IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.160 of 2008 DINESH KUMAR @ DINESH PD.MANDA . Versus THE STATE OF BIHAR & ORS . ----------- 3/ 24/11/2009 Despite adjournment no counter affidavit has been filed. Learned counsel for the State submits that notwithstanding intimation by FAX also, no instructions have been received in the matter. The petitioner claims to be a daily wage driver working presently in the office of the Deputy Development Commissioner, Araria from 2001. It is his further case that he worked in the capacity of a driver with the Block Development Officer, Falka at Katihar during ‘1992 to 1998’ when he was removed. The petitioner contends that notwithstanding the availability of sanctioned vacant posts of drivers in the district of Araria work has been continued to be taken from him on daily wages only to defeat his claim of a regular employee. He claims to have applied in response to a public notification notwithstanding which his case has not been considered. Earlier in C.W.J.C. No.9151/94, disposed on 15.5.1995, this Court had directed an advertisement to be issued and appointments to be made in accordance with 2 law. A daily wager holds no post and, therefore, no orders for his regularization/absorption can be issued. Nonetheless, if sanctioned vacant posts are available, the respondents cannot be permitted to resort to a subterfuge by continuing daily wage appointments at their discretion. This Court holds that keeping sanctioned posts vacant, available notwithstanding orders of this Court, as alleged, to fill it up in a regular manner, and to continue to appoint or take work from daily wagers against such sanctioned vacant posts is reflective of unfairness and extraneous considerations. Obviously, a person on daily wages will be retained to the personal satisfaction of the person appointing when the Constitution of India shall have no relevance. If the petitioner has continued in this manner, this Court directs the Commissioner-cum-Secretary, Department of Personnel, Government of Bihar to examine the matter and if the petitioner is working in the office of the D.D.C., Araria as claimed, he shall adequately be required to examine the aspect of departmental action against the persons who have continued to retain the service of the petitioner by the subterfuge on daily wage. The entire daily wage paid to the petitioner from the date of availability of the sanctioned vacant post is directed to 3 be recovered from the salary of those who appointed the petitioner and continued to take work from him on daily wage. No recovery shall be made from the petitioner. If vacancies still exist, and persons are being made to work on daily wages against such vacancies, which itself is indicative of the need for regular personnel to be appointed on those posts, let appointments be made in accordance with law within a maximum period of six months from the date of receipt/production of a copy of this order after which all daily wage appointments on such sanctioned vacant posts existing since long shall cease. The writ application stands disposed with the aforesaid directions for recovery to be complied with within a maximum period of four months from the date of receipt/production of a copy of this order before the Commissioner-cum-Secretary, Department of Personnel, Government of Bihar. If the respondents make fresh appointments and the petitioner applies, it is expected that issues of relaxation of age and his experience in the Department shall be given adequate weightage. KC ( Navin Sinha, J.)