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State Govt. files intra-court appeal on HC order on regularization of WC service

Nagaland News

DIMAPUR, NOVEMBER 9: Nagaland Government has filed an intra-court appeal against an order issued by the Kohima Bench of Gauhati High Court that had directed the former to regularise the service of a retired work-charged Chowkidar and pay pension as well, on the ground that said employee had rendered 27 years of service.
On Wednesday, a Bench comprising Justices Nani Tagia and Kakheto Sema admitted the appeal and called for relevant records. “As the parties are now represented and agreed for final hearing sometime in the next week, list this matter for hearing on 16th of November, 2022”, stated the order.
On November 18 last year, the Court had ordered Nagaland Government to complete the process of regularising the service of a contract employee (superannuated after 27 years in service) “for the purpose of granting pension benefits” within two months, while reminding “in no uncertain terms” that the State is a model employer, and in a Welfare State, it is not expected to exploit citizens in service matters.
The ruling was in connection with a writ petition filed by Zachivo Chakhesang, a resident of Phek Village, against the State of Nagaland represented by the Chief Secretary, the Commissioner and Secretary of Public Health Engineering (PHE) and the Chief Engineer of PHE.
As per Court document, the petitioner was appointed as ‘work-charged employee’ in PHE Department of Phek Division during the 1980s. On July 21, 1987, he was upgraded to ‘Semi Skilled Labour Work Charge’; thereafter, “promoted to the post of chowkidar” on April 4, 1989.
“His service-book, as is the practice, was opened thereafter and he contributed to GPF and all other schemes as is practiced by required Government servants”, it stated.
But when he was released from service on January 31, 2014, the petitioner was not given pension benefits by the Government on the ground that he was not a regular employee.
When he initially “filed the writ petition before the Chief Engineer PHED”, there was no response from the latter, prompting him to knock on the Court’s door.
The Counsel for the petitioner submitted that the Kohima Bench of Gauhati High Court had heard a similar case in 2012, where the Single Judge had then disposed off the petition grating relief to the petitioner. The Counsel further cited a ruling issued by the Division Bench of Gauhati High Court in the Manipur, in 1997.
“After having considered that the petitioner had put in continuous uninterrupted service of 28 and 29 years, the coordinate Bench of this Court had directed that the respondent should regularise the service of the petitioner to grant him all pension benefits in accordance with law. Learned Counsel submits that since the present facts and case of the petitioner is also covered, the same relief may be granted to the petitioner”, it stated.
On the other hand, the State’s Counsel argued that the petitioner was not covered under the scheme of the State Government under Personnel and Administrative Reforms Department (Administrative Reforms Branch) order issued on March 17, 2015.
This office memorandum (OM) provides for regularisation and absorption of work-charged and casual employees, revision of pay and wages, which covers only employees who have served for 30 years uninterrupted, it stated.
The Counsel argued that the OM also requires that the employee should be on “pay-scale”; and that the petitioner was in service for “only 27 years” ~ thus ineligible for any pension benefits.
In his ruling, Justice S Hukato Swu said that though the State Government had “consistently presented” the March 17, 2015 order as “defence”, the Supreme Court has dealt with such cases “and has in no uncertain terms, pronounced that the State is a model employer and in a Welfare State, State is not expected to exploit citizens in service matters”.
Swu said: “It has been decided, over and again, that when the State utilises the services of employees for uninterrupted long years, then in such situation, the services of employees should be treated as regular employees and be entitled with all the benefits of a regular Government servant under the normal Government Service Rules. Today, we are not hesitant to repeat that the rule of 30 years continuous service of scale-pay as provided under the scheme is not workable which is against the Constitutional provisions, specifically Article 14, 16 and 21.”
Pointing out that the petitioner had “put in 27 years of uninterrupted service”, he ruled that the State and Department authorities should have made all efforts in these long years to either regularise his service or discharge him at the time when “fit to find other avocations to employ himself and sustain his livelihood”.
“However, there is nothing shown on records that such efforts were made. In such a situation, we are unable to accept the contention that the petitioner was not on scale-pay nor had he completed 30 years of service. It may be pointed out here that the conditions that are laid out in the March 17, 2015 OM conditioning that the work-charged employee should be on scale-pay is devoid of any rationale since there is no rule or criteria laid out by the State Government as to which employee would be given scale-pay and which employee should not be given scale-pay”, read the ruling.
He went on to state that despite “the ban on work-charged employees”, there is a continued indulgence in issuing appointments under different terminologies such as contract, ad hoc, casual, temporary, work charge, fixed pay, etc.
“However, all these categories of appointments seem to refer to the same group of employees considering the utilisation of these employees. Most of the time, these categories of employees have claimed to have continuously served for more than 20 years, without regularisation and therefore disprivileged of pension benefits and other benefits enjoyed by regular Government servants.
“This is when it takes the colour of exploitation, compelling the courts to take steps. In a situation where the State respondents continues to employ without open advertisement and utilise the service of employees over considerable period of time, the State is debarred from taking the plea that petitioners and not regular employees and disprivilege them from pension benefits. One cannot be allowed to take advantage of his own misdeeds”, Swu ruled then.
Citing records, he pointed out that the petitioner has already completed more than 27 years of service as a contract employee, and superannuated.
“The contract appointment must be terminable at some stage of service. If the contract appointment continues until the superannuation, the character of the appointment automatically changes and the employee has to be treated under normal Government service rules, entitling them to pension benefits”, he said.
(Page News Service)

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