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2011 DIGILAW 533 (GAU)

Rongsennungla & Ors. v. State of Nagaland & Ors.

2011-06-17

A.K.GOSWAMI

body2011
A.K. Goswami, J.- These 2 (two) writ petitions filed under Article 226 of the Constitution of India had raised common questions of law and fact and, therefore, were heard analogously. The counsel appearing in both the writ petitions are also same and accordingly, by this common judgment and order, In propose to dispose of the two writ petitions. 2. WP(C) No. 242 (K) 02 has been filed by 34 writ petitioners and WP (C) No. 251 (K) 02 has been filed by 48 writ petitioners. The case of the writ petitioners in both the writ petitions is that they are all ministerial staff serving in the Department of Wasteland Develoment, which was created by Notification No. AR/O &M/2/93 dated 14.09.93 and the Department was manned by the Officers and staff who were sent on deputation from the Department of Agriculture and other allied services. According to the writ petitioners, fresh appointments were made in respect of the required ministerial staff. The writ petitioners were working for varying periods. Some of the petitioners were appointed in the year 1994, while some were appointed in the year 2000 also. Some others were appointed in between the aforesaid period ranging from 1994 to 2000. Though in the appointment orders it was indicated that the appointments were made on work charged basis, the petitioners have stated that their work is regular in nature and they were entitled to all benefits of service like regular employees. They were granted scale of pay. It is pleaded by them that the Government of Nagaland had constituted a Commission in terms of "The Nagaland Work-Charged and Casual Employees Regulation Bill, 2001" (should have been Act instead of Bill) to examine the issue of work-charged and casual employees. The Commission had submitted a report recommending that casual employees in the Department of Wasteland Development may be maintained at 78 numbers and based on the recommendation of the Commission, the Directorate of Wasteland Development had submitted a memorandum for creation of the recommended posts by letter dated 11.03.02. The Cabinet considered the recommendation of the Commission relating to the Wasteland Development Department on 16. 9.02 and it was decided that scale of pay could not be grated to casual employees by virtue of which a decision was taken to deny the petitioners from enjoying scale of pay and to pay them by way of fixed pay. The Cabinet considered the recommendation of the Commission relating to the Wasteland Development Department on 16. 9.02 and it was decided that scale of pay could not be grated to casual employees by virtue of which a decision was taken to deny the petitioners from enjoying scale of pay and to pay them by way of fixed pay. The petitioners have challenged the Cabinet decision of 16.09.02 in Agenda Item No. 10, which is contained in the Office Memor­andum dated 20.09.2002. 3. The respondent Nos. 1,2 & 3 by filing a common Affidavit-in-Opposition, have stated that the Nagaland Work-Charged and Casual Employees Regulation Act, 2001 hereinafter referred to as the 'Act', was published in Nagaland Gazette on 25.02.01. The first report of the Nagaland Work-Charged and Casual Employees Commission, hereinafter referred to as the 'Commission', had recommended the number of casual employees to be maintained at 78 for the Department of Wasteland Development, which has since been re-named as Department of Land Resources. The respondents admitted that the Department was created without creating any post and that initially some officers and staff were brought along with the respective posts from the Department of Agriculture and other allied Departments and subsequently, due to increase in work load, some appointment were made on work-charged basis. Based on the recommendation of the Commission, a Cabinet Memorandum dated 06.08.02 was submitted to the Cabinet and the Cabinet in its meeting held on 16.09.02, in respect of Agenda Item No. 10, which was on the subject of recommendation of the Commis­sion relating to Wasteland Development Department, decided that scale of pay cannot be granted to casual employees in terms of the Act and that the recommendation of the Commission be implemented with fixed pay, It was further observed that the Department may intiatate a proposal for creation of minimum member of posts essential for the Department as per the prescribed norms. The respondents made a categorical statement in the Affidavit-in-Opposition that the writ petitioners were appointed on work-barged basis. While affirming that there is no infirmity in the decision of the Cabinet on Agenda Item No. 10 in the meeting held on 16.09.02, it is also stated that the Act provides for payment of wages to the work-charged and casual employees to be prescribed by the State Government on the consideration of the recommendation of the Commission. 4. While affirming that there is no infirmity in the decision of the Cabinet on Agenda Item No. 10 in the meeting held on 16.09.02, it is also stated that the Act provides for payment of wages to the work-charged and casual employees to be prescribed by the State Government on the consideration of the recommendation of the Commission. 4. By filing an Affidavit-in-Reply, the writ petitioners have stated that they are not casual employees but work-charged employees and to that extent, the Cabinet decision dated 16.09.02, mentioning that scale of pay cannot be given to the casual employees is not applicable to the writ petitioners. They have also stated that the provisions of the Act make it clear that the work-charged employees are entitled to scale of pay and they cannot be denied the scale of pay that they were enjoying at the time of commencement of the Act. The writ petitioners have also brought on record the fact that 16 out of 34 petitioners in WP(C) No. 242 (K) 02 and 7 out of 48 petitioners in WP(C) No. 251 (K) 02 have since been regularized. 5. In have heard Mr. A. Zhimomi, learned counsel for the petitioners and also Mr. L. S Jamir, learned Addl. Advocate General for the respondents. I have also perused the available materials on record. 6. Mr. A. Zhimomi, learned counsel for the petitioners submits that the Act has defined casual emnployee in Section 2 (c) to mean an employee engaged without sanctioned post. Similarly, Section 2 (d) of the Act has defined work-charged employees to mean an employee engaged without sanctioned post under work-charged establishment and therefore, there is a fundamental difference between the concept of work-charged and casual employees for the purposes of the Act Drawing attention to Sections 5 and 6 of the Act, he has submitted that the work-charged employees are not debarred from getting scale of pay although the same may be the case with the casual employees. He submits that the Commission, while recommending retention of 78 persons including the petitioners, had committed an error in terming them as casual employees. He submits that the Commission, while recommending retention of 78 persons including the petitioners, had committed an error in terming them as casual employees. The Cabinet has also proceeded on the wrong premise that the 78 employees are casual employees and therefore, the decision of the Cabinet denying the scale of pay to the petitioners, who are admittedly work-charged emloyees, if vitiated by non application of mind and as such the respondents should be directed not to deny the pay scale that was being enjoyed by the petitioners by bringing them under fixed pay. The learned counsel has also brought to the notice of this Court the minutes of the 2nd sitting of the Cadre Review Committee held on 21.10.10 under the Chairmanship of Shri L. Kire, Commissioner and Secretary to the Chief Minister to emphasize that such Committee had recommended for creation of posts for regularization of the 78 persons appointed on work-charged basis. 7. Mr. L. S Jamir, learned Addl. Advocate General has, at the outset, submitted that in the view of the judgment dated 28.4.06 in Writ Appeal No.26(K)05 and other connected appeals, those writ petitions are liable to be dismissed without entering into the merit of the case being hit by the principles of res judicata. It is further submitted by the learned Addl. Advocate General, Nagaland that the Special Leave Petition filed challenging the order dated 28.04.06 was also dismissed by the Apex Court. He has submitted that retention and termination of the then existing work-charged and casual employees of the Department of Higher and Technical Education, Government of Nagaland, pursuant to the grant of approval of the State Cabinet in respect of the recommendation of the Commission was the subject matter of dispute in the aforesaid cases. The only difference is that these two cases pertain to the Department of Wasteland Development. Contrary to the submissions made by Mr. A. Zhimomi, Mr. L. S. Jamir has submitted that the Chapter relating to work-charged establishment of the Act and more particularly, Sections 5 and 6 thereof would make it explicitly clear that the work-charged employees also are not entitled to scale of pay but subject to conditions appearing in Sections 5 and 6 that while fixing their pay on fixed pay basis, it has to be ensured that their wage shall not be less than the last pay at the time of prescribing fixed wage. Therefore, according to him, the expression casual employee in the recommen­dation of the Commission as well as in the decision of the Cabinet in Agenda Item No. 10 of the meeting dated 16.09.02, is of no consequence. Under the scheme of the Act, according to the learned Addl. Advocate General, Nagaland, both casual and work-charged employees are not entitled to scale of pay. 8. Mr. A. Zhimomi responded to the submission of the learned Addl. Advocate General, Nagaland that because of the decision rendered in WA No. 26(K.) 05 and other connected writ appeals, these petitions are liable to be dismissed by saying that such a plea has not been taken by the State respondents in its pleadings. That apart, the learned counsel submits that the issue involved in the said writ appeals was primarily relating to the controversy with regard to the date of coming into force of the aforesaid Act. The learned Single Judge had taken a view that the Commission was constituted on 30.04.01, in terms of the Act, while the Act had come into effect on 31.5.01 at the earliest and w.e.f 15.6.01 at the latest. The writ appellate Court, while setting aside the Judgment of the learned Single Judge, had held that the Act had come into force w.e.f. 01.04.01. He has also submitted that as would appear from the Judgment and Order dated 28.04.06, the cases were relating to retention and termin­ation of the existing work-charged and casual employees, whereas the instant cases are with regard to conversion from scale of pay to fixed pay. 9. Aperusal of the Judgment and Order dated 28.04.06, which was made available by the learned Addl. Advocate General, Nagaland, to the Court would go to show that the Division Bench had noted in para 3 of the judgment that the only point in dispute in between the parties is as to when the Act of 200 1 can be said to have come into force. On factual aspects of the matter also it would appear to me that the point raised in the present two writ petitions were not even remotely raised and considered and therefore, I reject the submission of the learned Addl. On factual aspects of the matter also it would appear to me that the point raised in the present two writ petitions were not even remotely raised and considered and therefore, I reject the submission of the learned Addl. Advocate General, Nagaland that in view of the Judgment dated 28.04.06, rendered in Writ Appeal No. 26 (K) 05 and other connected appeals, the present writ petitions entering into the contentions raised in these writ petitions. 10. The Act was enacted to regulate appointment and conditions of service of persons appointed as work-charged employees and casual employees. Section 2 (c) defines a work-charged establishment to mean and include such establishment in any Department under which a person is employed upon the actual execution, as distinct from the general supervision, of a specific work or of sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-works. Section 3 of the Act envisages constitution of the Commission, the Chairperson of which would be an Officer of the State Government not below the rank of Commissioner & Secretary. Section 4 delineates the function of the Commission. It provides that the subject to general direction of the State Government, the Commission may (i) recommend the norms and the number of work-charged and casual employees for any Department with due regard to work load, budgetary resources and such other factors as may be considered relevant, (ii) recommend for fixing wage and other conditions of service, (iii) recommend on any other matter as may be assigned by the State Government for the purpose of giving effect to the provisions of the Act. 11. As the counsel of both the sides have labored hard with regard to the interpretation of Sections 5 and 6 of the Act, it is considered appropriate that Sections 5 and 6 be re­produced in their entirety for ready reference. "5. Appointment and Discharge of Work-charge Employees. (1) The Work-Charged employees shall be entitled to the respective conditions of service as existing on the commencement of this Act except as hereinafter provided in this Act. "5. Appointment and Discharge of Work-charge Employees. (1) The Work-Charged employees shall be entitled to the respective conditions of service as existing on the commencement of this Act except as hereinafter provided in this Act. (2) The appointing Authority shall review the appointment of Work-Charged Employees within six (6) months from the date of the order issued by the State Government prescribing the number of work-charged employees on consideration of the recommendation of the Commission and shall also issue order re-appointing or discharging the service of work-charged employees on the basis of the recommendation of the Recruitment Board. Provided that no person shall be appointed beyond the age of 60 years. (3) The Work-Charged employees, whose services are discontinued under sub­section (2) above and who have completed 3 (three) years of service in Work- Charge establish-ment, shall be granted a gratuity equivalent to V2 (half) month's pay excluding special compensatory allowance for each completed years of service as provided under the Nagaland Public Works Department Code. 6. Wage: The Work charged employees shall be paid wage as may be prescribed by the State Government on the consideration of the recommendation of the Commission. Provided that the wage of the work-charged employee, who was paid a scale of pay at the commencement of this Act and who is re-appointed under sub-section 2 of Section 5 of this Act, shall be not less than the last pay as may be determined at the time of prescribing fixed wage." 12. The Commission in its first report had made certain observations and recommen­dations. It had recommended that the following rates of fixed pay be adopted, provided that for work-charged staffon scale of pay the provision under Section 6 of the Act is followed: Other Grade -III : Rs. 3500/- p.m. Driver :Rs.3000/-p.m. Grade-IV : Rs. 2000/- p.m. In the summary of the recommendations, amongst others, it has been indicated that the Department may be allowed to engage work-charged and casual employees as recommended in Appendix-H, read with the recommendation made in the relevant Annexure for each of the Department concerned and that the wages for work-charged and casual employees may be fixed at the following rates: Other Grade -III : Rs. 3500/- p.m. Driver :Rs.3000/-p.m, Grade IV : Rs. 2000/-p.m. 13. 3500/- p.m. Driver :Rs.3000/-p.m, Grade IV : Rs. 2000/-p.m. 13. With regard to the Wasteland Development Department, for the propose of present two cases, suffice it is to note that the Commission had recommended that "the number of casual employees may be maintained at 78 for the present." A Cabinet memorandum dated 06.08.02 was prepared with regard to the recommendation of the Commission relating to the Wasteland Development Department. In the said memorandum, it was fervently pleaded that in view of the fact the Department of Wasteland Development is primarily responsible for revolutionizing the plantation movement in Nagaland, credit for achieving such milestone is also due to the dedicated service of all officers and staff including work- charged employees and therefore, the work-charged employees of the Department of Wasteland Development may not be treated at par with the work-charged emloyees of other Departments and therefore, not to reduce their pay but to allow the employees to continue on the existing scale of pay. As has been noted earlier, the Cabinet in its meeting dated 16.09.02, directed implemen­tation of die Commission with fixed pay, taking note of the fact that the scale of pay cannot be granted to the casual employees in terms of the Act. 14. It would appear even the departmental authorities were conscious of the fact, as is evident from the Cabinet Memorandum dated 06.08.02, that an exception be made in respect of the work-charged employees of the Department of Wasteland Development to allow them to continue existing scale of pay, meaning thereby they would, otherwise, be entitled only to fixed pay. Section 5(1) of the Act mandates that the Work-charged employees shall be entitled to the respective conditions of service as existing on the commencement of the Act, except as provided in the Act. The present petitioner are not discontinued and admittedly, they were paid scale of pay before the commencement of the Act. The petitioners had approached this Court, as stated by them, after they were informed by their superiors that they would be paid fixed wages as decided by the Cabinet from the month of November, 2002. N o formal order had been issued on the basis of the said Cabinet decision except a letter dated 05.11.02, which was addressed to the Director, Wasteland Development by the Under Secretary to the Government of Nagaland, informing implementation of the recommendation of the Commission w.e.f. 16.09.02. N o formal order had been issued on the basis of the said Cabinet decision except a letter dated 05.11.02, which was addressed to the Director, Wasteland Development by the Under Secretary to the Government of Nagaland, informing implementation of the recommendation of the Commission w.e.f. 16.09.02. The State respondents in their counter affidavit have stated that the petitioners had approached this Court when the Department was contemplating to issue formal order and required under the provisions of the Act. 15. It would appear that the wage of work-charged employee, who was paid a scale of pay at the commencement of the Act and who is re-appointed under Section 5 (2) of the Act shall be not less than the last pay as may be determined at the time of prescribing fixed wage. Conjoint reading of Sections 5 and 6 of the Act would go to show that the provisions do not envisage grant of scale of pay to work-charged employees. It prescribes only a fixed wage. However, as has been noted earlier, at the time of prescribing fixed wage, it is to be ensured that wage of the work-charged employees enjoying scale of pay shall not be less than the last pay he was enjoying. 16. In view of the determination above, the fact that the petitioners were treated to be casual employees instead of work-charged employees, both in the recommendation of the Commission as well as the decision of the Cabinet dated 16.09.02, becomes wholly inconsequential. 17. In view of the above discussions, there is no merit in the writ petitions. Accordingly, the writ petitions are dismissed. However, it is clarified that while prescribing fixed wage to the petitioners, authorities will ensure that such fixed pay is not less than the pay that the petitioners are presently enjoying. 18. No costs.