TAGIN LITIN ETC.versusSTATE OF ARUNACHAL PRADESH

                        TAGIN LITIN ETC.                                          A
                               v.
                 STATE OF ARUNACHAL PRADESH

                               MAY 10, 1996

             [S.C. AGRAWAL AND G.T. NANAVAT!, JJ.]
                                                                                  B

      Assam Frontier (Administration of Justice) Regulation. 1945-Clause
5(1}-<Jaonburah (village authority)-Appointment-Requisites of-(1)
decision by competent authority, (2) incorporation of decision in order, (3)
communication of the order to appointee-Absence of communication of               C
appointment order to the appointe~eld, appointment not complete-The
order remains provisional, until it is communicatecJ,..-All the requisites must
be complete for an appointment to be effective.

       The dispute in the appeal is with regard to the appointment of Head        D
Gaonburah and Second Head Gaonburah in the village authorities of
Simong village in Arunachal Pradesh who are appointed by Deputy Com-
missioner. The village authority consists of 24 Gaonburahs. On account of
death of Head Gaonburah and Second Head Gaonbnrah of Simong village,
the posts fell vacant and. a representation was sent to the Deputy Commis-
sioner (DC), recommending the name of '0' for Head Gaonburah and of               E
'A' for Second Head Gaon~urah.

         On January 31, 1994 'J;>C approved the said proposal and vide W.T.
  message dated February 5, l994 directed the Addi. Deputy Commissioner
  to inform '0' and 'A' about their respective appointments. In the meantime,
  other representations were received by the D.C. recommending the name of        F
  'T' (the appellant) for Head Gaonburah and on March 5, 1994, Addi.
. Deputy Commissioner informed the DC about the rival claims of 'O' and
 'T'.

      The DC, after considering the representations and the letter of Addi.       G
Deputy Commissioner, directed the Addi. Deputy Commissioner, to keep
the appointment of '0' 'A' in abeyance vide WT message dated March 8,
1994.

     Later, the Addi. Deputy Commissioner, after considering the relative
merits, recommended the name of 'T' as Head Gaonburah and '0' as H
                                     745
    746                   SUPREME COURT REPORTS f1996J SUPP. 2 S.C.R.

A Second Head Gaonburah which was accepted by the DC and vide WT
    message dated April 19, 1994, the Addi. Deputy Commissioner was in-
    formed about the appointment of the appellant 'T' and '0', on the respec-
    tive posts.

          'O' filed writ petition in High Court challenging the appointment of
B   'T' which was allowed. Hence, this appeal.

          Allowing the appeal, this Court

          HELD : l.l. The order dated April 19, 1994, whereby 'T' was ap-
    pointed as Head Gaonburah cannot be regarded as an order for removal
C of the '0' as Head Gaonburah. [753-G-H]
          1.2. An appointment to a post or office postulates :

          (a) a decision by competent authority to appoint a particular person;

D         (b) incorporation of the said decision in an order of appointment to
    the person who is being appointed, and

          (c) communication of the order of appointment to the person who is
    being appointed.

E          All the three requirements must be fulfilled for an appointment to be
    effective. [751-E-G]

          1.3. In view of the facts and circumstances of the case, conditions (a)
    and (b) were satisfied, but not (c). There was no communication of the
    order dated February 15, 1994 to '0' with regard to his appointment as
F   Head Gaonburah. In the absence of any such communication, the order of
    appointment had not come into effect and thus, the order dated April 19,
    1994 cannot be regarded as the order of removal of '0'. [752-D; 753-G-H]

          1.4. In order to be effective, an order passed by the State or its
G   functionaries must be communicated to the person who would be affected
    by that order and until the order is ~o communicated,. the said order is only
    provisional in character and it Vt'ould be open to the concerned authority to
    reconsider the matter and alter or rescind the order. [751-C-D]

        Bachhittar Singh v. The State of Punjab, [1962] Suppl. 3 SCR 713,
H referred to.
                  TAGIN LITIN v. STATE [S.C. AGRAWAL,J.]                  747

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8247 of A
    1996 Etc.

         From the Judgment and Order 27.9.94 of the Assam High Court in
    C. Rule No. 2035 of 1994.

         Shahid Rizvi and Sudhanshu Atreya for the Appellants.                   B

         K.K. Venugopal, Ms. N. Saibia, Ms. Pratibha Jain Advs. with him for
    the Respondent in C.A. No. 8247/96.

          Arun Jaitley, S.U.K. Sagar and Krishna Sharma for the Respondent       C
    in C.A. No. 8248/96.

         The Judgment of the Court was delivered by

-        S.C. AGRAWAL, J. Leave granted.
                                                                                 D
          These appeals arise out 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.              E

          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 administratoin of justice governed by
    the Assam Frontier (Administration of Justice) Regulation, 1945
    (hereinafter referred to as 'the Regolation') whereunder the executive and
                                                                                 F
    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 person' committing non-heinous crimes. Each village had at least G
    two Gaonburahs but in big villages 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 appoint mem-
    bers of the village authority and in exercise of the said power he appoints
    the Gaonburahs.                                                              H
    748                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A          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 Gaon-
    burah 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 Gaon-
B   burahs 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 Alteng Sitek for the post of Second Head Gaonburah
    of villave 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
C   up 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 for issuing appointment orders. On the

D
    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 Panehayat recommending the name of Tagin Litin for appointment
E   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
    representations were also made by a number of Gaonburahs and Head
    Gaonburahs of adjoining villages and other prominent members of
    Yingkiong circle recommending the name of Tegin Litin for the post of
    Head Gaunburah of village Simong. These representations were received
F
    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 where
    in it was stated that no fromal appointment orders for the the petitioner
    and Shri Atteng Sitek had been issued from his office since no such order
G   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
H            KEPT IN ABEYANCE FOR THE BEING."
                  TAGIN LITIN v. STATE [S.C. AGRAWAL,.!.]                 749

          Thereafter, the Additional Deputy Commissioner, Yingkiong, after A
•   making the necessary enquiries and after assessing the relative merits of
    the candidates sumitted a report dated April 8, 1994, werein he recom-
    mended the name of Tagin Litin for appointment as Head Gaonburah and
    the petitioner as Section Head Gaounburah of village Simong. The said
    rccomendation of the Additional Deputy Commissioner was accepted by B
    the Deputy Commission.er and by WT message dated April 19, 1994, the
    Additional Deputy Commmissioner, 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 at the Gaonburahs C
    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 petitiJn,
    which has given rise to these appeals, wherein he assailed the order as
    contained in WT message dated April 19, 1994 regarding appointment of D
    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 an order had been    E
    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 mes-
    sage dated February 15, 1994 under clause 5 of the Regulation. The High      F
    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 Litin as Head Gaonburah and the
    petitioner as Second Head Gaonburah amounts to removing the petitioner
    from the post of Head Gaongurah which he was holding and, therefore,
    the order contained in the WT message dated April 19, 1994 regarding         G
    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 H
    750                  SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A February 15, 1994 the petitioner has been appointed as Head Gaonburah
    and by order dated April 19, 1994 he has been removed from the said post.   '
    The original records were placed before the High Court am! on considera-
    tion of the same the High Court has found that on January 31, 1994 a note
    was put up before the Deputy Commissioner that the name of petitioner
    may be approved for Head Gaonburah and of Shri Atteng Sitek for Second
B   Head Gaonburah since vacancies had arisen due to demise of the Head
    Gaonburah and Second Head Gaonburah of Simong village and that on
    Jauary 31, 1994 the Deputy Commissioner had approved the said proposal
    and had passed an order "Issue appointment order". This was followed by
    WT message dated February 15, 1994 from the office of the Deputy
C   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
            O.JOM LIBANG AND SHRI ATTENG SITEK FOR APPROVE
            OF HEAD GB AND 2ND GB OF SIMONG VILLAGE FROM
D           31.1.94. SHRI OJOM LIBANG H/GAM, ATTENG SITEK 2ND
            GAM.n

          Subsequently, the representations for appointment of Tagin Litin
    were considered and WT message dated March 8, 1994 was sent from the
E   office of the Deputy Commissioner to the Additional Deputy Commis-
    sioner. 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
            SRI OJOM LIBANG AND SRI ATIENG SITEK HAVE BEEN
F           ISSUED FROM THIS OFFICE (.) SINCE NO SUCH ORDER
            WAS ISSUED EARLIER IN OTHER CASES ALSO(.) THE
            ONLY CORRESPONDENCE REG THE SAM WAS THE wrr
            MESSAGE OF 15.2.94 ADDRESSED TO YOU (.) HENCE AS
            SAID BY YOU THEIR APPOINTMENT BE KEPT IN
            ABEYANCE THE TIME BEING."
G
           This was followed by WT message April 19, 1994 from the office of        ....;
    the Deputy Commissioner to the Additional Deputy Commissioner which
    is as under :

H           "NO. HT(J) -14/PT-II DTD 19.4 (.) SHRI TAGIN LITIN AND
                TAGIN LITIN v. STATE (S.C. AGRAWAL,J.j                    751

           SHRI O.TOM LIBANG APPOINTED AS HEAD GAM AND                           A
           SECOND HEAD GB OF 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 apporving the proposal for such appointment and direct-
                                                                                 B
ing that appointment orders be issued and that the WT message dated
February 15, 1994 sent from the office of the Depty Commissioner to the
Additional Deputy Commissioner was the order of appointment of the
petitioner as Head Gaonburah.
                                                                                 c
      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 con-
cerned authority to reconsider the matter and alter or rescind the order.        D
(See : Bachhittar Singh v. The State of Punjab, (1962] Supp. 3 SCR 713, at
p. 721).

      Herc we are concerned with appointment to a post. An appointment
to a post or office postulates -
                                                                                 E
           (a) a decision by the competent authority to appoint a particular
           person;

           (b) incorporation of the said decision in an order of appointment;
           and                                                                   F
           ( c) communication of the order of appointment to the person who
           is being appointed.

      All the three requirements must be fulfilled for an appointment to
be~~.                                                                            G
      As noticed earlier, in the instant case the Deputy Commissioner, who
was the competent authority under the Regulation, had passsed 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 H
    752                  SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A 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
B 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
C WT message dated. February 15, 1994 addressed by the Deputy Commis-
  sioner to the Additional Deputy Commissioner. In view of the said state-
  ment in WT message 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) aforemen-
D tioned 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 and the petitioner was appointed as
  Second Head Gaonburah of Simong village. In this context, it may be stated
E that by the WT message dated 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
F   appointment as contained in the WT message dated February 15, 1994 had
    become effective by having be.en communicated to the petitioner prior to
    March 8, 1994. It is 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
G   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-
H   in-opposition of Shri Rakhal Chandra Deb Nath filed on behalf of the State
              TAGIN LITIN v. STATE [S.C. AGRAWAL,J.]                  753

of Arunachal Pradesh, the Deputy Commissioner and the Additional A
Deputy Commissioner, in reply to the said assertion in paragraph 13 of the
writ petition it has been denied that the petitioner was informed about his
appointment as Head 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 B
relevant facts and also indic'~ting the rival claims of the petitioner and
Tagin Litin for the post of 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 C
review the issue of a free and 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 D
assertion ·in the said affidavit-in-opposition filed in the High Court because
the said message makes a 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 and had been accepted by the Deputy Commissioner. This E
would indicate that prior to issuance of WT message dated March 8, 1994
the information regarding appointment of the petitioner as Head Gaon-
burah as contained in WT message dated February 15, 1994 was not
communicated to the petitioner. There is no question of any such com-
munication being made to him after March 8, 1994 because in WT message F
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 no 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 G
such communication, the said order of appointment had not come into
effect and the order dated April 19, 1994, whereby Tagin Litin was ap-
pointed 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
                                                                            H
    754                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A setting aside the order dated April 19, 1994 regarding appointment of
    Tagin Litin as Head Gaonburah and the petitioner as Second Head Gaon-
    burah and directing that the petitioner should be treated as Head Gaon-
    burah by virtue of WT message dated February 15, 1994 cannot, therefore,
    be upheld and has to be set aside.
B
          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 the circumstances there is no order as to costs.

    K.K.T.                                                   Appeals allowed.