IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3 of 2003 1. ASHOK KUMAR, son of Shri Lallu Kamat. Resident of Mohalla-Rolbag (Khagra), Post Office & Police Station-Kishanganj, District- Kishanganj. 2. Md. Badruddin, son of Md. Tasik Hussain, resident of village- Majhaili, Belgachhi, Police Station- Dagarua, District Purnia. 3. Chunchun Singh, son of Shri Saryu Singh, resident of Village- Sahuria, Police Station- Jankinagar, District Purnia. 4. Vijay Kumar Mandal, son of Sri Mandal, posted at Minor Irrigation, Division, Katihar. …Petitioners Versus 1. THE STATE OF BIHAR through the Secretary, Department of Water Resource (Minor Irrigation), Government of Bihar, Patna. 2. The Secretary to the Govt. Department of Water Resource (Minor Irrigation), Government of Bihar, Patna. 3. The Chief Engineer, Minor Irrigation Department, Bhagalpur. 4. The Superintending Engineer, Minor Irrigation Circle, Purnia. 5. The Executive Engineer, Minor Irrigation Division, Katihar. …. Respondents. ----------- For the Petitioner Mr. G. N. Roy, Adv. For the State Mr. Nirmal Kumr, G. P. 4 Mr. Vishwambhar Pd. J.C. to G. P. 4 -------- 11. 09.07.2009. Heard counsel for the petitioners and counsel for the State. In this writ application, four petitioners working as daily wage employee in the Minor Irrigation Division, Katihar had sought following reliefs;_ “(i) For quashing of the Office order vide memo No. 52 dated 24.01.2002 passed by the Executive Engineer, Minor 2 Irrigation Division, Katihar whereby, on the basis of some orders issued by the Government under signature of the Secretary, Minor Irrigation Department, Bihar, Patna vide letter no. 1598 dated 5.4.2000 and order No. 5570 dated 20.11.2001 the services of the petitioners who are daily wage employees of Minor Irrigation Division, Katihar has been terminated/retrenched with effect from 24.2.2002. (ii) For holding that the petitioners can not be retrenched/terminated while other daily wage employees who are much junior to them working at different places in Bihar are allowed to continue as this will be in violation of principle of First Come Last Go. (iii) For holding that the petitioners are entitled to continue in the service and commanding the respondents to allow them to discharge their duties as they used to do prior to issuance of the impugned order as contained in Anneuxre-1 on the respective post with all the benefits of service. (iv) For holding that the respondents state is bound by its own resolutions and circulars issued from time to time whereby it was decided to regularize the service of all such daily wage employees who are on rolls on or before 01.08.1985 and which have been relied upon and in the light of which several directions have been issued by this Hon’ble Court as well as Hon’ble Apex Court to consider the cases of such daily wage employees of Minor Irrigation Department for regularization and absorption in the cadre of State of Bihar.” Mr. Roy, counsel for the petitioner with reference to the aforementioned prayers and the pleadings on record would submit that the four petitioners came to be engaged on different dates in the year 1984-85 and after being allowed to continue on daily 3 wage for a period over 15 to 16 years were removed from service by order dated 24.1.2002 on the ground that there was no work available for them. Mr. Roy would further submit that such termination after long continued period of nearly 16 years service is bad because the provisions under Section 25 F have not been complied and also because the order of termination even otherwise is a camouflage and fraud on the power of the authorities who have found the availability of the work in a division to be the basis for termination of service of the petitioners. He would also submit that persons having served for a lesser period in different division of the State of Bihar have already been regularized and therefore throwing the petitioners out of service is an act of discrimination. Counsel for the State on the other hand with reference to the pleadings made in the counter affidavit would submit that in this case petitioners’ engagement was on daily wage for working in certain temporary schemes and those scheme are no longer in 4 existence on account of their completion or abolition. It has been also submitted that the petitioners cannot claim a right akin to a permanent or regular employee to be absorbed in service. He would also submit that the engagement of the petitioners having made in the unit of Katihar Division, they cannot be allowed to take the plea of continuation or availability of the work in other places or other division of the establishment of Minor Irrigation Department in the State of Bihar. It was finally contended that the impugned order of termination petitioners were given one month clear notice and as such there was no violation of provisions under 25 F which only requires one month notice or salary in lieu thereof. Before this Court would answer the aforementioned question it must be taken into account that on an earlier occasion this Court was made to believe on the submissions of both the parties as recorded in the order dated 14.2.2006 and 12.10.2006 that the result of this writ application 5 would squarely depend on the judgment of the Division Bench in LPA arising out of the order dated 28.6.2006 passed in CWJC No. 16099 of 2001 (Dayanand Sinha & Ors. Vs. the State of Bihar & Ors.). Counsel for the parties in fact have also produced a judgment of Division Bench dated 15th March 2007 wherein the Division Bench without setting aside the order of single judge has directed the State Government to consider the cases of the writ petitioners of those cases by constituting a three men committee on a fixed parameters as given in the operative portion of the judgment. Counsel for the State also does not dispute about the applicability of aforementioned judgment of the Division Bench but then he would submit that there is already earlier division bench judgment noticing similar cases of the Minor Irrigation Department wherein the direction given by the single judge for regularizing the services of daily wage employees of the Minor Irrigation Department therefore was set aside by a judgment dated 29th April 2005 6 in LPA N0. 1136 of 2004 (Sapan Kumar Das & Others vs. the State of Bihar & Ors.). The ratio of the earlier Division Bench judgment dated 29th April 2005 in Sapan Kumar Das (Supra) is absolutely unexceptional and in fact when it has been held therein that regularization of services of employees engaged in temporary schemes in absence of vacant sanctioned post, cannot be made, the same is only a forerunner to a similar view taken by the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka & ors. vs. Uma Devi & Ors. reported in 2006(4)SCC 1. This Court, in fact, in the subsequent Division Bench judgment dated 15.3.2007 in the case of Dayanand Sinha (Supra) had only made an endeavour to find out the ways and means for a fair consideration of the long continuing daily wage employees. This court in the aforementioned order infact had not directed for straightway regularization rather had left the matter to the discretion of the Government by giving following directions:- “(1) the Chief Secretary, Government of Bihar shall constitute a committee of three Secretaries within a 7 period of two months from today to examine the manner and mode and the type of appointment and whether such appointments are in consonance with the Recruitment Rules on regular posts, irregularly made or illegally made or not. (2) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, the procedure for which the Committee will evolve its own modality and modus operandi so as to reach to a conclusion as to the nature of the appointments of the employees covered in this group of petitions and to ascertain whether their appointments are regular, irregular or illegal and whether they are falling within the ambit of the observations made in paragraphs 45 and 53 of the decision in Secretary, State of Karnataka and others Vs. Uma Devi(3)(supra) case judgment. (3) The Committee shall, undoubtedly, take a decision in the light of the law laid down by the Constitution Bench of the Hon’ble Apex Court in Uma Devi (3) (supra) and in particular in the light of the observations which are quoted herein above. (4) It shall, also, be remembered that the exercise of regularization, if required, shall be a one time measure. (5) The exercise by the Committee is directed to be completed within six weeks after the creation thereof and in the event of any necessity it will be open for the concerned party to seek extension of time by taking leave from this Court. (6) The contention that in some of the cases out of the present group in earlier round of litigation finality has been attained and achieved shall, also be examined by the Committee. (7) Until the Committee concludes it process and exercise directed herein above, the status quo in respect of the petitioners obtainable as on today, is directed to be maintained. “ 8 In the opinion of this Court, the aforementioned seven directions would also take in to its ambit, the availability of sanctioned post for regularization. Thus the two division bench orders are not in conflict as none of them envisage automatic regularization of service and they have to now be read in the light of the judgment of Apex Court in Uma Devi’s case (supra). The exercise as directed to be undertaken by the Division Bench in the case of Dayanand (supra) infact ensures that there can be no mini classification of the daily wage employees working in a particular division or a particular circle and thus whenever the Government has to take up the cases of regularization by way of one time exercise, the cases of all daily wage employees in the department has to be considered by evolving a common criteria either on the basis of eligibility conditions of age or working experience or both and cannot be applicable for a particular division by way of denying similar consideration to daily wage employee 9 of another division. This Court is also conscious of the fact that there has not been strict a compliance of the provisions of Section 25 F in the case of the petitioners because it is not the mandate of law that one month notice or salary in lieu thereof would be sufficient compliance rather the requirement of law under Section 25F of the I.D.Act is also that for every completed year of service 15 days salary has to be paid and that too in advance before terminating the service. Admittedly such compliance for 16 years service of the petitioners has not been made and therefore the order of termination becomes vulnerable on this score. This court however also would not quash the impugned order of termination of the petitioner and would only remit the matter back to the three men committee strictly in terms of the judgment of Division Bench dated 15th March 2007 in the case of Dayanand Sinha (Supra). As the petitioners have remained out of service for 10 almost last seven years, this Court would expect that a final decision in the case of the petitioners in terms of the directions given in the case of Dayanand Sinha (Supra) is taken within a period of four months from the date of receipt/production of a copy of this order. If the services of the petitioners are not regularized, they would still have liberty to challenge their termination order by approaching the State Government by seeking reference to the Labour Court/Industrial Tribunal under Section 10 of the Industrial Disputes Act and the period of more than 6 years which has been consumed in disposal of this writ application would not stand as a bar in seeking reliefs by the petitioners. With the aforementioned directions and observations, this writ application stands disposed of. kanchan (Mihir Kumar Jha, J.)