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2020 DIGILAW 117 (GAU)

Maryangla @ Merenremla v. State Of Nagaland

2020-02-03

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. I. Imti Longchar, learned counsel for the petitioner and Mr. V. Zhimomi, learned counsel appearing for all the respondents. 2. The petitioner has come before this Court for the second time. The first writ petition being WP(C) No. 141(K)/2018, was disposed of vide Order dated 03.08.2018 by directing the petitioner to file a fresh representation before the Director, Directorate of Printing & Stationary, Govt. of Nagaland, Kohima (respondent No. 5), within a specified period and for the respondent No. 5 to dispose of the same by way of a speaking order within a period of 2 (two) months thereafter. 3. The petitioner filed her representation as directed on 10.08.2018 but the same was rejected vide Communication dated 28.09.2018 (Annexure-10). Being aggrieved, the petitioner has filed the instant writ petition challenging the said rejection of her representation for her regularization in service. 4. Brief facts of the case may be noticed at the outset. The petitioner was appointed temporarily as Sweeper in the office of The Assistant Director (Technical), Govt. of Press Branch, Mokukchung on contingency basis, @ Rs. 375/- per month vide order issued under Memo No. NGP/ESTT/42/88-89/286 dated 26.10.1988 by the Director of Printing & Stationary, Govt. of Nagaland (Respondent No. 5). Her appointment was made against the post sanctioned vide Order No. PSTY-26/79 (PT) dated 09.06.1988. Thereafter, the petitioner having continued as such for nearly 12 years and having not been considered for regularization, she submitted a representation to the respondent No. 5, seeking her regularization in service on 16.02.2000. The respondent No. 5 vide Order dated 29.02.2000 issued an order appointing the petitioner temporarily as Sweeper under the Directorate, in a scale of pay of Rs. 800-1475 per month along with Special Compensatory (remote locality) Allowances @ 15% of basic pay, subject to a maximum of Rs. 125/- and a maximum of Rs. 1,200/- per month w.e.f., 01.03.2000. The respondent No. 5 again issued another order on the same day appointing the petitioner temporarily as Sweeper, under the Directorate in the same scale of pay as was indicated earlier. The only difference was that her appointment was for a period of 6 (six) months. 5. Thereafter, the services of the petitioner having not been regularized despite her representation dated 16.02.2000, the petitioner filed another representation on 10.02.2001 before the respondent No. 5. The only difference was that her appointment was for a period of 6 (six) months. 5. Thereafter, the services of the petitioner having not been regularized despite her representation dated 16.02.2000, the petitioner filed another representation on 10.02.2001 before the respondent No. 5. The services of the petitioner in the meantime was extended from time to time vide Order dated 30.04.2001 and 17.07.2003 amongst other, showing that she was appointed on contingency basis and on a fixed pay. Her regularization having not been considered, the petitioner filed the first writ petition as already stated hereinafter above. 6. Mr. I. Imti Longchar, learned counsel for the petitioner submits that although the petitioner was appointed on contingency basis vide the Order dated 26.10.1988 but the fact remains that she was appointed against a sanctioned post as indicated in her appointment order. The petitioner having been in service since her initial appointment was subsequently appointed again on temporarily basis against the same post but in a pay scale vide the two orders both dated 29.02.2000. He submits that although the two orders speak about the appointment of the petitioner in a scale of pay but the petitioner was never given a pay scale, but only a fixed pay which was revised from time to time. 7. Mr. I. Imti Longchar, however, submits that non-payment of pay scale cannot come in the way of regularization of the petitioner, inasmuch as the petitioner was appointed against a sanctioned post. Referring to the affidavit-in-opposition of the State respondents, more particularly at para 5 of the said affidavit, the learned counsel submits that the stand of the respondents is that the two identical office orders both dated 29.02.2000 passed by the respondent No. 5 is not in the office record and that the same was never given effect to. The further stand taken is that the petitioners representation was silent about the two identical orders and that she had in fact accepted the extension of her service, as contingency paid employee voluntarily and therefore, the claim of the petitioner is without any substance. The further stand taken is that the petitioners representation was silent about the two identical orders and that she had in fact accepted the extension of her service, as contingency paid employee voluntarily and therefore, the claim of the petitioner is without any substance. He submits that such a stand of the State respondents cannot be accepted, inasmuch as, non availability of the relevant documents in the office record cannot be the ground for rejecting the claim of the petitioner, more particularly when it is the respondent No. 5 and the Department authorities who had issued the appointment orders. Further, in the absence of any dispute that the petitioner is working since her initial appointment in the year 1988 and that too, against the sanctioned post, the respondents cannot deny the petitioner from being considered for her regularization. 8. The learned counsel for the petitioner has further relied upon the Apex Court decision rendered in the State of Karnataka & Ors., vs. Umadevi & Ors., reported in (2006) 4 SCC 42. Referring to para 53 of the said judgment in particular, the learned counsel submits that as per the Apex Court in case of irregular appointments, which are otherwise not illegal appointments and the employee concerned being duly qualified and appointed against a sanctioned vacant post, such employee has to be considered for regularization provided he or she has worked for more than 10 years without intervention of the order of the Court or Tribunal. This, according to the Apex Court, should be done as a one-time measure. The learned counsel therefore submits that the case of the petitioner is squarely covered by this decision and she having rendered her service continuously without break since her initial appointment order in the year 1988 and also against a sanctioned post, Court may direct the respondents to regular her service. 9. Mr. V. Zhimomi, learned State counsel, on the other hand, by referring to the affidavit- in-opposition filed by the respondent No. 1, 2, 4, 5 & 6 on 13.01.2020, submits that besides there being no records available in the establishment of the respondent No. 5 about the appointment of the petitioner against a sanctioned post, the fact remains that the petitioner is working since her initial appointment on contingency basis and given a monthly remuneration, on a fixed basis. Referring to the Office Memorandum dated 17.03.2015, which is regarding the scheme for regularization and absorption of work-charge and casual employees and also revision of pay/wages. The learned counsel submits that the case of the petitioner is not covered by the said scheme. The learned State counsel specifically refers to clause 1 (i) as well as clause 1 (i)(g) of the said Office Memorandum, which provides that those work-charge and casual employees enjoying scale of pay and completed 30 years or more continuously as on 01.01.2015 can be considered for regularization. However, those employees, who are employed on contingency basis such as personal peon, part-time sweeper/chowkidar/seasonal workers, etc., cannot claim regularization under the said scheme. Therefore, the petitioner having been employed on contingency basis, there is no scope for considering her regularization in service. He thus submits that the representation of the petitioner dated 10.08.2018 was rightly rejected by the competent authority through the Communication dated 28.09.2018 although the same is not very specific. He also submits that there is a specific bar to contingency employees to be considered for regularization and therefore, the petitioner cannot have any legitimate grievance. Under the circumstance, the writ petition being without any merit, the same should be dismissed. 10. I have heard the learned counsels for the rival parties and have perused the materials available on record. 11. The facts of the case having already been narrated above, the same requires no reiteration. Pursuant to the order passed by this Court on 03.08.2018 in WP(C) No. 141(K)/2018, the petitioner filed her representation and the same was disposed of vide the impugned Order dated 28.09.2018 (Annexure-10). The relevant portion of the impugned Communication dated 29.09.2018 may be extracted below for ready perusal:- 'Sir/Madam, In inviting reference to the subject cited above, I have to inform you that the department is in receipt of your representation Dt. 10.08.2018 alongwith the order Dt. 03.08.2018 passed by the Honble Gauhati High Court, Kohima Bench in the referred case. In this regard, it is observed that, you were appointed against sanctioned post vide order No. PSTY-26/79 (Pr) Dated 09.06.1968. However, it is regretted to inform you that the sanctioned post which was reflected to have contained in file No. NGP/EST/42/88-89 cannot be traced in the department records after prudent and meticulous search as the file is almost 30 (thirty) years old. However, it is regretted to inform you that the sanctioned post which was reflected to have contained in file No. NGP/EST/42/88-89 cannot be traced in the department records after prudent and meticulous search as the file is almost 30 (thirty) years old. It is also needless to inform you that there is no vacant post of regular sweeper in the department at present to regularize your service. Therefore, in the given situation, our department does not find any way out to regularize your service. Situated thus, the undersigned convey our departments inability to consider your representation Dt. 10.08.2018 submitted by you on the strength of the order Dt. 03.08.2018 of the Honble High Court, Kohima Bench to the undersigned.' 12. From the above extract, it may be seen that the respondents have not denied the fact that the petitioner was appointed against a sanctioned post. They, however, say that the relevant file could not be traced out in the Department and that there being no vacant post, at present, her service cannot be regularized. The stand of the respondents in their affidavit- in-opposition amongst others is that the regularization scheme does not include those employees, who are engaged on part-time on contingency basis. In this connection, it may be seen that the petitioner was initially engaged vide Order dated 26.10.1988 and she continues to be in her engagement till date. The same can in no way be considered as a part-time employment so as to apply clause-1 (i) (g) of the Office Memorandum dated 17.03.2015. Moreover, the petitioner undisputedly has sought for her regularization by submitting her representation as early as on 16.02.2000 and thereafter on 10.02.2001 and also on 10.08.2018, in terms of the direction of this Court. In the case of Mohinder Singh Gill vs. Chief Election Commissioner (2013) 10 SCC 95 , the Apex Court has held that the validity of an order must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. The ratio laid down was again followed by the Apex Court in Rashmi Metaliks Ltd. & Anr. vs. Kolkata Metropolitan Development Authority & Ors., (2013) 10 SCC 95 . The ratio laid down was again followed by the Apex Court in Rashmi Metaliks Ltd. & Anr. vs. Kolkata Metropolitan Development Authority & Ors., (2013) 10 SCC 95 . In the present case, it may be noticed that in the impugned reply given to the representation of the petitioner, it is not the stand of the respondents that the claim of the petitioner for regularization cannot be considered in view of the Office Memorandum dated 17.03.2015. Thus under the facts and circumstances of the case and keeping in view the fact that the petitioner was appointed against a sanctioned post, the Office Memorandum, issued on 17.03.2015, cannot come in the way for considering her case for regularization. 13. Upon due consideration of the case in its entirety, I am of the view that the case of the petitioner for regularization should be considered by the respondents as a special case keeping in mind the peculiar facts and circumstances of the case. Non availability of vacancy in the post of Sweeper presently cannot be the ground not to consider her regularization. It will be incumbent upon the respondents to create a supernumerary post to accommodate the petitioner for her regularization, if so required. The post so created will be a personal post and shall cease to exist once a regular vacancy occurs and the petitioner adjusted against such regular vacancy. 14. It is therefore ordered accordingly. 15. The respondent No. 5, within a period of 3 (three) weeks from the date of receipt of a certified copy of this order, shall initiate the process of regularization in terms of the direction given herein above, if necessary, by obtaining the approval of the Administrative Department. All the respondents shall co-operate with the process and the entire exercise be completed within a period of 3 (three) months from the date of receipt of a certified copy of this order. Pending such consideration, the services of the petitioner should not be varied to her disadvantage in any manner. 16. No costs.