WP(C) 3355/2007 BEFORE HON’BLETHE CHIEF JUSTICE MR RS GARG HON’BLE MR JUSTICE BP KATAKEY JUDGMENT AND ORDER(ORAL) RS GARG,CJ. This order shall finally dispose of WP( C) No.3355/2007, WP ( C) No.5095/2007 and WP( C) No.5096/2007. 2. It appears that the matters have been placed before us because the l earned Single Judge in his order dated 29.06.2007 passed in WP( C) No.3355/2007 observed that the petitioner was claiming the relief in view of the order dated 12.3.2007 passed by the High Court in WP( C) Nos 6403 of 2006 and 6405 of 2006. The learned Judge observed that the order dated 12.3.2007 passed in WP( C) Nos 6403 and 6405 of 2006 were required to be reviewed in view of the order dated 18.6.2007 passed by the High Court in WP( C) No. 5061 of 2006 reviewing its e arlier order dated 13.11.2006. 3. Before coming to the controversy it is to be noted that Assam Publ ic Services ( Appointment of family members of persons killed by extremists/ter rorists) Rules, 1992 was promulgated under Notification No. ABP.181/91/65 dated 8.4.1992 observing that in exercise of powers conferred by the proviso to Articl e 309 of the Constitution of India, the Government of Assam was pleased to make the said rules regulating the appointment in public services under the Governm ent of Assam of the next of kin of persons who had been killed in violent activ ities /in the hands of the extremists since 1.1.1985. From a perusal of the said preamble of the rules, it would clearly appear that the said rules were brought into force with a laudable object that the kin and kith of the persons who di ed in the violent activities or in the hands of the extremists do not suffer unn ecessarily. Rule 3 provided that the rules shall apply to all the services and po sts under the Government of Assam, recruitment to which is made through the Comm ission or otherwise than through the Commission. Rule 4 provided that subject to the provisions of the rules whenever any recruitment to services and posts referred to in rule 3 was made, only one af fected candidate from one family who applied and was eligible (emphasis supplie d) under the normal rules should be given appointment to a Government job , or j ob under State Government Undertaking/ Board. It is also to be noted that on 29.7.95 in partial modification of the Office Memorandum No. RR.82/90/6 dated 25.4.91 relating to the sanction of ex-gratia to the next of kin ,killed in extr emists/terrorists violence, the Government of Assam was pleased to formulate a policy with immediate effect to grant ex-gratia of Rs.1,00,000/- to the next of kin of persons killed. However, it is to be noted that the Office Memorandu m dated 29.7.1995 is not a part of the rules. The Office Memorandum was inde pendent of the rules and was to govern the cases where somebody had died in the extremists activities/terrorists violence. 4. It appears that said 1992 rules were repealed by the State gover nment on 22.6.2004 vide Notification No.ABP.121/92/Pt-V/135 and by another Not ification No.ABP. 121/92/Pt-V/136 of even date a policy was brought into existe nce observing that in place of 1992 rules, the government had decided to give r elief to the affected families as provided under the said notification. 5. The notification provided that a preference to the Members of th e affected families in recruitments to the government and semi government job s shall be given. Preference to such certified persons in selection of benefic iaries under self-employment generation scheme shall be given. The ex-gratia pa yment shall stand enhanced to Rs.3,00,000/-. Alternative means of livelihood to families of earning victims of extremists violence shall be determined by the district authorities after assessing the economic conditions of each fami ly separately and free education to the children of the poor affected families till they become eligible to earn would be provided. Even at this stage it is to be understood that 1992 rules were framed under proviso appended to Article 3 09 and those were therefore statutory rules. However, the subsequent notificat ion dated 29.7.1995 and the notification dated 22.6.2004 are administrative instructions. 6. It is to be noted that a person can claim a right under the sta tutory rules either for appointment and/or for grant of ex-gratia payment if th e rules so provide. It is not in dispute before us that 1992 rules did not pr ovide for any ex-gratia payment but they provided that kith and kin of the dece ased would be entitled to make an application for his appointment and such ap pointment would be offered provided he proves his eligibility. Even under 1992 rules , the appointment was not as a course. Such a person was required to ma ke an application and then he was also required to show his eligibility for app ointment to the particular post for which such an application was filed. 7. The question arose before this Court that in a case when an appli cation was filed before 22.6.2004 ,whether repeal of the rules would adversely a ffect the right of consideration for appointment and whether in such case the fate of the pending application or the right of appointment, would be lost in v iew of repeal of 1992 rules. 8. In the matter of Ms Manju Narzary vs. State of Assam, WP( C) No. 2947/2005 decided on 28.9.2005 a learned Single Judge observed that if a reque st for appointment was pending on the date on which the old rules were repeale d, having regard to the statutory object of such claim cannot be rendered non e st in law by repealing notification. It was also observed that the directions c ontained in the notification dated 22.6.2004 to return the pending application s before the Deputy Commissioner reveals the intention of the authorities conc erned to have the same processed afresh in terms of the parameters contained t herein. The said order passed in WP (C)No.2947/2005 on one side directed that t he application made prior to 22.6.2004 was to survive after coming in to force of the new policy but at the same time, observed that the intention o f the authorities concerned to have said application processed afresh in terms of the parameters contained in the notification dated 22.6.2004, In our opin ion, the observations made in the matter of Ms Manju Narzary [WP( C) No.2947/20 05] in so far as the claim that any application pending before 22.6.2004 would survive are correct observations, but the learned Single Judge made a wrong obs ervation and recorded a wrong finding in observing that such pending application was required to be considered in light of the notification dated 22.6.2004. 9. If the rules provided that only one affected candidate from one family who applied and was eligible under the normal rules shall be given appo intment then making of such an application by an eligible person was a must to confer a right upon the person for consideration of application for appointment. The consideration for appointment is based upon two criteria, namely, making of an application and to show that such candidate was eligible under the normal rules for appointment to a government job. If a person who had a right to make an application prior to 22.6.2004 did not make an application then his right t o make an application would be lost and in such case, he cannot come to the co urt saying that he is entitled to appointment in accordance with the rule 4 of 1992 rules. However, such a person who has not made application under 1992 ru les would not become absolutely helpless or remediless, because the government itself has said that after repeal of the 1992 rules, it had decided to consid er certain measures in place of the said rules to give relief to the affected families. After repeal of the rules if the government wanted to provide some re lief and succor to the affected families , then on enforcement of the policy after 22.6.2004 the State would not be entitled to say that on one side they w ould refuse appointment and at the same time, they would also refuse ex-grat ia payment of Rs.3,00,000/-. 10. The learned counsel for the State however, contended that on 5. 8.2004 the State government in continuation of its scheme dated 22.6.2004 had observed that the measures are prospective and the cases which have already bee n decided as regards ex gratia payment etc. , before issuance of the letter sho uld not be opened again. In our opinion, the letter dated 5.8.2004 does not tak e into consideration that the persons who could not make application before 22. 4.2004 would lose their right of making application for appointment, however ap propriate ex-gratia payment has to be made in their favour. Once it is held that all persons who are held entitled under 1992 rules for appointment and under 1995 notification for ex-gratia payment then as a corollary it has to be held t hat they would be entitled to be considered under the scheme dated 22.6.2004. 11. In WP( C) No. 5095/2007 it is noticed that the person was last heard in 1995 and similarly in WP( C) No.5096/2007 it is said that the person wa s last heard in 1990 and therefore, there has to be a presumption under section 108 of the Indian Evidence Act of their civil death and in such cases the righ t to make application accrued in favour of the dependent/claimant before coming into force of the scheme of 2004, therefore, they are entitled to appointme nt. In our opinion, if entire latitude is extended in favour of the petitioner s and it is presumed in WP( C) No.5095/2007 that the person is presumed to be de ad in 2002 and also in WP( C) No.5096/2007 the person is presumed to be dead in 1997, then too the petitioners would not be duty bound to inform us that they had made application prior to 22.6.2004 and such application was made by one eli gible person. 12. As there is nothing on record to show, suggest or prove that a pplications were made prior to 22.6.2004, we hold that the petitioners lost thei r right to make application, but ,however, they would certainly be entitled to the benefits flowing from the scheme dated 22.4.2004. The petitioners would be entitled to enhanced amount of ex gratia payment after adjustment of the amoun t already paid to them and they would also be entitled to benefit of preferenc e in appointment and also under self-employment generation scheme as provided i n the said scheme. 13. If the petitioners have not made any application till date, the y would be entitled to make application to the competent authority claiming in dulgence of such authority for consideration of their cases. In light of the ab ove observations, we do not think that we are still required to delve into the reference made to us because in our opinion ,our order would clarify all the di sputes. 14. All the petitions are accordingly disposed of.