Smti. Neitsolo-U Vs the State of Nagaland and 4 Ors.

This is an application preferred under Article 226 of the Constitution of India for a writ in the nature of mandamus, for retrospective regularization of the petitioner’s service as Work Charged employee in the Office of the Sub-Divisional Officer, I/C, PWD (Housing), Phek, Nagaland for pension and pensionary benefits. The petitioner has also prayed for modification of the Office Memorandum No. AR-3/GEN-201/2009 dated 17.03.2015 by which it was provided that the employees who were enjoying scale pay and who have served for 30 years or more of continuous service as on 01.01.2015 will be regularized and not in respect of employees who do not have a scale pay.

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FACTS

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2. The petitioner was appointed as a Work Charged labour on fixed pay on 23.05.1986 and on being appointed, work charged Identity Card bearing No. 123 was issued to the petitioner and since then she was working continuously. On 05.05.2021, after completion of 35 years of service, the petitioner was released from her service vide order dated

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05.05.2021 passed by the Sub-Divisional Officer (I/C), PWD (Housing), Phek, Nagaland with effect from 31.05.2021. The petitioner was released without any pension or pensionary benefits. Aggrieved with the nonpayment of the pensionary benefits, the petitioner wrote a representation to the said authority on 20.07.2022 for retrospective regularization of her service for the purpose of pension which was not considered by the authority concerned till date.

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3. The law relating to regularization and absorption of work charge and casual employees were initially governed by the Office Memorandum dated 22.09.2004 wherein it was provided as under:-

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“(ii) Regularization of work-charged employees will be done against available regular vacancies.

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(ii) 50% of all regular vacancies of similar nature arising in a year will be reserved for regularization of Work-Charged employees, and the remaining 50% will be filled up as per normal rules of recruitment.

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(iii) Work-charged employees will have the right to be considered first for regularization against 50% of all future vacancies of similar nature in the Department for which they possess the requisite qualification.Such qualification will be considered on the basis of seniority-cum-merit. This means that the senior most work-charge employee in the relevant category will be regularized subject to his/her fitness to the vacant post."

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4. Thereafter, the Govt. of Nagaland vide Memorandum dated 17.03.2015 formulated a new scheme for regularization and absorption of

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the work charge and casual employees as well as for revision of pay and wages. In the said Memorandum, it was provided that all work charged employees who enjoy scale pay and who have completed 30 years of service or more will be regularized. It was also provided that the quota for work charged employees for regularization against normal vacancy was enhanced from 50% to 67%. The said Memorandum is reproduced below:-

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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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(iii) The existing scheme for regularization of work-charged employees against normal vacancy is being modified and the quota for work-charged employees stands enhanced from 50% to 67% for the next 5(five) years effective from 01-01-2015. This existing scheme will also be applicable for the casual employees appointed on full time basis."

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5. It is this Memorandum that the petitioner has prayed for modification to the extent that regularization by conversion of the post held by the casual employees into regular ones may also be extended to work charged employees who have served 30 or more years of service but without scale pay.

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6. The Govt. of Nagaland had also come up with an Office Memorandum dated 31.08.2017 by which the policy prescribing that 2 out of 3 available vacancy to be utilized for regularization should be followed strictly. In the

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instant case, the petitioner who had completed 35 years of service, was not given scale pay and as such, her post was not converted into regular post, personal to her and was released from her service without any pensionary benefits.

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SUBMISSIONS

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7. Mr. Sentiyanger, learned counsel appearing for the petitioner submits before this Court that the Office Memorandum dated 17.03.2014 mentioned herein above is in violation of Article 14 and 16 of the Constitution of India to the extent that it limits granting of regularization only to those work charged employees who enjoy scale pay. He stated that it is not a case that scale pay is awarded to work charged employees who were working only against sanctioned post and that the work charged employees who do not receive scale pay are not only paid lesser monthly salary but is also made to leave empty handed with no pension benefits. He also stated that the work charged employees on scale pay and work charged employees on fixed pay discharges same kind of duty. The counsel further submits that information was sought for through an RTI application, as to the employees who were awarded scale pay so as to find out whether Juniors were paid scale pay leaving out the petitioner. In response to the application, the Deputy Chief Engineer, PWD, Nagaland furnished the information to the effect that since the year 2000, as many as 706 work charged employees were awarded scale pay. However, they could not furnish the date of appointments. The counsel as such states that there has been total discrimination in giving scale pay to the work charged employees and that the same were done by pick and choose

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method. He placed reliance upon the judgment passed by the learned Single Judge in WP(C) No. 21/2021 by which the learned Single Judge by considering the fact that all juniors were given scale pay leaving out the seniors and also due to the fact that the employees who had completed substantial years of service were left with no pensionary benefits, directed the authorities to regularize the petitioner’s service within a time period and to pay the pensionary benefits.

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8. The learned counsel further stated that against the said Judgment, the State of Nagaland went in appeal before the Hon’ble Division Bench and the Division Bench vide order dated 06.02.2024 finding no merit in the appeal dismissed the same. He also stated that the State of Nagaland, against the said judgment of the Hon’ble Division Bench, approached the Apex Court and the Apex Court vide order dated 15.01.2015 dismissed the SLP. The learned counsel in order to substantiate his argument further relied upon the following Judgments:-

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(1) Randhir Singh Vs. Union of India reported in AIR 1982 SC 879, for substantiating the point that equal pay should be given for equal work.

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(2) Peoples Union for Democratic Rights Vs. Union of India reported in AIR 1982 SC 1473 by which the Hon’ble Supreme Court had inter alia held that forced labor is violative of human dignity and contrary to basic human values.

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(3) State of Gujarat & Ors. Vs. Talsibhai Dhanjibhai Patel reported in 2022 LiveLaw (SC) 187, wherein the Supreme Court had observed that

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taking service continuously for 30 years and releasing them without pension is nothing but unreasonable.

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9. On the other hand, Mr. Moa Imchen, learned Senior Govt. Advocate appearing for the State respondents No. 1 to 5 submits before this Court that the law governing the regularization is the Memorandum dated 17.03.2015 and it provides that only those work charged employees who were given scale pay and who have completed 30 years or more years of continuous service would be regularized by conversion of their posts into regular ones.

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10. He further submitted that as per the earlier Memorandum dated 22.09.2004, it was provided that 50% of regular vacancies will be reserved for regularization and the remaining 50% will be filled by normal rules of recruitment and that it further provides that qualification on the basis of which the 50% vacancies would be reserved for regularization in all future vacancies, would be seniority-cum-merit. In view of the same, he further submits that the senior most work charged employee would be regularized subject to his or her fitness to the vacant post. As such, he submits that by applying the criteria of seniority-cum-merit, the petitioner was not absorbed in the regular post and therefore, she was released without any consequential benefits. He relied upon the Office Memorandums issued by the Govt. of Nagaland from time to time.

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11. The learned Senior Govt. Advocate further states that the work charged employees are engaged in a temporary basis and the same comes to an end on completion of the work and as such, they do not get

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any relief under the payment of gratuity Act nor do they receive retirement benefits or benefits under Employees State Insurance Scheme. The learned Senior Govt. Advocate has relied upon the affidavit-inopposition filed by him on 11.05.2025. On this submissions, he has prayed that the petition may be dismissed.

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12. In reply to the affidavit-in-opposition, the petitioner filed an affidavitin-reply on 05.03.2024 wherein, he stated that on harmonious reading of various provisions of the Nagaland Work Charged and Casual employees Act, 2001, it can be noticed that the Act envisages regularization of work charged employees without sanctioned post. Thereafter, he further stated that there was no intelligible differentia while making the distinction between the work charged employees who do not enjoy scale pay and not given benefit of regularization and the work charged employees who enjoy scale pay and were given benefit of regularization. He as such prayed that the memo dated 17.03.2015 may be modified and the petitioner’s service may be regularized, retrospectively.

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13. In the back drop of the aforesaid submission, this Cout is now called upon to adjudicate as to whether the Office Memorandum dated 17.03.2015 making distinction between the work charged employees working on scale pay and work charged employees working on fixed pay is legal in the eyes of law and also as to whether the petitioner is entitled for regularization of her services, from a back date.

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ANALYSIS

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14. The initial Memorandum issued by the Govt. of Nagaland on 22.09.2004 provided that regularization of work charged employees will be done against regular vacancies and then again it says that 50% of regular vacancies arising in an order will be reserved for regularization of work charged employees and the remaining 50% to be filled by normal rules of recruitment. The said Memorandum further provides that the work charged employees will have the right to be considered for regularization against 50% of the future vacancies in the department on possessing of requisite qualifications and that such qualification will be considered on the basis of seniority-cum-merit.

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15. Thereafter, by the subsequent Memorandum dated 17.03.2015, the Govt. of Nagaland had provided that only those work charged employees who were enjoying scale pay and who have completed 30 or more years of continuous service would be regularized by converting their post into regular ones, making them further subjected to fulfillment of conditions viz., the quota for work charged employees for regularization was increased from 50% to 67% for future vacancies. The Govt. of Nagaland further clarified vide Memorandum dated 31.08.2017 that 2 out of the 3 available vacancies would be utilized for regularization.

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16 . On a perusal of the two memos dated 22.09.2024 and 17.03.2015, it is apparent that there is a marked difference in the criteria of regularization. The scheme of regularization as per 2004 memo is that the regularization would be carried out against 50% of earmarked vacancies on the criteria of Seniority Cum Merit whereas as per 2015 memo, the regularization would be done only in cases of those who were enjoying

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scale pay and have completed 30 or more years of service. Further there was no indication as to whether 2015 memo supersedes 2004 memo yet it would necessarily imply that scheme of 2015 had replaced the previous scheme of 2004 and the same is holding the field.

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17. It is further apparent from the said Memorandums that a classification is made between the work charged employees enjoying scale pay and work charge employees made to work on fixed pay. This Court is therefore required to ponder and examine as to whether the said classification is permissible under the principle of reasonable classification permitted under Article 14 of the Constitution of India.

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18. Article 14 of the Constitution of India does not make it incumbent on the Legislature to make laws applicable to all persons generally and that it is open to the Legislature to classify persons and things and subject them to the operation of a particular law. However, the said classification cannot be arbitrary and it should be based upon differences pertinent to the subject in respect of the purpose for which it is made. It is now well settled that Article 14 forbids class legislation but it does not forbid reasonable classification. The permissible classification must pass two conditions, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others and (ii) the differentia must have a rational relation to the object of the statute. It is also well established that Article 14 condemns discrimination not only by substantive law but also by law of procedure.

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19. In this connection, the judgment delivered by the Hon’ble Apex Court in Chiranjitlal Choudhury Vs. Union of India reported in AIR 1951 SC 41 may be summarized as follows:

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“(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

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(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.

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(3) The principle of equality does not mean that every law must have universal application for all persons are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.

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(4) The principle does not take away from the State the power of classifying persons for legitimate purposes.

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(5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.

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(6) If a law deals equally with members of a well-defined class, it is not

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obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.

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(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.”

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20. By applying the aforesaid principle in the instant case, it is writ large that the respondent authorities had not clarified as to why the distinction was made between work charged employees enjoying a scale pay and the work charge employees working on fixed pay, in getting regularization of their services with the resultant pensionary benefits. The authorities have also not stated as to what procedure was applied by which few employees were paid pay scale and few employees were paid fixed pay as they have not stated about the numbers of sanctioned posts. The government has also not clarified that only seniors were regularized and the petitioner was junior, even if this court considers that 2004 memo is still valid.

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21 . However, it is to be noted that the petitioner had not prayed for regularization of her service prior to her retirement. The representation was submitted only after she had retired from service and it seems, the same was only for the purpose of receiving pension. Further under the Nagaland Work Charge and Casual Employees Regulation Act, 2001, there are no rights conferred on the employees to seek regularization in service, nor does it extends pensionary benefit to the work charged employees. A

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work Charge employee is regularized only on obtaining a scale pay against a sanctioned post and on qualifying the minimum required service as a regular employee. Furthermore, under the Central Civil Service (Pension) Rules, 1972, which was adopted in the State of Nagaland, persons in casual and daily rated employment have been excluded for payment of pension.

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22. However, it is also to be noticed that the petitioner’s service was required by the Government and was fully utilized in the public interest for long 35 years. It is not a disputed fact that she was paid fixed pay during her entire service career and was left with no pension or pensionary benefits. In a number of decisions, the Hon’ble Supreme Court as well as the High Court have allowed prayers of the petitioners under similar circumstances. In State of Gujarat & Ors. Vs. Talsibhai Dhanjibhai Patel (supra), the Hon’ble Apex Court had observed that the State having taken service of employees for 30 years or more and releasing them with nothing was totally unreasonable and that as a welfare State, the State ought not to have taken such stand.

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23. Further, the Hon’ble Supreme Court in Prem Singh Vs. State of U.P reported in (2019) 10 SCC 516 observed that work charged employees having afforded their services for many years, ought to have been regularized under the Government instructions. The Hon’ble Supreme Court therein took into note the observation made in State of Karnataka Vs. Umadevi. In the said case, it was held by the Hon’ble Supreme Court that in case services have been rendered by such employees for more than 10 years without the cover of the Court’s order, as one time measure,

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should be regularized.

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24. It is not disputed that the employees who were not given scale pay and the employees who were given scale pay, have similar duties and responsibilities and in that view of the matter, it is no res integra that there should be equal pay for equal work. In Jagjit Singh Vs. State of Punjab, reported in (2017) 1 SCC 148 , the Supreme Court had observed that there should be no room for any doubt that principle of equal pay for equal work had emerged from interpretation of different provisions of the Constitution. It is noticed in the instant case that the petitioner who is working on fixed pay was paid much lesser than the employees who were on scale of pay. In the considered view of this Court, it was unreasonable and against the scheme of the constitutional provisions that the petitioner was paid lesser salary all throughout her life despite doing similar duties and responsibilities as with that of the employees with scale pay. She was further denied of regularization to her service as well as pensionary benefits.

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25. Although it is a settled proposition of law that contract appointment gets terminated at some stage in the service however, if such appointment continues uninterruptedly till the age of superannuation as it happened in the case at hand, the character of the appointment changes and the employee gets entitled to the pensionary benefits.

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26. In the instant case, the stand taken by the Government that in view of the Memorandum dated 17.03.2015, a work charged employee cannot be regularized and cannot be given pensionary benefits is against the

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norms of law. The fact that the petitioner’s service was utilized till she completed 35 years of service, by which any person serving under the Government, is to retire shows that her service was not only required but was fully utilized and if a person’s service is required and utilized, he/she should have been given what he/she deserved. The petitioner was paid a fixed pay which was very meager and with that she survived her entire life and after having led such a life, to let her go empty handed cannot be reasonable by any stretch of reasoning.

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27. Although the petitioner had not prayed for regularizing her service during her tenure and had prayed only after retirement, the same cannot disentitle her of the reliefs. The petitioner was getting a salary, however small and she survived on that all throughout her life and now after retirement, she not getting a penny, cannot by any stretch, be accepted by any prudent person in this Welfare State. This Court in similar cases have allowed the prayer of the persons who are similarly situated as that of the petitioner and have directed the State Government to consider regularization for their services even retrospectively for pension and pensionary benefits. The similar cases are WP(C) Nos. 241/2021, 242/2021, 243/2021, 244/2021, 245/2021, 246/2021, 247/2021, 248/2021, 249/2021 and 21/2021.

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CONCLUSION

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28. Taking into view the order passed in the aforesaid writ petitions as well as the Judgment of the Hon’ble Division Bench and the dismissal order of the Hon’ble Supreme Court mentioned above, this Court is of the

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view that the case of the petitioner praying for regularization of her service retrospectively and to allow her pension and pensionary benefits, appears reasonable and legitimate.

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29. Further, in view of the undisputed fact that the work charged employees, enjoying scale pay and the work charged employees working on fixed pay, discharges same duties and responsibilities, should not have been discriminated amongst each other. Further, there is nothing on record nor it was placed by the learned Senior Govt. Advocate that there are requirements or conditions for a work charged employee to obtain scale pay especially in view of the fact that Memo dated 17.03.2015 does not provide for any criteria or requirements. The said discrimination appears to be fanciful and not according to law. It is also not produced or placed by the Ld. Senior Govt. Advocate that the petitioner was junior and only her seniors were given scale pay by applying the criteria of senioritycum-merit. Later, in the information supplied under the RTI to the petitioner, the Information Officer also could not furnish proper information as to the date of appointment of the work charged employees, showing thereby that the petitioner was not entitled for Scale Pay being junior.

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30. In view of the same, it is directed that the Govt. of Nagaland, for the ends of justice, may reconsider the Memorandum dated 17.03.2015,in light of the observations made above and in consonance with Article 14 of the Constitution of India.

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31. This writ petition is hereby disposed of with a direction to the

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respondent authorities to regularize the petitioner’s service, a day before her superannuation, within a period of four (4) months from the date of receipt of a copy of this Order so that the petitioner could be given pension and pensionary benefits, after years of her dedicated service rendered to the State.

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32. Petition is allowed to the extent mentioned above and with the above directions.

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JUDGE

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Comparing Assistant

Smti. Neitsolo-U v. the State of Nagaland and 4 Ors.

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Smti. Neitsolo-U v. the State of Nagaland and 4 Ors.

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