Giving Retrospective Effect To A Notification Would Be Patently Unfair And Unreasonable: Gauhati High Court

Justice Michael Zothankhuma observed that :

"The amendment made to the Executive Instructions vide Notification dated 10.04.2018 has not been given any retrospective effect and as such, the doing away with the selection process that has been completed prior to the Notification dated 10.04.2018 is patently unfair and unreasonable."

It was further observed that the State respondents cannot justify the cancellation of the earlier selection process made in terms of the Employment Notice dated 18.07.2016 by publishing a new advertisement dated 28.05.2018. Consequently, the advertisement dated 28.05.2018, insofar as it relates to the selection process for the villages in which the petitioners have been selected, is hereby set aside."

The petitioners' case is that pursuant to an Employment Notice dated 18.07.2016 issued by the respondent No.5, for filling up the post of Gaonburah of Mahimabari (4 No. Lat), Kakotykuri Gaon (7 No. Lat), Patigaon (4 No. Lat), Bajalkota Missing Gaon (6 No. Lat) and Shaidal Kacharigaon (1 No. Lat), the petitioners applied for the same. The petitioners were successful in the recruitment process and thereafter police verification was conducted with regard to their character and antecedent.

The said verification was also completed and while the petitioners were awaiting for their appointment orders, the respondents issued the advertisement dated 28.05.2018 for filling up the vacant post of Gaonburahs of the villages that were already advertised by the Employment Notice dated 18.07.2016. The petitioners who belong to the Shaida Kacharigaon No.1 Lat of Borhola Mouza under Titabor Revenue Circle in the district of Jorhat, Bajalkota and Miri Gaon No.6 Lat of Borhola Mouza under Titabor Revenue Circle in the district of Jorhat and Mahimabari Grant No.4 Lat of Amguri Kharikatiya Mouza under Titabor Revenue Circle in the district of Jorhat are before this Court challenging the fresh advertisement dated 28.05.2018.

Petitioner stated that the Employment Notice dated 18.07.2016 has not been cancelled, though the same appears to have been kept in abeyance vide W.T. Message dated 20.02.2017 issued by the Joint Secretary to the Government of Assam, Revenue & Disaster Management (LR) Department.

The petitioners' counsel submitted that the State respondents decided to issue a new advertisement dated 28.05.2018, for filling up the above mentioned posts of Gaonburah, in view of there being amendments made to the Executive Instructions contained in the Assam Land Revenue Regulations, 1886. He submitted that the amendments have been made by way of the Assam Land Revenue Regulations, 1886 (Amendment) 2018, vide Notification dated 10.04.2018.

The petitioners' counsel submitted that the petitioners have been selected in terms of the selection process held pursuant to the Employment Notice dated 18.07.2016 and that police verification of the selected candidates had also been done on 25.11.2016. As the only requirement for completing the selection process was the issuance of appointment orders, the State respondents should be directed to issue appointment orders appointing the petitioners as Gaonburahs of their respective villages.

Respondent submitted that the amendments have been made to the Executive Instructions by way of the "2018 Amendment", in respect of some of the clauses of the Executive Instructions provided in the "1886 Regulations". As such, the new advertisement dated 28.05.2018 had to be issued in terms of the "2018 Amendment", as the earlier Employment Notice had been made by way of the earlier amended regulations provided in the Notification dated 06.01.2016.

He submitted that the appointment orders could not be issued due to the pendency of a suit in the Court of the Munsiff, Titabor. Though the suit were disposed of on 14.08.2017, the selection process was not completed due to the fresh advertisement being issued on 28.05.2018 by the respondents, pursuant to the amendment of the Executive Instructions vide Notification dated 10.04.2018.

He further submitted that the appointment orders of the petitioners were not issued in view of the W.T. Message dated 20.02.2017 issued by the Joint Secretary to the Government of Assam, Revenue and Disaster Management (LR) Department, which directed the respondents not to act upon the Executive Instructions dated 06.01.2016, which was the basis for issuance of the Employment Notice dated 18.07.2016.

Court noted that a major difference between the Notification dated 06.01.2016, which is an earlier amendment of the Executive Instructions and the "2018 Amendment" is with respect to Clause 162(1)(ii) and 162(1)(v). In the earlier Notification dated 06.01.2016, a candidate for the post of Gaonburah was to have a minimum age of 21 years and was not to be older than 40 years, though for persons belonging to the SC/ST Community, the age limit was enhanced to 45 years. In terms of the "2018 Amendment", the minimum age of the candidate was raised to 35 years.

Court also noted that the selection process that had been undertaken for appointment of Gaonburahs in terms of the Executive Instructions operating on 06.01.2016 had basically been completed, except for the State respondents not issuing appointment orders to the selected candidates.

The court relied on a judgement delivered by the Supreme Court in Madan Mohan Sharma & Anr.-Vs- State of Rajasthan & Ors wherein the Court held that once advertisements have been issued on the basis of a circular operating at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria, which has been made subsequently.

In view of the above, the court decided in favour of the petitioner and directed respondent to issue them appointment order and set aside advertisement dated 28.05.2018.

Petitioner represented by Advocate M. Sarma and respondent were represented by advocates J. Handique, SC, Revenue Department D. Nath, Govt. Advocate, Assam.

Case Title : Shri Jibon Kalita and Ors. v State of Assam and Ors.

Citation: 2022 LiveLaw (Gau) 36

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