IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.6129 of 2009 Nand Kumar Choubey Versus The State Of Bihar & Ors ---------------------------------- 2. 01.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner seeks the relief for regularization of his services in the Transport Department. During pendency of the writ application he has been terminated on 30.9.2009 and which has been challenged by him through I.A. No. 6312 of 2009.After hearing Counsel for the parties the I.A. application is allowed. Learned Counsel for the petitioner submits that the initial appointment was on daily wage on 6.1.1982. He has continued in service in that capacity till the impugned order of termination. Earlier CWJC No. 6864 of 1999 was filed seeking similar relief of regularisation. The respondents had agreed to consider his case. A recommendation was made on 17.1.2005 but in vain. CWJC No. 1254 of 2006 was then filed for similar relief which was referred to the Three Men Committee. The Committee has rejected the claim for regularization holding that he did not fulfill the requirements as laid down in the case of Secretary, State of Karnataka Vs. Uma Devi , (2006) 4 SCC 1. Supporting the claim for regularisation strong reliance was placed on a departmental meeting minutes dated 9.4.1996 to submit that out of the persons mentioned in para 2 of the same the petitioner alone has been left out from consideration. It is next submitted that in the counter affidavit in CWJC No. 6864 of 1999 the respondents had acknowledged at least twenty vacancies in the general category. Therefore, vacant sanctioned posts were available for regularization. In AIR 1967 SC 1071 (State of 2 Mysore Vs S. Narayanappa) directyions have been given at para 6 for regularisation considering the long continuance .In the case of Uma Devi (Supra) directions for regularisation as a one time measure for those who have been working for ten years or more has been made. The petitioner otherwise meets all eligibility for appointment. The issue of daily wage appointments and claims for regularisation in furtherance of the same has been vexing the Court’s time over again. Earlier the view was that induction into government service contrary to law was not permissible. There have been variations in this judicial thinking but this has veered around holding what the original view was. It is not in controversy that the petitioner was appointed on daily wage. It is not his case that he came to be appointed on daily wage against a sanctioned vacant post. The Court is not satisfied that the petitioner has been able to demonstrate to the satisfaction of the Court that his appointment on daily wage in 1982 was against a sanctioned vacant post. His claims to that effect has to be corroborated by demonstrating a semblance of the process followed fulfilling the requirements of Article 14 of the Constitution when in a competitive merit selection he may have acquired that status. That daily wagers hold no post and are not entitled to regularisation is not a judicial view which came to be pronounced for the first time in the case of Uma Devi (Supra). As far back as (1997) 4 SCC 88 (State of U.P. v. Ajay Kumar ) the Supreme Court held at para 3 as follows:- “3.The admitted position is that the respondent came to be appointed on daily-wage basis on 14-2-1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he did not call for applications. The Division Bench reversed the decision of the 3 learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal.” Subsequently in (2003) 6 SCC 123 (State of Haryana v. Tilak Raj) with regard to the claims of a daily wager it was held that he holds no post and therefore had no claim for regularisation. “11. A scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts.” Similar view has been taken in (2005) 1 SCC 639 (Mahendra L. Jain v. Indore Development Authority at para 19 as follows:- “19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation.” The contention of the petitioner that he has been working since 1982 till the termination in 2009 and keeping in mind long years of service his removal is not justified, does not appeal to the Court. If the induction into the service was contrary to law and he held no post, question of regularisation does not arise. Regularisation pre supposes an appointment made on a post but in which certain procedural infirmities had taken place. 4 In (2005) 12 SCC 495 (Manjit Kaur v. Salvation Army Mac Robert Hospital) even twenty years service was held not sufficient to grant relief based on sympathy. Again in (2006) 7 SCC 684 (Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad), fourteen years of service was also not entertained for granting the relief. In the case of S. Narayanapppa (Supra) the appointment was on officiating and temporary in nature. It was noticed that he was working in an officiating capacity. The consideration was in the background of the Mysore Civil Services Rules when directions came to be given to consider for regularisation. The case is distinguishable on its own facts. In the case of Uma Devi (Supra), at paragraph 43 it has been explained that daily wagers do not come within its ambit in the following words:- “43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the 5 recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.” The Court has therefore no hesitation in holding that the directions given in paragraph 53 of the same as a one time measure to consider those who had worked for ten years as irregular appointees, does not apply to daily wagers who stand excluded by the former paragraph. If there was any misconception on this aspect it stands clarified in (2010) 4 SCC 179 (Satya Prakash Mishra Vs State of Bihar) that daily wagers do not come within the ambit of Uma Devi (Supra) for one time regularisation at paragraph 12 as follows:- “12. …..The Constitution Bench has, therefore, clearly drawn a distinction between temporary employees, daily wagers and those who were appointed irregularly in the sense that there was non-compliance with some procedure in the selection process which did not go to the root of the selection process. The appellants in our view will not fall in the category of the employees mentioned in para 53 read with paras 15 and 16 of the Constitution Bench judgment.” The Court has already held that the petitioner has not been able to demonstrate that he came to be appointed on daily wage against a sanctioned post to avail the benefit subsequently directed in (2010) 9 SCC 247 (State of Karnataka Vs M.L.Kesari). The Court is conscious of the fact 6 that the hardship that will be entailed upon the petitioner. But sympathy cannot supplant the law. In AIR 1992 SUPREME COURT 789 "Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi" it has been observed:- “15. ….The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money…...” The fact that the petitioner may have been at the receiving end has also been noticed in (2009) 5 SCC 65 (State of Bihar v. Upendra Narayan Singh) observing at paragraph 44 as follows:- “44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.” The Court then went on to observe how notwithstanding judicial orders the illegal appointment market continues to flourish in the following words at paragraph 51 as follows:- “51. Notwithstanding the critical observations made in Delhi Development Horticulture Employees' Union v. Delhi Admn.10 and State of U.P. v. U.P. State Law Officers Assn.11, illegal employment market continued to grow in the country and those entrusted with the power of making appointment and those who could pull strings in the corridors of power manipulated the system to ensure that their favourites get employment in complete and contemptuous disregard of the equality clause enshrined in Article 16 of the Constitution and Section 4 of the 1959 Act. However, the courts gradually realised that unwarranted sympathy shown to the progenies of spoils system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularisation of service has been denied to illegal appointees/back- door entrants in large number of cases.” The Three Men Committee has duly considered the case of the petitioner and found that he was appointed on Muster Roll and was 7 therefore not entitled to be considered for regularisation under the guidelines laid down in the case of Uma Devi (Supra). The Court finds no infirmity in the order calling for interference. Before parting with the case, the Court does consider it necessary to observe and direct that if the daily wage appointment is terminated it cannot be replaced by another daily wage appointment. In that event the erstwhile daily wage appointee may have a right to continue in service till regular appointment is not made. The respondents are therefore restrained from making any daily wage appointment against a sanctioned vacant post which necessarily has to be filled up by an open advertisement and competitive merit selection only. It cannot be lost sight of that when the petitioner came to be appointed on daily wage there were two players in the game. The functionary who appointed him misused his powers. To that extent sympathy with the petitioner may not suffice. But the appointing authority had the benefit of making the appointment. A welfare State cannot abandon the petitioner by merely contending that it was an illegal appointment. The fact remains that he has worked since 1982 till termination in 2009. Without going into the questions of his advanced age etc, his utility for the government in view of his past experience cannot be lost sight of. The Court therefore expects the respondents to act reasonably and prudently as a matter of policy by considering due age relaxation and weightage for the post work experience of the petitioner if he applies in response to any fresh advertisement. The writ application is dismissed with the aforesaid observations. Snkumar/- (Navin Sinha,J.) 8