Disposed

Fulson Rabha v. the State of Assam and 3 Ors.

Gauhati HC10 Jun 2022WP(C)/3485/2022

Case brief

AI extract

What is this about?

The Court disposed of a writ petition seeking preferential appointment for the petitioner as the brother of a martyr who died during the Assam Movement. Noting the absence of a death certificate and age discrepancies, the Court directed the State to verify documents and eligibility upon application for future government posts, while refusing to decide the present claim at the motion stage.

What did the court decide?

Writ petition disposed. No immediate appointment granted. Petitioner directed to apply for future posts where State must verify eligibility and certificate authenticity.

Fulson Rabha Vs the State of Assam and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010091172022

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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)/3485/2022

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FULSON RABHA

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S/O- LATE KULUK RABHA, R/O- VILL.- DARANI, P.O. BARDAMAL, DIST. GOALPARA, ASSAM, PIN- 783120.

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VERSUS

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1: THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENT, DISPUR, GUWAHATI-781006.

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2:THE ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM PUBLIC HEALTH ENGINEERING DEPARTMENT DISPUR GUWAHATI-06.

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3:THE CHIEF ENGINEER PUBLIC HEALTH ENGINEERING ASSAM HENGRABARI GUWAHATI-6.

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4:THE DEPUTY COMMISSIONER GOALPARA P.O. AND DIST. GOALPARA ASSAM

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Advocate for the Petitioner : MD B ISLAM

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Advocate for the Respondent : GA, ASSAM

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– – B E F O R E

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HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 10-06-2022

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Heard Mr. B. Islam, learned counsel for the petitioner, who submits that the petitioner’s brother was killed on 16.02.1983 while participating in

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the Assam Movement and as such, the petitioner should be considered for appointment on a Government post in terms of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as “1999 Rules”).

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2. The petitioner’s counsel submits that the Office of the Deputy Commissioner, Goalpara issued a Certificate dated 06.10.2016, which certifies that the petitioner’s brother Late Surendra Rabha was killed while participating in the Assam Movement and that the petitioner Shri Fulson Rabha is the brother of the Late Surendra Rabha.

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3. Mr. C.S. Hazarika, learned Junior Government Advocate, Assam appearing for the respondent Nos.1 & 4 submits that there is no Death Certificate annexed to the writ petition. He also submits that the genuineness of the Certificate issued by the Deputy Commissioner’s Office, which is annexed to the writ petition would have to be verified by the State respondents, in the event the petitioner applies for any Government post in terms of the 1999 Rules. He further submits that the petitioner would be required to have all the eligibility criteria required for being considered for appointment to the Government post in terms of the 1999 Rules.

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4. On hearing the learned counsels appearing 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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5. 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

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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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6. 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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7. 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. 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 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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8. 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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9. There is no Death Certificate in the writ petition, to enable this Court to come to a finding with regard to whether the petitioner’s brother was really killed during the Assam Movement. As such, it is difficult to understand as to the basis for the Office of the Deputy Commissioner issuing the Certificate dated 06.10.2016, certifying that the petitioner’s brother was killed during the Assam Movement. Further, the petitioner’s age in the affidavit to the writ petition states that he is 37 years as on 11.05.2022. The above age of the petitioner implies that the petitioner was born in the year 1985, in which there would have been a vast difference between the age of the petitioner and his brother.

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10. Be that as it may, in the event petitioner applies for a Government post, which is advertised and selection process initiated by the Government, the State respondents would require to carefully look at the documents furnished by the petitioner claiming preferential appointment under the 1999 Rules. The authenticity of the Certificate issued by the Office of the Deputy Commissioner, Goalpara would also have to be looked into by the State respondents.

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11. If the petitioner applies for a Government posts, which are

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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 petitioner 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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12. The writ petition is disposed of accordingly

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J U D G E

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Comparing Assistant

Fulson Rabha v. the State of Assam and 3 Ors.

Case brief

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Fulson Rabha v. the State of Assam and 3 Ors.

Case brief

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