Gauhati High Court
WA/198/2019 on 22 February, 2021
1
GAHC010178392019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Writ Appeal No. 198/2019
Smti Asangla T Aier,
Joint Director,
Directorate of Rural Development, Block-Kohima,
Nagaland.
[Respondent no. 4 in WP(C) 55(K)/2019]
- Writ appellant
-Versus-
1. Smt. Thungdeno Mozhui,
Project Director, DRDA, Wokha,
Nagaland, PIN-797111.
2. Smt. M. Toshimongla Kichu,
Project Director, DRDA, Mokokchung,
Nagaland, PIN-798617.
3. Mr. Mhiesihulie Bizo,
Project Director, DRDA, Dimapur,
Nagaland, PIN-797112.
4. Mr. Temjen Longchar,
Project Director, DRDA, Mon,
Nagaland, PIN-798621.
5. Mr. Tali Yanger,
Project Director, DRDA, Mokokchung,
Nagaland, PIN-798617.
6. Ms. Achila Quinker,
Project Director, DRDA, Tuensang,
Nagaland, PIN-798612.
7. Mr. P. Malai,
Rural Development Officer,
Directorate of Rural Development,
Kohima, Nagaland.
8. Ms. Anti Chang,
Deputy Project Officer, DRDA, Tuensang,
Nagaland, PIN-798617.
[Writ Petitioners in WP(C) 55(K)/2019]
9. The State of Nagaland,
Represented by its Chief Secretary to the
Government of Nagaland, Kohima,
Nagaland, PIN-797001.
10. The Commissioner & Secretary/Secretary,
Department of Personnel & Administrative Reforms,
Government of Nagaland, Kohima,
Nagaland, PIN-797001.
11. The Director,
Directorate of Rural Development,
Government of Nagaland, Kohima,
PIN-797001.
- Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
For the Writ Appellant : Mr. K. N. Choudhury, Senior Advocate.
For the Respondents : Mr. D. K. Mishra, Senior Advocate,
Ms. Ajungla Aier, Senior Government
Advocate, Nagaland.
JUDGMENT & ORDER (ORAL)
22.02.2021
(Sudhanshu Dhulia, CJ)
Heard Mr. K. N. Choudhury, learned senior counsel for the writ appellant
and Mr. D. K. Mishra, learned senior counsel for the private respondents (writ
petitioners)as well as Ms. Ajungla Aier, learned Additional Senior Government
Advocate, Nagaland, appearing for respondent nos. 1 to 8.
2. This Full Bench has been constituted on a reference made before it by a
Division Bench of this Court by an order dated 10.02.2021 while hearing WA
198/2019 (Smt. Asangla T. Aier vs. Smti. Thungdeno Mozhuin & Others). The
matter referred is as follows:
"Whether the definition of „Public Employment‟, referred above
would necessarily mean that a person has worked on a post which
was pensionable or will include contractual/ad-hoc service as well,
which are non-pensionable."
3. Apart from giving our finding on the question referred to us, the Full Bench
has also been called upon to decide WA 198/2019 on its merits. Hence we begin
by giving a short background of the case.
4. In the State of Nagaland retirement from public employment is done under
a statute, known as the Nagaland Retirement From Public Employment Act, 1991
(hereinafter referred to as "the Act"), where the definition of "public employment"
is as under:
"Definition.
2. (1) "Public Employment" mean appointment to any pensionable
State Public Service or posts connection with the affairs of the State
of Nagaland and the Nagaland Legislative Assembly and includes any
appointment under the Government of India, any other State
Government, Central or State Public Sector undertaking and local
authority held by persons prior to their absorption under the Public
Service of the State of Nagaland and the Nagaland Legislative
Assembly which counts for the purpose of pension."
Section 3(1) of the Act, which is the provision for retirement, reads as
under:
"Section 3(1): Notwithstanding anything contained in any rule or
orders for the time being in force, a person in public employment shall hold
office for a term of 35 years from the date of joining public employment or
until he attains the age of 60 years, whichever is earlier."
5. In other words, a person in public employment can hold office for a term of
thirty-five years from the date of joining public employment or until he/she attains
the age of sixty years, whichever is earlier. The said provision, which stipulates a
fixed term of employment and a particular age for the purpose of superannuation,
was challenged before this Court in a number of petitions, where ultimately the
validity of the provision was upheld. The matter then went before the Hon‟ble
Apex Court, where again the validity of such provision was upheld. This was the
decision given in the case of Nagaland Senior Govt. Employees Welfare
Association and Others vs. The State of Nagaland and Others., reported in (2010)
7 SCC 643. In paragraphs 50 of the judgement, the Hon‟ble Apex Court had
noticed the peculiar condition existing in the State of Nagaland which had
prompted the Legislature to bring such a provision. The purpose was to include as
many youth as possible in public employment so that they do not go astray.
Nagaland as we know, had witnessed insurgency activities in the past and it was
believed that opening of as many possible employment avenues, for as many
Naga youths, would be an important step in bringing peace in Nagaland. In other
words, there was a purpose, which was in public interest, behind bringing a fixed
term for "employment". In paragraph 50 of the judgement, the Hon‟ble Apex
Court had noticed the peculiar condition existing in Nagaland and said:
"50. We find ourselves in agreement with the aforesaid view of the
High Court. It cannot be overlooked that the whole idea behind the
impugned provision is to create opportunities for employment and
check unemployment. The impugned provision is aimed to combat
unrest amongst educated unemployed youth and to ensure that they
do not join underground movement. As observed by this Court in
State of Maharashtra v. Chandrabhan Tale (1983) 2 SCC 387, public
employment opportunity is national wealth in which all citizens are
equally entitled to share."
6 The provision of having sixty years or thirty-five years of service (whichever
is earlier) for retirement was held to be justified. In paragraph 36 of the said
judgement the Hon‟ble Apex Court stated as under:
"36. The impugned provision that prescribes retirement from the
public employment at the age of 60 years or completion of 35 years
of service, whichever is earlier, is apparently consistent with the
decision of Yeswant Singh Kothari and the ratio in that case is
squarely applicable to the case in hand. If 30 years‟ period of active
service was not held a small period for gainful employment, or an
arbitrary exercise to withhold the right to hold an office beyond 30
years, having not attained 58 years of age, a fortiori, retiring a
person from public service on completion of 35 years of service
without attaining the age of 60 years may not be held to be
unjustified or impermissible."
The conclusion given by the Hon‟ble Apex Court in the aforesaid case was
as under:
"61. In the light of the foregoing considerations, we hold that a
provision such as that at issue which prescribes retiring the persons
from public employment in the State of Nagaland on completion of
35 years‟ service from the date of joining or until attaining the age
of 60 years, whichever is earlier, does not suffer from the vice of
arbitrariness or irrationality and is not violative or Articles 14 and 16
of the Constitution. The appeal has no merit and is dismissed with
no order as to costs."
7. Subsequent to the aforesaid decision, the issue again came up before this
Court in a number of writ petitions. This was when the contractual employment as
well as ad hoc employment were included in the period of thirty-five years of
public employment by the Government. The matter was initially before a learned
Single Judge of this Court where the argument was that thirty-five years of public
employment would mean regular and pensionable employment and the period of
service rendered as a contractual or ad hoc employee will not be counted in thirty-
five years of service. The writ petition was dismissed by the learned Single Judge.
The matter then went in appeal. While dismissing the writ appeal by order dated
21.07.2012, the Division Bench referred to the earlier judgement of the Hon‟ble
Apex Court {(2010) 7 SCC, 643}, wherein the special circumstances and
conditions of Nagaland were noticed of and the Court held that it was a justifiable
reason for imposing either thirty-five years of service or sixty years, whichever is
earlier, as the date of superannuation. It was also held that that Government is
justified in including contractual and ad hoc service while calculating the
maximum period of thirty-five years. The Division Bench ultimately upheld the
view of the learned Single Judge and dismissed the appeal as under:
"22. We are in agreement with the above view expressed by the
learned Single Judge. The decision to include contract/ad hoc service
while computing the thirty-five years of superannuation service is
consequential to the policy decision of the State to retire its
employees on completion of thirty-five years of service or on
attaining sixty years of age, whichever is earlier, which has been
upheld by the Hon‟ble Supreme Court. The said policy decision has
been taken to achieve the legitimate objection of providing limited
public employment opportunities to the larger numbers of educated
unemployed youth of the State so as to ensure that they do not go
astray and joint militant groups. It is in the above context that the
present decision of the State has also to be judged. Viewed from the
above angle, the impugned decision of the State is a reasonable one
and in the larger public interest. As the learned Single Judge has
rightly held that though an ad hoc appointee may not be entitled to
all the benefits of regular employment, yet he continues to be in
Government employment. In view of the definition of public
employment as provided in the 1991 Act, the decision to include
contract/ad hoc service while computing thirty-five years of
superannuation service cannot be said to be arbitrary or
unreasonable. Thus, the decisions relied upon on behalf of the
appellants do not debar counting of ad hoc service for pension or for
superannuation."
8. To sum up, the fixation of age of retirement or a fixed term of
employment, are both permissible and it comes within the domain of policy
matters of the State. This policy was earlier questioned before this court and even
before the Hon‟ble Apex Court, where it withstood the judicial scrutiny.
9. With this background, let us now appreciate the facts of the present case,
as once again we need to interpret "public employment" as defined under the Act.
In the present case, the writ petitioners had challenged the continuation in service
of the respondent no. 4 (writ appellant before us) as Joint Director in the Rural
Development Department, Government of Nagaland. The case of the writ
petitioners was that the petitioner (writ appellant before us) was initially
appointed in the year 1984 as an Assistant Project Officer in the State Rural
Development Agency, in ad hoc capacity, for a period of four months vide order
dated 20.07.1984. Thereafter, the period of her service was extended from time
to time and the last order of extension of the ad hoc service of the writ appellant
is of 06.01.1986 by which her ad hoc appointment was to continue till 28.02.1986,
or till regular appointment was made through Selection Board, whichever was
earlier. Meanwhile, by an order dated 13.02.1986 the respondent no. 4 (writ
appellant before us) was appointed as an Assistant Project Officer on regular basis
and she joined on 01.03.1986. The case of the writ petitioners before the learned
Single Judge was that the thirty-five years of service of respondent no. 4 (writ
appellant before us) will come to an end on 21.07.2019 and the department had
wrongly calculated the period of the service of the respondent no. 4 (writ
appellant before this Court) and had given her an extension till 20.02.2021 when
she would attain the age of sixty years.
10. To bring the facts in order, what actually happened was that on
20.02.2019, i.e. few months prior to her retirement, the appellant filed a
representation before the Director, Rural Development, Nagaland, for rectifying
her date of entry in Government service. In the Seniority List the date of entry in
service of the appellant was recorded as 21.07.1984, which she wanted to change
to 01.03.1986. The Rural Development Department, vide its letter dated
11.03.2019 changed the date from 21.07.1984 to 01.03.1986. Now the date of
entry in service being advanced by almost two years, it would mean two more (or
near about) additional years in her service. Inter alia, this was the order which
was challenged by the petitioners before the learned Single Judge. The learned
Single Judge allowed the writ petition by holding that thirty-five years of service of
the respondent no. 4 (writ appellant before this Court) would come to an end on
31.07.2019 and thereafter she cannot continue in service. Aggrieved by the said
order of the learned Single Judge, the respondent no. 4 has filed this appeal
before us.
11. The first ground of the writ appellant before this Court is about locus standi
of the writ petitioners. According to the writ appellant, the writ petitioners were
complete strangers to the cause they had espoused before the learned Single
Judge. It was not a Public Interest Litigation and the writ petition ought to have
been dismissed on the ground of maintainability itself. We are, however, not
inclined to accept this argument of the writ appellant for more reasons than one.
First and foremost, it is too important a matter to be discarded on a technicality of
locus standi. The issue before this Court is important. There must not be any
confusion in any mind as to what is the real meaning of "public employment" in
Nagaland. We have been asked to clear the ambiguities here. Considering the
importance of the matter, a larger Bench has been constituted to bring clarity on
an important question of law, as it has a wide implication in service matter in the
State of Nagaland.
12. In any case, we do not think that the petitioners were complete strangers
as is being alleged. The petitioners are in the employment of Rural Development
Department and, according to the writ petitioners they were being adversely
affected by continuation of the respondent no. 4/writ appellant on the post of
Joint Director as this affects their chances of promotion. Although this fact is
objected by the writ appellant on grounds that the writ petitioners were not
appointed on regular capacity and they were not affected by the continuance in
service of the writ appellant, yet the fact remains that they are in the same
service. Even if we take the objections of the learned senior Advocate for the
appellant Mr. Choudhury to be correct, yet the petitioners cannot be called
strangers, or a busy body or meddlesome interloper, as they are being made out
by the writ appellant. They are members of the same service to which the writ
appellant belongs. Even assuming for the sake of argument that they are not
persons aggrieved, and therefore, not entitled to move for a writ of certiorari, yet
as we have seen the petitioners were also impliedly praying for a writ of quo
warranto as they had questioned the continuance of the writ appellant on a public
office. A writ of quo warranto is maintainable even at the hands of a person who
may, strictly speaking, not be a person aggrieved. We therefore reject the
objections of the writ appellant on the locus of the petitioners.
13. The more important question to be decided here is as to whether thirty-five
years in public employment would constitute only pensionable service, or it will
include non-pensionable service, such as contractual, ad hoc, etc. The straight
answer to this question is that public employment would include contractual or ad
hoc period of service provided such an employee has been regularised in service,
and then the entire period of service is to be calculated for pensionary benefits.
We say this because the essential element for "public employment" under the Act
is that it should yield pensionary benefits. It is not the manner of appointment, be
it casual, ad hoc or regular that is important; which is important is that public
employment must have "pensionary benefits".
14. Once we read the definition of "public employment", which we have
referred above, the essential purpose of the definition is "pension". Period of
service rendered in a Government establishment becomes public employment,
provided this period counts "for the purposes of pension". What is important in
the definition of "public employment" is that in whatever capacity one has
undergone public employment, subject to a limit of thirty-five years, the period
must be counted as pensionable service. The entire emphasis here is on the word
"pension".
15. A learned Single Judge of this Court (who is one of the Members of this Full
Court, N. Kotiswar Singh, J) had already given a judgement on this aspect in
Benjongtoshi and Ors. vs. State of Nagaland and Ors., reported in 2019 (2) GLT
1115, wherein it has been held that the essential element in public employment is
that one is entitled for pensionary benefits for the entire thirty-five years. In
paragraph 48 of the judgement, it was stated as under:
"48. Perusal of the aforesaid definition clause of the words "Public
Employment" clearly indicates that such appointment would be a
public appointment if the appointment is made to any pensionable
State Public Service or post connected with affairs of the State of
Nagaland etc., and such service should count for the purpose of
pension.
In other words, the employment must not be only be against
a pensionable State Public Service or post connected with the affairs
of the State of Nagaland, but also, such service must count for the
purpose of pension.
Accordingly, on conjoint reading of Section 3(1) and definition
Clause under Section 2(1) of the Act, the following positions emerge.
(i) A person in public employment can hold office for a
term of 35 years from the date of his joining public
employment or till he attains the age of 60 years,
whichever is earlier.
(ii) The appointment of such person must be in
pensionable State Public Service, or
(iii) A post connected with the affairs of State of Nagaland
and such other authorities mentioned in the Act.
(iv) Such service rendered by the employee must count for
the purpose of pension.
As a corollary, if the appointment is not against a
pensionable State Public service or to a post not connected
with the state of affairs of Nagaland and if it does not count
for the purpose of pension, the said service cannot be
counted to compute 35 years of service as mentioned under
Section 3(1) of the Act.
Therefore, in the present case, we have to examine as
to whether the service rendered by the petitioners after being
appointed vide order dated 11.02.1983 till they were
appointed to other posts on 30.08.1984 fulfils all the
aforesaid conditions so as to be counted towards computing
the aforesaid 35 years of service within the meaning of the
Act."
16. The Government of Nagaland has also accepted this position as we have
also been apprised of the subsequent Office Memorandum dated 04.05.2017,
which has been brought by the State of Nagaland, where the State of Nagaland
has also accepted this position that the entire length of service one has put in as
public employment will be counted for pensionary benefit. Paragraph 6 of the said
Office Memorandum reads as under:
"6. Now, therefore, it has been decided that the period of service
rendered on ad hoc/contract/work-charged/substitute basis which is
followed by regularization or regular appointment without break or
any gap in service except resignation, shall be treated as public
employment and included in computation of length of service for the
purpose of pension under the Nagaland Retirement from Public
Employment (2nd Amendment) Act, 2009."
In other words now the accepted position is that even contractual/ad hoc
employment, which is followed by a regular appointment is to be counted for the
purposes of pension, provided such employment is followed by regularisation.
17. In other words, the entire period of service will be counted for pensionary
benefit irrespective of the fact whether it is regular, contractual, ad hoc or
otherwise. In other words, we follow the law laid down by the Division Bench of
this Court in WA 177/2012 (Neise Mich vs. The State of Nagaland and Ors.) and
hold that "public employment" would include contractual/ad hoc employment,
provided it is continuous, and the entire period (not beyond a period of thirty-five
years) shall be counted for pensionary benefits.
18. The term "public employment" has to be seen in the context of section 3
(1) of the Act which states that "a person in public employments shall hold office
for a term of 35 years from the date of joining public employment or until he
attains he attains the age of 60 years, whichever is earlier". There is no confusion
as to the attainment of the age of sixty years as this is determined by the
recorded date of birth of the incumbent. The grey area lies in the calculation of
the period of thirty-five years, which is whether the period of service rendered by
an employee on contractual or ad hoc basis can also be calculated as "public
employment". As we have seen, there is a purpose behind bringing thirty-five
years of maximum period in public employment, when we see it in the context of
Nagaland. The idea was that vacancies should keep coming so that more and
more youth may join public service, so that their energy is channelized in a
positive direction and they are not drawn towards militancy. Acknowledging this
aspect, the Division Benches of this court had earlier upheld the thirty-five years
restriction. This also has the approval of the Hon‟ble Apex Court1, which has been
referred above.
19. In view of the above and in answer to the formulated question before us,
we are of the opinion that when thirty-five years of service is to be calculated in
determining the date of superannuation of an employee in Nagaland service, his
period of employment, be it contractual or ad hoc shall be calculated, and
therefore the same period will also be calculated for giving pensionary benefit to
the employee when such service is followed by regularisation.
20. Having made the aforesaid determination, we have now to decide the
dispute specific to the present case as well. In the present case, and in view of
our determination as above, the writ appellant, Ms. Asangla T Aier, having joined
public employment on 20.07.1984, would continue for a period of thirty-five
years, till 19.07.2019, or when she attains the age of sixty years, whichever is
earlier. We have been informed that pursuant to the order of the learned Single
Judge, the writ appellant is presently not continuing on the post. At this point
learned senior counsel for the appellant Mr. Choudhury has made a final
submission that, in the present case, what has not been noticed by the learned
Single Judge was the break in the service of the writ appellant inasmuch as she
had tendered her resignation before joining her regular employment on
01.03.1986 and as there is a break in service, it is not a continuous service and,
hence, the period of ad hoc appointment cannot be included for counting public
employment. Learned senior counsel would argue that one of the essential
conditions before joining as a public service was that one had to resign from his
earlier employment. According to the writ appellant, she had resigned on
14.02.1986. There is a copy of the said resignation letter on record, which is
addressed to the Project Director, State Rural Development Agency, Nagaland,
which reads as under:
"With reference to the subject cited above and in reference to the
interview result declared on 13th Feb/86, I have the honour to
submit herewith my resignation letter from my ad hoc service with
(2020) 7 SCC 643 (Nagaland Senior Govt. Employees Welfare Association and Others vs. The State of
Nagaland and Others.)
immediate effect in order to enable me to join in my regular post
w.e.f. 01.03.86 (FN) as per the order No. SRDA-1/1/86 Dt 13th
Feb/86."
21. Learned counsel for the writ petitioners Mr. Mishra would, however, argue
that this is not a resignation, but a ruse, a trick deployed with the sole purpose to
defeat a provision of law. The writ appellant in a litigation instituted by her earlier
for the purpose of gaining seniority and some other benefits in service had placed
her case before this Court that she was in continuous service since 1984. She had
asserted on an affidavit filed in an earlier writ petition before this Court that she
was continuing in service since 1984 uninterruptedly. This was when she was
claiming seniority based on the principle of continuous officiation 2. Now, in the
present case, she cannot be allowed to take a contrary position.
22. Without going into the factual dispute and the conduct of the writ
appellant, the fact is that a resignation only becomes a resignation once it is
accepted by the accepting authority. In spite of our repeated queries, there is no
document on record to show or even suggest that this resignation letter was ever
accepted. Therefore, it is not a resignation in the eyes of law and, hence, for all
practical purposes the writ appellant will be treated to be in continuous service
right from the date of her initial joining in the year 1984 and once thirty-five years
of her public employment are over or she attains sixty years of age, whichever is
earlier, her employment will be over. This is as per the statutory provision and as
per the law laid down by a Division Bench of this Court, which we have already
referred above.
23. In view of the above finding, we uphold the finding of the learned Single
Judge and dismiss the appeal.
JUDGE JUDGE CHIEF JUSTICE
Comparing Assistant
Reference here is to WP(C) No. 49(K)/2000 (Smti Asangla T Aier vs. State of Nagaland & Others.)
RK
