THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. CHISHI

29: SMTI LIVI K ZHIMO D/O SHRI KHETOVI ZHIMO SUKOMI VILLAGE ZUNHEBOTO 30: SMTI ALILA M SANGTAM D/O SHRI MANEN SANGTAM CHIMONGER VILLAGE Page No.# 5/25 31: SHRI LICHEMBI SANGTAM S/O SHRI ALEMBA SANGTAM CHIMONGER VILLAGE 32: SHRI LITSASE SANGTAM S/O SHRI SELIMONG SANGTAM LONGKHIM VILLAGE TUENSANG 33: SHRI KHUMCHOLIBA C SANGTAM S/O SHRI CHOPISE T SANGTAM PHIRAHI VILLAGE TUENSANG 34: SHRI KHUMKILI SANGTAM S/O SHRI THRONGSOMONG SANGTAM PHIRAHI VILLAGE TUENSANG 35: SMTI T LILY SANGTAM D/O SHRI THRONGSOMONG SANGTAM PHIRAHI VILLAGE TUENSANG 36: SMTI THSAROLA SANGTAM D/O SHRI YOLISE SANGTAM CHIMONGER VILLAGE TUENSANG 37: SMTI Y HOPILA SANGTAM D/O SHRI L. LITHRONGSE SANGTAM CHIMONGER VILLAGE 38: SHRI LONGHOLI S/O SHRI LITHRICHEM PHIRAHI VILLAGE TUENSANG 39: SMTI R. LUMCHUNGLA D/O SHRI REJUNGCHUM NYENGCHUNG WARD LONGLENG 40: SHRI SEPONGCHEM SANGTAM S/O SHRI TONGPANGCHUBA SANGTAM CHUNGLIYIMTI VILLAGE TUENSANG 41: SHRI. T. PONGLISE SANGTAM S/O SHRI SEOPI SANGTAM SANGSOMONG VILLAGE TUENSANG Page No.# 6/25 42: SHRI THRONGSALI SANGTAM S/O SHRI SEOPI SANGTAM LIRISE VILLAGE TUENSANG 43: SHRI THRILISE SANGTAM S/O SHRI YOJUNGLIBA SANGTAM OLD MANGAKHI VILLAGE TUENSANG 44: SHRI SERICHEM SANGTAM S/O SHRI THSIKHASE SANGTAM OLD MANGAKHI VILLAGE TUENSANG 45: SHRI MOASE S/O SHRI TSARIO MANGAKHI VILLAGE TUENSANG 46: SHRI THSATSASE SANGTAM S/O SHRI THRELIMONG SANGTAM LIRISE VILLAGE TUENSANG 47: SMTI SENTIENLA SANGTAM D/O SHRI KILEMSUNGBA SANGTAM CHARE VILLAGE TUENSANG 48: SHRI NAPENMONGBA CHANG S/O SHRI IMLONGCHABA CHANG K.KHEL TUENSANG VILLAGE TUENSANG 49: SHRI SEPONGCHEM SANGTAM S/O SHRI RANGKHAMONG SANGTAM LONGKHIM TOWN TUENSANG 50: SHRI LITHRONGCHEM S/O SHRI BITONG THONGER LIRISE VILLAGE TUENSANG 51: SHRI YANGERBA Y SANGTAM S/O SHRI YANGCHOSING SANGTAM LIRISE VILLAGE Page No.# 7/25 TUENSANG 52: SHRI K LEMKHABA SANGTAM S/O SHRI. KUMTSIMONG SANGTAM CHIMONGER VILLAGE 53: SHRI AOSIPONG CHANG S/O SHRI ESUBA CHANG NOKSEN VILLAGE TUENSANG 54: SHRI THUGPANG ALLEN CHANG S/O SHRI NGAKUSOMBA CHANG TUENSANG VILLAGE 55: SHRI Y THETSIMONG S/O SHRI YANGHOSE TSADANG VILLAGE TUENSANG 56: SMTI TOMBANGNARO CHANG D/O SHRI CHUBA CHANG YIMRUP VILLAGE TUENSANG 57: SHRI KHUMTONG A SANGTAM S/O SHRI AKHAMONG SANGTAM CHIMONGER VILLAGE TUENSANG 58: SHRI SAMUELAKHUM S/O LT. LEMBATOSHI YALI VILLAGE TUENSANG 59: SMTI SHANGSELA SANGTAM D/O SHRI TSAPISE SANGTAM SANGSOMONG VILLAGE TUENSANG 60: SHRI NGAKUSOMBA CHANG S/O SHRI R. NOKSANG CHANG YANGPI VILLAGE TUENSANG 61: SMTI. LITSAPILA SANGTAM D/O SHRI CHEMLISE SANGTAM CHUNGTOR VILLAGE TUENSANG Page No.# 8/25 62: SHRI T. JOLLY SANGTAM S/O SHRI TSARISE LIRISE VILLAGE TUENSANG 63: SHRI PONGSHAI S/O SHRI KHAIKHO LENGNYU VILLAGE TUENSANG 64: SHRI TSALISE T SANTAM S/O SHRI THRINICHO SANGTAM SIGNAL ANGAMI VILLAGE DIMAPUR 65: SHRI NOKTSALI SANGTAM S/O SHRI THSALICHEM OLD MANGAKHI TUENSANG 66: SMTI KHUMDILILA SANGTAM D/O SHRI ASANGBA SANGTAM OLD MANGAKHI VILLAGE TUENSANG 67: SMTI KHASILA SANGTAM D/O MURUCHO SANGTAM ANGANGBA VILLAGE TUENSANG 68: SMTI SETSALA SANGTAM D/O SHRI ATHRIBA SANGTAM SINGREP VILLAGE KIPHIRE 69: SMTI ACHEMLA S SANGTAM D/O SHRI SETSIPA L SANGTAM SEYOCHUNG VILLAGE KIPHIRE 70: SHRI LISECHEM S/O SHRI LOKING ALISOPUR VILLAGE TUENSANG 71: SHRI TSUNGDILE R.T. S/O SHRI R.TSAPI SANGTAM OFFICE COLONY TUENSANG Page No.# 9/25 72: SHRI VINOKA P YEPTHOMI S/O SHRI Y PUKHASHE YEPTHOMI LHOTHOVI VILLAGE DIMAPU VERSUS THE STATE OF NAGALAND AND 3 ORS. THROUGH THE CHIEF SECRETARY TO THE GOVERNMENT OF NAGALAND, KOHIMA 2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF NAGALAND NAGALAND KOHIMA 3:THE CHIEF ENGINEER PHED NAGALAND KOHIMA 4:THE ADDITIONAL CHIEF ENGINEER SANITATION AND ESSO PHED NAGALAND KOHIM Advocate for the Petitioner : SENTIYANGER, VESUTOLU THERIE,KONLI BUCHEM,APILA SANGTAM,CHUBA IMCHEN Advocate for the Respondent : GOVT ADV NL, Date of Hearing Date of Judgment : :

07.08.2025.

23.10.2025 Page No.# 10/25 BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND JUDGEMENT AND ORDER (CAV) Case of the petitioners:-

1. 72 (Seventy Two) petitioners have filed this petition as they are aggrieved by the impugned orders dated 23.02.2024 and 20.04.2024, whereby their services have been terminated on the ground of excess appointment of employees by the respondent authorities.

2. The respondents in this case are the State of Nagaland through the Chief Secretary to the Government of Nagaland, Kohima; the Commissioner and Secretary to the Government of Nagaland, PHED, Kohima; the Chief Engineer, PHED, Kohima and the Additional Chief Engineer, Sanitation and WSSO, PHED, Kohima who are arrayed as respondent Nos. 1, 2, 3 and 4 respectively.

3. The petitioner's case in brief is that, consequent upon the approval of the Government letter dated 09.10.2022 and the P&AR Department, O.M. dated

03.10.2022, the 72 petitioners were appointed as Operation and Maintenance staff (O & M staff) in the scale of Rs. 3,000-15,200/- per month under the PHE Department on various dates during the month of September, 2023. One of the service conditions of the appointment was that they will serve for 2 years on probation after which they would sit for suitability test for regularization. However, even before completion of two (2) years of probation period, the respondent authorities passed the impugned orders dated 23.02.2024 and 20.04.2024 terminating the services of the petitioners on the ground that there was excess appointment although, according to the petitioners, this is not so. The petitioners have assailed the termination order and have prayed for their reinstatement.

4. It is submitted that notices were issued vide Office orders dated 23.02.2024, without the probation period being completed and without according an opportunity to the petitioners to undergo suitability test. The appointment orders and the termination Page No.# 11/25 orders are marked as Annexures- 3-73 and Annexures- 74-145 of the writ petition respectively. After receiving the termination orders, the petitioners submitted respective representations dated 23.04.2024 to the respondents, but the same could not evoke any response. The representation of petitioner No. 1, which is similar to the other representations, is marked as Annexure-146. It is contended that the department has already selected those who were not terminated as regular O & M staff without allowing them to undergo suitability test or completion of 2 years.

5. It is averred that the respondents have misused their dominant position as employers and have unlawfully terminated the petitioners service without their probation being completed or without any enquiry, which is against the terms of the appointment order. It is further contended that the petitioners have been appointed by specific government approvals, but there was no such specific government approval for termination of the petitioners, which denotes that the termination was made to serve the individual vested interest of the respondents with their ulterior motive. It is no longer res integra, that the decision of the Cabinet and/or Government cannot be overridden by a single Minister or by the Administration. It is further contended that oral instructions cannot form the basis of terminating an employee. The termination is stigmatic and therefore Article 311(2) of the Constitution of India is attracted in the present case.

6. The petitioners have also prayed for their wages to be paid to them as they could not attend duty owing to their illegal termination by the State respondents in violation of the appointment order stipulating 2 years of probation period. The service conditions have been unilaterally flouted by the State respondents. It is well settled in law that rules of a game cannot be changed after the commencement of the game. It is also contended that similarly situated persons who were appointed against similar posts at the same point of time are still serving the department, which smacks of arbitrariness, callousness and discrimination rendering the action of the respondents palpably illegal and not sustainable in law.

7. It is submitted that violating their own appointment order is unjust and against all canons of law. It is further contended that there is no excess of employment as asserted by the State respondents which in fact, is substantiated by the reply to the Page No.# 12/25 RTI dated 01.04.2024 by the Office of the Chief Engineer, Public Health Engineering Department, vide Notification No. CE/PHE/RTI/2005/277 dated 09.04.2024, which is marked as Annexure-147 of the petition. It is submitted that the petitioners shall suffer irreparable loss if the respondents appoint someone else against the vacancy caused by their termination and thus the petitioners have prayed to; (i) set aside and quash the impugned Office orders dated

23.02.2024 and 20.04.2024, terminating the service of the petitioners, (ii) the petitioners have also prayed for a direction to be re- instated in service and to allow them to serve the probation period of 2 years following which they may be allowed to appear for suitability test in terms of the service conditions laid down in the respective appointment orders; and/or (iii) direct the State respondents to pay the back wages to the petitioners as they were debarred from attending duties owing to their illegal termination.

8. An additional affidavit was filed by petitioner No. 1, that on 12.12.2025, the petitioners through their counsel filed an RTI application before the Public Information Officer (PIO for short) PHED, Nagaland, requesting for the following information "chronological list of all appointments made to the post of Operation and Maintenance staff under your esteemed, department from

01.01.2024 till date, clearly indicating the date of appointments along with their appointment orders''.

9. Thereafter, vide Office letter No. CE/PHE/RTI/2005/360 dated 09.01.2025, a list of O & M staff appointed w.e.f., 01.01.2024 to 17.12.2024 under PHE Department was forwarded in reply to the RTI application and it was also informed through the reply that 182 O & M staff were appointed in 2024. It is alleged that this indicates that the action of the State respondents was arbitrary and illegal because there was no excess appointment as claimed by the respondents. It is further contended that it is well Page No.# 13/25 established in law that ad-hoc employees cannot be replaced by other ad-hoc employees. The RTI application and the reply is marked as Annexure- 148A and 148B of the additional-affidavit.

10. An affidavit-in-reply was also earlier filed by the petitioners to the affidavit- in-opposition filed by the respondents No. 1 to 4, denying excess employment beyond the ceiling and alleging that the respondents have falsely claimed excess employment in order to illegally terminate the service of the petitioners.

11. It is emphasized by the petitioners that there was no excess employment within the Department of PHED so far as O & M staff are concerned. In fact, even after termination of the petitioners, the Department has appointed 182 O & M staff between March to September, 2024 alone, which shows that the respondents have taken a false excuse in order to terminate the petitioners and to accommodate some others, without allowing the petitioners to take part in the suitability test, as was provided in their appointment orders.

12. It is not the case that the petitioners were found unsuitable for the job. Although the respondents have denied of any fresh appointment having been made against the vacancies created by the termination of the petitioners yet in flagrant violation of the Court’s order dated 17.05.2024, the respondents have appointed 182 O & M staff. It is also emphasized that even in the month of October and November, 2024, the respondents have continued to make fresh appointments of O & M staff, which is an act of blatant violation of an order of this Court.

13. It is stressed that even after termination of the petitioners, the Department had appointed 182 O & M staff between March to September, 2024 alone.

14. It is submitted that the respondents have falsely stated that the petitioners namely (i) Smt. Surukhali Aomi, (ii) Shri. Mughavi Awomi, (iii) Shri. Kunoto V. Chisti, (iv) Shri. Mughakivi Zhimo, and (v) R. Lumchungla, have never joined their service. It is submitted that the petitioner No. 11 submitted her joining report on 13.09.2023, the Page No.# 14/25 petitioner No. 14 submitted his joining report on 26.09.2023,the petitioner No. 17 submitted his joining report on 29.09.2023 and, the petitioner No. 27 submitted his joining report on 28.09.2023 and their joining reports are marked as Annexure-B, C, D and E of this affidavit-in-reply (dated 04.12.2024). It is further contended that the RTI reply dated 01.04.2025 belies the respondents’ claim that the limit of appointments was fixed by the Government for the respondent Department in respect of O & M staff which exceeded the ceiling limit after the appointment of the petitioners.

15. The act of the respondents, terminating the petitioners and selecting 182 O & M staff also belies the claim of the respondents relating to the ceiling limit. It is further submitted that the respondents ought to have allowed the petitioners to continue in service and after appearing in the suitability test as per the condition in the appointment orders, the petitioners could have been debarred from continuous service, if they would have been found unsuitable. The respondents approach in terminating the petitioners even before completion of probation period is arbitrary, whimsical and unreasonable. Case of the Respondents:-

16. Respondent Nos. 1 to 4 have jointly filed an affidavit-in-opposition contending inter alia that by the O.M. dated 03.10.2022, the respondent department was exempted from the purview of the P&AR, by the O.M. dated 12.07.2021, and the department was only allowed to maintain the work charged and casual employees as per the ceiling fixed by the Work-charged and Casual Employees Commission. A copy of the O.M. dated 03.10.2022 is marked as Annexure-A of the counter-affidavit. It is submitted that the office order dated 12.09.2023, through which the petitioners were appointed and kept on probation for 2 (two) years includes a condition that the appointment ‘is on temporary basis and is liable to be terminated within the probation period with one month's notice’. The petitioners were well aware of the terms and conditions of the appointment and have accepted the same and therefore, they cannot now take the plea that they were terminated before the expiry of the probation period without allowing them to undergo the suitability test.

17. It is submitted that by the O.M. No. AR- 3/GEN- 201/09 (VOL- 1) dated Page No.# 15/25

03.10.2022 issued by the Government of Nagaland, P&AR Department (Administrative Reforms Branch), the nomenclature-work charged for the Power Department and Public and Engineering Department were changed to Office and Maintenance staff (O & M staff). By the O.M. dated 03.10.2022, not just the nomenclature of work-charged was changed but also the two departments were exempted from the purview of P&AR by O.M. dated 12.07.2021, and were allowed to maintain the work-charged and casual employees as per the ceiling fixed by the Work charged and Casual Employees Commission. Various departments having work charged employees in establishments on 11.02.2020, proposed and recommended to the higher authorities the ceiling strength of the work-charged employees wherein, the ceiling fixed for respondent department stood at 2,000 as seen from the records. Though all the petitioners were appointed by different Office orders, yet they were all appointed in the month of September, 2023 due to which, by the month of October, 2023, the existing O & M staff exceeded the ceiling limit of 2,000 fixed for the respondent department and this is evident from the reply to the RTI dated 01.04.2024, annexed by the petitioner in the writ petition which necessitated termination of some of the excess appointees in order to maintain the ceiling limit.

18. It is not disputed by the respondents that the petitioners were appointed on a temporary basis with terms and conditions that they shall be on probation for 2 years and on completion of probation, they shall be subjected to suitability test and their consideration for regularization of their services against vacant and sanctioned posts shall be subject to their qualifying the suitability test. It is further emphasized by the respondents that the appointment also comes with the terms and conditions that the appointment is liable to be terminated within the probation period and thus the petitioners have not acted arbitrarily or in violation of the appointment order. No discrimination is discernible on the part of the respondents. The respondents have denied the allegation that some of the counterparts of the petitioners have been selected and regularized with ulterior motive. The respondents have also alleged that some of the petitioners namely, (i) Smt. Surukhali Aomi, (ii) Shri. Mughavi Awomi, (iii) Shri. Kunoto V. Chisti, (iv) Shri. Mughakivi Zhimo, and (v) R. Lumchungla, have never Page No.# 16/25 joined the service and as such they are not enrolled under the respondent department and therefore they have no right to seek payment of wages.

19. It is submitted that the employees who were appointed in similar posts are still serving the department as contended by the petitioners because they were appointed before the petitioners and their appointment does not exceed the ceiling limit fixed by the Government and therefore they were allowed to continue in service. The termination of the petitioners as they were appointed in excess of ceiling limit and the retention of their counterparts who were appointed earlier cannot be termed as illegal acts on the part of the respondents in violation to Articles 14 & 16 of the Constitution of India.

20. The petitioners have vehemently denied the respondent’s allegations that there are vacant posts and the respondents have not exceeded the ceiling by appointing the petitioners by interpreting the RTI reply dated 01.04.2024. It is submitted by the respondents that before the appointment of the petitioners, as per the RTI reply dated

01.04.2024, the existing work-charged and O & M employees stood at 1981 which was below the ceiling limit, but with the appointment of the petitioners, the existing work charged and O & M employees shot up to 2068, which exceeds the ceiling limit fixed by the State Government, and which left no option but to terminate the services of the petitioners.

21. It is further submitted by the respondents that with the regularization of the services of the work charged employees, who were senior to the petitioners in the department, the existing work-charged and O & M employees as on March, 2024 stood at 1916, after the petitioners were terminated from service and not before they were terminated from service. The respondents have thus prayed to dismiss the petition as the petition is bereft of merits.

22. Against the additional affidavit, an affidavit-in-reply was submitted by respondents No. 1, 2, 3 and 4 that the appointments made to the post of O & M employees from 01.01.2024 upto 17.12.2024 numbering 187 was informed to the counsel for the petitioners by the respondent Department in reply to RTI application and those appointments were made against the vacancies falling due to regularization Page No.# 17/25 of 11th and 12th phase of work-charged employees who have completed 30 years of service.

23. As directed by this Court and as this Court is venerated by the respondent Department, the order of this Court dated 17.05.2024 directing the respondents not to make any fresh appointments against the vacancies created by terminating the service of petitioners during the pendency of the instant writ petition, no appointments have been made against the vacancies on termination of the petitioners and the posts are still vacant which is evident from the letter dated 28.04.2025 written by the Chief Engineer and HOD, PHED, Nagaland, Kohima to Senior Government Advocate of Gauhati High Court, Kohima Bench, clearly stating that no appointment has been made against the vacant posts owing to the termination of the petitioners. Therefore, the contention of the petitioners that a false and baseless ground was created to illegally terminate them and to illegally accommodate them with vested interests are demeaning. Decision

24. Heard learned counsel Ms. V. Anne Therie for the petitioners and learned Government Advocate Mr. N. Angami for the respondents.

25. I have considered the submissions at the Bar with circumspection.

26. It is not disputed that all the petitioners were appointed in the month of September as O & M staff on the scale of pay of Rs.3000-15200/- per month with grade pay of Rs.1300/- plus all other allowances w.e.f. 15.09.2023. They were appointed on probation for two years and on completion of probation period, they were to undergo a suitability test.

27. The appointment order also indicates that the appointments were on temporary basis and liable to be terminated within the probation period with one month’s notice. Thus, it is amply clear that service condition includes termination even before completion of the probation of two years, after a month’s notice, to the petitioners. Annexure-2 to 73 are the appointment orders to the petitioners. Page No.# 18/25

28. In the appointment order, there is a clause for suitability test to be conducted after the probation period and the petitioners are aggrieved that they were terminated even without being accorded an opportunity to participate in the suitability test. The petitioners have heavily relied on the RTI reply dated 09.08.2024 marked as Annexure- 147 of the writ petition forwarded by the Superintending Engineer (P & T) & APIO, PHED, Nagaland, Kohima. A list relating to vacancies of existing O&M staff has been forwarded along with the RTI reply Annexure-147-1 ( page 220 of the writ petition) w.e.f. October 2022 to 31st March 2024. Annexure-147 (II) ( Page 221 of the writ petition ) are the total numbers of O&M Staff appointed with effect from October 2022 to 15.03.2024 and the list of monthly vacancies of O&M staff with effect from October 2022 to 31.03.2024 ( Annexure-147-I, page 222 of the writ petition). Annexure-147 series at page 220 of the writ petition clearly reflects that there are 84 vacancies of existing WC/O&M staff as on March 2024. The ceiling limit was 2000 and the existing staff were 1916, denoting 84 vacancies. It is submitted that this RTI reply belies the submission of the respondents that the petitioners were terminated as their appointment has crossed ceiling limit. Therefore, the office order dated 23.02.2024 marked as Annexure- 74 to 145 of the writ petition, terminating the petitioners on the ground that the appointment of the petitioners were in excess of the ceiling limit fixed by the Government is a false claim and is liable to be set aside and quashed.

29. The petitioners have relied on the decision of the Hon’ble Supreme Court in the case of Delhi Transport Corporation vs- D.T.C. Mazdoor Congress & Ors. reported in 1991 SUPP(1) 600, wherein it has been held and observed that : “ 223. The only question involved in all these matters is whether the absolute power given to the management of the public undertakings under their respective rules/regulations to terminate the services of an employee without assigning any reason, is constitutionally valid”. * * * * “243. In Nalinakhya Bysack v. Shyam Sunder Fialdar the expression "decree for recovery of possession" in Section 18(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) fell for consideration, and the controversy was whether it included also an order Page No.# 19/25 for recovery of possession made under Section 43 of the Presidency Small Cause Court Act, 1882 and hence a person against whom an order under the latter provision was made was not entitled to claim relief under the former provision. In that connection the court observed as follows: (SCR pp. 544-45) It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature the court can-not, as pointed out in Crawford v. Spooner, aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun-Mussoorie Electric Tram-way Co. Ltd." for others than the courts to remedy the defect. In our view it is not right to give to the word "decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided."

30. The petitioners have also relied on the decision of this Court in the case of Kiucham Yimchunger –vs- State of Nagaland and others reported in 2009 (2) GLT 551 wherein it has been held that:- “4. Mr. Limawapang, learned Counsel for the Petitioner submits that, since the discharge order has been held by the Director General of Police as not justified and directed his reinstatement, it is incumbent upon the Respondents to pay him the back wage for the absent period. In support of submission, the learned Counsel relied upon the case of Union of Page No.# 20/25 India (UOI) Vs. Madhusudan Prasad, , Manorma Verma (SMT) vs. The State of Bihar and Ors., 1994 Supp. (3) SCC 671 Lianchhawana v. State of Mizoram and Ors. 1999 (1) GLT 589. “8. The legal position is settled by the Apex Court in several cases including the aforesaid cases cited by the learned Counsel for the Petitioner. The legal position is that, once termination order is found to be illegal consequential order of grant of back wages must follow unless there are reasons justifying a departure from normal order. For denial of back wages, the Respondent-authorities must show justified reasons like that the Petitioner has been gainfully employed elsewhere during the period of absence.”

31. Relying on the judgment, the learned counsel for the petitioner has stressed on the payment of back wages to the petitioners who have been terminated illegally.

32. Per contra, learned Government Advocate Mr. Angami, laid stress in his argument that the petitioners were appointed consequent upon approval of the Government vide Letter no.PHE-1/Estt/13/2022 dated 19.10.2022 and P&AR Department OM No.AR-3/GEN/201/09 (Vol-1) dated 03.10.2022 and the appointment letters clearly reflect that the petitioners are liable to be terminated within probation period with one month's notice. It is also stressed that as per Annexure-A of the affidavit-in-opposition, by the Respondents, the OM No.AR-3/GEN/201/09 (Vol-1) dated 03.10.2022 clearly reflects that in pursuance of the cabinet decision dated

20.09.2022, the PHED and Power Department are exempted from the purview of P & R OM No. AR-3/GEN-67/2001 dated 12.07.2021 and are allowed to maintain the Work Charged and Casual Employees as per the ceiling fixed by the Work Charged and Casual Employees Commission. The nomenclature Work Charged is changed to O & M in respect of Work Charged employee under PHED and Power Department. The proposed ceiling limit in PHED is reflected in Annexure- B of the affidavit-in-opposition which shows that the proposed ceiling limit was 2000.

33. I find force in the submission of the learned Government Advocate for the Respondents. I have also scrutinized the aforementioned documents.

34. On the contrary, the learned Counsel for the petitioners laid stress in his Page No.# 21/25 argument that the proposal and recommendations in the meetings held on 11.02.2020 ( annexure-B) reveals that there were 736 employees and department was already facing acute shortage of Work Charged employees. It is submitted on behalf of the respondents that after appointment of the petitioners, the ceiling limit got exceeded and thus the petitioners have no right to challenge the termination order.

35. It is true that the petitioners were appointed on administrative approval for filling up vacancies of O&M staff vide the approval Letter no.PHE-1/Estt/13/2022 dated

19.10.2022 addressed to the Chief Engineer, Sanitation and WSSO, Kohima, by the Deputy Secretary to the Government of Nagaland and the appointment was directed to be in compliance to P & R OM dated 03.10.2022. Annexure-A of the affidavit-in- opposition is the OM dated 03.10.2022 with a direction to maintain the Work Charged and Casual Employees as per the ceiling fixed by the Work Charged and Casual Employees Commission. It is reiterated by the respondents that the 84 vacancies as shown in the RTI reply is only owing to the termination of petitioners. This Court finds no substance in the argument for the petitioners that there is acute shortage of staff in the department. The respondents have also emphasized through their argument that they have never violated the order of this court dated 17.05.2024 as the court is held in high esteem and venerated by the respondents and no appointment has been made against vacancy created by the termination of the petitioners and the said posts are still lying vacant and is revealed by the letter dated 28.04.025 written by the Chief Engineer & HOD to Senior Government Advocate, Gauhati High Court, Kohima Bench which is marked as Annexure-A of the affidavit-in-reply filed by the respondents to the Additional Affidavit filed by the petitioners. Annexure-A is reflected here in below verbatim: “To Shri Neizeu Sr. Govt. Advocate Gauhati High Court, Kohima Bench, Kohima: Nagaland Ref: W.P.(C) No.77(K) of 2024 Smti Jandemo N. Patton-Vrs-The State Page No.# 22/25 Sub: Reply to the Additional Affidavit filed by the petitioners. Sir, In reference to the above mention subject, the undersigned would like to inform you that the list of appointments from August 2024, numbering to 187 were made due to the fact that vacancies arose due to the regularization 11 and 12 phase of Worked charged employees who have completed 30 years of service. That the Hon'ble court by order dated 17.05.2024, directed that the State respondents shall not make any fresh appointments against the vacancy created by the termination of the services of the petitioners during the pendency of the instant case. It maybe stated that as directed by the Hon'ble Court no appointments has been made against the vacancy created due to termination of the petitioners service, and the said posts are vacant. Therefore the contention that an adhoc employce cannot be replaced by another adhoc employee does not arise. This is for your information and necessary action please.”

36. The respondents have relied on the decision of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs- Uma Devi & Ors. reported in 2006 (4) SCC 36, wherein it has been held that :- “36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has Page No.# 23/25 temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.”

37. Further, the respondents have also submitted that the ratio of the decision of the Hon’ble Supreme Court in the case of Delhi Transport Corporation (supra) is Page No.# 24/25 not applicable to this case as the petitioners have not challenged the appointment of 197 employees who were appointed after their termination. Those employees ought to have been impleaded in this case. The petitioners have only stated that their employment was not in excess of the ceiling limit and they have not challenged the appointment of the 197 employees and thus this petition ought to be dismissed. This argument of the respondents cannot be accepted but, at the same time, this Court cannot be oblivious of the fact that the petitioners were well aware of the fact that their employment could be terminated at any point of time and even before the expiry of their probation. Nevertheless, the petitioners’ are highly aggrieved as they are not allowed to take part in the suitability test, moreso, when there appears to be vacant posts, which may have been fallen vacant on their termination. The fact remains that there are existing vacant posts which are much below the benchmark or the prescribed ceiling.

38. The learned counsel for the Petitioners laid stress in his argument that this case revolves only around one issue which is whether the employment of the petitioners was in excess of the ceiling limit. It is submitted that the appointment of the other 197 employees has not been challenged as the ceiling limit has not exceeded, as falsely submitted by the respondents. It is further contended by the petitioners that the affidavit-in-reply was filed on 26-05-2025 whereas 197 employees were appointed in March 2023 and thus their reply is an afterthought.

39. In the wake of the foregoing discussions, it is held that all the petitioners were appointed on temporary basis and one of the conditions was that appointment is liable to be terminated within the probation period within one month’s notice. The petitioners’ appointment has already been terminated within the probation period. Annexure-2 is one of the office orders of appointment which is similar to the office orders of appointment of other petitioners who were appointed in the month of September on various dates. The respondents have already filed an affidavit that the posts which have been fallen vacant after the termination of the petitioners have not been filled up. The RTI reply also relied upon by the petitioners indicates that at present there are some vacant posts. The respondents have submitted that although Page No.# 25/25 ceiling limit was 2000 and the existing staff are 1916, denoting 84 vacancies, these vacancies have arisen after the termination of the petitioners. The termination cannot be held to be illegal.

40. At this juncture, the respondents have strongly resisted the prayer for re- instatement of the petitioners. It appears that equity will prevail if the petitioners are allowed to take part in the suitability test as per the condition in the appointment order. Thereby, the respondents are directed to consider the prayer of the petitioners to participate in a suitability test against the vacant posts as reflected in the RTI reply or in event of any vacancies in the future, as per the existing norms and rules. The respondents are also directed to consider age relaxation of some of the petitioners, who may have crossed age limit, by considering their age according to their appointment orders. This process is to be completed as expeditiously as possible, from the date of this order and as per norms as well as the prevailing office memoranda and orders.

42. In terms of the above observation, the writ petition stands disposed of. Parties to bear their own costs. JUDGE Comparing Assistant