IMPORTANT POINT
An unsuccessful candidate cannot challenge a recruitment process if they participated without objection, and preference applies only when marks are equal.

JUDGMENT :

Sanjay Kumar Medhi, J.

The controversy connected with this case is with regard to a recruitment process for the post of Gaonburah in the Tamulitup Batamari village in the district of Nagaon. The tussle is between the petitioner and the respondent no. 8 who are both aspirants for the said post.

2. There is a chequered history including history of litigations in this case. An advertisement was published on 23.10.2018 for filling up of the aforesaid post and both the petitioner and the respondent no. 8 had participated in the said recruitment. Since the appointments were not made, the petitioner had earlier filed WP(C)/3867/2019 in which there was an order dated 14.06.2019 to complete the recruitment process.

3. Pursuant to the said order, the respondent no. 8 was appointed to the aforesaid post vide an order dated 18.02.2021. The writ petitioner had preferred an appeal in the Department in which the Appellate Authority had passed an order dated 24.08.2021 whereby the matter was remanded back for a fresh consideration. In the meantime, certain villagers had filed WP(C)/4885/2021 which however was dismissed by this Court on 22.09.2021. The respondent no. 8 had however preferred a review against the decision of the Appellate Authority dated 24.08.2021. Since the review was not attended and disposed of, the respondent no. 8 had filed WP(C)/5440/2021. This Court vide order dated 07.10.2021 had directed the authorities to dispose of the review filed by the respondent no. 8. In the meantime, vide an order dated 30.12.2021, the petitioner was appointed as Gaonburah. However, on 24.03.2022, the review preferred by the respondent no. 8 was allowed and the appointment of the petitioner was cancelled. The petitioner had thereafter preferred WP(C)/2453 / 2022 in which this Court had passed an order dated 04.04.2022 remanding the matter to the reviewing authority for a fresh consideration. The reviewing authority vide the order dated 07.07.2022 had again allowed the review and it is this action which is the subject matter of challenge in the writ petition.

4. I have heard Shri K.N. Choudhury, learned Senior Counsel assisted by Shri B. Rahman, learned counsel for the petitioner. I have also heard Shri T.J. Mahanta, learned Senior Counsel, Shri S. Alom, learned counsel, Ms. M. Bhattacharyya, learned Addl. Senior Government Advocate, Assam and Shri S. Dutta, learned Standing Counsel, Revenue & DM Deptt.

5. Shri Choudhury, the learned Senior Counsel for the petitioner has submitted that so far as the Executive Instruction 162 of the Assam Land and Revenue Regulation, 1886 is concerned, the same had undergone an amendment vide a notification dated 10.04.2018. After the amendment, certain criteria have been laid down for selection and appointment of Gaonburah. It is submitted that leadership is one of the important aspect and the same was not taken into consideration. It is submitted that the advertisement in question contained certain criteria which did not encompass all the criteria of the amended Rule. He further submits that the father of the petitioner was a Gaonburah and as per prescription of the Rules, a family member of a Gaonburah has to be given preference. It is also submitted that in the markings given in the selection, there was involvement of the Finance and Accounts Officer (FAO) who was not a part of the scheme. It is submitted that the marks granted were not fairly done and the respondent no. 8 was favoured. The learned Senior Counsel submits that interest of justice would be served if a fresh selection is held even if the appointment of the petitioner is not upheld by this Court.

6. Per contra, Ms. Bhattacharya, the learned State Counsel has submitted that the procedure laid down in the Rules have been duly followed. As regards the involvement of the FAO in the recruitment process, it is submitted that he was a nominee of the Deputy Commissioner and such procedure is uniformly followed in all recruitment process for the post