WP(C) 204(K)/2016. Gauhati High Court
| Case Number | WP(C) 204(K)/2016 |
| Judgement Date | April 20, 2019 |
| Court | Gauhati High Court |
WP(C) No. 204(K) of 2016
I N THE GAUHATI HI GH COURT
(THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
KOHI MA BENCH
W. P. (C) No. 204 (K) of 2016
Er. Swedevil Zao,
Chief Engineer (under retirement),
Police Engineering Project (PEP),
Nagaland, Kohima
………….Petitioner
-Versus-
-
The State of Nagaland,
represented by the Chief Secretary to the Government of Nagaland, Kohima, Nagaland. Pin-797001.
-
The Home Commissioner,
Nagaland, Kohima. Pin-797001
-
The Commissioner & Secretary to the Government of Nagaland,
Department of Work & Housing,
Nagaland, Kohima. Pin-797001
-
The Engineer-in-Chief (NPWD),
Nagaland, Kohima.
-
Er. Tepul Hopovi,
Chief Engineer, PWD (Housing) Nagaland, Kohima
…………. Respondents
- BEFORE-
THE HON’BLE MR.JUSTI CE S. SERTO
For t he Pet it ioner : Mr. C. T Jamir, Sr. Adv.
: Mr. Wat i Jamir,
Mr. N. Longkumer,
Mr. Imkong Jamir,
Ms. Amenla Anichar,
Mr. Pokyim Yaden,
Mr. Yalemsen, Advs.
For t he St at e respondent s : Mr. K. Sema, Sr. Addl. Adv. General
Ms. Livika, Govt . Adv.
For t he respondent No. 5 : Mr. A. Zhimomi,
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WP(C) No. 204(K) of 2016
Ms. Est her,
Ms. Vinit oli, Advs.
Dat e of hearing : 05-04-2017
Dat e of Judgment : 20-04-2017
JUDGMENT & ORDER ( CAV)
-
This is a Writ Petition under Article 226 of the Constitution of I ndia, praying for issuance of a writ in the nature of Mandamus or any other appropriate writ of the like nature and/ or direction or order quashing and setting aside the impugned order No. WH/ EST/ 2/ 2001 (Vol. I I)/ 689, dated 27.10.2016, and the impugned Notification No. WH/ EST/ 73/ 05/ (Pt)/ 690, dated 28.10.2016 issued by the Works & Housing Department, Government of Nagaland.
-
Heard Mr. C.T. Jamir, learned senior counsel who appeared for the petitioner
assisted by Mr. N. Longkumer, learned counsel, and also heard Mr. K. Sema, Sr. Addl. A.G., assisted by Ms. Livika, learned Government Advocate, on behalf of the State respondents. I have also heard Mr. A. Zhimomi, learned counsel who appeared on behalf of the respondent No. 5.
-
The case of the petitioner as submitted by Mr. C.T. Jamir, learned senior counsel
is as follows;
That he (the petitioner) was initially appointed as Junior Engineer (which shall hereafter be referred to as J.E. in short) on ad-hoc basis, in Public Works Department, Government of Nagaland, on 30.10.1981, but after serving for about five months, he resigned from it by submitting a resignation letter to the Chief Engineer on 19.04.1982. However, on the very next day he was appointed to the post of Sub-divisional Officer-Class I I Gazetted, in the same department, on ad-hoc basis, initially for a period of 4 months, vide notification No. PW/ EST/ 301/ 69 (Vol. I V), dated 20.04.1982, issued by the department and thereafter, in the same year, he was regularised in that post on the recommendation of the Nagaland Public Service Commission (which shall hereafter be referred to as NPSC in short). After having rendered dedicated service of more than 32 years in the department, in various capacities, he was promoted to the rank of Chief Engineer on 17.02.2014, and posted as Chief Engineer, Police Engineering Project (in short PEP) and continued in the same post till he was illegally released from service
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WP(C) No. 204(K) of 2016
w.e.f. 31.10.2016, by the impugned order No. WH/ EST/ 2/ 2001 (Vol. I I )/ 689, dated
27.10.2016, issued by the Works and Housing Department, Government of Nagaland on the ground that he has completed 35 years length of service. This order of the Government, releasing him (the petitioner) from service is illegal as his date of retirement on completion of 35 years length of service would be only on 30.04.2017. The impugned order as filed by the petitioner is reproduced here below;-
“ GOVERNMENT OF NAGALAND WORKS AND HOUSING DEPARTMENT (ESTABLISHMENT BRANCH)
No. WH/EST/2/2001/(Vol-II) /689 Dt. Kohima, the 27th October, 2016.
ORDER
In terms of section 3(1) and section 3(2) of the Nagaland Retirement from Public Employment (Second Amendment Act, 2009), which comes into effect from 31st October, 2009 in terms of Government of Nagaland, P &AR Department’s Notification No. AR-3/Gen-174/2007(Pt) dated 7th August, 2009, Er. Swedevil Zao Chief Engineer (PEP) Kohima is hereby released from Government service with effect from 31-10-2016 (AN) on completion of 35 years length of service.
Sd/- I. HIMATO ZHIMOMI Commissioner & Secretary to the Govt. of Nagaland.”
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I n support of the claim of the petitioner the Sr. learned counsel representing him
submitted as follows;
That in the year 1991, the Government of Nagaland, enacted an Act called the Nagaland Retirement from Public Employment Act, 1991 (which shall hereafter be referred to as Principal Act of 1991). Under Section 3(1) of the Act it was provided that a person in public employment shall hold office for a term of 33 years from the date of his joining public employment or until he attains the age of 57 years, whichever is earlier. Thereafter, the Principal Act of 1991, was amended by the Nagaland Retirement from Public Employment (Amendment) Act, 2007, which was notified vide Government Notification No. LAW-ACT/ 23/ 90, dated 22.09.2008. By that Amendment Act the provision of Section 3(1) of the Principal Act of 1991, was amended and the length of service which was given as 33 years was substituted with 32 years and the age of retirement which was given as 57 years was substituted with 60 years.
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WP(C) No. 204(K) of 2016
After a year, the Principal Act of 1991, was amended once again by the Second Amendment Act, 2009, by which the length of service for retirement of a government servant which was given as 32 years was substituted with 35 years but the age of retirement i.e. 60 years was retained. The contents of the relevant portion of the section as it stands today is given here below;- “ Retirement from public employment.
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(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 thirty-five years from the date of joining public employment or until he
attains the age of sixty years, whichever is earlier.”
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That for invoking the...
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