Smti. K Lolia Mao @ L. Lolia Mao @ Lolia Vs the State of Nagaland 7 Ors.

Advocates for the petitioner : Mr. Imti Longchar Ms. V. Kiso Advocate for the respondents : Ms. L.T. Sangtam, Addl. AG Mr. V. Zhimomi Respondent No. 1 to 7 Ms. N. Rupreo Respondent No. 8. Date on which judgment is reserved : 04.08.2025 Date of pronouncement of judgment : 04.11.2025 Whether the pronouncement is of the operative part of the judgment : Full judgment.

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Whether the full judgment has been

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pronounced : Yes.

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JUDGEMENT AND ORDER (CAV)

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The petitioner Smt. K. Lolia Mao @ L. Lolia Mao @ Lolia is the wife of the Late K. Heni Mao @ Heni Mao, who was a work-charged employee and who died in harness. Heni Mao was a trained carpenter and was appointed as a semi-skilled labour w.e.f. 15.02.1988 on fixed pay of Rs.350/- (Rupees Three Hundred and Fifty) per month on whole time basis by the Office Order dated 31.03.1988 passed by the Estate Officer, PWD, Kohima, Nagaland. He was promoted to work-charged jugali in the time scale of pay of Rs.375-7-445-9-490-10-590/- per month, plus other allowances including 25% on basic pay and all other allowances as admissible under rules from time to time by Office Order dated 31.05.1990 passed by the Estate Officer, PWD (Housing), Kohima, Nagaland.

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The State of Nagaland through the Chief Secretary, Government of Nagaland, Kohima, the Commissioner & Secretary to the Government of Nagaland, Personnel and Administrative Reforms Department, the Commissioner & Secretary to the Government of Nagaland, Works and Housing Department, the Financial Commissioner, Nagaland, the Engineer-In-Chief, NPWD, Nagaland, the Chief Engineer, Public Works Department (Housing), Nagaland, the Executive Engineer, Public Works Department (Housing), East Division, Kohima and the Accountant General, Kohima, Nagaland, are arrayed as respondents No. 1 to 8 respectively. The respondents have filed their affidavit-in-opposition.

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Case of the petitioner :-

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It is submitted that K. Heni Mao from the existing scale of Rs.375, plus other allowances was granted 1993 revision of pay of Rs.800/- plus other allowances, revised w.e.f. 01.06.1990 by the Office of the Estate Officer PWD (Housing), Kohima. He was issued the Government of Nagaland Card No. 299 on 20.10.1993

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by the Sub-Divisional Officer, Office of the Deputy Commissioner, Kohima, meaning thereby that he was a Government servant/employee. He was also granted annual increment from the date of his promotion on 31.05.1990 like all other regular Government employees and the first annual increment was granted w.e.f. 01.05.1991. It is also submitted that his service book was recorded and maintained from 31.05.1990 upto his death on 10.03.2011. Annexure-8 and 9 are the copies of service record 197 and the service book of Late K. Heni Mao @ Heni Mao.

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It is further submitted that Late K. Heni Mao @ Heni Mao during his lifetime, having completed 15 (Fifteen) years of continuous service in the scale of Rs.800/plus other emoluments was granted time bound scale of Rs.850/- w.e.f. 01.06.2005, vide Notification dated 01.08.2007 by the Chief Engineer, PWD (Housing) Nagaland, Kohima in terms of Rule 13 of Nagaland Government Service (ROP) Rules, 1993 (ROP for short) [Annexure – 10]. As per Chief Engineer, PWD (Housing) Notification dated 01.08.2007, he was granted time bound scale as per Rule 13 of the Nagaland Government Service (ROP) Rules, 1993 with fixed pay @ Rs.1125/- w.e.f. 01.06.2005 and of Rs.1175/- till 01.06.2007 by office order dated 12.02.2008 issued by the Executive Engineer, PWD Housing, East Division, Kohima. He was also made to subscribe to the Nagaland Government Employees Group Insurance Scheme, 1988 w.e.f. 01.04.1989 with Membership Card No. 133 by the Estate Officer (PWD), Kohima, where the petitioner Smt. Lolia was made his nominee under the Nagaland Government Employees Group Insurance Scheme, 1988 (NGEGIS). However, an amount of Rs.17,063/- (Rupees Seventeen Thousand and Sixty Three) was only sanctioned for the final withdrawal of the NGEGI Scheme by the Executive Engineer, NPWD (H), Estate Division vide order dated 02.09.2019 to the petitioner.

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It is further submitted that Late Heni Mao during his lifetime was also made to subscribe to the General Provident Fund bearing Account No. EGP/239 for the financial year 2008-2009 and the annual statement of the General Provident Fund’s account stands at Rs.40,122/-, which has not been released to the petitioner. Heni

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Mao died in harness on 10.03.2011 after serving the Department for

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(i) 23 years and 24 days since his inception with effect from 15.02.1988 as semi skilled labour at fixed pay @ Rs.350/- per month on whole-time basis,

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(ii) 20 years 9 months and 10 days counting from the date of promotion to W/C Jugali in the scale of pay of Rs.375/- per month, and he is survived by his wife,

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Smt. K. Lolia and son, Mr. Athisu.

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The learned counsel for the petitioner laid stress in his argument that the petitioner obtained succession certificate No. JUDL/SUCC/86/2017-V dated 30.10.2017 and issued by the Additional Deputy Commissioner, Nagaland to receive the pension and other service benefits of her husband, Late K. Heni Mao. She also submitted representation dated Nil to the Chief Engineer, Public Works Department (Housing), Nagaland, Kohima, with prayer for family pension and service benefits of her late husband and on the body of representation the Minister, PWD, Nagaland, Kohima on 25.04.2018 directed the Chief Engineer, PWD (H) to “ Examine and put up” and the Minister-In-Charge on 24.05.2018 directed the Department to take action as “Reg Please speak” .

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As directed by the Minister, PWD, Nagaland, the petitioner’s case was put up by the Chief Engineer, PWD (Housing) by Office letter dated 21.05.2018 to the Engineer-in-Chief, NPWD, Nagaland, Kohima. On the body of this letter dated 21.05.2018, the Minister, PWD, Nagaland, Kohima on 24.05.2018 directed the Department to take action as “ Examine and put up” . On the direction of the Minister, PWD, Nagaland, the Chief Engineer, PWD (Housing) wrote the above Office letter dated 21.05.2018 to the Engineer-in-Chief, NPWD, for necessary action for regularization of service of Late K. Heni Mao W/C Jugali and on the body of the Office letter dated 21.05.2018, the Minister, PWD, Nagaland, directed the Engineer-in-Chief to “ Examine and put up”.

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It is argued that the Minister-in-Charge of the Department is the authority under the Rules of Executive Business, 1980 and 2020, Government of Nagaland, Department of Personnel & Administrative Reforms.

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It is further submitted that as per the decision/direction of the Minister-InCharge, Late K. Heni Mao’s service of W/C jugali was absorbed into regular cadre/posthumously vide Office order No. NPWD/E-N/C/Corrs/POSTHMS/201718/418 dated 25.02.2019, signed on 20.02.2019 by the Engineer-In-Chief, NPWD, Nagaland, (the competent/appointing authority) as follows :-

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“ The undersigned is pleased to absorb the Work Charged service of Lt.Shri. Heni Mao, W/C Jugali under the establishment of Executive Engineer PWD (Housing) Estate Division Kohima into a regular cadre/Posthumous of temporary Class IV post Jugali in the Pay Band of PB1-4400-17200/- and Grade pay of Rs.1300/- plus all other allowances as are admissible under rules from time to time to similar post in Nagaland with effect from 07-02-2011.

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The period of service rendered by the incumbent on Work Charge basis shall be treated as public employment and included in calculation of length of service for the purpose of pension under the Nagaland retirement from Public Employment (2^nd Amendment) Act. Other benefits like Leave, DA, ADA, arrear, Leave Encashment and Provision of MACP Scheme will be allowed only from the date of regularization of his service.

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In the interest of public service Late Shri. Heni Mao Jugali is regularized under the establishment of the Executive Engineer PWD (Housing) Estate Division Kohima against the post held by him for pensionary benefit. The regularization is personal to him and no replacement shall be made after his retirement/death.

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Sd/- 20/2/19 (Er. KROSU RHETSO) Engineer-In-Chief, NPWD Nagaland: Kohima”

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It is further submitted that as Late K. Heni Mao died on 10.03.2011, he was

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released from service by the Executive Engineer, PWD (H) Estate Division, Kohima w.e.f. 10.03.2011.

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By impugned Office letter dated 09.04.2020 written by the Principal Accountant General (A & E), Kohima, Nagaland, Late K. Heni Mao’s service book was returned to the Chief Engineer PWD (Housing), Nagaland, Kohima, asking;

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“Reason for delay of submission Pension i.e., after 8 years P& AR approval may kindly be furnished and posthumously regularized approval from P & AR.”

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It is contended that the impugned AG Office letter dated 09.04.2020 is vexatious, frivolous and not based on any rule as Late K. Heni Mao was already appointed way back w.e.f. 15.02.1988 as semi-skilled labour in fixed pay and promoted to Jugali by Office order dated 31.05.1990 and thus, the services rendered by him is not in question.

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However, the letter dated 09.04.2020 of the Office of the Principal Accountant General (A&E), was forwarded to the Engineer-in-Chief, NPWD, Kohima by Office letter dated 22.06.2020 by the Chief Engineer, PWD (Housing), Nagaland, and also to the Principal Secretary, Government of Nagaland, Works & Housing Department, by Office letter dated 15.04.2021 for Posthumous Regularization approval from P & AR.

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It is averred that it was directed vide Office letter dated 26.04.2021 by the Deputy Secretary to the Government of Nagaland, Works & Housing Department to the Chief Engineer, PWD (Housing) to resubmit to the Department, routed through the Engineer-in-Chief, NPWD, asking to furnish reasons of delay for submission of pension papers in respect of Late K. Heni as sought by the AG office. The petitioner has submitted the reasons of delay, stating that she had requested for regularization of pension benefits of her husband Late K. Heni Mao and after repeated requests, her husband’s service was regularized when the Engineer-InChief, NPWD, Nagaland, affixed his signature on 20.02.2019 and the Office Order was dated 25.02.2019, and was effective from 07.02.2011. This resulted in the

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delay of 8 years in processing pension papers.

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It is also argued that vide Office letter dated 27.10.2021, the Chief Engineer PWD (Housing) wrote to the Engineer-In-Chief, NPWD, Kohima to obtain the Posthumous Regularization approval from P & AR as directed by the Office letter dated 25.04.2021 (sic. 26.04.201). Accordingly, vide Office letter No. E-IN-C/Estt9/WC-62/Correspondence-Govt./2019/690, dated 02.03.2022, the Engineer-InChief, NPWD, Nagaland, Kohima, forwarded/put up the same for approval from P & AR. Annexures – 29 and 30 are the copies of letters dated 27.10.2021 and 02.03.2022, respectively.

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It is submitted that the Joint Secretary Works & Housing Department by Office letter No. WH/EST/H/3/2022/111 dated 23.03.2022 directed the EngineerIn-Chief, NPWD, Nagaland, to indicate the vacant sanctioned post for taking up the matter with P & AR. Accordingly, released Order of Shri Thaneswar Hazarika, who was granted voluntary retirement w.e.f. 30.09.2022 after completion of 33 years and 7 months of continuous service resulted in the vacancy of the post of Thaneswar Hazarika. This was submitted by the letter dated 24.03.2023 by the Engineer-In-Chief, NPWD, Kohima to the Commissioner & Secretary to the Government of Nagaland, Works & Housing Department.

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It is contended that without taking into consideration that Late K. Heni Mao’s regularization was considered by the Minister, PWD, Nagaland, and regularized by Office Order No.NPWD/E-N-C/Corrs/POSTHMS/2017-18, dated 25.02.2019, of the competent authority, the P & AR without application of mind, mechanically rejected the prayer for posthumous regularization vide the U.O (Unofficial) No. 168, dated 09.05.2023 signed by the Organisation & Method Officer which is reflected herein below verbatim:

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"P & AR DEPARTMENT (OM Branch)"

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“ The matter has been examined and we regret our inability to accord ex-post clearance for posthumous regularization in respect of Late. K. Heni Mao in view of the Supreme Court Judgement in Civil Appeal No. 4223 of 2022- State of Nagaland

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vs. Nishevi Achumi and the Hon'ble Court ruling in Writ Petition (C) No. 232 of 2006 dated 17/07/2006”

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The petitioner has impugned the Office letter No. WH/EST/H/3/2022 dated 24.08.2023 addressed to the Engineer-in-Chief, Nagaland, Kohima , expressing the respondent’s inability to accord expost clearance for posthumous approval of regularization in respect of Late K. Heni Mao, Jugali and to take necessary action.

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It is contended that the Organization & Method Officer have no authority to sign on behalf of the Government and as such, the same is ‘non est and void ab initio’ as the issue cannot be decided by the Organization & Method Branch under the Rules. Accordingly, the impugned letter dated 24.08.2023 does not have legal sanction and both the impugned decisions U.O No. 168 dated 09.05.2023 and Office letter dated 24.08.2023 are liable to be set aside and quashed.

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It is argued that the judgment of the Hon’ble Supreme Court in State of Nagaland & Ors. v. Nishevi Achumi has been misconstrued as the judgment is in personam and not judgment in rem as the basis of the judgment was made on the facts peculiar to the case and has no application to the facts of the instant case.

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It is submitted that the action of the respondents, more particularly, respondent No. 2 in denying approval for posthumous regularization of late K. Heni Mao is totally arbitrary and against the law for the reason that the Minister-inCharge of the Department, who had the full authority to decide on the matter, has considered the petitioner’s case for regularization. Accordingly, the Engineer-inChief, who is also the appointing authority, being the head of the Department, has already regularized Late K. Heni Mao’s service by Office order dated 25.02.2019 w.e.f. 07.02.2011.

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The petitioner has relied on the decision of the Hon’ble Apex Court which has been decided by a Full Bench in State of Assam vs Raghava Rajgopalachari reported in (1972) SLR 915 wherein it has been held that :- …The respondent to a Writ Petition cannot be allowed to attack its own order as a respondent.

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It is submitted that the P & AR OM Branch does not have the authority under the Rules of Executive Business, Government of Nagaland, to decide on the issue, that too by an unofficial note and as such, the impugned U.O. No. 168 dated 09.05.2023 is without any authority and unofficial. So is the Office letter dated 24.08.2023 written by the Additional Secretary to the Government of Nagaland, Work & Housing Department and are liable to be struck down.

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It is further submitted that Late K. Heni @ & Heni Mao was the sole bread winner of the family consisting of the petitioner and their school going children, who are totally dependent on the salary of the deceased. The petitioner is seeking the interference of this Court for a direction to the respondent authorities to pay the service benefits and family pension as per the Government Office Order No. NPWD/E-N-C/Corrs/POSTHMS/2017-18 dated 25.02.2019.

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It is submitted that the Office order dated 12.09.2022 and letter dated 24.03.2023 passed by the Engineer-in-Chief, NPWD, Nagaland, is clear that the petitioner’s husband was appointed on a clear vacant post and the actions of the respondents, not regularizing the service of the petitioner’s husband is not accepted in the eyes of law. The petitioner has thus prayed for -

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(i) Pensionary and other benefits of Late K. Heni Mao @ Heni Mao as per office order dated 25.02.2019 passed by the Engineer-In-Chief, NPWD, Nagaland, Kohima; regularizing the service of the petitioner and; “authenticating and confirming as genuine” by Office letter dated 13.06.2019 and

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(ii) To quash and set aside the impugned AG letter dated 09.04.2020 and set aside Personnel & Administrative Reforms Department (Organization & Method Branch) observation U.O. No. 168, dated 09.05.2023 and,

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(iii) To quash and set aside impugned Office letter dated 24.08.2023 written by the Additional Secretary, Government of Nagaland, Work & Housing Department to the Engineer-in-Chief, NPWD, Nagaland, Kohima, relaying the inability of P & AR Department (O.M. Branch) to accord ex-post clearance for posthumous

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regularization of Late K. Heni Mao, W/C Jugali,

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(iv) To direct the respondents to pay pension and other service benefits and so on and so forth.

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It is submitted that the Government of India’s orders, on promotion indicates that if the recruitment rules does not prescribe any probation, an officer promoted on regular basis (after following the prescribed DPC, etc., procedure) will have all the benefits that a person confirmed in that grade would have.

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Against the affidavit in opposition filed by the respondents number 1 to 7, an affidavit-in-reply was submitted by the petitioner, contending inter-alia that the respondents No. 1 to 7 have specifically admitted the facts and has not disputed the following :-

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That Late Heni Mao was a trained carpenter and was appointed as semiskilled labour w.e.f. 15.02.1988 @ Rs.350/- per month (on whole time basis);

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He was promoted as Work-Charged Jugali in the scale of pay of Rs.375/-, plus other emoluments with 25% on basic pay and all other allowances as admissible under the rules.

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That under the Nagaland Services (Revision of Pay) Rules, 1993, he was granted revised scale of pay of Rs.800/-, plus other emoluments w.e.f. 01.06.1990;

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The Government of Nagaland, Identity Card No. 299 dated 20.10.1993 was issued to him,

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Annual increment was granted to him after his promotion as well;

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Under the Supplementary Rules; Chapter:III-Records of Service, NonGazetted Government Servants, Service Book of Late K. Heni Mao, W/C Jugali was recorded/maintained from 31.05.1990 up to his death on 10.03.2011 as per S.R.197, S.R.198 and S.R.199;

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and that Late Heni Mao died in harness on 10.03.2011.

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It is contended that the Engineer-in-Chief being the competent appointing authority, the impugned office letter dated 09.04.2020 written by respondent No. 8, is not applicable for the reason that the appointing/competent authority having regularized the service of Late Heni Mao in the post of Work-Charged Jugali by the office order dated 25.02.2019, it was the bounden duty of respondent No. 8 to authorize family pension to the petitioner. Respondent No. 8 being the custodian of GPF, ought to have released it to the petitioner. The petitioner has thus prayed for a direction to release the GPF amount to the petitioner with penalty interest @ 24% from 11.03.2011 till the date of payment to the petitioner.

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It is further submitted that the respondent No. 5 i.e. Engineer-in-Chief, NPWD, Kohima, has explained that the delay and lapses were on the part of the Government and clearance of P&AR Department is necessary to be issued so that the same can be forwarded to the AG office processing the petitioner's pension papers. It is also submitted that the Joint Secretary to the Government of Nagaland by letter dated 23.03.2022 directed the Engineer-in-Chief, NPWD to indicate a sanctioned vacant post in respect of Late K. Heni Mao’s posthumous approval for regularization order for taking up the matter with the P&AR Department.

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Accordingly the Office of the Engineer-in-Chief, NPWD, Kohima, by letter dated 12.09.2022 under the provision of the Government of Nagaland, Finance Department Memo No. FIN/ROP/18/77 dated 13.01.1987, allowed voluntary retirement of Sri Thaneswar Hazarika, R/Khalasi with EMP Code No. PWD16747 under the establishment of the Executive Engineer PWD (H) Mokokchung w.e.f. 30.09.2022, and the petitioner states that a vacancy position with respect to the petitioner's husband's service was created as per direction of the letter dated 23.03.2022.

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It is further submitted that the Engineer-in-Chief, NPWD, Nagaland, Kohima

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vide letter dated 24.03.2023 wrote to the Commissioner & Secretary to the Government of Nagaland (H), Kohima, stating that in the reference to the letter dated 23.03.2022 a sanctioned vacant post was created for petitioner's husband for posthumous approval of regularization, showing vacancy position as per office order dated 12.09.2022 and the Department was requested to take necessary action to process the pensionary benefits/retirement benefits.

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The learned counsel for the petitioner laid stress in his argument that the statements made by the respondents in para 5 of affidavit-in-opposition that “under the first schedule (Rule 4) Sl. No. 29 (D) (i) and (xi) of Nagaland REB, 2020, the Organization & Method (O & M) Branch under the Personnel & Administrative Reforms Department is in charge with the responsibility to advise on the matters relating to Public Service and service conditions of Government servants” is totally misconstrued. On the contrary, it is submitted that the Nagaland Rules of Executive Business, 1980 and 2020, Government of Nagaland, Department of P&AR Reforms at Part-I:- Allocation and Disposal of Business; Rule9 states that :-

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“Rule 9. Without prejudice to the provisions of Rule 7, the Minister-inCharge of a Department shall be primarily responsible for the disposal of the business pertaining to that Department.”

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It is also stated that the admitted fact is that instead of acting upon the letter dated 12.09.2022 written by the office of the Engineer-in-Chief, NPWD, Kohima, on creation of a sanctioned vacant post in compliance to the direction of the letter dated 23.03.2022 written by the Joint Secretary to the Government of Nagaland, the same was denied by the impugned P&AR department (Organization and Method Branch) by mechanically issuing U.O. No. 168, dated 09.05.2023.

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It is further contended that the ratio of the decision of the Hon’ble Supreme Court in Civil Appeal No. 4223 of 2022 in State of Nagaland Versus Nishevi Achumi and the Hon’ble Court ruling in WP(C) No. 232 of 2006 dated 17.07.2006 is not

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applicable to this case. It is contended that the petitioner of Civil Appeal No. 4223 of 2022 was a work-charged employee and his service was never regularized and even in connection with the case of Nishevi Achumi (supra), the Hon’ble Supreme Court dismissed the writ petition filed by the petitioners pursuant to the direction in PUCL case, (2004) 12 SCC 104, in respect of the replacement of contractors for implementation of the Integrated Child Development Service Program.

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It is argued on behalf of the petitioners that keeping in view the observations made by the Hon’ble Supreme Court in Nishevi’s case, about elimination of the contractors only, it was stipulated by the Hon’ble Supreme Court that registered non-profit organizations with at least 3 (Three) years experience were eligible to apply. The petitioners questioned the rationale of the stipulation regarding 3 (Three) years’ experience of working as non-profit organization or public trust registered under the Societies Registration Act, 1860, which has no relevance to the facts and circumstances of the present case of the petitioner.

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It is also contended that the Hon’ble Supreme Court disposed of the case of Nishevi Achumi (supra) purely on facts and circumstances of the case and hence, cannot be held to be a binding precedent.

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Case of the Respondents :-

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Per contra the respondents no. 1, 2, 3, 4, 5, 6 and 7 have jointly filed an affidavit-in-opposition. It is true that the contentions of the petitioner relating to her husband's untimely death and her husband's regularization through the letter dated 25.02.2019 after his demise has been admitted by the respondents. Nevertheless, it is submitted by the respondents that the Nagaland Rules of Executive Business, 2020, is framed and notified by the Government of Nagaland in exercise of power conferred by Clause 2 and 3 of the Article 166 of the Constitution of India. The rules govern the responsibilities and power of each department under the Government. Under the first schedule (Rule 4) Sl. No. 29 (D)(i) and (xi) of Nagaland REB, 2020, the Organization & Method (O & M) Branch

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under the Personnel and Administrative Reforms Department (P&AR), is in charge with the responsibility to advise on matters relating to public service and service conditions of all Government servants. However, here, the petitioner’s claim is that the O&M officer has no authority to sign on behalf of the Government, is based on lack of knowledge of the procedure. The decision conveyed under order No. 168 dated 09.05.2023 is approved by the competent authority, P&R Department and as such, has the approval of the Government. Thus, the legal sanction of the Government cannot be questioned.

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It is submitted that the condition for regularization of W/C employees are guided by OM No. AR-3/GEN-67/2001 (pt) dated 22.09.2004 and OM No. AR3/GEN-201/2009 dated 17.03.2015. The OM dated 22.08.2004, which provides for filling up 50% of normal vacancies by regularization of the W/C employees would have been applicable to the petitioner’s husband if he had been in service till his death. However, he did not fulfill the conditions laid therein and as such, he was not regularized then. Moreover, there is no record of claim for regularization during his lifetime. Therefore, to regularize his service after his death does not arise and this is squarely covered by Nishevi's case (supra).

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It is further contended that the Department did not follow the Government's laid-down policy of regularization of service which does not have a provision for posthumous regularization, when the deceased employee’s service was posthumously regularized on 25.02.2019 for pensionary benefits. It has been reiterated by the respondents that the decision of the Government was based on the fact that the State does not have a policy to posthumously regularize any category of employees for the purpose of pension or other benefits. It is also argued on behalf of the respondents that the petitioner has failed to make out a case for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and the petition is liable to be dismissed.

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The respondent No. 2 has also filed an additional affidavit, bringing on record the Nagaland Work-Charge and Casual Employees Regulation Act, 2001

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(Act of 2001 for short) and the Office Memorandum dated 17.03.2015, Scheme for Regularization and Absorption of Work-Charged and Casual Employees and Revision of pay/wages, for proper adjudication of the matter in the instant case.

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It is also submitted on behalf of the respondents that the order of posthumous regularization dated 25.02.2019 was without the approval of P&AR. This renders the regularization void ab initio.

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The respondent No. 8 has also submitted that owing to the irregularity in the order, the AG was unable to process pension papers.

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Decision :-

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I have considered the submissions at the bar with circumspection.

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Heard learned counsel Mr. I. Imti Longchar assisted by learned counsel Ms. V. Kiso for the petitioner, learned Additional Advocate General Mr. L.T. Sangtam along with learned Government Advocate Mr. V. Zhimomi for the respondents No. 1 to 7 and learned counsel Ms. N. Rupreo for the respondent No. 8

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It is pertinent to mention that the respondents have argued that the Scheme for Regularization and Absorption of Work-Charged and Casual Employees and Revision of Pay/Wages, vide No.AR-3/GEN-201/2009 dated Kohima the 17^th March, 2015, is not for persons who died in harness. It is argued by the respondents that there is no scheme for posthumous regularization. This case is squarely covered by Nishevi Achumi’s case (supra).

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The petitioner has relied on the decision of the Hon’ble Supreme Court in Secunderabad Club Versus Commissioner of Income Tax reported in (2023) 457 ITR 263: 2023 SCC Online SC 1004 that:-

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“ 16. The legal principles guiding the decision in a case is the basis for a binding precedent for a subsequent case, apart from being a decision which binds the parties to the case. Thus, the principle underlying the decision would

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be binding as a precedent for a subsequent case. Therefore, while applying a decision to a later case, the court dealing with it has to carefully ascertain the principle laid down in the previous decision. A decision in a case takes its flavour from the facts of the case and the question of law involved and decided. However, a decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141, vide State of Uttar Pradesh vs. Synthetics and Chemicals Ltd. (1991) 4 SCC 139. Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. All courts in India, therefore, are bound to follow the decisions of Supreme Court. This principle is an aspect of judicial discipline.

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17. If a decision is on the basis of reasons stated in the decision or judgment, only the ratio decidendi is binding. The ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case. It is the ratio decidendi which forms a precedent and not the final order in the judgment, vide Sanjay Singh vs. Uttar Pradesh Public Service Commission (2007) 3 SCC 720. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent.

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18. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of daily affairs. Thus, what is binding in terms of Article 141 of the Constitution is the ratio of the judgment and as already noted, the ratio decidendi of a judgment is the reason assigned in support of the conclusion. The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter. The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter. Thus, an order made merely to dispose of the case

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cannot have the value or effect of a binding precedent.

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19. What is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance.

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20. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.

¶129

21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute. This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally. Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what it specifically decides and not what can logically be deduced therefrom.

¶130

22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

¶131

The petitioner has also relied on the decision of this Court in WP(C) No. 21/2021 in the case of Sri Angphei Konyak-Versus-The State of Nagaland and 2 others wherein vide order dated 11.04.2022, this Court allowed the writ petition

¶132

Page No.# 19/24

¶133

and disposed of the case with the direction as follows :-

¶134

“9… the Writ Petition is hereby disposed off with a direction that the respondents should regularize the petitioner’s service within a period of four months from the date of receipt of a copy of this Order, so that he will at least enjoy pension and pensionary benefits, after all those years of dedicated service rendered to the State.”

¶135

The petitioner has also relied on the decision of this Court in Smt. Kevise-uAngami-Versus-The State of Nagaland and 3 others, wherein in WP(C) No. 212 of 2023 vide order dated 21.03.2024 this Court held as follows:-

¶136

“ 14. On going through the facts and circumstances involved in the cases, this Court is of the considered view that neither the decision in Nishevi Achumi [supra] nor the decision in Ekta Shakti Foundation [supra] is found directly applicable to the case of Theyiechulie Angami. A decision is an authority for what it decides and not what can logically be deduced therefrom and even a slight distinction in fact or an additional or different type may make a lot of difference in the decision making process. It can be noticed that in Nishevi Achumi [supra], the case of the deceased husband of the petitioner was never considered for regularization during his lifetime whereas in the case in hand, it was the State respondents themselves, who had given assurance by taking a stand that the case of Theyiechulie Angami and other employees, who were

¶137

members of the Nagaland Police Wireless Employees Association, would be considered for regularization in a phased manner and towards implementation of such decision for regularization, the State respondents had regularized the services of 357 nos. of employees in the Nagaland Police Telecommunication Organization [NPTO], who were members of the Nagaland Police Wireless Employees Association, on 14-11-2012. Merely because that the husband of the petitioner, Theyiechulie Angami unfortunately expired before he could enjoy the benefit of regularization, it is unjust on the part of the State respondents to deny pensionary benefits on that pretext, more so, Theyiechulie Angami was senior to all the 32 nos. of employees whose services were regularized as NCE [Signal] on 14- 11-2012. Taking into accounts all such obtaining facts situations of the case in hand, the decision contained in the Communication dated 15-11-2022 and the Communication dated 06-02-2023 is found unjust, unreasonable and arbitrary and therefore, the impugned decision is set aside and quashed.

¶138

15. With the setting aside and quashing of the impugned decision, the writ petition is disposed of with a direction to the State respondents to take the necessary steps to regularize the services of the petitioner's husband, Late Theyiechulie Angami for the purpose of only pensionary benefits including family pension. The entire exercise shall be undertaken and completed within a period of 3 [three] months from the date of receipt of a certified copy of this order at the office of the respondents no.3.”

¶139

Page No.# 20/24

¶140

The ratio of the decision of Nishevi Achumi's case is not applicable to this case. After the death of her husband, the respondent filed a writ petition for pensionary benefits after 12 years. On the contrary, in this case the petitioner's husband has already been granted pensionary benefits posthumously. Nishevi Achumi (supra) is not similar to this case as the respondent Nishevi Achumi's husband was not senior in rank. It has been observed by the Hon’ble Supreme Court that the services of the other Work-Charged employees even who were senior to the deceased employees, were regularized in the year 2009 i.e. after the death of the deceased employee.

¶141

In the instant case, the petitioner's husband Heni Mao died in the year 2011. The petitioner obtained succession certificate number JUDL/SUCC/86/2017-V dated 30-10-2017 issued by the Additional Deputy Commissioner, Nagaland to receive the pension and other service benefits of her husband. Thereafter, the petitioner submitted the representation more particularly, Annexure-18 of the petition which was received by receipt No. 1523 dated 22.05.2018 issued by the Office of the Engineer-in-Chief, Nagaland, PWD Kohima. On the same letter, the Minister, PWD Works department of Nagaland through his note dated 25.04.2018 directed as “Examine and put up”. Apparently, there has been a delay of 7 (Seven) years in submitting the representation but nevertheless the representation was submitted after the succession certificate was issued in favour of the petitioner. Vide office order No. NPWD/E-N-C/Corrs/POSTHMS/2017-18 dated 25.02.2019 the order of regularizing the service of Late Heni Mao, jugali was passed by the Engineer-inChief, NPWD, Kohima with an observation that the regularization is personal to him and no replacement should be made after his retirement/death. The regularization was also a posthumous regularization to the post of jugali in pay band of PB1440017200 and grade pay of Rs.1300/-, plus all other allowances as admissible under rules, from time to time, to similar posts in Nagaland with effect from 07.02.2011, i.e. almost a month before the petitioner's demise on 10.03.2011.

¶142

I find force in the argument of the learned counsel for the petitioner. I have

¶143

Page No.# 21/24

¶144

also relied on the decision of the Hon’ble Supreme Court in Secunderabad Club (Supra), the decision of this Court in WP(C) No. 21/2021 in the case of Angphei Konyak-Versus-The State of Nagaland and 2 others (decided on 11.04.2022) and the judgment and order of this Court in Smt Kevise-u-Angami-Versus-The State of Nagaland and 3 others in connection with WP(C) No. 212 of 2023 (decided on 21.03.2024).

¶145

It is true that the facts and circumstances of this case is not similar to the case of Niveshi Ashumi (supra) relied on by the respondents. In the light of the decision of the Hon’ble Supreme Court in Secunderabad Club (supra) and in view of the facts and circumstances of this case, which is not similar to the case of Niveshi Ashumi (Supra), I find substance in the argument of the learned counsel for the petitioner.

¶146

Learned counsel for the petitioner laid stress in his argument that there is no bar in posthumous regularization of a deceased employee and the respondents were unable to demonstrate any bar against posthumous regularization of any deceased employee. The learned counsel for the petitioner has also laid stress in his argument that the posthumous regularization of the petitioner's husband has been confirmed vide order dated 13.06.2019 being numbered as E-IN-C/Estt9/WC-35/CONF/Gen/2018/45 issued by the Engineer-in-Chief, NPWD. It is further argued that the orders of regularization dated 25.02.2019 and confirmation dated 13^th June, 2019, has not been challenged and without challenging these orders, the impugned U.O. No. 168 dated 09.05.2023 was passed by the O & M Officer.

¶147

It is true that the orders of regularization and confirmation have not been challenged by the respondents, but an objection relating to the delay and lapse of 8 years in submission of pension papers in respect of Late K. Heni Mao/jugali was sought for by the AG office vide letter No. WH/EST/49/06/352 dated 26^th April 2021. A reply was submitted by the petitioner explaining the reasons of delay. She has stated that after repeated requests, the Department

¶148

Page No.# 22/24

¶149

regularized the service only in 2019 effective from 7.02.2011. This resulted in the delay of 8 years.

¶150

I have also relied on the decision of this Court in Smt. Kevise-u-Angami (supra) wherein it has been held that –

¶151

“ 14. On going through the facts and circumstances involved in the cases, this Court is of the considered view that neither the decision in Nishevi Achumi [supra] nor the decision in Ekta Shakti Foundation [supra] is found directly applicable to the case of Theyiechulie Angami. A decision is an authority for what it decides and not what can logically be deduced therefrom and even a slight distinction in fact or an additional or different type may make a lot of difference in the decision making process. It can be noticed that in Nishevi Achumi [supra], the case of the deceased husband of the petitioner was never considered for regularization during his lifetime whereas in the case in hand, it was the State respondents themselves, who had given assurance by taking a stand that the case of Theyiechulie Angami and other employees, who were members of the Nagaland Police Wireless Employees Association, would be considered for regularization in a phased manner and towards implementation of such decision for regularization, the State respondents had regularized the services of 357 nos. of employees in the Nagaland Police Telecommunication Organization [NPTO], who were members of the Nagaland Police Wireless Employees Association, on 14.11.2012. Merely because that the husband of the petitioner, Theyiechulie Angami unfortunately expired before he could enjoy the benefit of regularization, it is unjust on the part of the State respondents to deny pensionary benefits on that pretext, more so, Theyiechulie Angami was senior to all the 32 nos. of employees whose services were regularized as NCE [Signal] on 14.11.2012. Taking into accounts all such obtaining facts situations of the case in hand, the decision contained in the Communication dated 15.11.2022 and the Communication dated 06.02.2023 is found unjust, unreasonable and arbitrary and therefore, the impugned decision is set aside and quashed.”

¶152

Page No.# 23/24

¶153

Reverting back to this case, it is held that the service of the petitioner's husband was already regularized and confirmed posthumously vide Office order No. NPWD/E-N/C/Corrs/POSTHMS/2017-18/418 dated 25.02.2019 and signed by the Engineer-In-Chief on 20.02.2019. This order was passed on recommendation of the Ministry’s approval as per Rule 9 of the Nagaland Rules of Executive Business, 1980 and 2020 Government of Nagaland, Department of P&AR Reforms (Part-I) Allocation and Disposal of Business. A vacant post was already created for posthumous regularization of petitioner’s husband. An order has already been passed. The facts and circumstances of this case are not similar to the facts and circumstances of the case of Nishevi Achumi (supra), whose regularization was pending.

¶154

It is also contended that the impugned order was an unofficial order, which cannot dispel the order passed under the recommendation and approval of the Ministry.

¶155

I find substance in this argument on behalf of the petitioner. The petitioner has already been regularized against a vacant post created subsequent to the voluntary retirement of Thaneswar Hazarika. Thereby the following orders are passed :-

¶156

(i) The impugned Accountant General (A&E) letter No. Pen/Obj/A1119020918/T-2/20 dated 09.04.2020 with U.O. No. 168 dated 09.05.2023 is set aside, rendering the Order No. NPWD/E-N/C/Corrs/POSTHMS/2017-18/418 dated 25.02.2019 operative;

¶157

(ii) The impugned office letter No. WH/EST/H/3/2022 dated 24.08.2023, written by the Additional Secretary, Government of Nagaland, Work & Housing Department to the Engineer-In-Chief, NPWD, Nagaland, Kohima is also set aside, and

¶158

(iii) The Department is also directed to release the GPF amount of Rs.40,122/(Rupees Forty Thousand One Hundred and Twenty Two) of GPF Account No. EGP/239/2008-09 along with the interests accrued.

¶159

Page No.# 24/24

¶160

In terms of the above observation, this petition is allowed only for the purpose of pensionary benefits including family pension.

¶161

No order as to costs.

¶162

JUDGE

¶163

Comparing Assistant

Smti. K Lolia Mao @ L. Lolia Mao @ Lolia v. the State of Nagaland 7 Ors.

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Smti. K Lolia Mao @ L. Lolia Mao @ Lolia v. the State of Nagaland 7 Ors.

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