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2018 DIGILAW 1568 (GAU)

Noghile Wanth v. State of Nagaland

2018-10-31

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. Atsula, learned counsel for the petitioner. Also heard Ms. S. Mere, learned Government Advocate appearing for the State respondents. 2. The elder sister of the petitioner Smti Yasula Apon who was appointed as a Typist upon being selected by the Nagaland Public Service Commission, died in harness on 16.10.1999. Upon her death, the petitioner being the younger sister, made an application for being appointed on compassionate basis. 3. Law regarding compassionate appointment in the State of Nagaland has been provided under the Cabinet Memorandum No. AR-8/8/78 dated 17.01.2002. Clause 3(2) of the Cabinet Memorandum provides that the appointment of compassionate ground shall be made only on a regular basis as a direct recruitment, provided the regular vacancies for the purpose are available in the Department where the deceased had earlier served. In the Cabinet Memorandum, it is also provided that the appointment on compassionate ground may be given, amongst others, to brother or sister in case of unmarried Government servant. Although she made her application for compassionate appointment, the respondent authorities instead of appointing the petitioner, had appointed another person, namely, Smti Kevilasanuo Chale against the post which stood vacant upon the demise of the elder sister of the petitioner. 4. Being aggrieved, the petitioner preferred a writ petition being W.P.(C) No. 195(K) of 2004 which was disposed of by the judgment and order dated 09.06.2005 by which the appointment of the aforesaid Smti Kevilasanuo Chale was set aside and the petitioner was ordered to be appointed as a Typist on compassionate ground. 5. Accordingly, by the order dated 28.02.2006, the petitioner was appointed as a Typist on a fixed pay and the said appointment was made subject to termination without giving any notice by further providing that the appointment shall not confer any right to claim for regularization. Being aggrieved by the order of appointment made on fixed pay, the petitioner preferred W.P.(C) No. 259(K) of 2011, which was disposed of by the order dated 13.06.2012 directing the respondent authorities to pay regular scale of pay to the petitioner inspite of she having been appointed on a fixed pay basis. The said judgment and order dated 13.06.2012 was carried to an appeal by the State authorities resulting in W.A. No. 14(K) of 2012. The said judgment and order dated 13.06.2012 was carried to an appeal by the State authorities resulting in W.A. No. 14(K) of 2012. The writ appeal was disposed of by judgment and order dated 26.4.2017 wherein, the State respondents were directed to regularize the service of the petitioner against the post of Typist which was earlier occupied by her deceased sister. 6. It is taken note of that the Division Bench while issuing the said direction had arrived at a conclusion that the appointment of the petitioner being made against the regular sanctioned post, the State respondents were bound to give the petitioner a regular scale of pay as applicable to the post in which she was appointed. It was further held that the petitioner was appointed under the die-in-harness scheme against the regular sanctioned post of her deceased sister and therefore, the State respondents are bound to pay regular scale of pay attached to the said post. 7. Pursuant to the direction of the Division Bench, the service of the petitioner was regularized by the order dated 08.06.2017 of the Additional Chief Secretary (Home) to the Government of Nagaland. The order of regularization of 08.06.2017 inter-alia provides that the regularization is being made on compassionate ground and that the past service rendered by the petitioner shall be counted towards her pension, leave etc. by further providing that the seniority shall be counted from the date of regularization. 8. In other words, the order of regularization of 08.06.2017 is an order with prospective effect which merely takes into account the past service of the petitioner for the purpose of pension, leave, etc. alone. Even the seniority in the cadre is to be counted from the date of regularization. The order of 08.06.2017 is being assailed in this writ petition on the ground that under the scheme of compassionate appointment as provided in the Cabinet Memorandum dated 17.01.2002, the petitioner is entitled to be regularly appointed from the date of her initial appointment on compassionate ground. 9. The State respondents, on the other hand, contends that the petitioner had been regularized pursuant to the direction of the Division Bench in the judgment and order dated 26.04.2017 wherein, there is no specific provision that the petitioner be regularized from the date of her initial appointment. 9. The State respondents, on the other hand, contends that the petitioner had been regularized pursuant to the direction of the Division Bench in the judgment and order dated 26.04.2017 wherein, there is no specific provision that the petitioner be regularized from the date of her initial appointment. Accordingly, the order dated 08.06.2017 is said to have been issued under the correct premise and strictly in pursuance of the Division Bench order. 10. Upon hearing the learned counsel for the parties, the core issue for determination in this writ petition would be as to whether the petitioner is entitled compassionate appointment on a regular basis from the date of her initial appointment or her appointment should be construed to be prospective only from the date from which she was regularized in service. As indicated above, a plain reading of the scheme for compassionate appointment as provided under the Cabinet Memorandum dated 17.01.2002 clearly provides that all compassionate appointments are to be made on a regular basis alone and there is no scope under the Cabinet Memorandum to make any compassionate appointment either on a fixed pay or in any other manner. The said aspect of the Cabinet Memorandum had also been discussed by the Division Bench in its judgment and order dated 24.06.2017 by providing that the appointment having been made against the regular sanctioned post, the State respondents are bound to give the writ petitioner a regular scale of pay as applicable to the post to which she was appointed. 11. In any view of the matter, a plain reading of the Cabinet Memorandum dated 17.1.2002 clearly provides that all compassionate appointments are to be made on regular basis alone and the scheme does not leave any scope for the State respondents to make compassionate appointment in any other manner. 12. Further, it is taken note of the order dated 08.06.2017 of the Additional Chief Secretary (Home) to the Government of Nagaland provided regularization of the service of the petitioner on compassionate ground. Upon reading the scheme for compassionate appointment as contained in the Cabinet Memorandum dated 17.01.2002, I do not find that there is any provision therein enabling the State respondents to regularize the service of a person who was appointed on compassionate ground. Upon reading the scheme for compassionate appointment as contained in the Cabinet Memorandum dated 17.01.2002, I do not find that there is any provision therein enabling the State respondents to regularize the service of a person who was appointed on compassionate ground. The absence of such provision also conform to the provision that all compassionate appointments are to be made only on a regular basis, and it having being so there cannot remain any requirement for a further regularization. In such view of the matter, I am of the view that the order of regularization of the service of the petitioner is not sustainable in its present form as per the scheme for compassionate appointment as contained in the Cabinet Memorandum dated 17.01.2002. 13. The only provision in the Cabinet Memorandum dated 17.1.02 is that all appointments made on compassionate ground shall be on a regular basis which again it is also in conformity with the judgment and order dated 26.04.2017. I am of the view that the initial appointment of the petitioner made on 28.02.2006 has to be construed to be an appointment made on a regular basis and accordingly, it is declared as such. 14. Having so declared, it is also provided that the petitioner is entitled to all consequential benefits that are available for a regular appointment and accordingly, the State respondents are directed to provide the petitioner with the required consequential benefits from the date of her initial appointment i.e. 28.02.2006. 15. In terms of the above, writ petition is allowed.