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2021 DIGILAW 40 (GAU)

State of Nagaland v. Imonenla Jamir

2021-01-27

NELSON SAILO, S.HUKATO SWU

body2021
JUDGMENT : 1. Heard Mr. T.B. Jamir, learned Senior Addl. Advocate General, Nagaland for the appellants as well as Mr. S. Temjen, learned counsel for the respondent/writ petitioner. 2. This intra-Court appeal is directed against the Order dated 26.02.2020 passed by the learned Single Judge of this Court in WP(C) No. 198/2019 whereby the State appellants have been directed to appoint the petitioner on compassionate ground within a period of 2 (two) months from the date of receipt of a copy of the order in accordance with the Office Memorandum dated 17.09.2015, which is a scheme for making compassionate appointment under the State Government. 3. Brief facts of the case essential for disposal of the instant appeal may be noticed at the outset. 4. The case of the petitioner is that her father, who was working as Agriculture Field Assistant in the District Agriculture Office, Mokokchung died in harness on 12.04.2010. After the death of her father, she submitted an application for compassionate appointment on 05.05.2010 to the Director of Agriculture Department. Thereafter, on 09.04.2018, she again submitted a similar application. As her case was not considered, she filed WP(C) No. 230(K)/2018 and the same was disposed of by this Court on 22.11.2018 by directing the writ petitioner to submit a fresh application alongwith the requisite documents within a period of 2 (two) weeks and on receipt of the same, the Director of Agriculture Department, Govt. of Nagaland should take necessary steps for considering her application at the earliest and not later than 3 (three) months from the date of the order, as per the relevant rules. 5. The writ petitioner accordingly submitted a fresh application before the Director of Agriculture. Thereafter, vide Communication dated 09.07.2019, the Addl. Director, Agriculture Department informed the petitioner's counsel that on the basis of the Office Memorandum dated 17.09.2015, the Department was maintaining a list of candidates for compassionate appointment in chronological order and that the petitioner was placed at Serial No. 11 in the list. As such, the Department could not appoint her as on the date of the Communication but she will be considered as per the scheme as and when her turn comes. As such, the Department could not appoint her as on the date of the Communication but she will be considered as per the scheme as and when her turn comes. Being aggrieved with the response of the Department, the petitioner approached this Court again by filing WP(C) No. 198(K)/2019 seeking a direction to the respondent authorities to appoint her on compassionate ground in accordance with the relevant compassionate scheme without further delay since the respondent authorities has exceedingly made appointments to Grade-III and Grade-IV posts in the Department, without giving due reservations and percentage for compassionate appointment. The learned Single Judge, thereafter, vide the impugned Order dated 26.02.2020 disposed of the writ petition by directing the respondent authorities to appoint the petitioner on compassionate ground within a period of 2 (two) months from the date of the order, as already stated herein above. Thus being aggrieved, the official respondents as appellants have filed the instant writ appeal. 6. Mr. T.B. Jamir, the learned Senior Addl. Advocate General submits that the learned Single Judge could not have directed the appellants to appoint the writ petitioner on compassionate ground without taking into consideration other eligible persons who are similarly placed and are senior to the writ petitioner in the list of applicants for appointment on compassionate ground. The learned State Counsel further submits that since the writ petitioner submitted her application for compassionate appointment only after the earlier writ petition i.e., WP(C) No. 230(K)/2018 was disposed of on 22.11.2018, the application of the petitioner has to be considered only from that date. However, the learned Single Judge has taken into consideration the application submitted by the petitioner in the year 2010. The learned Single Judge accordingly came to the finding that 61 numbers of posts were available for compassionate appointment and that the case of the petitioner not having been considered, directed the respondent authorities to appoint her on compassionate ground within a period of 2 (two) months from the date of order. The learned State Counsel therefore submits that the impugned Judgment & Order cannot be sustained and the same should be set aside. In support of his submission, he relies upon the case of Union of India & Ors., Vs. Draupadi Behara (Smt.) & Anr., reported in (2005) 2 SCC 342 . 7. Mr. The learned State Counsel therefore submits that the impugned Judgment & Order cannot be sustained and the same should be set aside. In support of his submission, he relies upon the case of Union of India & Ors., Vs. Draupadi Behara (Smt.) & Anr., reported in (2005) 2 SCC 342 . 7. Mr. S. Temjen, the learned counsel for the petitioner, on the other hand, submits that the learned Single Judge rightly directed the State respondents to appoint the petitioner on compassionate grounds, inasmuch as, despite the writ petitioner having submitted her application as far back as on 05.05.2010 and thereafter on 09.04.2018, she was not considered for appointment on compassionate ground. In fact, between 2010 to 2018, as many as 383 persons were appointed by the Department of Agriculture, Govt. of Nagaland. By applying 5% reservation of the vacancies for compassionate appointment as prescribed by the earlier Office Memorandum dated 13.02.2002 and also by applying 50% of the vacancies in a year as prescribed by the subsequent Office Memorandum dated 17.09.2015, the number of posts that would be reserved for appointment on compassionate ground would come to 61 posts. Had the case of the writ petitioner been considered by the respondent authorities, she could have easily been accommodated against the 61 posts. 8. The learned counsel further submits that as per the reply to the RTI application submitted by the writ petitioner, 53 Grade-III posts were said to have been filled up between 01.01.2018 up to the date the information was furnished i.e., 16.08.2019. The information provided however does not reflect about the appointments made on compassionate ground, if any. Therefore, even on this ground, the respondent authorities are only liable to be directed to appoint the writ petitioner on compassionate ground. The learned counsel thus submits that the learned Single Judge is fully justified in passing the impugned order and the same does not call for any interference by the writ Appellate Court. 9. We have heard the submissions advanced by the learned counsels for the rival parties and we have perused the materials available on record. 10. Facts undisputed are that the father of the writ petitioner died in harness on 12.04.2010 while working as Agriculture Field Assistant in the District Agriculture Office, Mokokchung. 9. We have heard the submissions advanced by the learned counsels for the rival parties and we have perused the materials available on record. 10. Facts undisputed are that the father of the writ petitioner died in harness on 12.04.2010 while working as Agriculture Field Assistant in the District Agriculture Office, Mokokchung. As per the scheme for compassionate appointment in vogue at the relevant time i.e., Office Memorandum dated 13.02.2002, 5 % reservation of the vacancies is to be made for compassionate appointment. The scheme was thereafter revised vide Office Memorandum dated 17.09.2015 by which 50% of the vacancies during a year came to be reserved for compassionate appointment. According to the writ petitioner, as many as 383 persons were appointed in the Department of Agriculture, Govt. of Nagaland between the years 2010 to 2018. By applying the reservation of vacancies for compassionate appointment as provided by the Office Memorandums dated 13.02.2002 and 17.09.2015, as many as 61 posts should have been filled up on compassionate basis. This fact has not been disputed by the official respondents. However, it is contended on their behalf that since the writ petitioner submitted her application afresh only after Order dated 22.11.2018 was passed by the learned Single Judge in WP(C) No. 230(K)/2018, the writ petitioner cannot claim consideration for compassionate appointment out of her turn and that she is at serial No. 11 of the waiting list prepared by the Department concerned. 11. In the Order dated 22.11.2018 by which WP(C) No. 230(K)/2018 was disposed, the learned Single Judge observed that it could not be ascertained whether the application for appointment on compassionate ground submitted by the writ petitioner on 05.05.2010 and subsequently on 09.04.2018 reached the Director, Department of Agriculture and therefore, the writ petitioner should file a fresh application for compassionate appointment. The petitioner in terms of the said direction submitted her representation afresh and thereafter, the respondent authorities have placed her at Serial No. 11 in the list of applications for appointment on compassionate ground. Being aggrieved, the petitioner filed the third writ petition. 12. From the reply given to the writ petitioner to her RTI application, as many as 53 persons were appointed in the Grade-III posts under the Agriculture Department between 01.01.2018 till 16.08.2019. Being aggrieved, the petitioner filed the third writ petition. 12. From the reply given to the writ petitioner to her RTI application, as many as 53 persons were appointed in the Grade-III posts under the Agriculture Department between 01.01.2018 till 16.08.2019. Amongst the appointed persons, it is seen that as many as 6 (six) persons were appointed after 22.11.2018 i.e., the date on which W.P. (C) No. 230(K)/2018 was disposed. The Department maintains that Smti. Avika Swu and Smti. Martha Lichoni P. Patton were both appointed on 02.01.2018 on compassionate basis and their names appear at Sl. No. 24 and 28 respectively in the list of appointees attached to the reply to the RTI application. Their names also find place at Sl. No. 2 and 1 respectively in the list of applicants for compassionate appointment prepared by the Director of Agriculture which is annexed as Annexure-A in the Affidavit-in-Opposition of the State respondent Nos. 1 to 4 in the writ petition W.P.(C) No. 198(K)/2019. Further, in the subsequent list dated 05.02.2020 annexed as Annexure-B in the same affidavit, the name of the petitioner is at Sl. No. 11 and her application is shown to have been received on 18.04.2018. It may be stated herein that in W.P.(C) No. 230(K)/2018, the learned Single Judge had noticed that the application of the petitioner said to have submitted on 09.04.2018 was received by the District Agriculture Officer, Mokokchung on 09.04.2018 but it could not be ascertained as to whether the same had reached the Director of Agriculture. From the list dated 05.02.2020 annexed as Annexure-B of the counter affidavit as stated above, the petitioner's application apparently reached the Office of the Director of Agriculture and that is why, the date of its receipt has been shown as 18.04.2018. The revised compassionate Scheme issued vide Office Memorandum dated 17.09.2015 provides that an applicant will be given waiting list number or receipt of the application if there are no regular posts available. The father of the petitioner died in harness on 12.04.2010 and the only traceable application of the petitioner is the application received on 18.04.2018 and she appears at Sl. No. 11 of the list prepared for the purpose. There are as many as 10 applicants who submitted their application before 18.04.2018. The father of the petitioner died in harness on 12.04.2010 and the only traceable application of the petitioner is the application received on 18.04.2018 and she appears at Sl. No. 11 of the list prepared for the purpose. There are as many as 10 applicants who submitted their application before 18.04.2018. Therefore, in absence of any material to show that the petitioner submitted her application prior to 18.04.2018 or even 09.04.2018, we are of the view that the petitioner cannot be said to have a legitimate grievance for claiming an out of turn consideration for appointment on compassionate basis. 13. In the case of Union of India & Ors., Vs. Draupadi Behara (Smt.) & Anr., (supra), the Apex Court in the facts of that case and which in fact was also a case of compassionate appointment held that the High Court at the most, could have asked for consideration of the case of the respondent concerned along with other applicants for compassionate appointment, if any, in terms of the operative scheme. We find that the said principle will also apply to the present case. 14. In the result, we find merit in the appeal and set aside the impugned Order dated 26.02.2020 passed by the learned Single Judge in WP(C) No. 198/2019. The appellants shall consider the case of the writ petitioner for compassionate appointment as per her turn and in terms of the scheme. With the above observation and direction, the writ appeal is disposed of.