IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16155 of 2009 1. JAGDISH YADAV S/O LATE GHURAN YADAV VILL- BARARI, P.O. BARARI, DISTT. BHAGALPUR Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 2. THE SECRETARY DEPTT. OF SCIENCE & TECHNOLOGY, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR DEPTT. OF SCIENCE & TECHNOLOGY, GOVT. OF BIHAR, PATNA 4. DEPUTY DIRECTOR DEPTT. OF SCIENCE & TECHNOLOGY, GOVT. OF BIHAR, PATNA 5. PRINCIPAL BIHAR COLLEGE OF ENGINEERING, BHAGALPUR ----------- 2. 05.01.2010 Heard learned counsel for the petitioner and the State. The relief claimed in this writ application is for regularizing the services of the petitioner either from the date of the original appointment on daily wages or from the date that his junior has been regularized. The petitioner claims to have been appointed in 1970 on daily wages. He came to this Court in C.W.J.C. No. 10850 of 2004 disposed on 30.8.2006 with a claim for regularization. The respondents conceded that the petitioner shall be considered for regularization. Directions were further issued that if the respondents do not regularize the services of the petitioner, they are directed to remove all others engaged after the petitioner as daily wagers, even though regularized. The petitioner then instituted M.J.C. No. 892 of 2007 for initiation of contempt proceedings. On 2 3.10.2007 the petitioner was regularly appointed on the post of Bus Khalashi. The law stands well settled as far back as (1997) 4 SSC 88 ( State of U.P. & Ors. Vs. Ajay Kumar) that a daily wager holds no post and the question of his regularization does not arise. It stands equally settled in (2004) 7 SCC 112 (A.Uma Rani Vs. Registrar Co- operative Society & Ors) in Paragraphs -39 and 41 that regularization is not a mode of appointment and cannot give permanence to a daily wage/ad hoc employee. Any appointments in a service under the State have to be in consonance with Article 14 of the Constitution of India by an open advertisement and competitive selection in which the daily wagers may also participate. A daily wagers neither qualifies as an illegal appointment or an irregular appointment. He forms a class by himself. This Court cannot close its eyes to the manner in which daily wage appointments have been made by the authorities in this State without resorting to proper method and selection, obviously, for a consideration and then inducting such persons into service by backdoor under the garb of regularization. From the order of this Court dated 30.8.2006, it is manifest that the respondents faced with a predicament requiring them to terminate the services of other daily 3 wages also, conceded his case for regularization in a manner contrary to law. This concession made in teeth of Article 14 of the Constitution of India does not find favour with this Court so as to hold that there has been regularization of the petitioner in accordance with law. The Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi 2006(4) PLJR 1 decided on 10.4.2006 at Paragraph 48 has held that daily wagers constitute a class by themselves and have no right to claim absorption/regularization in consistent with Article 14 and 16 of the Constitution of India merely on the strength of long continuance. He was well aware of the precarious nature of his engagement and the theory of legitimate expectation has no application. It was under the threat of the contempt proceedings that the respondents passed the order dated 3.10.2007. It is not the case of the petitioner neither in the order of appointment that his case for regular appointment was considered after following a procedure known to law by open advertisement and competitive selection between him and others equally eligible. Obviously, it was an individual benefit doled out to him. The reliance on Paragraph 53 of the Judgment of Uma Devi (supra) directing consideration as a one time measure for those who had worked for over ten years is 4 also of no help to the petitioner as it covers irregular appointments (not illegal appointment). This Court has already held that the petitioner holds no post in the Government. An irregular appointment connotes an appointment otherwise in accordance with procedure where they may have been only certain infirmities in procedure. When no procedures have been followed, it clearly is an illegal appointment. In any event of the matter, the petitioner is neither an irregular appointee nor an invalid appointee. As a daily wagers, he forms a class by himself as discussed above. Any policy decision of the respondents in teeth of Article 14 of the Constitution of India cannot vest a legal right to demand regularization as held in Paragraph 13 of (2009) 5 SCC 193 (Pinaki Chatterjee & Ors Vs. Union of India & Ors) as follows:- “13. The said circular letter of the Railway Board which had been issued long back, however, did not take into consideration the limitation of power of a State to make appointments in total disregard of mandatory provisions of the recruitment rules and/or the constitutional provision. The aspect of the matter has been consdiered in A. Umarani v. Coop. Societies holding (SCC p. 126 Para 45) “45. No regularization is, thus, permissible in exercise of the statutory (sic executive) power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.” 5 Since the validity of the order dated 3.10.2007 is not in question before this court, there is no occasion for this Court to pronounce on the same. If the respondents have chosen to regularize certain others in a manner contrary to law for reasoned as discussed in the present order, Article 14 of the Constitution of India does not operate in negativity to vest a right in the petitioner to demand perpetuation of the illegality by the respondents with regard to him also. In (1997) 3 SCC 321 (State of Harayana Vs. Ram Kumar Mann) it has been held at Paragraph -3 as follows:- “The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can similarly circumstanced person claim equality under Article 14 for reinstatement? The answer is obviously „No‟ In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. 6 A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.” The question of retrospective regularization simply does not arise. Regularization has to be prospective only. There is no merit in this writ application in so far as it claims retrospective regularization. The writ application is dismissed to that extent. P. Kumar (Navin Sinha, J.)