IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.607 of 2009 Lakhan Lal Giri Goswami . Versus The State Of Bihar & Ors . ----------- 2. 24.06.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 3.7.2008 of the Deputy Development Commissioner, Munger, refusing to consider regularization of his services. The petitioner was appointed as a Driver on daily wages in the District Rural Development Agency at Munger on 4.4.1987. Subsequently he made an application for regularization. The respondents ordered that there was no sanctioned vacancy because of which he could not be considered as such and simultaneously proceeded to direct his induction into the Work Charged Establishment on 1.2.1991. The petitioner was then terminated from service on 18.3.1998. He preferred C.W.J.C. No. 8932 of 2001 which was dismissed on 11.10.2004. L.P.A. No. 1267 of 2004 preferred against the same was dismissed on 20.7.2005. Learned counsel for the petitioner submits that while dismissing his writ application, the 2 Court in the penultimate paragraph gave opportunity to represent if persons engaged after 21.10.1984 had been retained to raise questions of law. The petitioner represented on 6.3.2008 relying on a Government circular dated 16.3.2006 that if prior to 11.12.1990 a person had completed 240 days in service as a daily wager he may be considered for regularization subject to availability of vacancies, if he possessed the requisite qualifications and his services were satisfactory. He also alleged discrimination vis-à-vis certain persons named. Reliance has also been placed upon a judgment reported in (2006)1 SCC 693 (Madan Singh & Ors. Vs. State of Haryana & Ors.). No counter affidavit has been filed on behalf of the State despite the fact that the writ petition has been filed nearly two and a half years ago. The initial appointment was on daily wages long years ago. Subtly a request was then made for regularization. In absence of any vacancy, a subterfuge was then adopted by inducting him as work charged employee to enable him to lay out a claim for regularization where non- existed, merely by passage of time. Nonetheless, he was terminated 3 on 18.3.1998. In C.W.J.C. No. 8932 of 2001, this Court did not find merit in the claim for regularization and dismissed the writ application declining to interfere with the termination. The challenge to the same in L.P.A. No. 1267 of 2004 was equally unsuccessful. The claim of the petitioner on merits thus attained finality. An indulgence granted by the writ Court as a matter of grace shall not efface the legality of the order of dismissal upheld by the Court or enthuse a fresh lease of life into a non existent claim judicially. If on such a representation, relief may follow, that may be an administrative matter and no more. In his representation filed subsequently the petitioner has made a bold statement in Paragraph-6 with regard to discrimination. The claim is vague. The petitioner was required to specifically allege discrimination in view of the observations of the Court in C.W.J.C. No. 8932 of 2001 as follows:- “at the same time it does not appear to be a case that persons engaged subsequent to the cut off date like the petitioner have been retained in service and the petitioner along has been 4 terminated”. It was for the petitioner to raise all grounds available to him in his writ petition. If he did not do so he has a serious issue to answer in constructive res judicata. Any observation by this Court cannot efface this legal principle and the Court never intended so. The petitioner cannot keep vexing the respondents time and again on the same issue by repeated litigation. To hold otherwise would amount to giving a latitude to the petitioner for his own lapses in not placing full materials before the Court while permitting him to continue with the litigation attributable to his own lapses. The order of the writ Court merged in the order of the appellate Court which only generally observed that if there was any circular, the petitioner may pursue the matter. The reference has to be understood in context of an existing circular and not any subsequent circular. The connotation of the word, “pursue the matter” cannot be lost sight of in the background of the dismissal of the writ petition and the memo of appeal. Merely pursuing the matter by filing a representation thereafter shall again not infuse fresh life into a claim which two successive Courts 5 did not find merit in. The reliance on the circular dated 16.3.2006 subsequent to the dismissal of his writ and appeal is not available to the petitioner. The law stands well settled that merely completing 240 days of service is no ground to demand regularization. In (2007) 6 SCC 207 (Hindustan Aeronautics Ltd. v. Dan Bahadur Singh) it has been held at paragraph 18 as follows:- “18. In M.P. Housing Board v. Manoj Shrivastava(para 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd.” The manner in which the petitioner was first brought in as a daily wager, followed by a written request for regularization and then inducting him into the work charged establishment in absence of vacancy were only a designed ploy to create a claim for regularization as noticed in A.I.R. 1992 SC 789 (Delhi Development Horticulture Employees Union Vs. Delhi Administration, Delhi & Ors.) observing at Paragraph-15 of the judgment that the Court can take judicial notice of the fact 6 for the manner in which employment such as the present “ is sought and given directly for various illegal considerations including money”. The reliance on the case of Madan Singh (supra), a judgment delivered on 17.3.1988 giving the benefit of regularization to a work charged employee for a long years of service was but a part of the earlier service jurisprudence. The law as it has evolved in the Secretary, State of Karnataka Vs. Uma Devi (2006)4 SCC 1 and further explained in (2010) 4 SCC 179 (Satya Prakash & Ors. Vs. State of Bihar & Ors.) it is only those who were appointed against a permanent sanctioned vacancy on daily wage and had continued to work as such for over 10 long years were alone eligible to be considered for regularization. A work charged employee does not hold office against a permanent post. The status of a work charged employee has been explained in A.I.R 1980 SC (Jaswant Singh & Ors vs. U.O.I & Ors) holding at Paragraph-42 as follows:- “42. A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "work". The pay and allowances of employees who are borne on a work-charged establishment are generally shown 7 as a separate sub-head of the estimated cost of the work.” Paragraph-47 of Uma Devi (supra) itself holds as follows:- 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” Regularization is only an act of permanency given to one who is present in the establishment in any other capacity. If the person is not in the establishment the question of regularizing him does not arise. It shall have to be 8 a case of fresh appointment. Regularization is not a mode of appointment. If that be so, Article 14 of the Constitution shall have full play in such appointment with equal opportunity to all who wish to be considered. On his own showing the petitioner he is out of service since 1998. The Court finds no merits in the application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)