A.K. Goswami, J.;— Heard Mr. Taka Masa, learned counsel for the petitioners in WP(C)270 (K)/11, 277 (K)/11, WP(C) 2(K)/12 and WP(C) 3(K)/12, Mr. C. T. Jamir, learned senior counsel for the petitioners in WP(C) 9(K)/12, WP(C) 15(K)/12, WP(C) 22(K)/12, WP(C) 27(K)/12, Mr. B.N. Sarma, learned senior counsel appearing for the writ petitioner in WP(C) 18(K)/12 and Mr. Kekhriengulie, learned counsel appearing for the 8 petitioners in WP(C) 35(K)/12. Also heard Mr. K.N. Balgopal, learned Advocate General, Nagaland appearing for the State respondents. Mr. T.B. Jamir, learned C.G.C and Mr. P. Pius Lotha, learned counsel who appear for respondent Nos. 4 and 5, respectively, in WP(C) 270 (K)/20 11 have also been heard. 2. The writ petitioner in WP(C) 270 (K)/11 and WP(C) 3(K)/12 is the same person and the writ petitioner in WP(C) 277 (K)/l 1 and WP(C) 2 (K)/l 2 is also same. 3. All these writ petitions primarily call for a determination as to when a person can be said to have joined public employment in view of the fact that Section 3 (2) of the Nagaland Retirement from Public Employment (2nd Amendment) Act, 2009, for short, the 2nd Amendment Act, provides, amongst others, that a person in public employment shall retire on the afternoon of the last date of the month in which he completes 35 years from date of joining. 4. The Nagaland Retirement from Public Employment Act, 1991, for short, the Act, was enacted by Nagaland Legislative Assembly and the same came into force w.e.f 18.6.91. The said Act was enacted to regulate conditions of service in public employment and to lay down law regarding tenure of public employment in the State of Nagaland. Section 3(1) of the Act, amongst others, provided that a person in public employment shall hold office for a term of thirty-three years from the date of joining public employment or until he attains the age of fifty-seven years, whichever is earlier. The first proviso to Section 3(1) provided that under special circumstances, a person under public employment may be granted extension by State Government up to a maximum of one year. The 2nd proviso of Section 3(1) provided that the Government may have the cases of all persons under public employment screened from time to time to determine their suitability for continuation in public employment after the attainment of the age of fifty years. The 2nd proviso of Section 3(1) provided that the Government may have the cases of all persons under public employment screened from time to time to determine their suitability for continuation in public employment after the attainment of the age of fifty years. The retirement, in terms of Section 3(2), was to be effective on the afternoon of the last day of the month in which a person under public employment attains the age of fifty-seven years or on completion of thirty-three years of public employment, whichever is earlier. It is to be noted that in the year 1990, the superannuation age of all the State Government employees other than Grade-FV employees was raised from fifty-five years to fifty-eight years. 5. The Confederation of All Nagaland State Service Employees Association, for short, Association, had challenged the constitutional validity of Section 3 before this Court by filing a writ petition, which was registered and numbered as Civil Rule No. 364/92 and a learned Single Judge of this Court, vide judgment and order dated 18.1.93, while upholding the reduction of retirement age from fifty-eight years to fifty-seven years, struck down the part of Section 3 which prescribed retirement from service on completion of thirty-three years of service, holding the same to be violative of Article 14 of the Constitution of India. Learned Single Judge, however, did not grant any consequential relief to the employees. The said judgment and order, dated 18.1.93 was challenged in Writ Appeal No.37/93 and the Division Bench of this Court, by judgment and order dated 6.9.95, while upholding the order of learned Single Judge with regard to retirement at the age of fifty-seven years, had held that the affected employees would be entitled to salary and other allowances as well as consequential benefits which they would have been entitled to up to the age of fifty-seven years except those employees who were gainfully employed elsewhere. The State of Nagaland had challenged the said judgment and order dated 6.9.95 to the extent of grant of consequential relief to the employees by filing a Special Leave Petition before the Apex Court. Leave was granted and subsequently, on 7.4.97, the appeal was dismissed on withdrawal. 6. The State of Nagaland had challenged the said judgment and order dated 6.9.95 to the extent of grant of consequential relief to the employees by filing a Special Leave Petition before the Apex Court. Leave was granted and subsequently, on 7.4.97, the appeal was dismissed on withdrawal. 6. Thereafter, the Act was amended by Nagaland Retirement from Public Employment (1st Amendment) Act, 2007, for short, 1st Amendment Act, enhancing superannuation age of the State Government employees from fifty-seven years to sixty years w.e.f 15.11.2007. ' 7. On 8.7.09, Nagaland Retirement from Public Employment, 2nd Amendment Bill, 2009 was introduced whereby, the length of service of the State Government employees was proposed to be restricted to thirty-five years from the date of joining of service or till attainment of sixty years, whichever is earlier. The said Bill was unanimously passed on 10.7.09 and thus, by the 2nd Amendment Act, Section 3 as amended by the 1 st Amendment Act of 2007 was substituted by the following provision: "S.3(1)- Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for a term of 35 years from the date of joining public employment or until he attains the age of 60 years, whichever is earlier. S.3(2)- A person under public employment shall retire on the afternoon of the last day of the month in which he attains the age of 60 years, or in which he completes 35 years of public employment, whichever is earlier." 8. By notification dated 7.8.09, the provisions of the 2nd Amendment Act, had been made effective from 31.10.09. The constitutional validity of the provision of the Nagaland Retirement from Public Employment (2nd Amendment) Act, 2009 was challenged before this Court by the Nagaland Senior Government Employees Welfare Association (NSGEWA) through its Chairman and 4 other office bearers and the said writ petition was registered as WP(C) No.2980/09. The challenge was negated and accordingly, the writ petition was dismissed by judgment and order dated 30.10.2009. The challenge was carried to the Apex Court and the Supreme; Court dismissed the appeal being Civil Appeal No. 4955/2010 arising out of SLP (C) No. 29786/09 by judgment and order date 6.7.2010. 9. The challenge was negated and accordingly, the writ petition was dismissed by judgment and order dated 30.10.2009. The challenge was carried to the Apex Court and the Supreme; Court dismissed the appeal being Civil Appeal No. 4955/2010 arising out of SLP (C) No. 29786/09 by judgment and order date 6.7.2010. 9. Having laid out the preface relating to background of the statutory enactment, the basic facts as projected in the writ petitions are, briefly, recited hereinunder: (A) The petitioner in WP(C) 270(K)/2011 was initially appointed as SDO (Soil Conservation) on ad hoc basis or a period of 4 months w.e.f the date of joining subject to regularization by the Nagaland Public Service Commission, for short, NPSC, by order dated 23.11.1976 and he had joined on 24.11.1976.Subseq-uently, on being selected by the NPSC, the authority had issued appointment order dated 8.2.1978 w.e.f 9.11.1977. It is pleaded that the length of service for the purpose of pension should be counted w.e.f. 9.11.1977 and not from 24.11.1976 and that he would complete thirty-five years of length of service for the purpose of retirement only on 9.11.2012 and thus, retire on 30.11.2012. However, his ad hoc service w.e.f. 24.11.1976 was counted and an order was issued on 22.11.2011 indicating that he will go on superannuation on 30.11.2011. The petitioner has also brought on record Office Memoranda dated 26.11.2009, 15.2.2010 arid 11.10.2011 on the subject of counting of contract/ad hoc period for retirement issued by the Chief Secretary to the Government of Nagaland. The prayer made in the writ petition is to quash the impugned order dated 22.11.2011 with a prayer to compute thirty-five years length of service from 9.11.1977. (B) The petitioner in WP(C) 270 (K)/2011 has also filed WP (C) 3 (K)/2012 challenging the Office Memorandum dated 22.12.2011 issued by the Chief Secretary to the Government of Nagaland on the subject of counting of contract/ad hoc period for retirement as well as for a direction to count thirty-five years length of service in terms of the Office Memorandum dated 11.10.2011. (C) The petitioner in WP(C) 277 (K)/2011 was initially appointed as SDO (Soil Conservation) on ad hoc basis for a period of 4 months w.e.f the date of joining subject to regularization by the NPSC by order dated 23.11.1976 and he had joined on 24.11.1976. Subsequently, on being selected by the NPSC, the authority had issued appointment order dated 8.2.1978 w.e.f 9.11.1977. Subsequently, on being selected by the NPSC, the authority had issued appointment order dated 8.2.1978 w.e.f 9.11.1977. It is contended that the length of service for the purpose of pension should be counted w.e.f 9.11.1977 and not from 24.11.1976 and that he would complete thirty-five years of length of service for the purpose of retirement only on 9.11.2012 and thus, he would retire on 30.11.2012. However, his ad hoc service w.e.f 24.11.1976 was counted and an order was issued on 30.11.2011 indicating that he will go on superannuation on 30.11.2011. The prayer made in the writ petition is to quash the impugned order dated 30.11.2011 with a prayer to compute thirty-five years length of service from 9.11.1977. He has also filed WP(C) 2 (K)/2012 with similar challenge and prayer as made in WP(C) 3 (K)/2012. (D) In WP(C) 9 (K)/2012, the writ petitioner was initially appointed on ad hoc basis as Motor Vehicle Inspector by an order dated 7.10.1977 and he was, on being selected by NPSC, given regular appointment by an order dated 5.2.1979 w.e.f. date of joining and he joined on 6.2.1979. On a clarification sought as to whether contract/ad hoc service shall be counted for the purpose of retirement, by an order dated 14.12.2011, issued by the Deputy Secretary to the Government of Nagaland, it was informed that length of service will have to be determined from the date of joining in the service. In this writ petition, the said order dated 14.12.2011 and the Office Memorandum dated 22.12.2011 are under challenge. (E) In WP(C) 15(K)/2012, the petitioner Nos. 1 to 12 were appointed on temporary basis as Overseer Grade-II on 13.7.1977 and the petitioner No. 13 was similarly appointed on 8.10.1977. All the writ petitioners, on being selected by the Recruitment Board, were regularly appointed by an order dated 25.5.1978 and it is averred that all the petitioners will retire on 31.5.2013 after completion of thirty-five years of service. In this writ petition, the Office Memorandum dated 22.12.2011 is under challenge. (F) The writ petitioner in WP (C) 22(K)/2012 was appointed as Assistant Engineer, PWD on ad hoc basis by a notification dated 23.11.1977 and on being selected by NPSC, was regularly appointed by an order dated 24.10.1978.lt is claimed that he will complete thirty-five years of service on 24.10.2013 and will retire on 31.10.2013. (F) The writ petitioner in WP (C) 22(K)/2012 was appointed as Assistant Engineer, PWD on ad hoc basis by a notification dated 23.11.1977 and on being selected by NPSC, was regularly appointed by an order dated 24.10.1978.lt is claimed that he will complete thirty-five years of service on 24.10.2013 and will retire on 31.10.2013. The Office Memorandum dated 22.12.2011 is under challenge in this writ petition. (G) The writ petitioner in WP(C)27 (K)/2012 was appointed on ad hoc basis as Assistant Mechanical Engineer, PWD on 11.5.1977 and on being selected by NPSC, he was regularly appointed by an order dated 23.6.1978 w.e.f 30.5.1978. It is stated that he will retire on 30.6.2013 as he was appointed on a regular basis by an order dated 23.6.1978. In this writ petition also, the Office Memorandum dated 22.12.2011 is under challenge. (H) The writ petitioner in WP(C) 18 (K)/2012 was appointed on ad hoc basis by an order dated 22.11.1976 as Assistant Plant Protection Officer (HYVD) and the petitioner joined on 27.11.1976. Subsequently, on the recommendation of the NPSC, the petitioner was appointed as Lecturer by an order dated 17.2.1978. In this petition, the petitioner has prayed for quashing of the Office Memorandum dated 22.12.2011 and has prayed for a direction to count the period of thirty-five years from 17.2.1978, the date he was regularly appointed. (I) The writ petitioners, 8 in number, in WP(C) 35(K)/12 were appointed by common order dated 13.7.1977 as Overseer Grade-II on temporary basis and subsequently, on been selected by Recruitment Board, the petitioners were regularly appointed by orders dated 25.5.1978. It is stated that they would complete thirty-five years in service on 25.5.2013 and as such, retire on 31.5.2013. 10. In the affidavits that have been filed in the writ petitions, it has been stated that issuance of Office Memoranda dated 26.11.2009,15.2.2010,11.10.2011 and 22.12.2011 had been necessitated due to clarifications sought for by many departments. It is further stated that the necessity for issuance of Office Memorandum dated 22.12.2011 also arose on account of the fact that without formal regularization of the contract/ad hoc service, service benefits in the form of increments, leave accumulation etc had been carried forward by the Government servants consequent upon their regular appointment as well as to count the said period towards length of public service of the employee. Accordingly, such ad hoc/contract period was considered as "deemed regularized" by the said Office Memorandum. It has also been stated that the same principle had been consistently applied ever since enactment of the Act. Continuity of the-writ petitioners in service from the date of their appointment on ad hoc basis is also emphasised and it has also been pleaded that for the purpose of retirement on completion of thirty-five years of service, the service records of the officials have to be examined individually. It has also been asserted that contract service and ad hoc service are considered as temporary service in the State of Nagaland. With regard to the plea taken by the writ petitioners referring to the case of Er. Mezakrol, it was stated that there was no documentary record available to show that in his case, ad hoc period of service was counted for any service benefits including increments and as such, the petitioners and said Er. Mezakrol do not stand on the same footing. 11. In the affidavit filed in WP(C) 2(K)/12, it has been specifically stated that many government employees, who had served on contract/ad hoc basis before their regularization, wereretired by counting their past contract/ad hoc period in service. 12. Mr. Taka Masa, the learned counsel for the writ petitioners in some of the writ petitions has submitted that Section 5 of the Act confer? power upon the State Government to remove difficulties if any doubt or difficulty arises in giving effect to the provisions of the Act. The State Government may, by order published in the Nagaland Gazette, make such provision not inconsistent with the purpose of this Act as appears to it to be necessary or expedient for the removal of difficulty or doubt and the order of the State Government in such case shall be final, he - submits. He has also submitted that every order passed under Section 5(1) of the Act shall be laid, as soon as maybe, before the Assembly. He has also submitted that every order passed under Section 5(1) of the Act shall be laid, as soon as maybe, before the Assembly. The learned counsel submits that the impugned Office Memorandum dated 22.12.2011-purporting to consider ad hoc/contract period as 'deemed regularized' for the purpose of calculation of length of service under the Act, having not been gazetted and the same also having not been placed before the Legislative Assembly of the State, such Memorandum is invalid in law and the Memorandum cannot take away the benefits granted by the Memorandum dated 11.10.2011, whereby it was mandated that service rendered on contract/ad hoc/work-charged basis will not be counted for calculating length of service after such employees are appointed to the same post or any other post by direct recruitment through the NPSC or Departmental Selection Board. It is contended by him that the Office Memorandum dated 11.10.2011 are in three categories and the petitioners fall in the second category. He has also submitted that the said Memorandum dated 22.12.2011, at any rate, having not been issued in supersession of the earlier three Memoranda cannot be read in isolation and four Memoranda issued on the subject of counting of contract/ad hoc period for retirement, namely, 26.11.2009,15.2.2010, 11.10.2011 and 22.12.2011 should be read-together and a conjoint reading of the same, would indicate that ad hoc service shall not be computed for the purpose of determination of thirty-five years of length of service. It is also contended by him that the purported deeming regularization at the fag end of the service career of the petitioners without any basis, is wholly illegal and cannot be sustained. He has also submitted that ad hoc service does not come within the meaning of public employment as defined under the Act and public employment means only substantive employment. The learned counsel submits that Central Civil Services (Pension) Rules, 1972 has no application in the facts of the case. He has submitted that one Er. Mezakrol was allowed to go on superannuation by a notification dated 27.1.2011 w.e.f 28.2.2011, taking his date of entry into service as 10.5.1976, which was the date of regular appointment, though he was appointed initially on ad hoc basis by an order dated 11.1.1975. It is submitted that the petitioners are similarly situated with Er. Mezakrol was allowed to go on superannuation by a notification dated 27.1.2011 w.e.f 28.2.2011, taking his date of entry into service as 10.5.1976, which was the date of regular appointment, though he was appointed initially on ad hoc basis by an order dated 11.1.1975. It is submitted that the petitioners are similarly situated with Er. Mezakrol and they cannot be discriminated by the authorities by taking into consideration the period of ad hoc service for the purpose of determining the length of service of thirty-five years. If the same yardstick was applied to him, the said engineer should have retired on 11.1.2010. To fortify his submissions, the learned counsel relies upon the judgments of the Apex Court in (i) Ch. Narayana Rao Vs. Union of India & Ors., reported in (2010) 10 SCC 247 , (ii) P. Venugopal Vs. Union of India, reported in (2008) 5 SCC 1 , (iii) Man Singh Vs. Commissioner, Garhwal Mandal Pauri & Ors., reported in (2009) 11 SCC 448 . 13. Mr. B. N. Sarma, learned senior counsel appearing for the petitioners in WP(C) 18(K)/12 has also endorsed the submissions of Mr. Taka Masa. He has elaborated by saying that Government had taken the date of regular appointment as the date of joining and though the petitioners were appointed on ad hoc basis prior to being regularly appointed; seniority was not counted for the period rendered on ad hoc basis. It is further submitted by him that by introducing the concept of "deemed regularized", the Government has created an anomalous situation inasmuch as the employees would now have 2 dates of regular appointment, which is not conceivable in law. He has also submitted that "deemed regularized", which is a fiction of law, cannot be created by a notification and to buttress his contention, the learned senior counsel places reliance in the case of V.C., Banaras Hindu University & Ors. Vs. Shrikant, reported in (2006) 11 SCC 42 . He has submitted that as the ad hoc service is irregular and does not come within the ambit of Section 2, the earlier 3 Memoranda rightly excluded ad hoc service for the purpose of computation of thirty-five years of length of service. Vs. Shrikant, reported in (2006) 11 SCC 42 . He has submitted that as the ad hoc service is irregular and does not come within the ambit of Section 2, the earlier 3 Memoranda rightly excluded ad hoc service for the purpose of computation of thirty-five years of length of service. The learned senior counsel also submits that the impugned Memorandum dated 22.12.2011 is without jurisdiction as the Government has no power to override statutory rights of employees in the matter of pension, leave etc. by an executive instruction. He also submits that Memorandum dated 22.12.2011 can apply, if otherwise valid, only if all the benefits are given to the employees. It is also his contention that in respect of the petitioner, there is no continuity of service. The learned senior counsel places reliance in the case of Ramchandra Murarilal Bhattad Vs. State of Maharashtra & Ors., reported in (2007) 2 SCC 588 . 14. Mr. C.I. Jamir, learned senior counsel appearing for some of the writ petitioners, while primarily endorsing the submissions of Mr. Taka Masa and Mr. Sarma, who had argued before him, submits that the affidavit on behalf of the Government was not sworn by a competent person, he being neither authorized by the Government nor being a party to the proceedings and as such, the affidavit should not be relied upon. He has also echoed the submission of Mr. Sarma that for all practical purposes, it is the date of joining on regular appointment which matters and that is why the Government has reflected dates of regular appointment as the date of joining, whenever necessary, and as the ad hoc employee has no right to the post, such service has to be excluded while reckoning the length of service. He has also submitted that "deemed regularized" as finding place in the Office Memorandum dated 22.12.2011 is unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India He has also urged that just as ad hoc service cannot be clubbed together with regular service for grant of revised pay scale, on the same analogy, the ad hoc service cannot be computed for the purpose of determining thirty-five years of length of service for the purpose of superannuation. He submits that merely because increments are earned during ad hoc service, such service cannot be taken into consideration for computing thirty-five years of length of service. The learned senior counsel submits that while there was no confusion in the Office Memoranda earlier issued, the Office Memorandum dated 22.12.2011 has created confusion and contradictions and as such, the same deserves to be quashed. He relies upon judgments of the Apex Court rendered in (i) Secretary, State of Karnataka & Ors. Vs. Umadevi, reported in (2006) 4 SCC 1 , (ii) Punjab State Electricity Board & Ors. Vs. Jag Jiwan Ram & Ors., reported in (2009) 3 SCC 661 and (iii) State of Raj as than & Ors. Vs. Jagdish Narain Chaturvedi, reported in (2009) 12 SCC 49 . 15. Mr. Kekhriengulie, learned counsel for some of the writ petitioners, adopts the arguments of his learned predecessors. 16. The learned Advocate General, Nagaland submits that none of the Office Memoranda, which had been issued by the Chief Secretary to the Government of Nagaland on the subject of counting of contract/ad hoc period for retirement, satisfies the requirements of Section 5 of the Act. The learned Advocate General submits that the writ petitioners have assailed Office Memorandum dated 22.12.2011 on the ground that the same has not satisfied Section 5 of the Act and yet, they are trying to take advantage of the earlier 3 Memoranda on the subject and, more particularly, upon the Office Memoranda dated 15.2.2010 and 11.10.2011, although the said Office Memoranda also suffer from the same vice, namely, they have also not been published in the gazette and have not been placed before the Assembly. The learned Advocate General submits that the legislature had not made any classification regarding ad hoc or regular service and what is provided for is thirty-three years from the date of joining public employment and therefore, what is relevant is the date of joining public employment. The learned Advocate General submits that having regard to the definition of public employment as defined in Section 2 (1) of the Act, there is no escape from the conclusion that date of joining in ad hoc service will also count for computing thirty-three years for the purpose of retirement from public employment. The learned Advocate General submits that having regard to the definition of public employment as defined in Section 2 (1) of the Act, there is no escape from the conclusion that date of joining in ad hoc service will also count for computing thirty-three years for the purpose of retirement from public employment. The learned Advocate General, by placing great reliance on the judgment of the Apex Court which upheld the validity of the Act, submits that 3098 employees had retired from 31st October 2009 to 31st December, 2009 on completion of thirty-five years of service. He also points out from the said judgment that 145 employees who had retired during the said period, had joined service at the age of 9 to 17 years. It is also his submission that when no relief has been granted by the Apex Court, the present petition should be dismissed. 17. Mr.P. Pius Lotha, learned counsel for the respondent No.5 in WP(C) 270 (K)/11 adopts the submission of the learned Advocate General, Nagaland. 18. In reply, Mr. Taka Masa, learned counsel submits that authority cannot attack its own orders and that the judgment of the Apex Court relied on by Mr. Balgopal has to be understood in the context in which it was passed. He has also placed reliance on the judgments of the Apex Court rendered in (i) State of 'Assam & Anr. Vs. Raghava Rajgopalchari, reported in 7972 SLR (Vol-7) 44 (SC) and in (ii) State of Himachal Pradesh & Anr. Vs. Anjana Devi & Ors. reported in (2009) 5 SCC 108 . 19. Mr. B.N. Sarma, learned senior counsel submits that the arguments advanced by the learned Advocate General with regard to the Memoranda dated 26.11.2009, 15.2.2010 and 11.10.2011 is wholly misconceived inasmuch as there is no challenge to the said Memoranda and therefore, the said Memoranda should prevail and the said Memoranda having enjoined that ad hoc service/contract service has to be excluded for the purpose of computation of thirty-five years of length of service, this Court should issue a Mandamus to the State authorities to take the date of regular date of joining as the basis for computing thirty-five years of service for the purpose of retirement in terms of Section 3 of the Act. 20. 20. It will be appropriate to reproduce, at this stage, the Office Memoranda dated 26.11.2009, 15.12.2010, 11.10.2011 and 22.12.2011 herein below: (A) Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) No.AR-5/ASSO/98(Pt-I) Dated, Kohimathe 26th November, 2009 OFFICE MEMORANDUM Sub:- Counting of Contract/Adhoc period for retirement. Many departments have sought clarification as to whether the services rendered by an employee on contract/adhoc/work-charged appointment should count for fixing of length of service. The standing guidelines of the Government is that, the period of such service rendered is being counted for increment, leave, pension and other service benefits, except seniority. The regularized work-charged employees are also entitled to count in full their continuous work-charged service towards pension benefits. Therefore, it is further clarified that the contract/adhoc/work-charged period thus rendered will count for determining length of service for pension purpose in terms of the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009. The above decision will be equally applied to both the officers/staffs coming from outside the State who are appointed on contract basis and the employees of this State Government in similar cases. Sd/- Lalthara Chief Secretary to the Govt. of Nagaland (B) Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) No.AR-5/ASSO/98(Pt-1) Dated, Kohima the 15th February, 2010 OFFICE MEMORANDUM Sub:- Counting of Contract/Adhoc period for retirement. In continuation of this Departments' O.M. even number dated 26.11.2009, it is hereby further clarified that those contract/adhoc/work-charged service of an employee is followed by regularization, in the same post, the period rendered on contract/adhoc will be counted towards their length of service. In the case of those employees who are on contract or adhoc and who had been given direct appointment to the same post or any other post, through the NPSC or Selection Board, their contract/adhoc period of service will not be counted towards length of service. However, in the case of those who are in regular Government service and who were subsequently given direct appointment to any other post through the NPSC or the Selection Board their earlier service will be counted towards length of service provided that the employee has been allowed to count the former service period for the purpose of leave and pension etc as per records of service book. Sd/- Lalthara Chief Secretary to the Govt. Sd/- Lalthara Chief Secretary to the Govt. of Nagaland (C) Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) No. AR-5/ASSO/98(Pt-I) Dated, Kohima the 11th October, 2011 OFFICE MEMORANDUM Sub:- Counting of Contract/Adhoc period for retirement. In partial modification of this Departments' Office Memorandum of even number dated 26 November, 2009 and dated 15th February, 2010, the following further clarifications are hereby issued in regard to counting of contract/adhoc/regular past service for length of service for the purpose of retirement under the Nagaland Retirement from Public Employment Act, 2009. (1) Whenever a person who is on contract/adhoc/work-charged basis is subsequently regularized to the same post, the past services rendered on contract/adhoc/work-charged basis will be counted towards the length of service. (2) Whenever a person appointed on contract/adhoc/work-charged basis, but instead of his services being regularized, he is subsequently appointed to the same post or any other post by direct recruitment through the Nagaland Public Service Commission or Departmental Selection Board, the length of service of the employees rendered on contract/ad hoc/work-charged will not be counted. (3) Whenever a person is appointed in regular Government service, but subsequently given direct appointment to any other post, either through the Nagaland Public Service Commission or Departmental Selection Board, the past regular service will be counted for the length of service, if the employee is given any benefit or continuity of the past regular service, but if no such benefit is given in the new posts/service, then the former service shall not be counted. Here, benefit or continuity of past service can include increment, leave entitlement, counting of such service for length of service for pension purpose etc. (4) This Office Memorandum will come into force with immediate effect. Sd/- Lalthara Chief Secretary to the Govt. of Nagaland (D) Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) No.AR-5/ASSO/98(Pt-I) Dated, Kohima the 22nd December, 2011 OFFICE MEMORANDUM Sub:- Counting of Contract/Adhoc period for retirement. (1) Whereas a number of cases have come to the notice of the Government wherein service benefits in the form of increment, leave accumulation, etc for adhoc/contract period of appointment of Government servants have been carried forward on their subsequent regular appointment to the same or other post through the Nagaland Public Service Commission or Departmental Selection Boards even without formal regularization of the contract/ad hoc service. (2) It is, therefore, clarified that for the purpose of calculation of length of service under Nagaland Retirement from Public Employment (Second Amendment) Act, 2009, such adhoc/contract period will be considered as 'deemed regularized' and counted towards the length of public service of the employee. (3) The Office Memorandum is issued in continuation of this Departments' earlier Office Memorandum of even number dated 26.11.2009, dated 15.02.2010 and dated 11.10.2011, and specifically in clarification of point 2 in O.M. dated 11.10.2011. Sd/- Lalthara Chief Secretary to the Govt. of Nagaland 21. All the petitioners had rendered service on ad hoc basis before they were regularly selected and appointed. The aforesaid Office Memoranda had been issued, according to the State respondents, as many Departments had sought clarification as to whether service rendered by an employee on contract/ad hoc/work-charged basis should count for fixation of length of service. The Office Memoranda dated 26.11.2009 clarified that contract/ad hoc/work-charged period will count for determining length of service for pension purpose. This Memorandum did not specifically spell out as to whether such service should count for fixing length of service for the purpose of retirement. Office Memoranda dated 15.2.2010 and more particularly, Office Memoranda dated 11.10.2011, however, specifically excludes contract/ad hoc period of service in case the employees were appointed by direct recruitment to the same post or on any other post on the basis of selection through NPSC or Selection Board. 22. There is no dispute that all the aforesaid Office Memoranda were issued on the subject of counting of contract/ad hoc period for retirement. The learned counsel for the parties are also agreed that the said Memoranda were issued under Section 5 of the Act. In fact, there cannot be any two opinions that these Office memoranda are issued under the said provision. 23. The writ petitioners rely on the Office Memoranda dated 26.11.2009,15.12.2010 and 11.10.2011 to claim that length of service for the period rendered on contract/ad hoc/work-charged period should not be counted. The counsel for the writ petitioners have argued that the Office Memorandum dated 22.12.2011 has been issued in violation of Section 5 of the Act as the said Office Memoranda has not been gazetted. It is not the case of the writ petitioners that the previous 3 Office Memoranda had been duly gazetted. The counsel for the writ petitioners have argued that the Office Memorandum dated 22.12.2011 has been issued in violation of Section 5 of the Act as the said Office Memoranda has not been gazetted. It is not the case of the writ petitioners that the previous 3 Office Memoranda had been duly gazetted. On the contrary, the learned Advocate General is emphatic in his submission that none of the aforesaid Office Memoranda had been gazetted and placed before the Legislative Assembly. The response to the aforesaid submission was articulated by the learned counsel for the petitioners by submitting that the State cannot question its own action and that as there is no challenge to the said Office Memoranda, this Court ought not to scrutinize the legitimacy of the said Office Memoranda. Though it is correct as held in Raghava (supra) that the State cannot question its own actions in a writ proceeding, however, it is not that in the instant case the State is questioning its own action but has only brought to the notice of the Court the factual position. The petitioners are invoking equity jurisdiction of this Court and though the said Memoranda are not challenged, this Court certainly cannot grant relief to the petitioners on the basis of such Office Memoranda by ignoring and glossing over the apparent infirmity in the Office Memoranda, which strikes at the very root, denuding the legitimacy of such Office Memoranda and thus, enforceability of the same. The Writ Court, in such circumstances, can decline to invoke its extra-ordinary jurisdiction to grant discretionary relief. 24. The Office Memorandum dated 22.12.2011 having not fulfilled the mandate of Section 5 of the Act, it is, ex-facie, legally not sustainable and no consequence can flow from the same and therefore, the same is set aside and quashed. As the said Memorandum has been set aside, it is not necessary to go into the concept of "deemed regularized" introduced in the said Memorandum as well as tenability or otherwise of the stipulation regarding counting of contract/ad hoc service towards length of public service of an employee. As the Office Memorandum dated 22.12.2011 has been set aside, it is also considered not necessary to discuss the law relating to regularisation as enunciated in Umadevi (supra) on which much reliance was placed by Mr. Jamir in the context of the said Office Memorandum dated 22.12.2011. As the Office Memorandum dated 22.12.2011 has been set aside, it is also considered not necessary to discuss the law relating to regularisation as enunciated in Umadevi (supra) on which much reliance was placed by Mr. Jamir in the context of the said Office Memorandum dated 22.12.2011. At the same time, for the reasons recorded, the writ petitioners are also not entitled to any benefit on the basis of the clarificatory Office Memoranda dated 26.11.2009, 15.2.2010 and 11.10.2011. 25. It will now have to be seen as to whether without the benefit of the aforesaid Office Memoranda dated 26.11.2009, 15.2.2010 and 11.10.2011, the petitioners can succeed in their contention that ad hoc service cannot be counted for the purpose of computation of thirty-five years of length of service for the purpose of retirement. 26. But before that aspect of the matter is considered, it will be only appropriate, at this stage, to deal with the contention of Mr. Jamir that the affidavits filed by the State should not be relied upon. The affidavit(s) had been sworn by a Senior Research Officer in the Department of Personnel & Administrative Reforms, for short, OOP & AR. It is to be noted that the OOP & AR had prepared a profile of average length of service put in by the Government employees which ultimately was the foundation of the 2nd Amendment Act. The Office Memoranda in question were also issued by the OOP & AR. The OOP & AR is a Department which is involved and associated with the entire exercise and therefore, this Court is unable to accept the contention that the deponent who swore the affidavit(s) was not competent. True, the deponent did not say that he swore the affidavits) on being authorised, but the State has not disowned the affidavits. Accordingly. on overall consideration of the matter, the contention of Mr. Jamir is rejected. 27. True, the deponent did not say that he swore the affidavits) on being authorised, but the State has not disowned the affidavits. Accordingly. on overall consideration of the matter, the contention of Mr. Jamir is rejected. 27. Section 2 of the Act defines Public Employment and the same reads as follows: "(1) Public Employment" means appointment to any pensionable State Public Service or posts in connection with the affairs of the State of Nagaland and the Nagaland Legislative Assembly and includes any appointment under the Government of India, any other State Government, Central or State Public Sector undertaking and local authority held by the persons prior to their absorption under the Public Service of the State of Nagaland and the Nagaland Legislative Assembly which counts for the purpose of pension." 28. A perusal of the aforesaid definition would go to show that any appointment to any pensionable State Public Service or posts connected with the affairs of the State of Nagaland and the Nagaland Legislative Assembly is included in the definition of Public Employment. It does not refer to any regular appointment or ad hoc appointment. 29. In Ch.Narayana Rao (supra), the appellant before the Supreme Court was appointed on ad hoc basis, that too temporarily on 26.11.1981 to the post of Stenographer. He was regularized from 12.4.1992 after he had qualified in the proficiency test in Stenography conducted by the Staff Selection Commission in 1992. He had prayed for regularization of service from the date of his initial appointment and to treat his full ad hoc service as qualifying service for the purpose of pensionary benefits. There was no fruitful result from his representation and he approached the Principal Bench of Central Administrative Tribunal, Delhi. His prayer was rejected by the Tribunal as well as by the Division Bench of the High Court and the Apex Court also held that his seniority had been correctly worked out from the date he had passed the Stenography test as contemplated under the Rules approved by the Staff Selection Commission. In P. Venugopal (supra), it has been held by the Supreme Court that a Government servant entering into Government service does not forgo his fundamental rights and on the other hand, because of his status as a person in public employment, he acquires additional rights constitutionally protected. In P. Venugopal (supra), it has been held by the Supreme Court that a Government servant entering into Government service does not forgo his fundamental rights and on the other hand, because of his status as a person in public employment, he acquires additional rights constitutionally protected. The State or other public authorities are not, therefore, entitled to make and impose laws governing the service conditions of an employee which manifestly deprives him of the privileges of the status. A person in public employment is endowed with a status not merely subjecting him to liabilities and obligation but also protecting him against any arbitrary, unreasonable and unequal treatment. In Ramchandra Murarilal Bhattad (supra), the Supreme Court laid down that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden. In Man Singh (supra), the Supreme Court negated the contention of the appellant that as he had been working for a long time, he should have been given preference over another person who had secured high marks than him in the matter of appointment. The aforesaid judgments, in the considered opinior of the Court, do not lay down any propositior of law which furthers the case of the petitioners in respect of the issues involved in this case. 30. In State of Rajasthan & Ors. Vs. Jagadish Narain Chaturvedi (supra), the Supreme Court laid down that the question of promotion arises only when appointment is a regular appointment. Appointment to 1 post is not relevant and what is relevant is t period relatable to the cadre of the service and therefore, starting point has to be when employee is born in the cadre. Ad hoc employee has no right to the post and ad hoc appointment does not count for the purpose of seniority. It also laid down that while reckoning the required length of service, the period of ad hoc service has to be excluded. 31. In Punjab State Electricity Board & Ors. Vs. Jag Jiwan Ram & Ors. (supra), the Supreme Court held that the employees appointed on work-charged establishments are not entitled to service benefits available to regular employees. It also laid down that while reckoning the required length of service, the period of ad hoc service has to be excluded. 31. In Punjab State Electricity Board & Ors. Vs. Jag Jiwan Ram & Ors. (supra), the Supreme Court held that the employees appointed on work-charged establishments are not entitled to service benefits available to regular employees. They constitute a distinct class and they cannot be equated with any other category or class of employees, much less "regular employees, and further work-charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant Rules or Policy framed by the employer. Even the ad hoc appointees cannot claim parity with regular employees in the matter of pay fixation, grant of higher scale etc. It has also been held that the ad hoc service cannot be clubbed with regular service for the purpose of grant of Revised Pay Scale, Senior/Selection Grade, Proficiency step-up and for fixation of seniority. 32. The Supreme Court in the judgment dated 6.7.2010 in Civil Appeal No.4955/2012 at Paragraphs 18,39,43 to 45 stated thus: "18. The State justified 2nd Amendment Act, 2009 and OM dated July, 2009 by filing a detailed affidavit in opposition to the writ petition. They set up the plea that youth in the State were not getting an opportunity in the matters of public employment because of long period of service of the existing employees who would serve up to 42 years resulting in a sense of frustration and stagnation amongst educated youth; that educated youth who remain unemployed out of sheer desperation pursue avocation which is not in tune with the law; and that the amended law would result in removal of stagnation in the matters of employment to the unemployed and thereby making employment opportunities less arbitrary, reasonable and in consonance with the constitutional provisions. It was submitted that by 2nd Amendment Act, 2009, the employment prospects of the youth are protected whereby the number of years of service would be restricted to 35 years while maintaining the age of superannuation at 60 years. The State also submitted that the literacy rate in Nagaland is amongst one of the highest in India and the high literacy rate coupled with the fact that there are no other avenues for employment except through the Government sector has increased the unemployment problem to an alarming extent. The State also submitted that the literacy rate in Nagaland is amongst one of the highest in India and the high literacy rate coupled with the fact that there are no other avenues for employment except through the Government sector has increased the unemployment problem to an alarming extent. After a thorough and systematic appreciation and study of the unemployment problem and also the social aspects, the State decided to prescribe the maximum length of service for retirement of its employees in addition to the upper age limit of 60 years. The State explained the peculiar circumstances that necessitated the insertion of 35 years of length in the Government employment for superannuation. 39. Section 3 as substituted by 2nd Amendment Act, 2009 is designed to lay down a general framework of retirement policy. It seeks to put a cap on the number of years an employee may be allowed to be in the service of the State Government in order to make available job opportunities in a more equitable manner to its educated youth. In the counter affidavit filed by the State before this Court in opposition to the SLP, the impugned clause has been principally sought to be justified on the following grounds. (1) Nagaland is a small State, and industrially and economically, the State is in disadvantageous position. (2) The avenues of employment in the State is strictly limited. There are about 3 lac educated unemployed youths waiting for their employment under the State. (3) With the raising of retirement age from 57 to 60 years, it became necessary for the State to ensure and provide reasonable avenues of employment to a large body of educated youth. (4) On delicate and fine balancing of the competing interest of different groups, namely, people waiting for employment and those already in employment, the State Government evolved an additional mode of retirement, i.e. completion of 35 years of service. (5) Long period of service of the existing employees has resulted in sense of frustration and stagnation amongst large number of educated unemployed youth. These were the grounds set up by the State in the counter affidavit before the High Court as well. 43. (5) Long period of service of the existing employees has resulted in sense of frustration and stagnation amongst large number of educated unemployed youth. These were the grounds set up by the State in the counter affidavit before the High Court as well. 43. During the course of arguments, on behalf of the State a statement was submitted that indicated that 3098 employees retired from October 31, 2009 to December 31, 2009 on completion 35 years of service although they had not completed the age of 60 years; of 3098 employees, 181 retired at the age of 53 years and 512 retired at the age of 54 years. The statement thus indicated that percentage of employees retiring at the age of 53 is 5.84 per cent and those retiring at the age of 54 years is 16.52 per cent during the aforesaid period. It further transpired therefrom that 145 employees joined service at the age of 9 to 17 years. 44. The aforesaid position, however, has been disputed by the appellants. According to them 4680 employees at different age retired upto March 31, 2012. The statement annexed with the written arguments on behalf of the appellants in this regard is as follows:- Age Number Percentage Below 53 256 5.5 53 429 9.5 54 757 16 55 1167 24 Above 55 2017 45 Total 4690 (4680-SIC) The appellant's contention is that 31 per cent employees retired at the age of 54 and below which constitutes a substantial section of the total retirees and that also shows that the impugned enactment is arbitrary. 45. In so far as factual aspect is concerned, we have no justifiable reason to disbelieve the statement submitted by the State Government indicating that 3098 employees retired on completion of 35 years of service with effect from October 31, 2009 to December 31, 2009. There is variation because appellants have given the figures of the employees who retired upto March 31,2010. Be that as it may, it appears that most of the employees retired at the age of 54 and above and the persons retiring at the age of 53 are only 5.84 per cent. The persons retiring at the age of 52 and below are those who joined the Government service at the age of 9 to 17 years. Be that as it may, it appears that most of the employees retired at the age of 54 and above and the persons retiring at the age of 53 are only 5.84 per cent. The persons retiring at the age of 52 and below are those who joined the Government service at the age of 9 to 17 years. Merely because some employees had to retire from public employment on completion of 35 years of service although they have not completed 55 years of age does not lead to any conclusion that the impugned enactment is arbitrary, irrational, unfair and unconstitutional. The fact that provision such as the impugned provision that allows the retirement from public employment on completion of 35 years' service is not to be found in other States is of no relevance. As a matter of fact, retirement policy concerning public employment differs from State to State. Kerela retires employees from public employment at the age of 55 years. In any case there is nothing wrong if the legislation provides for retirement of the Government employees based on maximum length of service or on attaining particular age, whichever is earlier, if the prescribed length of service or age is not irrational." 33. From the aforesaid, it is seen that the Supreme Court had noted that persons who had joined Government service in the age group of 9 to 17 years had also to retire on the yardstick of completion of thirty-five years of service and the persons retiring at the age of 52 years and below are those who had joined Government service at the age of 9 to 17 years. It is not the case of the writ petitioners that all these persons who had retired after coming into force of the Act on 31.10.2009 completed 35 years of service from regular appointment and that the ad hoc/contract service in respect of those retired persons were excluded in computing the period of 35 years. 34. The decision in Jagdish Narayan (supra) was rendered in the context of promotion and, therefore, the observation of the Apex Court that period of ad hoc service is to be excluded while reckoning the required length of service, has to be understood in the context in which the said observations were made. The decision of the Apex Court in Jag Jiwan Ram & Ors. The decision of the Apex Court in Jag Jiwan Ram & Ors. (supra) that the ad hoc appointees cannot claim parity with regular employees in the matter of pay fixation, grant of higher scale etc. and that such service cannot be clubbed with regular service for the purpose of grant of revised pay scale, fixation of seniority etc. cannot form the basis of the argument that such service necessarily has to be excluded in the calculation of length of service for all purposes. An ad hoc appointee may not be entitled to all the benefits to which a regular employee may be entitled to, but such a distinction will not detract his position as a Government servant in asmuch as he continues to be in Government service. This Court is of the opinion that in view of the express provision defining public employment, which does not differentiate between regular appointment and ad hoc/contract/work-charged appointment for the purpose of retirement, period rendered on such basis has to be computed for the purpose of computation of thirty-five years of public employment. Section 3(2) of the 2nd Amendment Act, in unambiguous terms, provides that a person in public employment shall retire in the afternoon of the last day of the month in which he attains the age of 60 years or in which he completes thirty-five years of public employment, whichever is earlier. The appointment of the petitioners on ad hoc basis squarely comes under the definition of public employment. It is seen that in respect of all the writ petitioners, including the writ petitioner in WP (C) 18(K)/2012, there is continuity in service and they have been in continuous public employment. Even if the Government had taken the dates of regular appointment as the date of joining, the same has to be construed to be for governing service conditions of the petitioners other than for the purpose of retirement. The provisions of the Act provide for retirement of Government employees on the basis of length of service, which is thirty-five years, and this is how employees, who had joined service at the age of 9 to 17 years, had retired at the age of 52/53 years etc. 35. The provisions of the Act provide for retirement of Government employees on the basis of length of service, which is thirty-five years, and this is how employees, who had joined service at the age of 9 to 17 years, had retired at the age of 52/53 years etc. 35. In Anjana Devi (supra), Supreme Court had laid down the proposition that discrimination presupposes classification of similarly situated persons into different groups without any reasonable basis, for extending dissimilar benefits or treatment. This case was relied upon by the learned counsel for the petitioners to impress upon the Court that Er. Mezakrol and the writ petitioners stand on the same footing and yet dissimilar treatment is sought to be meted out to the petitioners. In the affidavit filed by the State, it was asserted that the petitioners and the said Er. Mezakrol are not similarly situated. Even assuming that the petitioners and the said Er. Mezakrol are similarly situated, if a benefit was wrongly given to said Er. Mezakrol, writ petitioners cannot sustain a plea in law that they are also entitled to the same benefit irrespective of the fact that such benefit was wrongly given. 36. In view of the aforesaid discussion, there is no merit in these writ petitions and accordingly, the writ petitions are dismissed. 37. No costs. _____________