IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4235 of 2009 Ram Niwas Choudhary . Versus The State Of Bihar & Ors . with CWJC No.4222 of 2009 Pankaj Kumar Ghosh . Versus The State Of Bihar & Ors . with CWJC No.5557 of 2009 Chandralekha Devi . Versus The State Of Bihar & Ors . with CWJC No.5621 of 2009 Md.Mustak Alam . Versus The State Of Bihar & Ors . with CWJC No.5623 of 2009 Rakesh Kumar . Versus The State Of Bihar & Ors . with CWJC No.5625 of 2009 Sadan Kumar . Versus The State Of Bihar & Ors . with CWJC No.5626 of 2009 Amit Kumar . Versus The State Of Bihar & Ors . with CWJC No.5631 of 2009 Anant Kumar Ranjan . Versus The State Of Bihar & Ors . with CWJC No.6017 of 2009 Ranjit Kumar Malakar . Versus The State Of Bihar & Ors . with CWJC No.6025 of 2009 Sanjay Prasad . Versus The State Of Bihar & Ors . with 2 CWJC No.4186 of 2009 Chandra Mohan Pandey . Versus The State Of Bihar & Ors . with CWJC No.4637 of 2009 Deepak Shardey . Versus The State Of Bihar & Ors . with CWJC No.4280 of 2009 Rahul Deo Prasad . Versus The State Of Bihar & Ors . with CWJC No.4263 of 2009 Rajeev Ranjan . Versus The State Of Bihar & Ors . ----------- 2. 28.07.2011 Heard learned counsel for the petitioners and the State. The petitioners claim to have been appointed as a Computer Operator on daily wages in different Blocks of Bhagalpur and the office of the District Development Commissioner commencing from 2002 till 2007. They seek directions for regularization of their services on basis of long working indicative of permanent need for such personnel urging that they fulfill all requirements for the post. The petitioners have not been able to demonstrate selection and appointment by open advertisement and competitive merit selection. There is no statement on their part that sanctioned vacant 3 post exists and that they have been appointed on daily wages against the same. It is fairly acknowledged that they came to be appointed on the basis of the notice board advertisement. Such an advertisement has been held to be contrary to the law and not meeting the requirements of Article 14 of the Constitution of India. In (1996) 7 SCC 577 (Ashwani Kumar v. State of Bihar) it has been observed at Paragraph-26 as follows:- “26. …………The procedure adopted by Mallick in either appointing or directing to appoint persons who had applied for appointment pursuant to the notification of vacancies put up on the notice board was stage-managed by him and is in flagrant breach of Articles 14 and 16(1) of the Constitution.” Counsel for the State urged that a daily wager has no claim for regularization. Relying on the Secretary, State of Karnataka & Others Versus Uma Devi (3) and Others, 2006 (4) SCC 1. Uma Devi (supra) has been explained subsequently in more than one judgment by the Supreme Court itself. However, a basic thread runs across all these judgments. Subject to the same it may become necessary in the facts of a case to examine the applicability of the same. 4 It cannot be lost sight of, that if what the petitioners contend is correct, and some of them appointed as far back as 2002, are still working, that by itself without further more may be indicative of the permanent need for regularly appointed Computer personnel Operator in the office of the Block Development Officer and the Deputy Development Commissioner in Bhagalpur. If the respondents propose to use the Computers for a short duration of time only and if the computers do not form an integral part of the office infrastructure, and the respondents do not wish to proceed further in the direction of computerizing their work and propose to continue with the old system of manual work, there is no occasion for the Court to consider matters any further. But if the situation is to the contrary, there is certainly a lot for the respondents to answer even as a matter of policy. The appointment of a Computer Operator is not a highly skilled and specialized post for which the respondents shall have the discretion to make contractual appointment, if so necessary, in certain cases even without an advertisement. But this Court cannot give directions for creation of a post. That is a privilege of the executive. 5 Again the Court cannot loose sight of the fact that if circumstances indicated the need for a regular sanctioned post, it does not behove a Welfare State to resort to a subterfuge of a contractual appointment to shirk the duties, responsibilities and obligations more onerous towards a regular employee with larger service benefits that would follow as distinct from a daily wage/contractual appointment. While the Court finds it difficult to grant any positive relief except by observing that as and when regular advertisement is issued and the petitioners apply their cases are required to be considered in accordance with law keeping in mind that they have been discharging works on behalf of the respondents professional in nature and the utility of their experienced hand for the respondents themselves. The respondents as a matter of policy are expected to consider relaxation of age, weightage for past experience and their own utility of a trained personnel from their own office. The Court expects that the respondents shall now seriously consider and take a policy decision in the matter. No benefit under the present order can be 6 obtained by such of the petitioners who may have been appointed on daily wages but have been subsequently terminated or have left service. Such applicants under a fresh advertisement shall have to stand on their own competitive merit selection and the benefits observed in the present order shall be restricted and/or confined to only those whose status as a daily wager has an element of continuity till today from the date of their initial appointment. The submission on behalf of the petitioners that one daily wager cannot be replaced by another daily wager is unexceptionable. But the Court expects the respondents to keep those aspects in mind while taking a policy decision in the matter. The writ applications stand disposed with the aforesaid observations. P. Kumar ( Navin Sinha, J.)