Gauhati High Court
Manirul Islam vs The State Of Assam And 5 Ors on 14 December, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010010672016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1514/2016
MANIRUL ISLAM
S/O MD. NURUL ISLAM, VILL. NIZ - BAHARI, P.O. BAHARI HAAT, DIST-
BARPETA, PIN-781305
VERSUS
THE STATE OF ASSAM and 5 ORS.
THROUGH THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GHY-6
2:THE SECY. TO THE GOVT. OF ASSAM
REVENUE AND DISASTER MANAGEMENT REGISTRATION DEPTT.
ASSAM
DISPUR
GHY-6
3:THE INSPECTOR GENERAL OF REGISTRATION
ASSAM
RUPNAGAR
GHY-5
4:THE DY. COMMISSIONER
BARPETA
P.O.
P.S. and DIST- BARPETA
ASSAM
PIN-781302
5:THE FINANCE DEPARTMENT
DISPUR
GHY-6
6:HABIBUR RAHMAN
S/O LT. ABDUS SALAM
VILL. and P.O. SONKUCHI
Page No.# 2/6
P.S. and DIST- BARPETA
ASSAM
PIN-78131
Advocate for the Petitioner : MR M H AHMED
Advocate for the Respondent : MR.R ISLAM R-6
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 14/12/2022 Heard Mr. M.H.Ahmed, the learned counsel appearing for the petitioner, Mr. P. Handique, the learned counsel appearing on behalf of the respondent Nos. 2 and 3, Mr. H. Sarma, the learned counsel for the respondent Nos. 1 and 4, Mr. P. Nayak, the learned counsel appearing on behalf of the respondent Nos. 1 and 5 and Mr. R. Islam appearing for the respondent No.6.
2. The issue involved in the instant proceedings pertains to as to whether the petitioner or the respondent No. 6 should be appointed as a Sub-Registrar on commission basis. The petitioner alleging that there were certain illegalities being committed by the Revenue Department in not considering the case of the petitioner for appointment as Sub-Registrar on commission basis and on the other hand favouring the respondent No. 6, had filed the instant writ petition seeking setting aside of the appointment of the respondent No. 6 as a Registrar at the newly sanctioned office of Sub-Registrar at Bahari Bazar in the district of Barpeta as well as for a direction to the respondent authorities to appoint the petitioner as Sub-Registrar of the office of the Sub-Registrar, Bahari Bazar or alternatively select most suitable persons among the suitable persons on merit, who applied for the post of Sub-Registrar of Bahari Bazar Sub-Registrar Office or Page No.# 3/6 to fill up the said post with due advertisement and interview as per law.
3. To the said writ petition, the respondent Nos. 1 and 2 have filed an affidavit-in-opposition stating inter alia that the representation submitted by the petitioner for opening a new Sub-Registry Office on Commission basis at Bahari Bazar in the district Barpeta district was duly received. However, the Finance Department to the Government of Assam expressed its inability to agree to the said proposal. It was further mentioned that the Revenue Disaster Management (Registration) Department suspended it's earlier policy of opening a new Sub Registry Office in the State and in that view of the matter, the question of entertaining the instant writ petition does not arise. Further to that, it has also been mentioned that the policy for opening a new Commission basis Sub- Registrar Office in the State of Assam being suspended, the question of responding to the representation submitted by the petitioner did not arise.
4. The respondent No. 5, i.e. Finance Department have also filed an affidavit- in-opposition, wherein it has been mentioned that the Finance (E.C.III) Department vide its endorsement dated 17/9/2010 expressed it's inability to agree to the proposal for appointing a Sub-Registrar on Commission basis in absence of a concrete departmental policy/decision.
5. The respondent No. 6 has also filed an affidavit-in-opposition wherein the stand is that the State Government has the power to appoint such persons whether public officers or not as it thinks proper to be Registrar of the several districts or to be Sub-Registrar of several sub-districts as mentioned in Section 6 of the Registration Act, 1908. It was also mentioned that the power have been given to the Government to appoint the Sub-Registrar and it is the Government who has to decide who is to be appointed. To the said affidavit-in-opposition the respondent No. 6 has enclosed the Gazette Notification of the Assam Page No.# 4/6 Registration Service Rules, 2010(for short the Rules of 2010).
6. A perusal of the Rules of 2010 stipulates that the Service under the Rules of 2010 shall consist of 2 classes i.e. Class-I which would include the post of Assistant Inspector General of Registration in Grade-I and the post of Deputy Registrar in Grade-II. Class-II set of posts would include the post of Senior Sub- Registrar and such other posts as may be included from time to time by the Governor as Grade-I and the post of Sub-Registrar and such other posts as may be included from time to time by the Governor in Grade-II. Rule 5 stipulates the method of recruitment. Sub-Rule (1) of Rule 5 stipulates that the recruitment to the cadre of Assistant Inspector General of Registration, Deputy Registrar and the Senior Sub-Registrar shall be made by promotion only. However, in terms with Sub-Rule(2) of Rule 5, the recruitment to the cadre Sub-Registrar shall be made by the direct recruitment only and there is a reference to the syllabus mentioned in Schedule III to the said Rules of 2010. As in the instant case, the post in question is in relation to Sub-Registrar, Rule 9 of the Rules of 2010 is applicable, which stipulates that the direct recruitment shall be made on the basis of recommendation of the Commission in accordance with the procedure stipulated therein. Clause (c) of Rule 9(I) categorically mandates that the Commission which is the Assam Public Service Commission shall make a selection in accordance with the scheme of selection prescribed by the Government and the Commission may hold such test or interview and scrutiny of other documents as may be considered necessary. Rule 13 is relevant for the purpose of the instant case as both the petitioner as well as the respondent No. 6 claim appointment to the post of Sub-Registrar on commission basis. As such, the Rule 13 is reproduced herein below :-
"13. Subject to suitability as may be decided by the Board and by the Page No.# 5/6 Appointing Authority in consultation with the Commission the following persons may be appointed to the cadre of Sub-Registrar of the service :-
(a) A Sub-Registrar employed on commission basis who--
(i) has rendered continuous service on commission basis Sub-
Registrar for a period of not less than 8 years on the 1 st January of the year of selection.
(ii) holds a Bachelor degree in Arts, Science or Commerce from a University recognized by the Government.
(iii) is below 45 years of age on the first January of the year of selection."
7. From a perusal of the said quoted Rule, it transpires that the qualification necessary for appointment of a person in the cadre of Sub-Registrar have been mentioned in Clause-(a) of Rule 13 i.e. a Sub-Registrar employed on commission basis who had rendered continuous service on commission basis Sub Registrar for a period of not less than 8 years on the 1 st of January of the year of selection, holds a bachelor decree in Arts, Science or Commerce from the university recognized by the Government and is below 45 years of age on the 1st of January of the year of selection.
8. From the above materials on record, it therefore transpires that both the petitioner and the respondent No. 6 have not yet been appointed as a Sub- Registrar on Commission basis. The State Government and more particularly it's Finance Department have not taken any decision to appoint any person as a Sub-Registrar on Commission basis for the present. Under such circumstances, neither the petitioner nor the respondent No. 6 in view of the specific stand of the State Government can claim to be appointed as a Sub-Registrar on Page No.# 6/6 commission basis.
9. The application of Rule 13 of the Rules 2010 is also not applicable in the case of the petitioner and the respondent No. 6 as they have never been appointed as Sub-Registrar on Commission basis. The only option which is left to the State Government in view of it's present policy is to make direct recruitment in terms to Rule 9 of the Rules of 2010.
10. Accordingly, this Court does not find any merit in the instant writ petition for which the petition stands disposed dismissed however, subject to the observations made that as there is no policy of the Government to appoint anybody as Sub-Registrar on Commission basis, the respondent authorities shall abide by the Rules of 2010 while carrying out the recruitment for the post of Sub-Registrar.
JUDGE Comparing Assistant