Allowed

Nishevi Achumi v. the State of Nagaland and 4 Ors.

Gauhati HC6 Sept 2019WP(C)/163/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition filed by a petitioner seeking posthumous regularization of her husband's service. The Court directed the State to regularize the service of the petitioner's late husband, who worked as a work-charged employee for 28 years with scale pay, for pensionary benefits.

What did the court decide?

Respondents to regularize the petitioner's husband's service one day prior to his death and grant pensionary benefits within 4 months.

Nishevi Achumi Vs the State of Nagaland and… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/11

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GAHC020003032018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 163/2018

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1:NISHEVI ACHUMI

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PERMANENT R/O D.C HILL COLONY, ZUNHEBOTO

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VERSUS

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1:THE STATE OF NAGALAND AND 4 ORS.

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THROUGH THE CHIEF SECRETARY TO THE GOVT. OF N/L, KOHIMA

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2:THE SECRETARY TO THE GOVT. OF N/L PERSONNEL AND ADMINISTRATIVE REFORMS DEPT. N/L PERSONNEL AND ADMINISTRATIVE REFORMS DEPT. N/L KOHIMA

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3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF N/L DEPT. OF POWER N/L DEPT. OF POWER N/L KOHIMA

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4:THE EXECUTIVE ENGINEER - CHIEF ELECTRICAL DEPT. OF POWER N/L KOHIMA

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5:THE EXECUTIVE ENGINEER ELECTRICAL DIVISION ZUNHEBOTO ZUNHEBOT

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Advocate for the Petitioner : JUSTIN MAGH

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Page No.# 2/11

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LIMANARO AYANGLA IMCHEN

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Advocate for the Respondent : THIBA PHOM,GOVT ADV NL

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BEFORE HON'BLE MR JUSTICE SONGKHUPCHUNG SERTO

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ORDER

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Date : 06-09-2019

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This writ petition is filed by a woman whose husband was appointed as Work-charged Jugali and was later promoted to Assistant Lineman and continued working for 28 years with scale pay and died while in harness before he could be regularized as per the scheme provided in the OM No.AR3/Gen-67/2001(pt) dated 22/9/2004, praying for a direction to the rspondents to regularize the service of her husband posthumously for pensionary benefits.

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2. Heard Ms. Ayangla Imchen, learned counsel appearing for the petitioner and Mr. Thiba Phom, learned Government Advocate appearing on behalf of the State respondents.

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3. The case of the petitioner as submitted by her counsel is as follows:-

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That her husband namely, late Hokishe Sema was appointed temporarily to the post of work-charged Jugali with scale pay of Rs.190-250/- plus all other allowances as admissible under the rules vide order No.MEL/W-3/1280-81, dated 6/8/1977 issued by the Executive Engineer, Electrical Division, Mokokchung and thereafter, he was sent for training for Lineman at Lineman training centre, Dimapur vide office order dated 7/7/1987 issued by the Executive Engineer, Electrical Division, Zunheboto. And on successful completion of the training, he was released by the Sub-Divisional Officer incharge, Lineman Training Centre Dimapur vide his office order No.23 dated 11/9/1987 to join his place of posting. And soon thereafter, he was promoted to the post of Assistant Lineman.

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4. That in the year 2004, the Government of Nagaland, Department of P & AR issued a Memorandum No. AR-3/Gen-67/2001(pt), dated 22/9/2004. In that a scheme for regularization of work-charged employees who have worked

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Page No.# 3/11 continuously in various Departments for many years was provided and as per the scheme, her husband was eligible for regularization. But before his service could be regularized he died on 28/8/2005. Accordingly, he was released from service w.e.f.29/8/2005 by office order no.127, dated 30/11/2005 issued by the Executive Engineer, Electrical Division, Zunheboto.

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5. That after the death of her husband, the petitioner continued with life looking after 6 children with no source of income and without any pensionary benefits. Being illiterate and not informed with legal provisions, she had moved on with life with great difficulties till she came to learn from some sources that cases of similarly situated persons have been considered by the Department following directions issued by this Court. Therefore, she submitted a representation dated 17/10/2017 to the Engineer-in-Chief, Department of Power requesting him to regularize the service of her late husband’s service for the purpose of pensionary benefits. However, the same was never considered favourably.

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6. That the service of work-charged employees under the Government of Nagaland are different from that of work-charged employees in other parts of the country and that has been taken note of by this Court in the judgment passed on 5/3/2012 in W.P.(C) No.99(K)/2009, 3(K)/2010, 4(K)/2010 and 10(K)/2010. The contents of the relevant paragraph is paragraph No.14 is quoted herein below:-

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“………..It is evident that the work-charged employees of Nagaland cannot be equated with the work-charged employee, generally employed under other work-charged establishments. It is nowhere the case of the Government that the work-charged employees were employed under workcharged establishment as define in the Act. They have been employed under the Government Departments and they are discharging their duties like that of other regular employees, and therefore the case of the workcharged employees under the Government of Nagaland are distinguishable to that of work-charged employees employed for a specific work under a work-charged establishment….”

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The case of the petitioner is also different from other work-charged employees as he was appointed with scale of pay and his service was used like

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Page No.# 4/11 that of a regular employee that too for 28 years i.e. till he died. Therefore, he was a regular employee in every aspect but only for the non issuance of a formal order. Had the respondents been concerned enough, such formal order could have been issued for his regularization.

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7. That in a similar case where a work-charged employee serving for 15 years but was not regularized, this Court had directed the State respondents to regularize the service of that work-charged employee one day prior to his death. Such direction was given in W.P.(C) No.3(K)/2016. The relevant portion of the judgment is as follows:

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“……….It may be appropriate to mention here that the 2^nd and 3^rd sentence of the Office Memorandum shows that Government of that time had issued the Office memorandum after a Commission was appointed because of its concern for the existence of many work charged employees and for their regularization in service. At the cost of repeatation, I would again record here that the Government of the State had forgotten the very purpose for which the Commission was constituted and the scheme was prepared and Memorandum was issued. For such inaction on the part of the Government, a citizen for whom the Government exist cannot be allowed to suffer. Therefore this Court feels duty bound to direct the respondents to give what is due to the petitioner and her family for the service rendered by her husband which was stated to be more than 15 years. Accordingly, the respondents are directed to regularize the service of the petitioner’s husband one day before he expired for the purpose of giving pensionary benefits including family pension to his wife and children…..”

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8. That in the case of State of Manipur and Ors vs KSH Ibohal Singh reported in 1997 (II) GLT 209, the Division Bench of this High Court while rejecting the appeal of the State Government had observed as follows:-

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“11. We are being disturbed that the petitioners were compelled to go on superannuation after putting 28 and 29 years of service respectively without any pensionary benefits in a welfare State like ours committed to a socialistic pattern of society. It is unconscionable that employer compels the

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Page No.# 5/11 employee to go on retirement without any retrial benefits after putting in 28 and 29 years of service on the pretext of contract service. It will be hit by equality clause as enshrined in Article 14 of the Constitution. The writ petitioners/respondents have spent the entire youthful life to the service of the State rendering valuable services to the State as an artist. It will be too cruel to allow them to go empty handed when they are aged, old and infirm and incapable of earning by themselves. It is common knowledge that the Government servants work for future security. The argument that the writ petitioners accepted the appointment with full knowledge of the terms and conditions laid down in the contract and therefore, their services cannot be regularized and they are not entitled to pension and other retrial benefits would amount to exploitation of labour. May be the petitioners have knowing fully well the terms and conditions of the contract accepted the employment because of the compelling circumstances. State being a model employer are not permitted to use method of exploitation against the weaker section of the people.

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We, unequivocally of the view that the term “contract appointment” must be terminable at some stage of their services. But if contract appointment continued uninterruptedly till the age of superannuation as is happened in the case in hand, the character of the contract appointment automatically changes and the employee has to be treated under the normal Government service rules, entitling them pensionary benefits. In the instant case, the stand taken by the appellant Government 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 retrial benefits is unacceptable. If they are on contract service their services could have been terminated when they are 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 the mandate of Article 14 and 21. Right to live has been interpreted as right to live with dignity. Unless citizens have means for

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Page No.# 6/11 sustenance right to live with dignity will have no meaning. The contention of the learned counsel for the appellant are therefore rejected as untenable.”

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9. That in the case of Smti Lensalemla Sangtam vs State of Nagaland and 7 Ors which was registered as W.P.(C) No.72(K)/2012 also the Single Bench of this Court had directed the State respondents to consider regularization of the service of the husband of the writ petitioner who died after having served the Government for 21 years as Mason on temporary basis. The relevant portions of the judgment are at paragraphs 2,8 and 9. The same are as follows:-

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“2. Invoking powers under Article 226 of the Constitution of India the instant writ petition has been filed by the petitioner praying therein for a direction to the respondents to regularize the service of her husband Late Sanenba Sangtam in the post of Mason w.e.f.19.8.1987 to 2.8.2008 so as to enable her to receive pension/pensionary benefits etc payable to her husband.

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In the present case in hand even petitioner’s husband was temporarily appointed with scale pay and he was allowed annual increment.

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Therefore, in the light of the decision rendered by the Apex Court in Uma Devi (supra), ML Kesri (supra) reported in (2010) 9 SCC the State respondents would consider the prayer made by the petitioner for regularization of the services of her husband so as to enable the petitioner to get pension/pensionary benefits etc. The authority would do the needful within a period of 6(six) months from the date of receipt of a certified copy of this order.”

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10. That on 17/7/2018 also a Division Bench of this High Court in the case of Shri Ango Konyak vs State of Nagaland & 4 Ors, W.P.(C) No.116(K)/2018 had upheld the decision of the Single Bench which allowed the prayer of the petitioner to regularize his service for the purpose of pension and pensionary benefits. The relevant portion of the judgment are paragraph 7 and 8. The contents of the same are as follows:-

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“7. The Division Bench of this Court vide Order dated 06.10.2015

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Page No.# 7/11 passed in W.A.No.15(K)/2013 had upheld the directions passed in the Order dated 08.07.2013 by the learned Single Judge in W.P.(C) No.213(K)/2012, which is as follows:-

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“ After hearing the learned counsel for the parties and on perusal of the materials on record, we are unable to accept the contentions advanced by the learned Additional Advocate General, Nagaland. State is a model employer and cannot act like a private employer. Being a model employer, it is bound by the constitutional philosophy as expressed by the Apex Court in a catena of judgments reference to which may not be necessary at this stage. Learned Single Judge had given due consideration to various aspects of the matter and thereafter had taken the view that after rendering 30 years of uninterrupted service, the State cannot deny pensionary benefits to the respondents. It has been already held by the Apex Court that pension is not a bounty but an entitlement of an employee, only the quantum depending on the number of years of service rendered. Thus, we agree with the view taken by the learned Single Judge.

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It has also been brought to our notice that various orders have been passed by the State regularizing the services of similarly situated Work Charged employees thereby enabling them to draw pension.

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In the light of the above, we find no merit in this appeal which is accordingly dismissed.”

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In view of the fact that the petitioner herein has apparently worked for 32 years continuously as Work Charged Khalasi in the Government of Nagaland, the respondents are directed to examine the case of the petitioner and if it is found that the petitioner had been working for 32 years continuously, then, the respondents should regularize the services of the petitioner in order to grant him all pensionary benefits in accordance with law. The entire exercise should be completed within a period of 4(four) months from the date of receipt of a certified copy of this order.”

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Page No.# 8/11

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11. Against the case of the petitioner, Mr. Thiba Phom, learned Government Advocate who appeared on behalf of the State respondents submitted as follows:-

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12. Firstly, the learned Government Advocate submitted that the petitioner has come before this Court after 14 years from the date of her husband’s death therefore, the petitioner is barred by delay and laches. In support of his submission, the learned Government Advocate cited the judgment of the Hon’ble Supreme Court passed in the case of G.C. Gupta and Others vs N.K. Panday and Others reported in (1988) 1 SCC 316. The contents of the relevant paragraph is paragraph 46 is reproduced herein below:-

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“46. In the instant case there is a specific rule i.e.Rule 23 providing for determination of seniority from the date a person has been substantively appointed and has become a member of the cadre of Service of Assistant Engineers in the United Provinces Engineering Service (Buildings and Roads Branch) Class II. Therefore in this case there is no quota for recruitment to the service and as such the decision in Chauhan case is not applicable.”

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13. Secondly, the learned Government Advocate submitted that as per the scheme provided in the OM No.AR-3/Gen-67/2001(pt) dated 22/9/2004, workcharged employees are to be regularized to vacancies of sanction post as per their standing in the seniority list of work-charged employees. At the relevant time, the petitioner’s husband was at Sl.No.95 therefore, he could not be regularized as per the scheme. As such, the petitioner has no case worth considering.

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14. I have considered the facts and circumstances of the case and the submissions of the learned counsels and the documents submitted by the parties.

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15. There is no dispute on the fact that the petitioner’s husband was first appointed as work-charged Jugali with scale pay and other allowances admissible under rules in 1977 and was promoted to Lineman in the year 1987 after having gone through the required training and continued in service without any break till he died on 28/8/2005. There is also no dispute on the fact that there was a scheme for regularization of work-charged as per the Office Memorandum No.AR3/Gen-67/2001(pt) dated 22/9/2004 issued by the Government of Nagaland. As

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Page No.# 9/11 per the scheme provided in the Office Memorandum, the petitioner was very much eligible for consideration for regularization in service. It appears from the nature of duty assigned to the petitioner that it was a full time job that too with risk to life involved. The fact that a person who worked for such a long period of time in the same manner as regular employees that too with scale of pay and allowances as admissible under rules but was not regularized is unthinkable and not acceptable in a welfare State where the State is supposed to take care of the well being of its citizens and not exploit them.

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16. Considering the circumstances of the petitioner’s husband one is tempted to even conclude that he was exploited and not given his due. Government of a State being a model employer is to think not only about the service an employee can render but must also think of his welfare because that would not only take care of the welfare of its servant but would promote better and higher productivity. Work charged jobs are at the lowest level among the Government jobs and they are only sought after by people of the lowest strata of the society. Therefore, in a welfare State, the Government which is supposed to be concerned with the well being of its citizens instead of turning a blind eye to such people should have made it its priority to regularize their service.

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17. I believe the Office Memorandum stated above was issued with a view to facilitate regularization of work-charged employees keeping in view of the fact that the State we live in is a welfare State. However, the scheme itself was not good enough since the work-charged employees were to be regularized only against the vacancies arising due to retirement of employees or due to other contingencies. To be regularized under such scheme will take many years or never. When a person is appointed as work-charged with scale of pay and other allowances admissible under rules and his service is used like any other regular employees, it shows that the service of the work-charged is required. Therefore, in such circumstances, there is no reason why a regular post should not be created and such workcharged employee is regularized. In the case of the petitioner’s husband, though he was a work-charged, he was given scale pay and other allowances as admissible under rules therefore, the only thing that was left to be done was to create a post by issuing a formal order, nothing more nothing less. The petitioner’s

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Page No.# 10/11 husband was not regularized only because of lack of concerned or due to inaction of those who were in higher authorities. Furthermore, the petitioner’s husband was still alive when the Office Memorandum providing the scheme was notified. However, no mention is ever made by the respondents regarding any steps having been taken for considering his name for regularization. No tangible effort was ever made by the respondents for regularization of the petitioner’s husband when he was alive. Had he been alive and had life continued, maybe he would someday have been regularized. Unfortunately, life came to an end when it was least expected. But for such unfortunate families, will the Government of a welfare State allow them to go empty handed. Certainly not, especially when conditions of service of such people were harsh and difficult. The State being a model employer and being fatherly figure of all its citizens must do everything that is possible so that none of its citizens feel neglected or suffer due to negligence of people in authority. Pension schemes and die in harness schemes were introduced so that Government servants and their family members after retirement or after having spent the best part of their life time in serving the State do not live in penury. For a person who served like a regular employee in every way though under workcharged, I see no reason why his or her family members should be denied benefits of such scheme.

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18. Taking into consideration all the relevant facts and circumstances, this Court in catena of cases, some of which have already been referred to or cited by the learned counsel of the petitioner, have allowed the prayers of the petitioners in such cases and directed the State respondents to regularize the service of such employees for the purpose of entitlement of pension for their loved ones who are left behind. In this case also, this Court is of the view that the petitioner’s husband deserves to be regularized so as to enable the petitioner and her children to avail pensionary benefits.

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19. I am unable to accept the submission of the learned Government Advocate because for a woman like the petitioner who comes from that kind of background that too from interior place of Nagaland, it would not only be unreasonable but unjust to expect her to know her rights and to approach this Court sooner than she had come. There is no laches because the claim of the petitioner is not going

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Page No.# 11/11

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to affect anybody. Further, I also cannot agree to the submission of the learned Government Advocate that the husband of the petitioner could not be regularized since he was at serial No.95 in the seniority list of work-charged employees at that time. Because, as stated above, it should have been the endeavour of the State to create post and regularize work-charged employees whose services were used full time like regular employees and paid scale of pay and other allowances as admissible under rules.

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20. In view of the above, the petition is allowed.

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21. The respondents should regularize service of the petitioner’s husband one day prior to date of his demise so that the petitioner and her family are entitled to pensionary benefits. The whole exercise should be completed within 4(four) moths from the date of receipt of a copy of this judgment.

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22. Writ petition is accordingly disposed of.

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Sd/- JUDGE

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Comparing Assistant

Nishevi Achumi v. the State of Nagaland and 4 Ors.

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Nishevi Achumi v. the State of Nagaland and 4 Ors.

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