IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19445 of 2011 1. Ranjit Kumar Son Of Late Lal Kishore Prasad Resident Of Mohalla & P.O. - Chand Chaura, Khwagali, P.S. - Civil Lines , District - Gaya Versus 1. The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna 2. The Principal Secretary, Home (Special) Department, Government Of Bihar, Patna 3. The Principal Secretary, Department Of Personnel & Administrative Reforms, Government Of Bihar, Patna 4. Deputy Secretary, Department Of Personnel & Administrative Reforms , Government Of Bihar, Patna 5. The Director General Of Home Guard, Chhaju Bagh, Patna 6. Commandant ,Home Guard, Special Battalion, Bhagalpur 7. Commandant , Home Guard, Chhaju Bagh, Patna ---------------------------------- 2. 05.12.2011 Heard learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 24.6.2011 declining him the relief for regularisation as a Sepoy in the Special Battalion of the Home Guards. It is submitted that the petitioner was appointed as a Volunteer Home Guard in the year 1978. A Selection Committee approved his entry in the Special Battalion of Home Guards in 1983. Selection Boards were constituted in different districts for selection and a Matriculate who fulfilled the qualification for appointment as a Sepoy were deputed to the Special Battalion. He underwent training. He was assigned to the Anti Kidnapping Task Force also. In 1990 the petitioner and others similarly situated represented for regular absorption on the post of Sepoy against the existing Home Guards vacancies. Out of the 290 Home Guards identified for the purpose, 268 persons filed CWJC No. 8545 of 1991. The petitioner was not a party to the same. This Court on 3.1.1996 observed that since the matter for absorption was pending consideration before the State Government it may take an 2 expeditious decision. On 7.2.1997 the aforesaid 290 persons which included the name of the petitioner, were forwarded but only 236 out of 266 writ petitioners were regularised in 1998. Those who were left out moved this Court again in CWJC No. 8863 of 1998. The petitioner was again not a party therein. This Court on 7.7.2000 directed their cases to be considered when relief came to be granted to them. The petitioner legitimately believed that he had a right to be considered in accordance with law as his name figured in the list of 290 persons and he was under no duty to move separately. The petitioner on 28.12.2004 represented before the Director General of Police who recommended in his favour on 10.5.2005. It was declined on 31.12.2005 observing that his name did not figure in the list of 266 persons. He then preferred CWJC No. 1294 of 2006 disposed on 7.2.2007 to examine his claim for regularisation in light of the judgment of the Supreme Court in (2006) 4 SCC 1 (Secretary, State of Karnataka v. Uma Devi (3).The Committee wrongly rejected his claim on 25.9.2008. The review against the same on the ground that similarly situated persons had been regularised resulted in an order of termination dated 27.8.2009.The petitioner never absented from duty and he was on leave from 26.1.1989 to 28.2.1989 for appearing in the M.A. Examination and subsequently fell ill for which medical certificate was issued for the period from 28.1.1989 to 3.3.1999. On recovery he joined on 17.6.2000. The petitioner filed CWJC No. 7438 of 2010 against the order declining regularisation and ordering termination. This Court on 14.2.2011 directed the respondents to consider his claim for regularisation in light of his claims that similarly situated persons had been regularised and that he alleged hostile discrimination. It was submitted that the order of termination dated 27.8.2009 was impliedly set aside. 3 Counsel for the State invites attention of the Court to para 20 of the pleadings that the petitioner was originally appointed as a daily wage volunteer Home Guard. The impugned order dated 24.6.2011 is stated to be reasoned, fully distinguishing the primary claim of the petitioner for being in the list of persons recommended opining that he did not figure in the final list of 266 persons recommended as distinct from the original list of 290 persons. It was submitted that any others who came to the Court with diligence formed a separate class than those who did not. The order of termination has not been interfered with. The petitioner acknowledges having been appointed on daily wages. The earlier theory of regularisation which countenanced all issues of legality of the original appointment based merely on long years of service, has undergone serious repeated judicial evolution of Service Jurisprudence. The petitioner has not been able to demonstrate that any procedure in consonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection were followed when he came to be appointed either as a volunteer Home Guard or a Home Guard in the Special Battalion. On the contrary the letter of the Commandant, Bihar Home Guard at Gaya dated 31.12.2007 simply stated that he was appointed as a Home Guard in 1978 and the order of his original appointment had been destroyed in rain water. The Court finds the stand of the respondents curiously that official documents were destroyed within the office premises in rain water. It was the most prized document for the petitioner to be retained and produced by him also. The Bihar Home Guards Act does not appear to be containing any provision for appointment by absorption of a Volunteer Home Guard in regular Police Service. 4 A list of 290 persons including the petitioner appears to have been drawn up for regularisation. Subsequently 266 persons were recommended only excluding the petitioner and five others. This was done as far back as 7.6.1996. While others in the list denied appointment approached this Court seeking relief in CWJC Nos. 8584 of 1991 and 8863 of 1998 the petitioner did not do so. The law stands settled that those who are vigilant in moving the Court for grant of relief in time and those who do not, formed a separate class. The relief based on parity can still be denied by making a distinction between the two class based on law of due diligence. The petitioner appears to have represented for the purpose first in 2004 and ultimately filed CWJC No. 1294 of 2006 seeking regularisation. The order in CWJC No. 8584 of 1991 and CWJC No. 8863 of 1998 lost its judicial relevance as precedent under para 54 of Uma Devi (3) (Supra). Under para 43 of the judgment, being a daily wage, the petitioner did not hold any post and mere long continuance in the aforesaid capacity did not vest in him a right to claim regularisation. Such persons were clearly excluded from the directions given as one time measure in para 53 of the judgment with regard to those who may have been appointed irregularly and not illegally against duly sanctioned post and had worked for ten years or more without intervention of Court orders. This has subsequently been explained in (2010) 3 SCC 115 (State of Karnataka & ors v. Ganapathi Chaya Nayak & ors.) and (2010) 4 SCC 179 (Satya Prakash & ors. v. State of Bihar & ors.). The only exception has been made in (2010) 9 SCC 247 ( State of Karnataka & ors. v. M. L. Kesari & ors.) that those who had been appointed on daily wage against a duly sanctioned post only may 5 have a claim for regularisation. No such finding can be returned in favour of the petitioner. None the less in terms of the direction of the Court dated 14.2.2011 the respondents did consider his claim and declined it by order dated 25.9.2008. Thereafter followed termination of the petitioner on 27.8.2009. Quite obviously this was a removal from his status as a daily wager. No case has been made out that the petitioner has been replaced by another daily wager. The petitioner questioned the letter in CWJC No. 7438 of 2010. The order of termination was not interfered with by the Court. The only direction given was to consider his claim for regularisation in light of his submission that similarly situated persons had been regularised when the order of termination may also require reconsideration. There cannot be any implied setting aside of an order of termination by a court of law. The order has to be positive, clear and specific setting aside the impugned order. If the petitioner stood terminated and the Court did not interfere with the order of termination, it is difficult to appreciate the petitioner’s claim for regularisation. Regularisation is not a mode of appointment. A pre condition for the same would be that the person is in service as otherwise it becomes a claim for appointment when procedure under Article 14 had to be explicitly followed. The fact of the matter is that a list of 290 persons was drawn up for regularisation years ago in 1990. The petitioner did figure in the same but only 266 persons came to be regularised. Merely because his name may have been in 290 persons who were not considered for regularisation for one reason or other the Court cannot put the clock back by years and years. 6 The matter attained finality when 266 persons were regularised in 1998. Those like the petitioner left out moved this Court in 1998 itself. The petitioner did not. It is not considered necessary to go into issues of his absence as the termination order attained finality on 14.2.2011 in CWJC No. 7438 of 2010. The distinction between the diligent and the indolent as a ground to deny relief based on a claim of parity has been noticed in (2011) 4 SCC 374 (Bharat Sanchar Nigam Limited v.Ghanshyam Dass (2) holding at paragraphs 25 & 26 as follows:- “25. The principle laid down in K.I. Shephard that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances: (a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees; (b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not; (c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and (d) where the court expressly directs that the relief granted should be extended to those who have not approached the court. 26. On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.” There can be no retrospective regularisation but only prospective. Even if he would have been granted the relief he would have barely ten years service left which is not pensionable. In the entirety of the discussion the Court finds no reason to interfere with the impugned orders. 7 The writ application is dismissed. Snkumar/- (Navin Sinha,J.)