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2024 DIGILAW 755 (GAU)

Thsitongse v. State of Nagaland

2024-05-27

SUSMITA PHUKAN KHAUND

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JUDGMENT : SUSMITA PHUKAN KHAUND, J. 1. Heard learned counsel Mr. Likhase for the petitioner. Also heard learned Sr. Government Advocate Mr. Moa Imchen for the respondents. 2. The petitioner Mr. Thsitongse has filed this application under Article 226 of the Constitution of India for issuance of a writ of mandamus or certiorari or any other appropriate writ with a direction to the State Respondents to grant regularisation of the petitioner along with all the pensionary benefits and any other order as this Court deems fit and proper. 3. The State Respondents are: (i) The State of Nagaland arrayed as respondent No. 1 and represented by the Chief Secretary to the Government. (ii) The Commissioner and Secretary to the Government. (iii) The Chief Engineer, Public Works Department (R&B), Nagaland, Kohima. (iv) The Executive Engineer, Public Works Department (R&B) Kiphire Division. (v) The Commissioner and Secretary to the Government, Department of Personnel and Administrative Reforms, Kohima. (vi) The Secretary to the Government of Nagaland, Department of Finance, Nagaland, Kohima arrayed as respondent Nos. 1, 2, 3, 4, 5 and 6 respectively. 4. It is submitted that vide Order No. KPE/PWD/APPT/Gr-IV/1987-18 dated 04.06.1987 the petitioner was appointed as work-charged labour with a fixed pay of Rs. 300/- per month under the establishment of the Executive Engineer, Public Works Department (R&B), Kiphire Division (Annexure-A). The petitioner was continuously serving the Department for 35 years without any interruption to the utmost satisfaction of the Controlling Officer/Department and the petitioner was released from service vide Order No. EE/KPE/PW/WC/2020-21/67-72 dated 26.04.2022 w.e.f. 30.06.2022 (Annexure-B). He was serving the Department with the legitimate expectation that he would be regularised before being released from service. He is aggrieved as he had retired from service on 30.06.2022 without being regularised and as such his rights to pensionary and retirement benefits have been deprived to him. 5. On 19.04.2022 the petitioner submitted a representation with prayer for regularisation of his services to enable him to avail the pensionary benefits. There presentation is marked as Annexure-C of the petition. It is averred that similarly circumstanced incumbents have been regularised but the petitioner’s representation was not considered. The case of the petitioner is squarely covered by “the Central Services (Pension) Rules, 1972” and as such he is entitled to pension alongwith other service benefits in view of the standing orders of the Government of India. 6. It is averred that similarly circumstanced incumbents have been regularised but the petitioner’s representation was not considered. The case of the petitioner is squarely covered by “the Central Services (Pension) Rules, 1972” and as such he is entitled to pension alongwith other service benefits in view of the standing orders of the Government of India. 6. It is further contended that this Court in similar cases in WP (C) No. 96(K), WP (C) 104(K) and WP (C) 105 (K)/2015 vide order dated 27.03.2015 has disposed the cases with direction to the State Respondents to consider the case of the petitioners for regularisation of their services only for the purpose of paying pensionary benefits to the employees (Annexure-D). The petitioner’s case is squarely covered under the “the Central Service (Pension) Rules, 1972” (Rules of 1972 in short) which provides grant of pensionary benefits to temporary government servants retiring on superannuation to invalidation on completion of 10 years of temporary service. The mala-fide of the State-Respondents is writ at large, as the petitioner’s case was not considered at par with other temporary government employees. The petitioner has thus prayed for a direction to the State respondents to regularise his services to enable him to draw the pensionary benefits and other such benefits due to his continuous service to the government for 35 years. 7. Per contra, the State Respondents filed an affidavit-in-opposition refuting the allegations of showering undue favour to other similarly circumstanced incumbents. The grievance of the petitioner that he has retired without being regularised has been admitted by the respondents. It is contended by the respondents that in paragraph 4 of the writ petition, the petitioner has stated that the appointment order, explicitly states that the appointment was on temporary basis and was terminated with 1 (one) month’s notice which transpires that there is no justification for regularisation. No rules for post retirement regularisation of work charged employees has been framed by the government. The Rules of 1972 is applicable for Civil Service posts in pensionable establishment and work-charged post is not pensionable. The Nagaland Work-charged and Casual Employees Regularisation Act, 2001 [Clause 2(d)] defines “work-charged employees” “means an employee engaged without sanctioned post under work-charge establishment.” 8. No rules for post retirement regularisation of work charged employees has been framed by the government. The Rules of 1972 is applicable for Civil Service posts in pensionable establishment and work-charged post is not pensionable. The Nagaland Work-charged and Casual Employees Regularisation Act, 2001 [Clause 2(d)] defines “work-charged employees” “means an employee engaged without sanctioned post under work-charge establishment.” 8. It is further submitted by the respondents that indeed there is a direction by this Court in WP (C) No. 96(K), WP (C) No. 104(K) and WP (C) No. 105(K) of the year 2015 and the order dated 27.03.2015 to consider the case of the petitioners, but it is the prerogative of the State to consider the same as per the policy of the Ministry. The Rules of 1972 is only for those working in a regularised and sanctioned post and does not apply to the work-charged employees. The respondents have prayed to dismiss the petition as the petition is devoid of merits. 9. In reply to the affidavit-in-opposition, the petitioner has submitted a reply that the contention of the respondents in Paragraph-4 of the affidavit-in-opposition that the petitioner’s services are liable to be terminated as he was appointed at fixed pay, cannot be accepted. It is averred that the respondents have utilized the petitioner’s continuous services for 35 years. It is averred that the respondents have not framed any policy to grant pensionary benefits to labourers with fixed pay, but they have considered the case of similarly situated employees in compliance of the order dated 27.03.2015, passed by this Court in connection with WP (C) No. 9 (K)/2014 and WP (C) No. 104(K)/2014 and WP (C) No. 105(K)/2014. It is averred that the petitioner’s case has to be considered at par with the similarly situated employees. The respondents cannot apply different yardsticks in a discriminatory manner in violation of Article 16 of the Constitution of India. The State Respondents passed an order on 07.12.2017, in compliance of the order dated 27.03.2015, in connection with the cases mentioned above. The copies of the orders are marked as Annexure-1 and Annexure-2 of the reply. 10. I have considered the submissions at the Bar with circumspection. 11. The petitioners have submitted that this is a covered case, whereas the respondents have denied that this is a covered case. The copies of the orders are marked as Annexure-1 and Annexure-2 of the reply. 10. I have considered the submissions at the Bar with circumspection. 11. The petitioners have submitted that this is a covered case, whereas the respondents have denied that this is a covered case. The relevant part of the orders dated 07.12.2017, is reproduced herein-below: “OFFICE ORDER Dated Kohima, the 7th of December, 2017 No. NPWD/ESTT/CON/REG/2012 (Pt): In Compliance to the Hon’ble Court common Judgment of Order dated 27.03.2015 passed in WP (C) No 105 (K)/2014, Shri Phuting Khiam vs. State of Nagaland and Others and Government Approval Letter No. WH/EST/49/2014/1228 dated 14.09.2017, the undersigned is hereby regularized the service of Shri Phuting Khiam Work-charged Labour under the establishment of Sub-Divisional PWD (H) Tuensang Division for pensionary benefits against Grade-IV temporary post of Painter helper in the pay band of Rs. 4400-17200/- Grade pay Rs. 1300/- P.M. plus all other allowances as are admissible under the rules from time to time to similar post in Nagaland w.e.f. 10.08.2012. In the interest of justice the service rendered by the incumbent under workcharged period will be counted for pensionary benefits only. In the interest of public service Shri Phuting Khiam is posted under the establishment of Executive Engineer PWD (H) Tuensang Division, against existing vacancy. The regularization is personal to him and no appointment will be made against the post held by him after retirement. OFFICE ORDER Dated Kohima, the 7th of December, 2017 No. NPWD/ESTT/CON/REG/2012 (Pt): In Compliance to the Hon’ble Court common Judgment of Order dated 27.03.2015 passed in WP (C) No 104 (K)/2014, Noksha vs. State of Nagaland and Others and Government Approval Letter No. WH/EST/49/2014/1228 dtd 14.09.2017, the undersigned is hereby regularized the service of Shri Noksha Work-charged Labour under the establishment of Sub-Divisional PWD (H) Tuensang Division for pensionary benefits against Grade-IV temporary post of Mason helper in the pay band of Rs. 4400-17200/- Grade pay Rs. 1300/- P.M. plus all other allowances as are admissible under the rules from time to time to similar post in Nagaland w.e.f. 10.07.2012. In the interest of justice the service rendered by the incumbent under work-charged period will be counted for pensionary benefits only. In the interest of public service Shri Noksha is posted under the establishment of Executive Engineer PWD (H) Tuensang Division, against existing vacancy. In the interest of justice the service rendered by the incumbent under work-charged period will be counted for pensionary benefits only. In the interest of public service Shri Noksha is posted under the establishment of Executive Engineer PWD (H) Tuensang Division, against existing vacancy. The regularization is personal to him and no appointment will be made against the post held by him after retirement.” 12. It is submitted that the regularization of the similarly circumstanced petitioners, Sri Noksha and Sri Phuting Khiam were ‘personal to them’ and no appointment was to be made against the posts held by them after their retirement. The petitioners have quoted the common Judgment and Order passed by this Court in connection with WP (C) No. 96 (K)/2014, WP (C) No. 104(K)/2014 and WP (C) No. 105(K)/2014, wherein it has been held and observed that: “7. In the present case in hand, there is no dispute that all the 3 writ petitioners were appointed as Labour on fixed pay by the respondents and that they have continued in service for 35 years before been superannuated by the common order dated 25/4/2013 Issued by the Sub- Divisional Officer, Public Works Department (PWD Housing) Tuensang, Nagaland. By the said order, all the 3 writ petitioners are shown to have completed 35 years of service w.e.f. 31/7/2010, 31/7/2012 and 31/8/2012 respectively. 8. This Court has also considered the CCS pension rules 1972. Further, the reliance placed upon by the learned counsel for the parties has also been considered by this Court. This Court has also considered the length of service-rendered by the petitioners in their respective post before been superannuated with effect from the dates as indicated herein above. It is seen that the petitioners had been in continuous service, though under fixed pay, for 35 long years and they had given their prime time of their life to the service of the State Government. The State being a model employer cannot be allowed to apply the method of exploitation against such petitioners. After having extracted the best part of their lives, this Court is of the considered opinion that the petitioners cannot be allowed to go high and dry after 35 long years of service. The State being a model employer cannot be allowed to apply the method of exploitation against such petitioners. After having extracted the best part of their lives, this Court is of the considered opinion that the petitioners cannot be allowed to go high and dry after 35 long years of service. The stand of the State respondents that as the petitioners were appointed on fixed pay and had retired as such, they are not entitled to pension and other retirement benefits appears to be very harsh and in-human more particularly when they have sacrificed the best part of their life to the service of the State Government.” 13. Likewise, in the instant case, the present petitioner has also rendered 35 years of service to the PWD (R&B), Nagaland, Kohima. Equity will prevail if the petitioner’s prayer for regularization is also considered at par with the similarly circumstanced employees, only for the purpose of receiving the pensionary benefits. 14. The respondents have averred that no rules for post retirement benefits of work-charged employees have been framed by the Government and the Rules of 1973 are applicable for several posts in pensionable establishments and work charged posts, are not pensionable. 15. Here, the petitioner has served the State Government for 35 long years. This argument of the respondents that the petitioner is not entitled to pensionary benefits is indeed not acceptable. At this stage, the petitioner has no scope to look for alternate respite. His entire life was devoted to offer his services to the respondent authorities. Right to live with dignity will thus, be breached, if minimum benefit is not provided to a person who has rendered his services continuously and incessantly, for 35 long years or for his entire life. 16. Learned counsel for the petitioner has also relied on the decision of this Court in State of Nagaland vs. Shri Angphei Konyak, Writ Appeal No. 35/2022, decided on 06.02.2024, upholding the Judgment of the learned Single Judge, by observing that: “A Division Bench of this court also in State of Manipur and Others vs. K.S.H. Ibobal Singh, 1997 (2) GLT 209, echoed the same principle, wherein it has been held as under: “12. We, unequivocally of the the view that the term contract appointment must be terminable at some stage in their service. We, unequivocally of the the view that the term contract appointment must be terminable at some stage in their service. But, if contract appointment continues uninterruptedly till the age of superannuation as it happened in the case in hand, the character of appointment automatically changes and the employee has to be treated under normal Govt. Service Rule, entitling them pensionary benefits. In the instant case, the stand taken by the appellant Govt. that the respondents were on contract service and therefore, even if they retire on attaining the age of superannuation they will not be entitled to pension and other retiral benefits is unacceptable. If they are on contract service their service could have been terminated when they were youthful and they could have gainfully employed in some other avocation. But then, after using their entire services, drained out their energy and when they are aged, old and infirm and incapable of functioning, allowing them to go empty handed is an invasion of mandate of Article 14 and 21. Right to live has been interpreted as right to live with dignity will have no meaning. The contention of the learned counsel for the appellants is therefore rejected as untenable.” 32. Thus, having considered the submission of learned Advocates of both the parties in the light of the given facts and circumstances on the record and in the conspectus of decisions of Hon'ble Supreme Court and also of this court, we find the submission of Mr. Sentiyanger, the learned counsel for the respondent well merited and accordingly, we are inclined to accept the same. And for reason discussed herein above, we are in respectful disagreement with the submission of Ms. V. Suokhrie, learned Addl. Advocate General, Nagaland and accordingly the same stands repudiated. We find and hold that the impugned judgment of the learned Single Judge suffers from no infirmity requiring any interference of this court.” 17. In the wake of my foregoing discussions, it is thereby held that the State Respondents should re-consider the case of the petitioner. Accordingly, this writ petition is disposed of with a direction to the Respondents to consider the petitioner’s prayer for regularization of his services, only for the purpose of paying pensionary benefits, within 3 (three) months from today. 18. In view of the above observations, this petition stands disposed of. 19. No order as to costs.