IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.733 of 2009 Rajendra Rai Versus The State Of Bihar & Ors ----------- For the petitioner: Mr.Dhananjay Mishra, Advocate For the State : Mr.K.P.Gupta, SC 16 with Mr.Binod Kumar,AC to SC 16 ---- 3. 04.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner claims to be working as a Road Roller Driver in pursuance of his appointment made in 1988. Learned Counsel for the petitioner submits that engagement of a Roller Driver in the exigency of the work for a limited duration of a view years or month is one aspect of the matter. But the continuance of the petitioner as a Roller Driver on daily wage for long years since 1988 and which continues even now cannot be said to be an appointment in the exigency of the work. That itself is indicative of the need for a regular Roller Driver in the Department of Rural Development and the respondents cannot adopt an attitude to evade the responsibility that shall come with a regular sanctioned post of Roller Driver. Counsel for the State submitted that the petitioner is a daily wager. He therefore has no claim for appointment/regularisation. There is no sanctioned post of Roller Driver. As and when need arises his services are engaged on daily wage. The works discharged by the petitioner are under the National Rural Employment Guarantee Programme. The petitioner has no case for regularization and/or appointment. The counter affidavit leaves no doubt that the petitioner is continuing as a daily wager since 1988 up till now. Reasonably 2 speaking, perhaps no further discussion and evidence is required for the need of a permanent Roller Driver in the Department. The decision to appoint a Roller Driver in each district was not under the National Rural Employment Guarantee Programme but by the Department of Rural Development as an aid and need for expeditious execution of scheme under the National Rural Employment Guarantee Programme. The appointment was thus actually the responsibility of the Department of Rural Development on which the petitioner was to be employed. There appears to be some controversy about source of funds for appointment of such drivers which was clarified by the State Government in the Department of Rural Development on 4.8.1989 specifying that the daily wages shall be paid by the Department of Rural Development from the money received by them towards administrative expense. The Court therefore holds that the need for a permanent Roller Driver in the district is writ large on the facts of the case and the conduct of the respondents themselves by continuing the petitioner on daily wage since long years i.e. 1988. Counsel for the petitioner has rightly contended that an appointment made for a limited duration or at limited intervals in the exigency of work is entirely different matter but when the Department of Rural Development has also made a policy decision to appoint a Roller Driver in each district in aid for execution of the scheme the petitioner is not an appointee under the scheme. There can be no doubt that if in place of regular Roller Driver the daily wage is appointed the liability is much less confined to payment of daily wage. A regular appointee shall not only have to be paid a higher salary but the respondents shall be bound to make him available the host of other serviced benefits. It does not behoove of a welfare State to adopt the 3 kind of subterfuge presently adopted to overcome this defence of the4 liability that may be incurred by making a regular appointment. The Court is conscious of the fact that as a daily wager the petitioner has no right to claim appointment. Equally the Court cannot direct creation and sanction of the post and then appoint the petitioner on that sanctioned post. But, it is equally true that if the petitioner was on daily wage, the need is regular, he cannot be removed or replaced by another daily wager. In that event the Road Roller must go to the Garage. The Court therefore directs the respondents to consider whether they need a regular Roller Driver or not. If they do, they must publish an advertisement and make regular appointment within a maximum period of six months from the date of receipt and/or production of a copy of this order. If the petitioner applies in response to the same he is required to be duly considered ands it is expected that he shall be given due relaxation in age and weightage for his past work experience. Till such fresh appointment is not made following the direction of the Supreme Court in 1998 & 2004 the Court directs that the petitioner shall continue to function as a daily wage employee unless the respondent as a matter of policy decide to send the Road Roller back to the Garage. If there are any daily wage of the petitioner due and the petitioner represents for the same, respondent no. 3 is abound to consider the same in accordance with law within a maximum period of four weeks from the date of receipt and/or production of a copy of this order before him. If the respondent no. 3 finds justification in the claim or any part of the claim it is expected that legitimate arrears shall be 4 paid to the petitioner within that period. The State itself would certainly not violate Article 23 of the Constitution of India by forming the petitioner top form Begar. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)