IMPORTANT POINT
Retrospective regularisation of service is not legally tenable unless the employee is part of the regular cadre, adhering to constitutional and statutory rules.

JUDGMENT :

KAKHETO SEMA, J.

1. Heard Mr. I. Imti Longchar, learned counsel for the petitioner and Mr. Moa Imchen, learned Sr. Government Advocate for the State respondents.

2. The limited issued raised in the writ petition is for retrospective regularisation of the service of the petitioner with regular scale of pay.

3. The facts of the case in brief are as under:

(i) That by the order 26/10/1988 issued by the Director of Printing & Stationary, Nagaland, Kohima, the petitioner was temporarily appointed as a sweeper in the office of the Assistant Director (Tech) Government Press Branch, Mokokchung, on contingency paid basis @ Rs. 375/- P.M. w.e.f the date of the petitioner joining duty. The appointment was made against the post sanctioned vide order No. PSTY-26/79(Pt) dated 09/06/1988.

(ii) That the petitioner on 16/02/2000 submitted the representation to the Director of Printing Press, Nagaland, Kohima for regularisation of service and for the scale of pay as paid to the regular sweeper.

(iii) That vide order No. NGP/EST/1/90 dated 29/02/2000, the petitioner was temporarily appointed as the sweeper in the Directorate of Printing & Stationary, Nagaland, Kohima, in the scale of pay of Rs. 600-16-690-20-1090-25-1475/- plus special compensatory (Remote locality) allowances @ 15% of basic pay subject to a minimum of Rs. 125/- and a maximum of Rs. 1200/- P.M and all other allowances as are admissible under the rules from time to time in the State of Nagaland w.e.f 01/03/2000. The appointment was not made against any vacancy. A similar order, of the same date, was passed with only the difference in the scale of pay of Rs. 800-16-890-20-1050-25-1475/- P.M.

(iv) That thereafter, the petitioner again made the representation dated 10/02/2021 to the Director, Printing & Stationary, Nagaland, Kohima, for regularisation of service as well as for the scale of pay.

(v) That subsequently, by the order dated 30/04/200 issued by the Director, Printing & Stationary, Nagaland, Kohima, the contingency service of the petitioner at the fixed pay of Rs. 750/- P.M was extended for a period of 6(six) months w.e.f. 01/04/2001.

(vi) The petitioner filed the W.P. (C) No. 215 of 2018 for regularisation of her service which was disposed by this Court by the judgment & order dated 03/02/2020. The operative portion of the said judgment read as follows:

“13. Upon due consideration of the case in its entirety, I am of the view that the case of the petitioner for regularisation should be considered by the respondents as a special case keeping in mind the peculiar facts and circumstances of the case. Non availability of vacancy in the post of sweeper presently cannot be the ground not to consider her regularisation. It will be incumbent upon the respondents to create a supernumerary post to accommodate the petitioner for her regularisation, if so required. The post so created will be a personal post and shall cease to exist once a regular vacancy occurs and the petitioner adjusted against such regular vacancy.

15. The respondent No. 5, within a period of 3(three) weeks from the date of receipt of a certified copy of this order, shall initiate the process of regularisation in terms of the direction given herein above, if necessary, by obtaining the approval of the administrative department. All the respondents shall co-operate with the process and the entire exercise be completed within a period of 3(three) months from the date of receipt of a certified copy of this order. Pending such consideration, the services of the petitioner should not be varied to her disadvantage in any manner.”

(vii) That pursuant to the order passed by this Court, the Government of Nagaland, Home Department, Printing & Stationary Branch wrote the letter dated 15/06/2022 to the Director, Printing & Stationary, Nagaland, Kohima, conveying the approval of the Cabinet for creation of a supernumerary post for regularising the service of the petitioner.

(viii) Consequent thereto, by the order No. NGP/EST/330