Naranilanjoy Basumatary vs Bodoland Territorial Council And ...
2023 Latest Caselaw 2343 Gua

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GAHC010263032017




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

                          Case No. : WP(C)/3517/2017

         NARANILANJOY BASUMATARY
         S/O- LATE BHUPENDRA NARAYAN BASUMATARY, R/O- VILL-
         KASHIKOTRA, P.O- KASHIKOTRA, DIST- CHIRANGBTC, ASSAM



         VERSUS

         BODOLAND TERRITORIAL COUNCIL and 5 ORS.
         REP. BY ITS PRINCIPAL SECRETARY, KOKRAJHAR, PIN- DIST-
         KOKRAJHAR, ASSAM

         2:THE STATE OF ASSAM
          REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM
          DISPUR
          GUWAHATI
         ASSAM

         3:THE SECRETARY
         TO THE GOVT OF ASSAM
          PERSONNELA DEPTT.
          DISPUR
          GUWAHATI
         ASSAM

         4:THE SECRETARY
         TO THE GOVT OF ASSAM
          PERSONNELB DEPTT.
          DISPUR
          GUWAHATI
         ASSAM

         5:THE DEPUTY COMMISSIONER
          CHIRANG DISTRICT
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             P.O AND DIST- CHIRANGBTC
             ASSAM

            6:JOINT SECRETARY
             GOVT OF ASSAM
             REVENUE and DISASTER MANAGEMENT DEPTT.
             RELIEF andREHABILITATION BRANCH
             DISPUR
             GUWAHATI
            ASSA

Advocate for the Petitioner   : MR.B DAS

Advocate for the Respondent : MS.G R MAHILARY




                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

05.06.2023

Heard Mr. A. Gasgupta, learned senior counsel assisted by Ms. B. Das, learned counsel for the petitioner; Mr. B. Choudhury, learned Standing Counsel, BTC for the respondent no. 1; Ms. S. Sarma, learned Junior Government Advocate, Assam for the respondent nos. 2 - 5; and Ms. N. Bordoloi, learned Standing Counsel, Revenue & Disaster Management Department for the respondent no. 6.

2. In the year 1991, the State Government formulated a policy to grant ex-gratia amount to the Next of Kin [NoK] of a person killed in extremists/terrorists violence and the same was notified by an Office Memorandum no. RR.82/90/6 dated 25.04.1991. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the State Government had framed a set of rules viz. the Assam Public Services [Appointment of Family Members of Persons Killed by Extremists/Terrorists] Rules, 1992 ['the 1992, Rules', for short] and the same was notified by a Notification bearing no. ABP.181/91/65 dated 08.04.1992 of the Personnel [B] Department, Government of Assam. The 1992 Rules provided for appointment in public services under the Government of Assam of the NoK of persons who Page No.# 3/6

had been killed in extremists/terrorists violence.

2.1. In partial modification of the Office Memorandum dated 25.04.1991, another Office Memorandum dated 29.07.1995 came to be issued whereby it provided for an ex-gratia amount of Rs. 1,00,000/- to the NoK of a person killed in extremists/terrorists violence. The Office Memorandum dated 29.07.1995 was not part of the 1992 Rules and was independent of the 1992 Rules, which used to govern the cases where the persons died in extremists/terrorists violence. The 1992 Rules were repealed by the State Government on 22.06.2004 vide a Notification bearing no. ABD.121/92/Pt-IV/135. By another Notification bearing no. ABP 121/92/Pt-V/136 dated 22.06.2004, a policy was brought into existence observing that in place of the 1992 Rules, the Government would give reliefs to the affected families provided therein. The notification provided that preference would be given to the members of the affected families in recruitment to the Government and Semi-Government jobs. Preference to such persons in selection of beneficiaries under the self-employment generation scheme would also be given. By Clause 3 of the Notification bearing no. ABP.121/92/Pt-V/136 dated 22.06.2004, the ex-gratia amount payable to the NoK of persons killed in extremists/terrorists violence was enhanced to Rs. 3,00,000/-. Pursuant to a Judgment and order dated 09.06.2010 of a Division Bench of this Court in Dhaniswar Basumatary and others vs. State of Assam and others, reported in 2010 [3] GLT 443, the State Government in the Personnel [B] Department issued an Office Memorandum dated 29.07.2013, which also provided for ex-gratia amount of Rs. 3,00,000/-.

3. The petitioner asserting that his father was killed in extremists violence on 15.06.1993, had preferred a writ petition, W.P.[C] no. 4580/2015. The petitioner in the said writ petition, as the NoK of his father [Late Bhupendra Narayan Basumatary], had claimed the ex-gratia amount of Rs. 3,00,000/- as per the policy of the State Government. The said writ petition came to be disposed of by an order dated 02.09.2015 after hearing the learned counsel for the parties, with a direction to the respondent authorities to pay ex-gratia amount of Rs. 3,00,000/- to the family members of the petitioner and also to consider the case of the petitioner for appointment in Government job in terms of the Office Memorandum dated 29.07.2013. The respondent authorities were directed to complete the exercise within a Page No.# 4/6

period of 3 [three] months from the date of receipt of a certified copy of the order dated 02.09.2015.

4. The direction as regards payment of ex-gratia amount of Rs. 3,00,000/- by the order dated 02.09.2015 was in the nature of mandamus. It appears that no appeal or review of the order dated 02.09.2015 was preferred, meaning thereby, the direction made in the order dated 02.09.2015 for payment of ex-gratia amount of Rs. 3,00,000/- to the family members of the petitioner has attained finality.

5. When the ex-gratia amount was not received by the petitioner even after elapse of more than 1½ years, the petitioner had instituted the instant writ petition on 08.06.2017 seeking inter alia a direction to the respondent authorities to disburse the ex-gratia amount of Rs. 3,00,000/- to the family of the petitioner.

6. At this stage, it is appropriate to refer to the stands taken by the different respondent authorities subsequent to the order dated 02.03.2015 passed in the wit petition, W.P.[C] no. 4580/2015.

[i] The Revenue & Disaster Management Department has taken a stand vide its letter no. RR.98/2015/6 dated 31.10.2015 to the effect that since the deceased was a regular Government employee [Khalasi] under the Irrigation Department, the benefit of ex-gratia grant cannot be extended to the family member, NoK of the deceased by the Revenue & Disaster Management [Relief and Rehabilitation] Department and the matter should be taken up with the concerned Administrative Department, that is, the Irrigation Department.

[ii] The respondent BTC in its Communication bearing no. BTC.Irri-73/2015/17 dated 20.01.2016 written to the Secretary to the Government of Assam, Irrigation Department had taken a stand that there was no fund for providing ex-gratia amount of Rs. 3,00,000/-. Such a stand from the respondent BTC authorities is despite the fact that the Irrigation Department is a transferred subject under the Sixth Schedule.

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[iii] All the Office Memorandums were issued by the Department of Personnel, Government of Assam. It was the Personnel Department which on 22.06.2004 had enhanced the ex-gratia amount to Rs. 3,00,000/-. In its Office Memorandum dated 29.07.2013, the Personnel [B] Department had directed vide Clause [iv] to the Deputy Commissioners to verify the cases received from various Government Departments and to submit action taken report to the Personnel [B] Department. In sub-clause [v] of Clause 4 of Office Memorandum dated 29.07.2013, the Personnel Department had directed that those who had not received the ex- gratia amount under the Notification dated 22.06.2004, should be disbursed the said amount adjusting the amount already received, if any.

[iv] In deference to the order dated 15.05.2023, the Deputy Commissioner, Chirang vide a Communication bearing no. MD-28/40/2023-RDM-CHR/34070 dated 29.05.2023 has stated that the matter of ex-gratia should be taken up with the Irrigation Department, Government of Assam and the Irrigation Department, BTC, Kokrajhar.

7. The Court is of the considered view that [a] the Personnel Department; [b] the Revenue & Disaster Management [Reform and Rehabilitation] Department; [c] the Irrigation Department, Government of Assam; [d] the Deputy Commissioner, Chirang; and [e] the Irrigation Department, BTC are different arms of the Government and their stands cannot be at variance to one another before a court of law. All the authorities of the State Government must speak in one voice, prima facie, in connection with a direction to pay the ex-gratia amount of Rs. 3,00,000/- made in the order dated 02.09.2015 passed in the writ petition, W.P.[C] no. 4580/2015, which is in the nature of mandamus.

8. On the next date of listing, all the respondent authorities shall have to make their stand clear as regards disbursal of the ex-gratia amount of Rs. 3,00,000/- to the family member of the petitioner. In the event the respondent authorities are found taking stands, at variance to each other, as regards release of the ex-gratia amount of Rs. 3,00,000/-, the Court would have view the matters seriously as it would prima facie suggestive of a an act of disobedience to the direction of this Court and necessary orders would follow.

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7. List the case on 16.06.2023.

JUDGE

Comparing Assistant