IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.556 of 2010 1. Bramdev Prasad S/O Sri Ram Bhavan Singh R/O Vill.- Chakpakauli, P.O.- Anda, P.S.- Phulwarisarif, Distt.- Patna 2. Ram Jee Prasad Singh S/O Sri Narayan Prasad Singh R/O Vill.- Lachhan Bigaha, P.O. + P.S.- Belaganj, Distt.- Gaya 3. Hari Lal Singh S/O Late Bihard Chand Rai R/O Vill.- Harni Chak, P.O.- Anisabad, P.S.- Phulwarisarif, Distt.- Patna 4. Rajendra Kumar S/O Moti Lal Pawan R/O Vill.- Kalyanpur, P.O.- Tungi, P.S.- Dip Nagar, Distt.- Nalanda 5. Ram Jee Rai S/O Ram Kishun Rai R/O Vill.- Paithani Nathupur, P.O.- Anisabad, P.S.- Phulwarisarif, Distt.- Patna 6. Sanjay Kumar S/O Sri Bhavsagar Paswan R/O Vill.- Priyari Mathiya, Post- Priyari, P.S.- Kirjar, Distt.- Jehanabad Versus 1. The State Of Bihar Through The Secretary Building Construction Department, Govt. Of Bihar, Patna 2. The Chief Engineer (South) Building Construction Department, Govt. Of Bihar, Patna 3. The Superintending Engineer (South) Bihar Circle, Building Construction Department, Patna, Govt. Of Bihar, Patna 4. The Executive Engineer Garden Division, Building Construction Department, Govt. Of Bihar, Patna 3/ 26/08/2011 Heard learned counsel for the petitioners and the State. The petitioners are aggrieved by the order dated 14.8.2009 refusing to regularize their services. Learned counsel for the petitioners submits that they were all appointed on daily wages in the year- 1980. In C.W.J.C. No.13943/03 considering their contention that sanctioned posts were lying vacant the Court directed consideration of their case for regularization. It was rejected by order dated 5.3.2005. 2 The petitioners assailed the rejection in C.W.J.C. No.6079/05. The Court relegated them to the remedy of departmental appeal. The order presently impugned has then been passed. Relying on a departmental circular dated 5.6.1993 it is submitted that those who had completed 240 days in service prior to 1.8.1985 were eligible to be considered for regularization. The impugned order is contrary to the circular. The report called for by the Secretary of the Department confirms their status and engagement as daily wagers. Learned counsel for the State from the counter affidavit submits that the impugned order requires no interference. The enquiry report sought to be relied upon by the respondents dated 26.2.2008 confirms their status as only daily wagers. The law stands well settled as far back as (1997) 4 SCC 88 (State of U.P. v. Ajay Kumar) that daily wagers hold no post and do not have a claim for regularization :- “3. The admitted position is that the respondent came to be appointed on daily- wage basis on 14-2-1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service 3 rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he did not call for applications. The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal.” More recently in 2006(4) SCC 1 (Secretary, State of Karnataka vs. Umadevi) a Constitution Bench after consideration of the entire conspectus of the law on regularsation has held at paragraph 43 that casual workers, daily wagers, contractual employees do not hold any post and the question of their regularization does not arise. Nonetheless orders for regularization of such employees were also being passed under paragraph 53 of the judgement as a one time measure who may have worked for more than ten years. That led to the Supreme Court clarifying in (2010) 4 SCC 179 (Satya Prakash Vs. State of Bihar) that the benefit of Umadevi (supra) was not available to the daily wagers at 4 paragraph 12 as follows :- “12…….The Constitution Bench has, therefore, clearly drawn a distinction between temporary employees, daily wagers and those who were appointed irregularly in the sense that there was non-compliance with some procedure in the selection process which did not go to the root of the selection process. The appellants in our view will not fall in the category of the employees mentioned in para 53 read with paras 15 and 16 of the Constitution Bench judgment.” That completion of 240 days may be relevant for a termination done in violation of Section-25F of the Industrial Disputes Act, but did not make out a ground for regularization stands well explained in (2008) 2 SCC 552(Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidyalaya v. United Trades Congress) : - “12…….The Industrial Court in passing the impugned award proceeded on the premise that Respondent 2 had been working for more than 240 days continuously from the date of his engagement. It is now trite that the same by itself does not confer any right upon a workman to be regularised in service. Working for more than 240 days in a year was relevant only for the purpose of application of Section 6-N of the U.P. Industrial Disputes Act, 1947 providing for conditions precedent to retrench the workmen. It does not speak of acquisition of a right by the workman to be regularised in service.” Regularization is not a mode of appointment. If the petitioners are no more in service, it is a case of 5 fresh appointment. For every fresh advertisement Article-14 has to be complied with by open advertisement and merit selection. In (2005) 1 SCC 639 (Mahendra L. Jain v. Indore Development Authority) it has been held : - “19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation.” If the respondents have issued any circular in 1993 for regularization of daily wagers on the grounds of 240 days in service, it is clearly contrary to the law and cannot be the foundation for grant of relief violating Article-14 of the Constitution as held in (2009) 5 SCC 193 (Pinaki Chatterjee v. Union of India) : - “13. The said circular letter of the Railway Board which had been issued long back, however, did not take into consideration the limitation of power of a State to make 6 appointments in total disregard of mandatory provisions of the recruitment rules and/or the constitutional provision. This aspect of the matter has been considered in A. Umarani v. Coop. Societies1 holding: “45. No regularisation is, thus, permissible in exercise of the statutory (sic executive) power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.” The circular of 1993 now sought to be pressed into service was also available to the petitioners when they came in C.W.J.C. No.13943/03 and C.W.J.C. No.6079/05. It shall therefore be safely presumed that either the petitioners did not press it or if they did the Court did not find it in their favour. There is no merit in this application. It is dismissed. KC ( Navin Sinha, J.)