WP(C) No. 74(K) of 2016 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, , MIZORAM & ARUNACHAL PRADESH) KOHIMA BENCH

W.P.(C) No. 74 (K) of 2016

Smti. Imosangla, Wife of Late Temsuwati, Changtongya Village, -798601, Nagaland. Mobile No. 9612939623

………….Petitioner -Versus- 1. The State of Nagaland, Through the Chief Secretary to the Government of Nagaland, Nagaland, Kohima.

2. The Engineer-in-Chief, Public Works Department, Nagaland, Kohima.

3. The Chief Engineer, Public Works Department (Roads & Bridges) Nagaland, Kohima

4. The Executive Engineer, Public Works Department (Roads & Bridges) Changtongya Division, Nagaland.

………….Respondents

- BEFORE- THE HON’BLE MR.JUSTICE S. SERTO

For the Petitioner : Mr. Sentiyanger, Mr. Moa Jamir, Advs.

For the State respondents : Ms. Inaholi, Govt. Adv.

Date of hearing : 28-03-2017

Date of Judgment : 21-04-2017

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WP(C) No. 74(K) of 2016

JUDGMENT & ORDER (CAV)

1. This is an application under Article 226 of the Constitution of , filed by the wife of a Government employee who died in harness, praying for issuance of a writ in the nature of certiorari and/or Mandamus and/or any other writ, direction or order of the like nature directing the respondents to regularise the service of her late husband posthumously so that she and her children may be able to enjoy pension and pensionary benefits. 2. Heard learned counsel for the petitioner, Mr. Moa Jamir and also heard Ms. Inaholi, learned Government Advocate, on behalf of the State respondents. 3. The brief facts of the case is that late Mr. Temsuwati, a resident of Changtongya Village, was appointed as Work-Charged Driver on temporary basis and attached to the Executive Engineer (PWD), Changtongya Division, in the scale of pay of Rs. 425-9-542-12-614-EB-14-670-15-730/- plus all other allowances as admissible under the rules from time to time, vide Order No. CTN/EE/EI-16(A)/1996-97/82, dated 30-03-1993, issued by the Executive Engineer (PWD) (R&B), Changtongya Division, Nagaland. The appointment order is reproduced here below:- “GOVERNMENT OF NAGALAND OFFICE OF THE EXECUTIVE ENGINEER PWD CHANGTONGYA DIVISION

OFFICE ORDER NO…..

In the interest of public service SRI TEMSUWATI son of Shri. Alemchuba of Akhoia Village is hereby appointed as W/C Jeep Driver attached to the Executive Engineer (PWD) Changtongya Division in the scale of pay Rs. 425-9-542-12-614- EB-14-670-15-730/- P.M plus all other allowances as admissible under the rules from time to time for the post in Nagaland from the date of joining. The appointment is purely temporary basis and is liable for termination without any notice. His pay and allowances will be charge to : S.D.O (PWD) Chuchuyimland Sub- Div.

( I. Rongsen Ao) Executive Engineer (PWD) Changtongya Division.”

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WP(C) No. 74(K) of 2016 Ever since his appointment as Work-Charged Driver, the petitioner’s’ husband continued in service though without being regularised, and after serving for 22 years, 5 months and 17 days, he died on 16-09-2015 in harness, leaving behind his wife (the petitioner) and 5 children who are still school going. 4. The case of the petitioner as submitted by her learned counsel is that late Temsuwati, during his lifetime, submitted a representation praying for regularisation in service on 05-03-2015 to the Engineer-in-Chief, NPWD, Nagaland, through proper channel and the same was forwarded by the Executive Engineer, PWD (R&B), Changtongya Division, vide his Office letter No. EE/CTN/E-II/423, dated 05-03-2015. But the representation fell on deaf ears and it was never considered. After the death of her husband, the petitioner through her counsel served a legal notice dated 16-11-2015, to the Chief Engineer, NPWD, Nagaland asking him to regularise the service of her late husband for pension and pensionary benefits, but the same also did not bear any fruit. 5. That according to Office Memorandum No. AR-3/Gen-67/2001(Pt), dated 22-09- 2004 issued by the Department of P&AR (Administrative Reforms Branch), the petitioner’s husband was entitled to be regularised as he was the senior most among the Work-charge drivers in the department, and since vacancies also occurred during his lifetime. However, he was not regularised, but, his juniors in service were regularised from time to time, thereby discriminating him from people who were similarly situated. The above mentioned Office Memorandum is reproduced herein below;- “Government of Nagaland Department of Personnel & Administrative Reforms (Administrative Reforms Branch)

No. AR-3/Gen-67/2001(Pt) Dated, Kohima, the 22nd Sept. 2004. OFFICE MEMORANDUM Sub:- Policy and Scheme for Regularisation of service of Work-Charged Employees.

There are large numbers of work charged employees in various Departments. Many of the employees have been serving continuously for many years. They have been representing to the Government for regularization of their service. Some Departments have been regularizing the service work-charged employees from time to time against available vacancies. However, no transparent rational policy and criteria is discernible in the process of regularization of service of work-charged employees. Therefore, in order to examine the issue of regularization of work charged employees various Departments, the State Governments set up a Committee under the

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WP(C) No. 74(K) of 2016

Chairmanship of Shri. Lalthara, IAS, Additional Chief Secretary (Geology & Mining). On the basis of the recommendations of the Committee for regularisation of Work-Charged employees in the State, the Government hereby adopts the following policy and scheme for regularisation of the service of work charged employees serving under various Departments of the State Government. (i) Each Department having Work-Charged employees should maintain a list of work-charge employees in various categories in order of their length of service. (ii) Regularisation of work-charged employees will be done against available regular vacancies. (iii) 50% of all regular vacancies of similar nature arising in a year will be reserved for regularisation of work-charged employees, and the remaining 50% will be filled up as per normal rules of recruitment. (iv) 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 regularisation will be considered on the basis of seniority–cum-merit. This means that the senior most work- charged employee in the relevant category will be regularized subject to his/her fitness for the vacant post. (v) In case no work-charged employee is found suitable for regularization in terms of the above clause(iv) the Department will obtain clearance of P&AR Department before making any fresh appointment against the quota reserved for work-charged employees explaining the circumstances for not being able to fill up the vacancy through regularization of work-charged employee. (vi) No age bar would apply in cases for regularization if the Work- Charged employee is below the superannuation age. (vii) Regularized Work-charged employees will be entitled to count in full their continuous charged service towards pension benefits. (viii) Those Departments which have not approached the Nagaland Work-charged and casual Employees Commission should do so immediately to get the optimum strength of Work-charged employees fixed for their Departments. They should take all possible measures including pursuing VRS option vigorously to bring down the strength of Work-charged employees to the level recommended by the Commission. (ix) Adequate provision for payment of work-charged employees should be made in the budget and regular monthly payment of work charged wages ensured. (x) All new Work-charged appointments should be banned. Any person accepting Work-Charged service in the Government would be doing so at his/her risk. Any new work-charged appointment should be treated as illegal and strict action taken against the Page 4 of 8

WP(C) No. 74(K) of 2016

appointing authority. In case or any unforeseen situation requiring new work-charged appointments, specific approval of the Cabinet must be taken.”

6. Having suffered injustice during the life time of her late husband and after his death, and having no other choice, an RTI application regarding regularisation of drivers who were similarly situated with her late husband was submitted by the petitioner to the PIO of the department, and from the reply of the PIO it was found that the following persons who were similarly situated were regularised in service. The names of the drivers, date of their appointment and date of their regularisation as shown in the annexure to the writ petition are reproduced here below;- “List of Work-Charged Drivers appointed w.e.f. 01.04.1996. Sl. No. Name Date of appointment Date of regularization 1 Shri. Yangerliba 01.06.2003 28.08.2006 2 Shri. Toshiakum 03.07.1997 01.07.2005 3 Shri. Arentoshi 07.12.2001 31.05.2007 6 Harka Bahadur 11.04.1997 28.10.1999 7 Uttam Kumar 25.09.2009 10 S. Kughai Sema 28.05.1999 27.11.2012 11 Aheto 05.12.1998 30.09.2012 13 Radha Kanta Sinha 11.12.1996 27.02.2001 16 Pradeep Raj Kumar 28.04.2001 05.10.2012 17 Putionen Ao 05.01.1996 01.05.2006 18 Do-o Phom 27.02.2001 19 Renathung 13.02.1998 22 Meyiba Ao 01.06.1997 05.05.2011 24 Veneo-o Veswuh 18.12.2000 24.06.2005 25 Shri. Bendangmongba 09.04.2002 30.04.2001

Sd/- Deputy Chief Engineer & PIO, NPWD Nagaland, Kohima.”

7. Beside, the information received through the RTI the petitioner also found out through her own sources that 21 drivers, in the same department, have also been regularised in their respective post. The names of the drivers with the date of their regularisation as given in the writ petition which are supported by copies of the orders regularizing them are given herein below:-

Sl. No. Name of the Employee Regularized vide: 1. Shir. Imtikeka Office Order No. PW(EI)- 131/GEN/MBA/94(PT), dated 20-04-1999. 2. Shri. Dhiraj Gurung ------ditto------3. Shri. Chubawati Office Order No. ACE(M)/PW/WC-36/97, dated 09-09-2000. 4. Shri. Khuito Sumi Office Order No. PW(EI)-14/GEN/96(Pt), dated Page 5 of 8

WP(C) No. 74(K) of 2016

26-02-2001. 5. Shri. Jeet Bahadur Office Order No. PW(EI)-14/GEN/88(PT), dated 27-02-2001. 6. Shri. Dakanta Sinha ------ditto------7. Shri. T. Horise Sangtam Office Order No. PW(EI)- 61/92(Pt-v)), dated 28- 02-2001. 8. Shri. Nyakba Chang Office Order No. CE(H)ESTT-161/2000, dated 25- 02-2002. 9. Shri. Pangerlemba Office Order No. PW(EI)- 131/GEN/MKG/99(Pt), dated 05-03-2002. 10. Shri. Puchiu Khiam Office Order No. PW(EI)- 131/GEN/TSG/94, dated Nil-06-2005. 11. Shri. Alikokba Ao ------ditto------12. Shri. Chubawati ------ditto------13. Shri. J.Lanu Office Order No. PW(EI)- 22/GEN/BOARD/2001, dated 24-06-2005. 14. Shri. Hukhosa Office Order No. PW(EI)- 22/GEN/BOARD/2001, dated 24-06-2005. 15. Shri. Rongtongse Office Order No. PW(E&I)- 22/GEN/BOARD/2001, dated 19-12-2005. 16. Shri. Ashurhu Office Order No. CE(H)ESTT -161/05, dated 01- 02-2006. 17. Shri. Imnalemzung Office Order No. PW(E&I)- 22/GEN/BOARD/2001, dated 23-08-2006. 18. Shri. Visietuo Office Order No. PW(E&I)- 22/GEN/BOARD/2001(Pt-II), dated 04-05-2011. 19. Shri. Mayiba Office Order No. PW(E&I)- 22/GEN/BOARD/2001(Pt-II), dated 04-05-2011. 20. Shri. S. Yendenchalou Chang Office Order No. PW(EI)- 22/GEN/BOARD/2001(Pt-II), dated 27-11-2012. 21. Shri. T.Chade Khiam Office Order No. PW(EI)- 22/GEN/BOARD/2001(PT-II), dated 21-11-2012.

8. After having submitted the facts and figures as given above, the learned counsel for the petitioner submitted that the case of the petitioner’s husband is a clear case of discrimination, and denial of his fundamental right, therefore, it is a fit case for directing the respondents to regularise his service posthumously so that his legal heirs enjoy pension and pensionary benefits. It is also submitted that since the respondents have deliberately ignored the just claim of the petitioners’ husband while he was alive, they should be made to pay interest to the pension and pensionary benefits @ 24% p.a till final payment is made. 9. Ms. Inaholi, learned Government Advocate submitted that as per the Office Memorandum dated 24-09-2004, relied upon by the petitioner, Work-charge employees are regularised against 50% of the vacancies that occurred in a year by giving precedence to seniority. However, since, the petitioner’s husband had not reach the zone of consideration for regularisation due to his position in the seniority list he was not regularised during his lifetime. Page 6 of 8

WP(C) No. 74(K) of 2016 The learned Government Advocate also submitted that there was no regular vacancy available at that point of time in the division where the petitioner’s husband was posted, therefore, his case for regularisation could not be considered. The learned Government Advocate further submitted that no one junior to the petitioner’s husband has ever been regularised in his division, therefore, no discrimination has been committed against him. 10. From the submission of both the learned counsels, I find that there is no dispute on the fact that the petitioner’s husband was appointed as Work-charged Driver and continued as such, for a period of 22 years, 5 months and 17 days till he died on 16-09-2015. There is also no dispute on the fact that in pursuance to the O.M dated 24- 09-2004, the department in which the petitioner’s husband served had continually regularised similarly situated persons. It would be seen at Clause-(i) to (iv) of the O.M that the departments are required to maintain list of Work-Charge employees in various categories, and to take up their regularisation against 50% of regular vacancies arising in a year, and by giving precedence to seniority. No where in the O.M mentioned is made that seniority list is to be maintained division wise. Besides, no Government notification, order or office memorandum requiring the departments to do the same, division wise is filed or even mentioned by the respondents, if there is any. Under such facts and circumstances, I am unable to agree with the submission of the learned Government Advocate. Further, there cannot be different seniority list for people working under the same department and under the same category of service. Therefore, the act of the department in having maintained seniority list division wise is in clear violation of the O.M. dated 24-09-2004. The respondents should have maintained seniority list of the department as a whole and the petitioner’s husband should have been considered for regularisation as per his standing in that seniority list. Further the fact that the service of the petitioner’s husband was utilized for more than 22 years and till he died shows that his service was required for smooth running of the office to which he was posted. Furthermore, it appears from the appointment order that the petitioner’s husband was paid scale pay with allowances, therefore, what was needed was only a formality of creating a regular post for regularizing him in his service. The fact that it was not done was only due to lack of concerned on the part of the respondents. Such act of omission or commission of the respondents amounts to denying his right to life as guaranteed under Article 21 of the Constitution of India. In

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WP(C) No. 74(K) of 2016 catena of cases, right to life has been defined by the Courts in the country as not mere simple human existence but life with dignity. The petitioner’s husband served that long not by choice but by compulsion of existence. It is something disheartening to see in a Country like ours where the freedom fighters have fought so hard and sacrificed so much for such vision and ideals but the benefits of which are yet to be seen percolating to the ordinary people, specially, to people like the petitioner’s husband and his family. The respondents should have considered as their bounden duty to see that a person who served under them for so long would not have to go through such suffering all his life. The petitioner’s husband was not only denied his legal rights but also his human dignity. From the facts and circumstances of the case discrimination appears to have followed the petitioner’s husband all his lifetime in regards to his service carrier. The RTI response and facts laid down in the petition shows that the petitioner’s husband had been discriminated. Comparing the date of appointment of the deceased Government servant with that of the dates of appointments of the persons who were regularised, it is apparent that favourtism, nepotism and discrimination has taken the better of the administration while dealing with the case of the petitioner’s husband vis-à-vis that of the similarly situated persons. It is also unfortunate that widow of a Government servant who served for more than 22 years should be compelled to fight a legal battle for a little benefit which deservedly is hers and her children for the service rendered by her deceased husband. In view of what has been stated above, this Court is left with no choice but to direct the respondents to regularise the service of the petitioner’s husband posthumously so that the petitioner and her children can enjoy the pension and pensionary benefits within a period of 3(three) months. The respondents are, therefore, directed accordingly.

JUDGE

Kevi

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