JUDGMENT
I.A. Ansari, J.
1. Heard Ms. Lucy, learned Government Advocate, Nagaland for the appellants, and Ms. Z. Zhimomi, learned Counsel appearing on behalf of the writ petitioner-respondent.
The father of the respondent herein died, on 07.09.1999, in harness. The writ petitioner, who was eligible for being considered for regular appointment to the posts of grade-Ill, applied for appointment on compassionate ground. By an order, dated 10.04.2000, the petitioner was appointed to the post of LDA, on contract basis, with effect from 07.04.2000, for a period of six months, in Nagaland Civil Services Secretariat, Kohima, on a fixed pay scale, on compassionate ground, subject to the condition, inter alia, that his service would be terminable, at anytime, without giving notice from either side. By subsequent orders, his appointment to the said post was continued from time to time. In course of time, an interview was held for selection to the post of LDA. In this selection process, the petitioner participated and was selected. The petitioner was, however, not given regular appointment; rather, the petitioner was reappointed for a further period, with effect from 15.10.2001 to 30.03.2002, on fixed pay scale and his term of appointment was, thereafter, extended, vide order, dated 16.05.2003, from 01.04.2003 to 31.03.2004. Feeling aggrieved by such repeated extension of his period of service, the petitioner came to this Court and, with the help of an application made under Article 226 of the Constitution of India, sought for appropriate directions commending the respondents to consider his appointment on compassionate ground as regular appointment and to allow him to continue in service with all incidental service benefits. This writ application gave rise to WP (C) No. 73(K)/2003. It was also the grievance of the writ petitioner that one Rhekro Mero, whose father had died subsequent to the death of the writ petitioner’s father, was given regular appointment on compassionate ground by order, dated 06.05.2002, and the petitioner’s case was ignored. By order, dated 17.03.2005, a learned Single Judge directed the petitioner’s appointment as LDA, with effect from 07.04.2000, to be treated as a regular appointment to the post of LDA. Aggrieved by the directions, so given, the State has preferred this appeal.
2. While considering the present appeal, what needs to be noted is that a scheme for compassionate appointment was formulated by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, and this scheme was published under Office Memorandum, dated 23.05.1978. The Government of Nagaland adopted the said scheme by Office Memorandum, dated 01.08.1978. For all practical purposes, therefore, the scheme for compassionate appointment, published by the Government of India under its Office Memorandum, dated 23.05.1978, aforementioned, became applicable to various Departments under the Government of Nagaland. Thereafter, Government of Nagaland, Department of Personal and Administrative Reforms (AR) Branch, published, vide office Memorandum, dated 13.02.2002, a comprehensive scheme for appointment on compassionate ground for the dependants of deceased Government servant. This scheme was brought into force with effect from 01.04.2001.
3. From the facts narrated above, it clearly follows that when the petitioner’s father died on 07.09.1999, the petitioner was entitled to be considered for appointment, on compassionate ground, in terms of the scheme published by the Government of India on 23.05.1978 and adopted by the Government of Nagaland on 01.08.1978. That the writ petitioner was eligible for consideration and appointment under the said scheme has never been in dispute and this aspect of the case has not, in fact, been disputed even in the present appeal. In this backdrop, when the scheme, published on 13.02.2002, is considered, it becomes transparent that a person, who was, otherwise, entitled to be considered for appointment on compassionate ground in terms of the scheme, published under Office Memorandum, dated 23.05.1978, aforementioned, had not been rendered ineligible for being considered for appointment under scheme, published on 13.02.2002, unless the subsequent scheme, dated 13-02-2002, had, otherwise, disqualified him. In the present case, there is nothing to show that the petitioner does not satisfy the conditions for appointment on compassionate ground as embodied in the scheme published on 13.02.2002 except that this scheme has come into effect on 01.04.2001. Viewed thus, it is clear that the petitioner’s case ought to have been considered in terms of the scheme published on 23.05.1978 and, thereafter, in terms of the scheme dated 13.02.2002.
4. What is, now, of immense importance to note is that an appointment on compassionate ground, under the said two schemes, can be made only against sanctioned vacant post and it is for this reason that the schemes aforementioned make it clear that an appointment, on compassionate ground, shall be treated as a regular appointment. Existence of a vacant sanctioned post is, therefore, a condition precedent for appointment on compassionate ground. In the present case, the petitioner’s order of appointment, dated 10.04.2000, clearly reveals that it was an appointment on contract basis at fixed pay. There is nothing, on record, to indicate that when the petitioner was appointed on contract basis on 10.04.2000, a vacant sanctioned post of LDA, in the said Secretariat, was available. Though the petitioner has pointed out, as already indicated hereinabove, that a person, whose father died subsequent to the demise of the petitioner’s father was given appointment, the fact remains that the petitioner did not seek any relief against the said appointee. The appointment, thus, given to Rhekro Mero could not have been interfered with by the learned Single Judge and has not been rightly interferred with. We have nothing before us to show that at any point of time, there was a regular vacant post available for appointment of the petitioner on compassionate ground, particularly, when we notice that under the scheme, published on 23.05.1978, the appointment, on compassionate ground, was limited to the extend of 3% of the posts falling vacant in a calendar year and under the new scheme published on 13.02.2002,5% of the vacancies, arising in a year, meant for direct recruitment can be filled up by making appointment on compassionate ground.
5. Because of what have been discussed and pointed out above, we are firmly of the view that in the facts and circumstances of the present case, particularly, when a vacant sanctioned post was not shown to have been existence, a direction to treat the petitioner’s appointment as regular appointment, with effect from 07.04.2000, could not have been given. At the same time, the petitioner’s case could not have been ignored as has been sought to he ignored by the State respondents.
6. What emerges from the above discussion is that the petitioner has been eligible for appointment on compassionate ground as LDA under both the schemes aforementioned and the only hurdle in the way of petitioner’s appointment is that there must be a post available within the quota fixed for appointment of persons on compassionate ground so that the appellants can give requisite appointment to the writ petitioner.
7. Considering therefore, the matter in its entirety and in the interest of justice, this appeal is partly allowed. While the direction given by the impugned order, dated 17.03.2005, commanding the appellants to treat the writ petitioner’s appointment to the post of LDA as regular appointment, with effect from 07.04.2000, is hereby set aside, the appellants are hereby directed to appoint the petitioner, on compassionate ground, against vacant sanctioned post of LDA as and when such a post falls vacant in terms of the scheme, dated 13.02.2062, aforementioned. Until the time the petitioner is appointed under the said scheme, no other appointment of any person, whose father or spouse died after the death of the petitioner’s father, shall be made.
8. With the above observations and directions, this appeal is disposed of. No order as to costs.