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Wp(C) 4716/2010

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THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No. 4716 OF 2010 1. SRI SARIF UDDIN CHOUDHURY, SON OF SRI HABIB ALI CHOUDHURY, VILLAGE – KALINAGAR, PT. V, P.O. KALINAGAR, DISTRICT – HAILAKANDI, ASSAM. 2. MD. NAZIM UDDIN LASKAR, SON OF MD. ABDUL LATIF LASKAR, VILLAGE – BAHADURPUR, P.O. BRAJAPUR, DISTRICT – HAILAKANDI, ASSAM. 3. SRI SOLBAM KALACHAND SINGHA, SON OF SRI CHIAKHU SINGHA, VILLAGE – NITYANANDAPUR PT-II, P.O. NITYANANDAPUR, DISTRICT – HAILAKANDI, ASSAM. 4. SRI ASHIT BARAN DAS, SON OF SRI ANIL CHANDRA DAS, VILLAGE & PO MOHANPUR, DISTRICT – HAILAKANDI, ASSAM. 5. SRI JOYNUL HOQUE BARBHUIYA, SON OF FORJAN ALI BARBHUIYA, VILLAGE & PO PAIKAN, DISTRICT – HAILAKANDI, ASSAM. ………… Petitioners -Versus- 1. THE STATE OF ASSAM, (REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, REVENUE & DISASTER MANAGEMENT (LR) DEPARTMENT, DISPUR, GUWAHATI – 6. 2. THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, FINANCE DEPARTMENT, DISPUR, GUWAHATI -6. 3. THE DIRECTOR OF LAND RECORDS AND SURVEYS ETC., ASSAM, RUPNAGAR, GUWAHATI – 32. 4. THE DEPUTY COMMISSIONER, HAILAKANDI, P.O. AND DIST-HAILAKANDI, ASSAM. ….…… Respondents BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN For the Petitioner : Mr. Dr. B Ahmed, Advocate. Mr. N Hoque, Advocate. Mr. SK Deori, Advocate. For the Respondents : Mrs. VL Singh, SC, Revenue, Mr. J. Handique, GA, Assam. Mr. B. Gogoi, SC, Finance. Mr. M. Choudhury, SC, Directorate of land Records and Surveys. Date of Hearing : 01.11.2013. Date of Judgment : 03.03.2014 Judgment & Order (CAV) By way of this petition under Article 226 of the Constitution of India, petitioners seek a direction to the respondents to fill up the existing vacant post of Mandal in Hailakandi district and to consider the case of the petitioners by relaxing the upper age limit. Further prayer made is for a direction to the respondents not to fill up the vacancies in the post of Mandal in Hailakandi district by way of adjustment of Addl. Patowaries/ Addl. Mandals. 02. Five petitioners have joined together and have filed the present writ petition. They are matriculates and have completed the six months Recorders Certificate Class Course Training from the Assam Survey and Settlement Training Centre, Guwahati. According to the petitioners, after completion of their training, they have been waiting for their appointment as Patowaries/Mandals for the last 15 years. In other districts of the State, recruitment process were undertaken to fill up the vacancies in the post of Mandal, but the same has not been done in respect of Hailakandi district. In the year 2006-2007, there were 17 vacancies in the post of Addl. Patowari in Hailakandi, but those vacancies were not filled up. Moreover, 5 vacancies WPC No. 4716 Of 2010 Page 2 of 7 in the post of Mandal were also available in Hailakandi during the year 2006-2007. Though, there was approval of the Finance (SIU) Department to fill up the said vacancies, no steps were taken to fill up the said vacancies. 03. As those vacancies were not filled up, petitioners and a few others approached this Court by filing a writ petition being WP(C) No.1300/2007. This Court by order 24.06.2008 disposed of the said writ petition with the observation that the concerned department would act in accordance with the prevailing norms. 04. Notwithstanding the above observation of this Court, no steps have been taken to fill up the vacancies. For the year 2008-2009, the State Government allotted a total of 159 posts of Mandal to be filled up in the entire State of Assam. Out of the 159 posts, 9 posts were allotted to Hailakandi district. However, the Government issued guidelines to fill up those vacancies by giving first preference to the serving Addl. Mandals by adjusting them against the vacant posts of Mandal. 05. It is under these circumstances, the present writ petition has been filed seeking the reliefs as indicated above. 06. Respondent No. 2 in his affidavit has stated that Finance Department had approved 1100 vacant sanctioned posts of Mandal/Patowari to be filled up in the State of Assam for the period from 2005-2006 to 2010-2011. However, it is stated that it is for the concerned administrative department i.e., the Revenue Department and the appointing WPC No. 4716 Of 2010 Page 3 of 7 authority i.e. the Deputy Commissioner, Hailakandi, who are the authorities responsible for filling up the vacancies in accordance with law. 07. Respondent No. 3 in her affidavit has stated that in the year 2009 Government of Assam in the Revenue Department conveyed approval to fill up 690 vacant posts of Mandal in different districts of Assam, out of which 17 were in Hailakandi district. As per Govt. instruction, while filling up the vacancies, serving Addl. Mandals under the Settlement Operation Schemes should be given top most preference. Accordingly, 17 posts of Mandal allotted to Hailakandi district were filled up from amongst Addl. Mandals/Patowaries working in the third settlement operation. Since Settlement Operation Schemes were wound up, decision was taken by the Government to absorb the Addl. Mandals/Patowaries working in such schemes against vacancies in the post of Mandal/Patowari. In the year 2008, one post of Mandal and not five was allotted to Hailakandi district, which was filled up by absorbing an Addl. Mandal working in the Settlement Operation Scheme. It is contended that passing of six months Recorders Certificate Class Course Training did not confer any vested right on the petitioners for appointment as Mandal or Addl. Mandal. 08. Additional-affidavit has been filed by the petitioners. It is stated that on 29.08.2013, Commissioner & Secretary to the Govt. of Assam, Revenue and Disaster Management had issued a letter to all the Deputy Commissioners of the districts in the State of Assam, directing them to take necessary steps to fill up the essential vacant posts. All the Deputy Commissioners were directed to furnish the number of vacant sanctioned WPC No. 4716 Of 2010 Page 4 of 7 posts of Mandal in their respective districts and to submit proposal to fill up such vacancies. Deputy Commissioner, Hailakandi by his WT message dated 21.09.2013 informed the State Govt. that 38 posts of Mandal were lying vacant in his district. 09. As already noticed above, the petitioners had earlier moved this Court seeking a direction to the respondents for their appointment in the post of Mandal on the strength of having completed the Recorders Certificate Class Course Training and being eligible for such appointment. This Court observed that filling up of vacancies in various posts is basically a function of the Executive Government. It depends upon various factors, such as, availability of resources and the order of priority for expending such resources. In such matters, judicial intervention would be wholly inappropriate. Declining to intervene in the matter, this Court observed that the concerned department in the matter of recruitment of Mandals would act in accordance with the prevailing norms. Relevant portion of the aforesaid order of this court dated 24.06.2008 reads as under: - “The task of making periodical assessment of the requirement of posts and the responsibility of sanctioning the requisite number of posts are essential functions vested with the executive arm of the Government. The exercise of such functions involves consideration of intricate question(s) of availability of resources and the order of priority for expending such resources. This is why the consistent judicial view in such matters has been that the executive arm of the Government should be left free to decide such questions. Judicial intervention in such matters will be wholly in appropriate as the judicial process would be singularly ill-equipped to arrive at the right conclusion in matters relating to creation of posts. Reverting to the present case what the Court finds is that for the year 2006-07 out of 80 (eighty) posts of Mandal sanctioned for the entire State, 5 (five) posts have been allocated to the Hailakandi District. The process of filling up the said 5 (five) posts is likely to be initiated soon. In so far WPC No. 4716 Of 2010 Page 5 of 7 as the 17 (seventeen) posts of Additional Patowaries are concerned, a proposal for sanction of the said posts, it is stated, is due to go to the Finance Department shortly. In such circumstances, the Court is of the view that its intervention will not be called for save and except to require the concerned Department to act in the matter in accordance with the prevailing norms. Beyond the above no further order/direction would be justified.” 10. The present grievance expressed by the petitioners is an extension of the one expressed in WP(C) No. 1300/2007, which was disposed of with the above observation. Having regard to the facts of the case, this Court is of the opinion that no other view different from the one expressed in the above order dated 24.06.2008 can be taken in the matter. How the vacancies in the post of Mandal in the Hailakandi district are to be filled up, when the vacancies are to be filled up and in what manner the vacancies are to be filled up are all matters which are within the domain of the executive arm of the State and no interference by this Court in exercise of its power under Article 226 of the Constitution of India is called for. This Court had rightly observed that judicial intervention in such matters would be wholly in appropriate. Moreover, undergoing of six months Recorders Certificate Class Course Training would not, ipso facto, entitle the petitioners to appointment as Mandal.
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    Department wise Work Allotment In D.C’s Office, Hailakandi Name of the Programme / Project/ Scheme. Name of the Department/Office SL NO 1 2 3 Member – Secretary, DWSC 1. 1. District Water and Sanitation Committee of Total cum Executive Engineer (PHE) Sanitation Campaign . 1. Project Package Scheme. 2. 2. Deen Dayal Hathkargha Protshahan Yojona. Astt. Director Handloom & Textile 3. Chief Minister Assam Vikash Yojona. 1. I.W.M..P(D.W.D.U) District Watershed 3. Divisional Office, Soil Conservation Committee. 1. AACP Tractor & Power Tiller at 20:30:50 basis 20%down payment 30% Government subsidy 50% Executive Engineer, Agriculture 4. Bank Loan & STW/LLP at 50% subsidy . Mechanization Division 2. Assam Bikash Yojona 2008-09 Tractor at 50% subsidy. 1. District Level Committee for S.N.P. 2. District Level Claim Disposal Committee for Mukhya Mantrir Jiban Bima Achoni. 5. District Social Welfare Office 3.District Level Monitoring Committee for Construction of WWC building. 4. Mukhya Mantrir Mahila Sammriddhi Achoni. 1. Implementation and Monitoring Committee for implementation of National Green Corps. 2. District Development Committee Meeting. 6. Deputy Commissioner Office 3. MSDP District Level Committee 4. RGMSY (Rajiv Gandhi Memorial Sansthapana Yojona). 1. DACC ( Assam Agriculture Competitiveness Project) 2. Agriculture Technology Management Agency (Governing body). 3. National Food Security Mission- Rice 4. Assam Bikash Yojona. 7. District Agriculture Office 5. Technology Mission for Integrated Development of Horticulture. 6. National Mission for Medicinal Plant. 7. Assam Agricultural Competitiveness Project (STW/LLP). 1. Task Force Committee (PMEGP) 2. District Level Committee under Kalpataru (Component –III). 3. Vocational Training under ASOM BIKASH YOJONA.