Point of Law: Pensionery Benefit – Pay scale - Once an employee is recruited and his or her services is utilised continuously for long years by allowing employee to draw salary as per the pay scale, a presumption would genuinely arise as to the requirement of service of such temporarily appointed employee on regular basis. In such cases, it would be the duty of the Government to regularise the services of such employees against sanctioned post without undue delay.

Headnote:
Service Laws – Death in Harness – Respondent/writ petitioner is widow of late Hokishe Sema, who was initially temporarily appointed in a post of work-charged Jugali in scale of pay of Rs. 190-250/plus all other allowances, as admissible under Rules, vide Government notification issued by Executive Engineer, Electrical Division. – While deceased husband of respondent was working as Work-charged, by order issued by Executive Engineer, he was sent for attending training of Lineman at Lineman Training Centre. – Upon successful completion of training, late Hokishe-Sema was promoted to post of Assistant Lineman. – While serving in aforesaid post, he died in harness – At time of his death, services of Hokishe-Sema was not regularised although he had served department for more than 28 years. – Accordingly, by office order Hokishe-Sema was shown to have been released from service with effect from 29/08/2005 i.e. next day of his demise. – After premature and sudden death of her husband, respondent/writ petitioner had to struggle to bring up her seven children with virtually no source of income since she did not receive any pensionary benefit from department. – After several years of death of he husband, she came to know from knowledgeable person as regards her legal right in matter and accordingly, submitted representation before concerned authority to grant pensionary benefit to her – When the representation failed to evoke any favourable response, widow of deceased employee, as writ petitioner, had approached this court by filing WP(C), seeking a Writ of Mandamus
Finding of the court: If employee had continuously served against a sanctioned post, drawing regular pay scale and had rendered requisite length of service so as to receive pension as per Rules, the pensionary benefit of such employee ought not to be denied merely on fortuitous circumstance that order of regularisation of service was yet to be issued by department on the date of his death or retirement.– Court is of opinion that having availed services of deceased husband of writ petitioner for 28 long years, department should not be allowed to hide behind mere technicalities and take the plea that in order of seniority, turn of deceased husband of respondent/writ petitioner for regularisation did not come as on date of his death as nothing has been brought on record to show that any exercise for regularisation had indeed been undertaken earlier i.e. during his life time. – Court is unable to agree with submission of counsel for appellant on such count.–Single Judge has also discarded argument advanced by departmental counsel regarding delay in filing writ petition by observing that respondent/writ petitioner, being a poor lady, coming from a rural background situated at an interior place of State of Nagaland, may not have been aware of her legal rights so as to approach this court earlier than she had come. – Moreover, delay in approaching the Court, in any event, would not affect the right of any other person– Court is of opinion that views expressed by Single Judge, in facts and circumstances of present case, was wholly justified and, therefore, directions issued by impugned judgment and order, do not call for any interference by this Court – Court do not find any merit in this appeal.
Result: Writ Appeal Dismissed

JUDGMENT :

Suman Shyam, J

1. Heard Mr. E. Thiba Phom, learned Government Advocate, Nagaland, appearing for the appellants. None has appeared for the respondent though the name of counsel is shown in the cause list.

2. This writ appeal is directed against the judgment and order dated 06/09/2019 passed by the learned Single Judge allowing the writ petition filed by the respondent.

3. The facts of the case, in a nutshell, are these:-The respondent/writ petitioner is the widow of late Hokishe Sema, who was initially temporarily appointed in a post of work-charged Jugali in the scale of pay of Rs. 190-250/-plus all other allowances, as admissible under the Rules, vide Government notification No. MEL/W-3/1280-81 dated 06/08/1977, issued by the Executive Engineer, Electrical Division, Mokokchung. While the deceased husband of the respondent was working as Work-charged Jugali, by order dated 07/07/1987 issued by the Executive Engineer, Junheboto Electrical Division, he was sent for attending training of Lineman at the Lineman Training Centre, Dimapur. Upon successful completion of training, late Hokishe Sema was promoted to the post of Assistant Lineman. While serving in the aforesaid post, he died in harness on 28/08/2005. At the time of his death, the services of Hokishe Sema was not regularised although he had served the department for more than 28 years. Accordingly, by the office order dated 30/11/2005, Hokishe Sema was shown to have been released from service with effect from 29/08/2005 i.e. the next day of his demise. After the premature and sudden death of her husband, the respondent/writ petitioner had to struggle to bring up her seven children with virtually no source of income since she did not receive any pensionary benefit from the department. After several years of the death of he husband, she came to know from a knowledgeable person as regards her legal right in the matter and accordingly, submitted representation dated 17/10/2017 before the concerned authority to grant pensionary benefit to her. When the representation dated 17/10/2017 failed to evoke any favourable response, the widow of the deceased employee, as writ petitioner, had approached this court by filing WP(C) No. 163/2018, seeking a Writ of Mandamus.

4. By the impugned judgment and order dated 06/09/2019, the learned Single Judge had held that having served the department for more than 28 years, the authorities ought to have regularised the services of Hokishe Sema, in which event, his family would have been entitled to family pension. Observing that there was no good ground shown by the authorities so as not to regularise the services of Hokishe Sema, by taking note of the scheme of regularisation introduced by the Government of Nagaland, vide OM No. AR-3/GEN-67/2001(Pt) dated 22/09/2004 as well as a number of earlier decisions rendered by this Court in similar cases, the learned Single Judge had allowed the writ petition by making the following directions :-

“21. The respondents should regularise service of the petitioner’s husband one day prior to date of his demise so that the petitioner and her family are entitled to pensionary benefits. The while exercise should be completed within 4 (four) months from the date of receipt of a copy of this judgment.

22. Writ petition is accordingly disposed of.”

5. Assailing the judgment and order dated 06/09/2019, Mr. Phom, learned Government Advocate, Nagaland, has argued that by issuing a direction to regularise the services of the petitioner’s husband, the learned Single Judge has travelled beyond the pleadings in the writ petition. It is also the submission of Mr. Phom that the learned Single Judge has failed to consider the fact that the writ petition as filed after 14 years since the death of Hokishe Sema and, therefore, the same was hit by laches and negligence.

6. We have carefully gone through the materials available on record and also considered the submissions advanced by the learned Government Advocate, Nagaland

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday