Gauhati High Court
Anil Rajbongshi vs The State Of Assam And 5 Ors on 12 June, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 619/2015
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
12.06.2015
Heard Mr. P. Hazarika, learned counsel for the petitioner and
Mr. A. Choudhury, learned Govt. Advocate, Assam for the respondents.
By filing this petition under Article 226 of the Constitution of India petitioner seeks a direction to the respondents to consider his case for appointment on compassionate ground as a family member of person killed by extremists.
Case of the petitioner is that his elder brother namely Udhab Rajbongshi was serving as Constable in the 14th Assam Police Battalion, Daulasal in the district of Nalbari. While he was on duty at a place called Niz Namati under Tihu Police Station on 09.06.2001 at about 8:30 p.m, he was killed by suspected ULFA extremists. The deceased brother was the sole bread earner of the family. Family of the petitioner received ex-gratia grant of Rs.3,00,000/-.
Petitioner filed application for appointment under the Assam P ublic Services (Appointm ent of Fam ily M em bers of P ersons K illed by Extrem ists/ Terrorists) R ules, 1992 (1992 Rules). However, there was no response, though there has been correspondence between various authorities regarding claim of the petitioner for employment.
Feeling aggrieved, present writ petition has been filed. Notice in this case was issued on 06.02.2015.
WP(C) No. 619 of 2015 Page 1 of 6 Respondent No. 5 i.e. Superintendent of Police, Nalbari has filed affidavit. It is admitted that brother of the petitioner was killed on 09.06.2001 by suspected ULFA extremists while he was on duty. Reference has been made to certain communications regarding verification of the claim of the petitioner.
As per latest instruction furnished by the State to the learned Government Advocate, petitioner had submitted application for appointment prior to 22.06.2004. Petitioner's case was placed before the Selection Committee on 30.01.2014 but the Selection Committee could not consider the case due to non-availability of original record which is stated to be with IGP (MPC), Assam.
Learned counsel for the petitioner has placed before the Court a copy of office memorandum dated 29.07.2013 issued by the Govt. of Assam in the Personnel (B) Department dealing with claims of family members of persons killed by extremists/terrorists. The said office memorandum was gone into by this Court in a recent decision dated 27.04.2015 passed in WP(C) No. 5579/2014 (Uttam Brahma Vs State of Assam and Ors), a copy of which has also been placed on record. He therefore submits that present writ petition may be disposed of in terms of the aforesaid order dated 27.04.2015.
From a perusal of the office memorandum dated 29.07.2013 and the order of this Court dated 27.04.2015, the following facts can be culled out-
WP(C) No. 619 of 2015 Page 2 of 6
1. State of Assam had framed the 1992 Rules, which were administrative in nature, providing for Government job to a family member of a person killed by extremists/terrorists and also providing for payment of ex-gratia to the tune of Rs. 1,00,000/-.
2. The State Govt. repealed the 1992 Rules vide Circular dated 22.06.2004. As per the Circular, instead of providing appointment, preference was to be given. Amount of ex-gratia was enhanced from Rs. 1,00,000/- to Rs. 3,00,000/-.
Thereafter, Govt. of Assam in the Personnel (B) Department issued office memorandum dated 29.07.2013 following the judgment of this Court passed in WP(C) No. 3355/2007 (Dhanisw ar Basum atary Vs State of Assam ) where this Court held that applications made prior to the the Circular dated 22.06.2004 would survive and would require consideration. To give effect to the said direction of this Court and also to streamline matters relating to providing Government employment to family members of persons killed by extremists/terrorists, who had submitted applications prior to 22.06.2004, necessary guidelines have been issued vide the said office memorandum dated 29.07.2013.
Relevant portion of the said office memorandum dated 29.07.2013 reads as under:-
"II. Government in Personnel 'B' Department have prepared a list of applicants who had submitted applications for jobs prior to 22nd June 2004 i.e. the date on which the APS Rules of 1992 were repealed, on the basis of information received from the Deputy Commissioners. The list contains the names of 57 such applicants and is appended at Annexure I. A similar list of applicants has also been prepared containing names of persons who were killed prior to 22nd June 2004, but whose relatives had not applied for any government job prior to 22nd June 2004. This list contains names of 63 such persons and appended at Annexure II.
III. Now in pursuance of the Rule 5 of the aforementioned Rules, this list as at Annexure I is enclosed herewith which is to be verified carefully by all Govt. Departments/Public Sector WP(C) No. 619 of 2015 Page 3 of 6 undertakings/Boards/Authorities, etc. as the case may be and as required under Rule 4 (ii) and immediately appoint the applicants who are found genuine and otherwise eligible as per the aforesaid Rules to the first available vacant posts in their respective establishments.
IV. Considering the fact that the Deputy Commissioners may face undue hardship while verifying the cases received from various Government Departments/Public sector undertakings/Boards/Authorities etc., Govt. in exercise of power under Rule 7 provides that:
i) The Deputy Commissioners having to dispose of such application(s) for verification will constitute a Committee to oversee the genuineness of the candidates and place the applications for appointments before a committee. The Committee will consist of Deputy Commissioner as Chairman, Superintendent of Police, District Labour Officer, District Social Welfare Officer as members and ADC (Revenue) as Member Secretary, and any one officer from the concerned Departments in which appointment is being made to examine and verify the authenticity of the applications on case to case basis and recommend candidates for appointment to the Department/Public sector undertakings/Boards/Authorities etc. concerned.
ii) On receipt of recommendation of the Committee as stated above, the Department will make arrangement for appointment of the candidates so recommended following proper procedure and after obtaining approval from the Finance Department.
iii) In case of any further applications, over and above what has been included in the list at Annexure-I, made on or prior to 22.06.2004 if detected subsequently, in the district, the concerned Deputy Commissioner will carefully examine the authenticity of such applications and on being satisfied, place the same before the Committee and take similar action as at
(i) and (ii) above. But in all cases the cutoff date shall be as per the APS Rules 1992.
iv) The Deputy Commissioner will submit action taken report on quarterly basis to the Personnel B Department.
v) In case of persons killed in extremist violence prior to 2004, but whose relatives did not apply for any appointment prior to 22nd June 2004 and had applied after 22nd June 2004 and may or may not have received ex-
gratia grant under 2004 notification i.e. Rs. 3.00 lakhs, - (a) they shall now be given appropriate ex-gratia payment as per No.ABP 121/92/Pt-V/136 dated 22.06.2004 adjusting the amount already received if any and (b) they shall also be entitled to be considered under the scheme envisaged in the Government Circular above i.e. No.ABP 121/92/Pt-V/136 dated 22.06.2004.
The Government Circular No. ABP 121/92/Pt-V/136 dated 22.06.2004 will remain in force for all the cases in which applications for any relief received after 22nd June 2004."
WP(C) No. 619 of 2015 Page 4 of 6This Court in Uttam Brahma (supra) held as under:-
"A careful perusal of the office memorandum dated 29.07.2013 along with the annexure appended thereto would show that petitioner had submitted application for Government employment as a family member of person killed by extremists prior to 22.06.2004, which is acknowledged by the Government. Government has put in place a scrutiny mechanism headed by the Deputy Commissioner of the concerned district to verify the genuineness of the claims. Once the verification process is over and recommendation is made for appointment to the concerned department, the said department shall make appointment on the basis of the recommendation after obtaining approval from the Finance Department. The office memorandum dated 29.07.2013 nowhere states that the appointment has to be made in the Home Department or in the Relief & Rehabilitation Department. It will depend upon the recommendation made by the Committee headed by the Deputy Commissioner. Therefore, the stand of the BTC that it is not the appointing authority in respect of Home Department is of little consequence, since it is admittedly the appointing authority for Grade-III and Grade-IV staff in respect of the 39 transferred departments. In the light of the office memorandum dated 29.07.2013, Deputy Commissioner, Baksa is required to verify the claim of the petitioner as per guidelines issued and thereafter to make recommendation for appointment of the petitioner in an appropriate department. Based on the recommendation of the Deputy Commissioner, Baksa, consequential appointment will have to be provided. If the recommendation is in respect of the 39 transferred departments, the BTC authorities will have to provide appointment to the petitioner.
Accordingly, Deputy Commissioner, Baksa is directed to carry out the above exercise within a period of 8 weeks from the date of receipt of a certified copy of this order, whereafter necessary steps will be taken by the concerned department either by the BTC or by the State depending upon the recommendation."
From the instructions furnished to the learned Govt. Advocate, it is admitted by the respondents that petitioner had submitted application prior to 22.06.2004 but his case though placed before the Selection Committee could not be considered due to non-availability of original record which is stated to be with IGP (MPC), Assam. In that view of the matter, petitioner's case for appointment is required to be considered in terms of the office memorandum dated 29.07.2013. Accordingly and in the light of the above, Deputy Commissioner, Nalbari is directed to requisition the original record and place the case of the petitioner before WP(C) No. 619 of 2015 Page 5 of 6 the Selection Committee constituted in terms of Clause IV (i) and (iii) and necessary decision shall be taken thereafter. This shall be done within a period of 8 (eight) weeks' from the date of receipt of a certified copy of this order. The decision so taken shall be communicated to the petitioner.
Writ petition is accordingly allowed.
No cost.
Judge aparna WP(C) No. 619 of 2015 Page 6 of 6