IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11243 of 2009 Binod Kumar Sinha & Ors Versus The State Of Bihar & Ors ---------------------------------- 4. 05.09.2011 Heard learned Counsel for the petitioners, the State and for the appearing private respondents. The petitioners are aggrieved by the order dated 26.10.2007 of the Chief Engineer (Mechanical) declining to regularize their services. It is submitted that the petitioners are working on Class IV posts in the capacity of daily wagers in the Public Health and Engineering Department (PHED) ever since 1986 – 1988.The petitioners came to this Court earlier in CWJC No. 507 of 1997 for regularisation disposed on 15.5.2008 to consider their claim in light of certain orders of this Court. It is next submitted that so long as the petitioners are working on daily wage they are entitled to the minimum of the pay scale. Relying on a government instruction of 5.3.1990 it is submitted that those who have completed 240 days on daily wages are entitled to be considered for regularisation. The respondents have arbitrarily chosen to regularise daily wagers ignoring the length of service. The petitioners are working in the capacity of daily wager even today. Three persons named in the reply to the counter affidavit at para 8 have been regularised when their names does not figure anywhere as daily wager, making them outright illegal appointees. Counsel for the State submitted that the petitioners were terminated on 13.4.2002 vide Annexure B to the counter affidavit. The petitioners have never questioned that order. It is denied that they are in service. Their cases have been considered afresh in terms of the directions of this Court. The private respondents have been regularised 2 after consideration by the three men committee upon directions of this Court. Learned Counsel for the private respondents contended that they are not illegal appointees and that they have been regularised on the recommendation of the three men committee in pursuance of the directions of this Court for consideration of their claims. The issue of regularisation of daily wagers has evoked much controversy leading to the orders of the Courts at different times declining regularisation or directing regularisation. The Supreme Court as far back as (1997)4 SCC 88 ( State of U.P. v. Ajay Kumar) has held that daily wagers hold no post and therefore the question of their regularisation does not arise:- “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 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. However, judicial pronouncements specially giving directions for framing of a scheme for regularisation of such persons or directing regularisation led to consideration of the matter by the Constitution Bench in (2006) 4 SCC 1 (Secretary, State of Karnataka v. Uma 3 Devi).The Supreme Court at para 43 of the judgment held that daily wagers, casual employees and contractual appointees do not hold any post in the government and therefore the question of their regularisation did not arise. In para 53 of the same judgment dealing with irregular and not illegal appointees who may have worked for 10 years, directions came to be given by the Court to consider only such persons for regularization. However directions were still being given by Court’s for regularization of daily wagers also thereunder. The Supreme Court then clarified in (2010) 3 SCC 115 ( State of Karnataka Vs. v. Ganapathi Chaya Nayak) and in (2010) 4 SCC 179 (Satya Prakash Mishra vs State of Bihar) that daily wagers were not entitled for regularisation in terms of para 53 of the former judgment. The Constitution Bench further held that all directions and/or orders to the contrary given earlier by Courts were no longer good law. The petitioners therefore do not have a case to seek regularisation as a mode of appointment from their status of daily wager. Since the petitioners do not hold any post question of grant of any minimum of the pay scale to them does not arise as a pay scale is given to one who is in regular service only as held in (2003) 6 SCC 123 (State of Haryana v. Tilak Raj) stating that:- “11. A scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances………” That completion of 240 days in service may be a good ground to question the termination for violation of the provisions of the Industrial Disputes Act before the Tribunal but did not constitute a ground to seek 4 regularisation as held in (2007)6 SCC 207 (Hindustan Aeronautics Ltd. v. Dan Bahadur Singh) “18. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularisation in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra it was held that the completion of 240 days' work does not confer the right to regularisation under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board v. Manoj Shrivastava after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd.....” In so far as the circular of 5.3.1990 sought to be relied upon is concerned the Supreme Court has held in (2009) 5 SCC 193 (Pinaki Chatterjee Vs. Union of India & Ors.) that any outdated circular contrary to Article 14 of the Constitution more so in light of the enunciation of the law in the case of Uma Devi (Supra) cannot be a foundation to seek a mandamus thereunder as follows: “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 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. Societies…..” The foundation of the case of the petitioners rests on 2006(3) PLJR 376 (DB) (Ram Tapeshwar Sah Vs State of Bihar) giving directions relying upon Uma Devi (Supra) for regularisation of daily wagers under Paragraph 53 of the judgment is no longer good law in view of Ganapathi Chaya Nayak (supra) and Satya Prakash Mishra (supra). It appears that the attention of the Division Bench was not invited to para 43 of the judgment in Uma Devi (Supra). 5 The judgment in Uma Devi (Supra) came to be delivered on 10.4.2006. Any direction for consideration of the case of the petitioners in CWJC No. 507 of 1997 dated 15.5.2008 when it appears that the judgment of Uma Devi (Supra) was not placed before the Court cannot be the foundation for any legal claim in view of para 43 of the judgment. In any event regularisation can be of a person in service as otherwise it becomes a case for fresh appointment when Article 14 has to be adhered to by open advertisement and competitive merit selection. The petitioners contend that they are in service as daily wager. The respondents rely upon their order of termination dated 13.4.2002. It therefore becomes a disputed question of fact to be examined and adjudicated based on any materials that the petitioners may produce in support of their claim for still being in service. If they do so the respondents are obliged to hold an enquiry as to how the petitioners have continued in service if it is the contention of the respondents that their services have been terminated on 13.4.2002. If what the petitioners contend is correct it is an extremely serious matter when this Court Directs the Principal Secretary, PHED to appropriately examine and take necessary corrective measure which shall not only confined to the petitioners alone but also against those who may have facilitated the same. If any of the private respondents have been regularised in service contrary to the direction and law discussed in Uma Devi (Supra) but under any direction of a Court quite obviously different consideration shall arise. If a person has been discriminated by Courts order he is left remediless as held in (1995) 2 SCC 15 (Bharat Petroleum Corpn. Ex- Employees' Assn. v. Bharat Petroleum Corpn. Ltd.) 6 “9……..The discrimination was due to the judicial determination and not due to the acts of the respondents…….” But if such regularisation contrary to the law has been done suo motu by the respondents quite naturally they are required to examine matters and take appropriate action in accordance with law based on the discussion contained in the present order. Any regularisation done contrary to the law, cannot vest a right in the petitioners to demand perpetuation of illegality as Article 14 does not operate in negativity. This has been explained in (2009) 13 SCC 635 (State of Madhya Pradesh v. Ramesh Chandra Bajpai ) holding :- “17. It is also well settled that Article 14 of the Constitution carries with it a positive concept of equality. That article cannot be invoked for perpetuating illegality. To put it differently, an illegal or wrong order passed in one case cannot be made the basis for compelling a public authority to pass similar order in other cases. Even if the State implements an erroneous order passed by the court, it cannot be precluded from challenging similar order passed in another case, simply because appeal was not preferred in the earlier case.” It was lastly contended on behalf of the petitioners that their continuance on daily wage since 1986 – 1988 was itself indicative of the permanent need for personnel. The respondents cannot resort to daily wage appointment as a subterfuge. If the petitioners are still working on daily wage it is an extremely serious matter. A daily wage appointment is a stop gap arrangement in the exigency of the work. It is an exception. It cannot be turned into the rule. A daily wager is entitled to nothing more than daily wage. A regular employee is entitled to salary and other service benefits. If the petitioners are still in service it is naturally indicative of the permanent need for personnel as otherwise their services undoubtedly would have been done away long years ago. A daily wager cannot be replaced by another daily wager. If the 7 petitioners are still in service the respondents are obliged to consider the permanent need for personnel. If they are satisfied that daily wagers or regular personnel are no more required it would be their discretion. Where posts are available, and whether they are to be filled up are executive decisions. But such posts cannot be continued indefinitely by appointing daily wagers against them. That practice has to end where such appointments have continued for long period of time turning it into a fiefdom deprecated by the Supreme Court as the spoil’s system in (2009) 5 SCC 65 (Upendra Narayan Singh Vs. State of Bihar). If the respondents propose to make regular appointments and the petitioners apply they are required to be considered in accordance with law on their own merits when the issue of age relaxation and weightage for past work experience are expected to be appropriately considered by the State as a matter of policy keeping in mind the utility of the petitioners for the respondents in view of their long work experience. If the petitioners represent before the Principal Secretary in context of any grievance of discrimination as noticed in the present order the Court expects the Principal Secretary to examine matters appropriately and dispose if off by a reasoned and speaking order within a maximum period of three months from the date of receipt and/or production of a copy of this order before him but only after hearing all concerned likely to be affected by his order. The writ application is dismissed with observations and directions. Snkumar/- (Navin Sinha,J.) 8