IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.19724 of 2010 Madan Kumar & Ors Versus The State Of Bihar & Ors ----------- 3. 05.08.2011 Heard learned Counsel for the petitioners and the learned Counsel for the State. This matter has been listed out of turn on a motion slip for urgency on the ground that salary was being denied. When the matter was taken up Counsel for the State made a prayer for adjournment to file a counter affidavit. The Court does not consider it necessary in view of the issues which have transpired during discussion in the Court as narrated hereinafter:- The original relief sought in the writ application was for quashing of the order dated 6.10.2009 by which the claim for regularisation has been rejected. The petitioners are stated to have been appointed as “Malis” in the work charge establishment on 31.12.1987. Earlier they claim to be working as daily wager. On 27.9.2006 they were sought to be reverted to daily wage which according to them has been stayed by the Department itself on 10.7.2008 by letter no. 5485. They thus claim to continue in service in their work charge capacity. Learned Counsel for the petitioner initially sought to rely upon a Bench decision in CWJC No. 16060 of 2004 to contend that in terms of the government circular dated 4.12.1949 converted into Rules under proviso to Article 309 of the Constitution of India incorporated in the PWD Code Volume I, continuance in the work charge establishment beyond a period of one year would result in 2 confirmation. He submits that this judgment has been upheld in LPA No. 459 of 2009 and in turn affirmed by the Apex Court. The view taken in CWJC No. 16060 of 2004 was followed by another Division Bench of this Court giving rise to SLP (Civil) No. 18380 of 2008 preferred by the State. The order of the Division Bench has been stayed pending disposal of the appeal. Therefore the challenge to the order dated 6.10.2009 in the present writ application is not considered proper for adjudication at this stage. Liberty is granted to the petitioners to agitate that issue all over again subject to the final decision that may follow in SLP (Civil) No. 18380 of 2008. That right shall not be denied to the petitioners on grounds of res judicata or constructive res judicata. The only question now surviving is the claim for salary. There are only three possibilities:- (a) The petitioners are not working at all in the establishment; (b) They are working under work charge status; and (c) They are working on daily wage. In the latter two cases they are naturally entitled to salary. Their claim is that they are working on work charge status. Strong reliance is placed on circular dated 3.12.2010 bearing no. 302 appended to I.A. No. 2663 of 2011 that notwithstanding direction for payment of salary of work charge employees inclusive of arrears it was not being paid. Salary is a statutory right. It cannot be denied except in accordance with law and a manner prescribed by law. Let the Secretary, Building Construction and Housing Department, Government of Bihar, consider the grievance of the 3 petitioners in light of the present discussion limited to the issue of payment of salary keeping in mind the constitutional mandate under Article 23 of the Constitution of India. Let such appropriate decision be taken by a reasoned and speaking order within a maximum period of three weeks from the date of receipt and/or production of a copy of this order before him. The Court considers the aforesaid time frame as reasonable keeping in mind that every person who takes up does so to earn a livelihood. If justification is found in the claim of the petitioners or in any part of the claim necessary consequential action by way of payment shall be taken during the said period. With the aforesaid observations and directions the writ application stands disposed. Snkumar/- (Navin Sinha,J.)