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2005 DIGILAW 538 (GAU)

Thosano Ovung v. State of Nagaland

2005-07-29

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. Ashipri Zho, the learned Counsel for the Petitioner and Mr. L.S. Jamir, the learned State Counsel representing the official Respondents. 2. The limited point raised before this Court through this application under Article 226 of the Constitution of India is that though the Petitioner was serving as contingency paid peon under the establishment of Science and Technology Cell of the Planning and Co-ordination Department, Nagaland, Kohima since 10.11.1986 which was later on allotted as the post of Sweeper vide order dated 12.2.1987 continuously without break by extension of the same from time to time but such extension/renewal of her service was stopped from September, 2001 and in the present petition she has sought for a direction to Respondent No. 1 i.e., Secretary to the Govt. of Nagaland (Science and Technology Department) not to remove her from service in view of her 15 years of continuous service by setting aside the communication dated 11.11.2002 by which the Respondent No. 1 intimated the Respondent No. 2 i.e., the Senior Scientific Officer, Department of Science and Technology, Nagaland, Kohima that the request for extension of service of the Petitioner as Sweeper cannot be accepted. 3. Mr. Ashipri Zho, the learned Counsel for the Petitioner has contended that though the Petitioner's service was not extended from last September, 2001, she has been allowed to continue in the post of Sweeper as there is necessity and need for the post of Sweeper. She represented to the Respondent No. 2 by filing her representation dated 24.5.2002 seeking her retention as Office Sweeper by extending her service. Keeping in view the prolonged service rendered by the Petitioner in the department, the Respondent No. 2 under whom she was working forwarded her representation to the Respondent No. 1 by his communication dated 12.6.2002 emphasising the need of a Sweeper in the Office. Mr. Zho has drawn the attention of this Court to the said communication dated 12.6.2002 which is annexed as Annexure-C to this writ petition. 4. Mr. Zho has drawn the attention of this Court to the said communication dated 12.6.2002 which is annexed as Annexure-C to this writ petition. 4. The communication dated 12.6.2002 reads as under: GOVERNMENT OF NAGALAND DEPARTMENT OF SCIENCE AND TECHNOLOGY NAGALAND, KOHIMA No. S and T-51/86 Dated Kohima, 12.6.2002 To The Secretary, Science and Technology Department Nagaland, Kohima Subject – REPRESENTATION FOR RETENTION AS OFFICE SWEEPER Sir, In calling a reference to the subject cited above, I am forwarding herewith a representation in R/o Smt. Thosano Sweeper (contingency) for retention as Sweeper which is self-explanatory. In this connection, the following facts are mentioned for favour of your kind information and consideration. Smt. Thosano was appointed and joined the Deptt. w.e.f. 10.11.1986 as Sweeper on wages that is, since the inception of the department and she is found to be quite sincere and efficient in her duties. Since Smt Thosano is the only Sweeper, Office feels that the services of a Sweeper is really needed, it is recommended that her service may be extended in view of her prolonged services rendered to the Department. Enclo: As stated Yours faithfully Sd/- Dr. Zavai Hiese Senior Scientific Officer. 5. It is contended by the learned Counsel for the Petitioner that after receipt of the said communication, the Government through Respondent No. 1 i.e., Secretary to the Government of Nagaland wrote back to Respondent No. 2 vide letter dated 11.11.2002 informing that Nagaland Work-charged and Casual Employees Commission in its recommendation did not agree with the continuation of the Sweeper which was also duly accepted by the Cabinet and hence request for extension for the post of Sweeper was regretted. 6. The communication dated 11.11.2002 may be noticed which runs as under: GOVERNMENT OF NAGALAND DEPARTMENT OF SCIENCE AND TECHNOLOGY No. ST/3-2/2000 Dated Kohima, the 11.11.2002 To The Sr. Scientific Officer, Nagaland, Kohima. Subject – EXTENSION OF SWEEPER Sir, With reference to your letter No. S and T-51/86 dated 12.6.2002 and representation from the incumbent as well as the staff of the S and T for extension of Sweeper. It is regretted to inform that the Nagaland Work-charged and Casual Employees Commission in its recommendation did not agree to the continuation of the Sweeper. We had requested the Commission to reconsider the retention of the Sweeper but did not get any response. It is regretted to inform that the Nagaland Work-charged and Casual Employees Commission in its recommendation did not agree to the continuation of the Sweeper. We had requested the Commission to reconsider the retention of the Sweeper but did not get any response. The recommendation of the Commission has also been accepted by the Cabinet and the Department is unable to do anything now. The concerned incumbent and the staff may be informed of the factual position. Yours faithfully Sd/- SENTIYANGER IMCHEN Secretary to the Government of Nagaland. 7. Relying on the communication dated 12.6.2002 sent by the Respondent No. 2 to Respondent No. 1, Mr. Zho, the learned Counsel for the Petitioner has argued that the post of Sweeper is very much required by the Department and as a result of which she has been allowed to continue even after her extension was not given officially and she has still been continuing in the said post and as such Respondents, particularly the Respondent No. 1 be directed to consider her case so that she can continue in her service as Sweeper. 8. Refitting the averments and submissions made on behalf of the Petitioner, Mr. L.S. Jamir, the learned State Counsel has filed counter-affidavit stating therein that the Petitioner's case for retention/extension cannot be considered due to the fact that Nagaland Work-charged and Casual Employees Commission (for short, the Commission) which was constituted under the Nagaland Work-charged and Casual Employees Act, 2001 (for short, the Act) for the purpose of recommendation of the norms and numbers of Work-charged employees and casual employees for any department with regard to work load, budgetary resources and other such factors including fixation of wages and others as may be considered relevant, did not recommend for the post of Sweeper. To support his submission, Mr. L.S. Jamir has relied on the first report of the Nagaland Work-charged and Casual Employees Commission on which is annexed as Annexure-1 to the counter-affidavit. He has also referred to the list of recommended norms and casual employees required in the Science and Technology Department which may be extracted as under:- Sl. No. Post Norm Regular Casual 1 2 3 4 5 1. Sr. Scientific Officer 1 1 - 2. Science Officer 1 1 - 3. Superintendent 1 1 - 4. Technical Officer 1 1 - 5. UDA 1 1 - 6. Accountant 1 1 - 7. No. Post Norm Regular Casual 1 2 3 4 5 1. Sr. Scientific Officer 1 1 - 2. Science Officer 1 1 - 3. Superintendent 1 1 - 4. Technical Officer 1 1 - 5. UDA 1 1 - 6. Accountant 1 1 - 7. LDA 1 1 - 8. Stenographer 1 1 - 9. Typist 1 1 - 10. Driver 2 1 1 11. Chowkidar 1 1 - 12. Office Peon 2 2 - Total 14 13 1 9. It is also contended that the said recommendation was duly accepted by the Cabinet vide Office Memorandum dated 10.4.2002 and in view of such recommendation and subsequent approval of the recommendation given by the Commission, the Government is not in a position to retain or extend the services of the Petitioner as Sweeper. 10. Having given thoughtful consideration to the extensive arguments so advanced by the learned Counsel representing the contesting parties, and also meticulous scrutiny of the pleadings so filed by and on behalf of the parties, it appears that the post of a Sweeper is a necessity and must in every establishment keeping in view the nature of job allotted to such post. Due to this unshakable reality, Petitioner's services, though initially was for contingent peon, was allotted as Sweeper since 1987 and she was allowed to continue as sweeper by giving her extension from time to time and that too without any break in service though she was posted as contingency paid Sweeper. Nevertheless, for all practical purposes, it seems, she was treated as regular employees and in this process she has been allowed to serve more than 15 years. 11. Significantly, it is seen that during her service period as contingent Sweeper, in the year 2001, the Commission submitted its report and in the said report it has recommended as many as 12 posts, including Driver, Chowkidar and Office peon without making any whisper of the post of Sweeper. In fact, the recommendation does not reflect any cogent or probable reasons for not recommending the post of Sweeper when obviously every establishment requires and needs a Sweeper to keep it clean and in hygienic condition. After submission of this report by the Commission, the Respondent No. 2 whose post was recommended at Sl. In fact, the recommendation does not reflect any cogent or probable reasons for not recommending the post of Sweeper when obviously every establishment requires and needs a Sweeper to keep it clean and in hygienic condition. After submission of this report by the Commission, the Respondent No. 2 whose post was recommended at Sl. No. 1 in the said report as already noticed hereinabove, wrote to the Respondent No. 1, the Secretary of the Department concerned by his communication dated 12.6.2002 which has also been noticed above, asserting the necessity of a Sweeper and also certifying the service of the Petitioner who since the inception of the Department has been working in the said Department with quite sincerely and efficiently. The sole stand of the State Respondents is that the Petitioner's name was not recommended by the Commission due to which reason only her case could not be considered. Nowhere in the records it is noted that the post of Sweeper is not wanted. Had there been any recommendation from the end of the Commission, her case would have been taken care of. From the perusal of the records, it is felt that the Commission in its process for recommendation, perhaps lost sight of this fact and failed to take into account the existence and requirement of the post of Sweeper. 12. Given facts and circumstances of the case in its totality, this Court is of the considered opinion that the Petitioner has made out a case for extension/retention of the post of Sweeper which is essential for the Department concerned and in view of the same the Respondent Nos. 1 and 2 are directed to take necessary steps for getting recommendation for the post of Sweeper from the Commission and/or any competent authority vested with such power of recommendation, if any, and thereafter to get it approved from the Cabinet so that the Petitioner's services be extended/retained/ regularised as the case may be, to which she is entitled to, in accordance with law, 13. The entire exercise so indicated hereinabove be undertaken and completed by the concerned authorities within a period of 6 (six) months from the date of receipt of this order. 14. At this stage it is stated at the bar that the Petitioner has been working as Sweeper till date. The entire exercise so indicated hereinabove be undertaken and completed by the concerned authorities within a period of 6 (six) months from the date of receipt of this order. 14. At this stage it is stated at the bar that the Petitioner has been working as Sweeper till date. If the said statement is correct, the Petitioner be allowed to continue in her service as Sweeper till her case is duly recommended and approved by the competent authority. 15. In the result, this writ petition succeeds and stands allowed. 16. No costs. Petition allowed.