IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4838 of 2010 1. PRABHU YADAV S/O SRI RAMESHWAR YADAV R/O VILL BUDHI PAIMAR, P.O. GOGA, P.S.MUFFASIL, DISTT-GAYA 2. RAJENDRA YADAV S/O SRI GOPI YADAV R/O VILL SURAIHARI TOLA-MURKATTA MANJHAULI, P.O.BARAGANDHAR, P.S.MUFFASIL, DISTT-GAYA 3. VIJAY YADAV S/O SRI MUNDRIKA YADAV R/O VILL KARAHARA, P.O.DHARMSHALA, P.S. TEKARI, DISTT-GAYA 4. DWARIKA YADAV S/O SHRI GANAURI YADAV R/O VILL KARAHARA, P.O.DHARAMSHALA, P.S.TEKARI, DISTT-GAYA 5. NAGENDRA YADAV S/O SRI LOKI YADAV R/O VILL SUDHANI, P.O.KHARAHARI, P.S.WAZIRGANJ, DISTT-GAYA Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, FOREST AND ENVIRONMENT DEPARTMENT GOVT.OF BIHAR, PATNA 4. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFOMS DEPARTMENT GOVT.OF BIHAR, PATNA 5. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST BIHAR, PATNA 6. THE FOREST CONSERVATOR GAYA DIVISION, GAYA 7. THE DIVISIONAL FOREST OFFICER GAYA DIVISION, GAYA 8. THE SPECIAL THREE MEMBER COMMITTEE THROUGH THE SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT BIHAR, PATNA ----------- 02. 15.11.2010 Heard learned counsel for the petitioners and the State. The petitioners are stated to be daily wage employees of Grade-IV in the Gaya Forest Division, claiming to be working since 1978/1983 continuously. They came to this Court earlier in C.W.J.C. No. 8928 of 2005 with a prayer to be considered for regularization. It was disposed off with analogous cases on 21.1.2007, referring the matter to a three men committee for 2 consideration. That stands rejected by separate orders at Annexure-7 series. Learned counsel submits that the petitioners have been working on daily wage for approximately 30 years. Their letter of appointment dated 5.7.1982 is indicative that they were appointed on vacant posts. Strong reliance is placed on the judgment of the Supreme Court in 2006 (4) SCC 1 (Secretary, State of Karnataka and Others Versus Uma Devi and Others) more particularly paragraph-53 of the same. Learned counsel for the State submits that the consideration by the three men committee is speaking in nature. The petitioners having been found ineligible for regularization. It stands long settled by a catena of decisions commencing as far back as from 1997 (4) SCC 88 (State of U.P. Versus Ajay Kumar) that daily wagers hold no post and the question of their regularization does not arise. It has been held at paragraph 3 as follows :- 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 3 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.” As the nomenclature of the post goes, it is precarious by nature in its very origin. Such appointments are usually made to tide over a crisis due to excess work load or special scheme/situation. Such appointment cannot be a subterfuge for a regular appointment which can only be by proper advertisement and competitive selection on merits. From the letter of appointment of the petitioners dated 5.7.1982, it is apparent that they were not appointed in accordance with law after advertisement and open 4 merit selection. The appointment letters simply state that they are being taken in as they fulfill the required yardsticks and are being posted at the places assigned against their names. There is no pleading in the writ application that even this appointment was in accordance with the mandate of Article 14 of the Constitution of India. Paragraph-53 of the judgment of Uma Devi (supra) makes an exception with regard to irregular appointments as distinct from illegal appointments observing that those who might have continued to work for 10 years or more without interference of the Court or Tribunal may be considered for regularization in accordance with law as a one time measure. That daily wagers do not come within the observation stands explain at paragraph 48 and 49 of the judgment as follows:- “48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being 5 paid. Those who are working on daily wages formed a Class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to be a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even those they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.” “49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the state to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and Courts initiated at the instance of the 6 employees. Moreover, accepting an argument of the nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Court is approached for relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.” There have been more than one orders of the Court pursuant to Uma Devi (supra) where directions have been issued to consider for regularization of daily wagers also. Deprecating such observations the Supreme Court explaining Uma Devi (supra) in 2010 (3) SCC 115 (State of Karnataka and Others Versus Ganapathi Chaya Nayak and Others) and 2010 (4) SCC 179 (Satya Prakash and Others Versus State of Bihar And Others) has explained that it has no application to daily wagers. It has been held in the relevant extract of paragraph 12 as follows:- “12. Then, in Umadevi (3) case in para 53 the Court stated as follows: (SCCp.42) “53. One aspect needs to be 7 clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.” 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 do not fall within the category of the employees mentioned in paragraph 53 of Uma Devi 8 and can derive no benefit from the same. There is no merit in this application. It is accordingly dismissed. P.K. (Navin Sinha, J.)