Gauhati High Court
Ramen Deka vs The State Of Assam And 6 Ors on 10 June, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010101662022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3561/2022
RAMEN DEKA
S/O- JOGEN DEKA
VILL- CHEUNI P.O- KERPABHITHA
P.S- GORESWAR, DIST- BAKSA, ASSAM PIN-781366
VERSUS
1: THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF ASSAM,
DISPUR, GUWAHATI-781006
2:THE ADDITIONAL SECRETARY
GOVERNMENT OF ASSAM PERSONNEL (B) DISPUR GUWAHATI-781006
3:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
IMPLEMENTATION OF ASSAM ACCORD DEPARTMENT DISPUR
GUWAHATI-781006
4:THE COMMISSIONER AND SECRETARY GOVERNMENT OF ASSAM
AGRICULTURE DEPARTMENT DISPUR GUWAHATI-781006
5:THE DIRECTOR OF AGRICULTURE
ASSAM KHANAPARA GUWAHATI-22
6:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT DISPUR GUWAHATI-
781006
7:THE STATE LEVEL RECRUITMENT COMMISSION FOR CLASS -III POSTS
ASSAM ADMINISTRATIVE STAFF COLLEGE JAWAHAR NAGAR
KHANAPARA GUWAHATI ASSAM PIN-781022 REP. BY ITS CHAIRMA
Advocate for the Petitioner : MR. M SARANIA
Advocate for the Respondent : GA, ASSAM
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-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 10-06-2022 Heard Mr. A. Sarania, learned counsel for the petitioner, who submits that the petitioner's father was injured during the Assam Movement and as such, the petitioner is entitled to be given preferential appointment in terms of Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as "1999 Rules").
2. The petitioner's counsel submits that the Office of the Deputy Commissioner, Baksa thereafter, issued a Certificate dated 25.02.2016 stating that the petitioner's father was physically disabled during his participation in the Assam Movement and the petitioner is the son of physically disabled/victim, i.e. Shri Jogen Deka.
3. Mr. C.S. Hazarika, learned Junior Government Advocate, Assam appearing for the respondent Nos.1, 2, 3 and 7; Mr. B. Choudhury, learned standing counsel, Agriculture Department, appearing for the respondent Nos.4 & 5 and Mr. D. Upmanyu, learned standing counsel, Health & Family Welfare Department, appearing for the respondent No.6 submit that there are no medical certificates annexed to the writ petition, to show that the petitioner's father was disabled during the Assam Movement. They also submit that the genuineness of the Certificate issued by the Deputy Commissioner's Office, which is annexed to the writ petition, would have to be verified by the State respondents, in the event the petitioner applies for any Government post in terms of the 1999 Rules. They further submit that Page No.# 3/5 the petitioner would be required to have all the eligibility criteria required for being considered for appointment to the Government post in terms of the 1999 Rules.
4. Upon hearing the learned counsels for the parties, this Court is of the view that the writ petition can be disposed of at the motion stage itself.
5. A reading of the provisions of the 1999 Rules provides that an "affected candidate" who is otherwise eligible under the normal Rules, shall be given preference in making appointments to post under the Government of Assam, recruitment to which are made through the Assam Public Service Commission or otherwise than through the Assam Public Service Commission. The 1999 Rules also provides that if an "affected candidate" is found to be a member of family of a martyr or a disabled person, the said person can be considered for appointment against the Government post in terms of the 1999 Rules.
6. Section 2(a) of the 1999 Rules defines "Affected Candidate" to mean a candidate who is a member of the family of a martyr or a member of a family of a person, who has been rendered physically disabled and possesses a Certificate to that effect issued by the Deputy Commissioner of the respective District, in such form as specified in the Schedule to the 1999 Rules.
7. Section 2(f) of the 1999 Rules defines "Physically Disabled" to mean a person disabled in any major part of his body leading to total disablement, in connection with Assam Movement on the problem of foreigners. Section 2(a) of the 1999 Rules requires that the Certificate to be Page No.# 4/5 issued by the Deputy Commissioner has to be in terms of the Schedule to the 1999 Rules, which states as follows:
"2(a) 'Affected Candidate' means a candidate who is a member of the family of a martyr or a member of a family of a person who has been rendered physically disabled and possess a certificate to that effect issued by the Deputy Commissioner of the respective District in such form as specified in the Schedule to these rules".
8. The Schedule referred to in Rule 2(a) states as follows:
"SCHEDULE In pursuance of Rule 2(a) of the Assam Public Services (Preferential Appointment) Rules, 1999 this is to certify that Shri/Srimati .............. of Village/Town .............., P.S. ............., Sub Division ............ of District ................. was killed/physically disabled, in connection with this participation in the Assam Movement on the problem of Foreigners and that Shri/Srimati ........................ is a son/daughter/ wife/ husband/brother/sister of the said deceased/physically disabled."
9. There are no medical certificates in the writ petition, to enable this Court to come to a finding as to the injury suffered by father of the petitioner and as to whether the said person's physical disability led to total physical disablement in terms of Rule 2(f) of the 1999 Rules. As such, the State respondents would require to carefully look at the documents furnished by the petitioner claiming preferential appointment under the 1999 Rules, to come to a finding as to whether the person was physically disabled during his participation in the Assam Movement. The authenticity of the documents furnished by such candidate, including the authenticity of the Certificate issued by the Office of the Deputy Commissioner would also have to be looked into by the State respondents.
10. The above being said, if the petitioner applies for a Government posts, which are advertised and selection process initiated by the Page No.# 5/5 Government, the respondents would have to determine whether any quota is reserved for filling up the said posts by way of the 1999 Rules. If some posts are to be filled by way of the 1999 Rules, the Government will then have to verity whether the petitioner is a member of the family of a martyr or a disabled person, as provided under the provisions of the 1999 Rules, especially with regard to Rule 2(d) of the 1999 Rules. If the petitioner is found to be a member of the family of the martyr or physically disabled person, who can be considered for appointment against any recruitment process undertaken by the Government and in respect of which the petitioner has applied for the same, the petitioner's claim can be considered in terms of the 1999 Rules, provided the petitioner has all the required eligibility criteria to be considered for the said post(s). Further, the case of the petitioner can be considered in terms of the 1999 Rules, only if he comes within the conditions set out in the Explanation to Rule 4 of the 1999 Rules, which states that the affected candidate whose name is included within the range of three times the number of vacancies in the result sheet of the candidates arranged in order of merit.
11. The writ petition is disposed of accordingly.
JUDGE Comparing Assistant