Appointment on compassionate ground can only be made against a sanctioned vacant post, and eligibility under government schemes is subject to the availability of such a post.

Iqbal Ahmed 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-III, 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) of 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