JUDGMENT : S. Hukato Swu, J. 1. This is a writ petition filed under Article 226 of the Constitution of India for the enforcement of the petitioner's fundamental rights by the petitioners who have been appointed as Drivers on contingency basis in the Planning and Co-ordination Department on fixed monthly wages by orders dated 4/7/2002, 7/9/2005, 16/5/2006, 1/7/2008, 17/7/2008 and 13/1/2009 respectively. After some time the petitioners were given scale pay in different dates in the pay band of Rs. 5200-20,200 with grade pay of Rs. 1800/- per month. Having served for several years in the Department, the petitioners in the hope that their services will be regularized in the near future in terms of the Office Memorandums dated 17/3/2015, 22/9/2004 and 6/6/2016 kept serving the Department continuously. Thereafter, 3 posts of Drivers felt vacant one being vacated by Shri Kalu Dholi Sonar, Driver on 30/6/2018, second post of Driver fell vacant on 25/5/2018 on the demise of Shri Dhan Bahadur Gurung and the third fell vacant on 30/10/2019 due to the retirement of Shri K.B. Chetri, Head Driver. The petitioners were of the view that their case for regularization would be considered. However, the respondent No. 3 by an order dated 3/7/2019 appointed the respondent Nos. 3 and 4. Being aggrieved, the petitioners filed their representation dated 2/9/2019 and subsequently issued legal notice dated 7/11/2019 upon the respondents. However, their representations were not considered. Thus, situated, the petitioner is before this Court praying for issuance of writ of certiorari or mandamus or any other appropriate writ to quash and set aside the impugned orders No. PLN-950/2000(Pt-I) dated 3/7/2019 annexed as Q1 of the petition and Order No. PLN/M-156/93(Pt-1) dated 3/7/2019 annexed as Q2 of the writ petition and to direct the respondents to consider their case for regularization against 67% of the 3 existing vacancies in terms of the scheme for regularization of work charged and casual employees which is contained in the Office Memorandum dated 17/3/2015 and 22/9/2004. The said Office Memorandums are quoted here below:- "Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) ***** No. AR-3/GEN-201/2009 Dated, Kohima, the 17th March, 2015 OFFICE MEMORANDUM Sub: Scheme for regularization and absorption of Work-Charged and Casual Employees and Revision of Pay/Wages. The said Office Memorandums are quoted here below:- "Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) ***** No. AR-3/GEN-201/2009 Dated, Kohima, the 17th March, 2015 OFFICE MEMORANDUM Sub: Scheme for regularization and absorption of Work-Charged and Casual Employees and Revision of Pay/Wages. On due consideration of the Report of Work-Charged and Casual Employees Commission and in compliance with the Judgment and order of Hon'ble High Court, the Governor of Nagaland is pleased to introduce the following schemes for regularization and absorption of Work-Charged and Casual employees and revision of their pay and wages subject to conditions indicated here under: 1. Regularization in service: (i) All existing work-charged and casual employees of various Departments who are enjoying scale pay and who have completed 30 (thirty) years or more continuous service as on 01.01.2015 will be regularized by conversion of their posts into regular ones personal to them and subject to fulfillment of conditions as indicated below: (a) The incumbent concerned and his/her service rendered as work-charged/casual employee have been duly verified and found genuine by the District Level Verification Committee constituted by the Government (b) Availability of service records including appointment order, date of initial appointment, proof of length of service/age etc. (c) Their suitability for continuation in service to be recommended by the Heads of Department concerned. (d) The post occupied by them on regularization shall automatically stand abolished as and when they vacate the post on retirement, resignation, death etc. The strength of work-charged and casual employees under various Departments shall stand reduced by equal number concurrently with the regularization of such employees. No fresh appointment shall be made against these posts. (e) On regularization in service, the pay of the incumbent shall be fixed at the minimum of the corresponding Pay Band and Grade Pay as admissible under Rule 10 of Nagaland Service ROP Rules, 2010. (f) The past service rendered as work-charged/casual employees shall be counted towards length of service for the purpose of Nagaland Retirement from Public Employment Act, 2009 and as qualifying service for the purpose of pension. (g) This scheme shall, however, not be applicable to the part time Casual employees, Village Guards, Home Guards, ICDS workers, other CSS paid employees whose services are guided by specific terms and conditions laid down by the Government and some other categories of contingency employee like personal peons, part time sweepers/chowkidars/seasonal workers etc. (g) This scheme shall, however, not be applicable to the part time Casual employees, Village Guards, Home Guards, ICDS workers, other CSS paid employees whose services are guided by specific terms and conditions laid down by the Government and some other categories of contingency employee like personal peons, part time sweepers/chowkidars/seasonal workers etc. (h) The period of service rendered as work-charged/casual employees shall not be counted for the purpose of MACP. (ii) In respect of those work-charged and casual employees. In scale pay and who have completed or will complete 30 (thirty) years of continuous service after 01.01.2015, their cases for regularization will be taken up subsequently in two batches as on 1st July and 1st January every year. The procedures and terms and conditions will be the same as laid down in this O.M. (iii) The existing scheme for regularization of work-charged employees against normal vacancy is being modified and the quota for work-charged employees stand enhanced from 50% to 67% for the next 5(five) years effective form 01.01.2015. This existing scheme will also be applicable for the casual employees appointed on full time basis. 2. Revision of Pay/Wages of Work-Charged employees. (i) The pay scale of all work-charged employees who are presently drawing scale pay as per ROP, 1993 and who shall continue as work-charged employees shall be revised as under with effect from 01.01.2015, subject to conditions indicated below: (a) There shall be two different Pay bands and eight different Grades of Pay against the existing pay scales as indicated in the Table below: (b) Formula for fixation of pay: The existing basic pay in the pre-revised pay scale as on 01.01.2015 shall be multiplied by 3.2 to arrive at the basic pay in the Pay Band indicated above. The amount arrived at shall be rounded to next multiple of Rs. 10/-. To the figure as worked out, the amount of Grade Pay corresponding to the pay scale in the pre-revised scale as prescribed in the table above shall be added. This will be the revised pay of the incumbent concerned. (c) Besides the revised pay worked out in (b) above, House Rent Allowance @ 10% of the revised basic pay in the Pay Band (without Grade Pay) shall be admissible to those who are not provided with government accommodation, subject to admissibility under normal rules. This will be the revised pay of the incumbent concerned. (c) Besides the revised pay worked out in (b) above, House Rent Allowance @ 10% of the revised basic pay in the Pay Band (without Grade Pay) shall be admissible to those who are not provided with government accommodation, subject to admissibility under normal rules. (d) Medical Allowance shall be admissible at a flat rate of Rs. 300/- P.M. (e) No other allowances like DA/ADA etc shall be admissible. (f) Annual Increments: Annual increments shall be admissible @ 3% on the revised pay in the Pay Band including Grade Pay on the 1st January each year provided the incumbent concerned have been in the revised pay for a period of at least 6(six) months as on 1st of January. (g) MACP scheme shall not be applicable to the work-charged and casual employees. (ii) Revision of Rates of Wages of Fixed Paid Work-Charged and Casual/Contingency Employees: The rates of wages of fixed paid work-charged and casual/contingency employees are revised as under with effect from 01.01.2015: The above rates shall be applicable to those fixed paid work-charged and casual/contingency employees who are appointed on full time basis. (iii) The revision of pay scale/wages indicated above shall be admissible only to those work-charged/casual contingency employees who are verified and found to be genuine by the District Level Verification Committee. (iv) This revision of wages shall also not be applicable to the Village Guards, Home Guards, ICDS works, other CSS paid employees whose services are guided by specific terms and conditions laid down by the Government. 3. Conditions for implementation of the Scheme of Regularization and Revision of Pay: (i) Each Department shall prepare detailed list of all such work-charged and casual employees enjoying scale pay who have completed 30 (thirty) years or more service as on 01.01.2015 and whose cases are proposed for regularization indicating name, designation, date of birth, date of entry into service, date of retirement, pay scale and existing total emoluments, pay scale admissible on regularization, total emoluments after regularization and additional financial implication. (ii) The list be certified by the District Level Verification Committee to the effect that the incumbents included in the list are verified and found genuine. (ii) The list be certified by the District Level Verification Committee to the effect that the incumbents included in the list are verified and found genuine. (iii) Formal proposal for conversion of posts into regular ones to accommodate the employees proposed for regularization shall be submitted by the concerned Department first to P&AR and then to Finance for clearance and concurrence. After obtaining P&AR and Finance clearance the Departments concerned shall take up the proposal with the Cabinet for approval. Only after obtaining Cabinet approval necessary notifications for regularization in service shall be issued. (iv) Before re/easing the revised pay scales for the regularized employees, the pay fixation statement shall have to be checked by the Accounts Officer of the concerned Department. (v) The pay fixation statement and arrear salary statement in respect of all the scale pay work-charged employees whose pay has been revised under the scheme shall be pre-audited by the Accounts officer of the concerned Department. In cases where there is no Accounts Officer, the Directorate of Treasuries & Accounts shall carry out the pre-audit. No bills in this regard shall be entertained in the Treasury unless the same is pre-audited as indicated above. 4. With the implementation of this scheme there shall be a complete ban on appointment of work-charged/casual employees under the State Government. 5. This issue with the concurrence of the Finance Department vide RFC No. 26/31 dated 17/03/2015 and approval of the Cabinet conveyed vide letter No. CAB-2/2013 dated 02/03/2015. Sd/- Pankaj Kumar Chief Secretary to the Government of Nagaland." 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). 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 regularization of Work-Charged employees in the State, the Government hereby adopts the following policy and scheme for regularization 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 for which they possess the requisite qualification. 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 employees 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 casual Employees Commission should do so immediately to the optimum 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. (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 persona 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 the appointing authority. In case of any unforeseen situation requiring new work charged appointments, specific approval of the Cabinet must be taken. Sd/- LALTHARA Addl. Chief Secretary to the Government of Nagaiand." 2. The learned counsel for the petitioners Mr. Tongpok Pongener appears and submits that the respondents are bound to follow the Office Memorandum as notified which clearly provides that falling of vacancies in all the Departments of the State are to be filled in terms of the two Office Memorandums mentioned above and in the case of the petitioners, 67% of vacancies as contained in the O.M. dated 17/3/2015, if not applicable they are qualified for consideration in terms of the O.M. dated 22/9/2004. The learned counsel also brought to the notice of this Court wherein the State respondents has brought about an O.M. dated 6/6/2016 which clearly indicates that henceforth there shall be no contractual appointment. The O.M. dated 6/6/2016 is quoted here below:- "Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) ***** No. AR-5/ASSO/98 Dated, Kohima, the 6th June, 2016 OFFICE MEMORANDUM SUB: BAN ON APPOINTMENT ON CONTRACT BASIS The State Government has laid down the revised procedures for appointments in Government service vide Office Memorandum No. AR-5/ASSO/98(C) dated 26.02.2001 laying down inter alia that all appointments shall be made strictly in accordance with existing rules/procedures in force, i.e., through the Nagaland Public Service Commission (NPSC) or through open advertisement or through Employment Exchanges. It has been made clear in the O.M. that as per existing rules in force, all ad-hoc/casual/temporary/work-charged appointments are banned. However, for the posts coming under the purview of the Nagaland Public Service Commission (NPSC), in the event of extreme urgency, a person shall be appointed on contract basis (not ad-hoc/casual/temporary/work-charged ect.) after placing requisition to NPSC, prior clearance of NPSC and approval of the Cabinet. However, for the posts coming under the purview of the Nagaland Public Service Commission (NPSC), in the event of extreme urgency, a person shall be appointed on contract basis (not ad-hoc/casual/temporary/work-charged ect.) after placing requisition to NPSC, prior clearance of NPSC and approval of the Cabinet. In the event of delay in recruitment through NPSC, the contract appointment could be extended beyond one year with prior clearance of NPSC and P&AR Department and approval of the Cabinet. 2. It has been observed that over the years, the pre-conditions for making appointments on contract basis have not been adhered to in many cases, resulting in irregularities in such appointments and their extension. A consequence of irregular contract appointment is that the Governments policy for reservation of posts for backward tribes is not implemented properly Another consequence is that such appointments, being discretionary in nature violate the principle of equality of opportunity. The Gauhati High Court in W.P.(C) 255(K) of 2011 filed by 29 unemployed Veterinary Science Graduates against the State of Nagaland & others, pronounced a judgment on 14.11.2014 holding that the rules governing recruitment to public pots and offices are required to be followed scrupulously The Court held that appointments made without following appropriate procedure under the Rules holding the field and without inviting applications from open market would amount to infringement of Article 14 and 16 of the Constitution. The judgment was based on the Supreme Courts judgment in Uma Devi's case holding that appointments made without open advertisement were ultra vires of Article 14 and 16 of the Constitution. 3. In view of the position brought out above, and in the modification of the P&AR Departments O.M. No. AR-5/ASSO/98(C) dated 26.02.2001, it has been decided that no appointment shall be made on contract basis, henceforth. In other words, appointment on contract basis is banned. Thus, a post coming within the purview of NPSC can be filled up only by appointing a candidate recommended by NPSC on the basis of open recruitment and it cannot be filled up, even temporarily, in any other manner. Any appointment made on contract basis, henceforth, shall be null and void. The Administrative Head of the Department and the Head of the Department concerned shall be responsible to ensure that no appointment is made on contract basis and disciplinary action will be initiated against them in case of any violation. 4. Any appointment made on contract basis, henceforth, shall be null and void. The Administrative Head of the Department and the Head of the Department concerned shall be responsible to ensure that no appointment is made on contract basis and disciplinary action will be initiated against them in case of any violation. 4. This has the approval of the Cabinet vide Memorandum No. CAB-2/2013 dated 12th May, 2016. Sd/- PANKAJ KUMAR Chief Secretary to the Government of Nagaland." 3. This being the notification holding the field governing the appointment of the contingency service in the State, the learned counsel argues that the impugned orders No. PLN-950/2000(Pt-I) dated 3/7/2019 and Order No. PLN/M-156/93(Pt-1) dated 3/7/2019 are void ab initio and cannot stand the test of the O.Ms. as notified by the respondents themselves. For the above stated facts the impugned orders should be quashed and set aside and the petitioners should be considered for regularization in terms of the O.Ms. that is applicable. 4. Mr. Moa Imchen, learned Addl. Sr. Government Advocate appearing for the State respondents submits that the essence of the writ petition under Article 226 of the Constitution of India is that the petitioners should show his legal rights have been infringed then only writ petition would lie under Article 226 of the Constitution. He argued that the petitioners rights have not been infringed, therefore, the writ petition is not maintainable. He has made his arguments in terms of the O.M. dated 17/3/2015 which provides that regularization of contingency employee would be considered only on attaining 30 years of continuous service that too on scale pay. He has also elaborated that the petitioners do not fulfill the conditions laid down in the O.M. and the petitioners have only completed 17 years and 11 months, 14 years and 9 months, 14 years and 1 month, 12 years, 11 years and 11 months and 11 years and 5 months respectively. Hence, the O.M. dated 17/3/2015 does not cover the case of the petitioners and the writ petition is not maintainable. He further argues that the O.M. dated 17/3/2015 upon which the petitioners have relied on have already lapsed considering that the O.M. is only survivable by 5 years from the date of the Notification. Therefore he has contended that the petitioners have no rights to seek redressal under Article 226 of the Constitution. 5. He further argues that the O.M. dated 17/3/2015 upon which the petitioners have relied on have already lapsed considering that the O.M. is only survivable by 5 years from the date of the Notification. Therefore he has contended that the petitioners have no rights to seek redressal under Article 226 of the Constitution. 5. I have considered the submissions of the parties and also gone through the Notifications that is provided by the State respondents. There is more clarity required in the operation of the O.M. dated 22/9/2004 and the O.M. dated 17/3/2015. If the contention of the Addl. Sr. Government Advocate is to be accepted that the O.M. dated 17/3/2015 is holding the field with respect to regularization of contingency paid employees then the O.M. dated 22/9/2004 would loose its validity and henceforth there would be no reservation whatsoever with respect to regularization of contingency employees. The same shall be discussed for the clarity of all concerned. The normal rule is that subsequent OMs should override the operation of the older OMs. This Court has to make observation that the State has brought about the notification in compliance with the order passed in W.P.(C) 255(K)/2011 which was based on the judgment of Uma Devi's case. However, the O.M. 17/3/2015 does not comply with the directions of the Uma Devi's case which had three intended purpose: 1. To absorb the services of all the employees who had put in 10 years of service and who had not resorted to litigation as a one time measure. 2. To do away with all the contract/casual/work charged employments so that in course of time they do not come for regularization avoiding due procedure for recruitment which ultimately lead to violation of Article 14 and 16 of the Constitution. 3. To streamline all appointments in a manner that it is in consonance with the service jurisprudence which mandates that all recruitment can only be made by way of proper advertisement opportuning all legible candidates to appear for the test. 6. Though the O.M. 17/3/2015 seem to have been brought out in compliance to the Uma Devi's case, the spirit of the contents of the O.M. does confirm with the direction. The O.M. 17/3/2015 has provided for regularising employees who have rendered 30 years continuous service. Whereas the actual direction is to regularize employees who have served for 10 years. 6. Though the O.M. 17/3/2015 seem to have been brought out in compliance to the Uma Devi's case, the spirit of the contents of the O.M. does confirm with the direction. The O.M. 17/3/2015 has provided for regularising employees who have rendered 30 years continuous service. Whereas the actual direction is to regularize employees who have served for 10 years. This was directed as one time measure exercisable after 6 months to address such category of employees all over the country. The Apex Court passed the order on 10/4/2006. We have now passed 15 years from the date of the order and still unable to streamline the appointments in the State in terms of the Apex Court's order as well as the service jurisprudence. 7. We get a sigh of relief as the learned Addl. Sr. Government Advocate Mr. Moa Imchen submits that the O.M. is only for 5 years effecting from 1/2/2015 and would no more be enforceable w.e.f. 1/2/2020. This takes us to the issue whether the O.M. 17/3/2015 nullifies the O.M. 22/9/2004 which provides 50% reservation of normal vacancies which arises for work charged employees. Clause 1(i)h iii of O.M. 17/3/2015 provides that: "The existing scheme for regularization of work-charged employees against normal vacancy is being modified and the quota for work-charged employees stand enhanced from 50% to 67% for the next 5 (five) years effective form 01.01.2015. This existing scheme will also be applicable for the casual employees appointed on full time basis." 8. The reading of the above clause clearly indicates that the policy contained in the O.M. dated 22/9/2004 stands modified to 67% reservation for a period of 5 years effective from 1/1/2015 to 1/1/2020. Thus the O.M. dated 22/9/2004 has been done away with by the later O.M. 17/3/2015. Therefore the O.M. 17/3/2015 holds the field with matters relating to the regularization scheme for work charged employees who have served for more than 30 years on scale pay. 9. Further, the O.M. 17/3/2015 provides for filling up normal vacancies upto 67% who are serving on work charged basis. The scheme shall be effective from 1/1/2015 to 1/1/2020 which is for 5 years. All the quoted vacancies which have arisen are prior to 1/1/2020. Therefore, the rights of the petitioners to be considered in terms of the O.M. is established. 10. The scheme shall be effective from 1/1/2015 to 1/1/2020 which is for 5 years. All the quoted vacancies which have arisen are prior to 1/1/2020. Therefore, the rights of the petitioners to be considered in terms of the O.M. is established. 10. The above being the fact, this Court is unable to accept the contention raised by the learned Addl. Sr. Government Advocate for the respondents that there is no infringement of the petitioners' rights and petition under Article 226 of the Constitution does not lie. I am also not convinced with the argument raised by the learned counsel that the operation of the O.M. 17/3/2015 has lapsed and the petitioners cannot claim relief. It is clear that all the three vacancies which have been filled up de hors the rules arose prior to 1/1/2020 which is the date to the extend of which the O.M. 17/3/2015 survives. Therefore, there is no argument that the petitioners are not covered. 11. Whatever be the position, in both the O.Ms. it is clear that there would be no new work charged/contract/casual appointments. This is in consonance with the rulings of Uma Devi's case and several other rulings of the Apex Court. 12. In that view of the matter, the appointment orders impugned cannot stand the test of law. It is contained in the O.M. dated 6/6/2016 for appointment of employees on exigency of service which allowed the respondents to appoint employees in the event of extreme urgency has been done away with. Contract appointments are banned and, the post within the purview of NPSC can be filled up only by appointing a candidate recommended by NPSC on the basis of open recruitment and cannot be filled up, even temporarily, in any other manner. This is contained in paragraph 3 of the O.M. dated 6/6/2016. Thus, viewed from the above notifications, apparently the 2 impugned orders are in contravention with the O.M. brought out by the State respondents. 13. From the reading of the O.Ms. what can now be understood is the surviving O.M. with respect to regularization of contingency appointment is the O.M. dated 17/3/2015. The provision for 67% regular vacancies in particular Department is covered therefore, the petitioners comes within the ambit of the applicable O.M. holding the field. 14. From the above findings, the petitioners have established their rights to file the present writ petition which is allowed. The provision for 67% regular vacancies in particular Department is covered therefore, the petitioners comes within the ambit of the applicable O.M. holding the field. 14. From the above findings, the petitioners have established their rights to file the present writ petition which is allowed. The impugned orders No. PLN-950/2000(Pt-I) dated 3/7/2019 and Order No. PLN/M-156/93(Pt-1) dated 3/7/2019 are quashed and set aside. The respondents are directed to take steps to consider the case of the petitioners in terms of the O.M. dated 17/3/2015 and also quantify their quota in the existing vacancies that have fallen vacant and send the rest unfilled post for advertisement in terms of the O.M. dated 6/6/2016. Let the exercise be completed within 3 months from the date of receipt of a certified copy of this order. 15. The writ petition is disposed of.