REPORTABLE

IN THE SUPREME COURT OF INDIA         CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7401 OF 2011 (Arising out of SLP(Civil) No. 21013 of 2006)

KANDARPA SARMA                                    Appellant(s)

                VERSUS

RAJESWAR DAS & ORS.                               Respondent(s)

O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order  

passed  by  the  Gauhati  High  Court  on  17.11.2006  allowing  the  

appeal  filed  by  the  respondent  no.  1  whereby  the  learned  

Division Bench set aside the judgment and order passed by the  

learned Single Judge allowing the writ petition filed by the  

appellant herein.   

3. The respondent State issued an advertisement for filling  

up the post of Gaonburah of Tikka Garia Gaon, Mouza: Sariha in  

the District of Barpeta.  The appellant as also respondent no. 1  

along with others submitted their candidature as against the  

aforesaid advertisement which was issued on 11.11.1998 by the  

Sub-Divisional Office, Balaji Sub Division.  After submission of  

the applications by the various candidates, the circle officer  

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submitted  a  report  along  with  other  records  regarding  

suitability  of  the  candidates  which  was  considered  by  the  

Selection  Committee  consisting  of  the  Sub-Divisional  Officer  

Balaji  Sub  Division,,  the  Circle  Officer  and  the  Election  

Officer.  The said selection committee considered the records  

and  found  the  appellant  as  the  most  suitable  candidate  and  

appointed him as the Gaonburah.

4. Being aggrieved by the said order of appointment issued  

by the Sub-Divisional Officer, respondent no. 1 filed an appeal  

in terms of paragraph 162(B) of the Executive Instructions which  

was  entertained.   The  aforesaid  appeal  was  heard  by  the  

Additional  Deputy  Commissioner  and  upon  consideration  he  set  

aside the order of appointment of the appellant and also issued  

a direction to appoint respondent no. 1 as the Gaonburah in  

place  of  the  appellant.   The  said  decision  of  the  First  

Appellate Authority was challenged by the appellant herein in  

Second  Appeal  as  provided  for  under  paragraph  162(C)  of  the  

Executive Instructions.

5.  The aforesaid Second Appeal was dismissed consequent upon  

which the appellant herein filed a Writ Petition before the High  

Court which was registered as Writ Petition (C ) No. 8019/2001.  

The learned Single Judge by a judgment and order dated 11.5.2004  

allowed the writ petition and directed that the appellant be  

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allowed to continue as Gaonburah of  Tikka Garia Gaon, Mouza:  

Sariha in the District of Barpeta.

6.  Being  aggrieved  by  the  aforesaid  judgment  and  order  

passed by the learned Single Judge, respondent no. 1 filed an  

appeal before the Division Bench of the Gauhati High Court which  

was registered as Writ Appeal No. 228 of 2004.  The Division  

Bench, after hearing the counsel appearing for the parties on  

15.11.2006 allowed the appeal by its judgment and order dated  

17.11.2006 whereby the Division Bench not only set aside the  

judgment  and  order  of  the  learned  Single  Judge  but  it  also  

restored  the  order  passed  by  the  Second  Appellate  Authority  

directing  appointment  of  respondent  no.  1  as  Gaonburah.   By  

virtue of the aforesaid order, respondent no. 1 assumed charge  

of the office and he, as of today, continues to hold the post of  

Gaonburah.

7. Being  aggrieved  by  the  aforesaid  order  passed  by  the  

Division Bench, the appellant herein filed the present appeal on  

which  we  have  heard  the  learned  counsel  appearing  for  the  

parties.   

8. Mr. P.K. Goswami, learned senior counsel appearing for  

the appellant has submitted before us that the Division Bench  

committed manifest error in holding that the expression 'family'  

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used in the Executive Instructions should receive an extended  

meaning  so  as  to  include  'nephew'  within  the  expression  

'family'.  He has also submitted before us that the selection  

committee after taking into consideration all the factors found  

the appellant as the best candidate for the post and the said  

decision being based on records should not have been interfered  

with by the Appellate Authority as also by the Division Bench of  

the High Court on extraneous consideration and also by wrongly  

reading the documents particularly when the learned Single Judge  

has upheld the aforesaid order of the selection committee.  In  

support of his contention, he has relied upon the decisions of  

Constitution Bench of this Court in State of Assam and another  

Vs. Nahar Chutia and another reported in 1974 Assam Law Reports  

163 as also in State of Assam and Others Vs. Kanak Chandra Dutta  

reported in AIR 1967 SC 884.  He has also drawn our attention to  

the  Executive  Instructions  which  are  part  of  the  Assam  Land  

Revenue Regulation by referring to paragraph 162 of the said  

instructions as also paragraph 163.

9.  It was also brought to our notice that in terms of the  

ratio of the decisions of the aforesaid two cases decided by the  

Constitution Bench of this Court, the status of Gaonburah in  

Assam is that he holds a Civil post under the State of Assam and  

he is entitled to the protection as provided for under Article  

311 of the Constitution of India.  Consequently, the State has  

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the power and also the jurisdiction to select and appoint a  

Gaonburah and also to dismiss him.  He has also pointed out to  

us  the  settled  position  that  Gaonburah  works  under  the  

supervision of Moujadar who is also a State government servant  

as held in the aforesaid Constitution Bench decision of this  

Court.

10.  Mr. Pravir Choudhary appearing for the respondent no. 1,  

however, has submitted that the judgment and order passed by the  

High Court is justified as in the context of the expression  

'family' used in the Executive Instructions.  According to him,  

the  said  expression  should  receive  a  wider  and  extensive  

interpretation so as to include a nephew.  He has also submitted  

that respondent no. 1 was working with and helping and assisting  

the earlier Gaonburah for a very long time and, therefore, he  

has  sound  experience  in  the  working  and  functioning  of  the  

Gaonburah and, so he was the best candidate and the High Court  

was justified in directing for his appointment to the aforesaid  

post.

11.  The  State is  also represented  by the  counsel who  has  

submitted that the impugned judgment and order should not have  

been interfered with for the reasons that the decision of the  

selection committee should have been preferred as the selection  

committee had the privilege of looking into all the records and  

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also had the privilege of interviewing the candidates.

12. Having  heard  the  learned  counsel  appearing  for  the  

parties  and  having  gone  through  the  connected  records,  we  

propose to dispose of this appeal by giving our reasons thereof.

13. The post of Gaonburah is an executive post in the sense  

that he works under the supervision of the Moujadar.  He holds a  

civil  post  and,  therefore,  is  entitled  to  the  protection  as  

provided for under Article 311 of the Constitution of India.  In  

that view of the matter, there has to be some service conditions  

governing  his  service.   A  Government  Servant  who  is  usually  

appointed to a civil post has to have minimum age requirement  

for appointment and there is always a maximum age on completion  

of which he stands retired from the government service.  He has  

other service conditions also prescribed for his service and  

status.  However, on going through the Executive Instructions,  

we  do  not  find  any  such  terms  and  conditions  of  service  

envisaged  and  laid  down  which  would  govern  his  service  

condition.  A government servant cannot be appointed unless he  

fulfills a minimum age criteria.  He should not also be allowed  

to continue to work as Gaonburah in perpetuity.  There has to be  

some  age  limit  or  duration  of  period  for  his  service  on  

completion of which he should stand relieved.  The other service  

conditions like the reasons for removal of the Gaonburah are  

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also  required  to  be  clearly  stated  by  the  State  Government  

either in the executive instruction or by framing a separate set  

of rules.  Since all these fall within the domain of the State  

Government, we request and leave it to the State Government to  

frame such service conditions of the Gaonburahs as expeditiously  

as  possible  preferably  within  a  period  of  three  months  from  

today keeping in view the observation made hereinbefore.  We  

also  feel  that  the  contents  of  the  Executive  instructions  

relating  to  appointment  of  Gaonburah  requires  updating  and  

further  amendments  to  be  in  tune  with  the  present  day  

requirement,  which  shall  be  done  simultaneously  with  the  

aforesaid exercise.

14. The next question that arises for our consideration is  

whether  the  respondent  no.  1  herein  is  entitled  to  get  a  

preferential treatment for appointment as a Gaonburah on the  

ground that he was the nephew of an earlier Gaonburah.  The  

executive instruction in para 162 provides that in the matter of  

appointment of Gaonburah, certain factors are to be taken into  

consideration which are (1)claim of the family of the Gaonburah  

(2) the views of the Maujadar (3) the suitability of the person  

for the post.  

15. On going through the records, we find that the selection  

committee  considered  the  suitability  of  the  candidates  by  

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allotting 80 marks in all.  For the factors stated above, the  

selection committee had allotted 10 marks for the claims of the  

family of Gaonburah and for the views of the Moujadar, another  

10 marks were allotted by the selection committee and it appears  

that the rest 60 marks were allotted for consideration of the  

suitability of the person for the post.

16. For the scheme of compassionate appointment in government  

service, the expression 'family' in the natural course, includes  

the family of the deceased, namely, his son, daughter and widow.  

The surviving dependents in the family are considered for such  

appointment  on  compassionate  grounds.  The  said  expression  

'family' in those cases is always restricted to the aforesaid  

members, namely, son, daughter or widow.  This expression also  

has  come  to  be  used  in  various  ceiling  Acts  in  the  Assam  

Fixation of Ceiling on Land Holdings Act, 1956.  The expression  

'family' has been defined to mean a family consisting of any one  

or more or all of the following namely (1) husband, (2) wife,  

(3) minor children, and also includes a joint family. In the  

explanation thereto, joint family has been defined to mean a  

family  of  which  the  members  are  descendents  from  a  common  

ancestor  and  have  a  common  mess,  and  shall  include  wife  or  

husband,  as  the  case  may  be,  but  shall  exclude  married  

daughters, married sons and their children.

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17. A joint family could be considered to be a family only  

when they are sharing a common residence and common mess.  To  

give an extended meaning to mean any 'nephew' would also be  

inappropriate for the word nephew is a very vague expression for  

it could include not only nephew being the son from the own  

brother but it could also be nephew being the son not only from  

the sister but being son of even from the cousin brothers or  

sisters.  It is difficult to give such a wide meaning to the  

expression 'family'.  It is, therefore, appropriate that the  

State Government also while laying down the criteria identifies  

the  members  of  the  family  who  could  be  entitled  to  some  

preferential consideration in the matter of such appointment to  

the  post  of  Gaonburah.   The  State  Government  should  also  

therefore frame proper guidelines laying down the conditions as  

stated hereinbefore.

18. Now, coming to the facts of the present case, we find  

that the Circle Officer submitted a report on consideration of  

all  the  materials  on  record  that  the  appellant  should  be  

considered  for  appointment  to  the  post  of  Gaonburah  as  he  

satisfies  all  the  requirements  and  because  he  is  the  best  

candidate.  The selection committee considered the records and  

thereafter selected the appellant herein despite being aware of  

the fact that the recommendation of the Moujadar is for another  

candidate neither being the appellant nor being respondent no. 1  

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and  also  being  aware  of  the  fact  that  respondent  no.  1  was  

related to the earlier Gaonburah.  The said selection was made  

keeping  in  view  the  mandate  of  executive  instructions.   The  

executive instructions which lay down the criteria for selection  

have force in law as they were made part of the Assam Land  

Revenue Regulation.  They also have a binding force having been  

issued  in  exercise  of  constitutional  powers  conferred  under  

Article 162 of the constitution of India.

19. Pursuant to the aforesaid selection made by the selection  

committee  which  had  considered  all  the  factors  and  also  the  

criteria laid down for the purpose, the appellant was appointed  

to the said post which came to be set aside by the Appellate  

Authority  which  order  was  confirmed  by  the  Second  Appellate  

Authority.  Having gone through the records, we find that the  

First Appellate Authority has set aside the appointment of the  

selection committee and the order passed by the Sub-Divisional  

Officer on the ground that respondent no. 1 is entitled to a  

preferential  treatment,  he  being  the  nephew  of  the  earlier  

Gaonburah.  We have found that the aforesaid view taken by the  

Deputy Commissioner was incorrect and without jurisdiction and,  

therefore, the aforesaid findings which are also rendered by the  

Division Bench and also by the First Appellate Authority and  

Second Appellate Authority have to be set aside which we hereby  

do.   

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20. In  our  considered  opinion,  the  entire  matter  of  

appointment to the post of Gaonburah in the present case has to  

be considered afresh in accordance with law de novo taking into  

consideration the relevant factors only and in the light of the  

observations made hereinbefore.  Therefore, while setting aside  

the orders of the Division bench of the High Court and also of  

the  learned  Single  Judge,  we  remit  back  the  matter  to  the  

selection committee who shall consider the records and take a  

final  decision  regarding  the  appointment  of  Gaonburah  as  

expeditiously as possible preferably within a period of four  

months from the date of receipt of a copy of this order.  The  

State Government shall make the entire records available to the  

concerned selection committee so as to enable them to take a  

conscious and informed decision.  It would be also appropriate  

that the State Government would also take a decision regarding  

updating the administrative instructions in this regard and also  

laying down the service conditions of the Gaonburah in terms of  

this order.  It would be appropriate that these decisions are  

also taken within three months so that the selection committee  

may be in a position to consider the said criterion which are  

laid down by the State afresh in terms of this order.

21. Since  the  selection  committee  has  been  directed  to  

complete the entire process of fresh selection and appointment  

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within four months from the date of receipt of the copy of this  

order, respondent no. 1 would continue to hold the post till the  

order of appointment is issued by the sub-Divisional Officer in  

accordance with law within a period of four months.  The said  

continuation would be only as a stop gap arrangement so that the  

working of Gaonburah is not affected in any manner.  He shall in  

no case be allowed to continue beyond a period of four months.  

We make it clear that respondent no. 1 will not claim any equity  

also to hold the post beyond four months and also beyond the  

terms as mentioned herein.

22. The appeal is allowed to the aforesaid extent leaving the  

parties to bear their own costs.

23. I.A. is also disposed of in terms of the aforesaid order.

.........................J. (DR. MUKUNDAKAM SHARMA)

.........................J. (ANIL R. DAVE)

NEW DELHI AUGUST 25, 2011

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