Disposed

Nikumani Devi v. the State of Assam and 6 Ors.

Gauhati HC3 Jun 2022WP(C)/3682/2022

Case brief

AI extract

What is this about?

A common order dismissing four linked writ petitions seeking preferential appointment under the Assam Public Service (Preferential Appointment) Rules, 1999. The Court held that the petitions could be disposed of at the motion stage due to absence of medical certificates, directing the Government to verify eligibility and document authenticity during future recruitment

What did the court decide?

Dismissed the writ petitions but directed the State to verify documents and eligibility under the 1999 Rules when recruitment is undertaken.

Nikumani Devi Vs the State of Assam and 6 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC010102422022

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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)/3673/2022

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BEAUTY LASKAR

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DAUGHTER OF MARTYR BIDYADHAR LASKAR @ BIDYA LASKAR, RESIDENT OF VILLAGE- SOUTH HAIBARGAON, P.O.- HAIBARGAON, DISTRICT- NAGAON, ASSAM, PIN- 782002.

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VERSUS

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1: THE STATE OF ASSAM AND 9 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENT, DISPUR, GUWAHATI781006.

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2:THE ADDITIONAL SECRETARY TO THE GOVERNMENT OF ASSAM PERSONNEL (B) DEPARTMENT DISPUR GUWAHATI-06.

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3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM COOPERATION DEPARTMENT DISPUR GUWAHATI-06.

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4:THE REGISTRAR OF COORPERATIVE SOCIETIES ASSAM KHANAPARA GUWAHATI-22.

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5:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT DISPUR GUWAHATI-06.

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6:THE DEPUTY SECRETARY, FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI-06.

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7:THE DEPUTY DIRECTOR, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS P.O. AND DISTRICT- NAGAON ASSAM.

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8:THE DIRECTOR, FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS BHANGAGARH GUWAHATI-5.

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9:THE DEPUTY COMMISSIONER, NAGAON P.O. AND DISTRICT- NAGAON ASSAM.

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10:THE STATE LEVEL RECRUITMENT COMMISSION FOR GRADE-IV POSTS ASSAM ADMINISTRATIVE STAFF COLLEGE JAWAHAR NAGAR KHANAPARA GUWAHATI-22

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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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Linked Case : WP(C)/3677/2022

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JAYANTA DEKA S/O- SRI HEMEN DEKA R/O- VILLAGE- BAGHARALI GAON P.O.- DHARAMTUL P.S. DHARAMTUL DISTRICT- MORIGAON ASSAM.

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VERSUS

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1: THE STATE OF ASSAM AND 6 ORS.

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REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT DISPUR GUWAHATI-06.

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2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENTDISPUR GUWAHATI- 781006.

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3:THE JOINT SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENTDISPUR GUWAHATI-781006.

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4:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM AGRICULTURE DEPARTMENTDISPUR GUWAHATI-781006.

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5:THE DIRECTOR, AGRICULTURE DEPARTMENT KHANAPARA GUWAHATI-781022.

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6:THE DEPUTY COMMISSIONER, MORIGAON DIST.- MORIGAON ASSAM PIN- 782105.

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7:THE DISTRICT AGRICULTURE OFFICER, AGRICULTURE DEPARTMENT MORIGAON DIST.- MORIGAON PIN- 782105.

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Advocate for : MD B ISLAM

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Advocate for : SC AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND 6 ORS.

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Linked Case : WP(C)/3682/2022

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NIKUMANI DEVI D/O- PRABHAT CH. NATH R/O- VILL.- BARPHUKAN KHAT P.O. BETNA P.S. GORESWAR DIST. BAKSA ASSAM

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VERSUS

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1: THE STATE OF ASSAM AND 6 ORS. REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT DISPUR GUWAHATI-06.

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2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENT DISPUR GUWAHATI-781006.

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

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4:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM AGRICULTUREDEPARTMENT, DISPUR GUWAHATI-06.

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5:THE DIRECTOR, AGRICULTURE DEPARTMENT KHANAPARA GUWAHATI PIN- 781022.

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6:THE DEPUTY COMMISSIONER, BAKSA DIST. BAKSA PIN- 781372.

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7:THE DISTRICT AGRICULTURE OFFICER AGRICULTURE DEPARTMENT BAKSA PIN- 781372.

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Advocate for : MD B ISLAM

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Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS.

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Linked Case : WP(C)/3683/2022

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TILAK DAS S/O- LATE MADHURAM DAS R/O- VILLAGE NO. 2 GORESWAR P.O. AND P.S. GORESWAR DIST. BAKSA ASSAM

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VERSUS

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1: THE STATE OF ASSAM AND 6 ORS.

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REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT DISPUR GUWAHATI-06.

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2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, ASSAM ACCORD IMPLEMENTATION DEPARTMENT DISPUR GUWAHATI-781006.

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

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4:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM AGRICULTUREDEPARTMENT DISPUR GUWAHATI-06.

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5:THE DIRECTOR, AGRICULTURE DEPARTMENT KHANAPARA GUWAHATI PIN- 781022.

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6:THE DEPUTY COMMISSIONER, BAKSA DIST. BAKSA PIN- 781372.

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7:THE DISTRICT AGRICULTURE OFFICER AGRICULTURE DEPARTMENT BAKSA PIN- 781372.

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Advocate for : MD B ISLAM

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Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS.

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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 : 03-06-2022

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Heard Mr. B. Islam, learned counsel for the petitioners in all the writ petitions. Also heard Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, appearing for the State respondents; Mr. B. Choudhury, learned standing counsel, Agriculture Department and Mr. G. Bordoloi, learned standing counsel, Co-operation Department, appearing for the respondents.

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2. The issue to be decided in all the cases being similar, the cases are being disposed of by a common order.

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3. The petitioners’ counsel submits that the father of the petitioner in WP(C) No.3673/2022 was killed while participating in the Assam

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Movement. The fathers of the petitioners in WP(C) No.3677/2022 and WP(C) No.3682/2022 were injured and physically disabled during their participation in the Assam Movement. The brother of the petitioner in WP(C) No.3683/2022 was injured and physically disabled during his participation in the Assam Movement. As such, the petitioners are entitled to be given preferential appointment in terms of the Assam Public Service (Preferential Appointment) Rules, 1999 (hereinafter referred to as “1999 Rules”).

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4. The petitioners’ counsel submits that the Office of the concerned Deputy Commissioner had issued a Certificate dated 04.07.2017 stating that the petitioner’s father in WP(C) No.3673/2022 was killed during his participation in the Assam Movement. The Certificates dated 26.09.2016 and 25.02.2016 issued by the Deputy Commissioner’s Office in WP(C) No.3677/2022 and WP(C) No.3682/2022 state that the petitioners’ fathers were physically disabled during their participation in the Assam Movement and the Certificate dated 25.02.2016 issued by the Deputy Commissioner’s Office in WP(C) No.3683/2022 states that the petitioner’s brother was physically disabled during his participation in the Assam Movement.

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5. Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam; Mr. B. Choudhury, learned standing counsel, Agriculture Department and Mr. G. Bordoloi, learned standing counsel, Co-operation Department submit that there are no medical certificates annexed to the writ petitions, to show that the petitioners’ fathers and brother were victims of the Assam Movement. They also submit that the genuineness of the Certificates issued by the Deputy Commissioners Office, which are annexed to the writ petitions, would have to be verified by the State respondents, besides the petitioners requiring to have all the eligibility criteria required for being

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considered for appointment to Government posts, in terms of the 1999 Rules.

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6. Upon hearing the learned counsels appearing for the parties, this Court is of the view that the writ petitions can be disposed of at the motion stage itself.

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7. 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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8. 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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9. 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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10. Section 2(a) of the 1999 Rules requires that the Certificate to be

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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. ..............., 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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11. There are no medical certificates in the writ petitions, to enable this Court to come to a finding as to the injury suffered by fathers and brother of the petitioners and as to whether the said persons 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 persons 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 candidates, including the authenticity of the Certificates issued by the Office of the Deputy Commissioners would also have to be looked into by the State respondents.

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12. The above being said, if the petitioners apply for a Government posts, which are advertised and selection process initiated by the

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Government, the respondents would have to determine whether any quota is reserved for filling up the said posts by way of 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 petitioners are found to be members of a family of the martyrs 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 petitioners claims can be considered in terms of the 1999 Rules, provided the petitioners have all the required eligibility criteria to be considered for the said post(s). Further, the cases of the petitioners can be considered in terms of the 1999 Rules, only if they come within the conditions set out in the Explanation to Rule 4 of the 1999 Rules, which states that the affected candidates 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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13. Accordingly, all the above writ petitions are disposed of in terms of the directions and observations made above.

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J U D G E

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Comparing Assistant

Nikumani Devi v. the State of Assam and 6 Ors.

Case brief

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Nikumani Devi v. the State of Assam and 6 Ors.

Case brief

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