IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4833 of 2009 ====================================================== 1. Vijay Singh, S/o Sri Ram Prasad Singh, R/v – Chandpura, P.S. – Kako, District – Jehanabad. 2. Ramesh Prasad, S/o Late Yamuna Prasad, R/v- Bala Bigaha, P.S. – Kinjar (Paras Bigha), District – Jehanabad. 3. Uma Shankar Mishra, S/o Late Ram Swaroop Mishra, R/v + P.O. – Mahdeo Simariya, P.S. – Sikandra, District – Jamui (Munger). 4. Md. Kalim, S/o Md. Shakoor Ansari, R/v + P.O. – Deodaha, P.S. – Dhanarua, District – Patna. .... .... Petitioner/s Versus 1. The State Of Bihar. 2. The Commissioner –cum- Secretary, Health Medical Education and Family Welfare Department, Bihar, Patna. 3. The Director in chief, Health Medical Education and Family Welfare Department, Bihar, Patna. 4. The Additional Director, Family Welfare Department, Bihar, Patna. 5. The Deputy Director, Health Medical Education and Family Welfare (Training), Bihar, Patna. 6. The Registrar, Health Department, Bihar, Patna. 7. The Sectional Administrative Officer, Family Welfare Bureau, Bihar, Patna. 8. Sri Rajesh Kumar, S/o Not known, presently posted as a driver, Health Medical Education and Family Welfare Department, New Secretariate, Bikas Bhawan, Patna. 9. Md. Zubbair, S/o Not known, presently posted as a driver, Health Medical Education and Family Welfare Department, New Secretariate, Bikas Bhawan, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Vijay Kumar Sinha, Advocate Mr. S.K.Bhatnagar For the State : Mr. Pushkar Narain Shahi, AAG XIV Mr. Atul Kumar, AC to AAG XIV ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 04/ 26-09-2011 Heard counsel for the petitioner and counsel appearing for the State. Prayer of the petitioners is for a direction to the Patna High Court CWJC No.4833 of 2009 (4) dt.26-09-2011 2 / 5 2 respondents to regularize their service as drivers, since for several years they have been working on the post of driver as daily wagers. Petitioners started working on the post of driver as daily wagers in the year, 1987. Earlier also petitioners had approached this Court for similar relief, i.e. regularization of their services on the post of driver, by filing C.W.J.C. No. 12813 of 1999. The writ application was allowed vide order dated 11.2.2005, directing the respondents to take steps for filling up sanctioned vacant post of the drivers, and to consider the case of petitioners also with other eligible candidates. Respondents were also directed that while considering candidature of petitioners, services rendered as daily wagers should be taken into account. Respondents had been directed to comply the direction within six months of the order. In compliance of the direction of the order passed in the writ application, an advertisement was published by Bihar Staff Selection Commission on 23.11.2006 inviting applications for filling up four posts of drivers in unreserved category as anticipated future vacancies. There was special provision made for writ petitioners of C.W.J.C. No. 12813 of 1999 and they were directed to mention regarding their experience as daily wagers in Column No. 34 of OMR. Counsel for the petitioners submits that petitioners did Patna High Court CWJC No.4833 of 2009 (4) dt.26-09-2011 3 / 5 3 not apply as the maximum age of candidate on 01.08.2006 should have been 37 years as per the advertisement, since, petitioners had crossed 37 years age, they did not apply for appointment in response to advertisement. The plea taken by the petitioners, in order to justify their action, in not applying for the post in response to advertisement, is not acceptable, considering that a special provision had been made for the writ petitioners of C.W.J.C. No. 12813 of 1999, in the advertisement. In order to give weightage to them as per the direction in the writ application. Subsequently, vide order dated 18.12.2006 issued by the Director-in-chief, Health Services, age relaxation in appointment was allowed to the petitioner, instead of filing application for appointment, petitioners filed MJC No. 3463 of 2005. The respondents, in anticipation of petitioners’ regular appointment, issued an order of appointment of petitioners on ad hoc basis. Since, petitioners did not apply for the post; there was no recommendation in their favour for appointment on Class III post of drivers, as it could have been made only on recommendation of Staff Selection Commission. Ad hoc appointment made in favour of the petitioners, was subsequently cancelled, as petitioners had not been recommended for regular appointment. MJC application filed by the petitioners, was also Patna High Court CWJC No.4833 of 2009 (4) dt.26-09-2011 4 / 5 4 dismissed, considering that despite all provisions made in favour of the petitioners, as per the direction of the High Court, petitioners did not avail the opportunity. Petitioners have again come before this Court, with similar prayer to regularize them in the light of amended provisions in Bihar Staff Selection Commission Bill 2007. In Clause IV of the amended Bihar Staff Selection Commission Act proviso had been added, that in case of contractual appointment, compassionate appointment, in absorption of retrenched employee and in case of special appointment of meritorious sports person, recommendation of Staff Selection Commission will not be essential. Petitioners’ prayer is that they should also be regularized, even without any recommendation of Staff Selection Commission, in terms of proviso to Clause IV of Bihar Staff Selection Commission (Amendment) Act, 2007. I find that proviso to Clause IV of Bihar Staff Selection Commission (Amendment) Act, 2007 has no application in the case like petitioners; since it is not a contractual appointment, compassionate appointment, absorption of retrenched employee or special appointment of meritorious sports person. Petitioners were allowed all benefits and opportunity, in the light of order passed in the writ application. They were even appointed on ad hoc basis in Patna High Court CWJC No.4833 of 2009 (4) dt.26-09-2011 5 / 5 5 anticipation of the recommendation of the Staff Selection Commission. In the advertisement also special provision had been made for them and an order was passed by the Director-in-chief, Health Services, giving age relaxation to petitioners in the matters of their appointment. Though, all these benefits were provided to them, they could not avail because of their own inaction. Considering the Rule made in 2005 Act for appointment on Class III posts, unless there is recommendation of Staff Selection Commission, no appointments can be made on Class III posts. The post of driver is Class III post, and recommendation of Subordinate Service Commission is essential. The prayer of the petitioners for a direction to the respondents to regularize them cannot be allowed. Their age has expired for being appointed on any government post. I do not find any merit in the case of the petitioners, accordingly, it is dismissed. DKS/ (Mridula Mishra, J)