IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1897 of 2007 DEO KARAN RAI Son of Sri Nago Rai, Resident of Village-Samastipur, P.S.& P.O. Pusha, District-Samastipur, General Secretary Bihar Rajya IVth Class employees, Association, Bihar Patna. Versus 1.THE STATE OF BIHAR 2.The Chief Secretary, Bihar, Patna. 3.The Secretary Bhawan Nirman Bibhag, Bihar, Patna. 4.The Chief Engineer-Dakshani Bhawan Nirman Bibhag, Bihar Patna. ----------- 3 7/7/2009 Heard Mr. Arbind Kumar Maharaj, counsel for the petitioner as also counsel for the State. Prayer in this writ application reads as follows:- “That this application is being for directing the respondents to consider the case of the petitioner including the 50 employees who were initially joined on the post of daily wages employees (or mali) upon different dates from 17.4.79 to 8.1.83 by the respondents the petitioner including 50 employees have not been regularized. As it is stated 40 employees came in general and 10 came in reserved class they are posted on the vacant post, that vacancies issued by the respondents and it is further relevant to mention that the 50 employees were appointed on the post of daily wages employees against sanctioned post and the above mentioned employees had joined in different dates by the order of respondents in Sachivalaya Udyan. It is relevant to mention here that the above mentioned 50 employees are working continuously on the post of daily wages employees since 27 years and they are completed above 240 days. It is relevant to mention here that the above mentioned employees have not been regularized from daily wages and unfortunately in place of regularization they have been made work charge. It is further alleged that the above mentioned respondents violated the fundamental right with the above mentioned employees including petitioner.” 2 While this Court would not encourage much less appreciate the efforts of the petitioner to file this writ application for regularization of services of 50 similarly situated persons in the representative capacity as such relief is individual and personal cause of action, assuming that can this Court look into such grievance, even then the problem of the petitioner will be that services of 50 malis allegedly engaged on daily wages between 1979 to 1983 and later on brought in the workcharge fold with a prescribed pay scale cannot be straight way brought into regular establishment unless there be vacant sanctioned posts. The document though un-numbered and un-dated as contained in Annexure-10, the memorandum, namely, iz”kklh inoxZ lfefr ds fy, lays[k] would go to show that a proposal for creation of 50 posts of Mali in the regular establishment was under consideration of the State Government. However counsel for the petitioner and in fact petitioner also who is present in Court are not in a position to say as to what finally happened on this proposal and whether the same saw light of the day in form of any concrete government decision. It is well settled that in absence of sanctioned posts a writ of mandamus can not be issued by this Court for regularization of service. Reference in this connection may be made to the judgment of Constitution bench of the Apex Court in the case of State of Karnataka Vs. Uma devi and others reported in 2006(4) SCC 1. 3 It is also not clear from the pleadings in this writ application as to what prejudice is caused to petitioner and similarly situated other Mali due to non regularization of service, in as much as all of them have already been brought in the regular pay scale in the work charge establishment and are also getting annual increment and other benefits alike a regular employee. If however the petitioner is pressing for a higher scale of pay on account of lesser scale of pay in workcharge establishment and the State Government on account of financial constraint involving at least an annual expenditure of Rs. 34,77,150/- is averse for such regularization, this Court cannot issue a direction for creation of 50 posts of Mali and that too with retrospective effect as that would amount to interfering in the matter of policy. Infact it is for the State Government to decide as to which of the post in the government shall be tenure post or permanent post under plan head or non plan head. All that can be said by this Court in this regard is that it does not augur well for an efficient administration to continue with an arrangement of posts in Work charge establishment for more than 20 years when work on such posts of Mali in the Building department is perennial in nature. A welfare State infact is under obligation to have a rational policy with regard to service conditions of its employees. One thing which however really shocks the conscience of this Court is that if these persons, namely, 50 malis have been allowed to continue in services, for a period of 26 to 30 years in 4 workcharge establishment the State Government cannot remain a mute spectator and must take a final decision in this regard, one way or other. In the event the Government has any justified reason and/or constraint in bringing the petitioner and similarly situated other person in regular establishment and they are to continue only under work charge establishment till their superannuation, a reasoned order to this effect must be passed and communicated to the petitioner apprising petitioner and similarly situated persons of their status, right and privileges as a government servants. Considering all these aspects, while this Court would not express any final opinion on the merits of the case of the petitioner, it would definitely direct the respondent no.3 to take a final decision on the fate and future of the petitioner as well as similarly situated 50 malis within a period of four months from the date of receipt/production of a copy of this order. The Secretary of the Department, if necessary, after consulting his counter part, i.e, the Finance Secretary, would take a final decision with regard to regularization of services of the petitioner. This Court in order to expedite the matter would direct the petitioner and similarly situated persons to file a self contained individual representation enclosing copy of this order and/or any other documentary evidence for the relief of regularization of service and the period of four months shall be reckoned from the date of receipt of a copy of this order by the Respondent no. 3. In the event the Respondent would take a decision to regularize the service of the petitioner 5 and similarly situated persons by creating sufficient number of permanent posts of Mali, the consequential financial benefit if any will be given to them only with prospective effect and no arrear of salary will be payable to the petitioner or the counterpart 50 Mali whose cases have been expoused by the petitioner in representative capacity in this writ application With the aforementioned observations/directions this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)