Disposed

Dipjyoti Saikia v. the State of Assam and 4 Ors.

Gauhati HC6 Jun 2022WP(C)/3166/2022

Case brief

AI extract

What is this about?

Court disposed of writ petition seeking preferential appointment for son of physically disabled person participating in Assam Movement. Held that State must verify medical certificates, authenticity of DC certificate, eligibility, and quota under 1999 Rules before appointing.

What did the court decide?

Disposition of the writ petition at the motion stage; State respondents directed to verify documents and eligibility upon application.

Dipjyoti Saikia Vs the State of Assam and 4… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010090452022

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

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Case No. : WP(C)/3166/2022

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DIPJYOTI SAIKIA

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S/O- SUKLESWAR SAIKIA, VILL.- RAMCHA, P.O. GORESWAR, P.S. GORESWAR, DIST. BAKSA, ASSAM, PIN- 781366.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, SACHIVALAYA, DISPUR, GUWAHATI-781006.

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2:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM PERSONNEL (B) DEPARTMENT DISPUR GUWAHATI-781006.

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3:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM IMPLEMENTATION OF ASSAM ACCORD DEPARTMENT ASSAM SACHIVALAYA DISPUR GUWAHATI-781006.

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4:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM HEALTH AND FAMILY WELFARE DEPARTMENT ASSAM DISPUR GUWAHATI-781006.

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5:THE STATE LEVEL RECRUITMENT COMMISSION FOR CLASS-IV POSTS

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ASSAM ADMINISTRATIVE STAFF COLLEGE JAWAHAR NAGAR KHANAPARA

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GUWAHATI ASSAM PIN- 781022 REPRESENTED BY ITS CHAIRMAN/SECRETARY

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Advocate for the Petitioner : MR. M SARANIA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 06.06.2022

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Heard Mr. M. Sarania, learned counsel for the petitioner, who submits that the petitioner’s father Shri Sukleshwar Saikia, was physically disabled during his participation in the Assam Movement.

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The petitioner accordingly prays that he should be given preferential appointment, when recruitment is made by the Govt. to an advertised Govt. post, in terms of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred as 1999’ Rules).

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The petitioner’s case is that the Office of the Deputy Commissioner, Baksa has issued a certificate dated 25.02.2016, stating that the petitioner was physically disabled during his participation in the Assam Movement and the petitioner is the son of physically disabled person.

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Mr. B. S. Talukdar, learned senior counsel, assisted by Mr. C. S. Hazarika, learned counsel appearing for the respondent nos. 1, 2, 3 & 5 and Mr. D. Upmanyu, learned counsel appearing for the respondent no. 4 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.

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They also submit that the genuineness of Deputy Commissioner Office would have to be verified by the respondents, besides the petitioner requiring all the eligibility criteria required for being considered for appointment to Govt. post, in terms of the 1999’ Rules, as and when petitioner takes part in the selection process.

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1. 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.

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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.

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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.

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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. 10. Section 2(a) of the 1999 Rules requires that the Certificate to be issued by the Deputy Commissioner has to be in terms of the Schedule to the 1999 Rules, which states as follows :

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“2(a) ‘Affected Candidate’ means a candidate who is a member of the family of a

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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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The Schedule referred to in Rule 2(a) states as follows :

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“SCHEDULE

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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. ..............., SubDivision .............. 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.”

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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 person’s claiming preferential appointment under the 1999 Rules, to come to a finding as to whether a person was killed or 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.

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The above being said, if the petitioner’s applies for a Government posts, which are advertised and selection process initiated by the 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

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petitioner’s 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.

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The writ petition is disposed of accordingly.

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JUDGE

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Comparing Assistant

Dipjyoti Saikia v. the State of Assam and 4 Ors.

Case brief

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Dipjyoti Saikia v. the State of Assam and 4 Ors.

Case brief

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