IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7110 of 1997 Mahendra Singh, son of late Lakshami Singh, resident of village Punch Pakhari, P.S. Nabinagar, District Aurangabad … Petitioner Versus 1. The State Of Bihar, through the Secretary, Water Resources Department, Patna 2. The Commissioner cum Secretary, Water Resources Department, Govt. of Bihar, Patna 3. The Engineer-in-Chief cum Special Secretary, Water Resources Department, Govt. of Bihar, Patna 4. The Chief Engineer, Water Resources Department, Govt. of Bihar, Sone Colony, Aurangabad 5. The Superintendent Engineer, Sone High Level Canal Circle, Water Resources Department, Sone Colony, Aurangabad 6. The Executive Engineer, Eastern Sone high Level Canal Division, Water Resources Department, Sone Colony, Aurangabad … Respondents ------- For the petitioner: Mr. Choudhary Shyamnandan, Advocate For the State : Mr. J.P.Karn, AAG IV & Mr. A.K.Dubey, A.C. to AAG4 4. 4.7.2011 Heard counsel for the parties. The prayer of the petitioner for regularization of service is based primarily on the ground of his long continuation on nearly thirty years of continuous service on daily wages as also on a policy decision of the State Government contained in its circular dated 18.6.1993 (Annexure 3). Mr. Choudhary Shyamnandan, learned counsel for the petitioner, would submit that the petitioner is continuing to work on 2 daily wages without any break since 1.6.1982 in Sone Uchchya Astariya Nahar Pramandal, Aurangabad. He has further invited attention of this Court to the recommendation made by the Chief Engineer, Water Resources, Aurangabad to the Joint Secretary of the State Government in the Water Resources Department as with regard to considering the case of the petitioner for his being absorbed in regular establishment. Learned counsel for the petitioner has also placed reliance on an order of this Court in the case of Tej Narayan Yadav vs. the State of Bihar & ors., reported in 2008(2) PLJR 487, as also in the case of Rabindra Nath Mishra vs. the State of Bihar & ors., reported in 2011(2) PLJR 914. Per contra, learned counsel for the State while placing reliance on the averments made in the counter affidavit would submit that such engagement of the petitioner made by the Site In-charge would not qualify him to regularize in service. It has also been submitted that the petitioner is not working against the sanctioned post and as such, his regularization cannot be 3 made. He has also placed reliance on the judgment of the Apex Court in the case of Satya Prakash & ors. vs. State of Bihar & ors.,reported in 2010(2) PLJR 33 (S.C.). There would be no difficulty in accepting the submission of the learned counsel for the State that if the petitioner is continuing to work on daily wages without there being a sanctioned post, regularization of his service would not be possible, inasmuch as one of the basic requirement for regularizing the service of a daily wager would be availability of a sanctioned post. The difficulty, however, for the State in order to sustain such submission would be as to how for last 30 years or so it has been continuing the petitioner or other daily wagers without there being sanctioned post. The issue of sanction post has to be also appreciated in the back drop of the post under non-plan head vis-à-vis post under plan head. In a non-plan head the sanctioned post continued for an ad infinitum period till they are abolished. The post under the plan head continues only on year to year basis till 4 the continuance and completion of scheme but then it would be wholly illogical to accept the stand of the State and the submission of its counsel that for 30 long years the post has been allowed to continue in the plan head by sanctioning it on a year to year basis and yet has not been made part of permanent establishment. The State being a model employer is not expected to treat its employees in such a callous manner. At this stage learned Senior counsel appearing on behalf of the State would take a plea that such stand has been taken in the counter affidavit sworn and filed some 13 years back and he is not aware as to what is the latest position either with regard to continuance of the petitioner or with regard to sanction of post. There would be again no difficulty in accepting the aforesaid submission of the learned counsel for the State that if there has been no sanction post, the services of the petitioner cannot be regularized but then the authority, who has been taken work from the petitioner for the last 30 years if he himself had recommended to the Government 5 for absorbing the services of the petitioner in regular establishment, as is evidenced from Annexure 2 to the writ application, the Government was at least required to take a final decision either accepting such recommendation or rejecting the same. In the counter affidavit not a word has been said about the final decision taken on such recommendation contained in Annexure 2. The submission of the learned counsel for the petitioner which would merit consideration is long continuance of the petitioner. True it is that the Apex Court in the case of Satya Prakash (supra) has held that merely because a temporary employee or a daily wage worker is continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not made by following a due process of selection but then the question would be why such appointments are being continued for 30 years. If the petitioner, therefore, has been continuing for last 30 years despite the respondents being aware of the inherent 6 infirmity in his engagement, it may well amount to condoning the alleged infirmity in his engagement. This Court, however, would not like to put a final word in view of the stand taken by the learned Addl. Advocate General that he has no latest instructions as to the present State of Affairs. As a matter of fact the learned counsel for the petitioner also was not able to cite any example of any junior to him working on daily wages to have been regularized in service and in such a situation this Court would remit the matter back to the Principal Secretary of Water Resources Department to consider the grievance of the petitioner as with regard to regularization of his service at least from prospective effect so that if his past services on daily wages are without any break, he may atleast get the benefit of a prescribed pay scale and consequently computation of his past services for the purposes of being paid his pension and retirement benefit. It is however made clear that such regularization of the petitioner if allowed 7 prospectively would not make him entitled to get payment of salary in the prescribed pay scale but then if it is found that the post of Chaukidar is continuing for the last 30 years and the petitioner is continuing against such post, the respondents would be at least under obligation to consider the case of the petitioner for his taken into regular establishment so as to enable him to get defined service condition. This Court must make it clear that it has expressed no opinion on the so called claim of the Respondents of the petitioner's initial entry on daily wages being without observance of the due process of selection as held in the judgment of the Apex Court in the case of Satya Prakash (supra). In this regard it has to be noted that no such plea of initial engagement of the petitioner on daily wages being in violation of the prescribed procedure for appointment has been pleaded in the counter affidavit and therefore, this Court cannot in abstract apply the ratio of judgment of Apex Court in Satya Prakash (supra). At the same time this Court must 8 make it clear that the view taken by the learned Single Judge in the case of Tej Narayan Yadav (supra) which was referred to and relied by the counsel for the petitioner may not become applicable in the case of the petitioner if the post has not been sanctioned as yet. As a matter of fact reference to the order of this Court in the case of Rabindra Nath Mishra (supra) will also be of no help, inasmuch as from the reading of factual narration in paragraph 8 thereof it would be clear that the petitioners of that case were not only given appointment letter, service book etc. but for them the High Level Committee had also found them eligible for regularization. More over the case of Rabindra Nath Mishra (supra) was relating to termination of their service and it was held that after they being allowed to continue for 26 years should not have been subjected to termination. In that view of the matter, while this Court would not restrict the limit of exercise of power of the respondents while considering the case of the petitioner for 9 his regularization of service but then it would expect the official respondents to rise to occasion to ensure that a person working continuously for last 30 years (if it is so) is not left to fend himself in an uncertain manner, which a daily wager employee would be, if his services are not regularized. In that view of the matter, this Court would direct the official respondents particularly the Principal Secretary of Water Resources Department to consider the case of the petitioner and similarly situated persons so that if there are also others being better placed than the petitioner, at least their cases are considered for regularization in terms of the judgment of the Apex Court in the case of Secretary, State of Karnataka & ors. vs. Uma Devi & ors., reported in (2006)4 SCC 1. Let it be made clear that this Court has expressed no final opinion on the claim of the petitioner for regularization of his service nor has it held the circular dated 18.6.1993 to be a policy of regularization inasmuch it only takes of 10 giving preference to daily wages engaged prior to 1.8.1985 in the matter of regular appointment. This Court has simply remitted the matter back to the respondents being impressed with continuance of the petitioner on daily wages for almost 30 years. Such exercise of consideration of the case of the petitioner for regularization of his service however must be completed by the Principal Secretary of Water Resources Department within a period of six months from the date of receipt/ production of a copy of this order and in case the same is rejected the reasons thereof must be communicated to the petitioner. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/