IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2764 of 1999 1. Shri Dashrath Prasad Choudhary, son of late Banwari Choudhary, resident of village & P.O. Pareb, P.S. Bihta, District Patna, Bihar 2. Shri Nirmal Kumar Singh, son of Sri Shri Adya Singh, resident of village & P.O. Lakhanpur, P.S. Punpun, District Patna 3. Indradeo Prasad, son of late Karu Paswan, resident of village & P.O. Palatpura, P.S. Manpur, District Nalanda 4. Shri Kauleshar Shah, son of late Natho Shah, resident of village Dih Chakballi, P.O. Narpur Mahana, P.S. Barauni, District Begusarai … Petitioners Versus 1. The State Of Bihar 2. Secretary, Science & Technology Department, Technology Bhawan, Bailey Road, Patna 3. Director, Science & Technology, Technology Bhawan, Bailey Road, Patna … Respondents ----------- 5. 29.7.2011 Having heard counsel for the petitioners and the counsel for the State this Court would find that the impugned order terminating the services of the petitioners on 31.3.1998 by itself cannot be said to be arbitrary or illegal, inasmuch as it has been stated therein as follows: ^^fcgkj ljdkj foKku ,oa izkoSf/kdh foHkkxA dk;kZy; vkns'k foKku ,oa izkosf/kdh foHkkx ds vUrxZr Aeq[;ky;A esa fuEufyf[kr deZpkfj;ksa ls le;&le; ls nSfud etnwj ds :I esa dkZ fd;k tk jgk Fkk dks vkoaVu ds vHkko esa nSfud osru nsuk laHko ugha gSA rnksijkUr jkT; ljdkj ls fu.kZ; fy;k gS fd bu dfeZ;ksa dh nSfud etnwjh dh lsok fnukad 3-4-98 ls ugha fd;k tk;A ,slh ifjfLFkfr esa vc fuEukafdr dfeZ;ksa dh lsok dh vko';drk bl foHkkx dks ugha gSA 2 1- loZ Jh lat; dqekj 2- ^^ ^^ n'kjFk pkS/kjh 3- ^^ ^^ dkes'oj lkg 4- ^^ ^^ fueZy dqekj flag 5- ^^ ** bUnz nso izlkn g0@& Hkjr Hkw"k.k izlkn funs'kd foKku ,oa izkoSf/kdh foHkkxA Kikad&fo-91- ys-&38@96@ 625 @ iVuk] fnukad 31-3-98** It is well known and established concept of service jurisprudence that neither a daily wager employee has a right to continue indefinitely in service nor does he acquire any claim to be absorbed against a post. Such daily wages engagement is based on year to year allotment of fund and is actually covered by the expenditure under the plan head. If, therefore, the department had found lack of allocation of fund for further continuation of daily wages employee, their termination of service cannot be interfered by this Court. Counsel for the petitioners, however, had referred to the statement made in paragraphs 25, 26 and 27 to contend that both before and after termination of service of the petitioners, regular appointments were made by the Department which in his 3 view would itself expose the hollowness in the claim of the respondents regarding paucity of fund. It would be very difficult for this Court to appreciate such oral submission, inasmuch as there is no pleading in the writ petition that the post on which the appointments were made by the respondents such as Assistant Instructor on 22.12.1995 i.e. well before termination of the services of the petitioners or the other posts covered by Annexures 12 and 13, after termination of the services of the petitioners, were not already sanctioned posts covered by the expenditure under non- plan head. Thus if the sanctioned posts were already in existence, the very concept and practice of continuing employees on daily wage engagement against such posts was contrary to the mandate of Article 14 and 16 Constitution of India. That apart it is the case of the petitioners that they were throughout working on daily wages and therefore, they at best could have a right of being 4 considered as and when the sanctioned posts were advertised for regular appointment against those sanctioned post covered by the non-plan budgetary allocation. The petitioners have also not complained that they were not offer led opportunity to compete with offers at the time of regular appointment. There infact is also no pleading that any of the persons appointed as mentioned in paragraphs 25, 26 and 27 were junior to the petitioners on the basis of their date of engagement on daily wages. The law as with regard to ‘last come first go’ has been well explained by the Apex Court in the case of the Manager, Govt. Branch Press & anor. vs. D.B. Bellappa, reported in AIR 1979 S.C. 429 and the petitioners cannot any benefit even on that score. That being so, this Court would not find any merit in this application and the same is, accordingly, dismissed. At this stage learned counsel for the petitioners would submit that the remuneration of the petitioners of the 5 period while they were working on daily wages for a period of seven months prior to their termination had not been paid to them. He has in this regard invited attention to statement made in paragraph 20 of the writ application which has not been controverted by the respondents in their counter affidavit. In that view of the matter, this Court would direct the competent authority to make payment of admitted arrears of remuneration to the petitioners for the period work was taken from them on daily wages prior to their termination. It is expected that such payment would be made to the petitioners within a period of six months from the date of receipt/ production of a copy of this order. It is also made clear that the dismissal of the writ petition, however, will not adversely affect the petitioners in considering their appointment on regular basis as and when the respondents would advertise the post for regular appointment and their cases along with other eligible 6 candidates shall be considered for their regular appointment as per prescribed procedure and in accordance with law. With the aforesaid observations and directions this application is, accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/