WA 350/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE BD AGARWAL JUDGMENT AND ORDER AMITAVA ROY , J The judgment and order dated 26.08.2010, passed in WP(C) No.1062 /2007 is under challenge in the instant appeal. Thereby, the learned Single Judg e, while remanding the issue pertaining to the claim of the respondent No. 1/wri t petitioner for the post of Mouzadar of Karara Mouza in the district of Kamrup in terms of Clause 116 of the Executive Instructions under the Assam Land and Re venue Regulation, 1886 (hereafter for short referred to as the Regulation) inter fered as well with the order dated 19.06.2005/24.06.2005 of the Deputy Commissio ner, Kamrup, reinstating the appellant to that post. 02. We have heard Md. MH Choudhury, learned counsel for the appellan t (respondent No. 5 in WP(C) No. 1062/2007), Ms. B Goyal, learned State Counsel, Assam for the official respondents and Mr. DC Borah, learned counsel for the re spondent No. 1 (writ petitioner in WP(C) No. 1062/2007), who has entered through a Caveat. The Caveat stands discharged. 03. The facts tortuous though, have to be sketched to appropriately comprehend the rival submissions. The post involved was initially held by Amaren dra Nath Choudhury (since deceased), the husband of the respondent No. 1. On his dismissal from service, the appellant was, on 28.12.1982 inducted thereto tempo rarily. In between, the dismissal of the respondent No. 1’s husband was interfer ed with by the Commissioner, Lower Assam Division, but as he expired on 26.05.20 02 he could not avail the benefit of his reinstatement. The appellant too was pl aced under suspension on 08.09.2000 and was, eventually, terminated from service on 23.02.2001 by the order of the Deputy Commissioner, Kamrup to that effect. T he present appellant had also unsuccessfully challenged the reinstatement of the husband of the respondent No. 1 before this Court, details whereof, at this sta ge, are not called for. Suffice it to mention that the appellant took the matter to the Apex Court in Civil Appeal No. 6295/2001, which was disposed of on 03.09 .2001, whereby, the termination of the appellant was interfered with on the grou nd of unfairness in action. His appeal was allowed and while setting aside his d ismissal/termination, it was observed that all other questions and issues had be en kept open. The Deputy Commissioner, Kamrup, Guwahati, thereafter by his order dated 22.02.2 002 withdrew the order restoring the husband of the respondent No. 1 as the Mouz adar and instead reinstated the appellant thereat. Being aggrieved the husband o f the respondent No. 1 preferred an appeal before the Commissioner, Lower Assam Division, Guwahati, who, on 02.07.2002 allowed the same interfering with the dec ision of the Deputy Commissioner, Kamrup. Thereby, the latter authority was dire cted to review his order, keeping open, however, the issues with regard to the s uspension as well as the proceedings then pending against the appellant for a fr esh decision by him. Subsequent thereto, the Deputy Commissioner, Guwahati, by his order dated 19.06. 2005 on a consideration, amongst others of the inquiry report submitted in conne ction with the proceeding against the appellant and on the legal advice obtained from the concerned law officer of the district withdrew the suspension order ag ainst him and reinstated him as the Mouzadar of the aforementioned Mouza. The pr oceeding against him was also dropped. The Circle Officer, Kamalpur Revenue Circ le, who in the interregnum was entrusted with the administration of the affairs of the Mouza, was also required to hand over the charge of the office to the app ellant. Consequential instructions were also issued to him to assume the said of fice and to function as required. 04. Meanwhile, the present respondent No. 1, widow of the Late Amare ndra Nath Choudhury, the Ex-Mouzadar had submitted an application on 05.07.2003 staking her claim for the said office under Clause 116 of the Executive Instruct ions of the Regulation. She preferred an appeal against the order dated 19.06.20 05/24.06.2005 before the Commissioner, Lower Assam Division. By order dated 06.0 1.2007, the aforementioned Revenue Authority dismissed the appeal of the respond ent No. 1 on the ground of delay. According to him, the order of the Deputy Comm issioner having been passed on 19.06.2005, the appeal preferred by the responden t No. 1 on 19.09.2005 was a belated one. Similarly, her husband having expired o n 26.05.2002, respondent No. 1’s application dated 05.07.2003 was also unduly de layed. The fact that the appellant, meanwhile, had been reinstated in the post f ollowing the closure of the proceedings against him, was also noted. 05. The respondent No. 1 carried the fight before this Court in WP(C ) No. 1062/2007. The learned Single Judge being of the opinion that, in the fact s and circumstances of the case, the appeal of the respondent No. 1 (writ petiti oner therein) ought not to have been dismissed on the ground of delay, remanded the matter back to the Deputy Commissioner, Kamrup, for a decision on the applic ation made by her for the post of Mouzadar, Karara Mouza. As a corollary, the or der dated 19.06.2005/24.06.2005, passed by the Deputy Commissioner, Kamrup, rein stating the appellant as the Mouzadar was interfered with. The operative directi ons being of considerable significance are extracted hereinbelow: - 19. In view of the aforesaid discussions, while setting aside the order dated 0 6.01.2007 passed by the Commissioner, Lower Assam Division, Guwahati, the matter is remanded back to the Deputy Commissioner, Kamrup for a decision on the basis of the application made by the petitioner referred to above. While doing so, th e Deputy Commissioner, Kamrup shall take into account all the relevant aspects o f the matter including the provisions of Clause 116 of the Regulations referred to above. The entire exercise shall be carried out as expeditiously as possible, but any rate, not later than 30.11.2010. Till then, the status quo as on today shall be maintained. 20. Consequently, the Annexure-15 order dated 24.06.2005 pa ssed by the Deputy Commissioner, Kamrup shall also stand interfere with. 06. By an additional-affidavit filed by the appellant on 06.12.2010, the order dated 26.11.2010 of the Deputy Commissioner, Kamrup setting aside the order dated 24.06.2005 vis-a-vis the appellant and appointing the respondent No . 1 as the Mouzadar of the Karara Mouza has been brought on record. Having regar d to the fact that the instant appeal had been directed against the order dated 26.08.2010 pursuant to which this decision has been made, we consider it expedie nt to extract the relevant portion in order to demonstrate the impact thereof as hereunder: - As the Hon’ble Gauhati High Court vide its order in WP(C) No. 1062/2007 dated 2 6.08.2010 has already interfered with the order of Appointment of Sri Tarun Chan dra Chamua as Mouzadar of Karara mouza issued vide Memo No. KRM-106/2002/36-37/4 06-10 dated 24.06.2005, the same is hereby set-aside. In compliance of the Judgment and order dated 26.08.2010 in WP(C) No. 1062/2007 (Smti. Anjali Choudhury - Vs- State of Assam & Ors) of the Hon’ble Gauhati High Court and as per provisions under clause 116(ii) Chapter VIII of the Execution i nstruction, Assam Land & Revenue Regulation, 1886, Smti. Anjali Choudhury, wife and legal heir of Late Amarendra Nath Choudhury, resident of Village & Post Offi ce Karara, P.S. Baihata Chariali, Dist - Kamrup (Assam) is hereby appointed as M ouzadar of Karara mouza under Rangia Sub Division in the district of Kamrup. Inform all concerned accordingly. 07. Whereas, Mr. Choudhury, has urged that having regard to the issu es raised in the appeal before the Commissioner, Lower Assam Division, this Cour t, while remanding the same for scrutiny and decision by the Deputy Commissioner , Kamrup, ought not to have interfered with the order of reinstatement of the ap pellant, Mr. Bora, has insistently urged that as the respondent No.1’s husband h ad, all relevant times, been the incumbent of the office involved, such a direct ion was imperative so as to ensure a fair and a final determination of the issue s involved and to provide a quietus to the long standing controversy. 08. After hearing the learned counsel for the parties and on a consi deration of the pleaded facts and the documents available on record, we notice t hat the learned Single Judge, while remanding the issue, in particular, pertaini ng to the respondent No. 1’s claim for appointment as Mouzadar did not declare h er preferential claim thereto and rather left it to the Deputy Commissioner, Kam rup to decide on the same in his discretion and in accordance with law. Admitted ly, on the date of the impugned judgment and order, the appellant was in office. As alluded hereinabove, his termination had been interfered with by the Apex Co urt and the Deputy Commissioner, Kamrup, Guwahati, on remand, and on a considera tion of all relevant aspects, had, by his order dated 19.06.2005/24.06.2005 rein stated him in office. The respondent No. 1’s claim for appointment as Mouzadar i n terms of Clause 116 of the Executive Instructions under the Regulations having been kept open by the learned Single Judge to be decided on merits by the conce rned Revenue Authority, in our considered opinion, interference with the order d ated 19.06.2005/24.06.2005 qua the appellant was not called for. 08. Mr. Choudhury, when queried by this Court has been candid in sta ting that the appellant is primarily aggrieved by the interference with his orde r of reinstatement and as such does not have any reservation vis-a-vis the consi deration of the respondent No. 1’s claim for appointment to the said office. The impact of the judgment and order dated 26.08.2010 of the learned Single Judge i s demonstrable from the extract of the order dated 26.11.2010. The Deputy Commis sioner, Kamrup, Guwahati, perceived the operative portion of the impugned judgme nt and order to be a direction of this Court to appoint the respondent No. 1 as the Mouzadar of Karara Mouza. This is fortified by the absence of any reason wha tsoever in the said order in accepting her preferential claim to the said office , more particularly, at a point of time when the same is occupied by the appella nt. By terminating his (appellant) services by interfering with the order dated 19.06.2005/24.06.2005 in terms of the directions contained in the impugned judgm ent and order, the Deputy Commissioner, Kamrup, in our unhesitant opinion, faile d to exercise his discretion in the matter, which evidently, was without referen ce to any scrutiny of the factors/criteria envisaged by Clause 116 of Chapter VI II of the Executive Instructions under the Regulation. The ouster of the appella nt from the office involved, in our estimate, did also contribute to this decisi on in favour of the respondent No. 1. The order dated 26.11.2010, though not formally challenged in the instant appeal , having regard to the continuity in the sequence of the events, we have conside red it appropriate to take judicial notice thereof and record our findings vis-a -vis the same. The order dated 26.11.2010, in our opinion, does not reflect any adjudication by the Deputy Commissioner, Kamrup, as required of him in law and i n terms of the directions of this Court as embodied in the judgment and order da ted 26.08.2010 rendered in WP(C) No. 1062/2007 and is thus held to be non est in law. 09. The appeal is, therefore, partly allowed. The Deputy Commissione r, Kamrup, would consequentially restore the appellant to office of the Mouzadar of Karara Mouza forthwith and, thereafter, decide on the tenability or otherwis e of the claim of the respondent No.1 to the said post under Clause 116 of Chapt er VIII of the Executive Instructions under the Regulation and in accordance wit h other relevant provisions of law. As the controversy is apparently protracted for one reason or the other, the aforementioned Revenue Authority would strive t o take a decision as early as possible and in no case later than two (2) months from the date of receipt of the certified copy of this order. The appellant, in particular, would submit a certified copy hereof before the aforementioned autho rity within three (3) weeks herefrom. It is made clear that, if in deciding this issue, the Deputy Commissioner, Kamru p, considers it necessary to associate the parties to the process involved, he w ould be at liberty to do so. No costs.