IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5945 of 2010 1. Dhuruv Sah S/O Late Chatu Sah R/O Vill Bankatwa, P.S.Chanpatia, P.O.Yadav Chapper, Distt-West Champaran Versus 1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Patna 2. The District Magistrate -Cum-Chairman , Bihar Education Project Bettiah, West Champaran 3. The Director, Bihar Education Project Patna 4. The District Superintendent Of Education -Cum-District Programme Co-Ordinator, Bihar Education Project Diet Campus, Kumarbagh, West Champaran, Bettiah 5. Raghubar Prasad S/O Shiv Lakhan Prasad R/O Vill Banwa Tola, Parvatia Tola, Belbagh, P.S. Bettiah, Distt-West Champaran 6. Tunna Ram S/O Late Jiyan Ram R/O Vill Lauriya Bus Stand Chowk, Lauriya, West Champaran 7. Rakesh Kumar Singh S/O Kamlesh Singh R/O Vill Neknam Tola, Barha, Bhojpur, Ara 8. Bhagirath Baitha S/O Late Dhahari Baitha R/O Vill Gobrahia, Taulahan Madhubani, West Chamaparan 9. Parsuram Mahto S/O Late Lakhan Mahto R/O Vill Mathia Kumar Bag, Chuhri, Kumarbagh, Distt-West Champaran 10. Md. Kalam S/O Hafiz Mian R/O Vill Dumra Dewraj, P.O.Telpur, Lauriya, Distt-West Champaran ---------------------------------- 4. 20.10.2011 Heard learned Counsel for the petitioner, the State and the Bihar Education Project Council (hereinafter referred to as ‘the Council’). This writ petition was filed on 16.3.2010 after serving two copies in the office of the Advocate General. The matter was taken up on 7.12.2010 when notwithstanding passage of eighty months already gone by adjournment was again granted to file counter affidavit. One and a half years later counter affidavit is still to be filed by the respondents unmindful of their constitutional obligation under Chapter 4 of the Constitution of India to assist this Court in dispensation of justice much less their obligation under the State Litigation Policy framed in March 2011. 2 It transpired that the Council was a necessary party and copy of the writ petition was served on its Counsel on 9.9.2011 as noticed in the order dated 12.9.2011. The matter was again adjourned for the respondents to file a counter affidavit. No counter affidavit has been filed by any of the respondents. The Court is informed by the Counsel appearing for the Council that the latter has been created by an Act. It is funded partly by the Central Government and partly by the State Government for dissemination of education. There are no permanent employees in the Council and all appointments are only on deputation and/or contract. The petitioner claims to be a person appointed on daily wage in the Bettiah Collectorate, West Champaran. An advertisement is stated to have been published in September 2005 by the Council inviting applications for appointment on contract basis inter alia on the post of Peon cum Night Guard. The petitioner is stated to have applied as an unreserved candidate and claims to have been on higher merit position in the panel notwithstanding which persons below him have been appointed. He has impleaded certain persons as Respondents 5 to 10. His queries under the RTI Act have evoked a reply dated 12.11.2009 which acknowledges that he was one of the empanelled persons. But the order states that the posts got filled up by absorption in service of others who were working on daily wage in their blocks. The submission on behalf of the petitioner is that if an advertisement was published, applications invited and a panel drawn up, all appointments had to be made in pursuance of the advertisement itself for the posts in question and the posts so advertised could not have been filled up in any other manner. Counsel for the State submits that the petitioner had filed a representation which appears to be pending and directions may be 3 given to dispose it. Lastly it was argued that the matter may be remanded to the District Superintendent of Education –cum- District Programme Co-ordinator, Bihar Education project, Respondent no. 4, the author of the letter dated 12.11.2009. Counsel for the Council reiterated that there is no permanent appointment in the Council but only on deputation and/or contract. Relying on 2007 (110 SCC 102 (Guru Bachan Lal v. Regional Engineering College) he submits that question of regularisation/absorption on a contractual post does not arise. He further submits that in view of the law laid down in the aforesaid judgment there can be no absorption in a ‘project’ which by its very nomenclature is limited in time. The impugned order in no uncertain terms informs the petitioner that absorption has been done on contractual posts in a project. Quite apparently the Council does not appear to be in agreement with the action of the respondents in the Department of Education. No useful purpose is going to be served by referring the matter to the District Superintendent of Education. Quite apart from the judgment relied upon by the Counsel for the Council, the law stands well settled now by judgments of the Supreme Court in (2006) 4 SCC 1, (2010) 3 SCC 115 and (2010) 4 SCC 179 that question of regularisation of a daily wage employee does not arise. But the respondents 5 to 10 are not before this Court as notice does not appear to have been issued to them at any stage. They undoubtedly have had the benefit by the order dated 12.11.2009. No Court of law much less the respondents can pass any order adverse to a person or give any such direction contrary to law. The present order therefore cannot be treated as a carte blanche to the respondents to 4 act contrary to law. if they do so, they shall do it at their own risk and not under the orders of this Court. The Court considers the matter sufficiently important involving issues of policy because of the State appearing to act contrary to well settled law to direct that the matter be appropriately referred to the Chief Secretary or the State Government itself to decide the appropriate course of action to be now adopted. Needless to state that the illegality cannot be allowed to continue. Let the Chief Secretary and/or the State Government, as the case may be, take an appropriate policy decision in the matter in accordance with law within a maximum period of eight weeks from the date of receipt and/or production of a copy of this order. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)