JUDGMENT : 1. In this petition, under Article 226 of the Constitution of India, the petitioner - Smti. Nsungbeni has put to challenge the letter, No.UDD/USTT- 06/98 (pt.), dated 20.05.2014, and appointment order, No. UD/ESTT-14/07/504, dated 09.06.2014, issued in favour of Smti. Kecalhounuo, the respondent No. 5. 2. It is to be noted here that vide letter, dated 20.05.2014, No.UDD/USTT- 06/98(pt.), administrative approval for appointment of the respondent No. 5 Smti. Kecalhounuo, to the post of sweeper, against the vacancy arose on account of death of Lt. Dopari, Sweeper is accorded to and vide impugned letter, dated 09.06.2014 No. UD/ESTT-14/07/504, the Director-in-Charge, Nagaland, Kohima, has appointed respondent No. 5 against the said vacancy. 3. The factual background leading to filing of the present petition is adumbrated herein below:- “The petitioner was working as senior most work-charged Sweeper on fixed pay basis, in the Office of the Executive Engineer (Town and Planning Work Division, Department of Town Planning, vide office order No. TPWD/ESTT/W/C/77/94, dated 01.02.1994, and her service was extended from time to time and vide order No. EE/TPWD/W/C/77/96-97/308, dated 14.02.1998, she was appointed on scale pay with effect from 01.10.1998. She served in the Department for more than 20 years in the said capacity. Thereafter, on account of death of one Smti. Dopari, one post of Sweeper fell vacant in the Department. The petitioner then submitted an application requesting the authorities to regularize her service. The petition was forwarded to the respondent No. 4, for further necessary action vide letter, dated 16.08.2013. The petitioner, being the senior most work-charged Sweeper in the Department was expecting that her case will be considered for regularization in terms of O.M., dated 22.09.2004. The Govt. of Nagaland has issued one O.M. No. AR-3/GEN-64/2001, (pt.) dated 22.09.2004, by which a policy has been adopted for regularization of service of workcharged employees, whereby, it has been formulated that 50% of the regular vacancies of similar nature, arising in a year will be reserved for regularization of the work-charged employees and the remaining 50% will be filled up as per normal rules of recruitment. However, the respondent authorities without considering the case of the petitioner for regularization and ignoring the mandate of O.M., dated 22.09.2004, issued the impugned approval letter, dated 20.05.2014, whereby approval of private respondent No. 5 for fresh appointment was accorded, and subsequently, vide impugned order, dated 09.06.2014, respondent No. 5 was appointed to the post of sweeper on regular basis and thereby deprived the petitioner from regularization of her work-charged service. Being highly aggrieved, the petitioner approached this Court challenging the impugned approval letter, 20.05.2014 and the appointment order, dated 09.06.2014.” 4. Thereafter, the petitioner has filed one additional affidavit on 17.09.2020, stating therein that challenging the appointment of private respondent No. 5, another writ petition, being WP (C) No. 102 (K) 2014 was filed by one Smti. Kezhanguu Khromo claiming appointment to the said post on land ownership basis and that the petitioner had no knowledge about filing of the said petition and that vide order, dated 11.02.2015, this Court was pleased to allow the writ petition by setting aside the approval letter, dated 20.05.2014 and appointment letter, dated 09.06.2014, appointing the respondent No. 5 to the post of sweeper, with a direction to the respondent authorities to forthwith take steps for consideration of the petitioner along with any other eligible work-charged employees in the Department for regularization to the said vacant post of Sweeper that arose due to the death of Late Dopari in the Department of Urban Development, as stipulated in the O.M., dated 22.09.2004. Thereafter, vide order, dated 18.03.2015, the authority had regularized the service of the petitioner and the respondent authorities are in the process for confirmation of service of the petitioner and other Grade -III & IV staffs of the Department and as such, the writ petition No. 102 (K) 2014 and WP (C) 140 (K) 2014 becomes infructuous. 5. The State respondent Nos. 1 to 4 have filed their counter affidavit denying the averments made in the petition and it is stated that Clause-3 of the Office Memorandum, dated 22.09.2004, states that 50 % of all the regular vacancies of similar nature arising in a year will be reserved for regularization of workcharged employees and 50% of available vacancies to be filled as per normal rules of recruitment. Clause 4 which states that the regularization of workcharged employees will be based on seniority-cum-merit which means that the senior most work charged employee in the relevant category will be regularized subject to her/his fitness for the vacant post. And as such, the work charged employees cannot claim absolute right for regularization on the basis of the said Office Memorandum, dated 22.09.2004, as regularization is made on the basis of their fitness and efficiency on providing his/her service to the Department. It is further stated that one vacancy arose due to demise of Lt. Dopari, the authority had decided go ahead with appointment of private respondent No. 5 and appointed her taking into consideration 50/50 basis, and if in future any vacancy arises in the category that required to be filled up as per normal rules, then the work-charged employees would be given preference. And on aforesaid consideration, the private respondent No. 5 was appointed to the said post and as such, her appointment cannot be said to illegal, arbitrary or discriminatory and therefore, it is contended to dismiss the petition. Xxxx 7. I have heard Mr. N. Longkumer, learned counsel for the petitioner and also heard Mr. K. Angami, learned Govt. Advocate for the State of Nagaland. 8. Mr. Longukumer, learned counsel for the petitioner submits that the petitioner was working as work-charged employee for 20 years and in view of the O.M., dated 22.09.2004, No.AR-3/GEN-67/2001 (pt.), she was entitled to regularization being the senior most work-charged employees of the Department. It is further submitted that as per the said Office Memorandum, 50% of the posts, fell vacant in a year are required to be filled up from the senior most work-charged employees and rest of the 50% of the vacancies will be filled up as per normal rules of recruitment. And without following the mandate of the said Office Memorandum, the respondent authority had appointed the private respondent No. 5 to the post of sweeper, which was meant for regularization of petitioner service. And without following the mandate of the said Office Memorandum, the respondent authority had appointed the private respondent No. 5 to the post of sweeper, which was meant for regularization of petitioner service. It is further submitted that the private respondent No. 5 has not contested the case and vide order, dated 11.02.2015, this Court was pleased to allow the writ petition of the petitioner by directing the respondent authorities to consider the case of the petitioner along with other eligible work-charged employees in the Department for regularization against the vacant post, that arose on account of death of Lt. Dopari in the Department of Urban Development and such consideration has to be done and completed within 3 months and pursuant to the said direction, the petitioner was appointed by the Department against the said post and she has been rendering service in the said capacity till date and though, vide order dated 05.05.2016, this Court was pleased to recall the aforesaid order, dated 29.04.2016, yet, the State respondents has not cancelled the regularization order of the petitioner and waiting till disposal of the writ petition and vide the said order, it is ordered that WP (C) 102 (K) 2014 and WP (C) 140 (K) 2014, are to be listed together for admission hearing in usual course. It is further submitted that the case of the petitioner is in much higher footing than the petitioner of writ petition No. 102/2014, as she is the senior most work-charged employee who has completed 20 years and entitle to regularization on the basis of the O.M., dated 22.09.2004. Therefore, it is contended to allow this petition. 9. On the other hand, Mr. Angami, learned Govt. Advocate for the State submits that 50% of the post of the department are reserved for work charged employees and rest 50% of the vacancies that arises in a year are required to be filled up as per recruitment rules and as such, the case of the petitioner is supported by the O.M., dated 22.09.2004. 10. It is to be noted here that pursuant to the order dated 29.04.2016, in Civil Review Petition No. 2(K)/2015, (in W.P.(C) No.102(K)/2014), both the writ petitions, being WP (C) 102 (K) 2014 and WP (C) 140 (K) 2014, are heard together. 10. It is to be noted here that pursuant to the order dated 29.04.2016, in Civil Review Petition No. 2(K)/2015, (in W.P.(C) No.102(K)/2014), both the writ petitions, being WP (C) 102 (K) 2014 and WP (C) 140 (K) 2014, are heard together. But, it is decided to pronounce separate judgments in both the writ petitions as none of the petitioners have been arraigned as respondent in their respective petitions. 11. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the affidavit of the State respondents, and also carefully gone through the Office Memorandum, dated 22.09.2004, and the impugned approval letter, dated 28.05.2014, and the appointment letter, dated 09.06.2014. 12. The contention of the petitioner is that she has been serving in the Department for the last 20 years, having been appointed on 01.02.1994, and given the scale pay on 01.10.1998, and that she is the senior most workcharged employee of the said Department, is not disputed by the respondent side. It is also not in dispute that the vacancy that arose on account of death of Lt. Dopari who was working in the said Department as Sweeper, belongs to the 50% quota, meant for the work-charged employees. Though, the State respondents, in their affidavit stated that having appointed the respondent No. 5 in the said post as fresh candidates, and the vacancy, which arise in future will be given to the work-charged employees, thus, appears to be not in the letter and spirit of the O.M., dated 22.09.2004. 13. A cursory perusal of the O.M. dated 22.09.2004, which is annexed with the petition as Annexure-‘C’, left this Court unimpressed by the contention made by the State respondents in their affidavit in opposition. Clause 3 of the O.M. provides that 50% of regular vacancies of similar nature arising in a year will be reserved for regularization of work charged employee and the remaining 50% will be filled up as per normal rule of recruitment. In Clause No. 4 of the O.M., it is stated that work charged employee 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. In Clause No. 4 of the O.M., it is stated that work charged employee 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 employees in the relevant category will be regularized subject to his/her fitness for the vacant post and in Clause No. 4, it is stated that in case no work-charged employee is found suitable for regularization in terms of the above clause (4), the Department will obtain clearance from PNAR Department before making any fresh appointment against the quota reserved for work charged employee explaining the circumstance for not being able to fill up the vacancy through regularization of work charge employee. 14. It is not the case of the respondents that the petitioner is found to be not suitable for regularization against the vacant post. That being so, the appointment of respondent No. 5, in the vacant post, that arose on account of death of Lt. Dopari in the Department of Urban Development pursuant to the impugned approval letter, dated 20.05.2014, and order dated 09.06.2014, appears to be in consistent with the mandate of O.M., dated 22.09.2004. Since she is the senior most work charged employee, and since she has completed 20 years in service in the said Department and since she is found to be not otherwise unfit to be regularized, the approval letter, dated 20.05.2014 and the appointment letter, dated 09.06.2014, appointing the respondent No.5, against the vacant post that meant for the category of work charged employee, appears to be against the mandate of O.M., dated 22.09.2004, and there by violates the right of the petitioner as enshrined in the Article 14 & 16 of the Constitution of India, as the same violates the principles of natural justice and also against the administrative fair play. 15. In the result, I find sufficient merit in this petition and accordingly, the same stands allowed. The impugned approval letter, dated 20.05.2014 and also the impugned appointment letter, dated 09.06.2014 stands set aside and quashed. Consequently, the regularization of the service of the petitioner against the vacant post stands affirmed. In the given facts and circumstances, it is provided that the parties shall bear their own cost.