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2020 DIGILAW 709 (GAU)

C. Taknyie Phom v. State of Nagaland

2020-10-12

SONGKHUPCHUNG SERTO

body2020
JUDGMENT : 1. Heard Mr. Tongpok Pongener, learned counsel for the petitioner and also heard Mrs. S. Mere, learned Government advocate appearing for the State respondents. 2. This is a writ petition praying for issuance of a writ in the nature of mandamus or any other appropriate writ or order or direction directing the State respondents to regularize the service of the petitioner's late husband who died on 11.6.2011 while serving as Constable (Workshop Hand) in Nagaland Armed Police for the purpose of pensionaary benefits. 3. The material facts and circumstances which led to the filing of this writ petition are briefly stated as follows: Vide order No. WHQ/RO-26/99-2000, dated 1.3.1999, issued by the Deputy Inspector General of Police (Wireless), Government of Nagaland, the petitioner's husband late Shri. L. Imtilong Jamir was appointed as Constable (Workshop Hand) in Nagaland Police (Wireless) on ad hoc basis with pay and allowances as admissible under rules from time-to-time w.e.f. 1.7.1999, subject to his qualifying in the medical and physical tests and the basic drill training. Since the petitioner's late husband qualified in all the three tests mentioned above, he was allowed to continue in service with all the pay and allowances till he expired on 11.6.2011. In 2011, before the petitioner's husband passed away, he and other similarly situated persons, numbering about 440, were issued a notice dated 27.11.2011 by which they were asked to show cause as to why their appointment should not be terminated/cancelled on the ground that their appointments were made without sanctioned posts and without going through the selection process prescribed for recruitment to such posts. Aggrieved by the show cause notice, their association filed a writ petition being WP(C) No. 221(K) of 2001 challenging the same. The said writ petition was dismissed by this High Court. Not satisfied with the dismissal order, the association filed an appeal being WA No. 15(K) of 2007. While the appeal was pending some other persons were appointed to vacancies which arose during that time. Aggrieved by the act of the State Government in appointing other persons to the vacancies that arose while denying their regularization, the petitioner's husband and similarly situated persons, through their association filed another writ petition being WP(C) No. 250(K) of 2006. In that writ petition, the State Government filed an affidavit wherein, it was stated among other as follows: The relevant paragraph Nos. 6, 7, 8 and 9. In that writ petition, the State Government filed an affidavit wherein, it was stated among other as follows: The relevant paragraph Nos. 6, 7, 8 and 9. “6. That the respondents state that the training undergone by the petitioner as indicated above pertains to only basic drill which does not constitute the basic training of a Police Jawan. The respondents further states that the basic drill course was conducted mainly at Home Guard Training Centre, Tuluvi, Dimapur and not under the Police Deptt. As such, the training undergone by the petitioners cannot be treated at par with the basic training of Nagaland Police Jawan. 7. That the respondents states that in case of the service of the excess appointees are considered for regularized by the Government, the untrained petitioners will have to undergo the course of basic training for a period of 9 months which is mandatory for all the wireless Havildars, Constables and NCE in the Wireless wing deployed in the various Battalions. It is also to state that the Wireless wing of the Police Deptt. has been combatised and each every Wireless Operator should be capable enough with the confidence to handle arms and ammunitions as demanded by the very nature of their service. 8. That the respondents states that in case of consideration for regularization of the petitioners, the State authorities being an employer had every right to impose certain terms and conditions within the parameter of law. Needless to say, the excess appointees/petitioners should undergo a test to ascertain their capability and eligibility in view of the factual matrix, that, the appointment of the petitioners suffers by procedural lapses. However, the service of the petitioners are required as per as the existing vacancies as reflected by letter dated Kohima 10.4.2006. 9. That the respondents states that the number of the petitioners are 417 in numbers which is considered not less burden for the respondent-authority to initiate their regularization at one go. As such, the matter for consideration for regularization of the petitioner's service can at the most initiate in phase-wise.” On 17.11.2009 both, the writ appeal and the writ petition were taken up for hearing. The appeal and the writ petition were disposed of by separate orders; In WA No. 15(K) of 2007, the following order was passed; “In view of the order passed today 17.11.2009 in WP(C) No. 250(K) of 2006. Mr. The appeal and the writ petition were disposed of by separate orders; In WA No. 15(K) of 2007, the following order was passed; “In view of the order passed today 17.11.2009 in WP(C) No. 250(K) of 2006. Mr. Tongpok Pongener, learned counsel appearing on behalf of the appellant submits that he will not press with this appeal. In view of this submission, this appeal also stands disposed of.” In WP(C) No. 250(K) of 2006, the following order was passed: “In pursuance of the order of this court dated 7.2.2008 passed in WA No. 15(K) of 2007, the said writ appeal and WP(C) No. 250(K) of 2006 are taken up for hearing. We have heard Mr. Tongpok Pongener, learned counsel appearing on behalf of the writ petitioner-appellant and Mr. P. Pius Lotha, learned Addl. AG, Nagaland appearing on behalf of the respondents in both the cases. With the consent of both sides, WP(C) No. 250(K) of 2006 is disposed of with the direction that the State respondents shall proceed in the manner indicated in paragraph Nos. 6, 7, 8 and 9 of the affidavit-in-opposition dated 2nd March, 2009, which was submitted with reference to WP(C) No. 250(K) of 2006.” Following the disposal of the writ appeal and the writ petition, the Government of Nagaland initiated the process for regularization of the service of the said Police personnel including that of the service of the petitioner's husband who were appointed on ad hoc. The Police Headquarter, accordingly, directed all the concerned authorities to submit details of those persons who were appointed in excess of sanctioned posts for the purpose of regularizing their service. In response, the Deputy Inspector General of Police (NPTO), vide his letter No. WHQ/ESTT-1/36/09-10/2292, dated 19.2.2010, submitted a list of all the excess police personnel who were appointed on ad hoc, seniority-wise and the name of the petitioner's husband appeared at SI. No. 124 as per his standing in the seniority. However, before the process could culminate into issuance of the final order regularizing the service of the Police personnel appointed on ad hoc basis, including that of the petitioner's husband (which was ultimately issued on 14.11.2012) unfortunately, the petitioner's husband died on 11.6.2011. After the demise of her husband, the petitioner approached the concerned authority for release of pensionary benefits of her late husband. After the demise of her husband, the petitioner approached the concerned authority for release of pensionary benefits of her late husband. But except for the GPF and leave encashment entitlement no other benefits including family pension was granted. The petitioner approached the Director General of Police with the representation dated 1.5.2019, requesting him to regularize the service of her late husband, so that she may enjoy the benefits of her late husband's service including family pension. The petitioner did not get any written reply, but was informed verbally that she is not entitled to family pension and other pensionary benefits since her husband's service was not regularized. Being aggrieved, the petitioner is before this court praying as stated above. 4. Mr. Tongpok Pongener, learned counsel for the petitioner submitted that, the petitioner's husband died while in service and his service would have been regularized had he survived till the time the order regularizing the service of similarly situated persons was issued. Therefore, at least for entitlement of pensionary benefits, the service of the petitioner's husband ought to have been regularized. Mr. Tongpok also submitted that, before he died-petitioner's husband was in service for a period of more than 10 years, therefore, the Government of Nagaland considered just and proper to regularize his service along with that of similarly situated persons and for that a process was undertaken and, when the same was about to culminate into issuance of the office order fate brought the inevitable in the life of the petitioner's husband, which is beyond anybody's control. As such, the State Government being a model employer should have taken care of the family of its employee. In support of his submission, Mr. Tongpok referred to the judgment of this High Court; one passed by a Single Bench in WP(C) No. 229(K) of 2014 and, the other passed by a Division Bench in WA No. 15(K) of 2013. In the first case, i.e., WP(C) No. 229(K) of 2014, the petitioner therein was appointed as work-charged labourer in the department of Public Health Engineering Department (PHED) and later his designation was up-graded to work-charged Jugali, and he worked in that post till he was release from service on completion of 35 years of service but, without being regularized. In the first case, i.e., WP(C) No. 229(K) of 2014, the petitioner therein was appointed as work-charged labourer in the department of Public Health Engineering Department (PHED) and later his designation was up-graded to work-charged Jugali, and he worked in that post till he was release from service on completion of 35 years of service but, without being regularized. The court after considering the fact that the petitioner had work for 35 years of service directed that the State respondents should consider regularization of his service solely for the purpose of pensionary benefits. In the second case, i.e., WA No. 15(K) of 2013, the respondent who was the original writ petitioner was appointed as work-charged Khalasi in the establishment of Sub-Divisional Officer, PHED and in the course of time his service was up-graded to that of work-charged Fitter Grade-I with regular scale pay and annual increment after rendering service for more than 30 years. But the respondent was made to retire from service on superannuation without regularizing his service and, he was denied pensionary benefits. Being aggrieved he filed a writ petition and in that writ petition his prayer was allowed. The State respondents, aggrieved by the order of the writ court filed the writ appeal. The Division Bench after hearing the parties upheld the order of the writ court and dismissed the writ appeal. The relevant portion of the order passed by the Division Bench is reproduced here below: “After hearing the learned counsel for the parties and on perusal of the materials on record, we are unable to accept the contentions advanced by the learned Additional Advocate General, Nagaland. State is a model employer and cannot act like a private employer. Being a model employer, it is bound by the constitutional philosophy as expressed by the Apex Court in a catena of judgments reference to which may not be necessary at this stage. Learned Single Judge had given due consideration to various aspects of the matter and thereafter had taken the view that after rendering 30 years of uninterrupted service, the State cannot deny pensionary benefits to the respondent. It has been already held by the Apex Court that pension is not a bounty but an entitlement of an employee, only the quantum depending on the number of years of service rendered. Thus, we agree with the view taken by the learned Single Judge. It has been already held by the Apex Court that pension is not a bounty but an entitlement of an employee, only the quantum depending on the number of years of service rendered. Thus, we agree with the view taken by the learned Single Judge. It has also been brought to out notice that various orders have been passed by the State regularizing the services of similarly situated work-charged employees thereby enabling them to draw pension. In the light of the above, we find no merit in this appeal which is accordingly dismissed.” 5. Mrs. S. Mere, learned Government advocate submitted that, though it is true that persons who were appointed at the same time with the petitioner's husband on ad hoc basis were regularized in service, the service of the petitioner's husband could not be regularized since he died before the process was completed. Regularization of service being a pre-condition for entitlement to pensionary benefits the petitioner's request for pensionary benefits of her late husband's service could not have been acceded to. The learned Government advocate further submitted that the petitioner should have agitated before the appropriate forum as soon as the name of the persons who were regularized in service (but excluding her husband name) was issued so that the matter could have been taken up at the appropriate time. But since she approached this court after so many years her prayer is barred by delay and laches. On query made by the court, Mrs. S. Mere submitted that, it is true that most of the persons who were similarly situated with the petitioner's husband including his juniors were regularized by the order dated 14.11.2012. 6. I have considered the relevant facts and circumstances of the case and the submissions of the learned counsels appearing for the parties. I have also perused the judgments referred to by the learned counsel of the petitioner and other judgments of this court which are relevant and applicable to the case in hand. There is no dispute on the fact that the petitioner was appointed on ad hoc basis and died before his service could be regularized. I have also perused the judgments referred to by the learned counsel of the petitioner and other judgments of this court which are relevant and applicable to the case in hand. There is no dispute on the fact that the petitioner was appointed on ad hoc basis and died before his service could be regularized. There is also no dispute on the fact that after the passing of the order dated 17.11.2019 by a Division Bench of this High Court in WP(C) No. 250(K) of 2006 and the order dated the same by the same Division Bench in WA No. 15(K) of 2007, the Government of Nagaland had taken up a process for regularization of the services of several police personnel including that of the petitioner's husband and the process reached its final stage and culminated into issuance of the order dated 14.11.2012, by which the service of 349 similarly situated persons were regularized. It appears from the record and the submissions of the learned counsel that the service of petitioner's husband would have been regularized along with similarly situated persons had he not died before the issuance of the order. Considering the above stated facts and circumstances and the fact that the petitioner's husband served in the Police Force of the State for more than 10 years before he died, I am of the view that the State Government could have been more considerate and humane with its employee and his family who are none other than its own citizens. For such technical reasons, the State as a model employer that too being a welfare-State could not have denied the pensionary benefits to its own employee and his family members who served for such length of time with no record showing negligence or dereliction of his duties. The process for regularization of the service of the petitioner's husband was in progress and it was on its way to fruition, and, it would have happened had it not been for his untimely death. Therefore, it would have been just and fair had the service of the petitioner's husband was regularized for the purpose of enabling the petitioner and her children to enjoy the family pension and other pensionary benefits at least when it was requested. Therefore, it would have been just and fair had the service of the petitioner's husband was regularized for the purpose of enabling the petitioner and her children to enjoy the family pension and other pensionary benefits at least when it was requested. Taking into view the principle of law constantly followed by this court in catena of cases including the two cases referred to by the learned counsel of the petitioner, I am of the considered view that the respondents should regularized the service of the petitioner's late husband for the purpose of enabling the petitioner and her family members to enjoy family pension and other pensionary benefits. Accordingly, the respondents are directed to regularize the service of the petitioner's late husband for the purpose of pensionary benefits including the family pension. Further, it is also directed that the whole process should be completed within a period of 3 months from the date of receipt of a copy of this order. Writ petition is disposed of.