IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.739 of 2009 1. THE STATE OF BIHAR 2. The Secretary Energy Department, Govt. of Bihar, Patna 3. The Superintending Engineer, Electric Circle, Patna. 4. The Executive Engineer, Electric Work Division, Patna. Versus 1. BAIDYANATH PRASAD YADAV son of Sri Mallar Prasad Yadav resident of village Parikoch, P.O. Mandharpatti, District Saharsa. 2. Mohan Singh sonof jagdish Narayan Singh resident of Rajeev Nagar Road No. 6, Patna. ----------- For the Appellants :- Mr. Mahesh Prasad, S.C. VIII & Mr. Dhirnedra Kumar, A.C. to S.C. VIII For the Respondents :- Mr. Tej Bahadur Singh, Sr. Advocate & Mr. Basant Kumar Singh. ------- 3 24/12/2009 I.A. No. 3507 of 2009 : This is an application for condonation of delay of 30 days in preferring this appeal. Having heard Mr. Mahesh Prasad, learned counsel for the appellants and Mr. Tej Bahadur Singh, learned counsel for the respondents and upon perusal of the averments made in the application for condonation of delay, we find that sufficient grounds do exist for condoning the delay and, accordingly, the delay in filing the appeal stands condoned and I.A. No. 3507 of 2009 stands allowed. - 2 - L.P.A. No. 739 of 2009 : As we have condoned the delay, we are inclined to take up this appeal for admission. Admit. On consent of the learned counsel for the parties, it is finally heard. In this intra-court appeal the State of Bihar and its functionaries have called in question the defensibility of the order dated 19.3.2009 passed by the learned Single Judge in CWJC No. 12415 of 2002. Questioning the legal propriety of the order Mr. Mahesh Prasad, learned counsel for the State has submitted that the learned Single Judge has erroneously placed reliance on paragraphs 10 and 11 of the counter affidavit to arrive at the conclusion that the respondents have admitted that the writ petitioners have been brought into regular establishment. Additionally, it is submitted by him that Annexure-1 dated 17.8.1994 which was the bed rock of claim of the writ petitioners has been withdrawn vide Annexure- 2 to the letters patent appeal. Mr. Tej Bahadur Singh, learned counsel appearing for the respondents, supported the order passed - 3 - by the learned Single Judge. To appreciate the submissions raised at the Bar, it is apt to re-produce herein paragraphs 10 & 11 of the counter affidavit filed by the State : “10. That it is humbly submitted here that petitioners cannot be taken in regular establishment as per Govt. circular because the notification of finance Dept. No. 5074 dated 20.9.1990 directs that no work charged staff will be taken into regular establishment, who were appointed after 21.10.84 whereas the petitioners have been appointed on 2.5.1988. A photo copy of circular of finance department dated 20.9.90 is annexed herewith and marked as Annexure A to this C.A. 11. That with regard to statement made in paragraph no. 4 of the writ application it is stated that the petitioners are not the staff of the Bihar State Electricity Board. Their appointments were made in Energy department in the year 1988 as Mazdoor in work charge establishment.” On a careful perusal of the same, we are afraid, it cannot be treated as an admission to confer the status of regular employee in regular establishment. The finding recorded on the aforesaid score by the learned Single Judge is not correct. However, learned counsel for the respondents has submitted that vide annexure-1 dated 17.8.1994 he was inducted into regular establishment and, therefore, the benefit should continue. Ordinarily, we would have agreed to the said issue but vide annexure-2 - 4 - dated 3.9.1994 which has been brought on record in this appeal vividly exposit that the said order has been recalled. Indubitably the respondent was in know of the said order. However, the same was not brought on record. The writ petition was filed in the year 2002 claiming benefit on the basis of the order dated 17.8.1994 contained in Annexure- 1. It can be stated without any fear of contradiction that nothing comes out of nothing and when Annexure-1 has paved the path of extinction annexure- 2, no right can be conferred upon the writ petitioners. Accordingly, we allow this letters patent appeal and set aside the order dated 19.3.2009 passed by the learned Single Judge. There will be no order as to costs. AMIN (Dipak Misra, CJ.) (Shiva Kirti Singh, J)