IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19744 of 2010 Ram Sagar Prasad Singh & Ors Versus The State Of Bihar & Ors ---------------------------------- For the Petitioners: M/s Ajay Kumar Thakur, Imteyaz Ahmad, Amit Kumar and Malay Kumar Choudhary, Advocates For the State : Mr. Neeraj Kumar, AC to SC 22 ---------- 3. 02.09.2011 Heard learned Counsel for the petitioners and the State. The petitioners are aggrieved by the order dated 1.7.2008 of the three men committee declining to regularize their services. Learned Counsel submits that the petitioners were engaged on daily wage in between the years 1980 – 1984 and worked continuously till they were removed on 5.4.2000. This Court in CWJC No. 1609 of 2001 and analogous cases noticing that the petitioners had worked for more than 20 years held it was inequitable and against all cannons of justice to disengage them specially in light of a policy for regularisation and gave directions for consideration thereunder. The respondents preferred LPA No. 694 of 2006 and analogous cases. The matter came to be referred to a three men committee. Before the committee it has transpired that the petitioners were appointed in accordance with the authorization made for the purpose of a project. They cannot therefore be classified as illegal appointees or daily wage appointees simplicitor. They came within the ambit of the directions of the Supreme Court given in AIR 2010 SC 2587 ( State of Karnataka v. M. L. Kesari & ors).That posts in Class IV are still available and vacant as apparent from the information obtained by the petitioners under the Right to Information Act as contained at Annexure 6. 2 Counsel for the State supported the impugned order of the three men committee to submit that a daily wager had no right to regularisation as held by the Supreme Court and that the petitioners were no more in service since 5.4.2000. It shall be a case of fresh appointment and not regularisation. On the own showing of the petitioners their engagement as daily wagers was for a project. Sanction for such appointment cannot be equated with a regular appointment on a vacant sanctioned post. It is not their case that the project under which they came to be appointed continues and that vacant sanctioned posts exist in the same. No sooner that the project came to an end their daily wage appointment for the same also looses its validity. There is no material on record to demonstrate that any procedure for appointment in consonance with Article 14 of the Constitution of India by open advertisement and merit selection was followed before the petitioners came to be appointed under the project. In CWJC No. 16099 of 2001 preferred by the petitioners this Court had observed that daily wagers have no right to continue in employment and that while removing them principle of “last come first go” has to be applied. That order has now merged with that of the Letters Patent Court. Exigency of work may require appointment on daily wages for the purpose of the project. That shall not lend permanency of any nature to such appointment and long continuance on that basis cannot vest a claim to regularisation by a daily wager. Such an appointment continued for a period of 14 to 20 years was also not accepted by the Supreme Court as vesting a cause for regularisation. Regularisation is not a mode of appointment. This discussion has been considered in 3 (2009) 6 SCC 611 ( Mohd. Abdul Kadir v. Director General of Police, Assam) holding :- “13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of the PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said Scheme is being extended from time to time and is being continued. If the temporary or ad hoc engagement or appointment is in connection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the project or scheme would come to an end, on completion/closure/cessation of the project or the scheme. 14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or regularisation. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts coterminous with the Scheme and not of permanent posts. 15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service….” Service Jurisprudence took a new evolution with the Constitution Bench judgment in (2006) 4 SCC 1, (Secretary, State of Karnataka v. Uma Devi). Persons like the petitioners fall within the category which came in for consideration at para 43 of the judgment as not being eligible for regularisation. They fall outside the purview of the observations in para 53 of the judgment for regularization as a one time measure after ten years of service as subsequently also explained by the Supreme Court in (2010) 3 SCC 115 (State of Karnataka Vs. Ganpathi Chaya Nayak ) and (2010) 4 SCC 179 (Satya Prakash Mishra v. The State of Bihar). The reliance on behalf of the petitioners on the case of M. L. Kesari (Supra) is of no avail to them as it directs consideration for regularization of only such persons under para 53 of the judgment of Uma Devi (Supra) who had worked for ten or more years as daily 4 wager against a duly sanctioned post and without the benefit or direction of any order of any Court or Tribunal. The petitioners cannot evade the burden that comes to them because of the judgment in CWJC No. 16099 of 2001.That the petitioners may have possessed qualifications for the post shall also be of no avail to them once it is held that their appointment was not on a sanctioned post but for a project only. The petitioners thus being daily wage appointees, under a project merely because they may have continued in that capacity for about two decades the Court finds it difficult to grant them the relief of regularisation. If the petitioners are not in employment since 2000 the question of their regularisation does not arise. Regularisation can be done of one who is already in service in some capacity when the procedural infirmity only in the appointment is required to be cured. If the employment has come to an end it becomes a case of fresh appointment. Article 14 of the Constitution shall have to be fully followed. That regularization cannot be a mode of appointment has been explained in (1972)1 SCC 409 (R.N. Nanjundappa Vs. T. Thimmiah) as follows:- “26…. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did dot mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.” 5 But the Court cannot loose sight of the fact that the petitioners have continued as daily wagers for 20 long years. That perhaps is an indication by itself that there was a permanent need for personnel like them. Why the regular appointments were not made is a speculative matter today which the Court does not consider necessary to deal as responsibility cannot lie on one side of the line only. The burden shall have to be shared by the persons who made the appointment and the persons who obtained appointment. If the sanctioned vacancies are available, no person can be appointed on daily wage against the same after the petitioners are terminated. One daily wager cannot be replaced by another daily wager. The respondents are prohibited from making any appointment in daily wage or in any other capacity except regular appointment on the available sanctioned vacant posts. If the respondents propose to make such appointment and they publish an advertisement, the petitioners, if they apply, are required to be considered in accordance with law when it is expected that the respondents as a matter of policy shall adequately consider the issues of age relaxation and weightage for past work experience keeping in mind that if the petitioners are appointed they will be more useful for the respondents because of their work experience as compared to fresh appointees. The writ application is dismissed with the observations. Snkumar/- (Navin Sinha,J.)