LexKANDARPA SARMA versus RAJESWAR DAS AND ORS.
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A B c (2011) 10 S.C.R. 644 KANDARPA SARMA v. RAJESWAR DAS AND ORS. (Civil Appeal No.7401 of 2011) AUGUST 25, 2011 [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.] Service law: 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 1 instructions 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 8 - referred to. c Case Law Reference: 197 4 Assam Law Reports 163 to Para 8 1967 SCR 679 referred to referred 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
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