Dismissed

Monikongkana Bora @ Monikankana Borah v. the State of Assam and 8 Ors.

Gauhati HC20 Sept 2022WA/225/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal against an order rejecting a daughter's claim for preferential government employment under the Assam Public Services (Preferential Appointment) Rules, 1999, due to insufficient evidence proving her father was physically disabled or martyred during the Assam Movement.

What did the court decide?

Appeal dismissed; no order as to costs.

Monikongkana Bora @ Monikankana Borah Vs the… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010126312022

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

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WRIT APPEAL NO. 225 OF 2022

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Monikongkana Bora @ Monikankana Borah, D/o Late Mukul Bora @ Mukul Ch. Borah, Village- Puranigudam Mikirjut, P.O. Puranigudam, P.S. Samaguri, District- Nagaon, Assam PIN-782141

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….. APPELLANT

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-Versus-

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The State of Assam, [Represented by the Commissioner & Secretary to the Government of Assam, Revenue Department, Dispur, Guwahati-6]

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The Principal Secretary to the Govt. of Assam, Assam Accord Implementation Department, Dispur, Guwahati-781006

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The Joint Secretary to the Govt. of Assam, Assam Accord Implementation Department, Dispur, Guwahati-781006

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The Principal Secretary to the Govt. of Assam, Revenue Department, Dispur, Guwahati-06

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The Director, Revenue Department,

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Guwahati, PIN- 781022

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The Deputy Commissioner, Nagaon Dist- Nagaon, PIN-782141

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The District Revenue Department, Nagaon, PIN- 782141

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The Circle Officer, Nagaon, P.O.& District- Nagaon, Assam

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The District Deputy Registrar of Cooperative Societies, Nagaon P.O. & District- Nagaon, Assam

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….. RESPONDENTS

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P R E S E N T

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HON’BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON’BLE MR. JUSTICE SOUMITRA SAIKIA

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For the appellant : Mr. B. Islam, Advocate For the respondents : Mr. J. Handique, Standing Counsel, Revenue Department

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Mr. R.K. Borah, Addl. Senior Govt. Advocate, Assam

Date of judgment &

Order : 20.09.2022

JUDGMENT & ORDER

R.M. Chhaya, CJ

Heard Mr. B. Islam, learned counsel for the appellant. Also heard Mr. J. Handique, learned Standing Counsel, Revenue Department as well as Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam for the respondents.

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2. Feeling aggrieved and dissatisfied with the judgment and order dated 23.05.2022 passed by the learned Single Judge in W.P.(C) No. 3096/2022, the appellant/original petitioner has preferred this appeal.

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3. The following facts emerge from the record of the appeal:

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It is the case of the appellant that her father late Mukul Borah was an active participant of the Assam Movement. It is the further case of the appellant that while taking part in the Assam Movement her late father sustained injuries on 23.02.1983 and was admitted to Puranigudam S.D., Nagaon. It is the further case of the appellant that because of the injury so sustained, her father became physically disabled and later died due to physical disability. Relying upon a certificate dated 22.11.2014 issued by the All Assam Students’ Union, the appellant claims that she is entitled to preferential appointment being a daughter of the victim. The appellant has also relied upon a certificate dated 25.07.2016 issued by the Additional District Magistrate, Nagaon relating to the injury of her father as provided under Rule 2(a) of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as ‘the Rules’ for the sake of brevity). Thus, it is the case of the appellant that as per the provisions of the Rules, kin of a person who was killed in the Assam Movement or had sustained disability, is entitled to the benefit of the same. It is the case of the appellant that she has every right to get employment under the provisions of the Rules. The record indicates that the appellant approached the authorities by filing representations dated 04.03.2021 and 23.02.2022 which were not considered and hence, the appellant approached this Court by way of filing a writ petition under Article 226 of the Constitution of India and prayed for an appropriate writ, order or direction directing the authorities to appoint her in any Grade-III post being a next of kin of the victim’s family in Assam agitation under the provisions of the Rules. The appellant/original petitioner predominantly relied upon the certificate dated 22.11.2014 issued by the All Assam Students’ Union, which is in the form of “Victim’s

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Certificate” and so also the certificate dated 25.07.2016 issued by the Additional District Magistrate, Nagaon, which shows that the father of the appellant was injured in connection with his participation in the Assam Movement. The appellant has also relied upon a certificate dated 12.09.2014 issued by the in-Charge Medical Officer, Puranigudam S.D. Nagaon.

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4. The learned Single Judge after hearing the learned counsels for the parties, was pleased to dismiss the writ petition and hence, this appeal.

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5. Mr. B. Islam, learned counsel for the appellant reiterated the contentions which were raised before the learned Single Judge and contended that as per the medical certificate dated 12.09.2014 issued by the in-Charge Medical Officer, Puranigudam S.D. Nagaon, the father of the appellant sustained a cut injury and thus falls within the scope and ambit of Rule 2 of the Rules and, therefore, it is contended that as per Rule 4 of the Rules, the appellant would be entitled to preferential appointment. It was contended by Mr. Islam that the learned Single Judge has not considered the materials on record and has wrongly come to the conclusion that the father of the appellant was not totally disabled as per the provisions of Rule 2(f) of the Rules and thus committed an error in dismissing the writ petition. Mr. Islam contended that no further proof is necessary to prove that the father of the appellant was physically disabled due to the injury sustained in the Assam Movement. It was also contended that the learned Single Judge has wrongly brushed aside the cogent evidence in the form of certificate issued by the Additional District Magistrate, Nagaon as well as by All Assam Students’ Union. It was therefore contended that the appeal be allowed, as prayed for.

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6. Per contra, Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam has contended that the learned Single Judge has not committed any error in dismissing the writ petition. Mr. Borah contended that only because the relationship is

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established, the same would not ipso facto mean that the appellant would be entitled to the benefits under the Rules. Mr. Borah contended that the certificate issued by the in-Charge Medical Officer, Puranigudam S.D. Nagaon is not based on any record because as per instructions received by him, no record is available. He contended that even if the certificate issued by the in-Charge Medical Officer, Puranigudam S.D. Nagaon is considered to be true and correct, there is nothing on record to show that the father of the appellant was physically disabled because of the injury sustained. On the aforesaid grounds, Mr. Borah contended that the appeal being meritless, deserves to be dismissed.

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7. No other or further submissions, grounds or contentions have been raised by the learned counsels for the parties.

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8. Rule 2(f) of the Rules defines ‘Physically Disabled’ and it reads as under:

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“ 2(f) “Physically Disabled” means a person disabled by any major part of his body leading to total disablement due to bullet injury or otherwise in connection with Assam Movement on the problem of foreigners”.

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In order to get the benefit of the Rules, a person through whom the same is claimed, has to be physically disabled. The certificate dated 12.09.2014 only indicates that the father of the appellant went to Puranigudam S.D. with a complaint of cut injury. There is nothing on record to show that because of such injury the father of the appellant suffered any physical disability. Though the appellant has heavily relied upon the aforesaid certificate dated 12.09.2014, the fact remains that for an incident which occurred on 23.02.1983, the certificate was issued on 12.09.2014. As contended by the learned Additional Senior Government Advocate, Assam, as on date even the records are not available and, therefore, in absence of any material on record, it cannot be presumed that appellant’s father was physically disabled because of the cut injury sustained by him in the Assam Movement and under such circumstances, the appellant cannot be given the benefit of the provisions of the Rules. Rules are as such

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a scheme of the State Government for providing preferential appointment to the family members of the victims of the Assam Movement. Even if the three certificates which are predominantly relied upon by the appellant are taken into consideration, the certificate issued by All Assam Students’ Union is a ‘Victim’s Certificate’, which only recites about participation of the appellant’s father in the Assam Movement. Similarly, the certificate issued under Rule 2(f) of the Rules only establishes the relationship of the appellant with her father. The said certificate indicates that the appellant is the daughter of Mukul Bora who had sustained injury in the Assam Movement. The said certificate on the contrary rules out the fact that the father of the appellant died in the Assam Movement or that he was physically disabled because of the injury sustained in the Assam Movement. Thus, as rightly held by the learned Single Judge, the appellant has not been able to prove that her father sustained cut injury of such nature which resulted into his physical disability. In light of the above discussion and considering the provisions of the Rules, we find that the learned Single Judged has not committed any error, much less an error apparent on the face of the record which warrants interference of this Court in exercise of its appellate jurisdiction.

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9. The Rules are special Rules in nature and the eligibility has to be possessed by the person to avail the benefit of such Rules and in absence of such eligibility a person cannot get the benefit of the same. Rule 2(a) of the Rules defines “Affected Candidate” as under:

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“ 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;”

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Sub-rule (2), (3) and (4) of Rule 4 of the Rules read as under:

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“ 4. (2) If any affected candidate applies for any post claiming preference, he

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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.

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(3) One affected candidate only of a family of a martyr or a physically disabled person having no earning member at all in his family shall be given preference for such appointment subject to the provisions under sub-rule (1) of Rule 4 of these rules.

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(4) Before making an appointment, the Appointing Authority shall ascertain from the Deputy Commissioner of the District of which the martyr or the physically disabled person was a resident that no other member of the family of the martyr or the family of the physically disabled person of which the affected candidate is a member has been appointed under sub-rule (1) or in accordance with the directives or instructions of the Government for appointments of affected candidates under its public sector undertakings, companies, corporations and bodies like Mohkuma Parishads, Municipalities, Town Committees, etc.”

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10. A bare reading of the aforesaid provisions of the Rules clearly stipulates that the Rules would be applicable only in case of next kin of the person who is a martyr or who is physically disabled and not in case of a person who had participated in the Assam Movement and had sustained injury like in the case on hand. Even the words “Physically Disabled” as defined in the Rules clearly stipulate that such disability may be of any major part of the body leading to total disablement due to bullet injury or otherwise in connection with Assam Movement on the problem of foreigners. The aforesaid Rules have been framed under Article 309 of the Constitution of India for regulating appointment in Public Services under the Government of Assam of the next of kin of persons who sacrificed their lives or who have been rendered physically disabled permanently by bullet injury or otherwise while participating in the Assam movement on the problem of foreigners. The certificate dated 22.11.2014 was issued by the All Assam Students’ Union after a long period of almost twenty one years and two years thereafter the certificate dated 25.07.2016 was issued by the Additional District Magistrate, Nagaon. Even the medical certificate which is heavily relied upon by the appellant does not inspire any confidence about its veracity. Even without going into the said aspect of the matter, the father of the appellant only sustained a

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cut injury and there is nothing on record to show that the said injury resulted into physical disability of the father of the appellant.

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11. On overall consideration of the facts and circumstances of the case, we do not find any merit in this appeal. The appeal being bereft of any merit deserves to be dismissed and is hereby dismissed. There shall, however, be no order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Monikongkana Bora @ Monikankana Borah v. the State of Assam and 8 Ors.

Case brief

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Monikongkana Bora @ Monikankana Borah v. the State of Assam and 8 Ors.

Case brief

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