STATE OF ASSAM Vs. JIBESWAR BARTHAKUR

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 15-6-1998 of the learned single Judge in Civil Rule No. 1133/98.

(2.) The facts briefly are that the respondent's son Sri Bikash Barthakur applied for admission into First Year MBBS/BDS Courses in the Medical Colleges and the Regional Dental College located in the State of Assam for the session 1997 pursuant to advertisement dated 14-4-1997 of the Director of Medical Education, Assam. As Sri Bikash Barthakur was the cousin of Anjan Barthakur, a martyr of Assam Movement, his application was for a seat reserved for sons/daughters/brothers/sisters of the Martyrs of Assam Movement under Rule 6 of the Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under-Graduate Students) Rules, 1996, (hereinafter referred to as "1996 Rules"). Pursuant to his application, Sri Bikash Barthakur took the common entrance examination along with other candidates and in the select list dated 14-11-1997 his name found place at the top of the two candidates selected for the seats reserved for sons/daughters/brothers/sisters of the Martyrs of Assam Movement provisionally and thereafter he appeared before the Selection Board along his original documents on 22-11-1997 but when the list of candidates was published for admission to the First Year MBBS/BDS Course on 22-2-1998 in the Assam Tribune, his name did not find place in the select list and under the column meant for seats reserved for sons/daughters/brothers/sisters of the Martyrs of Assam Movement, it was stated that nobody was selected. Aggrieved, the respondent, Sri Jibeswar Barthakur who is the father of Sri Bikash Barthakur, filed Civil Rule No. 1133/98 and by the impugned judgment and order dated 15-6-1998, the learned single Judge held that although Sri Bikash Barthakur was the cousin of a martyr of Assam Movement, namely Anjan Barthakur, and was strictly not covered within the expression 'brothers of the Martyrs of Assam Movement' in terms of Rule 6(1) (g) of the 1996 Rules, he should have been given admission to the seat in relaxation of the said Rules as had been done by the authorities in various other cases. By the said judgment the learned single Judge directed the authorities to give admission to Sri Bikash Barthakur to a seat kept vacant pursuant to the order dated 11-3-1998 passed by this Court and also awarded the cost of Rs. 3000/- to be realised from the salary of the person responsible for not giving admission to Sri Bikash Barthakur. Aggrieved by the said judgment and order of the learned single Judge, the State Government has preferred this appeal.

(3.) At the hearing, Mr. B.C. Das, learned Additional Senior Government Advocate, Assam, submitted that a reading of the impugned judgment and order of the learned single Judge would show that the learned single Judge has cited the cases of Aminur Rahman, Tashmin Rahman, Polash Bora and Lakhimi Borah where relaxation of the relevant rules was granted by the authorities, and cousins of the Martyrs of Assam Movement were admitted to the MBBS and Dental Courses in Medical Colleges of State of Assam, but these were all cases prior to the Division Bench judgment of this Court in a batch of writ appeals in the case of State of Assam v. Rajeev Dey, reported in AIR 1996 Gau 40, in which the Division Bench clearly held that no such relaxation could be granted to cousins of the martyrs of Assam Movement for the purpose of giving admission to them to the seats reserved for sons/daughters/brothers/sisters of the Martyrs of Assam Movement. Mr. Das stated referring to the averments made in the affidavit-in-opposition in the civil rule that after there was criticism against such relaxation granted to cousins of the Martyrs of Assam Movement, the authorities have discontinued the practice of granting relaxation in favour of cousins of the Martyrs of Assam Movement for admission into the aforesaid reserved category of seats. Mr. Das further submitted that in any case, in the instant case, no application had been filed on behalf of the said Bikash Barthakur for relaxation and therefore, the authorities had also not considered at all the question as to whether or not relaxation could be granted to him on the facts and circumstances of the case, the learned single Judge could not issue a mandamus directing the authorities to admit Sri Bikash Barthakur by relaxing the relevant rule.