IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6359 of 1996 ARUN KUMAR,S/O MATHURA PRASAD, R/O VILLAGE SULTANPUR,P.S.EKANGER SARAI, DISTRICT NALANDA. ............PETITIONER. Versus 1.THE STATE OF BIHAR. 2. COMMISSIONER, DARBHANGA DIVISION, DARBHANGA. 3.DISTRICT ESTABLISHMENT COMMITTEE, SAMASTIPUR THROUGH ITS CHAIRMAN. 4.COLLECTOR SAMASTIPUR. ...........RESPONDENTS. ----------- 07/ 09.05.2011 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- 'That this application is for issuance of writ/order/direction to the respondents authorities to permit the petitioner to put his attendance on attendance register and pay the salary as they were paying so that poor petitioner may not face starvation to death.' Mr. Prasad, learned counsel for the petitioner in support of the aforementioned prayer would submit that the petitioner was working as Candidate Peon and his continuation was sought to be disrupted on introduction of the Government policy for removing the persons working on daily wages after 01.08.1995. He would submit that in pursuance of the aforementioned policy the petitioner was also unceremoniously terminated without even issuing the order of termination. Mr. Prasad by filing an affidavit today sworn on 02.05.2011, would submit that the persons similarly situated alike 2 him have been reqularized/appointed and to that extent he has specifically relied on para no. 7 of the said affidavit which reads as follows:- 'That as regards the contents of para 8 of the said counter affidavit, it is submitted that they are partly correct, partly incorrect, partly misleading and have been made only with a view to prejudice this Hon'ble Court. It is totally incorrect to say that the name of petitioner does not find place in the approved panel rather the fact is that his name finds place at serial no. 13 which is evidently clear from Annexure-2 to the writ application. It is made clear that out of Annexure-2, several persons havefiled writ applicationin this Hon'ble Court for their regularization/appointment on the ground of previous engagement including Ram Pravesh Rai whose name finds place at SI. No. 39, Raj Kumar Singh whose name finds place at SI. No. 46 Ganga Prasad whose name finds place at SI No. 56 was allowed with a direction to the respondents to complete the selection process for their appointment but within the the time granted by this Hon'ble Court, respondents did not completed the selection process due to which they filed M.J.C NO. 542/2007 and another persons Uma Shankar Choudhary and another have filed M.J.C NO. 637/07 which were heard by Hon'ble Mr. Justice J. N. Singh and his lordships by order dated 05.05.10 disposed of the aforesaid cases observing that respondents have complied the order of this Hon'ble court. Petitioner has learnt that several other persons out of the said panel including Mithilesh Prasad Singh serial no. 15, Mahakant kha serial no. 16 and Nilam Yadav serian no. 23 have been appointed but case of the petitioner has not been considered due to pendency of the instant writ application. Petitioner reiterates that the statements made in para 9 of the writ petition are totally correct and based on correct facts.' Counsel for the State on the other hand 3 would submit that the petitioner was never appointed in Government service and being empanelled as candidate peon could have given him a limited right of being continued in the panel from which appointment on class-IV post in the Collectorate and its attached Offices could be made. He has further submitted that there would be no question of applying the policy of State Government which was meant for daily wagers. In the considered opinion of this Court, as the petitioner was never appointed on any post nor any specific order of his appointment was issued, his being only continued as candidate peon will not give him a right to make his attendance. As noted above the procedure of maintaining panel of candidate peon from such panel is of a very different kind and he would not be treated as a Government employee. True it is that after the person so empanelled in the candidate peon ultimately selected and appointed on a class-IV post, he enters into the Government service but till it is done so he is neither a Government servant nor has any right which can be enforced even for the purpose of making attendance or payment of salary. The remuneration to the 4 candidate peon is solely dependent on the assignment of work as and when required by the Collector and his office maintaining such panel. Once this aspect would become clear, this court will have no hesitation in rejecting the prayer of the petitioner as made in this writ application. Coming to the issue of appointment/continuation of others including Mithlesh Prasad Singh at serial No. 15, Mahakant Jha at serial NO. 16 and Nilam Yadav at serial No. 23 as stated in the paragraph no. 7 of the rejoinder, this court would find it difficult to give any specific finding, inasmuch as, even when the counter affidavit was filed in this case way back on 08.07.1997, with a copy served to the counsel for the petitioner, its reply has been filed after 13 years and only by serving a copy on counsel for the State on 03.05.2011. This Court in fact is just not aware as to the case of the aforementioned persons nor they have been impleaded party to this writ application. In fact events of 2007 and 2010 as narrated in paragraph no. 7 being subsequent event has actually given a fresh cause of action to the petitioner, if his case of being placed at 5 serial no. 13 is correct. As noted above, this belated rejoinder counter affidavit cannot be acted upon by this Court at the time of final hearing of this case. In that view of the matter, liberty is granted to the petitioner to demonstrate and establish this plea of discrimination by filing a representation to the Collector of Samastipur district that he was better placed than the others in the same panel of candidate peon for being appointed on a class-IV post. It is expected that the Collector of the district will take appropriate decision strictly in accordance with law at an early date preferably within a period of four months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this writ application is disposed of. Ranjan (Mihir Kumar Jha, J)