IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5447 of 2003 BANSH NARAYAN UPADHYAY . Versus THE STATE OF BIHAR & ORS . For the Petitioner : Sri Y.V. Giri, Sr. Adv. Mr. Sanjay Kr. Giri, Adv. For the State : Mr. R.K. Choubey- G.P.7, Mrs. Minu Kumari, Adv. Mr. Ravi Shankar, Adv. Mr. Santosh Kr. Mishra, Adv. ----------- 4/ 12/03/2010 Heard learned counsel for the petitioner and learned counsel for the State. The claim is arrears of salary in between the period dated 30.6.1986 to 25.4.1996. Insofar as any claim prior to the former date is concerned, this Court holds that in view of the claim of the petitioner himself in C.W.J.C. No.737/91(R) at Annexure-14 to the writ petition, the same not having been raised on the earlier occasion is barred by the principles of constructive res judicata. Insofar the claim for salary for the aforesaid period is concerned, it has been considered by the respondents in pursuance of the order on the writ petition. The writ petition sought the relief only for salary and any issue of regularization does not appear to have been pressed or considered by the Court. On the own showing of the petitioner from his pleadings he was appointed on daily wages on 2 2.1.1985. The counter affidavit states that this Court had directed the Engineer-in-Chief to decide his claim for salary. On account of vacancy on the of the post, one Shri Mrityunjay Kumar Rai, Secretary (Technical) to the Engineer-in-Chief was authorized to hear and decide the case of the petitioner and pass appropriate orders. The authorized officer then passed the order dated 18.11.1999 holding that the petitioner had been unable to demonstrate that he had worked during that period and therefore was not entitled to wages. Learned counsel for the petitioner from paragraph-52 of his writ petition submits that the Secretary (Technical) was subordinate in rank to the Engineer-in-Chief and therefore was not competent to pass the order. He next submits from Annexure-17 dated 15.3.2000 of the Chief Engineer that he regularized the petitioner in service with effect from 30.6.1986 with a finding that he was entitled to his salary till 25.4.1996. The order dated 15.3.2000 is the sheet anchor of the claim of the petitioner who asserts that he is entitled to full wages from 30.6.1986 till 25.4.2006 as he was simultaneously regularized. On the own showing of the petitioner he was appointed on daily wages. A daily wager holds no post 3 and therefore the question of his regularization does not arise. Even if he may be considered for regularization, it has to be in accordance with law. That pre-supposes a competitive selection between him and others eligible. There can be no preferential and selective regularization to favour a single daily wager. That is what the order of the Chief Engineer dated 15.3.2000 purports to do assuming he had the competence to do so by a non-speaking order in pursuance of any directions of this Court not given to him. This Court therefore holds that the order dated 15.3.2000 does not regularize the petitioner, but at best holds him entitled to his daily wage for the said period. The question next arises of the legality of the order dated 18.11.1999 passed by the Secretary (Technical) on the challenge that it was not passed by the competent authority in terms of the High Court order. The situation that emerges is that the order that the petitioner assailed is by an incompetent authority. The order that the petitioner relies upon is also by an incompetent authority. If this Court were to take up both the orders in the interest of justice so as to cut short the litigation and then consider them fairly so that the matter may be disposed of at this 4 stage finally, the order of the Secretary (Technical) is reasoned and speaking after hearing the petitioner. The order of the Chief Engineer is non-speaking in nature. Once reasons have been assigned in an order, the contention of the petitioner that the Secretary (Technical) did not hear him is difficult for this Court to adjudicate when the order records to the contrary. This becomes therefore a disputed question of fact. Reasons have been held to put life into an administrative order and enables the Courts to regulate arbitrariness. From the reasons discussed in the order of the Secretary (Technical) the matter goes purely into the arena of disputed facts. The order of the Chief Engineer sought to be relied upon being non-speaking in nature makes the facts more disputed. This Court, therefore, finds it very difficult to adjudicate the claim for salary in writ jurisdiction. However, this Court is satisfied that the petitioner held the status of a daily wager. The question that he may not be entitled to regular salary is very distinct from the claim for daily wage. This application is therefore dismissed, but this Court makes no observation with regard to his claim for daily wage. However, if the petitioner represents, the respondents 5 shall not be precluded from examining matters to their satisfaction, but not as a command of this Court. The writ application stands dismissed. KC/ ( Navin Sinha, J.)