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IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
Biplab Kumar Sharma & Brojendra Prasad Katakey, JJ.
State of Nagaland and another – Appellants
Vs.
Asieno Sakhrie – Respondent
W.A. No. 2 (K) of 2005
Decided On: 16.09.2005
Compassionate Appointment - Regularization of Service - Nagaland Secretariat Subordinate Service Rules 1972, Office Memorandum dated 13.02.02, 23.05.78, 13.06.79 - The court discussed the provisions of compassionate appointment and the relevant office memorandums. It emphasized that the government had a prevalent scheme for compassionate appointment at the time of the petitioner's husband's death and that the petitioner was entitled to be considered for compassionate appointment. The court also highlighted the duty of the government as a model employer and the need for special consideration in cases of compassionate appointment. The court dismissed the appeal, stating that the petitioner's case fell in a different category from other casual employees and upheld the judgment for regularization of the petitioner's service.
Fact of the Case:
The petitioner, who lost her husband, a District Sports Officer, applied for appointment on compassionate grounds. She was appointed on a temporary basis and later on fixed pay. The court directed the regularization of her service due to her burden of three minor children.
Finding of the Court:
The court found that the petitioner was entitled to be considered for compassionate appointment and emphasized the duty of the government as a model employer. It dismissed the appeal and upheld the judgment for regularization of the petitioner's service.
Issues: The issues revolved around the petitioner's entitlement to compassionate appointment, the government's duty as a model employer, and the regularization of the petitioner's service.
Ratio Decidendi: The court emphasized the prevalent scheme for compassionate appointment at the time of the petitioner's husband's death, the duty of the government as a model employer, and the need for special consideration in cases of compassionate appointment. It also highlighted the petitioner's case falling in a different category from other casual employees.
Final Decision: The court dismissed the appeal and upheld the judgment for regularization of the petitioner's service.
B.K. Sharma, J.
1. This appeal is directed against the judgment and order dated 27.03.2003 passed in W.P. (C) No, 16 (K) of 2002 allowing the writ petition with a direction to regularize the service of the writ Petitioner as Typist in the regular scale of pay.
2. The Respondent who was the writ Petitioner lost her husband on 02.12.93 while he was in his service. He left behind the Petitioner along with her three minor children. The husband of the Petitioner was serving as District Sports Officer. Upon such death of the husband of the Petitioner, she applied for her appointment on compassionate ground and the Respondents who are the Appellants in this appeal, appoint her by order dated 24.06.94. She was appointed as Typist on contract basis for a period of three months w.e.f. 01.07.94 to 30.09.94.
3. After the initial appointment of the Petitioner, she was again appointed by order dated 19.03.97 as LDA for a period of six months. Although her appointment was stated to be on contract basis, she was appointed on compassionate ground in the Nagaland Civil Secretariat. The Petitioner was continued in her service by issuing various orders of appointment limiting the durations for temporary spells. By the last order dated 16.11.01 she was appointed as Typist on fixed pay of Rs. 3000/- in the Nagaland Civil Secretariat w.e.f. 15.10.01 for the period upto 31.03.02. Along with her, other 109 candidates were appointed and their such appointment was stated to be on recommendations of the Selection Committee. The name of the Petitioner figured at Serial No. 79 of the list.
4. Amidst of the aforesaid temporary spells of service of the Petitioner in the time scale of pay and eventually on fixed pay of Rs. 3000/- by order dated 16.11.01, the Petitioner made time to time representations urging for her appointment on compassionate ground and/or regularisation of her service. The Secretary to the Govt. of Nagaland in the Public Health Engineering Department by his communication dated 30.07.01 addressed to the Secretary to the Govt. of Nagaland in the Home Department, while forwarding one such representation of the Petitioner made the following endorsement.
Please find enclosed herewith an application for regularisation received from Mrs. Asieno Sakhrie which is self explanatory. This is a very genuine case requires compassionate consideration. I shall therefore be grateful if the application is given due consideration if there arises any opportunity to accommodate her.
5. It appears that the authority made an endorsement dated 16.8.01 on the body of the said communication to the following effect:
This case should not fall under the general category of casual appointees but should fall under the category of appointees on compassionate ground.
We may therefore take up the case along with other similar case for regularisation against clear vacancies.
6. The Respondents in the writ petition resisted the claim of the Petitioner by filing their counter affidavit. The basic ground urged on behalf of the Respondents was that since the Petitioner was appointed on contract basis, she had no right to get regularisation of her service. Referring to the Rules of recruitment, i.e. Nagaland Secretariat Subordinate Service Rules 1972, it was the case of the Respondents that unless the requirements of the provisions of the Rules were fulfilled, the Petitioner could not be regularized in her service. As regards the appointment of the Petitioner on fixed pay, it was the stand of the Respondents that such appointments were made on the basis of the recommendation of a Committee. Thus, there was no denial on the part of the Respondents that the Petitioner was selected for appointment on fixed pay basis. However, the Respondents did not deal with the basic issue as to whether the Petitioner was entitled to get appointment on compassionate ground. In their counter affidavit, they never denied the right of the Petitioner to get consideration for appointment on compassion
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