Page No.# 1/7 GAHC010155422024 2025:GAU-AS:12905 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3953/2024 FAKARUDDIN ALI AHMED S/O- LATE SHABDUL ALI, R/O- VILL.- NO. 3 BARBALA, P.O. BHANGNAMARI, PS. SIALMARI, MOUZA- PUB BARKHETRI, DIST. NALBARI, ASSAM, PIN- 781126. VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, REVENUE AND DISASTER MANAGEMENT (D.M.) DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE DISTRICT COMMISSIONER NALBARI DIST. NALBARI ASSAM 3:THE ADDITIONAL DISTRICT COMMISSIONER (GAON PRADHAN) NALBARI DIST. NALBARI ASSAM 4:THE CIRCLE OFFICER BARKHETRI REVENUE CIRCLE DIST. NALBARI ASSAM 5:THE DIRECTOR OF LAND RECORDS AND SURVEYS ASSAM RUPNAGAR GUWAHATI-32 Page No.# 2/7 For the Petitioner : Md. S. Alom, Advocate For the Respondents : Mr. J Handique, SC, Revenue Dept. Ms. U Sarma, GA, Assam. BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 18-09-2025 Heard Md. S. Alom, learned counsel for the petitioner. Also heard Mr. J Handique, SC, Revenue Department and Ms. U Sarma, Government Advocate, Assam, for the respondents. 2. The present petition under Article 226 of the Constitution of India has been preferred by the writ petitioner with a grievance that though he was selected for the post of Gaon Pradhan for Lot no 1,2,3,4,5 under Barkhetri Revenue Circle in the district of Nalbari vide results of a selection process declared on 09.02.2024, he had been denied appointment to the said post without there being any valid reasons for the same. The petitioner has prayed for directing the respondent authorities to appoint the petitioner to the post of Gaon Pradhan of No.1,2,3,4 and 5 Barbola Lot under the Barkhetri Revenue Circle in the district of Nalbari. 3. Notice upon the respondents in this case was issued on 09.08.2024. Affidavit-in- opposition has not been filed by the respondent authorities though time, as sought for, was granted on different occasions. On 17.02.2025, the Addl. Sr. Government Advocate, Assam was granted two weeks further time on his prayer to obtain specific instructions from the office of the District Commissioner, Nalbari as to the reasons why no steps have been taken for issuing the order of appointment to the petitioner despite his selection as Gaon Pradhan. On 19.06.2025, it was submitted on behalf of the respondents that as per the advertisement issued on 26.05.2022 under which the petitioner had participated, one of the eligibility criteria prescribed was that the applicant Page No.# 3/7 should not have more than two children alive. The petitioner admittedly has three children, the last of them being born on 06.09.2018. The respondents were required to apprise the Court on the applicability of the restriction imposed by the Executive Instruction no 162 since all the children of the petitioner were born prior to 19.07.2019. The instructions issued by the District Commissioner, Nalbari, Assam on 28.07.2025 have been placed before the Court today and the matter is taken up for final consideration. Facts of the case: 4. By a notification published in the Assam Gazette on 10th of April 2018, the Governor of Assam was pleased to amend the then existing provisions of Executive Instructions contained in the Assam Land Revenue Regulation,1886 with regard to the minimum qualifications, duties and responsibilities and capacity building of Gaonburas in Assam. With regard to clause 162 of the Executive Instructions, 10 qualifications had been laid down which, amongst others, included that the applicant should be a citizen of India, below 35 years of age, having a qualification of at least 10th pass etc. By notification published in the Assam Gazette on 19th of July 2019, certain modifications had been introduced to add certain conditions in Executive Instruction number 162 (1) and 162-A to the following effect: “1. In the principal Executive Instructions, the Executive Instruction No. 162, clause (1),- (i) in sub-clause (ii), for the existing number "35" appearing in the first line the number "25" shall be substituted. (ii) after the existing sub-clause (x), for the punctuation mark ".", appearing at the end, the punctuation mark ";"shall be substituted and thereafter, the following new sub- clauses (xi) and (xii) shall be inserted, namely:- "(xi) He/She should not have more than two living children from a single or multiple partners: Provided that this provision should not be applicable in respect of those persons, who have more than two children prior to the date of coming into force of this notification i.e. RLR 187/2007/Pt/24, dated 19/07/2019. Page No.# 4/7 (xii) He/she should furnish an affidavit at the time of submission of application that he/she has not more than two living children from a single or multiple partners." 5. The District Commissioner, Nalbari published an advertisement on 26th of May, 2022 calling for applications to fill up the post of Gaon Pradhan in 101 vacancies within the Nalbari District Revenue Circle. At clause 11 of the advertisement, it was provided that the applicant should not have more than two living children and that the applicant would have to submit an affidavit in that connection. The petitioner applied under the said advertisement and participated in the different stages of the selection process including scrutiny of documents and the interview. The results of the interview were declared by the notification bearing number NLR.1-9/2022/Gaon Pradhan/130 on 09th of February 2024 under the signatures of the Additional District Commissioner (Gaon Pradhan) as the Member Secretary of the Selection Committee. The petitioner had been shown to be selected for the post of Gaon Pradhan against the vacant lot number 1, 2, 3, 4 and 5 Barbala lot under Barkhetri Revenue Circle. The petitioner was, however, not offered appointment and hence he has approached this court. Submission made on behalf of petitioner: 6. Md. S Alom, learned counsel for the petitioner submits that there is no dispute that the petitioner had applied under the advertisement dated 26th of May 2022 and that he had all the requisite qualifications to be appointed as a Gaon Pradhan in the post advertised. He further submits that the only probable reason for not offering appointment to the petitioner is that he has three living children. He submits that if that be the reason for not offering him the appointment, it is apparent that the respondents are acting under a misconception of law. Learned counsel for the petitioner has submitted that in the modification to the Executive Instructions issued by notification dated 19th of July 2019 for the post of Gaon Burha, the proviso to the newly introduced sub clause (ix) to Instruction 162(1) was specific that the provisions Page No.# 5/7 would not be applicable in respect of those persons who have more than two children prior to the date of coming into force of the notification, that is 19.7.2019. The learned Counsel for the petitioner submits that the admitted position is that the petitioner had been blessed with the youngest child on 6th of September, 2018 and therefore the said restriction introduced by the modification introduced through notification dated 19th of July 2019 would not be applicable in the case of the petitioner. He further submits that save and except the aforesaid misconceived embargo, there is no other reason why the petitioner can be denied his appointment after due selection to the post of Gaon Pradhan of the Lots already mentioned herein above. Submissions made on behalf of the respondents: 7. Mr J Handique, learned counsel appearing for the Revenue Department has submitted that the advertisement dated 26th of May 2022 had incorporated a specific clause where the applicant was required not to have more than two children living and that the applicants were also required to submit an affidavit to the aforesaid effect. He further submitted that it is evident that the petitioner had more than two living children on the date of his application and therefore he did not fulfil the conditions laid down in clause 11 of the advertisement. He submitted that the candidature of the petitioner deserves to be rejected on the said ground and that the petition does not require any consideration of this court. The submissions made by the learned counsel for the parties have been duly considered and the materials available on record and instructions produced before this Court have been perused. Discussions and decision: 8. It is not in dispute that by the notification published in the Assam Gazette on 10th of April 2018, the Governor of Assam had modified the minimum qualifications Page No.# 6/7 required for being considered for the post of a Gaon Pradhan by amending the then existing provisions of the Executive Instructions contained in the Assam Land Revenue Regulation, 1886. Certain conditions were introduced in the said Executive Instruction by the notification dated 19th of July 2019 published in the Assam Gazette. The proviso to clause (xi) of Executive Instruction number 162 (1) excluded the application of the requirement of not having more than two living children for those persons who had more than two children prior to the date of coming into force of the notification dated 19th of July 2019. It is also not in dispute that the petitioner had been blessed with three children, the last of whom was born on 6th of September 2018. Thus, it cannot be said that the rigors of Executive Instruction number 162 clause (1), subclause (xi) would in any manner affect the participation or selection of the petitioner for the post of Gaon Pradhan. Instructions placed before this Court which were issued under the signatures of the Additional District Commissioner (Revenue), Nalbari on 28th July 2025, which in turn contained the clarification issued by the District Commissioner, Nalbari District, lends support to the case of the petitioner, inasmuch as, the District Commissioner has expressed the view that the restriction under Executive Instruction number 162 is not applicable to the petitioner and he is eligible for consideration as per the said notification. This Court is, therefore, of the considered view that the restriction imposed by Executive Instruction number 162 cannot act to the detriment of the petitioner and/or disqualify him from being considered for the post of Gaon Pradhan as advertised. With regard to the contention of Mr Handique, learned counsel appearing for the Revenue department that the petitioner does not fulfil the criteria laid down in the advertisement under consideration, suffice it to say that the non-inclusion of the proviso introduced in the Executive Instruction Number 162 clause (1) subclause (xi) in the advertisement is not in compliance with the Provisions of the Executive Instructions and therefore, the mere non- inclusion of the relaxation afforded by the proviso in the advertisement will not render the petitioner ineligible for consideration for selection and appointment to the post of Gaon Pradhan as advertised. Page No.# 7/7 9. Consequently, this writ petition is allowed, directing that the ground of having two or more children would not act as a disqualification for the petitioner and his candidature was rightly considered at par with other eligible candidates. The petitioner has already been declared to be selected for appointment as a Gaon Pradhan in 1,2,3,4 and 5 Barbala Lat under the Barkhetri Revenue Circle. The authorities shall now proceed to bring the process of selection and appointment to the post under consideration to its logical conclusion expeditiously, in any case within a period of two months from the receipt of a certified copy of this order, provided that there is no other lawful impediment. 10. The writ petition stands allowed to the extent indicated above. 11. No costs. . JUDGE Comparing Assistant