SHRI M. PAPAN KHIAMNIUNGAN v. THE STATE OF NAGALAND AND 6 ORS
Court: Gauhati High Court
Bench: HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Judgment date:
Case summary
Gauhati High Court judgment dated 2025-08-12. SHRI M. PAPAN KHIAMNIUNGAN v. THE STATE OF NAGALAND AND 6 ORS. Read the judgment and case details on LawSphereX.
Judgment text
Page No. # 1/14 GAHC020000832024 2025:GAU-NL:373 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/29/2024 SHRI M. PAPAN KHIAMNIUNGAN NOKHU VILLAGE P. O. NOKLAK TUENSANG DISTRICT NAGALAND VERSUS THE STATE OF NAGALAND AND 6 ORS THROUGH THE CHIEF SECRETARY TO THE GOVT. OF NAGALAND 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF NAGALAND P AND AR DEPT NAGALAND KOHIMA 3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF NAGALAND HOME DEPT. NAGALAND KOHIMA 4:THE DIRECTOR GENERAL OF POLICE NAGALAND KOHIMA 5:DEPUTY INSPECTOR GENERAL OF POLICE (HQ) NAGALAND KOHIMA 6:THE COMMANDANT 5TH NAP BATTALION PHEK NAGALAND Page No. # 2/14 7:SHRI. JOSEPH HESSO INSPECTOR GENERAL OF POLICE (HQ) NAGALAND KOHIM Advocate for the Petitioner : I. IMTI LONGCHAR, JOHN WALLING,KAMONGLA LONGKUMER,OBANGNENLA LONGCHAR,VIKHONO KISO,SUPONGWATI WALLING Advocate for the Respondent : GOVT ADV NL, BEFORE HON'BLE MR.
JUSTICE SOUMITRA SAIKIA Advocates for the petitioner : Mr. I. Imti Longchar, Advocate Advocate for the respondents : Mr. M Longkumer, Govt. Advocate Mr. I. Jamir, Advocate Date of hearing : 08. 11. 2024 Date of judgment : 13. 08. 2025 JUDGEMENT AND ORDER (CAV) Heard Mr. I. Imti Longchar, learned counsel for the petitioner. Also heard Mr. M. Longkumer, learned Junior Government Advocate, Nagaland for the respondents no. 1 to 6 and Mr. I. Jamir, learned counsel for the respondent no. 7. 2. This writ petition has been filed by the petitioner seeking appointment as a constable on compassionate grounds. The facts presented before this Court are that the elder brother of the present petitioner, namely, Sengnya Khim @ Senya Khim, who Page No. # 3/14 th was working as a Constable No. 53943 under “F Coy 5 Nagaland Armed Police, Phek, met with an accident while on duty and succumbed to his injuries on 10. 11. 2009 in the hospital.
Pursuant to his demised, the petitioner, being the younger brother of the deceased, applied on 05. 12. 2009 for appointment on compassionate grounds as Constable (GD) to the Commandant, Superintendent of Police, however, no action was taken by the respondent authorities on his application. Being aggrieved, he filed WP(C) No. 88(K)/2016, which was disposed of by a Coordinate Bench of this Court on 01. 06. 2016 with a direction to appoint the petitioner in accordance with the Office Memorandum dated 13. 03. 2002. The same, however, was not complied with prompting the petitioner to approach this Court again by filing WP(C) No. 15(K)/2017 which came to be disposed of on 14. 03. 2017. By the subsequent order, a direction was issued to the respondents to appoint the petitioner as and when his turn comes in terms of the seniority. However, by the impugned letter dated 03. 11. 2022, the Deputy Inspector General of Police (HQ), Nagaland, i. e. the respondent no.
5, informed the petitioner’s counsel that the petitioner’s case could not be considered. Aggrieved thereby, the present writ petition has been filed. 3. The respondents no. 1 to 6 have filed their affidavit-in-opposition contesting the case of the petitioner. It is stated therein that by OM Dated 13. 02. 2022, the scheme of compassionate appointment for dependents of the deceased Government Servants was partially modified by the OM dated 16. 01. 2012, whereby the brother/sister of the Government servant was excluded from being eligible to be appointed on being compassionate grounds. The said OM dated 16. 01. 2012 was again superseded by the OM dated 17. 09. 2015, whereby the only the spouse/son/daughter of the deceased employee was eligible for appointment on compassionate ground. Accordingly, the th petitioner being the brother of the deceased Constable No. 53943 under “F Coy 5 Nagaland Armed Police, Phek was not eligible to be considered under the Scheme of 2015. 4.
The Respondent No. 7, the Inspector General of Police (HQ), Nagaland, Kohima, also contested the case by filing an affidavit wherein he denied the allegations made Page No. # 4/14 against him, including the claim that there was any malafide intention in the non-consideration of the writ petitioner’s claims. 5. Learned counsel for the petitioner in support of his contention has referred to the judgment of the Apex Court rendered in State of Madhya Pradesh and Others vs. Ashish Awasthi reported in (2022) 2 SCC 157 and the judgment passed by the Coordinate Bench of this Court in WP(C) No. 141/2020 dated 12. 11. 2024. Learned counsel for the respondents in turn have pressed into service the judgment of the Apex Court rendered in NC Santhosh vs.
State of Karnataka and Others reported in (2020) 7 SCC 617 and submitted that it is the scheme of the Office Memorandum which is in force on the date of consideration shall be applicable for deciding the claim of a person, seeking appointment on compassionate ground. The reference is also made to the judgment of the Apex Court rendered in the State of Himachal Pradesh and Others. vs. Abhishek Kumar reported in (2024) 5 SCC 280. 6. Learned counsel for the parties have been heard. Pleadings on record have been carefully perused. The judgments pressed into service have also been carefully noted. 7. A careful perusal of the Judgment and Order dated 01. 06. 2016 passed in WP(C) No. 88(K)/2016 by the Kohima Bench, Gauhati High Court, shows that a coordinate Bench had disposed of the said writ petition filed by the petitioner at the motion stage with a direction to the respondents no. 4 & 5 to consider the application dated 05. 12.
2009 filed by the petitioner praying for compassionate appointment strictly in terms of the OM dated 13. 02. 2002 within a period of 3 (three) months from the date of receipt of a certified copy of this order. The said order is extracted below: “ The petitioner’s elder brother late constable Sengnya Khim @ Senya Khim died in harness on 10. 11. 2009 who was also the sole bread earner in the family. With the untimely demise of his elder brother, the petitioner's family faced great hardship. He therefore made an application for appointment on compassionate ground before the respondent No. 5 i. e. the Page No. # 5/14 commandant, 5th NAP Battalion, Phek, Nagaland. The sole grievance of the petitioner before this Court is that his application dated 05-12-2009 has not been considered by the respondents. It is also submitted that while the petitioner made the application for appointment on compassionate ground, the O. M.
dated 13-02-2002 was in force and therefore he is eligible for appointment on compassionate ground under the said O. M. The petitioner has also stated in paragraph-7 of the present writ petition that the petitioner has been pursuing his case all along and thereafter another legal notice was also served to the respondent No. 4 i. e. the Director General of Police, Nagaland, Kohima on 04-02-2015 and therefore there is now inordinate delay or laches on the part of the petitioner. Considering the limited prayer involved in this writ petition, this writ petition is disposed of at the motion stage with a direction to the respondent No. 4 & 5 to consider the application dated 05-12-2009 filed by the petitioner praying for appointment on compassionate ground strictly in terms of the O. M. dated 13-02-2002 within a period of 3(three) months from the date of receipt of a certified copy of this order. With the above observation and directions, this writ petition is disposed of. 8.
Thereafter, the petitioner again approached this Court by filing WP(C) No. 15(K)/2017, which also came to be disposed of vide judgment and order dated 14. 03. 2017 with the following order: “Late Constable Sengnya Khim @Senya Khim who was the elder brother of the petitioner died in harness on 10/11/2009. He was the sole earner in the family and with his untimely demise, the petitioner's family underwent grant hardship. Therefore, the petitioner made an application for appointment on compassionate ground before the respondent No. 5/Commandant, 5th NAP Battalion Phek, Nagaland. As the case of the petitioner was not considered, he filed W. P. (C)No. 88(K)/2016 before this Court. The said writ petition was disposed of by order dated 1/6/2015 directing the Director General of Police, Nagaland Kohima and the commandant, 5th NAP Battalion Phek to consider the application of the Page No.
# 6/14 petitioner for appointment on compassionate ground in terms of the Office memorandum dated 13/2/2002 issued by the Department of Personnel & Administrative Reforms, Nagaland within a period of 3(three) months from the date of receipt of a certified copy of the order. The present writ petition has been filed by the petitioner on the ground that despite direction given by this Court in W. P. (C) No. 88(K)/2016, no steps have been taken by the respondents for consideration of the petitioner for appointment on compassionate ground. Considering the facts and circumstances of the case, Ms. Livika, learned Government Advocate was directed to take instructions on 7/3/2017. Today, when the matter is called up, the learned Government Advocate has produced a communication dated 10/3/2016 wherein the list th of 5 NAP personnel who died on active service w. e. f. 13/2/2002 to 31/12/2016 are listed.
From amongst the list of 94 personnel, the name of the petitioner's late brother appears at Sl. /No. 39 and his year of death is indicated as 2009. Ms. Livika, learned Government Advocate submits that from the list of 94 NAP personnel, compassionate appointment has been made against Sl. No. 1 to 22 in terms of seniority and that the case of the petitioner would be considered as and when his turn come strictly in terms of the seniority as projected in the communication dated 10/3/2016. In that view of the matter, this writ petition is disposed of directing the respondents to strictly follow the seniority as indicated in the communication dated 10/3/2016 and thereafter consider the case of the petitioner as and when his turn comes. With the above observation and direction, this writ petition is disposed of. ” 9. By the first order which was passed on 01. 06. 2016 in WP(C) No.
88(K)/2016, there was a specific direction by this Court to consider the case of the petitioner strictly in terms of the OM dated 13. 02. 2022. That order not having been complied Page No. # 7/14 with, the petitioner again approached this Court by filing WP(C) No. 15(K)/ 2017 which was disposed of by order dated 14. 03. 2017 recording the submissions of the learned th Government Advocate that in the list of 5 Nagaland Armed Police Personnel, who died on active service with effect from 13. 02. 2002 to 31. 12. 2016 comprising of a list of 94 personnel, the name of the petitioner’s late brother appeared at Serial No. 39 and his year of death is indicated as 2009. The Court also recorded the submission of the learned Government Advocate that from the list of 94 Nagaland Armed Police Personnel, compassionate appointment has been made against the serial no.
1 to 22 in terms of the seniority and that the case of the petitioner would be considered as and when his turn come strictly in terms of the seniority as projected in the communication dated 10. 03. 2016. 10. There is no dispute that against these orders i. e. order dated 01. 06. 2016 passed in WP(C) No. 88(K)/2016 and order dated 14. 03. 2017 passed in WP(C) No. 15(K)/2017, no appeal or review has been filed by the respondent authorities. The explanation now sought to be placed before the Court is that in terms of the judgment of the Apex Court rendered in t eh matter of NC Santhosh (supra), the consideration of the applicant for a claim of compassionate appointment will be on the basis of the policy prevalent on the date of consideration. There is no quarrel on the proposition and law laid in NC Santhosh (supra) case which is also followed in Abhishek Kumar (supra). In Secretary to the Government Department of Education (Primary) and Others vs.
Bheemesh @ Bheemappa reported in (2021) 20 SCC 707, the Apex Court considered all the judgments earlier rendered in respect of compassionate appointment by the Apex Court. Paragraph 13 referred Bheemesh (supra) is quoted herein below: “13. The interpretation adopted by this Court varied depending upon the nature of the amendment. This can be seen by presenting the decisions referred to by the learned Senior Counsel for the respondent in a tabular column as follows: Page No. # 8/14 Scheme in force on Modified scheme Decision of this the date o death of which came into Court the government force after death servant The scheme of the The 1996 scheme Rejecting the claim of year 1996, which was subsequently the wife of the made the financial modified by policy deceased employee, condition of the issued in 2005, which this Court held that family as the main laid down few the application of the criterion, was in parameters for dependent made in force, on the date of determining penury.
the year 2000, after death of the One of the the death of the employee in the year parameters was to employee in the year 1999. see if the income of 1999, cannot be the family had been decided on the basis reduced to less than o a Scheme which 60% of the salary came into force in the drawn by the year 2005. employee at the time of death Therefore, the wife of the deceased employee claimed the consideration of the application on the basis of parameters laid down in the policy of the year 2005. The employee died But with effect from This Court held that on 1. 10. 2004 and the 4. 8. 2005 a new the application could applications for scheme for payment be considered only compassionate o ex gratia lump sum under the new appointment were was introduced in the Scheme, as it made on 6. 6. 2005 place of the old contained a specific and 14. 6. 2005. On Scheme. The new provision relating to the date of death and Scheme contained a pending applications.
on the date of the provision to the applications, a effect that all Scheme known as applications pending Compassionate under the old Scheme appointment Scheme will be dealt with was in force. only in accordance with the new Scheme. Page No. # 9/14 MGB Gramin Bank The employee died However, a new This Court took the vs. Charawarti Singh on 19. 04. 2006 and Scheme dated view that the new the application for 12. 06. 2006 came into Scheme alone would (2014) 13 SCC 583 appointment made force on 06. 10. 2006, apply as it contained on 12. 05. 2006. A providing only for ex- a specific provision (a two-Member Scheme for gratia payment which mandated all Bench) appointment on instead of pending applications compassionate compassionate to be considered grounds was in force appointment. under the new on that date. Scheme. Canara Bank vs. M. The employee died The 1993 Scheme This Court dismissed Mahesh Kumar on 10. 10.
1998 and was substituted by a the appeals filed by the application for Scheme for payment the Bank on account (2015) 7 SCC 412 appointment on of ex gratia in the of two important compassionate year 2005. But by the distinguishing (a two-Member grounds, was made time the 2005 features, namely, (i) Bench) under the Scheme of Scheme was issued, that the application the year 1993. It was the claimant had for appointment on rejected on already approached compassionate 30. 06. 1999. The the High Court of grounds were 1993 Scheme was Kerala by way of writ rejected in the year known as “Dying in petition and 1999 and the Harness Scheme. ” succeeded before the rejection order was leaned Single Judge set aside by the High vide a Judgment Court in the year dated 30. 05. 2003.
2003 much before The judgment was the compassionate upheld by the appointment Scheme Division Bench in the was substituted by an year 2006 and the ex gratia Scheme in matter landed up yea 2005; and (ii) before this Court that in the year 2014, thereafter. IN other the original scheme words, the Scheme of for appointment on the year 2005 came compassionate into force: (i) after grounds stood the rejection o the revived, when the application for civil appeals were compassionate decided. appointment under the old scheme; and (ii) after the order of rejection was set aside by the Single Judge of the Judge of the High Court. Page No. # 10/14 The employee died A new Scheme was In the light of the on 15. 1. 2004 and the brought into force decision in Canara application for 24. 07. 2004 after the Bank vs. M. Mahesh appointment was death o the Kumar, this Court made by his minor employee. Under this held that the case of son on 24. 01. 2004.
Scheme an ex gratia the claimant cannot On these dates, a compensation was be examined in the circular bearing provided for, subject context of the No. 56/79 dated to certain conditions. subsequent Scheme 04. 04. 1979 which After the coming into and that since the contained a Scheme force of the new family had taken full for appointment on Scheme, the claimant gratuity under the compassionate was directed by the old scheme, they grounds was in force bank to submit a were not entitled to But the Scheme fresh application seek compassionate provided for under the new appointment even appointment, only for Scheme. The claimant under the old those who do not opt did not apply under Scheme. for payment o the new Scheme, as gratuity for the full he was interested term of service of only in employee who died compassionate in harness. appointment and not monetary benefit.
Under the existing But by virtue of an After taking note of a Scheme referable to amendment to the reference made in SBI Rule 5 of the proviso to Rule 5, a vs. Sheo Shankar Karnataka Civil minor dependant Tewari to a lager Services should apply within Bench, a three- (Appointment on one year from the Member Bench of this Compassionate date of death of the Court held in NC Grounds) Rules, government servant Santhosh that the 1999, a minor and must have norms prevailing on dependant of a attained the age of 18 the date of deceased years on the date of consideration o the government making the application should be employee may apply application. Applying the basis for within one year from the amended consideration of the the date of attaining provisions, the claim for majority. appointment of compassionate persons already appointment. The made on Bench further held compassionate.
that the dependant o a government employee, in the absence of any vested right accruing on the date of death of the government Page No. # 11/14 employee, can only demand consideration o his application and hence he is disentitled to seek the application of the norms prevailing on the date of death of the government servant. After detailed analysis of the earlier precedent, the Apex Court held that “keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme.
But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law. If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family.
Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we Page No. # 12/14 have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. ” 11. The Apex Curt further held that there is no principle of statutory interpretation, which permits a decision on the applicability of a rule, to be based on an indeterminate or variable factor. The Apex Court held that the Rule of interpretation, which produces different results, depending upon what individuals do and do not do, is inconceivable. 12.
Having perused the judgments cited at the bar as well as the subsequent judgments rendered by the Apex Court, it is seen that there appears to be a conflict as to the yardstick that is to be adopted to decide the claims of compassionate appointments. One yardstick is to apply the scheme prevalent on the date of death of the employee and the other yardstick adopted in some other cases by the Apex Court is to apply the scheme prevalent on the date the application for compassionate appointment was considered. Because of this inherent conflict the issue was referred to be decided by the large bench in State Bank of India SBI vs. Sheo Shankar Tewari reported in (2019) 5 SCC 600. The matter is still pending before the larger bench.
The Apex Court in Bheemesh @ Bheemappa (supra) was of the considered view that the interpretation as to the applicability of the modified scheme should depend only upon a determinate and fixed criteria such as the date of death and not on a indeterminate for a variable factor such as the date of filing the application or the date of considerations of the said application being filed. 13. Coming to the fact of the present case, it is noticed that there are already 2 (two) orders passed by the Coordinate Benche in earlier 2 (two) writ petitions filed by the petitioner. By order dated 01. 06. 2016 passed in WP(C) no. 88(K)/2016, there was a specific direction to the respondents no. 4 & 5 to consider the application dated Page No. # 13/14 05. 12. 2009 filed by the petitioner praying for appointment on compassionate ground strictly in terms of the OM dated 13. 02. 2002 within a period of 3 (three) months from the date of receipt of a certified copy of the order.
This order was followed by another order passed by the said Coordinate Bench vide order dated 14. 03. 2017 passed in WP(C) No. 15(K)/2017 where the said writ petition was disposed of by recording the submissions made by the learned Government Advocate that between the period of 13. 02. 2002 to 31. 12. 2016, a list of 94 personnel of Nagaland Armed Police Personnel, who died on active service within the said period, contained the name of the petitioner’s late brother at serial no. 39 and his date of death indicated as 2009. The Court also recorded the submission of the learned Government Advocate that the case of the petitioner would be considered as and when his turn comes strictly in terms of the seniority projected in the communication dated 10. 03. 2016 which had given the list of 94 NAP personnel who died on active service. There is no explanation in the affidavit filed on behalf of the respondents as to why the direction contained in the order dated 01. 06.
2016 passed in WP(C) No. 88(K)/2016 was not carried out. There is no explanation as to why there is no review or appeal was filed against the said order. Accordingly, the said direction contained in the order dated 01. 06. 2016 in WP(C) No. 88(K)/2016 had attained finality. The said direction ordered by the Writ Court would require the compliance unless a higher Court interferes with the said decision as per the procedure. The respondents cannot be permitted to sit over a direction issued by the Writ Court and consequently, take the advantage of the Scheme, which came to be subsequently amended. The clear direction in the order dated 01. 06. 2016 passed in WP(C) no. 88(K)/2016 is that the case of the petitioner for appointment on compassionate ground has to be strictly considered in terms of the OM dated 13. 02. 2002 within a period of 3 (three) months.
Under such circumstances, the respondents cannot be permitted to take the benefit of the subsequent amendments to the scheme without proper explanation as to why the directions contained in the order dated 01. 06. 2016 was not carried out. The order passed by the Writ Court, being in the nature of mandamus, must be duly complied with, and failure to do so without proper explanation may expose the respondents to proceedings for contumacious conduct. Relief granted to a litigant by a Writ Court cannot be made Page No. # 14/14 infructuous by the refusal of the respondent authority to take necessary action in terms of the direction contained in the order. Under such circumstances and in the fact in the present case, the benefits sought to be taken by the respondents by referring to Apex Court judgments rendered in NC Santhosh (supra) will not come to the aid of the respondents. Accordingly, the claim of the petitioner has to be allowed.
This Court reiterates the direction contained in the order dated 01. 06. 2016 passed in WP(C) No. 88(K)/2016 directing the respondents to consider the claim of the petitioner in terms of the directions specified in the order dated 01. 06. 2016 in WP(C) No. 88(K)/2016. 14. In terms of the above directions and observations, the writ petition stands allowed. No order as to cost. JUDGE Comparing Assistant
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