IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12737 of 2007 UPENDRA PRASAD SINGH, son of Shri Ramashraya Singh, resident of village Subhanpur, P.S. Barbigha, District Sheikhpura at present working as Store Keeper in the Department of Zoology, M.P.S. Science College, Muzaffarpur ... Petitioner Versus 1. THE STATE OF BIHAR through the Secretary Human Resources Development Department, Govt. of Bihar, New Secretariat, Patna 2. The Director, Higher Education, Govt. of Bihar, New Secretariat, Patna 3. Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur through its Vice Chancellor 4. The Registrar, Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur 5. The Principal, M.P.S. Science College, Muzaffarpur ... Respondents ----------- 3. 25.11.2010 Having heard Mr. Basant Kumar Choudhary, learned Senior counsel for the petitoner and the counsel for Baba Saheb Bhim Rao Ambedkar Bihar University, this Court is of the considered opinion that while the petitioner would definitely be entitled for his wages for actual work done but then as the petitioner’s appointment on the post of Store Keeper in the Department of Zoology in M.P.S. Science College, Muzaffarpur has been made on 15th February, 2006, he would never be entitled to count his previous service rendered on daily wages towards regular service. The reason for the same is very 2 simple. The petitioner was inducted in the College under the order of the Principal of the College who had no power to make such appointment even on daily wages. The power of appointment on Class III or Class IV posts in a constituent college of the University is exclusively vested in the Vice Chancellor of the University in terms of section 10(6) of the Bihar State University Act. Therefore, if the Principal of the College in anticipation of approval of the University had made such an appointment of the petitioner even on daily wages and the Vice Chancellor of the University had never given such approval to his such appointment that at best could be taken to be only his continuation in daily wages. The daily wages engagement as is reflected from the nomenclature itself starts from the morning and comes to an end in the evening. They have no right to the post nor they can claim any seniority on the basis of their services rendered on daily wages. In that view of the matter, there would be no question of giving seniority to the petitioner or counting his service from 3 the period of initial engagement on daily wages i.e. 7.3.1990 when the petitioner came to be engaged on daily wages. The reliance placed by the learned counsel for the petitioner on a judgment of this Court in the case of Shikshaketar Karmchari Sangh & ors. vs. the State of Bihar & ors., reported in 1998(1) PLJR 723, is also wholly misplaced, inasmuch as what was considered therein was with regard to claim of regularization of certain employees, who were continued in service for a period over 14 years. In that context the learned Single Judge had made an observation that since the post on which they were continuing were covered by the staffing pattern, the cases of such daily wages appointee should be considered for regularization and in the event they are regularized they should be given seniority from the date of their first appointment. In the case of the petitioner even though he had also made same attempt this Court did not in the earlier round of litigation in C.W.J.C.No. 1886/1999 give the same relief as in the case of Karmachari 4 Sangh (supra). In fact in the case of the petitioner unlike in the case of Shikshakatar Karmchari Sangh (supra) the only direction given was as follows: “Accordingly, I direct the respondents to fill up the post of Store Keeper, Zoology Deptt., on regular basis. If the petitioner applies for his appoinment, his case be considered along with others for such regular appointment. In case the petitioner is found similarly situated, he is to be given preference/ advantage over outsiders and, if so required, on relaxation of age.” It would be thus clear that the same Hon’ble Judge of this Court who had earlier passed order in the case of Shikshakatar Karmchari Sangh (supra) had found the case of the petitioner clearly distinguishable and had left the petitioner to avail the limited opportunity of being considered for regular appointment. Such regular appointment in fact had to be made only from a prospective date and therefore, when the respondents had ultimately appointed the petitioner by an order dated 15th February, 2006 he cannot now claim the 5 seniority or any other benefit on the basis of his engagement on daily wages from 7.3.1990. Doing so in fact will be changing the terms and conditions of his appointment and since the petitioner has not challenged his appointment letter dated 15th February, 2006 he cannot be allowed to assail it indirectly. This Court, however, would find justification in that part of the grievance of the petitioner where he claims that despite his working on daily wages for the period 1.11.1992 to 14.2.2006 he was not paid even the agreed daily wages as envisaged in his order of engagement dated 7.2.1990. Counsel for the University in fact would point out that the claim for payment of salary on daily wages would squarely depend on the verification of his actual working which can be only done by the Principal of the College. Mr. Choudhary, however, would rely on certain certificates given by some of the Principal of the College as also to the wordings used in the order of appointment dated 15.2.2006 to support himself that the 6 working of the petitioner in the aforementioned period of November, 1992 to February, 2006 on daily wages is nowhere in doubt. In the opinion of this Court neither the certificate nor the wording of the letter by itself can be conclusive proof of actual working of the petitioner on daily wages. The actual working of daily wages employee has to be verified on the basis of work taken by the controlling authority. The petitioner was engaged on daily wages by the Principal of the College and his services were to be utilized as Store Keeper in Zoology Department, therefore, it is the Head of the Department of Zoology and the Principal of the College who can only verify the continuous working of the petitioner on daily wages. That being so, this application so far it relates to the issue of payment on daily wages for the period November, 1992 to 14th February, 2006 should be considered by the Principal of the College and if he finds that the petitioner’s working in the aforementioned period or any part thereof is 7 admitted he would make necessary arrangement for making payment of his salary as prescribed on daily wages and if the Principal comes to such a conclusion that certain amount is also payable he will send his requisition to the Registrar of the University who after making due verification will release necessary fund for its payment to the petitioner. This exercise, however, must be completed by the respondents within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/