KANDARPA SARMAversusRAJESWAR DAS AND ORS.

                        (2011) 10 S.C.R. 644


A                       KANDARPA SARMA
                                  v.
                    RAJESWAR DAS AND ORS.
                   (Civil Appeal No.7401 of 2011)
                         AUGUST 25, 2011
B
               [DR. MUKUNDAKAM SHARMA AND
                      ANIL R. DAVE, JJ.]

        Service law:
c
         Appointment - Post of Gaonburah - State issued an
    advertisement for filling the post of Gaonburah - Appellant,
    respondent no. 1 and others submitted their candidature -
    Report along with other records submitted by circle officer
D regarding suitability of the candidates considered by Selection
    Committee - Appellant found suitable and appointed as
    Gaonburah - Respondent no. 1 challenged the order of
    appointment of appellant - Deputy Commissioner set aside
    the order of the appointment of the appellant and also issued
E direction to appoint respondent no. 1 as the Gaonburah -
    Second appellate authority affirmed the order of Deputy
    Commissioner - Writ petition by appellant - Single Judge
    allowed the writ petition - Division Bench of the High Court
    set aside the order of the Single Judge and a/so restored the
F order of the second appellate authority directing appointment
    of respondent no. 1 - On appeal, held: 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 protection under Art. 311 of the
    Constitution - In that view of the matter, there has to be some
G service conditions governing his service - A Government
    Servant who is usually appointed to a civ17 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 - However, Executive
H                                 644
 KANDARPA SARMA v. RAJESWAR DAS AND ORS. 645

1instructions relating to appointment of Gaonburah showed that A
no such terms and conditions of service were envisaged and
laid down - 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 -
State Government to frame such service conditions of the         B
Gaonburahs preferably within a period of three months - Also
contents of the Executive instructions relating to appointment
of Gaonburah require updating and further amendments to be
in tune with the present day requirement, which shall be done
simultaneously with the above exercise.                          c
      Appointment - Post of Gaonburah - Whether the
respondent no. 1 entitled to get a preferential treatment for
appointment as a Gaonburah on the ground that he was the
nephew of an earlier Gaonburah - Held: Executive instruction
provided that in the matter of appointment of Gaonburah, D
certain factors to be taken into consideration are: the claim
of the family of the Gaonburah; the views of the Moujadar (3)
the suitability of the person for post - The selection committee
~onsidered the suitability of the candidates by allotting 80
marks in all - Selection committee allotted 10 marks for the E
claims of the family of Gaonburah; for the views of the
Moujadar, another 10 marks were allotted and the rest 60
marks were allotted for consideration of the suitability of the
oerson for the post - A joint family could be considered to
oe a family only when they are sharing a common residence F
and common mess - To give an extended meaning to mean
 any 'nephew' would also be inappropriate for the word nephew
 s a very vague expression for it could include not only
 riephew being the son from the own brother but it could a/so
 Je nephew being the son not only from the sister but being G
 son of even from the cousin brothers or sisters - It is difficult
 o give such a wide meaning to the expression 'family' - It is,
 herefore, appropriate that the State Government while laying
down the criteria identifies the members of the family who
 .·ould be entitled to some preferential consideration in the H
    646       SUPREME COURT REPORTS                [2011] 10 S.C.R.


A matter of such appointment to the post of Gaonburah.
         State of Assam and another v. Nahar Chutia and another
    1974 Assam Law Reports 163; State of Assam and Others
    v. Kanak Chandra Dutta AIR 1967 SC 884: 1967 SCR 679
    - referred to.
8
                          Case Law Reference:
          1974 Assam Law Reports 163                       referred
    to                          Para 8
c         1967 SCR 679               referred to           Para 8

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7401 of 2011.

       From the Judgment & Order dated 17 .11.2006 of the
D   Gauhati High Court in Writ Appeal No. 228 of 2004.

        P.K. Goswami, Parthiv K. Goswami, Rajiv Mehta, S.
    Hariharan for the Appellant.
                                                                       1
E       Pravir Choudhary, Navnit Kumar Deepitka Ghetowar, (for
    Corporate Law Group) for the Respondents.

          The following order of the Court was delivered

                                ORDER
F
          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
G   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
y   up the post of Gaonburah of Tikka Garia Gaon, Mouza: Sariha
KANDARPA SARMA v. RAJESWAR DAS AND ORS. 647


in the District of Barpeta. The appellant as also respondent no. A
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
submitted a report along with other records regarding suitability B
of the candidates which was considered by the Selection
Committee consisting of the Sub-Divisional Officer Ba!aji 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 C
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 D
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 E
 1erein in Second Appeal as provided for under paragraph
 162(C) of the Executive Instructions.

      5. The aforesaid Second Appeal was dismissed
;onsequent upon which the appellant herein filed a Writ Petition   F
>efore the High Court which was registered as Writ Petition (C
  No. 8019/2001. The learned Single Judge by a judgment and
Jrder dated 11.5.2004 allowed the writ petition and directed
.hat the appellant be allowed to continue as Gaonburah of Tikka
3aria Gaon, Mouza: Sariha in the District of Barpeta.
                                                                   G
    6. Being aggrieved by the aforesaid judgment and order
>assed by the learned Single Judge, respondent no. 1 filed an
1ppeal before the Division Bench of the Gauhati High Court
vhich was registered as Writ Appeal No. 228 of 2004. The
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    648     SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A   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
B   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
C   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
D   for the appellant has submitted before us that the Division
    Bench committed manifest error in holding that the expression
    'family' 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
E   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
F   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
G   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.
H
    KANDARPA SARMA v. RAJESWAR DAS AND ORS. 649


      9. It was also brought to our notice that in terms of the ratio   A
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           B
the power and also the jurisdiction to select and appoint a
Gaonburati 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            c
1of 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     D
 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                  E
1
 functioning of the Gaonburah and, so he was the best candidate
1and  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          F
submitted that the impugned judgment and order should not
nave 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 also had the privilege of interviewing the G
candidates.

     12. Having heard the learned counsel appearing for the
oarties and having gone through the connected records, we
oropose to dispose of this appeal by giving our reasons thereof.
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    650      SUPREME COURT REPORTS                  (2011) 10 S.C.R.


A      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 po~t 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
B 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
c 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
0
  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 also required to be clearly stated by the State
E 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
F 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.
G
       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
H executive instruction in para 162 provides that in the matter of
 KANDARPA SARMA v. RAJESWAR DAS AND ORS. 651


appointment of Gaonburah, certain factors are to be taken into        A
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     8
committee considered the suitability of the candidates by
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        C
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 D
  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 E
  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 F
  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.
                                                                        G
       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
                                                                       H
     652     SUPREME COURT REPORTS                [2011] 10 S.C.R.

 A 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
 B 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
 c 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 materia1s on record that the appellant should be
    considered for appointment to the post of Gaonburah as he
. D 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
  E respondent no. 1 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
  F 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
 G 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
 H
KANDARPA SARMA v. RAJESWAR DAS AND ORS. 653


of the selection committee and the order passed by the Sub-          A
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       B
by the Division Bench and also by the First Appellate Authority
and Second Appellate Authority have to be set aside which we
hereby do.

      20. In our considered opinion, the entire matter of            C
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        D
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 frorn the date of receipt of a copy of this order. The
State Government shall make the entire records available to          E
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
jecision regarding u~dating the administrative instructions in
this regard and also laying down the service conditions of the       F
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.                                                          G

     21. Since the selection committee has been directed to
:omplete the entire process of fresh selection and appointment
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
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    654        SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A 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
B 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
C the parties to bear their own costs.
           23. I.A. is also disposed of in terms of the aforesaid order.

    D.G.                                              Appeal allowed.