Purnima Boro vs Udayan Hazarika
2022 Latest Caselaw 3590 Gua

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GAHC010048562017




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

                               Case No. : Cont.Cas(C)/540/2017

            PURNIMA BORO
            W/O- LATE FWRDANNA DAIMARI, R/O- SIMALUGURI, P.O AND P.S-
            PANERI, DIST- UDALGURI, BTAD, ASSAM

            VERSUS

            UDAYAN HAZARIKA
            COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
            PERSONNELB DEPARTMENT, DISPUR, GUWAHATI-6

Advocate for the Petitioner   : MR.R M CHOUDHURY

Advocate for the Respondent : MS. D D BARMAN


                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

16.09.2022

Heard Mr. R.M. Choudhury, learned counsel for the petitioner and Ms. D. Barman, learned counsel for the sole respondent.

2. This contempt petition under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India has been preferred by the petitioner alleging willful disobedience and non-compliance of the direction given in the order dated 15.04.2017 passed in the writ petition, W.P.[C] no. 985/2017, preferred by the contempt petitioner as the writ petitioner. In the writ petition, W.P.[C] no. 985/2017, the petitioner had contended that the Page No.# 2/5

husband of the petitioner, Late Fwrdanna Daimari was killed by unidentified extremists/terrorists on 19.04.1998. The petitioner had, thereafter, applied for a post in Grade-III/Grade-IV in terms of the policy framed by the State Government for appointment of the Next of Kin [NoK] of the persons who had been killed in the hands of the extremists. There was a scheme framed for giving preference to the NoK of the affected family for appointment in a Grade-III/Grade-IV post and the same was notified by a notification dated 08.04.1992 issued by the Department of Personnel [B], Government of Assam. Reliance was also placed by the petitioner in a letter dated 22.06.2004 and an Office Memorandum dated 29.07.2013 issued by the Department of Personnel [B], Government of Assam.

2.1. The writ petition was disposed of by an order dated 05.04.2017 with a direction to the respondent no. 1 therein i.e. the Commissioner & Secretary to the Government of Assam, Personnel [B] Department to consider the case of the petitioner in terms of the notification dated 08.04.1992, the letter dated 22.06.2004 and the Office Memorandum dated 29.07.2013 within a period of 2 [two] months from the date of receipt of a certified copy of the order dated 05.04.2017 by the respondent no. 1. Thereafter, alleging willful disobedience and deliberate violation, the petitioner has approached this Court by this petition on 08.11.2017.

2.2. During the pendency of this petition, the State of Assam, represented by the Secretary to the Government of Assam, Personnel [B] Department preferred a review petition, Review Petition no. 71/2018 against the order dated 05.04.2017 passed in the writ petition, W.P.[C] no. 985/2017 and the same came to be considered on 27.03.2019. After perusal of the contents of the order dated 05.04.2017 [supra], the Court had observed that the direction therein had revealed that there was no mandamus issued to undertake any act or to perform statutory act but authority was to merely consider the case of the petitioner in terms of the notifications, etc. mentioned therein. The review petition was preferred contending that the Personnel [B] Department, Government of Assam is only a policy making department and the Commissioner & Secretary to the Government of Assam, Personnel [B] Department has no power to give appointment to any person in terms of the notification dated 08.04.1992, the letter dated 22.06.2004 and the Office Memorandum dated 29.07.2013. Having taken note of such stand taken in the review petition, the Court had further observed that if the authorities Page No.# 3/5

for any reason consider that granting any relief to the petitioner might not be possible, the authorities can certainly pass appropriate orders to that effect as it was merely a direction to consider.

3. The impleaded sole respondent in his affidavit-in-opposition has stated that the he was never posted as the Commissioner & Secretary to the Government of Assam, Personnel [B] Department. He was posted as the Secretary to the Government of Assam, Personnel [B] Department during a certain period and subsequently on 17.11.2017, he was transferred and posted as the Secretary to the Government of Assam, Environment & Forests Department. It is, therefore, his contention that he has been wrongly impleaded in the contempt petition by the petitioner by describing him as the Commissioner & Secretary to the Government of Assam, Personnel [B] Department. Be that as it may.

4. The Commissioner & Secretary to the Government of Assam, Personnel [B] Department in compliance of the order dated 05.04.2017 passed in the writ petition, W.P.[C] no. 985/2017, has passed an order on 06.06.2019 and a copy of the said order dated 06.06.2019 has been annexed as Annexure-C to the affidavit-in-opposition of the sole respondent. The order dated 06.06.2017 is extracted hereinbelow in its entirety :-

Government of Assam Department of Personnel ::: Personnel [B] Dispur ::: Guwahati

No. ABP.82/2017/85 Dated Dispur, the 6th June, 2019

WHEREAS a certified copy of the Orders and Judgment dated 05.04.2017 of the Hon'ble Gauhati High Court passed in W.P.[C] no. 985/2017 filed by Smti Purnima Boro praying for appointment under the provision of APS [Appointment of Family Members of Persons killed by Extremists/Terrorists] Rules, 1992 has been received.

AND WHEREAS the Hon'ble Gauhati High Court in the aforesaid order has Page No.# 4/5

directed to the Respondent no. 1/Commissioner & Secretary to the Govt. of Assam, Personnel [B] Department to consider the case of the petitioner in terms of the notification dated 08.04.1992, letter dated 22.06.2004 and O.M. dated 29.07.2013 within a period of 2 [two] months with effect from the date of receipt of the copy of the order.

AND on receipt of the Hon'ble Gauhati High Court Order dated 05.04.2017 passed on W.P.[C] no. 958/2017, Govt. in Personnel [B] Department, a Review Petition was filed against the above mentioned order in Review Petition no. 71/2018.

WHEREAS the matter of appointment of Smti Purnima Boro has been examined. Post applied by Smti Purnima Boro is a Grade-III/Grade-IV post and the appointment of Grade-III and Grade-IV in Bodoland Territorial Council [BTC] is completely under the jurisdiction of the Bodoland Territorial Council [BTC] authority and the Personnel Department has no jurisdiction over the matter.

In view of the above, it is hereby decided that this matter be forwarded to the BTC authority and Deputy Commissioner, Udalguri for necessary action to comply the order of the Hon'ble Gauhati High Court to consider the application of Smti Purnima Boro as per O.M. No. ABP.24/2009/vol/658 dated 29.07.2013 and letter No. ABP.121/29/pt-V/136 dated 22.06.2004.

Sd/ Dr. K.K. Dwivedi, IAS Commissioner & Secretary to the Govt. of Assam, Personnel [B] Department.

5. In the order dated 05.04.2017 passed in the writ petition, W.P.[C] no. 985/2017, this Court directed the Commissioner and Secretary to the Government of Assam, Personnel [B] Department to consider. The matter of consideration to the given by the said authority was also clarified by the Court in its order dated 27.03.2019 passed in the review petition, Review Petition no. 71/2018. It is trite to say that when a Court directs an authority to consider, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. The Commissioner & Secretary to the Page No.# 5/5

Government of Assam, Personnel [B] Department in its order dated 06.06.2019 has recorded the finding that the post applied by the petitioner is in Grade-III/Grade-IV post in the Bodoland Territorial Council [BTC] and the appointment in Grade-III/Grade-IV post in Bodoland Territorial Council [BTC] is completely under the jurisdiction of BTC authorities and the Personnel [B] Department has no jurisdiction over the matter.

6. In view of the above discussion, this Court is of the considered view that the Commissioner & Secretary to the Government of Assam, Personnel [B] Department by passing the order dated 06.06.2019, has substantially complied with the direction of this Court made in the order dated 05.04.2017 in the writ petition, W.P.[C] no. 985/2017, as clarified by the order dated 27.03.2019 passed in the review petition, Review Petition no. 71/2019. It is also trite to state that once there is an order passed by the concerned authority on the basis of the direction issued, there arises a fresh cause of action to seek redressal in an appropriate manner. The manner in which the order is passed may not be in conformity with the direction and in such a case, the order could be a fresh cause of action for the party to seek appropriate remedy like invoking the power of judicial review. In such view of the matter, this Court does not find any good and sufficient reason to continue with this contempt petition. However, it is observed that the closure of this contempt petition by this order, will not preclude the petitioner to seek appropriate remedy available to the petitioner under the law.

JUDGE

Comparing Assistant