IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8625 of 2002 Sri Upendra Prasad, son of Sidheshwar Prasad, resident of village Ushri, P.S. Kako, District- Jehanabad, at present posted and deputed as Store-keeper at State Family Welfare Bureau, New Secretariat, Patna …………. Petitioner Versus 1.The State Of Bihar through the Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna 2.The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 3.The Executive Engineer, Engineering Cell, State Family Welfare Bureau, Rajbanshinagar, Patna 4.Director in Chief, Health Services, Government of Bihar, Patna ………… Respondents ----------- 8. 21/05/2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of order dated 27.3.2002 passed by the respondent Secretary, annexed as Annexure-12, by which his representation, as contained in Annexure-11, for acceptance of his joining as regular employee, has been rejected. It appears that the petitioner’s services were earlier terminated, against which he had moved this Court through C.W.J.C.No.14625 of 2001. The said writ application was allowed by order dated 29.1.2002, as contained in Annexure-10. This - 2 - Court found that the petitioner had continued in service for about 20 years in work charge establishment and was getting scale, therefore, the act of the respondents in terminating the services of the petitioner instead of considering his case for absorption as regular employee was held to be arbitrary and unreasonable. This Court, therefore, quashed the orders of his termination and directed the respondents to consider the case of the petitioner for his absorption in regular service. Pursuant to the said order, petitioner filed the said representation, as contained in Annexure-11, which has been rejected by Annexure-12. Learned counsel for the petitioner submits that the petitioner filed contempt application also and thereafter petitioner has been allowed to continue in work charge establishment till today and all his arrears have been paid. However, he submits that in terms of the order of this Court, as contained in Annexure-10, respondents ought to have considered the case of petitioner for his absorption and ought to have passed orders for the same in terms of the - 3 - observation of the Court as made in the writ application. He also submits that the Engineering Cell of the Health Department has been merged with the Building Construction Department and all employees of this establishment have become employees of Building Construction Department. He has also pointed out that the persons, who were appointed along with the petitioner, have already been absorbed in regular service, ignoring the case of the petitioner. A counter affidavit has been filed on behalf of the respondents and learned counsel for the respondents submits that the petitioner was initially appointed on daily wages and continued in work charge establishment in which there is no work. However, he still managed to continue in service. Since the establishment itself has no work, petitioner was not entitled to continue and therefore, he is not entitled for absorption in regular service. Matter with regard to absorption of daily wages, casual etc. employees has been authoritatively settled by a Constitution Bench of the Apex Court in the case of - 4 - Secretary State of Karnataka Vs. Uma Devi, reported in 2006(2) PLJR (SC) 363, in which the Apex Court has held that such appointments on daily wages etc., which have been made illegally, have to be terminated. However, in paragraph 44 of the judgment, as one time exception, the Apex Court has directed the authorities to consider the cases of such employees, who have not been appointed illegally and who have continued in service for more than ten years, for their absorption. It appears to this Court that the case of the petitioner is fit to be considered for absorption in terms of said paragraph 44 of the judgment of the Apex Court as petitioner has continued in service now for more than twenty five years and from the facts discussed by this Court in the earlier writ application of the petitioner, as contained in Annexure-10, it cannot be said that the petitioner’s appointment was altogether illegal. In the circumstances, this Court directs the respondents to consider the case of the petitioner for his absorption in - 5 - regular service in terms of paragraph 44 of the judgment of the Apex Court in the case of Secretary State of Karnataka (Supra). Consideration must be made and final order must be passed within a period of three months from the date of receipt/production of a copy of this order. It is made clear that for that consideration, no reference will be made and no reliance will be placed by the respondents on the earlier orders of the Secretary, as contained in Annexure-12. The writ application is disposed of with the aforesaid observations and directions. Pradeep/ ( J. N. Singh, J.)