Appeal against dismissal of writ petition seeking preferential appointment under Assam Public Services (Preferential Appointment) Rules, 1999. Appeal dismissed as appellant failed to prove father was physically disabled leading to total disablement within meaning of Rules.
Writ appeal dismissed; no order as to costs.
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GAHC010126312022
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 246 OF 2022
Satabdi Borah D/o Mukunda Bora Village- Halowagaon P.O. Borangatoli, P.S. Khatowal, Dist- Nagaon, Assam PIN-782141 ….. APPELLANT
-Versus-
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Department, Dispur, Guwahati-06
….. RESPONDENTS
P R E S E N T
HON’BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON’BLE MR. JUSTICE SOUMITRA SAIKIA
For the appellant : Mr. B. Islam, Advocate For the respondents : Mr. J. Handique, Standing Counsel, Revenue Department
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.
2. Feeling aggrieved and dissatisfied with the judgment and order dated 01.06.2022 passed by the learned Single Judge in W.P.(C) No. 3415/2022, the appellant/original petitioner has preferred this appeal.
3. The following facts emerge from the record of the appeal:
It is the case of the appellant that her father Mukunda Bora was an active
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participant of the Assam Movement. It is the further case of the appellant that while taking part in the Assam Movement, her father sustained injuries on 24.02.1983 and because of the injury so sustained, her father became physically disabled. Relying upon a certificate dated 05.12.2000 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 28.10.2021 issued by the Additional District Magistrate, Nagaon to the effect that her father is a ‘downtrodden person’ in connection with his participation in the Assam Movement on the problem of foreigners. Thus, it is the case of the appellant that as per the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as ‘the Rules’ for the sake of brevity), she has every right to get employment under the provisions of the Rules. The record indicates that the appellant approached the authorities by filing representation dated 03.09.2021, which was 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 or Grade-IV post under the provisions of the Rules. The appellant/original petitioner predominantly relied upon the certificate dated 05.12.2000 issued by the All Assam Students’ Union, which is in the form of “Victim Certificate” and so also the certificate dated 28.10.2021 issued by the Additional District Magistrate, Nagaon, which is to the effect that the appellant’s father is a ‘downtrodden person’ in connection with his participation in the Assam Movement on the problem of foreigners.
4. The learned Single Judge after hearing the learned counsels for the parties, was pleased to dismiss the writ petition and hence, this appeal.
5. Mr. B. Islam, learned counsel for the appellant reiterated the contentions which
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were raised before the learned Single Judge and contended that the petitioner belongs to the category of ‘Affected Candidate’ as defined in Rule 2(a) of the Rules and, as such, 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 1999 Rules are not applicable to the facts of the present case and thus committed an error in dismissing the writ petition. 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.
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 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 Additional District Magistrate, Nagaon is only to the effect that the appellant’s father is a ‘downtrodden person’ in connection with his participation in the Assam Movement on the problem of foreigners and there is nothing on record to show that the father of the appellant was physically disabled because of any injury sustained in the Assam Movement or was killed in the Assam Movement. On the aforesaid grounds, Mr. Borah contended that the appeal being meritless, deserves to be dismissed.
7. No other or further submissions, grounds or contentions have been raised by the learned counsels for the parties.
8. Rule 2(f) of the Rules defines ‘Physically Disabled’ and it reads as under:
“ 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
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connection with Assam Movement on the problem of foreigners”.
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 28.10.2021 issued by the Additional District Magistrate, Nagaon, only indicates that the father of the appellant is a ‘downtrodden person’ in connection with his participation in the Assam Movement on the problem of foreigners. There is nothing on record to show that the appellant’s father suffered from any physical disability leading to total disablement as provided in Section 2(f) of the Rules. 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 any 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 a scheme of the State Government for providing preferential appointment to the family members of the victims of the Assam Movement. Even if the two 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. Although the details of victimization as mentioned in the certificate reflects that he was tortured by the police and the CRPF and that his house was set on fire. It was also mentioned that he was admitted in the health centre for treatment. Similarly, the certificate issued by the Additional District Magistrate, Nagaon is only to the effect that the appellant’s father is a ‘downtrodden person’ in connection with his participation in the Assam Movement on the problem of foreigners. 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 any 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 any injury of such nature which resulted into his physical disability leading to total physical
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disablement as provided in Section 2(f) of the Rules. 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.
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:
“ 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;”
Sub-rule (2), (3) and (4) of Rule 4 of the Rules read as under:
“ 4. (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.
(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.
(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.”
10. A bare reading of the aforesaid provisions of the Rules clearly stipulates that the
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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 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 05.12.2000 was issued by the All Assam Students’ Union after many years of the Assam Movement and one year thereafter the certificate dated 28.10.2021 was issued by the Additional District Magistrate, Nagaon. Even without going into the said aspect of the matter, there is nothing on record to indicate that the father of the appellant sustained any injury which resulted into his physical disability leading to total physical disablement as provided in Section 2(f) of the Rules.
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.
Comparing Assistant
JUDGE CHIEF JUSTICE
3 issues framed by the court
Whether the appellant is eligible for preferential appointment under the Assam Public Services (Preferential Appointment) Rules, 1999.
Whether the appellant's father qualifies as a 'physically disabled' person under Rule 2(f) of the Rules based on the available evidence.
Whether the appellant satisfies the definition of an 'Affected Candidate' under Rule 2(a) of the Rules as a family member of a physically disabled person.
4 provisions across 1 enactments
Satabdi Borah
The State of Assam
R.M. Chhaya
Soumitra Saikia
As recorded by the court registry
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