Page No.# 1/10 GAHC010023202022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1073/2022 MANARONJAN SAIKIA S/O SRI PURANANDA SAIKIA, R/O VILL-TITATALA AND P.O.- BARIBANDHA, P.S.-LAHORIGHAT, DIST-MORIGAON, ASSAM VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-6 2:THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM FOOD AND CIVIL SUPPLIER DEPARTMENT DISPUR GUWAHATI-6 3:THE COMMISSIONER AND SECRETARY AGRICULTURAL DEPARTMENT DISPUR GUWAHATI-6 4:THE COMMISSIONER AND SECRETARY IRRIGATION DEPARTMENT DISPUR GUWAHATI-6 5:THE SECRETARY TO THE GOVT. OF ASSAM ASSAM ACCORD DEPARTMENT DISPUR GUWAHATI-6 6:THE DIRECTOR Page No.# 2/10 AGRICULTURE DEPARTMENT KHANAPARA GUWAHATI-781022 7:THE DIRECTOR FOOD AND CIVIL SUPPLIES DEPTT BHANGAGARH GUWAHATI- 8:DIRECTOR FOOD AND CIVIL SUPPLIER DEPARTMENT G.S. ROAD BHANGAGAR Advocate for the Petitioner : MR. I A HAZARIKA, MRS. S ISLAM,MR. M A CHOUDHURY,MR. R K GOSWAMI Advocate for the Respondent : GA, ASSAM, SC, IRRIGATION,SC, AGRI. DEPARTMENT BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 19.03 .2025 Heard Mr. I.A. Hazarika, learned counsel for the petitioner and Mr. J.K. Goswami, learned Addl. Senior Government Advocate, Assam for the respondent Nos. 1, 2, 5, 7 and 8. Also heard Ms. R. Borah, learned Standing Counsel, Agriculture Department, Assam for respondent Nos. 3 and 6 and Mr. N. Upadhayay, learned Standing Counsel, Irrigation Department, Assam for respondent No. 4. 2. By filing this writ petition, the petitioner has prayed for a direction to the respondent authorities for appointment in any suitable Page No.# 3/10 post commensurate with his qualification by giving preference in terms of the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999 ( “the Rules of 1999”). 3. The petitioner is an educated unemployed youth belongs to O.B.C. category and has passed the Higher Secondary School Examination in the year, 2008 and having diploma in computer application. The petitioner belongs to a category of an affected family being next of kin of person, whose father Purananda Saikia had become permanently disabled on account of participation in the Assam Movement. 4. It is the contention of the petitioner that as per the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999, he is entitled to be appointed in any suitable vacant post in commensurate with his qualification. Having eligibility and qualification, the petitioner had approached the Department of Food & Civil Supplies, Govt. of Assam for appointment in the reserved category of posts for the candidates of Martyrs and victims’ family as per the provisions of the said Rules of 1999. On being not considered, he has approached the Hon’ble Chief Minister of the State on 27.01.2022, seeking his intervention for the grievance which he has raised before the said Department as well as the other departments in Page No.# 4/10 the State. 5. Mr. I. A. Hazarika, learned counsel for the petitioner submits that although the petitioner has approached the Department of Food & Civil Supplies and thereafter to the Hon’ble Chief Minister, he in fact applied for appointment pursuant to the advertisement issued by the State Level Recruitment Commission against Class IV post, for which he has been issued an Admit Card for recruitment of Class IV post under the Government of Assam. He submits that, he does not have any instruction as to whether the petitioner has been qualified in the said recruitment process conducted by the State Level Recruitment Commission, but the respondent authorities including the State Level Recruitment Commission are duty bound to adhere to the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999. Therefore, he submits that a direction may be issued to the respondent authorities to appoint the petitioner by adhering to the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999. 6. Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam submits that in view of the State Level Recruitment Commission not been made party, being the necessary party, the writ petition is not maintainable. At the same time, there are no pleadings Page No.# 5/10 in the writ petition as regards to the recruitment process conducted by the State Level Recruitment Commission. He further submits that the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999 would be applicable in the case where a candidate in any recruitment to the post, is qualified as the same provides for giving preference in making appointment. Until the candidate is qualified, there is no question of giving preference in terms of the said Rules of 1999. He, therefore, submits that the writ petition is not maintainable for non-joinder of the necessary parties and even otherwise on merits also, same is liable to be dismissed. 7. I have considered the submissions of the learned counsel for the parties, and also perused the materials placed during the course of hearing as well as the relevant provisions of the Assam Public Services (Preferential Appointment) Rules, 1999. 8. Admittedly, the petitioner belongs to the category of an affected family being next of kin of person as his father has been rendered permanently disabled on account of participation in the Assam Movement. 9. Considering the grievance raised by the petitioner, which is essentially for direction to the respondent authorities for appointment Page No.# 6/10 in any suitable post commensurate with his qualification by giving preference in terms of the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999, I deem it apposite to refer to the said Rules of 1999. 10. It is noticed that the Assam Public Services (Preferential Appointment) Rules, 1999 is a Rule made under the proviso to Article 309 of the Constitution of India, which regulates the appointment in public service under the Govt. of Assam, who has sacrificed their lives or who have rendered physically disabled permanently by bullet injury or otherwise while participation in the Assam Movement on the problem of foreigners. 11. Rule 2 (a) of the Assam Public Services (Preferential Appointment) Rules, 1999 defines “Affected Candidate” means a candidate who is a member of the family of a martyr or a member of a family of a person who has been rendered physically disabled and possess a certificate to that effect issued by the Deputy Commissioner of the respective District. Rule 3 provides that these rules shall apply to all the services and posts under the Government of Assam, recruitment to which are made through the Assam Public Service Commission or otherwise than Page No.# 7/10 through the Assam Public Services Commission. Rule 4 provides that wherever any recruitment to the services and posts referred to in Rule 3 is made, one affected candidate who is otherwise eligible under the normal rules shall, ceteris paribus be given preference in making appointments. The preference shall be subject to reservation in favour of candidates who are members of the Scheduled Castes, Scheduled Tribes (Plains and Hills), Other Backward Classes (including more other Backward Classes), Ex-Servicemen and physically handicapped persons. It further provides that appointment of any affected candidate who is also a candidate of the category mentioned in the preceeding proviso shall be set of against the percentage of reserved for the members of that particular category. 12. Bare perusal of the above provisions shows that the next of the kin of a person who sacrificed their lives or who have rendered physically disabled permanently by bullet injury or otherwise while participating in the Assam Movement on the problem of foreigners, preference in the recruitment/ appointment to any post or services under the Government of Assam would be given. The Rules appears to be a piece of beneficial scheme framed by the State Government. 13. As noted above, there is no dispute that the petitioner is the Page No.# 8/10 next of kin of a person who has been rendered physically disabled permanently as his father has been rendered physically disabled, for which the competent authority has issued a certificate to that effect. So far as the applicability of the Rules is concerned, there is no dispute for such applicability for recruitment of services under the Government of Assam. 14. In the present case, what is to be determined is to whether the petitioner is entitled to preferential treatment for appointment in terms of the aforesaid Rules of 1999. At the time of hearing, learned counsel for the petitioner has placed a copy of the Admit Card of the petitioner issued by the State Level Recruitment Commission for recruitment of Class IV post under the Government of Assam to project that the petitioner had participated in the recruitment process in the year 2022. However, the learned counsel for the petitioner could not show any document or any instruction for that matter indicating whether the petitioner has been qualified in the selection process. 15. It is true that the provisions of the Rules of 1999 particularly Rule 4 would be applicable in case of recruitment to the post or services under the Government of Assam provided the candidate is qualified in such recruitment process. There would not be Page No.# 9/10 any blanket application of the Rules and the appointment cannot be made on any services by just providing preference without there being any selection or recruitment process as per relevant Rules. 16. Having considered the above, I am of the view that no direction can be given to the respondent authorities to appoint the petitioner in terms of the provisions of Rules of 1999 as it would run counter to the intent and purpose of the aforesaid Rules, 1999. However, since the Rule is indisputably still in vogue, the respondent authorities are obligated to adhere to the provisions of the said Rules in selection or recruitment of any post of services under the State Government. 17. As noticed above, there is no clarity as to whether the petitioner has qualified in the selection process undertaken by the State Level Recruitment Commission for recruitment to the post of Class-IV post. Thus, this court is constraint to take a view that no relief to the petitioner in respect of the recruitment which appears to have already been undertaken can be granted. Therefore, the relief sought for by the petitioner is rejected. However, as the Rules of 1999 is still in vogue, it is observed that if the petitioner qualified in any post, he may be provided preference in terms of the above Rules of 1999. It is expected that the respondent authorities including the Page No.# 10/10 State Level Recruitment Commission shall adhere to Section 4 of Rules of 1999. 18. With the above directions and observations, the writ petition stands closed. No order as to costs. ..... JUDGE Comparing Assistant