IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1834 of 2009 Md.Shahabuddin Ansari . Versus The State Of Bihar & Ors . ----------- 3. 05.07.2011 Heard learned counsel for the petitioner and the State. The petitioner, who holds the post of Dresser is aggrieved by the order dated 25.6.2007 passed by the I.G., Prison. The order purports to appoint him afresh on that post from the date of his joining. Learned counsel for the petitioner submits that the petitioner came to this Court earlier in C.W.J.C. No. 15188 of 2004 questioning his termination by an order dated 28.10.2004. He was appointed on 10.3.1989 in a temporary status as a Dresser in the Divisional Jail Hospital, Saharsa which was extended from time to time till issuance of the impugned order. The appointment was against a sanctioned vacant post with a budgetary allocation as noticed in the order of the Court earlier. The appointment was therefore not a daily wage appointment. In fact, the service book of the petitioner was opened. G.P.F., Group Insurance etc. were duly deducted from his salary when he was granted a pay scale as distinct from 2 the wages given to a daily wage employee. By the impugned order the petitioner would be deprived of his period of service rendered earlier for the purpose of continuity of service, pension and shall be considered in the new contributory pension scheme. Moreover, the pay scale of the petitioner stands reduced by the fresh order from that he had been drawing based on the continuance service of over 16 years. Counter affidavit has been filed on behalf of the respondents. The impugned order has been passed in pursuance of the directions given in C.W.J.C. No. 15188 of 2004 wrongly mentioned as C.W.J.C. No. 15186 of 2004 in Paragraph-6 of the impugned order. Yet the contention that the appointment was against a sanctioned vacant post on a budgetary allocation extended from time to time has not been dealt with in the impugned order. That is the crucial distinguishing factor which was required to be appropriately considered by the respondents. The respondents purport to consider his case in terms of the direction given by the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1. That judgment has 3 subsequently been explained in (2010) 9 SCC 247 ( State of Karnataka & Ors. Vs. M. L. Kesari & Ors.) at dealt at Paragraph-7 as follows:- “7. It is evident from the above that there is an exception to the general principles against “regularization’ enunciated in Umadevi (3), if the following conditions are fulfilled:- (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” Those who came to be appointed against a sanctioned vacant post and have continued in that capacity for over 10 years have a right to be considered for regularization as a one time measure in terms of the direction given in the case of Uma Devi (supra). There was thus clearly be a continuity of the direction originally given in the 4 case of Uma Devi (supra) as explained in the case of M. L. Kesari (supra). The matter is remanded to the I.G. Prison to consider the claim of the petitioner in light of the judgment of the Supreme Court in the case of M. L. Kesari & Ors. (supra) within a maximum period of two months from the date of receipt/production of a copy of this order. The impugned order therefore is set aside to the extent that it purports to operate prospectively till such time that the respondents do not take fresh decision in accordance with law. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)