The State of Nagaland & 3 Ors v. SMTI. HONGTI KONYAK AND ANR

BEFORE HON'BLE MR. JUSTICE SONGKHUPCHUNG SERTO HON'BLE MR. JUSTICE KAKHETO SEMA Date : 02-11-2022 (S. Serto, J) ORDER (ORAL) Heard Mr. Moa Jamir, learned counsel appearing for the appellants and also heard Mr. Supongwati Walling, learned counsel appearing for the respondents.

#2. This appeal is directed against the judgment and order dated 11.11.2021, passed in WP(C) No. 166/2020 by the Writ Court.

#3. Brief facts and circumstances which led to the filing of the writ petition and this appeal are as follows:- By an order dated 14.09.1993, issued by the Joint Director of Horticulture, Government of Nagaland, the petitioner’s husband was appointed as LDA on adhoc basis. Thereafter, by another order dated 09.06.1994, he was re-appointed as LDA on work- charged basis by the Director of Horticulture, Government of Nagaland. In the year 2016 his service was converted into LDA (casual) by an order issued by the Director, Horticulture, Government of Nagaland and his service was extended till

31.12.2018. However, before he could reach the end of his term he passed away on 17.07.2018. Few months thereafter the petitioner submitted a representation to the Director, Horticulture, Government of Nagaland requesting for regularization of her husband’s service posthumously so that she can enjoy pension and pensionary benefits. Her representation, after due consideration was rejected by the Government of Nagaland. Being Page No.# 3/8 aggrieved she came before this Court by filing WP(C) No. 166/2020. In the writ petition, the petitioner had contended that the service of her husband ought to have been regularized in terms of the scheme provided under Office Memorandum (OM) No. AR-3/Gen-67/2001(pt) dated 22.09.2004, wherein a policy and scheme for regularization of service of work-charged employees is provided for. The respondents therein, who are the appellants in this appeal, opposed the writ petition contending that the OM provided a policy and scheme only for regularization of services of work-charged employees but not for casual employees like the petitioner’s husband. The Writ Court by accepting the plea of the petitioner that her husband’s case is covered by the scheme of regularization provided in the OM dated

22.09.2004 and by relying on the judgment passed in WA No. 21/2019, allowed the prayer of the petitioner in that writ petition and respondent in this appeal. Being aggrieved the State appellants are here before this Court challenging the impugned judgment and order dated 11.11.2021 of the learned Single Judge.

#4. Mr. Moa Jamir, learned counsel for the appellants, by referring to the OM dated 22.09.2004, submitted that the policy and scheme for regularization of services provided in the OM is only for work-charged employees and not for casual employees. Therefore, the writ petitioner’s husband could not have been given the benefit of the policy and scheme given in the OM. Mr. Moa Jamir also submitted that there is another OM being OM No. AR-3/GEN-201/2009 dated 17.03.2015, wherein a scheme for regularization and absorption of both work-charged and casual Page No.# 4/8 employees is provided. However, the petitioner’s husband, as per the provisions of that OM did not meet the requirements because the length of his service was only 24 years and not 30 years continuous service as required and also did not enjoy the scale of pay. Therefore, he was also not eligible for consideration under that scheme too. Mr. Moa Jamir, thereafter, submitted further that, in any case, the judgment and order passed in WA No. 21/2019 has been quashed and set aside by the Hon’ble Supreme Court in the order dated 11.07.2022, passed in Civil Appeal No. 4223/2022. As such, the premises on which the prayer of the petitioner in the writ petition was allowed has been quashed and set aside. Therefore, the impugned judgment and order has no longer any ground to stand.

#5. Mr. Supongwati Walling, learned counsel appearing for the respondents submitted that, though it is true that the respondent was not a casual employee, therefore, his case could not have been considered under the OM dated 22.09.2004, but since the respondents had regularized the service of one person, namely, Shri L. Nyimpa Konyak, who was also an LDA (casual) in terms of the same OM, vide order dated 17.10.2012, issued by the Director of Horticulture, Government of Nagaland there is no reason why the service of the petitioenr’s husband also should not be regularized in the same manner. For denying of equal treatment to similarly situated persons would amount to discrimination which is against the equality clause in the constitution of India. The learned counsel also referred to a judgment passed by the Hon’ble Supreme Court in the case of Yashwant Hari Katakkar vs. Union of India (UOI) and Others on 19.09.1994 reported in Page No.# 5/8 (1996) 7 SCC 113 and submitted that since the petitioner’s husband had served for more than 24 years when he died, his service should have been deemed to have been confirmed and pension and pensionary benefits should have been given to the writ petitioner/respondent in this case.

#6. We have considered the submissions of the learned counsels and we have also gone through the record including the judgments referred to. On careful perusal of the OM No. AR- 3/Gen-67/2001(pt) dated 22.09.2004 there can be no mistake in concluding that the OM applies only to work-charged employees. The said OM is reproduced below:- “Government of Nagaland Department of Personnel & Administrative Reforms (Administrative Reforms Branch) NO.AR-3/Gen-67/2001 (Pt) Sept’2004. Dated, Kohima, the 22nd 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). 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) Page No.# 6/8 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. 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. (v) (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. 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. Addl. Chief Secretary to the Government of Nagaland.” Sd/- LALTHARA The OM starts with the subject “policy and scheme for Page No.# 7/8 regularization of service of work-charged employees” and the whole contents of the OM only confirms that the scheme is meant only for “work-charged employees”. Therefore, we have no hesitation in concluding that the OM provides the scheme or policy for regularization of service of work-charged employees only and not casual employees or any other. As such, the petitioner’s husband who was a casual employee could not have enjoyed the benefit of the OM. Further, since the very judgment and order (judgment passed in WA No. 21/2019) based on which the impugned judgment was passed has been quashed and set aside by the Hon’ble Supreme Court in Civil Appeal No. 4223/2022, we are of the view that the impugned judgment and order of the learned Single Judge can no longer stand on its own.

#7. On the argument forwarded by Mr. Supongwati Walling that equal treatment should be given to the respondent’s husband since the service of a similarly situated person has been regularized, we are of the view that, to do so, would amount to giving the benefit of negative equality which is not permissible under the settled principles of law. We must remember that the equality clause in our constitution only postulates positive concept and not otherwise.

#8. Further, we agree with the submission of Mr. Moa Jamir, learned counsel for the appellants that though the OM No. AR-3/GEN-201/2009 dated 17.03.2015 provided the scheme for regularization and absorption of both work-charged and casual employees, the respondent’s husband was not eligible for consideration for regularization of his service since he did not serve for 30 years continuously as required under the OM. Page No.# 8/8 Because admittedly the respondent’s husband, when he died, the length of his service was only 24 plus years and he did not enjoy scale of pay.

#9. In view of what has been stated above, we are of the view that the impugned judgment and order is liable to be quashed and set aside. Accordingly, appeal is allowed and the impugned judgment is quashed and set aside. JUDGE JUDGE Sd/- Sd/- Comparing Assistant