IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.434 of 2001. - - - - - - Against the judgment/order dated 3rd April 2001 passed in CWJC No.5142 of 1991. SANT PRAKASH SRIVASTAVA & ORS..Appellants. Versus The State of Bihar and others… ………….Respondents. ----------- For the Appellants Dr.Sadanand Jha,Sr.Adv. Mr.Anil Upadhyay, Adv. Mr.Kunal Tiwary,Adv. For the Respondents: A.A.G-III. ---------------- HON’BLE MR.JUSTICE BARIN GHOSH. HON’BLE MR.JUSTICE CHANDRA MOHAN PRASAD. Barin Ghosh & C.M.Prasad,JJ The appellants before us were engaged by the Collectorate, Saran and soon thereafter they were disengaged. On the basis of representation made by them, the Commissioner of the Division directed their re-engagement for a period of one year. They were re-engaged as daily wage Muharrirs. Before expiry of one year from the date of their engagement, they filed a service case. While the service case was pending disposal, an order dated 3rd June 1991was passed and by virtue thereof, the order of the Commissioner was cancelled. This affected re- engagement of the petitioners as daily wage Muharrirs. Later on the service case was dismissed by order dated 18th June 1991. Challenging the orders dated 3rd June 1991 and 19th June 1991, the appellants preferred a writ petition challenging principally those two orders and also seeking their regularization in the permanent establishment. - 2 - The writ Court refused to interfere with these two orders dated 3rd June 1991 and 19th June 1991. By mistake, the Writ Court in its order recorded the order dated 19th June 1991, as the order dated 9th June 1991. From the judgment and order under appeal, it would be crystal clear that no argument was advanced to highlight the alleged illegality of these two orders dated 3rd June 1991 and 19th June 1991. Instead, despite being not entitled to be engaged as daily wage Muharrirs in view of the said orders dated 3rd June 1991 and 19th June 1991, an impression was given to the Court as if the appellants are still continuing to work. It was contended that inasmuch as they were working in the temporary establishment, in view of Rule 161 of the Board’s Miscellaneous Rules, they have a preferential right to be considered for being engaged in the permanent establishment. Since it was not the case in the writ petition, for that could not be the case, that any junior to the appellants had been regularized in the permanent establishment before them, the Court observed in relation to such submission on behalf of the appellants that they must wait for their turn to come. Lastly it was contended that as per the decisions of the Government if persons like the appellants engaged to work in the temporary establishment of the Government continues to remain engaged without a break for long period of time, such temporary - 3 - establishment should be made a part of the permanent establishment. In relation to such submission, the Court directed the appellant to make a representation before the Collector, Saran with a further direction upon the Collector, Saran to consider the same in accordance with law and to take steps preferably within one month from the date of filing such representation. Instead of filing a representation in terms of the said direction contained in the order under appeal, the appellants preferred the present appeal. At the initial stage, the appellants impressed upon this Court that the case is arguable and, accordingly, got an order of admission of this appeal. When the matter was considered by this Court for final disposal on the last occasion, on the query of the Court, learned junior counsel for the appellants submitted that his clients have already made a representation to the Collector, Saran in terms of the liberty granted by the order under appeal. The Court under the circumstances, wanted to ascertain from the learned counsel for the State as to the fate of such representation. To-day learned counsel for the State has produced before us a written instructions received by him from the Collector, Saran which is kept on the record wherefrom it appears that, in fact, no such representation was made. This contention is not being denied. Learned counsel for the appellants did not utter a single word - 4 - to contend that the orders dated 3rd June 1991 and 19th June 1991 which were challenged in the writ petition were erroneous either in law or on facts. In fact, no submission to that effect has been advanced before us. Instead it was urged by referring to Annexure-3 to the supplementary affidavit filed by the appellants on 21t July 2008 that out of some of the appellants, a few have been taken in the regular establishment and while doing so, seniority has not been taken note of. It was urged that in such circumstances, this Court should direct absorption of the remaining appellants. We have gone through the order-sheet of the writ court and could not notice any order passed by this Court staying the operation of the order dated 3rd June 1991 and 19th June 1991. Under the circumstances, we are at a loss as to how despite those two orders, the appellants or any of them could continue to function as daily wage Muharrirs. Surprisingly, some of these daily wage Muharrirs have been regularized on 10th October 2006 by Annexure-3 to the supplementary affidavit. We are surprised as to how a person, in view of the said orders dated 3rd June 1991 and 19th June 1991 could remain functioning as daily wage Muharrirs until 10th October 2006 resulting in their absorption. Having regard to the fact that nothing was urged before us - 5 - suggesting that writ Court, while disposing the writ petition, erred either in law or on facts, the appeal preferred against the said order, being misconceived, is dismissed. In the event, by reason of the decision dated 10th October 2006 reflected in Annexure-3 to the supplementary affidavit, referred to above, if any of the appellant’s interest has been prejudiced, it shall be open to the appellants, as they may be advised, to take appropriate steps. We, however, direct the Vigilance Department of the State to go into the question as posed by us in the above judgment and to take appropriate steps in accordance with law. The Registry is requested to serve a copy of this order directly at the cost of the Court to the Vigilance Department of the State. Patna High Court, Dated 28th July 08. N.A.F.R. Jay/ (Barin Ghosh,J) (C.M.Prasad,J)