Dismissed

Ashim Majumdar v. the State of Assam and 3 Ors.

Gauhati HC8 Jun 2022WP(C)/3167/2022

Case brief

AI extract

What is this about?

Joint dismissal of two writ petitions seeking preferential government appointments under the Assam Public Services (Preferential Appointment) Rules, 1999. Court held one petitioner lacked medical proof of physical disability and the other failed to prove employment of father as martyr, showing age ambiguity, and failed to establish application for advertised posts. Certificates issued did not matc

What the court decided

AI extract

Ashim Majumdar Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC010091252022

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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)/3155/2022

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NITUL CHETIA S/O. SRI PUNA CHETIA @ PUNARAM CHETIA R/O. VILL. NAOJAN (NO.2 KORIGAON) P.O. NAOJAN P.S. SARUPATHAR DIST. GOLAGHAT ASSAM PIN-785601.

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VERSUS

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THE STATE OF ASSAM AND 3 ORS. REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM ASSAM ACCORD IMPLEMENTATION DEPTT. DISPUR GUWAHATI-781006.

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2:THE ADDL. CHIEF SECREETARY TO THE GOVT. OF ASSAM FISHERY DEPTT. ASSAM DISPUR GUWAHATI-06. 3:THE DIRECTOR OF FISHERY

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ASSAM MEEN BHAWAN GOPINATH NAGAR GUWAHATI-16. 4:THE DEPUTY COMMISSIONER

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GOLAGHAT

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P.O. AND DIST. GOLAGHAT

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ASSAM.

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-----------Advocate for : MD B ISLAM Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 3 ORS.

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Linked Case : WP(C)/3167/2022 ASHIM MAJUMDAR S/O- LT. BALINDRA MAJUMDAR R/O- VILL. BORKHOLA SINGH GAON P.O. BORKHOLA DIST.- NAGAON ASSAM PIN- 782001.

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VERSUS THE STATE OF ASSAM AND 3 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM ASSAM ACCORD IMPLEMENTATION DEPTT. DISPUR GHY.- 781006. 2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND R.D. DEPTT. DISPUR GHY.-06. 3:THE COMMISSIONER PANCHAYAT AND R.D. ASSAM PANJABARI ROAD JURIPAR KHANAPARA GHY.- 37. 4:THE DY. COMMISSIONER NAGAON P.O. AND DIST.- NAGAON ASSAM. -----------Advocate for : MD B ISLAM Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 3 ORS.

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BEFORE

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HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 08.06.2022

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Heard Mr. B. Islam, learned counsel for the petitioners in both the writ petitions. Also heard Mr. S. S. Roy for all the respondents in WP (C) No. 3155/2022. Mr. N. K. Deb Nath, learned counsel appears for the respondent nos. 2 & 3 in WP (C) No. 3167/2022 and Mr. S. S. Roy, learned counsel also appears for the respondent nos. 1 & 4 in WP (C) No. 3167/2022.

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The petitioner’s case in WP (C) No. 3155/2022 is that the petitioner’ father Sri Punaram Chetia was injured while participating in the Assam Movement. The case of the petitioner in WP(C) No. 3167/2022 is that the petitioner’s father was killed on 02.03.1983, while participating in the Assam Movement. As such, both the petitioners claim preferential appointment during recruitment in Govt. post in terms of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred as 1999’ Rules).

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1. Upon hearing the learned counsels for the parties, this Court is of the view that both the writ petitions can be disposed of together 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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1. 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

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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.

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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 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 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. ..............., Sub Division .............. 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 petitions, to enable this Court to come to a finding as to the injury suffered by father of the petitioner in WP (C) No. 3155/2022 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.

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The above being said, the certificate issued by the Deputy Commissioner Office, Golaghat dated 31.07.2019 in respect of the petitioner’s father Sri Punaram Chetia in WP (C) No. 3155/2022 is to the effect that the said Sri Punaram Chetia was a “victim” in connection with his participation of Assam Movement on the problem of foreigners. As there is nothing stated in the certificate to the effect that the petitioner’s father in WP (C) No. 3155/2022

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suffered from any physical disability, which led to total disablement in terms of Section 2 (f) of the 1999’ Rules, this Court is of the view that the petitioner’s case cannot be considered in terms of the 1999’ Rules. Further, the certificate dated 31.07.2019 has not been issued in terms of the Schedule Rule 2 (a) of the 1999’ Rule. Accordingly, WP (C) No. 3155/2022 is dismissed.

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In respect of the petitioner’s case in WP (C) No. 3167/2022, the petitioner has not annexed any death certificate of his father the late Sri Balinda Mazumdar. The only indication that the petitioner’s date of birth is 15.05.1982, is reflected in the transfer certificate date 25.04.2022, issued by the Headmaster/Secretary of Burhaguhain Sada Siva High School, P. O. Dewrigaon, Nagaon. The said transfer certificate issued on 25.04.2022 shows that the petitioner is class 9 passed. There is nothing to show that the petitioner has passed his matriculation (Class-10).

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The affidavit of the petitioner in WP (C) No. 3167/2022 shows that he was 39 years as on 11.05.2022 and as such, he would have born only in the year 1983, as per the affidavit in the writ petition. Thus there is ambiguity with regard to the actual date of birth of the petitioner.

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The writ petitioner in WP (C) No. 3167/2022 is seeking appointment to a Govt. post under the Panchayat and Rural Development (B) Department, Govt. of Assam, in pursuant to the 1999’ Rules, as can be seen in para 9 of the writ petition. However, as per Notification no. PDB.342/2011/17/A dated 15.11.2011 issued by Principal Secretary to the Govt. of Assam, Panchayat and Rural Development Department, a candidate is required to have the educational qualification of HSLC passed for direct recruitment to posts in all offices under the PNRD Department, except the posts in the Commissionerate. There is nothing in the writ petition to show as to which post the petitioner has applied for and on what basis the same has been applied for. The question of considering the case of the petitioner in WP (C) No. 3167/ 2022, for preferential appointment to a Govt. post in terms of 1999’ Rules, would only be applicable, if the petitioner has applied for a post advertised by Government and for which a selection process has been initiated for the same. However, in the present case, the

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petitioner has not been able to show as to what post the petitioner has applied for in terms of any advertisement issued by the Government.

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In view of the reasons stated above, this Court is not inclined to exercise its discretion in WP (C) No. 3167/2022 either.

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The writ petitions are accordingly dismissed.

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JUDGE

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Comparing Assistant

Ashim Majumdar v. the State of Assam and 3 Ors.

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Ashim Majumdar v. the State of Assam and 3 Ors.

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