Dismissed

Narayan Borah v. the State of Assam and 3 Ors.

Gauhati HC1 Dec 2020WP(C)/968/2017

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of three common writ petitions challenging non-issuance of preferential government employment. The court rejected the petitioners' prayer for a blanket direction, holding that strict compliance with the Assam Public Service Preferential Appointment Rules, 1999, regarding eligibility, merit ranges, and required certificates is mandatory before any claim of preference

What the court decided

AI extract

Narayan Borah Vs the State of Assam and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2020)

¶1

Page No.# 1/6

¶2

GAHC010052712019

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C)/968/2017

¶5

NARAYAN BORAH Address:S/O SHRI BIMAL BORAH R/O SIL ALI MAJ GAON P.O. JAMUGURI PANCH ALI P.S. DHEMAJI DIST- DHEMAJI PIN-787057 ASSAM VERSUS THE STATE OF ASSAM and 3 ORS. Address:REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR GHY-6 2:THE SECY. TO THE GOVT. OF ASSAM Address:IMPLEMENTATION OF ASSAM ACCORD DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER Address:DHEMAJI DISTI- DHEMAJI ASSAM PIN-784509 4:THE CIRCLE OFFICER Address:DEMAJI REVENUE CIRCLE DHEMAJI DISTI- DHEMAJI ASSAM PIN-784509 -----------Advocate for : MSG BORA

¶6

Page No.# 2/6

¶7

Advocate for : appearing for THE STATE OF ASSAM and 3 ORS.: Advocate , , , appearing for 2, 3, 4, respectively. Linked Case : WP(C)/963/2017 DIBYA JYOTI HAZARIKA Address:S/O LT. DURNA HAZARIKA @ SUNADHAR HAZARIKA R/O SIL ALI MAJ GAON P.O. JAMUGURI PANCH ALI PS. and DIST- DHEMAJI PIN-787057 ASSAM VERSUS THE STATE OF ASSAM and 3 ORS. Address:REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR GHY-6 2:THE SECRETARY TO THE GOVT. OF ASSAM Address:IMPLEMENTATION OF ASSAM ACCORD DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER Address:DHEMAJI DIST- DHEMAJI ASSAM PIN-784509 4:THE CIRCLE OFFICER Address:DEMAJI REVENUE CIRLCE DHEMAJI DIST- DHEMAJI ASSAM PIN-784509 -----------Advocate for : MSG BORA Advocate for : appearing for THE STATE OF ASSAM and 3 ORS.: Advocate ,

¶8

Page No.# 3/6

¶9

¶10

, appearing for 2, 3, 4, respectively.

¶11

Linked Case : WP(C)/947/2017

¶12

KHAGEN BORAH Address:S/O LT. DIMBA BORAH R/O VILL- BISHNUPUR GAHPURIA P.O. BISHNUPUR DIST. DHEMAJI PIN - 787057 ASSAM.

¶13

VERSUS

¶14

THE STATE OF ASSAM and 3 ORS. Address:REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI- 781006 2:THE SECRETARY TO THE GOVT. OF ASSAM

¶15

Address:IMPLEMENTATION OF ASSAM ACCORD DEPARTMENT DISPUR GUWAHATI- 781006.

¶16

3:THE DEPUTY DEPUTY COMMISSIONER

¶17

Address:DHEMAJI DIST. DHEMAJI ASSAM PIN- 784509

¶18

4:THE CIRCLE OFFICER Address:DHEMAJI REVENUE CIRCLE DHEMAJI DIST. DHEMAJI ASSAM PIN - 784509 -----------Advocate for : MSG BORA Advocate for : appearing for THE STATE OF ASSAM and 3 ORS.: Advocate ,

, appearing for 2,

Page No.# 4/6

4, respectively.

BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN

¶25

ORDER

¶26

01.12.2020

¶27

Heard Mr. M. Bhagawati, learned counsel for the petitioners in all the three writ petitions as well as Mr. D. Nath, learned counsel representing all the respondents.

¶28

This common order would bring to close all the three writ petitions.

¶29

The petitioners claim that they belong to a family, a member of which had been rendered physically disabled on account of participation in the Assam Movement on the issue of foreigners. It is stated that they also hold necessary certificates issued by the Deputy Commissioner of the concerned district. In the above regard, submission made is that they come within the definition of “Affected Candidate” in terms of Rule 2(a) of the Assam Public Service (Preferential Appointment) Rules, 1999.

¶30

Case laid is that although they made application before the Deputy Commissioner, Dhemaji, claiming appointment to Government service on preferential basis and despite such application being forwarded to the Government of Assam in the Implementation of Assam Accord Department, no positive action came about, thus, compelling them to institute the present writ petitions. Prayer made is for a direction to the respondents to expedite the process of granting employment to the petitioners in Government service as per the aforesaid Rules of 1999.

¶31

Mr. Nath, on the other hand, submits that having regard to the prayer, the writ petitions are mis-conceived, inasmuch as, the prayer so made has no nexus to the scheme propounded in the aforesaid Rules of 1999.

¶32

Referring to Rule 3 and 4 of the said Rules, Mr. Nath submits that what the Rules actually provide is that when any recruitment process is initiated for filling up posts under the

¶33

Page No.# 5/6

¶34

Government of Assam, an ‘Affected Candidate’, who is otherwise eligible under the normal Rules and all things remaining the same, be given preference in securing appointment. It is also submitted that in the Explanation appended to Rule 4, the expression “who is otherwise eligible under the normal Rules” is defined to mean ‘Affected Candidate’ whose name is included within the range of three times of the number of vacancies in the result sheet of the candidates arranged in order of merit. Referring to sub-Rule (2) of Rule 4, it is further submitted that in the event an ‘Affected Candidate’ makes application for any post claiming preferential treatment, it would be mandatory to enclose therewith a certificate from the Deputy Commissioner concerned in support of the fact that he is an ‘Affected Candidate’ within the meaning of Rule 2(a) of the Rules of 1999. For a better appreciation, the relevant provisions of Rule 3 and 4 of the Rules of 1999, as applicable in the present case, specifying the parameters relating to making of application and for securing preference, the same are reproduced hereunder:

¶35

“3. Application- These rules shall apply to all the services and posts 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.

¶36

Preference for appointment-

¶37

(1) Subject to the provisions of these rule wherever any recruitment to services and posts referred to in Rule 3 is made, one affected candidate who is otherwise eligible under the normal rules shall, ceteris paribus be given preference in making appointments;

¶38

Provided that such preference shall be subject to reservation in favour of candidates who are members of the Scheduled Castes, Scheduled Tribes (Plains & Hills), Other Backward Classes (including More Other Backward Classes), Ex-Servicemen and physically handicapped persons:

¶39

Provided further that appointment of any affected candidate who is also a candidate of the category mentioned in the preceding proviso shall be set of against the percentage reserved for the members of that particular category.

¶40

Explanation- For the purpose of this Rule the expression ‘who is otherwise eligible under the normal Rules” shall mean an affected candidate whose name is included within the range of 3 (three) times of the number of vacancies in the result sheet of the candidates arranged in order of merit.

¶41

Page No.# 6/6

¶42

(2) If any affected candidate applies for any post claiming preference, he shall enclose a certificate from the Deputy Commissioner concerned to the effect that he is an affected person being a member of the family of a martyr or the family of a physically disabled person.”

¶43

Having perused the provision of Rules of 1999 vis-à-vis the common prayer made in the writ petitions, the submissions made by Mr. Nath appears to be in the correct direction. If the petitioners are keen to secure employment under the Government of Assam, they will have to strictly abide by the manner and procedure provided under the Rule 3 and 4 of the aforesaid Rules. It would not be open to the petitioners to ask for a blanket direction to the respondents for providing employment in the government service under the Rules of 1999. What would be required for making a valid claim for preferential appointment is that they must (i) possess a certificate issued by the Deputy Commissioner concerned showing that they are persons falling within the definition of ‘Affected Candidate’ under Rule 2(a) and (ii) while making application for recruitment to any service or post under the Government of Assam must enclose therewith the certificate issued by the Deputy Commissioner concerned. Further, they must otherwise be eligible under the normal Rules and their candidature, as per the Explanation appended to Rule 4, would only stand if their names are included within the range of three times the number of vacancies in the result sheet of the candidates arranged in order of merit.

¶44

On the observations above, no further consideration of the present writ petitions need to be gone into, thus making it clear that if the petitioners intend to claim preferential treatment, their candidature can only be considered by following the provisions under the aforesaid Rules of 1999.

¶45

All the three writ petitions stand accordingly disposed of.

¶46

JUDGE

¶47

Comparing Assistant

Narayan Borah v. the State of Assam and 3 Ors.

Case brief

What is this about?

What the court decided

Narayan Borah v. the State of Assam and 3 Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Anand Basumatary and 19 Ors. Vs the State of Assam and 6 Ors.

Suchila Deka Vs the State of Assam and 2 Ors.

Nikumoni Saikia Vs the State of Assam and 2 Ors.

Baikuntha Sarma Vs the Union of India and 2 Ors.

Bishnu Basumatary Vs the State of Assam and 6 Ors.

Shyam Prasad Baruah Vs the State of Assam and Anr.