VINCENT DAIMARY Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) Judgment and order dated 31.03.2014 passed by the Hon'ble single Judge in W.P.(C) No. 1489/2013 has been challenged in the present writ appeal. The case of the writ petitioner before the Hon'ble single Judge was that his father Late Sumendra Daimary was killed by extremists on 26.06.1989 leading to registration of Udalguri P.S. Case No. 126/1989 under Section 302/34 of the IPC. The State of Assam in the mean time framed a set of rules known as Assam Public Services (Appointment of Family Members of Persons killed by Extremists/Terrorists) Rules, 1992 (hereinafter referred to as 'the 1992 Rules') thereby making provision for special consideration for victims of families affected by terrorist killing. 'Affected candidate' has been defined in these Rules as a member of the family of a person who was killed in violent activities/in the hands of extremists during period from 01.01.1985 and possesses a certificate to that effect issued by the concerned Deputy Commissioner of the district in specified form. The definition of 'affected candidate' under Rule 2(a) is followed by definition of 'extremists' and 'family' by Rule 2(c) and 2(d) respectively. Rule 2(c) defines extremists as ULFA and Bodo militants in Assam in general or any other non-specified extremists militant which may be declared by government as extremists militant for the purpose of these Rules. Rule 2(d) defines 'family' in an inclusive form. It provides that 'family' includes parents, spouse, sons, daughters, brothers and sisters of the persons killed. Rule 3 of the Rules provides that in regard to recruitment to all the services and posts under the Government of Assam which is made through Commission or otherwise shall be within the scope of these Rules. Rule 4(i) provides that only one affected candidate from O.B.C. family who applies and is eligible under the normal Rules shall be given appointment to a Government job or jobs under State Government undertaking/Board. Rule 4(ii) further provides that before any appointment is made, the Deputy Commissioner of the District where the person was killed in violent activities shall ascertain as to whether any person has been appointed under sub-rule (i). Under Rule 5, Government is supposed to preserve a panel of such candidates out of all the applications obtained by Deputy Commissioner/Sub-Divisional Officers under various categories of posts depending on qualifications etc. and every Government Department/Public Section Undertaking/Board/Authority shall be required to make appointment from this panel till the same is exhausted. In Rule 6, however, such appointments have been made subject to reservations for SC/ST/OBC (including MOBC)/Ex-Service Men and Physically Handicapped persons.

(2.) It appears that by notification No. ABP. 121/92/PLV/136, the 1992 Rules were repealed and in that place a new set of guidelines were brought in force. According to these guidelines, preference to members of 'affected families' certified as such by competent District authority should be given recruitment in Government and Semi-Government jobs. These measures which are replacements of the earlier 1992 Rules, are furnished below:

(3.) The petitioner claims to have filed application praying for appointment under the 1992 Rules in the year 1993 itself but he was not favoured with any appointment. It is the further case of the petitioner that even after issuance of notification on 22.06.2004, a number of similarly situated persons approached this Court praying for appointment under the rules wherein this Hon'ble Court held that applications for appointment to Government Posts submitted prior to 22.06.2004 would survive even after coming into force of new policy in 2004. Because of such stand by the High Court in these matters, Government issued an Office Memorandum on 29.07.2013 providing that in compliance of the judgments of the High Court, Government in Personnel-B department already prepared a list of applicants who had submitted applications for jobs prior to 22.06.2004 and the list contains as many as 57 applicants. Apart from that, another list has been prepared containing 63 persons of families affected by extremist killing prior to 22.06.2004 where no prayer for appointment under the 1992 Rules, was made. By the said Office Memorandum Deputy Commissioners were directed to constitute a committee to oversee the genuineness of candidates. It is provided further that on receipt of the recommendations of the committee, the department would make arrangement for appointment of the recommended candidates. Even if any other application filed prior to 22.06.2004 is subsequently detected would be carefully examined by the Deputy Commissioner to determine its authenticity. In clause (5), it was further provided that if any application had been filed after 22.06.2004 and did not receive ex-gratia of Rs. 3,00,000/- (Rupees three lacs), they would be given appropriate ex-gratia payment as per aforesaid circular dated 22.06.2004. According to the writ petitioner, although he has not been favoured with the appointment either under the 1992 Rules or under subsequent guidelines and Office Memorandum, one Ranjan Daimary has been appointed in Grade-IV posts in the establishment of Deputy Commissioner at Darang. Petitioner states that on 21.02.2014 there was an advertisement to fill up 5 (five) posts of peon, 3 (three) posts of Chowkidar and 2 (two) posts of Mali wherein the respondent should consider his candidature either under the Rules or under the guidelines. With these averments of fact, writ petitioner prayed that he be appointed against any third grade post under respondent Nos. 4 and 5 as has been done in case of Ranjan Daimary.