Point of Law: The law is well settled that the legislature or the executive are competent to make rule or to issue executive instruction following the due procedure laid down under the Constitution of India as provided under the Article 162 and proviso to Article 309 or Article 166 of the Constitution of India.

JUDGMENT :

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. S. Goswami, learned counsel for the petitioner in WP(C) No. 794/2022 and Mr. S. Borthakur, learned counsel for the petitioner in WP(C) No. 877/2022. Also heard Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. J. Handique, learned Standing Counsel for the Revenue and Disaster Management Department.

2. This two writ petitions are taken up together for disposal as both the petitions raises common question of law and fact and arises out of a common notification dated 26.08.2021 issued by the Commissioner & Secretary to the Government of Assam, Revenue & D. M. Department, notifying the upper age limit of Gaon Pradhans.

3. Brief background fact of the case:-

a. The petitioners were appointed as Gaonburahs (Village Heads) in their respective villages by the respondent authority as per the provisions of Executive Instruction No. 162(A) made under Assam Land and Revenue Regulation, 1886 and prior to amendment of the said Executive Instruction.

b. The said Executive Instruction was amended by way of notification dated 16.01.2016 by the Governor of Assam, whereby Executive Instruction 162 and 162A were deleted and new clause 161(A) was inserted.

c. The new clause 161 (A)(1)(iii) mandates that Gaonbura can continue to function up to the age of 65 years, if he is physically and mentally fit to carry out the duties and responsibilities assigned to him. Certain other amendments were also made which is not relevant for the determination of the present litigation.

d. Subsequently, by yet another notification dated 26.08.2021, the Governor of Assam amended the Executive Instruction by substituting the Clause-1 of Executive Instruction 162 by reducing minimum years of entry to be 30 years instead of 35 years. By way of the said notification dated 26.08.2021, three changes were made, (1) the existing word “Gaonbura” was substituted by the word “Gaon Pradhan”, (2) the minimum qualifying age of 35 years was incorporated for selection as Gaon Pradhan and (3) it was incorporated that the Gaon Pradhan shall hold his/her post up to the age of 65 years unless removed from the post, before attaining the age of 65 years by the concerned Deputy Commissioner of the District or Principal Secretaries of the Autonomous Council areas on any of the ground mentioned in Clause (2) of this instruction.

e. Subsequent to this, the Deputy Commissioner issued different orders releasing the Gaon Pradhans from their services, who in the meantime attained 65 years of age. Being aggrieved, the present writ petitions have been filed.

4. Argument of the learned counsel for the petitioners.

Mr. K.N. Choudhury, learned Senior Counsel and Mr. S. Borthakur, learned counsel make the following arguments.

a. The decision was taken on the basis of a recommendation of Committee, which recommended fixing maximum age of 65 years for superannuation of Gaonbura’s. However, while Cabinet took the decision, it was proposed by the Department concerned i.e. Department of Revenue and Disaster Management that Executive Instruction should be amended but the same should be made applicable in case of future appointments and shall not be made applicable to the existing Gaonbura’s and such recommendation was approved by the Cabinet and therefore for all meaning and purport, the notifications are prospective in nature and therefore, the petitioners could not have been released from their positions as Gaonbura’s of their respective villages on the basis of the Executive Instruction dated 26.08.2021.

b. When a notification or rule is brought in, the same is prospective in nature, until and unless the same is declared to be retrospective or by implication, it is shown that the effect of said notification or rule is retrospective in nature. In the case in hand, the Executive Instruction specifically provides that it shall come into effect from the date of publication in the official gazette and therefore, by virtue of such Exe