IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13265 of 2009 RAM NARESH PD. & ORS Versus THE STATE OF BIHAR & ORS ----------- 2. 14.10.2009 Heard learned counsel for the petitioners and the State. The petitioners claim to be continuously working as daily wager appointed in Patna Collectorate from 1982. They came to this Court for regularization in CWJC No. 5224 of 1990. The application was disposed on 1.9.1993 finding it difficult to grant any order of regularization of the services but simultaneously directing that if sanctioned vacant posts were available, there was no justification to continue with large number of persons on daily wage basis against such sanctioned post. Directions were then issued to take steps by advertisement and selection when the petitioners may also be considered by relaxation of age. Learned counsel for the petitioners submits that notwithstanding the same, no steps were taken by the authorities for regular appointment compelling them to come to this Court again in CWJC No. 3709 of 2004 for their regularization inter alia on the ground of completion of more than 240 days in service also. A Bench of this Court by order dated 4.12.2006 while disposing of a large number of writ applications without going into the individual facts directed constitution of a three man committee to consider cases for regularization. The impugned order dated 10.8.2009 has now been passed denying regularization 2 to the petitioners. Learned counsel for the petitioners fairly acknowledges that presently they are not in service. However, from the pleadings in the writ application, it is not very clear since what date the petitioners have not been in service. To this Court that is a necessary issue as regularization and/or consideration for regularization can be of one who is in service. Once the master servant relationship terminated, it would be a case of re- appointment and not regularization. Additionally, mere completion of 240 days is not a ground for regularization and likewise a daily wager holds no post to claim regularization. If the Respondents have regularized any daily wager like the petitioners without proper advertisement and competitive selection from amongst others, that is clearly illegal. No equality can be claimed in illegality and there is no negative right to equality under Article 14 of the Constitution. While this court declined to grant any relief to the petitioners, it considers proper to direct that if what the petitioners urge that the order of this Court in CWJC No. 5224 of 1990 remained uncomplied, it is a serious matter. The Respondents cannot be permitted to operate a spoils system by doling out benefit to the chosen few. If sanctioned vacant posts are available, regular appointments must be made thereon. While it is the discretion of the Respondents to make or not to make appointment even against a sanctioned vacant post, the Respondents cannot be permitted to resort to subterfuge of making daily wage 3 appointment against the sanctioned vacant post as this itself reflects the need for personnel, evaded for reasons otherwise not sustainable in law. Such resort to subterfuge to avoid additional liability by doling out benefits by individual Officer is deprecated. This Court, therefore, directs that if in the Patna Collectorate there are any sanctioned vacant posts, the Respondents must take a decision, if they require regular personnel to work against those posts. If they do, they must make regular appointment after advertisement and selection. They shall not make daily wage appointment on such sanctioned vacant posts except as stop gap arrangement pending regular appointment on those posts after advertisement and selection. This court, therefore, issues mandamus to the State authorities to initiate process of such appointment by issuance of necessary advertisement and complete the same within a maximum period of 8-10 months after which all daily wage appointments against such sanctioned vacant posts shall cease to operate and the Respondents are restrained from taking service from any daily wage appointee thereafter. If such engagement of daily wage appointment after that date is made by an Officer against the sanctioned vacant post, the liability of wages shall arise from the salary of the Officer and not from the coffers of the State Government. The writ petition stands dismissed. AKS/ (Navin Sinha, J.)