The main legal point established in the judgment is that the appointment of public officials must adhere to the relevant Executive Instructions and regulations, and legitimate expectations cannot be upheld if they are contrary to law or outside the authority or power of the government.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. M.U. Mahmud, learned counsel appearing for the appellant. Also heard Mr. J. Handique, learned counsel for the respondent.

2. The present intra court appeal is directed against the order dated 01.06.2023 passed in WP(C) 5495/2021 by the learned Single Judge dismissing the writ petition.

3. The writ petition structured as a representative Writ petition filed by the two writ appellants on behalf of 92 other similarly situated persons.

4. It is the pleaded case of the writ petitioners that by a communication dated 10.01.2000, the respondent No.1 instructed all the Deputy Commissioners of Assam, excluding Hill districts and sixth schedule areas, to appoint one Honorary Gaonburah in each revenue villages. The petitioners’ further case is that, they along with other 92 persons were selected as Gaonburahs of their respective villages by the villagers in General Meetings during the year 2009 to 2012.

5. According to the petitioners, they are still continuing and performing as Honorary Gaonburahs. The grievance of the appellants are that though they are continuing as Gaonburahs, however they have not been appointed by the government in terms of the communication dated 10.01.2000 (supra) and therefore, a writ is required to be issued to the respondent State to appoint the appellants as Gaonburahs.

6. Such prayer was rejected by the learned Single Judge, primarily on the ground that a specific selection procedure has been mandated in clause 162(1) of the Executive Instruction issued in exercise of power under Assam Land and revenue Regulation 1886 and in absence of challenge to such notification, no writ can be issued. Accordingly, the writ petition was dismissed.

7. Mr. Mahmud, learned counsel for the appellants argues that the clause 162(1) was incorporated subsequent to appointment of the petitioners and therefore, the same cannot be made applicable to the petitioners as the said administrative instruction is prospective in nature. It is his contention that the Executive Instruction mandating the selection procedure itself provides that the same shall come into effect from the date of publication in the official gazette and such notification was gazetted in the year 2018. Accordingly, Mr. Mahmud contends that the learned Single Judge has committed error in law and fact.

8. The further contention of Mr. Mahmud, learned counsel is that the petitioners are having legitimate expectation to get formally appointed to the post of Gaonburahs inasmuch as they were appointed on the basis of an instruction issued by the State of Assam in Revenue and Disaster Management Department.

9. We have given our thoughtful considerations to the arguments advanced by the learned counsels for the parties.

10. Executive Instructions 160 to 164 of the Assam Land and Revenue Regulation, 1886 deal with appointment, nomination and dismissal of Gaonburhas. At the relevant point of time, when the petitioners were allegedly appointed as Gaonburahs, the Executive Instruction 162 and 162A were holding the field. In terms of the aforesaid Executive Instruction, the Gaonburahs were to be appointed by the jurisdictional Deputy Commissioners.

11. The Hon’ble Apex Court in the case of Kandarpa Sarma vs. Rajeshwar Das and Ors. reported in (2011) 14 SCC 752, while dealing with the interpretation of “family” used under Executive Instruction 162, observed that as the Gaonburahs hold a civil post, there need to be some service conditions governing their services. The Hon’ble Apex Court further observed that since such determination is within the domain of State Government, the court expects and left it to the state Government to frame such service condition as expeditiously as possible.

12. Be that as it may, by a notification dated 16.01.2016 the Executive Instruction 162 and 162A were deleted and new clause 161(A) was inserted. Such amended clause 161(1) mandated for minimum qualification.

13. Subsequently, yet another notification was issued,