IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.389 of 2009 Ashok Kumar Sharma & Anr . Versus The State Of Bihar & Ors . ----------- 2/ 24/06/2011 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by the order dated 13.5.2008 refusing to regularize their services. Learned counsel for the petitioners submits from the penultimate paragraph of the impugned order that the petitioner fulfils all the requisite qualifications to be considered for regularization, as explained in (2010) 9 SCC 247 (STATE OF KARNATAKLA AND OTHERS Versus M.L.KESARI AND OTHERS). Since that judgment is in continuation of and is an offshoot explanation of the judgment of the Supreme Court in the case of State of Karnataka Versus Umadevi (2006) 4 SCC 1, the case of the petitioners has to be considered in accordance therewith. In the case of M.L. Kesari (supra) the Supreme Court at paragraph-7 has held as follows:- “7. It is evident from the above that there is an exception to the general principles against “regularization” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have 2 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.” The impugned order states that the opinion furnished from the Department confirms the claims of the petitioners that they possessed the eligibility, were appointed against sanctioned vacant posts and had completed more than ten years in service. Learned counsel for the State initially sought to assail the impugned order dated 13.5.2008, but found it difficult to do so in absence of a challenge to the same by the respondents in a duly constituted writ application. In any event of the matter, the Court has serious reservations if the Sate can challenge its own orders or a functionary of the State can challenge orders of its Department, more so when such orders are passed in pursuance of directions given by the Court on 3 a writ petition preferred by the petitioner claiming regularization. The Supreme Court in AIR 1988 SC 1247 (Assistant Commissioner of Commercial Takes (Asstt.), Dharwar v. Dharmendra Trading Co.) has held at paragraph-5 as follows:- “5. The next submission of learned counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellants.” If the respondents contend that the „Principal‟ was not competent to appoint, and they have filed two counter affidavits, they were required to disclose who the appointing authority was. The counter affidavit refuses to answer such question. The Court is satisfied in the facts and circumstances of the case that the petitioners in light of the recitals contained in the impugned order dated 4 13.5.2008 without further more fulfil the qualifications laid down by the Supreme Court in the case of M.L. Kesari (supra) and are entitled to be regularized. The impugned order dated 13.5.2008 is accordingly set aside. The writ application is allowed. KC ( Navin Sinha, J.)