Research › Search › Judgment

Gauhati High Court · body

2024 DIGILAW 723 (GAU)

Lithrongse v. State of Nagaland

2024-05-21

SANJAY KUMAR MEDHI

body2024
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. By means of this petition filed under Article 226 of the Constitution of India, the following prayers have been prayed for: “In the premises aforesaid, it is respectively prayed that Your Lordships would graciously be pleased to admit this petition, call for the records, issue a Rule calling upon the respondents to show causes as to why a writ of Certiorari and/or Mandamus and/or any other appropriate writ, order or direction should not be granted and upon cause or causes being shown be pleased to make the Rule absolute in the following terms: Direct the State respondents to regularize the service of the petitioner and to grant pensionary benefits. And/or pass any such further or other order/orders as Your Lordship may deem fit and proper in the facts and circumstance.” 2. The facts projected in the writ petition are that the petitioner was appointed as Semi-scale Labour in the establishment of the Executive Engineer, Public Health Engineering Department (PHED) in the year 1995. He was upgraded as Work-charged Khalasi on 05.03.2021 with a scale of pay. The petitioner has retired from service on attaining the age of superannuation on 30.06.2022. The claim of the petitioner, as would be evident from the relief prayed for is towards regularization of his service so that he gets the benefit of post retirement. 3. I have heard Mr. L. Likhase Sangtam, learned counsel for the petitioner, whereas Mr. Moa Imchen, learned Senior Government Advocate is present for all the respondents. 4. The learned counsel for the petitioner has submitted that the petitioner has served for a long period of about 27 (twenty-seven) years and he cannot be left without any pensionary benefits after such a long period of time. The action of the respondent authorities in granting the petitioner pay scale on and from 05.03.2021 has also been highlighted. 5. The learned counsel has referred to Rule 2 of the Central Service (Pension) Rules, 1972 and has contended that in view of such Rules which only contemplate 20 (twenty) years of service which has presently been made 10 (ten) years for being entitled to pensionary benefits, the petitioner should be granted such benefits. The filing of the representation by the petitioner which has not been considered has also been highlighted by the learned counsel for the petitioner. 6. The filing of the representation by the petitioner which has not been considered has also been highlighted by the learned counsel for the petitioner. 6. In support of his submission, the petitioner has relied upon and in fact annexed a copy of an Order dated 08.07.2013 by this Court, passed in WP(C)/213(K)/2012 (Khruvotso vs. State of Nagaland and Others). It is submitted that in the said case, a similarly situated person was given the benefit of regularization of his service so as to be entitled to pensionary benefits. The Court had also relied upon an earlier judgment of this Court reported in State of Manipur and Others vs. K.S.H. Ibobal Singh, 1997 (2) GLT 209. In the case of K.S.H. Ibobal Singh, the petitioners were found to be serving for 28 (twenty-eight) and 29 (twenty-nine) years without any pensionary benefits and accordingly, the directions were passed for giving them the benefit of regularization of their services and consequent entitlement to pension. 7. The learned counsel has also relied upon the case of Pradip Chakraborty and Others vs. State of Assam, 2014 (1) GLT 617. In the said case, this Court had directed giving the benefit of regularization of work-charged and muster-roll employees engaged prior to 01.04.1993 in the State of Assam so as to be entitled for pensionary benefits. 8. Per contra, the learned State counsel has submitted that though it is not in dispute regarding the total length of service of the petitioner which is about 27 (twenty-seven) years, out of the said service the petitioner had served in fixed pay for 26 (twenty-six) years and he was only granted scale pay on 05.03.2021 and he had retired after about a year thereafter on 30.06.2022. It is submitted that to effect any regularization, there has to be a post/vacancy and presently there are no vacancies in the State. It is contended that creation of post is also banned in the State of Nagaland. He has submitted that the Central Service (Pension) Rules of 1972 do not have any application. 9. The learned State counsel has also placed on record the Office Memorandum (OM) dated 17.03.2015 as per which a policy decision has been taken for regularizing service of existing work-charged and casual employees who have completed 30 (thirty) years or more continuous service as on 01.01.2015. 9. The learned State counsel has also placed on record the Office Memorandum (OM) dated 17.03.2015 as per which a policy decision has been taken for regularizing service of existing work-charged and casual employees who have completed 30 (thirty) years or more continuous service as on 01.01.2015. He submits that under the said OM which is in operation, the petitioner is not entitled for regularization. He clarifies that the grant of scale payment for one year will not entitle the petitioner to seek the benefit under the OM dated 17.03.2015 which stipulates minimum 30 (thirty) years of continuous service who were enjoying scale pay. The learned State counsel has also relied upon a decision of the Hon’ble Supreme Court reported in Union of India vs. Ilmo Devi and Others, AIR 2021 SC 4855 in which the Hon’ble Supreme Court has given a caveat upon the High Courts not to issue directions for regularization and similar benefits unless the employees concerned had entered into service by following the due process of law. Reliance has also been made upon the judgment of the Hon’ble Supreme Court dated 11.07.2022 in Civil Appeal No. 4223/2022, State of Nagaland vs. Nishevi Achumi. It is submitted that the said appeal was against the decision of this Court which was also affirmed by the Division Bench pertaining to regularization and consequent direction for payment of pension. The Hon’ble Supreme Court has, however, interfered with the aforesaid direction by holding that the decision of this Court towards regularization and pension were not in accordance with law. 10. The learned State counsel has finally submitted that the issue in question can be put to rest by a Judgment and Order dated 08.06.2023 passed by a Division Bench of this Court in WA/27/2022 (State of Nagaland and Others vs. Shri Alemba). In the said case, the Hon’ble Division Bench had held that the Rules of 1972 would not be applicable to casual and daily rated employees and accordingly, the claim for regularization and consequent pension have been rejected. 11. The learned counsel for the petitioner in his rejoinder has submitted that the decision of the Division Bench in the case of Shri Alemba is presently under review. 11. The learned counsel for the petitioner in his rejoinder has submitted that the decision of the Division Bench in the case of Shri Alemba is presently under review. He has also submitted that the decision of the Hon’ble Supreme Court in the case of Nishevi Achumi is distinguishable on facts as the aspect of delay of 12 (twelve) years was also one of the consideration. 12. The rival submissions have been duly considered. 13. The present claim is towards regularization of the service of the petitioner and consequent pension. It is not in dispute that the petitioner had served on fixed payment for about 26 (twenty-six) years out of his total 27 (twenty-seven) years of service and the last about one year, he was given scale payment. Be that as it may, the petitioner does not fulfill the requirement of completing 30 (thirty) years or more service in scale pay as per the OM dated 17.03.2015. The judgments relied upon by the petitioner is of a period prior to coming into operation the OM dated 17.03.2015. It is also not the case of the petitioner or any of the parties that the vires/legality of the OM is under challenge or has been held unconstitutional by any judicial pronouncements. 14. Apart from the case of the Hon’ble Supreme Court relied upon by the learned counsel for the respondent, what is to be noted, is the decision rendered by the Hon’ble Division Bench on an issue which is exactly similar to that of the present case. The Hon’ble Division Bench in clear terms has held that the Rules of 1972 would not be applicable, and therefore, the prayer of regularization and consequent entitlement for pension cannot be entertained. Though the aforesaid Judgment and Order dated 08.06.2023 is said to be under review, this Court is bound by the said ruling of the Hon’ble Division Bench. 15. In view of the aforesaid discussion, this Court is of the considered opinion that no relief can be granted to the petitioner and accordingly, the writ petition is dismissed. 16. No order as to cost.