IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1570 of 2009 Suresh Yadav . Versus The State Of Bihar & Ors . ----------- 2. 01.07.2011 Heard learned Counsel for the petitioner and learned Counsel for the State. The petitioner is aggrieved by the order dated 5.12.2008 of the Superintending Engineer, Public Health Engineering Circle, Chapra, terminating his services on the ground that the appointment was not in accordance with law as procedures were not followed including absence of Roster Clearance. It is submitted that the petitioner was initially appointed on daily wage on 24.3.1986 for a period of six months. On 5.1.1987 he was directed to be continued as a daily wager till further orders. The petitioner represented on 24.6.1988 requesting for a regular appointment on sympathetic grounds claiming that he was qualified for the post. On 30.4.1990 the Executive Engineer observing that the petitioner had completed 240 days in service brought him into the work charged establishment. On 9.11.1990 the petitioner, as a working arrangement was again appointed for six months. On 15.6.1993 on the recommendation of a political functionary he was deputed against a vacant post to discharge duties till a regular appointment was made on the post. On 10.11.1993 this appointment made on recommendation was terminated. On 29.6.1994 he was appointed on a vacant post of Typist purely as a working arrangement till a regular appointment was made. The petitioner came to this Court in CWJC No. 8652 of 2007 questioning the show cause notice issued to him for termination of his services on the ground that his appointment had been found to be illegal. By dint of an interim order the petitioner continued in service. 2 Reliance was placed on the case of Secretary, State of Karnataka Vs Uma Devi, (2004) 6 SCC 1. This Court following the orders of a Division Bench and noticing the one time direction in the case of Uma Devi (Supra) for regularization of those who had completed ten years in service, directed consideration of his case. It was urged that since the petitioner was appointed on a vacant post and had completed ten years of service the impugned order is not sustainable in view of the law laid down in the case of Uma Devi (Supra). The respondents in their counter affidavit seek to indict the then Executive Engineer, Shri C. D. Ram, but do not state what action has been taken against him or whether an enquiry was held. The standard by which the respondents profess to act are the standards by which their conduct shall be judged. The Court expects that the respondents, as the Government, shall act honestly, reasonably and fairly. If they have made allegations that someone in their office was in tandem with the petitioner, if the petitioner suffers, those who made hay in the sun shine must see the darker days. The Court directs the respondents to make appropriate enquiry and take such appropriate action permissible in law against those who are alleged to have misused their authority in the episode with regard to the petitioner. The respondents contend that the appointment of the petitioner was contrary to establish procedure with regard to advertisement and merit selection. There are two appointment letters dated 29.6.1994 bearing the same order number 64 but the contents of which are at variance with each other. While the first appoints him till a regular appointment was not made, the second absorbs him in a temporary capacity till regular appointment was not made. 3 The facts of the case reveal that the initial appointment was on daily wage for a limited duration. Even after that period it was extended from time to time for limited duration. Pressure was created from external sources. There is a finding already arrived at in CWJC no. 8652 of 1997 that his selection was not made under an open procedure testing the suitability amongst the rival competing candidates after having publicly made available the vacancy. Strong reliance on CWJC No. 8652/1997 and invoking the law laid down in the case of Uma Devi (Supra) to question the impugned order of termination, perhaps does not help the petitioner. In CWJC No. 8652/1997 the Court had expressed doubt that perhaps Para 53 of the judgment of Uma Devi (Supra) was not applicable to persons on daily wage like the petitioner. However since the matter was being heard before a Single Bench, in deference to certain directions of Division Bench in the case of Ram Tapeshwar Sah Vrs State of Bihar & ors in CWJC No. 7359 of 2002, on a concession made by the State, to consider such matters, following judicial discipline similar orders were passed with regard to the petitioner. That law perhaps no more holds good in view of the subsequent judgment of the Supreme Court reported in (2010)4 SCC (Satya Prakash & Ors. Vs. State of Bihar & Ors.) explaining that the case of Uma Devi (supra) itself excluded daily wagers from one time consideration of those who may have completed ten years of service on a permanent post and the appointment being irregular but not illegal. Daily wagers holding no post were not entitled to regularization as a mode of appointment as they were well aware of the precarious nature of their engagement at the time of employment. 4 In view of the authoritative law laid down by the Supreme Court there is no occasion for the Court to consider the claim of the petitioner for regularization based on his initial status of a daily wager on strength of any observation in CWJC No. 8652 of 1997 and to hold that the impugned order was therefore bad. The Court shall not uphold the contention that the petitioner was appointed on a sanctioned vacant post and therefore he had a right to be considered. The petitioner is unable to demonstrate as a matter of fact that his initial appointment on daily wage was against a sanctioned vacant post to avail the benefit of the law in (2010) 9 SCC 247 ( State of Karnataka Vs. M. L. Kasari & Ors.). On the own showing of the petitioner his induction initially was on daily wage for a limited duration which was extended from time to time. Strong reliance placed on the subsequent extensions and the appointment order dated 29.6.1994 that he was being appointed on a vacant post of Typist is of no avail or benefit to the petitioner. The modus operandi adopted by those who brought him into the office has more than adequately been noticed in AIR 1992 SC 789 ("Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi") The Supreme Court has more than adequately observed how such appointments are initially made in a daily wage or ad hoc capacity for a limited duration. It is then extended in fits and starts to enable a claim and a foundation to be made of continuance in service to build up a claim for absorption or regularization. In fact, it has also been observed in that judgment that the Court can take judicial notice of the fact that this modus operandi is adopted to built up an attempted legal case by exchange of considerations including money. If the petitioner secured the 5 appointment in a manner contrary to law he cannot invoke the law to seek continuance. The Court is aware that it may operate harshly against the petitioner keeping in mind his claim of having continued in service in one capacity or the other, in one manner or other from 1986. But, there can be no two opinions that the petitioner himself was fully aware and conscious of the manner in which he was procuring the appointment and not being selected for an appointment. What has been described by the Supreme Court as the “Spoils system”, can be euphemistically described an industry of appointment and termination, created by the respondents. Sympathy does not allow the Court to grant any relief to the petitioner in absence of any legal foundation. It cannot be lost sight of that there were two players in the field. If the petitioner was willing to make an offer for consideration, there was somebody sitting in the office only eager to oblige him. The petitioner has moved on age and may not be able to secure any employment in the open market. But he has experience behind him. If the post on which the petitioner had been working still remains vacant and has not been filled up by regular selected incumbent or if there be any sanctioned vacant post on which his services can be considered, and the respondents propose to fill up that post in accordance with law and the petitioner applies for the same, reasonableness and fairness require the respondents to consider the petitioner for appropriate age relaxation and due weightage for the past working experience that he had which shall undoubtedly be an asset for the respondents. Learned Counsel for the petitioner lastly places reliance on a Division Bench decision in LPA No. 230/2011 and analogous cases 6 disposed on 29.3.2011. It appears that the Division Bench passed the order on satisfaction of an appointment made on a regular sanctioned vacant post by placing reliance on the case of M.L. Kesari (Supra). The case of M.L. Kesari (supra) does not water down both the decisions of Uma Devi (supra) and Satya Prakash Mishra (supra). The Court finds it difficult to apply the judgment in 2007(4) PLJR 372 also relied upon by the petitioner in view of the authoritative pronouncement of the Supreme Court noticed above. The writ application stands dismissed with the observations. Snkumar/- (Navin Sinha,J.)