WP(C) 129/2009 BEFORE HON’BLE MRS.JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Challenge in this writ petition is made against the advertisement dated 5.11.08 inviting applications from the local public for filling up the post of G aonburah of Charge No. 8 under Mouza Paka, Circle Office Sarthebari, District B arpeta issued by the Additional Deputy Commissioner, Barpeta directing to subm it their applications in the proforma on or before 14.11.08 . 2. Heard Mr. I. Hussain learned counsel appearing for the petitioner. Also heard Mr. H. Rahman learned State Counsel appearing for the respondent Nos. 1 to 3 and Mr. B.D. Goswami learned counsel appearing for the respondent No.4. 3. The brief facts as pleaded in the writ petition is summarized as follows : One Md. Mohan Ali was the Gaonburah of Charge No.8 under Mouza Paka Circ le who was dismissed from the post on 31.3.82 which necessitated to advertise fo r filing up the said post and accordingly the then Deputy Commissioner (D.C.) is sued an advertisement for filing up the vacant post of Gaonburah on 26.7.83. Pur suant to the aforesaid advertisement the petitioner herein and the respondent No .4 being intending candidates for the above mentioned post applied for the same but the respondent No.4 did not participate in the selection process and in cons equence thereof petitioner was appointed to act as Gaonburah on 7.6.84. The said order of appointment dated 7.6.84 was challenged before the D.C. Borpeta which culminated in rejection of the said appeal on the ground of lack of jurisdictio n. The rejection of appeal by the D.C. was taken on the file of the learned Comm issioner, Lower Assam Division which was also not entertained for the lack of th e jurisdiction. However executive instruction No 162- A of the Assam Land and Re venue Regulation was amended w.e.f. 10.6.85 whereby an appeal was provided to th e D.C. against the primary authority and a second appeal to the Commissioner of Divisions and further a review was provided to the State Government. Consequentl y upon amended provision, the respondent No.4 preferred an appeal on 30.7.85 bef ore the Commissioner Lower Assam Division against the appointment of petitioner as Gaonburah. The said appeal was allowed on 29.12.86 and accordingly respondent No. 4 was appointed as Gaonburah on 31.1.87. Being aggrieved with the order dated 29.12.86 passed by the Commissioner, Lower Assam Division the petitioner took up the matter under the provision of review before the State Government and the State Government accepted the review petition and vide order dated 26. 5.90 set aside the order passed by the Commissioner, Lower Assam Division. The matter was taken on the file of this Court being Civil Rule No. 1133/90, which c ame up for consideration on 11.2.02 whereby the court refused to enter into the merit of the case holding that the power exercised by the appellate authority an d the reviewing authority to be without jurisdiction thereby allowing the respon dent No.4 to continue as Gaonburah of Charge No.8 of Paka Mauza, District Barpet a. 4. The said order of learned Single Judge dated 11.2.02 passed in Civil Rul e No. 1133/90 was taken on the file of Division Bench being writ appeal No.306/0 2 whereby and whereunder the Division Bench vide judgment and order dated 9.11.0 6 set aside the appointment of respondent No.4 with the following directions whi ch is quoted hereunder:- (i) The Deputy Commissioner Barpeta is directed to examine whether any notic e was issued or served upon the respondent No.1 for appearing before the intervi ew Board and if the Deputy Commissioner is satisfied that notice was served or d eemed to have been served having been sent by registered post or through process server, the order of appointment of respondent No.1 shall be cancelled and in h is place the appellant shall be appointed as Gaonburah of the concerned village. (ii) In the event the Deputy Commissioner is satisfied that no notice was iss ued to the respondent No. 1 or notice was issued but could not be served or coul d not be deemed to have been served, in that event the Deputy Commissioner shall after setting aside the appointment of the respondent No.1 take fresh steps for selection and appointment to the post of Gaonburah of the concerned village. 5. Thereafter the respondent No.4 sought review of the order passed in the said writ appeal and during the pendency of the review petition, the Additiona l Deputy Commissioner, Barpeta issued an advertisement for appointment of Gaonb urah of Charge No. 8 on 30.6.08. Accordingly the petitioner alongwith others ap plied for the said post and were asked to appear before the interview Comm ittee but no selection was made due to pendency of the review petition. The R eview petition was however dismissed by the Court on 17.11.08. 6. On dismissal of the review petition the Additional Deputy Commissioner, Barpeta issued another advertisement on 5.11.08 inviting applications for fill ing up the post of Gaonburah which is under challenge before this court. 7. An affidavit-in-opposition has been filed on behalf of State Respondent supporting the action dated 5.11.08 inviting application for selection and appoi ntment of Gaonburah, contending inter alia that in response to the earlier adver tisement dated 30.6.08 only one application was received and two petitions have been submitted requesting for re-advertisement of the said post, one from Md Tal ebar Rahman, respondent No.4 herein and another from public and as such re-adver tisement was issued on 5.11.08 which according to the Government is not in any w ay prejudice the petitioner and thus prayed for dismissal of the writ petition. Original record has also been produced on behalf of the respondent State. 8. From the record it reveals that the notice could not be served on respon dent No.1. However, a notice dated 30.6.08 was published inviting applications f rom intending candidates for filling up the post of Gaonbura, which could not be proceeded further in view of the pendency of the Review petition before thi s Court. The record further reveals that subsequently 2nd advertisement dated 5. 11.08 was issued upon request made by respondent No.4 and some public, which cou ld not be said as proper. Therefore, this Court seems it fit to set aside the ad vertisement dated 5.11.08, directing Deputy Commissioner, Barpeta to issue a fre sh advertisement for appointment of Gaonbura within a period of 1 (one) month fr om the date of receipt of this order and to proceed with and finalise the matter in accordance with law at the earliest. 9. With the above directions the writ petition is disposed of. Furnish a co py of this order to Mr H.Rahman learned State Counsel representing State Governm ent who will transmit the order immediately to the Deputy Commissioner, Barpeta for compliance. No costs.