Gauhati High Court asks Home Department to appoint daughter of havildar killed in an ambush

STAFF REPORTER

GUWAHATI: The Gauhati High Court has directed the Commissioner and Secretary to the Government of Assam, Home Department, to take immediate steps to issue the appointment letter to Trishna Moni Ray within a month from the date of receiving the certified copy of this order. Petitioner Trishna Moni Ray is the daughter of Havildar Mukunda Chandra Ray who had been killed in firing by extremists on October 30, 2008.

Hearing both the parties in the case (WP-C/9564/2019), the bench comprising Justice Achintya Malla Bujor Barua took note of the counsel for the Personnel B Department of the State Government that the "that the recommendation made by the District Authority had been sent back to the Deputy Commissioner, Bongaigaon for consequential decision. The minutes of the meeting held on 16.09.2016 was in furtherance of the requirement of the order dated 04.05.2016 in WP(C) No. 1993/2015, where there was a requirement of a consequential decision to be taken by the Deputy Commissioner."

In the minutes, in respect of the petitioner, it is provided as extracted:

"DLC discussed the application of Miss Trishna Moni Ray, D/O Late Hav

Mukunda Chandra Ray, R/O Village, PO & PS- Manikpur, District- Bongaigaon. Relevant records relating to the killing of Late Hav Mukund Chandra Ray, father of the applicant by the handiwork of extremists on 30/10/2008 as per the report submitted by Commandant 8th APBn, Abhayapuri were verified and found authentic. The application of Miss Trishna Moni Ray along with the attached documents also verified and found to be in order.

Since it is a fact that the applicant's father was killed by extremists on 30/10/2008, hence the applicant is eligible for appointment in any post of the Government departments/ Public sector undertakings/ Boards/ Authorities etc under 'The Assam Public Services (Appointment of Family members of Person Killed by extremists/ terrorists) Rules, 1992- Repeal Thereof'. After thorough verification of relevant OMs and in compliance with the order of the Hon'ble High Court in W.P.(C) No.1993/2015 the DLC decided to recommend the application of Miss Trishna Moni Ray for appointment against the available Grade - IV vacancy in the O/O Commandant 8th APBn, Abhyapuri (Sanctioned vide No. HMA.1482/82/130 dated 7/2/1992) for the year 2016."

The bench said, "A reading of the afore-extracted portion of the minutes of the Committee dated 16.09.2016 makes it discernable that the application of the petitioner Trishna Moni Ray daughter of Havildar Mukunda Chandra Ray, who was admittedly killed in extremist violence on 30.10.2008, while he was on official duty for the State, was found to be authentic upon the verification. It further provides that it is a fact that the father of the petitioner was killed by an extremist on 30.08.2008 and, therefore, the applicant is eligible for appointment in any post of the Government Departments/ Public sector undertaking/ Boards/ Authorities etc., under the Rules of 1992. Accordingly, the minutes provided that the Committee had decided to recommend the petitioner Trishna Moni Ray for appointment against available Grade-IV vacancies in the office of the Commandant 8th APBn, Abhayapuri concerning sanction no. HMA.1482/82/130 dated 07.02.1992."

The Court further said, "Although there was a recommendation by the Committee under the Rules of 1992, for the reasons unknown, the application of the petitioner was again placed before the DLC of Bongaigaon district for Compassionate Appointment in its meeting of 10.09.2019. The DLC very conveniently while considering the application of the petitioner provided that the application was not made within one year but was made after six years two months and therefore, rejected."

The Court said, "Firstly, as already observed, as the petitioner was recommended by the appropriate a committee under the Rules of 1992, there was no requirement of the authorities to again place it before the DLC of regular compassionate appointment, which itself would be a non-application of mind. Secondly, the DLC, even if, it has the jurisdiction to entertain the matter, had acted arbitrarily, since it did not even bother to look into as to what is the claim of the petitioner and simply took a mechanical stand that the application had been made after one year of the death and therefore, rejected."

The Court said, "As already noted, as the application of the petitioner under the Rules of 1992 had been given its due consideration and the petitioner was recommended for an appointment, there was no requirement under the law to place it before the DLC for regular compassionate appointment and therefore, all such decisions that the DLC may have taken would be without jurisdiction and accordingly, stands rejected."

The Court further said, "As the petitioner had been duly recommended by the appropriate Committee under the Rules of 1992, after verification of all the aspects required to be verified, we see no reason as to why the recommendation should not be acted upon, meaning thereby to give appointment to the petitioner against the Grade-IV post in the office of the Commandant 8th APBn, Abhayapuri, as recommended. We also take note that it is not only a case where the father of the petitioner was killed in extremist violence but it was done in the circumstance when the father of the petitioner was performing his duties for the protection of the State and had to face the bullets of the extremist while performing his duties. It is rather unfortunate that the respondent authorities had totally lost sight of the aforesaid fact and had merely been mechanically moving around the matter without having any reason for doing so. We are also of the view that the petitioner being the daughter of police personnel who was killed by extremist bullets while performing his duty for the State, a legal right has accrued in favour of the petitioner to be considered for appointment under the Rules of 1992. At the same time, the father of the petitioner is a Government employee, there is also a parallel and unconnected right to be considered for appointment under the regular law for compassionate appointment. The two legal rights being parallel and unconnected with each other, the respondent authorities cannot mix up both and by doing so, ultimately rejects the legitimate claim of the petitioner."

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