Pensionary benefits cannot be denied to long-serving temporary employees based on arbitrary distinctions in pay structure, especially when long-term services have been fully utilized by the state, as such discrimination violates constitutional standards of reasonableness.

ORDER :

SHAMIMA JAHAN, J.

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.

FACTS

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 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 non- payment 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.

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:-

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

(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.

(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."

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

“(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 fu