Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
TAGIN LITIN, STATE OF ARUNACHAL PRADESH
Vs.
RESPONDENT:
STATE OF ARUNACHAL PRADESH & ORS., OJOM LIBANG & ANR.
DATE OF JUDGMENT: 10/05/1996
BENCH:
S.C. AGARWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO. 8248 OF 1996
(arising out of S.L.P (Civil) No. 3293 of 1995)
J U D G M E N T
S.C. AGRAWAL , J. :
Leave granted.
These appeals arise out of Writ Petition (Civil No.
2035 of 1994 filed by Ojom Libang (hereinafter referred to
as ’the petitioner’) which was disposed of by the Gauhati
High Court by judgment dated September 27, 1994. They relate
to appointment on the post of Head Gaonburah of Simong
village in the East Siang district of Arunachal Pradesh.
In the North East Frontier Tract, which was earlier
administered by the North East Frontier Agency, and is now
known as State of Arunachal Pradesh, there is a two tier
system of administration of justice governed by the Assam
Frontier (Administration of Justice) Regulation, 1945
(hereinafter referred to as ‘the Regulation’) whereunder the
executive and the judiciary have been rolled into one. The
Deputy Commissioner and the Assistant Commissioner form the
upper tier and the village authority the lower tier. The
status of village authority is conferred on the Gaonburah
who has the power to apprehend culprits who committed
heinous offences and try persons committing non-heinous
crimes. Each village had at least two Gaonburahs but a big
village the number may go up. One of them is designated as
the Head Gaonburah. Under clause 5(1) of the Regulation the
Deputy Commissioner has been conferred the power to
appointed members of the village authority and in exercise
of the said power he appoints the Gaonburahs.
The village authority of Simong village consists of 24
Gaonburahs. There is a Head Gaonburah and a Second Head
Gaonburah. On account of the death of the Head Gaonburah in
1993 and Second Head Gaonburah in 1990, the posts of the
Head Gaonburah and Second Head Gaonburah fell vacant. On
January 17, 1994, a representation signed by 5 members of
Gaon Panchayat, 2 members of Anchal Samity and 8 Gaonburahs
of the Simong village was submitted to the Deputy
Commissioner, Pasighat recommending the name of the
petitioner for the post of Head Gaonburah and Shri Atteng
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Sitek for the post of Second Head Gaonburah of village
Simong on the basis of their seniority in age and
experience. On the basis of the said representation a note
dated January 27, 1994 was put up before the Deputy
commissioner for approval of the names of before the Deputy
Commissioner for approval of the names of the petitioner as
Head Gaonburah and Shri Atteng Sitek as Second Head
Gaonburah. On January 31, 1994, the Deputy Commissioner
approved the said proposal and passed an order of issuing
appointment orders. On the basis of the said order a W.T.
message was sent to the Additional Deputy Commissioner,
Yingkiong, on February 15, 1994 directing him to inform the
petitioner and Shri Atteng Sitek of the approval of their
names for Head Gaonburah and Second Head Gaonburah of Simong
village from January 31, 1994. In the meantime, another
representation dated January 27, 1994 was submitted by 16
Gaonburahs of village Simong and 4 members of the panchayat
recommending the name of Tagin Litin for appointment on the
post of Head Gaonburah of the village on the basis of his
knowledge in customary law and recognition of his
outstanding social services. Other representation were also
made by a number of Gaonburahs and Head Gaonburahs of
adjoining village and other prominent members of Yingkiong
circle recommending the name of Tagin Litin for the post of
Head Gaonburah of village Simong. These representation were
received by the Deputy Commissioner on January 31, 1994.
After considering the said representations the Deputy
Commissioner sent a WT message dated March 8, 1994 to the
Additional Deputy commissioner, Yingkiong, wherein it was
stated that no formal appointment orders for the petitioner
and Shri Atteng Sitek had been issued from his office since
no such order was issued earlier in other cases also and
that the only correspondence in this regard was the WT
message of February 15, 1994. In the said WT message dated
March, 8, 1994, it was stated :
"HENCE AS SAID BY YOU THEIR
APPOINTMENT BE KEPT IN ABEYANCE FOR
THE TIME BEING."
Thereafter, the Additional Deputy Commissioner
Yingkiong, after making the necessary enquiries and after
assessing the relative merits of the candidates submitted a
report dated April 18, 1994, wherein the recommended the
name of Tagin Litin for appointment as Head Gaonburah and
the petitioner as Second Head Gaonburah of village Simong.
The said recommendation of the Additional Deputy
commissioner was accepted by the Deputy Commissioner and by
WT message dated April 19, 1994, the Additional Deputy
Commissioner, Yingkiong, was informed that Tagin Litin and
the petitioner had been appointed as Head Gaonburah and
Second Head Gaonburah respectively of Simong village and
that concerned persons may be informed. A copy of the said
WT message dated April 19, 1994 was also sent to Tagin Litin
and the petitioner and all the Gaonburahs of Simong village
by the Additional Deputy Commissioner, Yingkiong. Feeling
aggrieved by the said order dated April 19, 1994 which was
communicated on April 22, 1994, the petitioner filed the
writ petition, which has given rise to these appeals,
wherein he assailed the order as contained in WT message
dated April 19, 1994 regarding appointment of Tagin Litin as
Head gaonburah of Simong village and has prayed that the
petitioner may be allowed to continue to function as head
Gaonburah of Simong village. The said writ petition filed by
the petitioner has been allowed by the High Court by the
impugned judgment.
The High Court has held that on January 31, 1994 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
order had been passed by the Deputy Commissioner for the
issuance of appointment order regarding the appointment of
the petitioner as Head Gaonburah of Simong village and that,
in fact, appointment order was issued appointing the
petitioner as head Gaonburah of Simong village by issuing
the WT message dated February 15, 1994 under clause 5 of the
Regulation. The High Court has further held that the
petitioner was holding a civil post and he could not be
removed from the same without affording an opportunity and
that the order of appointment of Tagin Lit in as Head
Gaonburah and the petitioner as Second Head Gaonburah
amounts to removing the petitioner from the post of Head
Gaonburah which he was holding and, therefore, the order
contained in the WT message dated April 19, 1994 regarding
appointment of Tagin Litin as Head Gaonburah was liable to
be quashed and the petitioner would be entitled to act as
head Gaonburah of Simong village as per earlier the WT
message dated February 15, 1994.
The question that falls for consideration is whether by
order dated February 15. 1994 the petitioner has been
appointed as Head Gaonburah and by order dated April 19,
1994 he as been removed from the said post. The original
records were placed before the High Court and on
consideration of the same the High Court has fond that on
January 31, 1994 a note was put up before the Deputy
commissioner that the name of the petitioner may be approved
for Head Gaonburah and of Shri Atteng Sitek for Second Head
Gaonburah since vacancies had arisen due to demise of the
Head Gaonburah and Second head Gaonburah of Simong village
and that on January 31, 1994 the Deputy Commissioner had
approved the said proposal and had passed an order "Issue
appointment orders". This was followed by WT message dated
February 15, 1994 from the office of the Deputy Commissioner
to the Additional Deputy Commissioner, Yingkiong. The said
WT message is as follows :-
"NO. HT-(J)-14/PT-II DTD 15/2 (.)
PLEASE INFORM SHRI OJOM LIBANG AND
SHRI ATTENG SITEK FOR APPROVE OF
HEAD GB AND 2ND GB OF SIMONG
VILLAGE FROM 31.1.94. SHRI OJOM
LIBANG H/GAM, ATTENG SITEK 2ND
GAM."
Subsequently, the representation for appointment of
Tagin Litin were considered and WT message dated March 8,
1994 was sent from the office of the Deputy Commissioner to
the Additional Deputy Commissioner. The said WT message is
as follows :-
"NO. HT(J) 14/PT-II 8/3 (.) I AM
DIRECTED TO INFORM YOU THAT NO
FORMAL APPOINTMENT ORDERS FOR SIR
OJOM LIBANG AND SRI ATTENG SITEK
HAVE BEEN ISSUED FROM THIS OFFICE
(.) SINCE O SUCH ORDER WAS ISSUED
EARLIER IN OTHER CASES ALSO (.) THE
ONLY CORRESPONDENCE REG THE SAM WAS
THE W/T MESSAGE OF 15.2.94
ADDRESSED TO YOU (.) HENCE AS SAID
BY YOU THEIR APPOINTMENT BE KEPT IN
ABEYANCE FOR THE TIME BEING."
This was followed by WT message dated April 19, 1994
from the office of the Deputy Commissioner to the Additional
Deputy Commissioner which is as under :-
"NO. HT(J) -14/PT-II DTD 19.4 (.)
SHRI TAGIN LITIN AND SHRI OJOM
LIBANG APPOINTED AS HEAD GAM AND
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
SECOND HEAD GB SIMONG VILLAGE (.)
INFORM THE CONCERNED PERSONS (.)
The case of the petitioner is that he had been
appointed as Head Gaonburah by the Deputy Commissioner when
he passed the order on January 31, 1994 approving the
proposal for such appointment and directing that appointment
orders be issued and that the WT message dated February 15,
1994 sent from the office of the Deputy Commissioner to the
Additional Deputy Commissioner was the order of appointment
of the Petitioner as Head Gaonburah.
It is settled law that, in order to be effective an
order passed by the State or its functionaries must be
communicated to the person who would be affected by that
order and until the order is so communicated the said order
is only provisional in character and it would be open to the
concerned authority to reconsider the matter and later or
rescind the order. [See : Bachhittar Singh v. The State of
Punjab, (1962) Supp. 3 SCR 713, at p. 721].
Here we are concerned with appointment to a post. An
appointment to a post or office postulates -
(a) a decision by the competent authority to appoint a
particular person;
(b) incorporate of the said decision in an order of
appointment; and
(c) communications of the order of appointment to the
person who is being appointed.
All the three requirements must be fulfilled for an
appointment to be effective.
As noticed earlier, in the instant case the Deputy
Commissioner, who was the competent authority under the
Regulation, had passed an order on January 31, 1994
approving the appointment of the petitioner and Shri Atteng
Sitek as Head Gaonburah and Second Head Gaonburah of Simong
village and had directed that appointment order be issued.
Thereafter the WT message dated February 15, 1994 was sent
to the Additional Deputy Commissioner to inform the
petitioner and Shri Atteng Sitek about the approval of their
appointment as Head Gaonburah and Second Head Gaonburah of
Simong village from January 31, 1994. WT message dated March
8, 1994, which was subsequently sent from the office of the
Deputy commissioner to the Additional Deputy Commissioner
records that no formal order for appointment of the
petitioner and Shri atteng Sitek had been issued from the
office since no such order was issued earlier in other cases
also and that the only correspondence regarding the same was
the WT message dated February 15, 1994 addressed by the
Deputy Commissioner to the Additional Deputy Commissioner.
In view of the said statement in WT message dated March 8,
1994, the WT message dated February 15, 1994 has to be
treated as the order regarding appointment of the petitioner
as head Gaonburah of Simong Village. Conditions (a) and (b)
aforementioned for appointment on a post or office were,
therefore, satisfied in the present. case. The only question
is whether condition (c) had been satisfied before the
passing of the order dated April 19, 1994 whereby Tagin
Litin was appointed as Head Gaonburah petitioner was
appointed as Second head Gaonburah of Simong village. In
this context, it may be stated that by WT message March 8,
1994 it was directed that the appointment of the petitioner
and Shri Atteng Sitek as per WT message dated February 15,
1994 "be kept in abeyance for the time being."
It is, therefore necessary to determine whether the
said order of appointment as contained in the WT message
dated February 15, 1994 had become effective by having been
communicated to the petitioner prior to March 8, 1994. It is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
no doubt true that by WT message dated February 15, 1994 the
Additional Deputy Commissioner was directed to inform the
petitioner about approval of his appointment as Head
Gaonburah from January 31 1994. There is, however, nothing
to show that the said order was actually communicated by the
Additional Deputy Commissioner to the petitioner. In
paragraph 13 of the Writ Petition filed before the High
Court the petitioner had asserted that the petitioner was
informed about the said appointment by WT message dated
February 15, 1994., But in the affidavit-in-opposition of
Shri Rakhal Chandra Deb Nath filed on behalf of the State of
Arunachal Pradesh, the Deputy Commissioner and Additional
Deputy Commissioner in replay to the said assertion in
paragraph 13 of the writ petition it has been denied that
the petitioner was informed about his appointment as Had
Gaonburah. In the said affidavit-in-opposition, it is stated
that on February 5, 1994 the Extra Assistant Commissioner,
Viang Kiong had addressed a letter to the Deputy
Commissioner stating the relevant facts and also indicating
the rival claims of the petitioner and Tagin Litin for the
post for Head Gaonburah and sought for necessary advice for
a fair selection for the post of Head Gaonburah and that on
the receipt of the above letter the Deputy Commissioner
decided to keep in abeyance the process of consideration of
the case of Tagin Litin and to review the issue of a free
fair selection for appointment to the post of Head Gaonburah
and thereafter WT message dated March 8, 1994 was sent by
the Deputy Commissioner to the Additional Deputy
Commissioner to Keep in abeyance the appointment of the
petitioner and Shri Atteng Sitek. The WT message dated March
8, 1994 also lends support to the said assertion in the said
affidavit-non-opposition filed in the High Court because the
said message makes as mention of the fact that the
Additional Deputy Commissioner had given a suggestion for
keeping the appointment of the petitioner and Shri Atteng
sitek in abeyance for the time being and the said suggestion
had been accepted by the Deputy Commissioner. This would
indicate that prior to issuance of WT message dated March 8,
1994 the information regarding appointment of the petitioner
as Head Gaonburah as contained in WT message dated February
15, 1994 was not communicated to the petitioner. There is no
question of any such communication being made to him after
March 8, 1994 because in WT message dated March, 3 1994
there was a clear direction that the said appointment be
kept in abeyance. In these circumstances it must be held
that prior to the issuance of the order dated April 19,
1994, there was o communication of the order dated February
15, 1994 to the petitioner with regard to his appointment as
Head Gaonburah of Simong village. In the absence of any such
communications, the said order of appointment had not come
into effect and the order dated April 19, 1994, whereby
Tagin Litin was appointed as Head Gaonburah and the
petitioner was appointed as Second Head Gaonburah cannot be
regarded as an order for removal of the petitioner as Head
Gaonburah. The impugned judgment of the High Court setting
aside the order dated April 19, 1994 regarding appointment
of Tagin Litin as Head Gaonburah and the petitioner as
Second Head Gaonburah and directing that the petitioner
should be treated as Head Gaonburah by virtue of WT message
dated February 15, 1994 cannot, therefore, be upheld and has
to be set aside.
In the result, the appeals are allowed, the impugned
judgment of the High Court dated September 27, 1994 is set
aside and Civil Rule No. 2035 of 1994 filed by the
petitioner before the Gauhati High Court is dismissed. In
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
the circumstances there is no order as to costs.