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Judgment
Heard Mr. UK Das, learned counsel for the petitioner, Mr. P Nayak, learned counsel for the respondent No.4 being the authorities in the Finance
Department of the Government of Assam, Mr. SR Barua, learned counsel for the respondents No.1, 2 and 6 being the Chief Secretary to the
Government of Assam, the Commissioner and Secretary to the Government of Assam, Personnel (B) Department and the Deputy Commissioner,
Nalbari as well as Mr. B Kaushik, learned counsel for the respondents No. 3 and 5 being the authorities in the Elementary Education Department of
the Government of Assam.
Two persons namely Sri Deraj Talukdar and Smti Mithu Devi have approached this Court by filing this common writ petition raising a grievance
that their respective predecessors-in-interest had died in extremist violence and therefore they are entitled to an appointment in a Government job
under the Assam Public Service (Appointment of Family Members of Persons Killed by Extremists/Terrorists) Rules, 1992 (hereinafter referred as
Rules of 1992). The respective legal rights to be appointed under the Rules of 1992 would be individual rights depending upon the individual facts and
circumstance and therefore, prima-facie, we are unable to accept a joint petition by two separate claimants for such appointment. We have noticed
that in this writ petition, the affidavit has been sworn by the petitioner Sri Deraj Talukdar. Accordingly, we entertain this writ petition on behalf of the
petitioner Sri Deraj Talukdar and dismiss the petition on behalf of the other petitioner Smti Mithu Devi by giving liberty to approach again, if so
advised.
The petitioner claims that his brother Sultan Talukdar was shot dead by extremists at a place called Gopal Than near the Gopal Than High School in
the Nalbari district on 07.09.1999 at about 9.30 a.m. In connection with the same incident, Nalbari PS Case No.233/99 u/s 302 IPC was registered. It
is also stated that after the death of Sultan Talukdar, an amount of Rs.1,00,000/- was granted by the Government of Assam to the father of Sultan
Talukdar as ex-gratia as per letter No.RR.37/2003/28 dated 27.09.2004.
The petitioner Sri Deraj Talukdar claims to have passed the Class-VIII examination and being the brother of the deceased Sultan Talukdar had
made an application for appointment as a Grade-IV on 24.06.2002 under the Rules of 1992. It is also stated that no other family member of the
deceased Sultan Talukdar had been appointed by the respondents in a Government job under the Rule sof 1992. The petitioner relies upon a
communication dated 19.05.2017 from the District Elementary Education Officer, Nalbari which refers to a minutes of the DLC of Nalbari district for
appointment under the Rules of 1992 in respect of the petitioner Deraj Talukdar.
Although the minutes of the DLC of Nalbari district is not made available in the writ petition, the petitioner by relying upon the communication dated
19.05.2017 seeks for a writ in the nature of mandamus directing the respondent authorities to issue an order of appointment to the petitioner under the
Rules of 1992.
We have to take note of that the Rules of 1992 was subsequently repealed and withdrawn by the notification dated 22.06.2004 of the Commissioner
and Secretary to the Government of Assam in the Personnel (B) Department. The notification dated 22.06.2004 provides that notwithstanding such
repeal, anything done, any order made or action taken under the repealed Rules shall be deemed to have been validly done, made or taken. Upon the
repeal of the Rules of 1992, an issue had arisen as to what would be the status of such applications made under the Rules of 1992 for an appointment
in a Government job that was made prior to 22.06.2004 when the Rules were repealed. It is stated that the said issue was decided by the Division
Bench of this Court by the judgment dated 09.06.2010 in WP(C) No.3355/2007, which is reported in (2010) 3 GLT 443. The Division Bench held that
as there existed a right to make an application under the Rules of 1992 prior to the said Rules being repealed, the right to consider such applications
also survived and such applications cannot be rejected merely because the Rules of 1992 stood repealed by the notification dated 22.06.2004.
In the circumstance, the petitioner also claims that as his application for appointment was dated 24.06.2002 i.e. prior to 22.06.2004 when the Rules
of 1992 was repealed, a right to be considered for an appointment survives.
In the aforesaid circumstance, an Office Memorandum dated 29.07.2013 was issued under the signature of the Principal Secretary to the
Government of Assam in the Personnel (B) Department in which a reference was made to a list of 57 such applicants, who had submitted their
respective applications for appointment prior to the cutoff date of 22.06.2004. Accordingly, in the Office Memorandum, it was provided that upon
proper verification of the genuineness of the enlisted persons, the persons enlisted in the list of 57 would be provided with appointment.
Clause IV(iii) of the Office Memorandum dated 29.07.2013 also provided that in case of any further application over and above 57 applications are
subsequently detected in a district, the concerned Deputy Commissioner will carefully examine the authenticity of such applications and on being
satisfied place the same before the District Level Committee for taking similar action for appointment as was done in respect of the other 57
applicants.
Mr. UK Das, learned counsel for the petitioner also places reliance on clause IV(iii) of the Office Memorandum dated 29.07.2013 to raise the
contention that as the petitioner had submitted his application prior to 22.06.2004, therefore he would belong to the category of applicants, whose
applications may have been detected subsequently over and above the other 57 applications and therefore it needs a consideration. Accordingly, it is
the submission that in consideration thereof, the DLC, Nalbari district had included the claim of the petitioner in its minutes dated 22.03.2017 and
accordingly the petitioner is entitled to a direction to be appointed.
Mr. P Nayak, learned counsel for the Finance Department on the other hand has produced the original file related to the claim of the petitioner for
appointment under the Rules of 1992. Mr. Nayak, learned counsel brings it to the notice of the Court that firstly the petitioner had submitted an
application for appointment on 30.09.2013, the copy whereof is available at page 23 of the concerned file. By referring to the said application, it is the
submission of Mr. Nayak, learned counsel that there is a possibility that the petitioner may have submitted the application subsequent to 20.06.2004
and therefore, he is not entitled to the benefit under the Office Memorandum dated 29.07.2013 as well as the decision of the Division Bench in the
judgment dated 09.06.2010 in WP(C) No.3355/2007. Mr. Nayak, learned counsel also refers to another application from the petitioner in the
prescribed format of application for appointment under the Rules of 1992, which is available at page 24 of the same file. Mr. Nayak, learned counsel
points out that although the application is said to be dated 24.06.2002, but in clause 13 thereof, the petitioner writes his age to be 31 years as on the
first January, 2010. Accordingly, Mr. Nayak, learned counsel raises an apprehension that if the petitioner had made his application on 24.06.2002,
what was the necessity to state his age in the application to be 31 years as on first of January, 2010, which was definitely a future date for an
application which is claimed to have been filed on 24.06.2002.
Mr. Nayak, learned counsel thereafter refers to a note put up by the Finance Department in the note-sheet at page 23 dated 16.12.2020. The
purport of the notes of the Finance Department dated 16.12.2020 is related to the communication dated 22.06.2004 from the Commissioner and
Secretary to the Government of Assam in the Personnel (B) Department addressed to all Deputy Commissioners, which provided that after the repeal
of the Rules of 1992, the authorities may be given the particulars of the families affected by extremist violence for the purpose of any recruitment to a
Government/Semi-Government job and further preference to such persons may also be given in respect of selection of benefits under the prevailing
employment guaranteed schemes of the various departments and other welfare and relief scheme of the Social Welfare Department etc.
We are not considering the relevance of the note of the Finance Department dated 16.02.2020, but for the purpose of this writ petition, we take
note of Clause IV(iii) of the Office Memorandum dated 29.07.2013, which inter-alia provides that in case of any further application being detected
subsequently, the concerned Deputy Commissioner will carefully examine the authenticity of such application and on being satisfied place the same
before the respective DLC for taking appropriate action for appointment. Clause IV(iii) of the Office Memorandum dated 29.07.2013 is extracted
below:-
“IV(iii) In case of any further applications, over and above what has been included in the list of Annexure-I, made on or prior to 22.06.2004 if
detected subsequently, in the district, the concerned Deputy Commissioner will carefully examine the authenticity of such applications and on being
satisfied, place the same before the Committee and take similar action as at (i) and (ii) above. But in all cases the cut-off date shall be as per the APS
Rules 1992.â€
A reading of the provisions of clause IV(iii) of the Office Memorandum dated 29.07.2013 would go to show that if any subsequent application is
detected, which is claimed to have been submitted prior to 22.06.2004, the concerned Deputy Commissioner is required to carefully examine the
authenticity of such application.
In the instant case, it is not known as to on what basis the application of the petitioner was placed before the DLC of Nalbari district resulting in
the minutes of the DLC dated 22.03.2017. In the absence of any such records, we are unable to arrive at any conclusion as to whether the Deputy
Commissioner, Nabari had made a careful examination of the authenticity of the application of the petitioner as required under clause IV(iii) of the
Office Memorandum dated 29.07.2013.
The requirement of making a careful examination of the authenticity of the application assumes a further relevance from the aspect that it is the
specific statement of Mr. P. Nayak, learned counsel for the Finance Department that firstly the application of the petitioner in the appropriate format
dated 24.06.2002 which is available in page 24 of the file concerned is itself doubtful inasmuch as the petitioner had stated his age to be 31 years as on
01.01.2010 in a situation where the application was filed on 24.06.2002. The existence in the record of the other application of the petitioner dated
13.09.2013 which is available at page 23 of the said file also leads to an element of doubt as regards the authenticity of the application made by the
petitioner for appointment under the Rules of 1992 prior to 22.06.2004.
We do not express any opinion on the submission of Mr. P Nayak, learned counsel for the Finance Department, but at the same time take note of
that the submissions made by Mr. P Nayak, learned counsel requires some serious examination to be made on the authenticity and genuinenity of the
application made by the petitioner and whether it was actually submitted prior to 22.06.2004. As it is a requirement of law for the Deputy
Commissioner under clause IV(iii) of the Office Memorandum dated 29.07.2013 to make a careful examination of the authenticity of such application,
we decline the prayer of the petitioner for a direction for appointment. But at the same time, remand the matter back to the Deputy Commissioner,
Nalbari to make a careful examination of the authenticity of the application claimed to have been submitted by the petitioner which is available at page
23 and 24 of the file concerned of the Education Department which was produced by Mr. P Nayak, learned counsel. The Education Department shall
make it available before the Deputy Commissioner, Nalbari all the records that are in their custody for the careful examination of the Deputy
Commissioner, Nalbari.
The Deputy Commissioner, Nalbari after the careful examination as required under clause IV(iii) of the Office Memorandum dated 29.07.2013
and also by taking note of the submission of Mr. P Nayak, learned counsel for the Finance Department as regards the inconsistencies in the
applications of the petitioner available at pages 23 and 24 of the concerned file of the Education Department, shall pass a reasoned order thereon. By
requiring the Deputy Commissioner to pass a reasoned order, we do not indicate that there is any observation by this Court in this order that the
application of the petitioner is required to be accepted or rejected and it is for the Deputy Commissioner to arrive at his own independent finding on the
matter by giving reasons. The outcome of the exercise of the Deputy Commissioner be informed to the petitioner.
The Education Department to make available the file concerned before the Deputy Commissioner, Nalbari within a period of 15(fifteen) days from
today and the Deputy Commissioner, thereafter shall pass a reasoned order within a period of three months thereafter.
Writ petition stands disposed of in the above terms.