment of the petitioners by the villagers, the competent authority to appoint, dismiss and suspend Gaonburah was the jurisdictional Deputy Commissioner.

¶16The communication of the respondent No.1 dated 10.01.2000, upon which the petitioners are placing heavy reliance, also discloses that instruction was given to the Deputy Commissioner to appoint Page No.# 6/7 Gaonburahs. However, the petitioners were appointed by the villagers and were approved by the association of Gaonburahs. Such course of action was not permissible under the Executive Instruction holding the field at that point of time. Thus, the appointment of the petitioners itself had no sanctity under law. Therefore, the question whether their terms of service shall be governed by the pre amended Executive Instruction or subsequent amended Executive Instruction, is not at all relevant for determination of the prayer made in the writ petition.

¶17The hon'ble Apex court in the case of Monet Ispat and Energy Limited Vs. Union of India & Ors reported in (2012) 11 SCC 1 at paragraph 183 held that there are parallels between the doctrines of promissory estoppels and legitimate expectation as both these doctrines are founded on the concept of fairness and arises out of natural justice. It was further held that in no case, such principles can be pressed to compel the government or public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the government. It was further held that there cannot be any legitimate expectation which is statutorily prohibited or is against public policy.

¶18In the case in hand, the petitioners cannot have any legitimate expectation to get appointed as Gaonburahs for the reason that their appointment as Honorary Gaonburhas by villagers was not permissible under Executive Instruction 162 holding the field at the relevant point of time. Therefore, the petitioners cannot have any legitimate expectation to get appointed as Gaonburah in derogation of the Executive Instruction. Page No.# 7/7

¶19With the aforesaid observations and reasons, the impugned order passed by the learned Single Judge is upheld and resultantly, the writ appeal stands dismissed.

JUDGE CHIEF

JUSTICE Comparing Assistant

PageoNo.#o1/7 GAHC010144492023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/256/2023ooooooooo JADUoRAMoSHARKARoANDoANR.o S/OoLT.oLAKHIoKANTAoSARKAR,oVILL-SHALBARI,oP.O.-BOITAMARI,oP.S.- ABHAYAPURI,oDIST-BONGAIGAON,oASSAM,oPIN-783389 2:oAKKASoALIoAHMED oS/OoMD.oSIRAJoALI oVILL-oCHAPRAKATAoPARToII oP.O.-CHAPRAKATA oP.S.oANDoDIST-oBONGAIGAON oASSAM oPIN-78338o VERSUSo THEoSTATEoOFoASSAMoANDo6oORS.o REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oREVENUEoDEPARTMENT,oDISPUR,oASSAM,o GHY-6 2:THEoDIRECTORoOFoLANDoRECORDSoANDoSURVEYSoETC. oASSAM oRUPNAGAR oGHY-32 3:THEoDEPUTYoCOMMISSIONER oBONGAIGAON oDIST-BONGAIGAON oASSAM 4:THEoCIRCLEoOFFICER oBONGAIGAONoREVENUEoCIRCLE oP.S. oP.O.oANDoDIST-BONGAIGAON oASSAM Page No.# 2/7 5:THE CIRCLE OFFICER SRIJANGRAM REVENUE CIRCLE P.O. AND P.S.-ABHAYAPURI DIST-BONGAIGAON ASSAM 6:THE CIRCLE OFFICER MANIKPUR REVENUE CIRCLE P.S. AND P.O.-MANIKPUR DIST-BONGAIGAON ASSAM 7:THE CIRCLE OFFICER BOITAMARI REVENUE VIDE BOITAMARI P.O.-BOITAMARI P.S.-ABHAYAPURI DIST-BONGAIGAON ASSA Advocate for the Petitioner : MR. M U MAHMUD Advocate for the Respondent : SC, REVENUE BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY