Allowed

Makhimong @ Makimong v. State of Nagaland and 4 Ors.

Gauhati HC3 Sept 2020WP(C)/118/2020

Case brief

AI extract

What is this about?

Petitioner, a long-serving contractor, filed a writ petition seeking regularization of service under an existing Government Order, arguing that non-action on his representation violated his fundamental rights under the Constitution.

What did the court decide?

Directions to regularize petitioner's service by retirement date or retrospectively with payment of all arrears.

Makhimong @ Makimong Vs State of Nagaland… — Pension and Retirement Benefits | Gauhati HC (2020)

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Page No.# 1/5

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GAHC020003062020

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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) 118/2020

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1:MAKHIMONG @ MAKIMONG PAINTER HELPER, PWD (HOUSING), PERMANENT R/O LANGKOK VILLAGE, DISTRICT KIPHIRE, NAGALAND

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VERSUS

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1:STATE OF NAGALAND AND 4 ORS REPRESENTED BY THE CHIEF SECRETARY, GOVERENMENT OF NAGALAND, NAGALAND, KOHIMA

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2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF NAGALAND DEPARTMENT OF WORK AND HOUSING NAGALAND KOHIMA

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3:THE CHIEF ENGINEER NAGALAND PUBLIC WORKS DEPARTMENT (HOUSING) NAGALAND KOHIMA

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4:THE SECRETARY TO THE GOVERNMENT OF NAGALAND

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DEPARTMENT OF FINANCE NAGALAND KOHIMA

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5:THE COMMISSIONER AND SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS NAGALAND, KOHIMA

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Page No.# 2/5

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Advocate for the Petitioner : L LIKHASE SANGTAM

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Advocate for the Respondent : V ZHIMOMI GOVT ADV NL

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BEFORE

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HON'BLE MR. JUSTICE S. HUKATO SWU

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ORDER

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Date : 03-09-2020

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Learned counsel for the petitioner, Mr. L. Likhase Sangtam has moved this Court under Article 226 of the Constitution for issuance of writ or mandamus or any other appropriate order or directions.

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The petitioner, by this writ petition has prayed for the enforcement of his rights guaranteed under part III in the Constitution of India, in particular Article 14, 16 and 21. Matrix of the case is that the petitioner was appointed as Pinter Helper by Office Memorandum (OM) bearing No. KPE/EST-20/1932-35 dated 27.09.1985 under the establishment of Sub-Divisional Officer (PWD), Kiphire sub-division, now upgraded to Kiphire Division in the scale pay of Rs. 575-7-445-9-10-590/- per month plus all other allowances admissible from time to time in the State of Nagaland with effect from the date of joining. The copy of his appointment order has been annexed as Annexure-A. The petitioner has completed almost 35 years of service and is due to retire on 31.09.2020 without the respondents having considered his regularization of service. The petitioner has also filed representation before the respondent No. 3 on 14.06.2020. Till date, there is no reply or action taken on the representation so submitted by the petitioner, hence this appeal.

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Page No.# 3/5 3. The learned counsel, Mr. L. Likhase Sangtam has submitted

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that by OM bearing No. AR—3/GEN-201/2009 dated 17.03.2015, the Government framed a scheme for regularization and absorption of workcharged and casual employees revision of pay/wages.

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The OM, thus, being in existence, the fundamental right of the petitioner is breached and the petitioner seeks redressal of the same. Furthermore, the learned counsel has also placed reliance upon the order passed by this Court in a similarly situated case of Lisakyu vs State of Nagaland & Ors. in WP(C) No. 173/2019 dated 23.09.2019, this Hon’ble Court has granted relief.

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The above facts being undisputed, the petitioner has prayed that his fundamental rights be protected, service regularized in terms of the OM mentioned and to pay all his arrears that is due.

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Learned counsel for the State, Mr. V. Zhimomi, submits that the Government notification is undisputed and also admits the existence of the order by this Court in WP(C) No. 173/2019 and has submitted that the Court may dispose of the matter in terms of the OM dated 17.03.2015.

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On hearing the parties, there is no dispute with respect to the existence of the OM No. AR—3/GEN-201/2009 dated 17.03.2015. The provision of the OM clearly stipulates that all existing work-charged and casual employees of various departments who are in the scale pay and who have completed 30 years or more continuous service as on 01.01.2015, will be regularized by conversion of their posts into regular ones personal to them and subject to fulfillment of conditions as indicated

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Page No.# 4/5

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below (only the relevant portion of the OM No. AR—3/GEN-201/2009

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dated 17.03.2015 is extracted):

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“1. Regularisation in service:

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(i) All existing work-charged and casual employees of various Departments who are enjoying scale pay and who have completed 30 (thirty) years or more continuous service as on 01.01.2015 will be regularized by conversion of their posts into regular ones personal to them and subject to fulfillment of conditions as indicated below:

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(a) The incumbent concerned and his/her service rendered as work-charged/casual employee

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(b) Availability of service records including appointment or-

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der, date of initial appointment, proof of length of service/age etc.

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(f) The past service rendered as work-charged/casual employee shall be counted towards length of service for the purpose of Nagaland Retirement from Public Employment Act, 2009 and as qualifying service for the purpose of pension.”

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By the plain reading of the appointment order of the petitioner and

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the records placed before me, there is no dispute that the petitioner has been serving in the department of respondent No. 3 w.e.f. 27.09.1985. He

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Page No.# 5/5 has put in more than 34 years of service and is due to retire without regularization which has caused the urgency of this writ petition.

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Having considered the records and facts of the case, this Court is of the considered view that the present petition may be disposed of with the following direction.

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The State respondent shall dispose of the representation dated 14.06.2020, filed by the petitioner prior to 31.09.2020. If the petitioner is found eligible in terms of the OM dated 17.03.2015, the following shall be initiated:

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a) the State respondent No. 3 shall make all efforts to regularize the services of the petitioner prior to 31.09.2020, if the service of the petitioner is in conformity with the OM dated 17.03.2015.

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b) in the event the respondents are unable to regularize the service of the petitioner prior to his retirement, i.e. 31.09.2020, his service shall be regularized retrospectively w.e.f. 30.09.2020.

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c) all arrears due to the petitioner shall be paid.

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The respondent shall make all efforts to dispose of the matter within a month’s time of the passing of this order.

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With the above directions, the writ petition is disposed

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of.

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Sd/- JUDGE

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Comparing Assistant

Makhimong @ Makimong v. State of Nagaland and 4 Ors.

Case brief

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Makhimong @ Makimong v. State of Nagaland and 4 Ors.

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