IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16 of 2010 1. Bisheshwar Singh S/O Late Barkuban Singh R/O Vill.- Katari, P.O.- Ekwalganj-Nisharpura, P.S.- Rani Talawab, Distt.- Patna Versus 1. The State Of Bihar, Through The Principal Secretary, Water Resources Deptt., Govt. Of Bihar, Patna 2. The Chief Engineer, Water Resources Deptt. (Irrigation), Anishabad, Patna 3. The Superintending Engineer, Ganga Sone Flood Control Circle, Mithapur, Patna 4. The Executive Engineer, Ganga Flood Control Division, Bihar, Patna Division, Digha, Patna 4/ 06/09/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner claims to have been appointed on daily wages on a class-4 post in the Department of Water Resources in the year-1979. It is his contention that he was being made to superannuate in that capacity only without considering his claim for regularization on 30.11.2009. Others have been considered for regularization in terms of the order of this Court in C.W.J.C. No.12092/09 and C.W.J.C. No.12324/09 causing hostile discrimination to him. It is incomprehensible how his entire service career since 1979 till 2009 can be in the capacity of a daily wager. It reflects a regular appointment and discharge of regular duties for which his services are required to be reckoned as pensionable. 2 Two counter affidavits have been filed by the respondents reiterating that his was a daily wage appointment only which never came to be regularized. It is contended that even after the order in C.W.J.C. No.12092/09 preferred by the Union his case has been considered and rejected by an order dated 15.12.2009 which has not been assailed in the present writ application. The petitioner claims to have been appointed on daily wage in 1979. There is no explanation in the writ petition why he waited for this unduly long period of time till four days prior to his superannuation on 30.11.2009 to file the writ petition on 26.11.2009. Even otherwise, he could always have approached this Court individually for the relief as distinct from the Union approaching this Court in 2009. Those who approached this Court seeking the relief for regularization in 1999 when the service jurisprudence which held the field may have been different can be of no avail to the petitioner. When the petitioner took up appointment on daily wages he was fully conscious of the precarious nature of his appointment. No effort has been made in the writ petition to justify that the appointment was made in accordance with law by an advertisement and 3 competitive selection. The law stands well settled as far back as 1995 Suppl. (4) SCC 69 (Union of India vs. Pradeep Kumar Saxena) that a daily wager holds no post and therefore the question of his regularization does not arise. However, Court’s did pass orders for regularization of such persons. The matter crystallized with the Constitution Bench judgement in (2006) 4 SCC 1 (State of Karnataka vs. Umadevi). Paragraph-43 of the judgment holds that daily wagers, contractual appointees and casual labourers do not hold a post and therefore have no claim for regularization. Notwithstanding the same directions were given by Court’s to consider such persons for regularization also in terms of the observations contained in paragraph-53 of the judgment as a one time measure for those who may have completed ten years in that capacity. This led to the Supreme Court clarifying and reiterating in (2010) 3 SCC 115 (State of Karnataka vs. Ganpathi Chaya Nayak) and (2010) 4 SCC 179 (Satya Prakash Mishra vs. State of Bihar) that daily wagers were not entitled for consideration under paragraph-53 of the judgment of Umadevi (supra). The policy decision of 11.12.1990 sought to be relied upon for regularization of those who may have completed 240 days in service is best answered by 4 reference to (2006) 2 SCC 702 (M.P. Housing Board vs. Manoj Srivastava) holding at paragraph-17 that it cannot be a ground for regularization. While considering a similar claim under a 1993 Circular of the Department of Railways the Supreme Court has held in (2009) 5 SCC 193 (Pinaki Chatterjee & Ors. Vs. Union of India & Ors.) at paragraph-13 that such an outdated Circular contrary to the mandate of Article-14 of the Constitution more so after the judgement in Umadevi (supra) cannot be a cause of action to seek a mandamus. The Court therefore finds it difficult to grant any relief to the petitioner to treat his services as pensionable. The matter does not however end there. A daily wage appointment is made in the exigency of the work to tide over the workload or a crisis. It may continue for a reasonable period of time, say 2 to 4 years. But, when a daily wage appointment is continued from 1979 till 2009, it needs no emphasis that eyebrows shall automatically rise. It shall be no answer to say that those who appointed him in 1979 are answerable. The answerability continues to each individual who utilized his services and permitted him to continue in that capacity contrary to the law. They 5 also have to answer. It is a matter of serious enquiry how a person appointed on daily wage was allowed to continue for such long years and has now raised a claim for pensionable service. His predicament has also to be appreciated. That he is not entitled to a mandamus from the Court of Law is one aspect of the matter, those who facilitated this state of affairs is another aspect of the matter. This Court directs the Principal Secretary, Department of General Administration, to hold a thorough enquiry into this aspect and recommend to the State Government appropriately against all concerned, whosoever they may be, within a maximum period of four months from the date of receipt/presentation of a copy of this order before him. The order has been passed in presence of the State Counsel. The writ application stands disposed. KC ( Navin Sinha, J.)