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

WP(C) 3267/2012

Smti. Palashi Mazumdar, daughter of Late Pabitra Kr. Mazumdar, Rersident of Town Ward No.3, P.S. Bijni, District- Chirang, Pin-783390. ………..Petitioner

-Versus-

1. The State of Assam, (represented by the Chief Secretary to the Govt. of Assam), Assam Sachibalaya, , -6, District- Kamrup, Assam. 2. Secretary to the Govt. of Assam, Relief and Rehabilitation Department, Assam Sachibalaya, Dispur, Guwahati-6, District- Kamrup, Assam. 3. Secretary to the Govt. of Assam, Personnel (B) Department, Assam Sachibalaya, Dispur, Guwahati-6, District- Kamrup, Assam. 4. Deputy Commissioner, Chirang District, , PIN- 783391. 5. Director Education, BTAD, Kokrajhar, Assam, PIN- 783370. 6. Inspector of Schools, Chirang District, Kajalgaon, PIN- 783391. 7. Secretary, Bodoland Territorial Council, Kokrajhar, Assam, PIN-7883370. 8. Bodoland Territorial Council, BTAD, Kokrajhar, PIN- 789370. (Represented by its Executive Officers) ……….Respondents

For the Petitioner : Mr. A. Dasgupta, Sr. Adv. Mr. A. Kundu, Adv.

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For the Respondents : Ms. M. Bhattacharjee, GA, Assam. Mr. A.K. Bhuyan, SC, BTC

BEFORE

THE HON’BLE MR. JUSTICE SUMAN SHYAM

Date of hearing and judgement : 14/11/2017

JUDGEMENT AND ORDER (ORAL)

Heard Mr. A. Dasgupta, learned senior counsel assisted by Mr. A. Kundu, learned counsel for the petitioner. I have also heard Ms. M. Bhattacharjee, learned

Government Advocate, Assam, appearing for respondent nos. 1, 2, 3 and 4 as well as

Mr. A.K. Bhuyan, learned Senior Standing Counsel, BTC, appearing for respondent nos.

5 to 8.

2. This is the second time the writ petitioner has approached this Court by filing the present writ petition seeking a direction for appointing her as Assistant Teacher under the existing Government scheme which provides for a beneficial measure meant for the family members of the victim killed in extremist violence.

3. The petitioner’s brother was admittedly killed in extremist violence and his body was recovered on 07/02/2001. At that point of time a welfare scheme in the form of “Appointment of Family Members of Persons Killed by Extremist/Terrorist Rules,

1992” was holding the field. According to the Rules of 1992, one affected candidate from the family of a victim of extremist violence, who applies and is eligible under the norms, shall be given appointment to a Government job or job under State

Government Undertaking /Board. Since the petitioner, who is the sister of the victim, was qualified to be appointed as an Assistant Teacher, she had submitted an application on 26/03/2003 before the Deputy Commissioner, Chirang, which was duly

WP(C) 3267/12- oral dt. 14-11-17 Page 2 of 6 forwarded to the competent authority along with the Police Report submitted by the

Superintendent of Police supporting the same. Although, the recommendation from the

Deputy Commissioner was made as far back as on 31/03/2005 recommending appointment of the petitioner as Assistant Teacher on compassionate ground, yet, no action was taken in the matter by the Commissioner and Secretary to the , Education Department, as a result of which the petitioner was compelled to approach this Court by filing WP(C) 2851/2004, which was disposed of by this Court by order dated 28/01/2005. The operative part of the order dated 28/01/2005 is quoted herein below for ready reference :-

“In view of the above, I dispose of the writ petition with a direction to the respondents to consider the case of the petitioners and for that matter the petitioner no. 2 in terms of the aforesaid Government Notification dated 22-6-2004, if their case is covered by the same. Whatever may the result of such consideration, same shall be intimated to the petitioner who may obtain a certified copy of this order and produce the same before the respondents along with a copy of the writ petition and its enclosures. With the above direction, the writ petition is disposed of.”

4. The petitioner thereafter, submitted the copy of the judgement and order dated 28/01/2005 passed by this Court before the authorities but even thereafter, no order of appointment was issued in her favour. Aggrieved thereby, the present writ petition has been filed seeking a writ of mandamus directing the respondents to appoint her in a Government job.

5. Ms. M. Bhattacharjee, learned Government Advocate, Assam submits that the

Deputy Commissioner of the District has a limited role to play in the matter which pertains to issuing the necessary recommendation and the same has already been done in this case on 31/03/2005. It is now for the Government to issue necessary order of appointment in terms of the Rules of 1992. Mr. A.K. Bhuyan, learned Senior

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Standing Counsel, BTC submits that this is a subject which is exclusively dealt with by the Government of Assam through the Department of Relief and Rehabilitation and since the same is not a transferred subject, the BTC authorities are unable to take a decision in the matter. Having regard to the facts and circumstances of the case, Mr.

Bhuyan, however, fairly submits that the BTC authority would carry out the decision taken in the matter by the Government of Assam within the existing legal framework, if the same is duly communicated to his client.

6. As noted above, the issue in this writ petition pertains to non-consideration of the petitioner’s application for appointment in a Government job under the beneficial schemes floated by the Government. It would be pertinent to mention herein that on

22/06/2004, the Government of Assam had issued an Office Memorandum laying down the norms for compensating the family of the victims involved in extremist activities and the OM dated 22/06/2004 replaces the Rules of 1992.

7. It appears that for a considerable period of time, there was some confusion as to whether the applications filed before 22/06/2004, but not settled as on that date, would be governed by the provisions of Rules of 1992 or has to be dealt with under the provisions of the OM dated 22/06/2004. It appears from the record that through a number of judicial pronouncement of this Court, the said issue has been settled, whereby it has been held that cases were applications for Government job were made by the victim’s family members prior to June 22, 2004, the same would be dealt with as per the guidelines issued under the Rules of 1992. Taking note of such orders passed by this Court, the Government of Assam through the Department of Personnel

(B), Assam, had also issued OM dated 29/07/2013 under Memo No.

ABP.24/2009/Vol/658, clarifying the said position and also issuing further guidelines to be followed by the authorities while implementing the OM dated 22/06/20014 as well as the Rules of 1992.

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8. After the issuance OM dated 29/07/2013, it is clear that the case of the petitioner would be covered by and has to be considered in terms of the Rules of 1992 since her application seeking job was filed on 26/03/2003, which is prior to the issuance of the OM dated 22-06-2004.

9. In the present case, although there was a specific direction issued by this Court on 28/01/2005 requiring the authorities to consider the case of the petitioner, it is evident that the said exercise has not been carried out till today. In the result, the petitioner, who is entitled to the benefit of the Scheme of 1992, has been deprived of such welfare measure floated by the Government for the benefit of the family members of the victims more than 14 years after submission of such application.

10. From the materials available on record, I am of the opinion that the petitioner would be entitled to the benefits under the Rules of 1992. Since the said Rules have been framed by the Government of Assam and is being admittedly implemented by the

Relief and Rehabilitation Department i.e. the respondent no. 2, it is the said respondent who has to take appropriate steps for considering the case of the petitioner as per the provisions of the Rules of 1992. Such being the position, I am of the considered opinion that a direction should be issued to the competent authority to pass appropriate order disposing of the application dated 26/03/2003 submitted by the petitioner.

11. This writ petition is accordingly disposed of with a direction upon the respondent no. 2 to pass appropriate orders on the application dated 26/03/2003 submitted by the petitioner. While doing so, the eligibility of the petitioner would be considered in the light of the Rules operating on the date of the application. If the petitioner is found to be entitled to appointment to the post of Assistant Teacher or any other suitable post commensurating with her qualification, appropriate steps for appointing her against such a post in respect thereof would be taken by the

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Whatever order is passed by the respondents, the same shall be communicated forthwith to the writ petitioner as well as the BTC authorities.

12. The exercise in terms of this order be completed within 4 (four) weeks from the date of receipt of certified copy of this order.

The writ petition is accordingly disposed of.

There would be no order as to costs.

JUDGE

Sukhamay

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