JUDGMENT : Heard Mr. Tongpok Pongener, learned counsel for the petitioner and Mr. Moa Imchen, learned Senior Government Advocate appearing on behalf of the respondent Nos. 1 to 4 and Mr. N K Luikham, learned counsel appears on behalf of respondent No.5. 2. This is an application under Article 226 of the Constitution of India challenging the communication letter No.IPR/EST-1/2013(Vol-I)/360 dated 25.10.2019 and the order dated 29.10.2019, whereby the respondent No. 5 was appointed to the post of Chowkidar in the Office of the District Public Relations Officer, Longleng, Nagaland. The brief facts of the instant case is that the petitioner’s father late Mr. L Taulong Phom died in harness on 17.03.2008 while rendering service as Office Peon under the establishment of the SDIO, Longleng leaving behind the petitioner and his unemployed mother. The petitioner, after the death of his father, submitted an application for appointment on compassionate ground against the vacancy created by the demise of his father but the Department appointed a landowner candidate against the said vacancy. The petitioner was, however, appointed to the post of Sweeper on fixed pay as per the decision of the Committee till further orders from 01.06.2008 to 30.11.2008 vide order dated 28.05.2008. The petitioner, thereupon filed applications for extension of his services but to the dismay of the petitioner, in spite of various requests being made, his services were not extended. At this stage, it may be relevant herein to mention that in the OM dated 17.09.2015, the policy of the Government of Nagaland in respect of the Compassionate Appointment Scheme for State Government Employees who died in harness is stipulated. On perusal of the said scheme reveals that the appointment on compassionate ground shall be given only to one of the family of the deceased that is the spouse or son or daughter only. Clause 3, 4, 7 and 8 of the OM being relevant are quoted herein below:- “3. Appointment on compassionate grounds shall be made only on a regular basis to direct recruitment posts and only if regular vacancies meant for that purpose are available in that Department where the deceased Government employee was serving. Applicants shall have no claim to appointment under this scheme in any other Department other than the Department where the deceased employee was serving. Applicants shall have no claim to appointment under this scheme in any other Department other than the Department where the deceased employee was serving. However, for the NCS officers, the appointment may be considered under the establishment of the Commissioner, Nagaland, or the Nagaland Civil Secretariat. 4. Compassionate appointments may be made to the posts falling under the combined direct recruitment quota of Group C or D. The ceiling for compassionate appointments of 5% of the direct recruitment vacancies in Group C and Group D posts has been done away with provided such appointments do not exceed 50% of the vacancies during a year. The appointment against posts for direct recruitment in Group C should be in the entry grade only. Further, appointment against any post for direct recruitment in Group C should be limited to those posts which are outside the purview of NPSC for recruitment. 7. Applicants under this scheme should be eligible and qualified for the posts in all respects under the provisions of the relevant Recruitment Rules. No relaxation in eligibility will be made in any circumstance, except to the extent provided under this scheme. Date of joining by a person appointed under this scheme shall be treated as the date of his/her regular appointment. All Departments shall maintain a waiting list in chronological order for compassionate appointments. An applicant will be given the waiting list number on receipt of the application, if there are no regular posts available. 8. The upper age limit of applicants under this scheme may be relaxed in exceptional cases up to a maximum of 5 years in addition to existing relaxation, if any. The lower age limit shall, however, in no case be relaxed below 18 years of age.” 3. From a conjoint reading of the Clauses of the OM, it would reveal that appointment on compassionate ground shall be made only on regular basis to direct recruitment posts and only if regular vacancies meant for that purpose are available in the Department where the deceased employee was serving. Clause 4 stipulates that compassionate appointment should be made on compassionate ground to Group C and D posts and such appointment should not exceed 50% of the vacancies during a year. Clause 4 stipulates that compassionate appointment should be made on compassionate ground to Group C and D posts and such appointment should not exceed 50% of the vacancies during a year. Clause 7 stipulates that the Department shall maintain a waiting list in chronological order for compassionate appointment and the applicant will be given the waiting list number on receipt of the application if there is no regular post available. Clause 8 stipulates that the upper age limit of the applicant under the scheme may be relaxed in exceptional cases up to a maximum of 5 years in addition to existing relaxation, if any. 4. In the instant case, as has been contended by the learned counsel for the petitioner, the petitioner was appointed temporarily for a period of six months and the said employment was not extended thereafter. The petitioner was also not given any waiting list number as required under clause 7 of the OM. 5. The further case of the petitioner is that one Ongyep Phom, who was working in the establishment of DPRO Office Longleng was released from the establishment after completion of 35 years of service. In view of the accruing resultant vacancy, the petitioner applied for the said post to the office of the Directorate of Information and Public Relations, Nagaland, Kohima and the said application was duly forwarded by the District Public Relations Officer, Longleng to the Directorate Information and Public Relations, Nagaland. The record further reveals that on 11.07.2019, the Additional Directorate Information and Public Relations Nagaland, Kohima had forwarded the application for appointment to the post of Chowkidar under DPRO, Longleng to respondent No. 2. The relevant portion of the said record is quoted herein below:- “Sir With reference to the subject cited above, I have the honour to forward herewith an application received for appointment for the post of Chowkidar against the vacancy caused by Shri. Ongyep Phom, Chowkidar who has retired on dated 28.02.2019 under DPRO, Longleng. The applicants are:- 1. Shri T. Bauaok Phom son of Late L. Taulom Phom, Peon on compassionate ground. 2. Shri.O. Chingkam Phom son of Shri. Ongyep Phom (Retired) fresh candidate. 3. Miss. Y. Phule Phom fresh candidate. The Department recommend SI No.1 Shri T. Bauaok Phom for appointment under Compassionate appointment scheme as per the Government notification vide No-AR-8/8/78 dated Kohima, the 17th September 2015. 2. Shri.O. Chingkam Phom son of Shri. Ongyep Phom (Retired) fresh candidate. 3. Miss. Y. Phule Phom fresh candidate. The Department recommend SI No.1 Shri T. Bauaok Phom for appointment under Compassionate appointment scheme as per the Government notification vide No-AR-8/8/78 dated Kohima, the 17th September 2015. I therefore request you to kindly look into the matter and convey administrative approval for appointment of Chowkidar.” 6. The petitioner contends that to his utter surprise, the Deputy Secretary to the Government of Nagaland convened the Administrative approval to the appointment of respondent No.5 against the resultant vacancy created out of the retirement of Shri. Ongyep Phom, Chowkidar vide impugned letter dated 25.10.2019 and it was stated in the communication that it had the approval of the Hon’ble Chief Minister of Nagaland. Direction was also given that further orders may be issued from the Office of the respondent No.3 in terms that the said administrative approval. On the basis of the said communication, the impugned order dated 29.10.2019 was issued, whereby the respondent No. 5 was appointed as Chowkidar in the Office of the PDRO, Longleng, Nagaland. The petitioner being aggrieved by such action on the part of the respondent authorities have approached this Court under Article 226 of the Constitution of India by challenging the said orders dated 25.10.2019 and the order dated 29.10.2019 and also seeking a direction that the petitioner should be appointed on compassionate ground. This Court, by an order dated 13.11.2019, issued notice and in the interim stayed the impugned orders dated 25.10.2019 as well as 29.10.2019, and the said interim order continues till date. 7. The respondent No. 1 to 4 had filed an affidavit-in-opposition wherein it has been mentioned that the service of the petitioner could not be extended vide order dated 19.09.2018, due to paucity of fund. 7. The respondent No. 1 to 4 had filed an affidavit-in-opposition wherein it has been mentioned that the service of the petitioner could not be extended vide order dated 19.09.2018, due to paucity of fund. Thereafter the application of the petitioner for extension of his service was turned down by the authority as the petitioner had approached after a gap of 9 years vide letter dated 19.09.2018 and it was also mentioned that the petitioner had attained the age of 38 years and as such the petitioner could not have been considered to the appointment of the post of Chowkidar and the appointment of the respondent No. 5 was made because of the exigencies on temporary basis and subject to termination by issuing one month’s notice and as such, there was no illegality or arbitrariness on the part of the respondent authorities. Surprisingly it may be relevant herein to mention that the affidavit of the respondent authorities did not disclose on what basis the respondent No.5 was chosen over the petitioner and another candidate who were in contention for the said post. To the surprise of this Court the answer which the respondent authorities ought to have given in their affidavit-in-opposition is given by the respondent No. 5, who pointed out a different aspect of the matter stating inter alia that the appointment of respondent No. 5 was on the basis of Land Ownership Basis Policy of the Government of Nagaland. However the impugned orders dated 25.10.2019 and 29.10.2019 or even the application which was forwarded for appointment by the Additional Director, Information and Public Relations as already quoted herein above refers to respondent No. 5 as a fresh candidate. 8. I have heard the learned counsel for the parties and I have perused the materials on record. The learned counsel for the petitioner submits that the petitioner is entitled in terms of the OM dated 17.09.2015 to be appointed on compassionate ground. He submits that Clause (3) of the said Memorandum clearly stipulates that the appointment on compassionate ground should have been made on regular basis to direct recruitment posts and in the instant case, immediately upon the death of his father, the petitioner ought to have been appointed in the said Department. He submits that Clause (3) of the said Memorandum clearly stipulates that the appointment on compassionate ground should have been made on regular basis to direct recruitment posts and in the instant case, immediately upon the death of his father, the petitioner ought to have been appointed in the said Department. He further submits that when the petitioner had submitted his application for appointment on compassionate ground, the mandate Clause (7) was not followed, thereby not giving the petitioner any waiting list number on receipt of his application. The learned counsel submits that what has been done in the instant case is that the petitioner was appointed for 6 months and thereafter, the service of the petitioner was not extended, although the petitioner, on various occasions requested for his extension and that from the affidavit of the respondent Nos. 1 to 4, they had duly admitted that the service of the petitioner was not extended due to paucity of funds. The learned counsel further submits that Clause (8) of the O.M dated 17.09.2015, permits relaxation of age under exceptional circumstances up to a maximum age of 5 years and therefore, the learned counsel submits that as of today, the petitioner is still eligible as per his age to be appointed on compassionate ground. The learned counsel for the petitioner further submits that the application was forwarded by the Additional Director, Information and Public Relations which clearly shows the petitioner had applied on compassionate ground while the other two candidates had applied as fresh candidates, and he submits in view of the OM dated 04.06.2016, it is also the policy of the Government of Nagaland that all direct recruitment vacancies under the DPRO shall be filled up by Indigenous Inhabitants of the respective district through selection process on the basis of the said OM. He further submits that while the petitioner could have been considered on account of the resultant vacancy by virtue of the OM dated 17.09.2015, however, the respondent No.5 could not have been appointed since no selection process has taken place in terms with the OM dated 04.06.2016. 9. Mr. Moa Imchen, learned Senior Government Advocate submits that the petitioner should have been considered on compassionate ground only on regular basis and in absence of the vacancy the petitioner could not have been considered on account of compassionate appointment. 9. Mr. Moa Imchen, learned Senior Government Advocate submits that the petitioner should have been considered on compassionate ground only on regular basis and in absence of the vacancy the petitioner could not have been considered on account of compassionate appointment. He further submits that the policy of the Government of Nagaland as stipulated in the OM dated 17.09.2015 stipulates that there is a waiting list in chronological order for compassionate appointment. He further submits that the respondent authorities had taken the decision of appointment of the respondent No. 5 on temporary basis and taking into account the exigencies and as such there is no question of arbitrariness involved. However, he submits that there was no selection process. The learned counsel for the respondent No.5 submits that respondent No. 5 was granted appointment on the basis of Land Ownership in terms of the notification dated 05.03.2018 and as such the learned counsel submits that there is no illegality in the appointment being made in favour of respondent No.5. 10. From a perusal of the material on record and as well as the contention of the parties, it appears that the petitioner is eligible for being considered for compassionate appointment in terms of the OM dated 17.09.2015. However, the respondent authorities even after the accrual of the resultant vacancy after the death of the petitioner’s father on 17.03.2008 and till date have not considered the case of the petitioner on the ground of compassionate appointment. There is also no mention in the affidavit-in-opposition that the petitioner has been granted any waiting list number on receipt of the petitioner’s application so that the petitioner could claim his entitlement in terms of Clause (7) of the OM dated 17.09.2015. Although Clause (3) of the said OM dated 17.09.2015, stipulates that compassionate appointment should be made on regular basis to direct recruitment posts but the petitioner, on 25.08.2008, was appointed on temporary basis for a period of six months i.e. from 01.06.2008 to 30.11.2008 and this aspect of the matter was duly admitted by the respondent authorities in the affidavit-in-opposition and it was stated inter alia that it was due to paucity of funds, the petitioner’s service was not extended. It is rather surprising that the respondent authorities thereafter had rejected the petitioner’s application for extension on the ground that the petitioner had approached after nine years. It is rather surprising that the respondent authorities thereafter had rejected the petitioner’s application for extension on the ground that the petitioner had approached after nine years. It is further surprising that when the petitioner’s application is pending, how the respondents can state that the petitioner had approached after 9 years. 11. It appears from the records that although there was no mention as to why the petitioner’s application for the post of Chowkidar was rejected but in the affidavit-in-opposition it has been mentioned that the petitioner is over aged. It is pertinent herein to mention that the petitioner had applied in the year 2008 and since then had been waiting for his appointment. Now, with the resultant vacancy having arisen with the retirement of one Shri. Ongyep Phom, the petitioner ought to have been considered. Clause (8) of the OM dated 17.09.2015 permits relaxation of the age on exceptional circumstances. The rights of the petitioner to claim compassionate appointment cannot be deprived on such technical grounds more so when after the vacancy which arose due to the petitioner’s father’s death, the same which ought to have been given to the petitioner was given to some other person on Land Ownership Basis Policy. Now, let this Court take into consideration the appointment of the respondent No.5 The application which was forwarded as has already been quoted herein above reveals that the respondent No.5 was shown as a fresh candidate. Neither in Administrative approval order dated 25.10.2019 nor in the impugned order dated 29.10.2019, there is any mention whatsoever that the respondent No.5 was appointed on the Land Ownership basis. It is the contention of respondent No.5 that she was appointed on Land Ownership basis. At this stage it reminds this Court of Supreme Court’s Judgement in Paragraph 8 in the case of Mohinder Singh Gill Vs. Chief Election Commission, reported in (1978) 1 SCC 405 , which is quoted herein below: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older” 12. Thus, the affidavit of the respondent No.5 is a clear example where the public orders are sought to be explained on the basis of reasons which have come into existence subsequently as an after thought. Now let this Court consider as to whether the respondent No.5 could have been appointed without following the due process as it is not the case of the official respondents that respondent No.5 was appointed on the basis of the policy of Land Ownership basis of the State of Nagaland. The OM dated 04.06.2016 stipulates the policy for recruitment of Grade IV to the District Office and as per the learned Government Advocate, the said OM is still in force. It appears from the said OM that the vacancy to the post of Grade-IV shall be filled up through open advertisement through the respective Deputy Commissioners. In the instant case, nothing has been done as regards to appointment of Respondent No. 5 which is in clear violation of the OM. Accordingly the order of Administrative Approval dated 25.10.2019 and the order dated 29.10.2019 are in violation of the said OM dated 04.06.2019 and accordingly, this Court, therefore, sets aside the administrative approval dated 25.10.2019 as well as the impugned order dated 29.10.2019. Accordingly the order of Administrative Approval dated 25.10.2019 and the order dated 29.10.2019 are in violation of the said OM dated 04.06.2019 and accordingly, this Court, therefore, sets aside the administrative approval dated 25.10.2019 as well as the impugned order dated 29.10.2019. As regards to the entitlement of the petitioner, this Court directs the respondent authorities to consider the case of the petitioner in terms of the OM dated 17.09.2015 and taking into consideration that the petitioner had filed his application as in the year 2008 itself and the said consideration is still pending, as it would appear from the records, the petitioner may be considered against the resultant vacancy arising out of the retirement of Shri. Ongyep Phom. The respondent authorities shall complete the exercise within a period of three months from the date of receipt of a certified copy to this order. 13. With the above directions the writ petition is disposed of.