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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

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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

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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

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    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

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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

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the circumstances there is no order as to costs.