IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.922 of 2009 Rameshwar Singh . Versus The State Of Bihar & Ors . ----------- 2. 30.06.2011 Heard learned counsel for the petitioner and the State. Counter affidavit has been filed on behalf of the respondents. It is not a disputed fact that the petitioner was initially appointed in the work charged establishment but was inducted into the regular establishment as a Peon on 6.1.1982. Learned counsel for the petitioner submits that since there was no sanctioned post of Jeep Driver, but the respondents required the services of a Driver in the establishment, he was asked to discharge duties as a Jeep Driver for which he was given extra officiating allowance for some time. An interview for the post was held on 28.9.1988 when in all 22 persons participated in the selection process which is not denied in the counter affidavit. Up till now the petitioner continues to work as a Jeep Driver in the pay scale of a Peon but has not been regularized on the former post causing monetary loss to him. The petitioner had earlier preferred C.W.J.C. No. 8579 of 2002 disposed on 12.08.2002. This 2 Court observed that it could not give a mandamus for creation of a post but nonetheless if the petitioner was working for long years indicating a permanent need of a driver his case was required to be considered. The respondents have not appreciated the tenor, scope and purport of the order of the Court and wrongly rejected it on 15.2.2003 on the ground that there was no sanctioned post of Jeep Driver. It has been specifically asserted in Paragraph-18 that even after the aforesaid order the respondents have continued to utilize his services as a Jeep Driver and continued to do so as of date. Dealing with the same in Paragraph-14 of the counter affidavit the respondents state:- “The facts is that he was never force to drive the Jeep nor it was mandatory to work as a Jeep Driver”. The respondents themselves on 12.6.2003 had opined that there was no need to create posts, issue advertisement for filling up the vacancies of the post of driver by conversion of such posts of Peon into that of a Jeep Driver to the extent necessary which would also cause financial savings. The counter affidavit does not answer or deal the issue. Counsel for the State submitted that there 3 being no sanctioned post of a Jeep Driver, the petitioner cannot be considered for appointment on that post. After the post is sanctioned appointment shall be made in accordance with law when the petitioner may also be considered along with others. The present cannot be classified as an outright case of an illegal appointee seeking regularization of his services. The petitioner is in the regular establishment as a Peon. His employment status in that capacity is beyond reapproch. The fact that the respondents themselves opined the need to convert certain posts of Peon into that of Jeep Driver for administrative convenience is also not denied. Unfortunately, no development on that aspect appears to have taken place. The respondents cannot have their cake and eat it too. Either they require a Jeep Driver or they do not require a Jeep Driver. If the petitioner has been asked to work as a Jeep Driver since 1988 and continues to do so perhaps no more evidence is required that there is a need for a Jeep Driver. The conduct of the respondents in not creating the post and filling it up in accordance with law for long long years by adopting a subterfuge is therefore wholly unjustified. There is no controversy at the Bar that the post of a 4 Jeep Driver carries certain additional financial benefits apart from other service benefits that may ensue from that of a Peon. If the respondents do not wish to sanction posts of a Jeep Driver and make any appointment on that post, the Jeep must go back to the garage. A welfare State cannot indulge in the kind of subterfuge that the respondents seem to be resorting to for long long years. It cannot be classified as an appointment in the exigency of the situation. If the petitioner has been appointed as a Peon in the regular establishment, his foot hold in the department is fully in consonance with law. A temporary duty with an allowance as a Driver for a limited duration perhaps may have given him no cause of action. But to hold that from 1988 till date he may have worked as Jeep Driver on the direction of the respondents because they needed a driver and still to hold that he is not entitled to the benefit of the post shall not be doing justice to the petitioner. In AIR 1999 SUPREME COURT 838 (Selva Raj v. Lt. Governor of Island, Port Blair) has held at paragraph-3 as follows :- “3……Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his 5 salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.” The respondents are therefore directed to pay him the full salary of a Jeep Driver payable in a similar establishment from 19.1.2009, the date of institution of the writ application and continue to do so as long as they utilize his services as a Jeep Driver after adjustment of the salary paid as a Peon. The petitioner has raised a specific allegation of hostile discrimination urging that others similarly engaged on the post of Jeep Driver have been given that status and salary. This has not been denied much less dealt with by the respondents in their counter affidavit. The Court cannot give a mandamus for his appointment as a Jeep Driver in absence of a sanctioned post and neither will it be proper to issue mandamus for the creation of a post. The need for a sanctioned post of driver is but writ large in the facts 6 of the case. If the respondents wish to have Jeep Driver they must make a regular appointment within a maximum period of six months from the date of receipt/production of a copy of this order. The petitioner may also apply and shall be considered in accordance with law. It is expected that he shall be given due relaxation of age and weightage for his past work experience. The respondents cannot refuse to take work from his as a Jeep Driver and engage any other person except by a regular appointment. In that situation the jeep must go back to the garage and the respondents shall have to do without the vehicle for reasons attributable to them alone in having perpetuated adhocism. The Court directs that till such fresh appointment is not made, if respondents wish to have the services of a Jeep Driver they are bound to pay and continue the petitioner till such fresh appointment is made. In Keshav Narayan Gupta v. Jila Parishad, Shivpuri (MP), (1998) 9 SCC 78 it was held at paragraph 5 as follows : “5. We, therefore, do not see any reason to take a view different from the view taken by the High Court. It is, however, submitted by the learned counsel for the appellants that these appellants have worked for 12 years by now and there are no complaints regarding their service. Hence, if any 7 regular appointments are made, the cases of the appellants should also be considered by waiving, if necessary, the age bar. We see some force in this contention. We, accordingly, direct that when regular appointments to the posts at present occupied by the appellants are made, the cases of the appellants will also be considered along with the other applicants by waiving the age bar in the case of the appellants, if necessary. Until such regular appointments are made the appellants will continue to function on an ad hoc basis as of now. With these directions the appeals are dismissed.” This has been reiterated in (2004) 8 SCC 353 (Pankaj Gupta v. State of J&K) at Paragraph-4 as follows:- “4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment.” The writ application stands disposed. P. Kumar ( Navin Sinha, J.)