JUDGMENT & ORDER (CAV) Heard Mr. Imti Longchar, learned counsel appearing for the petitioner and also Mr. V. Zhimomi, learned Government Advocate for the State respondents. 2. This is a writ petition under Article 226 of the Constitution of India filed by a widow whose husband died while serving as Work-charged Mohourrer in the Directorate of Sericulture, Government of Nagaland, praying for regularization of the service of her late husband for the purpose of pensionary benefits and family pension including interest at the rate of 12% per annum. 3. The case of the petitioner is that her husband Late T. Imlimeren Ao @ Imlimeren was appointed as work charged Mohourrer in the Directorate of Sericulture, Government of Nagaland vide office order No.SERI/APPT/91-92, dated 20/7/1992 issued by the Director of Sericulture in the scale of pay of Rs.425-9-542-12-614-EB-14-670-15-730/Pm plus inner line compensatory allowance of 25% of the basic pay and all other allowances as admissible under the Rules amended from time to time in the State. Thereafter, the service of her husband was extended by office orders issued from time to time thereafter and continued in service till he died on 19/5/2008. That Mr. T. Imlimeren was given annual increment like any other regular employees and a service book was maintained from the date of his appointment until the time he died on 19/5/2008. 4. That when her husband Late T. Imlimeren Ao died on 19/5/2008 due to cancer he left the following family members including herself:- Sl.No Name Relation Date of birth 1. Imtisangla Wife 12-12-1972 2. Temsutuba Son 05-06-1991 3. Tiatoshi Son 11-12-1992 4. Yashitsungba Son 21-07-1995 5. Sentienla Daughter 27-06-1996 5. After the death of her husband, a death certificate dated 7/6/2010 was issued by the Government of Nagaland, Department of Economic & Statistics under section 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Nagaland Registration of Births and Deaths (Amendment) Rules 1999 Act. The District Judge Mokokchung Nagaland also issued a Succession Certificate dated 6/9/2010 in her favour for the purpose of receiving GPF/GIS/Gratuity, Leave encashment and pension. 6. That her husband despite of having served the State for 15 years 9 months and 15 days devotedly was not regularized in service. The District Judge Mokokchung Nagaland also issued a Succession Certificate dated 6/9/2010 in her favour for the purpose of receiving GPF/GIS/Gratuity, Leave encashment and pension. 6. That her husband despite of having served the State for 15 years 9 months and 15 days devotedly was not regularized in service. As such, a representation was submitted by her to the Director, Sericulture, Government of Nagaland to regularize the service of her Late husband so that she can avail family pension and other pensionary benefits. But the same was not considered by the Director, Sericulture. Therefore, the petitioner through her learned counsel served a legal notice dated 24/9/2015 to the Director of Sericulture asking him to regularize the service of her Late husband from the date of his initial appointment for the purpose of family pension and other pensionary benefits. Thereafter, through a letter No.SERI/PF/96/92/398, dated 19/10/2015 the Director, Sericulture informed the petitioner that her husband was not entitled to be regularize in service and also not eligible for pension benefits as per CCS Rules. The relevant portion of the letter as given in the petition is given below:- “I am to state that Late Imlimeren was appointed as Work charge Mohorer w.e.f. 1-8-92 continued upto 31-3-2000 extended for a period of 6(six) months from time to time enclosed annexure 1 to 15, but from 2000 onwards the service of Late Imlimeren was extended w.e.f. 1-4-2000 to 30-3-2001 with 1(one) day break each year i.e 31-3-2001 which continues till 30-3-2003 enclosed Annexure 16 to 17. Further he was appointed w.e.f. 14-4-2002 with a gap of 14(fourteen) days enclosed annexure 18 and extension continued in the same manner with 1(one) day break upto 30-3-2008. Further as per the record available in the department the service of Late Imlimeren was not extended beyond 30-3-2008. Moreover as per the CCS pension Rules as applicable in Nagaland services Late Imlimeren does not entitled for pension.” 7. The learned counsel for the petitioner submitted in support of the petitioner’s case as follows that the so called service break mentioned in the letter of the Director Sericulture are artificial since Late Imlimeren continuously rendered his service. 8. Moreover as per the CCS pension Rules as applicable in Nagaland services Late Imlimeren does not entitled for pension.” 7. The learned counsel for the petitioner submitted in support of the petitioner’s case as follows that the so called service break mentioned in the letter of the Director Sericulture are artificial since Late Imlimeren continuously rendered his service. 8. That on 19/11/2015, the petitioner through her learned counsel filed an RTI application before the Public Information Officer of the Directorate of Sericulture seeking for the following information:- “List of all work-charged Mohorrir/Mhourrer who were appointed since 01-01-1992 and whose services were subsequently regularized alongwith their regularization order.” In reply the Deputy Director/PIO, Directorate of Sericulture vide his letter NO.SERI/RTI/Appli.Ref/1/2008(Vol-I)859 dated 15/12/2015 furnished the following information:- LIST OF WORKCHARGE MOHOURRER APPOINTED SINCE 01-01-1992 AND SUBSEQUENT REGULARIZATION Sl.No NAME REMARKS 1 Shri T.Imlimeren Ao, Mohourrer (i) First appointment Order enclosed in Page-1 (ii) The incumbent expired before regularization 2. Shri Wati Nungsand, Mohourrer (i) First appointment Order enclosed in Page-2 (ii) Regularized as Sericulture Operator Appointment order enclosed in Page-3 3. Shri. Etmin T.Sangma, Mohourrer (i) First appointment order enclosed in Page-4 (ii) Regularized as Sericulture Operator, Appointment order enclosed in Page-5 4. Shri I.Keoshu Yimchunger, Mohourrer (i) First appointment order enclosed in Page-6 (ii) The incumbent expired before regularization. It is submitted by the learned counsel for the petitioner that Shri Wati Nungsang, Mohourrer whose name appears at Sl.No.2 in the table given above was appointed on 10/6/1992 i.e. the same year in which the husband of the petitioner Late Imlimeren was appointed and Shri Etmin T. Sangma whose name appears at Sl.No.3 of the same table was appointed on 5/11/1999 i.e.7 years after the petitioner’s husband was appointed. Both were regularized by a common order NO.SERI/APPT/22/80(Vol-IV) dated 24/9/2013 but leaving behind the case of the petitioner’s late husband. Such regularization of the service of similarly situated persons and even a person junior to her husband while denying the same treatment to him was arbitrary, illegal and whimsical. Therefore, the petitioner’s husband should also be regularized so that she may be entitled to all pensionary benefits. The learned counsel further submitted that under Rule 2 clause 1 read with Rule 3 of the Central Civil Services (Pension) Rules, 1972, the petitioner is entitled to get all pensionary benefits. Therefore, the petitioner’s husband should also be regularized so that she may be entitled to all pensionary benefits. The learned counsel further submitted that under Rule 2 clause 1 read with Rule 3 of the Central Civil Services (Pension) Rules, 1972, the petitioner is entitled to get all pensionary benefits. The provisions of the said Rules relied upon by the learned counsel are given herein below:- “2. Application- Save as otherwise provided in these rules, these rules shall apply to Government servants including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments but shall not apply to- (a) railway servants; (b) person in casual and daily rated employment; (c) persons paid from contogencies; (d) persons entitled to the benefit of a Contributory Provident Fund; (e) members of the All India Services; (f) persons locally recruited for service in diplomatic, Consular or other Indian establishments in foreign countries; (g) persons employed on contract except when the contract provides otherwise; and (h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. GOVERNMENT OF INDIA’S ORDER (1) Grant pensionary benefits to temporary Government servants retiring on superannuation/invalidation on completion of 20 years, (now ten years) temporary service- i. In terms of Rule 2 of the CCS (Pension) Rules 1972 a Government servant including civilian Government servant in Defence Services appointed substantively to a civil service of post in a pensionable establishment is eligible for the grant of pension and death-cum-retirement gratuity. A Government servant who at the time of retirement from service does not hold a lien on a permanent pensionable post is not eligible for pension and death-cum-retirement gratuity but is eligible for terminal gratuity under sub-rule(1) of Rule 10 or sub-rule(1) of Rule 11 of the C.C.S. (T.S) Rules, 1965. The question of grant of pension to Government servants who retire after long years of service without being confirmed in any post has been under the consideration of the Government. The question of grant of pension to Government servants who retire after long years of service without being confirmed in any post has been under the consideration of the Government. It has been decided that a Government servant who in his retirement from service on attaining the age of superannuation or on his being declared to be permanently incapacitated for further Government service by the appropriate medical authority after he has rendered temporary service of not less than twenty years (now ten years) shall be brought within the purview of the C.C.S.(Pension) Rules, 1972 and the condition holding a pensionable post in a substantive capacity shall be dispensed with in his case. Consequently, such a Government servant will be eligible for the grant of superannuation or invalid person, death-cum-retirement gratuity and family pension in accordance with the provisions of the aforesaid rules. 3. Death benefits- In the event of death in harness of temporary/quasi-permanent Government their families shall be eligible to family person and death gratuity on the same scale as admissible to families of permanent Government servants under the CCS (Pension) Rules, 1972. 8. The State respondent Nos. 1, 2 and 3 both through their joint affidavit and through their learned counsel Mr. V. Zhimomi, learned Government Advocate opposed the prayer of the petitioner stating as follows: that regularization of work-charged employees under the Government of Nagaland is governed by Office Memorandum No.AR-3/Gen-67/2001(Pt) dated 22/9/2004 issued by the Government of Nagaland of Personnel & Administrative Reforms (Administrative Reforms Branch). According to this policy work-charged employees can only be regularized against available regular vacancies. Therefore, in 2013 when regular vacancies arose, 2 work-charged employees under the establishment of the Directorate of Sericulture Nagaland were regularized but as for the husband of the petitioner, since he died in 2008 i.e. before the regular vacancies arose he could not be regularize in service. Now that he has died he can no longer be regularized in service. It is also submitted that under the said memorandum w/c employees will be entitled to count in full their continuous work-charged service towards pension benefits only when or if they are regularized and not otherwise. Therefore, the petitioner’s husband in no way was entitled to any pensionary benefits. It is also submitted that under the said memorandum w/c employees will be entitled to count in full their continuous work-charged service towards pension benefits only when or if they are regularized and not otherwise. Therefore, the petitioner’s husband in no way was entitled to any pensionary benefits. Lastly, the respondents submitted that though it is true that all pensionary benefits of employees under the Government of Nagaland are governed by CCS (Pension) Rules 1972, but since the petitioner’s husband was not appointed to pensionable post, he was not entitle to pension benefits under the same Rules. 9. I have considered the case of both the parties as stated above and also perused the relevant CCS (Pension) Rules 1972 relied upon by the learned counsel for the petitioner and the Office memorandum issued by the Government of Nagaland, Department of P &AR relied upon by the State respondents. The provisions of CCS (Pension) Rules on which the petitioner relied upon does not seem to help her case. The reason being that at clause (b) of Rule 2 of the same rules persons in casual and daily rated employment are excluded and the husband of the petitioner having been appointed and served only as work charged Mohourrer, he would come under that category. Therefore, he would not be entitled for pension under the CCS (Pension) Rules mentioned above. Further the word “borne on pensionable establishment” appearing at the last sentence of Rule 2 also indicates that only employees who were borne on pensionable establishment are entitle to pensionary benefits under that scheme. Moreover, the Government of India orders given above also provides pensionary benefits only to temporary Government servants who were appointed substantively to civil service or post in a pensionable establishment retiring on superannuation/invalidation on completion of 20 years (now 10 years) temporary service. The husband of the petitioner was not appointed substantively to a civil service or post in a pensionable establishment the State Government. He was appointed only as work charged Mohuorrer which means not against any substantive post. Therefore, he was not entitled to pension under the Rules/provisions of CCS(Pension) Rules and Government of India orders given above and relied upon by the learned counsel of the petitioner. 10. He was appointed only as work charged Mohuorrer which means not against any substantive post. Therefore, he was not entitled to pension under the Rules/provisions of CCS(Pension) Rules and Government of India orders given above and relied upon by the learned counsel of the petitioner. 10. Now coming to the Government Office Memorandum under which the scheme for regularization is provided for work charged employees of the State Government like the petitioner’s husband, before anything is stated the same is reproduce here for easy reference :- “Government of Nagaland Department of Personnel & Administrative Reforms (Administrative Reforms Branch) NO.AR-3/Gen-67/2001 (Pt) Dated, Kohima, the 22nd Sept’2004. OFFICE MEMORANDUM Sub: Policy and Scheme for Regularisation of service of Work-Charged ; Employees. There are large numbers of work charged employees in various Departments. Many of these employees have been serving continuously for many years. They have been representing to the Government for regularization of their service, Some Departments have been regularizing the service of work charged employees from time to time against available vacancies. However, no transparent and rational policy and criteria is discernible in the process of regularization of service of work charged employees. Therefore, in order to examine the issue of regularization of work charged employees in various Departments, the State Government set up a Committee under the Chairmanship of Shri Lalthara IAS, Additional Chief Secretary (Geology & Mining). On the basis of the recommendations of the Committee for regularisation of Work-Charged employees in the State, the Government hereby adopts the following policy and scheme for regularisation of the service of work charge employees serving under various Departments of the State Government. (i) Each Department having Work-Charged employees should maintain a list of work-charged employees in various categories in order of their length of service. (ii) Regularisation of work-charged employees will be done against available regular vacancies (iii) 50% of all regular vacancies of similar nature arising in a year will be reserved for regularisation of Work-Charged employees, and the remaining 50% will be filled up as per normal rules of recruitment; (iv) Work charged employees will have the right to be considered first for regularization against 50% of all future vacancies of similar nature in the Department 1 for which they possess the requisite qualification. Such regularization will be considered on the basis of seniority-cum-merit. Such regularization will be considered on the basis of seniority-cum-merit. This means that the senior most work charged employee in the relevant category will be regularized subject to his/her fitness for the vacant post. (v) In case no work charged employee is found suitable for regularization in terms of the above clause. (iv) The Department will obtain clearance of P&AR Department before making any fresh appointment against the quota reserved for work-charged employees explaining the circumstances for not being able to fill up the vacancy through regularization of work charged employee. (vi) No age bar would apply in cases for regularization if the Work-Charged employee is below the superannuation age. (vii) Regularized Work-Charged employees will be entitled to count in full their continuous work charged service towards pension benefits. (viii) Those Departments which have not approached the Nagaland work Charged and causal Employees Commission should do so immediately to get the optimum strength of Work- Charged employees fixed for their Departments. They should take all possible Measures including pursuing YRS option vigorously to being down the strength of Work-Charged employees to the level recommended by the commission. (ix) Adequate provision for payment of work charged employees should be made in the budget and regular monthly payment of work charged wages ensured. (x) All new work charged appointments should be banned. Any person accepting Work-Charged service in the Government would be doing so at his/her own risk. Any new work charged appointment should be treated as illegal and strict action taken against appointments specific approval of the cabinet must be taken. SD/- LALTHARA Addl Chief Secretary to the Government of Nagaland.” 11. It is crystal clear from Clause-ii of the Office memorandum that service of a work-charged employee can be regularized only against available regular vacancy. It is submitted on behalf of the respondents that vacancies to regular post arose in the Department where the petitioner’s husband served and died in harness only in 2013, therefore, only those work-charged employees who were at the time were regularized to the vacancies. It is submitted on behalf of the respondents that vacancies to regular post arose in the Department where the petitioner’s husband served and died in harness only in 2013, therefore, only those work-charged employees who were at the time were regularized to the vacancies. Though it may be true that the petitioner’s husband was not regularized as no vacancy of post occurred in the Department during his life time or till the last day he served in the Department, however, one must not forget that Government policies issued or notified in the form of Memorandum or notification are not issued for name sake but with a view to achieve a purpose intended. In a welfare State like ours, Government from time to time frame policies for the welfare of the people, and when such policies are framed and notified they give genuine expectation in the mind of the people for whom the Government exists, that such policies will be carried forward to bear fruit for their good. As stated above, in this case, the petitioner’s husband was appointed in the year 1992 and when the Office memorandum was issued in 2004 he had already worked for the Government for 12 years. Therefore, definitely, the petitioner’s husband must have had a lot of hope and expectation to be regularized in service in a regular vacancy as per the Office memorandum. And that hope which germinated from the Government Office Memorandum therefore, genuine, perhaps, must have compelled him to continue in service as work charged Mohuorrer till he died in 2008. As submitted by the learned counsel of the petitioner, the husband of the petitioner was given scale pay and annual increments since his appointment. The only thing that was lacking was creation of a regular post to which the petitioner could have been regularized. Between the date the Office memorandum was issued and the day the petitioner’s husband died there was 4 years time. If the Government was conscious of the purpose for which the Office memorandum was issued, and is concerned for its citizen who had served the State for so long, a post suitable for him could have been created so that he could have been regularized. If the Government was conscious of the purpose for which the Office memorandum was issued, and is concerned for its citizen who had served the State for so long, a post suitable for him could have been created so that he could have been regularized. But the Government, for reasons best known to them, forgot the purpose for which the Office Memorandum was issued and slept over the necessity of creating a suitable post for regularization of the petitioner’s late husband who deserved the same. Needless to say but in a democratic form of Government, the Government is of the people, by the people and for the people. However, unfortunately the word for the people is often forgotten by the people in power. The suffering of the forgotten people, nevertheless, continues and the same continues to remain with their family members even after they are death and gone. In this case, though the Government employee has died and gone with his dreams and hopes not fulfilled, that too in suffering but the suffering has continued to follow the member of his family he left behind. It is easy to say that since the petitioner’s husband died before regular post became available therefore, he could not have been regularized in Government service. But what about the duty which should have been performed or discharged by the Government and its machineries during those 4 years i.e. between the date on which the office memorandum was issued and the date on which the petitioner’s husband died. It may be appropriate to mention here that the 2nd and 3rd sentence of the Office Memorandum shows that Government of that time had issued the Office memorandum after a Commission was appointed because of its concern for the existence of many work charged employees and for their regularization in service. At the cost of repeatation, I would again record here that the Government of the State had forgotten the very purpose for which the Commission was constituted and the scheme was prepared and Memorandum was issued. For such inaction on the part of the Government, a citizen for whom the Government exist cannot be allowed to suffer. Therefore this Court feels duty bound to direct the respondents to give what is due to the petitioner and her family for the service rendered by her husband which was stated to be more than 15 years. For such inaction on the part of the Government, a citizen for whom the Government exist cannot be allowed to suffer. Therefore this Court feels duty bound to direct the respondents to give what is due to the petitioner and her family for the service rendered by her husband which was stated to be more than 15 years. Accordingly, the respondents are directed to regularize the service of the petitioner’s husband one day before he expired for the purpose of giving pensionary benefits including family pension to his wife and children. Now the questions is whether the petitioner should be entitled to the arrears of the family pension from the date of regularization of her late husband or not. It is submitted fairly by Mr. Imti Longchar, learned counsel of the petitioner that as per the law in vogue as far as arrear is concerned it may be paid starting from 3 years back from the date of filing of the writ petition. I find the submission of the learned counsel for the petitioner reasonable in the facts and circumstances of the case. Therefore the arrears of family pension should be paid starting from 3 years back from the date of filing of this petition i.e.27/1/2016. The respondents shall complete the process of granting pensionary benefits including family pension to the petitioner as stated above within 4 months from the date of receipt of a copy of this order.