IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9073 of 2009 Mantu Mandal . Versus The State Of Bihar & Ors . ----------- 4. 18.08.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 6.5.2008 of the three man committee rejecting his claim for regularization. Learned counsel submits that the petitioner was appointed as a “Umidwar Driver” on daily wage in the year 1988. He continued to work in that capacity till 1997. The petitioner came to this Court earlier in C.W.J.C. No. 14214 of 2005 which directed consideration of his claim by a Committee. The petitioner has wrongly been denied the benefit of regularization as he has worked for more than 240 days and for over eight years. The petitioner was appointed by the SDO who was competent to do so. The respondents published an advertisement in 2000 to which he applied and was empanelled but was wrongly denied appointment by not properly following the reservation roster. Counsel for the State has opposed the application to submit that from the very nomenclature of his status disclosed by the 2 petitioner he has no case for consideration. The Committee has held that he was not appointed on any vacant sanctioned post. The daily wage appointment was made by an authority not competent and no letter of appointment was also produced. On the own showing of the petitioner his initial appointment was on daily wage. The law stands well settled as far back as (1997)4 SCC 88 (State of U.P. Vs. Ajay Kumar) that a person appointed on daily wage holds no posts and therefore the question of his regularization does not arise. It has been held at Paragraph-3 as follows:- “3. The admitted position is that the respondent came to be appointed on daily-wage basis on 14-2-1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he did not call for applications. The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to 3 appoint a person to the post. Daily- wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then.” Regularization is not a mode of appointment settled as far back as (1972) 1 SCC 409 (R. N. Nanjundappa Vs. T. Thimmiah) at Paragraph-26 as follows:- “ 26. ……….Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did dot mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.” 4 The very nomenclature of his appointment as “Umidwar” (in hope) makes it apparent that the appointment on daily wage was but a prelude to a foothold for seeking entry as a back door appointee. The petitioner made an investment in the hope of the safety and security of Government employment some day. There was somebody in the office willing to exploit his status of his being unemployed, obviously for a consideration. It is unfortunate that he lost even that temporary job. But sympathy cannot supplant the law. More recently in the case of Secretary, State of Karnataka & Others Versus Uma Devi (2006) 4 SCC 1, the Constitution Bench at Paragraph 38 and 39 clarified that daily wagers do not come in the category of persons who can seek regularization under the observation made at Paragraph-40 of the judgment for consideration as a one time measure for regularization. Several orders were being passed by Courts on basis of the latter Paragraph for consideration of daily wagers for regularization leading to the Supreme Court clarifying in 2010 (3) SCC 115 and 2010 (4) SCC 179 that daily wagers do not come within its ambit. It is not the case of the petitioner that any 5 time he challenged his exclusion from appointment in pursuance of the advertisement published in 2000 despite empanelment and wrong appointments contrary to roster as alleged. The writ application is dismissed. P. Kumar ( Navin Sinha, J.)