WP(C) 7472/2005 BEFORE THE HON’BLE MR JUSTICE B P KATAKEY This writ petition is directed against the order dated 02.08.2005, passed by the learned Commissioner, Lower Assam Division, allowing the appeal preferred by th e present Respondent No. 4 challenging the order of appointment of the writ peti tioner as Gaon Bura of Kabeichuba village under Sipajhar Revenue Circle , Mouza- Hindughopa, P.O. Bordoulguri in the District of Darrang, Assam, whereby and wh ere under, while setting aside the order of appointment dated 04.02.2005 of th e writ petitioner as Gaonbura, directed the appointment of the Respondent No. 4 as the Gaonbura of the said village. I have heard Mr. Borah, learned counsel appearing the p etitioner. Also heard Mr. B J Ghosh, learned counsel appearing for Respondent No s. 1, 2 and 3 and Mr. Goswami for Respondent No. 4. Mr. Borah, learned counsel appearing for the petitioner submits that under Clause 162 of the Executive Instruction issue by the Governm ent of Assam, which provides for the manner of appointment of Gaonbura, as well as the Division Bench of this Court in Rajeshwar Das Vs- the State of Assam & Or s. in ( 2006) 4 GLT 925 has submitted that suitability of the person to the po st of Gaonbura is the most essential requirement, which is to be considered by t he appointing authority and even if a candidate has claimed for appointment on t he ground of his being from family of late Gaonbura, such consideration cannot g et preference over the suitability of the candidate. Mr. Borah referring to the impugned order dated 02.08.2005, passed by the learned Commissioner, therefore, submits that the learned Commissioner has set aside the appointment order of the petitioner as Gaonbura and directed the authority to appoint the Respondent No. 4 solely on the ground that Respondent No. 4 belongs to the family of the late Gaonbura, without considering the suitability. It has also been submitted by the learned counsel that the learned Commissioner at the most, ought to have remand ed the matter to the appointing authority for fresh consideration, in the event the claim of the Respondent No. 4 that he belongs to the family of late Gaonbur a has not at all been considered by the appointing authority, while making selec tion for appointment to the post of Gaonbura. Mr. Ghosh, learned State Counsel for Respondent Nos. 1, 2 and 3 producing the relevant records, submits that the appointing authority while se lecting the candidate did not consider the claim of the Respondent No. 4 that he belongs to the family of the Gaonbura, though clause 162 of the Executive instr uction requires consideration of ( a) claim of the family of the late Gaonbura , (b) the wishes of the villagers and ( c ) the views of the Mouzadar, apart from the suitability of the person for the post. Referring to the materials availabl e on record, it has also been submitted by Mr. Ghosh that though the Deputy Comm issioner, vide communication dated 18.06.2004, directed the Circle Officer as we ll as the Mouzadar of the concerned Mouza to submit their views on the applicati ons filed by the petitioner as well as the Respondent No. 4, only the views of M ouzadar as well as the Circle Officer in respect of Respondent No. 4 are availa ble on records and there is no indication available on records relating to submi ssions of the views expressed by such authority in respect of the writ petitione r. Learned State Counsel further submits that since the learned Commissioner ha s found that the claims of the Respondent No. 4 that he belongs to the family of late Gaonbura has not been considered by the appointing authority, the matter o ught to have been remanded to the appointing authority for fresh consideration a nd ought not to have directed the Deputy Commissioner for appointing the Respond ent No. 4 . Mr. Goswami, learned counsel for the Respondent No. 4 on th e other hand supporting the order dated 02.08.2005, passed by the learned Commis sioner, submits that it is evident from the order passed that the Respondent No. 4 is more suitable than the petitioner and he being the son of late Gaonbura, t he Commissioner has not committed any illegality in directing the Deputy Commiss ioner to appoint the Respondent No. 4, after setting aside the appointment of th e writ petitioner. I have considered the submission of the learned counsels fo r the parties and also perused the pleadings. I have also perused the records as produced by Mr. Ghosh, learned State counsel. It appears from the order dated 02.08.2005 that the sole ground on which the writ petitioner’s appointment as Gaonbura has been set aside by the learned Commissioner is that the appointing authority while making selec tion did not consider the claim of Respondent No. 4 that he belongs to the famil y of late Gaonbura. Having setting aside the order of appointment of the writ pe titioner, the Commissioner directed the Deputy Commissioner to appoint Responden t No. 4, without however, recording any finding relating to the suitability of t he Respondent No. 4. Clause 162 of the Executive Instruction requires the Deputy Commissioner to take into consideration the claim of the family of late Gaonbur a, the wishes of the villager and views of the Mouzadar, while making selection for appointment to the post of Gaonbura. The Deputy Commissioner is also require d to consider the suitability of the person applied for the post, apart from the aforesaid considerations. The Apex Court in State of Assam & anr. Vs- Nahar Chutia & anr. Reported in 1979 ACR 163 has held that the Gaonbura in Assam Valley holds a civil post of Assam and in case there is vacancy in the post, it is the duty of the Deputy Commissioner to appoint a person most suitable for the post after taking into consideration the claims of the family of late Gaonbura, wishes of t he villagers and views of the Mouzadar. A Division Bench of this Court in Rajash war Das ( Supra) has also held that while making selection for appointment to th e post of Gaonbura, the claims of the family of the late Gaonbura , wishes of th e villagers and views of the Mouzadar are required to be considered and all thi ngs being equal, claim of the member of the family of the Gaonbura may have to b e preferred, but not at the cost of suitability of the person for the post. In the case in hand, records produced by Mr. Ghosh does not reveal consideration of the claims of the Respondent No. 4 that he belongs to t he family of late Gaonbura and also consideration of the wishes of the villagers and Mouzadar. In fact, the views of the Mouzadar in respect of application file d by the writ petitioner was not obtained, though those are relevant considerati ons, apart from the suitability , for the purpose of selection of candidate for appointment to the said post. In view of the above, while upholding the decision of the l earned Commissioner relating to the setting aside of the order of appointment of the writ petitioner , the direction contained in the order dated 02.08.2005 for appointment of Respondent No. 4 is set aside. The Deputy Commissioner is direct ed to re-consider the case of both the parties after obtaining fresh views from the villagers as well as from the Mouzadar concerned in respect of both the appl icants namely the writ petitioner and the Respondent No. 4 and to make fresh s election and appointment. While making such selection, the Deputy Commissioner s hall bear in mind the observation made herein above in the Judgment. The said ex ercise is directed to be completed by 15th February, 2011. Till such time, as th e petitioner is discharging the duties and function of Gaonbura, he shall be all owed to do the same. The writ petition is accordingly partly allowed. No Costs. A copy of this order be furnished to Mr. Ghosh.