Smti. Y. Sethrongla Vs State of Nagaland and 3 Ors.

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GAHC020008962025

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2026:GAU-NL:490-DB

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WA/50/2025

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SMTI. Y. SETHRONGLA

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D/O YANGTONGSE, RESIDENTY OF DUNCAN BOSTI, DIMAPUR, NAGALAND, MULTI TASKING STAFF (OFFICE PEON) OFFICE OF THE SUPERINTENDENT, EXCISE AND PROHIBITION, DIMAPUR NAGALAND

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VERSUS

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STATE OF NAGALAND AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF NAGALAND, DEPT. OF EXCISE AND PROHIBITION, NAGALAND KOHIMA

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2:THE COMMISSIONER EXCISE AND PROHIBITION NAGALAND DIMAPUR

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3:TRHE SUPERINTENDENT EXCISE AND PROHIBITION DIMAPUR NAGALAND

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4:MR. ATHOBU MEYASE S/O RULIE MEYASE R/O RULIE MEYASE R/O TSUUMA VILLAGE P.O. MEDZHIPHEMA CHUMOUKEDIMA NAGALAN

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Advocate for the Petitioner : SENTIYANGER, KONLI BUCHEM,NOCKLEI M

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KONYAK,WAPANGLEMLA,YUKHAKOKLA,MAONGKALA,KEVISERIENUO

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Advocate for the Respondent : GOVT ADV NL,

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BEFORE:

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HON'BLE MR. JUSTICE DEVASHIS BARUAH HON'BLE MRS. JUSTICE HELEN DAWNGLIANI

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Advocate for the Petitioner(s): Mr. Sentiyanger, Adv.

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Advocate for the State respondent(s): Ms. Inaholi, Govt. Adv.

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Advocate for the respondent No. 4: Mr. Limawapang, Adv.

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Date on which judgment is reserved

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: 16.09.2026

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Date of pronouncement of judgment Whether the pronouncement is of the operative part of the judgment ? Whether the full judgment has been pronounced?

: 16.09.2026

: N/A

: Yes

JUDGMENT & ORDER (ORAL)

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(D.Baruah,J)

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Heard Mr. Sentiyanger, learned counsel appearing on behalf of the Appellant. Also heard Ms. Inaholi, learned Government Advocate appearing on behalf of the Respondent Nos. 1, 2 and 3

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and Mr. Limawapang, learned counsel appearing on behalf of the Respondent No. 4.

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2. At the outset we would like to observe that the Respondent No. 4 in the present appeal was the petitioner in WP(C)/141/2024, and the Appellant in the present appeal was the respondent No. 4 in the said writ petition. For the sake of convenience, we would refer to the status of the parties as they stood in the writ petition.

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3. The present appeal is directed against the common judgment and order passed by the learned Single Judge in WP(C)/140/2024 as well as WP(C)/141/2024. It is only the Appellant herein who was the Respondent No. 4 in WP(C)/141/2024, has assailed the common judgment and order dated 23.09.2025.

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4. Before dealing with the grounds of objections which are raised in the present Memo of Appeal, we find it relevant to take note of the brief facts which led to the filing of WP(C)/141/2024.

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5. The Writ Petitioner on coming to learn that there were three posts of Multi Tasking Staff (MTS) lying vacant under the establishment of Superintendent of Excise & Prohibition, Dimapur, i.e., the Respondent No. 3 herein submitted an application requesting for consideration to the said posts. The Respondent Department upon receipt of various applications for

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the 3 (three) posts placed the applications before a Departmental Screening Committee which was constituted of 4 (four) members, i.e., the Commissioner of Excise, Additional Commissioner of Excise, Deputy Commissioner (Headquarter) and Assistant Commissioner of Excise (Administration). In a meeting held on 21.11.2022 of the Departmental Screening Committee, the said Committee recommended the name of the petitioner as well as 2 (two) others. The petitioner’s name was recommended against the post of Peon (MTS) at Dimapur.

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6. Subsequent thereto, approval was sought for from the Government of Nagaland in the Department of Excise & Prohibition. The Secretary to the Government of Nagaland vide the communication issued on 05.01.2023 to the Commissioner of Excise & Prohibition granted the approval of the Government for appointment of the petitioner as well as 2 (two) others. The petitioner thereupon was appointed on 07.01.2023 on probation for 2 (two) years and with a specific mandate that upon completion of the probation period, the petitioner would be considered for service confirmation subject to fulfilment of the conditions prescribed in the Service Rules/ Rules in force. The Petitioner immediately joined upon receiving the appointment letter dated 07.01.2023.

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7. In the meantime, while the petitioner was rendering his

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service, the Respondent No. 4 who is the Appellant in the present Appeal on account of the death of her husband who was working as Peon (MTS) under the establishment of the Respondent No. 3 applied for Grade-IV post in terms with the Office Memorandum dated 17.09.2015. An Administrative Approval was issued pursuant to the consideration of the application of the Respondent No. 4/Appellant herein by the Commissioner & Secretary to the Government of Nagaland to the Commissioner of Excise & Prohibition along with 9 (nine) other Applicants, for appointment on compassionate basis. At the time when the question of granting appointment to the Applicants including the Respondent No. 4/Appellant herein, it came to light that the post vacated by the husband of the Respondent No. 4/Appellant was already filled up by the Writ Petitioner/Respondent No. 4 herein. This aspect would be apparent from the communication dated 02.06.2023 issued by the Commissioner of Excise & Prohibition to the Commissioner & Secretary, Excise Department. Subsequent thereto, on 13.10.2023, the Commissioner & Secretary to the Government of Nagaland informed the Commissioner of Excise & Prohibition that the appointment of the Petitioner/Respondent No. 4 herein along with another, should be revoked with immediate effect. The reason cited in the communication dated 13.10.2023 was that

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the Petitioner was appointed only for the period when the post which fell vacant on account of the death of the husband of the Respondent No. 4/Appellant was not filled up.

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8. Pursuant thereto, the Commissioner of Excise, Nagaland issued an order dated 30.10.2023, whereby the appointment order of the Petitioner/Respondent No. 4 herein was revoked with immediate effect. Immediately thereafter, on 01.11.2023, the Appellant herein was appointed. The Petitioner being aggrieved filed a writ petition which was registered and numbered as WP(C)/141/2024. It is also relevant to take note of that the connected writ petition which was also disposed of by the impugned common judgment and order was in respect to the other person, whose appointment was also revoked vide the Order dated 30.10.2023 of the Commissioner, Excise & Prohibition.

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9. In the backdrop of the above facts, we have taken note of the impugned judgment and order of the learned Single Judge wherein the learned Single Judge had after taking note of the provisions of Article 311 of the Constitution observed that the Writ petitioner/Respondent No. 4 herein could not have been terminated in the manner in which it was done. The learned Single Judge observed that there was a requirement for following the mandate of the Nagaland Services (Discipline and Appeal)

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Rules, 1967 (for short ‘the Rules of 1967’) which was not followed. It is under such circumstances, the learned Single Judge had set aside the impugned order dated 30.10.2023 issued by the Commissioner of Excise and Prohibition and further directed the Writ petitioners in both the writ petitions being WP(C)/140/2024 and WP(C)/141/2024 be reinstated. The specific directions passed by the learned Single Judge are at paragraph Nos. 34, 35 and 36 of the impugned Judgment and Order and the same being relevant, we reproduce herein under:-

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“34. The common impugned Order dated 30.10.2023 has been set aside, it is ordered that the two petitioners herein are to be reinstated in service forthwith.

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At the time of reinstatement, the State respondents shall duly consider the period from 30.10.2023 to the date of this Judgment by taking into account the reasons for which the impugned Order dated 30.10.2023 has been set aside. The State respondents are to take appropriate decisions as regards the pay and allowances of the petitioners for the said period in accordance with law.

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If the appointing authority/disciplinary authority is of the view that the appointments of the petitioners have suffered from any irregularity/illegality, then the petitioners are to be afforded prior, proper and reasonable opportunity of being heard. At the same time, it is observed that the fact of setting aside and quashing of the private respondents’ appointments shall not preclude the State respondents to consider their applications for appointments on

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compassionate ground. But the consideration for their appointments shall be strictly in terms of the Scheme framed and notified vide Office Memorandum dated 17.09.2015 after due consideration of the conditions of eligibility or ineligibility mentioned therein.”

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10. In the backdrop of the above, we have heard Mr. Sentiyanger, the learned counsel for the Appellant and Ms. Inaholi, the learned Government Advocate appearing for the State respondents and Mr. Limawapang, learned counsel for the Respondent No. 4 in the present proceedings.

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11. Mr. Sentiyanger, learned counsel appearing on behalf of the Appellant submitted that the learned Single Judge did not consider the question that the Respondent No. 4 herein was appointed without issuance of any advertisement. The learned counsel further submitted that the termination of the Respondent No. 4 was during the probation period and was a

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termination simpliciter and therefore, did not require any interference by the learned Single Judge.

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12. Ms. Inaholi, the learned Government Advocate appearing on behalf of the Respondent State has submitted that the post in question, wherein the Respondent No. 4 herein was appointed was a post which fell vacant on account of the death of the husband of the Appellant and as such, the said post could have been filled only by compassionate appointment. The learned

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Government Advocate submitted that appointment of the Respondent No. 4 herein was only for the period during which the post remained vacant i.e., till being filled up through compassionate appointment.

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13. Mr. Limawapang, learned counsel appearing on behalf of the Respondent No. 4 herein, on the other hand submitted that a perusal of the Departmental Screening Committee’s Meeting as well as the Appointment Orders that were issued to the Respondent No.4 dated 07.01.2023 would clearly show that the said Appointment Order was not in respect to post which was reserved for compassionate appointment. Apart from that, the Respondent State had not produced any documents in the writ proceedings which would substantiate that the post was reserved for compassionate appointment. The learned counsel appearing on behalf of the Respondent No. 4 drew our attention to the Appointment Order 07.01.2023 and submitted that the said order makes it clear that that the petitioner would remain in probation for a period of 2 (two) years and thereupon shall be confirmed in terms with the Service Rules. Therefore, the submission made by the State Counsel that the appointment of the Respondent No. 4 herein was made against a post for the time being till appointment is not made on compassionate basis to the post is devoid of any merit.

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14. Elaborating the said contention, the learned counsel appearing on behalf of the Respondent No. 4 herein also submitted that the reason by which the petitioner’s appointment order was revoked can be discerned from the communication issued by the Commissioner & Secretary, Excise & Prohibition of the Government of Nagaland wherein it is mentioned that the appointment of the Respondent No. 4 herein was pending appointment on compassionate basis. This goes very much not only against the appointment order of the Respondent No. 4, but also against the approval given by the same authority to the Commissioner of Excise & Prohibition. In addition to that, the learned counsel also submitted that the Respondent No. 4 herein having already been appointed, under such circumstances, there was a requirement of following the mandate of Article 311 of the Constitution. The learned counsel submitted that not to speak of adhering to the mandate of Article 311, not even a notice was issued to the Respondent No. 4 herein before revoking his termination.

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15. We have heard the learned counsels appearing on behalf of the parties and have also taken note of the impugned judgment and order passed by the learned Single Judge. From the materials on record, it is apparently clear that pursuant to an application submitted by the Respondent No. 4 herein, in respect

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of 3 (three) posts of MTS which were vacant in the office of the Respondent No. 3, the application of the Respondent No. 4 was taken along with various other applications for consideration. Pursuant thereto, the Departmental Screening Committee recommended that the Respondent No. 4 herein along with 2 (two) others should be appointed against the three posts. The records further reveals that the Government of Nagaland had granted the approval for the appointment of the Respondent No. 4 herein which would be apparent from the communication dated 05.01.2023 issued by the Secretary to the Government of Nagaland, Excise and Prohibition to the Commissioner of Excise & Prohibition, Government of Nagaland.

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16. Subsequent thereto, on 07.01.2023, Respondent No. 4 herein was appointed. A perusal of the Appointment order dated 07.01.2023 further makes it clear that the petitioner was against a substantive vacancy and there is nothing to show that the petitioner’s appointment was a stopgap arrangement. Rather, the petitioner was appointed against a substantive vacant post and for a period of 2 (two) years, the petitioner though would remain on probation but subsequent thereto the petitioner’s services would be confirmed as per the Service Rules. On the basis of the Appointment order dated 07.01.2023, the petitioner upon joining his service, a right accrued upon the petitioner that upon

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completion of the period of probation, the petitioner’s service would be confirmed as per the Service Rules.

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17. At this stage, we find it relevant to take note of the rights of a probationer. The Supreme Court in the case of Manager, S.M.U.P. School and Ors Vs. M. Noushad & Ors reported in 2025 SCC Online SC 3249 after taking into consideration various previous precedents observed that a Probationer is a temporary government servant and the probationer is entitled to certain protections and his/her services cannot be terminated arbitrarily without complying with the principles of natural justice. Paragraph 7 of the said judgment being relevant is reproduced herein under:-

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“ 7. The law regarding the termination of services of a probationer is well-settled now. The Courts can interfere with the decision to terminate services of employee during probation if the same is based on allegations of misconduct etc. without a proper inquiry having been conducted, and the opportunity of hearing being given to the probationer.

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A Division Bench of this Court in V.P. Ahuja v. State of Punjab, (2000) 3 SCC 239 held that a probationer also has certain rights, and cannot be subjected to punitive termination without compliance with principles of natural justice. It was held as follows:

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"7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive

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manner without complying with the principles of natural justice."

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Another Division Bench of this Court in SBI v. Palak Modi (2013) 3 SCC 607, after taking note of a long line of judgments of this Court on this point, summarized the legal position as follows. In that judgment, the Court noted as follows:

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"25. The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice." (Emphasis added)

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The sequence of events narrated above proves without doubt that the foundation of the action taken by the Management and then by the State is the alleged misconduct of the teacher/Respondent No. 1, who was on probation. This has never been proved. A Departmental proceeding was absolutely essential. Not holding a departmental proceeding clearly violates the principles of natural justice and fair play.”

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18. In the instant case, it would show that the only reason why the Petitioner’s appointment was revoked was to accommodate the Appellant. There was no other reason to terminate the services of the Petitioner. The question arises as to whether such action on the part of the Respondent Authorities is permissible under law, that too without following the principles of natural justice. A probationer as observed by the Supreme Court is like a temporary Government Servant. His/her services can be dispensed with on the ground of inefficiency or unsuitability. However, to do so also in our opinion requires that the principles of natural justice are required to be followed by giving an opportunity to explain. Out of the blue to terminate the services of a probationer without giving any opportunity renders such action violative of principles of natural justice. Further to that, in the present case, the services of the Petitioner was dispensed with for no fault of the Petitioner but in order to accommodate the Appellant. This renders the action on the part of the Respondent Authorities capricious, irrational and beyond any discernible reasoning process which are hallmarks of arbitrariness.

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19. Let us now take the case of the Appellant. The Appellant’s case comes within the purview of the Office Memorandum dated

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17.09.2015 which is a policy of the Government of Nagaland to provide compassionate appointment to one of the family members where the sole bread earner of that family dies in harness. It is well settled that an appointment on compassionate basis is an exception to Articles 14 and 16 of the Constitution. The said appointment on compassionate basis is to provide succor to the family on account of the death of the sole bread earner. The policy of the Government of Nagaland in the Office Memorandum dated 17.09.2015, stipulates various conditions and the Appellant admittedly comes within the ambit of eligibility set out in the Office Memorandum dated 17.09.2015. This aspect is apparent from the fact that the Appellant was duly considered and the Government of Nagaland had granted Administrative Approval on 08.05.2023 to appoint the Appellant on compassionate basis. In fact, the Government of Nagaland had vide the Order dated 01.11.2023 appointed the Appellant on compassionate basis.

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20. At this stage, we find it appropriate to deal with the contention of the learned Government Advocate that the post wherein the Petitioner/Respondent No. 4 herein was appointed was a post reserved for appointment on compassionate basis inasmuch as the said vacancy arose on account of the death of the husband of the Appellant. We have perused the Office

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Memorandum dated 17.09.2015. A perusal of the said Office Memorandum dated 17.09.2015 do not show that when a post falls vacant upon the demise of an employee, the post is reserved for compassionate appointment. Rather, a perusal of Clause (3) and (4) of the Office Memorandum dated 17.09.2015 clearly mentions that the appointment on compassionate basis shall be on posts available in the Department wherein the deceased Government employee was working. In the instant case, the Department would be the Department of Excise and Prohibition. Further to that, Clause 4 of the Office Memorandum dated 17.09.2015 also makes it clear that the ceiling is limited to 50% of the Group C and Group D posts arising during the year subject to the Group C posts are outside the purview of NPSC for recruitment. In that view of the matter, the contention of the learned Government Advocate that the post which fell vacant due to the demise of the husband of the Appellant is specifically a post meant for appointment on compassionate basis is misconceived.

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21. We also take note of that the State of Nagaland had not challenged the impugned judgment and order dated 23.09.2025 whereby the order dated 30.10.2023 was set aside and the Petitioner/Respondent No. 4 herein was directed to be reinstated.

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22. On the basis of the above analysis, we are of the opinion that the directions issued at Paragraph Nos. 34, 35 and 36 of the impugned common judgment and order dated 23.09.2025 passed by the learned Single Judge in WP(C)/140/2024 and WP(C)/141/2024, do not appear to be contrary to law for us to interfere with the same.

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23. We do not find any good ground in the present Appeal for interfering with the impugned common judgment and order dated 23.09.2025, in exercise of the Intra Court Appellate jurisdiction for which the Writ Appeal stands dismissed.

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24. Before parting with the records, we also find it pertinent to observe that the dismissal of the Writ Appeal filed by the Appellant shall not prejudice the Appellant’s case for consideration for appointment on compassionate basis. We further observe that in view of the judgment and order dated 23.09.2025, the Appellant’s appointment was set aside. We, therefore, direct that as an Administrative approval was already granted for the appointment of the Appellant, she be granted appointment on the basis of the Administrative Approval whenever a vacancy arises for appointment on compassionate basis in terms with the Office Memorandum dated 17.09.2015, in the Department of Excise and Prohibition. Further to that, the age requirement as mentioned in Clause 8 of the Office

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Memorandum dated 17.09.2015, be relaxed in the case of the

Appellant.

JUDGE

JUDGE

Comparing Assistant