WA/230/2022
2022 Latest Caselaw 3666 Gua

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GAHC010126312022




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

                     WRIT APPEAL NO. 230 OF 2022
          Sri Dipjyoti Kalita,
          Son of Sri Niren Kalita,
          Resident of Village- Naojan (No.2 Korigaon)
          P.O. Naojan, P.S. Sarupathar,
          District- Golaghat, Assam,
          PIN 785601                                       ..... APPELLANT

               -Versus-

          1. The State of Assam,
          Represented by
          The Principal Secretary to the Govt. of
          Assam, Assam Accord Implementation
          Department, Dispur, Guwahati-781006

          2. The Addl. Chief Secretary to the
          Government of Assam,
          A.H. & Veterinary Department, Assam,
          Dispur, Guwahati-06

          3. The Director of Diary Development, Assam,
          Khanpara, Guwahati-22

          4. The Deputy Commissioner, Golaghat
          P.O. & Dist- Golaghat, Assam

                                                         .....RESPONDENTS

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PRESENT HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the appellant : Mr. B. Islam, Advocate

For the respondents : Mr. R.K. Borah, Addl. Senior Govt. Advocate, Assam

Date of judgment & Order : 20.09.2022

JUDGMENT & ORDER

R.M. Chhaya, CJ

Heard Mr. B. Islam, learned counsel for the appellant. Also heard Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam for the respondents.

2. Feeling aggrieved and dissatisfied with the judgment and order dated 24.05.2022 passed by the learned Single Judge in W.P.(C) No. 3179/2022, the appellant/original petitioner has preferred this appeal.

3. The following facts emerge from the record of the appeal:

It is the case of the appellant that his father Sri Niren Kalita was an active participant of the Assam Movement. It is the further case of the appellant that while taking part in the Assam Movement, his father sustained injuries and because of the injury so sustained, his father became physically disabled. Relying upon a certificate dated 09.06.2017 issued by the All Assam Students' Union, the appellant claims that he is entitled to preferential appointment being a son of the victim. The appellant has also relied upon a certificate dated 31.07.2019 issued by the Additional Deputy Commissioner, Golaghat to the effect that his father was a 'victim' in connection with Page No.# 3/7

his participation in the Assam Movement on the problem of foreigners. Thus, it is the case of the appellant that as per the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as 'the Rules' for the sake of brevity), he has every right to get employment under the provisions of the Rules. The record indicates that the appellant approached the authorities by filing representation dated 15.11.2021, which was not considered and hence, the appellant approached this Court by way of filing a writ petition under Article 226 of the Constitution of India and prayed for an appropriate writ, order or direction directing the authorities to appoint him in any Grade-III post under the provisions of the Rules. The appellant/original petitioner predominantly relied upon the certificate dated 09.06.2017 issued by the All Assam Students' Union, which is in the form of "Victim Certificate" and so also the certificate dated 31.07.2019 issued by the Additional Deputy Commissioner, Golaghat, which is to the effect that the appellant's father was a 'victim' in connection with his participation in the Assam Movement on the problem of foreigners.

4. The learned Single Judge after hearing the learned counsels for the parties, was pleased to dismiss the writ petition and hence, this appeal.

5. Mr. B. Islam, learned counsel for the appellant reiterated the contentions which were raised before the learned Single Judge and contended that the petitioner belongs to the category of 'Affected Candidate' as defined in Rule 2(a) of the Rules and, as such, the appellant would be entitled to preferential appointment. It was contended by Mr. Islam that the learned Single Judge has not considered the materials on record and has wrongly come to the conclusion that the father of the appellant did not suffer from any physical disability as per the provisions of Rule 2(f) of the Rules and thus committed an error in dismissing the writ petition. It was also contended that the learned Single Judge has wrongly brushed aside the cogent evidence in the form of Page No.# 4/7

certificate issued by the Additional Deputy Commissioner, Golaghat as well as by All Assam Students' Union. It was therefore contended that the appeal be allowed, as prayed for.

6. Per contra, Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam has contended that the learned Single Judge has not committed any error in dismissing the writ petition. Mr. Borah contended that only because the relationship is established, the same would not ipso facto mean that the appellant would be entitled to the benefits under the Rules. Mr. Borah contended that the certificate issued by the Additional Deputy Commissioner, Golaghat is only to the effect that the appellant's father was a victim in connection with his participation in the Assam Movement on the problem of foreigners and there is nothing on record to show that the father of the appellant was physically disabled because of any injury sustained. On the aforesaid grounds, Mr. Borah contended that the appeal being meritless, deserves to be dismissed.

7. No other or further submissions, grounds or contentions have been raised by the learned counsels for the parties.

8. Rule 2(f) of the Rules defines 'Physically Disabled' and it reads as under:

"2(f) "Physically Disabled" means a person disabled by any major part of his body leading to total disablement due to bullet injury or otherwise in connection with Assam Movement on the problem of foreigners".

In order to get the benefit of the Rules, a person through whom the same is claimed, has to be physically disabled. The certificate dated 31.07.2019 issued by the Additional Deputy Commissioner, Golaghat only indicates that the father of the appellant was a 'victim' in connection with his participation in the Assam Movement on the problem of foreigners. There is nothing on record to show that the appellant's father suffered from any physical disability leading to total disablement as provided in Page No.# 5/7

Section 2(f) of the Rules. As contended by the learned Additional Senior Government Advocate, Assam, as on date even the records are not available and, therefore, in absence of any material on record, it cannot be presumed that appellant's father was physically disabled because of any injury sustained by him in the Assam Movement and under such circumstances, the appellant cannot be given the benefit of the provisions of the Rules. Rules are as such a scheme of the State Government for providing preferential appointment to the family members of the victims of the Assam Movement. Even if the two certificates which are predominantly relied upon by the appellant are taken into consideration, the certificate issued by All Assam Students' Union is a 'Victim Certificate', which only recites about participation of the appellant's father in the Assam Movement and that he had suffered imprisonment. Similarly, the certificate issued by the Additional Deputy Commissioner, Golaghat is only to the effect that the appellant's father was 'victim' in connection with his participation in the Assam Movement on the problem of foreigners. The said certificate on the contrary rules out the fact that the father of the appellant died in the Assam Movement or that he was physically disabled because of any injury sustained in the Assam Movement. Thus, as rightly held by the learned Single Judge, the appellant has not been able to prove that his father sustained any injury of such nature which resulted into his physical disability leading to total physical disablement as provided in Section 2(f) of the Rules. In light of the above discussion and considering the provisions of the Rules, we find that the learned Single Judged has not committed any error, much less an error apparent on the face of the record which warrants interference of this Court in exercise of its appellate jurisdiction.

9. The Rules are special Rules in nature and the eligibility has to be possessed by the person to avail the benefit of such Rules and in absence of such eligibility a person cannot get the benefit of the same. Rule 2(a) of the Rules defines "Affected Candidate" as under:

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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;"

Sub-rule (2), (3) and (4) of Rule 4 of the Rules read as under:

"4.(2) If any affected candidate applies for any post claiming preference, he shall enclose a certificate from the Deputy Commissioner concerned to the effect that he is an affected person being a member of the family of a martyr or the family of a physically disabled person.

(3) One affected candidate only of a family of a martyr or a physically disabled person having no earning member at all in his family shall be given preference for such appointment subject to the provisions under sub-rule (1) of Rule 4 of these rules.

(4) Before making an appointment, the Appointing Authority shall ascertain from the Deputy Commissioner of the District of which the martyr or the physically disabled person was a resident that no other member of the family of the martyr or the family of the physically disabled person of which the affected candidate is a member has been appointed under sub-rule (1) or in accordance with the directives or instructions of the Government for appointments of affected candidates under its public sector undertakings, companies, corporations and bodies like Mohkuma Parishads, Municipalities, Town Committees, etc."

10. A bare reading of the aforesaid provisions of the Rules clearly stipulates that the Rules would be applicable only in case of next kin of the person who is a martyr or who is physically disabled and not in case of a person who had participated in the Assam Movement like in the case on hand. Even the words "Physically Disabled" as defined in the Rules clearly stipulate that such disability may be of any major part of the body leading to total disablement due to bullet injury or otherwise in connection with Assam Movement on the problem of foreigners. The aforesaid Rules have been framed under Article 309 of the Constitution of India for regulating appointment in Public Services under the Government of Assam of the next of kin of persons who Page No.# 7/7

sacrificed their lives or who have been rendered physically disabled permanently by bullet injury or otherwise while participating in the Assam movement on the problem of foreigners. The certificate dated 09.06.2017 was issued by the All Assam Students' Union after many years of the Assam Movement and two years thereafter the certificate dated 31.07.2019 was issued by the Additional Deputy Commissioner, Golaghat. Even without going into the said aspect of the matter, there is nothing on record to indicate that the father of the appellant sustained any injury which resulted into his physical disability leading to total physical disablement as provided in Section 2(f) of the Rules.

11. On overall consideration of the facts and circumstances of the case, we do not find any merit in this appeal. The appeal being bereft of any merit deserves to be dismissed and is hereby dismissed. There shall, however, be no order as to costs.

               JUDGE                                    CHIEF JUSTICE


Comparing Assistant