IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.270 of 2009 1. AKHTAR HUSSAIN, S/O LATE MD.ARFEEN, R/O VILLAGE-DUMRA DEORAJ, P.O.-JOGIYA, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 2. MD.SHAFIQUE, S/O LATE S.K.BUDHU, R/O VILLAGE-KANDHWALIA, P.O.-BAGHI, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 3. MAQBOOL AHMAD, S/O LATE S.K.BUDHU, R/O VILLAGE-KANDHWALIA, P.O.-BAGHI, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 4. ZAKIR HUSSAIN NO.1, S/O LATE MOHAMMADIN, R/O VILLAGE-DUMRA DEORAJ, P.O.-TAILPUR, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 5. BALIRAM THAKUR, S/O SRI BISHMUDEO THAKUR, R/O VILLAGE-BISHUNPURVA, P.O.-DUMARIA ESTATE, P.S.-RAMNAGAR, DISTRICT-WEST CHAMPARAN. 6. AMANULLAH, S/O LATE MANSOOR GHAZI, R/O VILLAGE-JAGIYA DEORAJ, P.O.-JOGIYA, P.S.- RAMNAGAR, DISTRICT-WEST CHAMPARAN. 7. AKHILESHWAR PRASAD SINHA, S/O SRI RAJDHARI PRASAD VERMA, R/O VILLAGE-BARIARWA, P.O.- BARIARWA, P.S.-BAGHA, DISTRICT-WEST CHAMPARAN. 8. RAMJEE PANDIT, S/O LATE GAURI SHANKAR KUMHAR, R/O VILLAGE-DUMRA DEORAJ, P.O.- TAILPUR, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 9. NAGENDRA PRASAD YADAV, S/O SRI BAIDYANATH PRASAD YADAV, R/O VILLAGE-DONWAR KALANG, P.O.-SHEORAJPUR, P.S.-JOGAPATTI, DISTRICT WEST CHAMPARAN. 10.YOGENDRA PRASAD, S/O DWARIKA PRASAD, R/O VILLAGE-LAURIYA NAYATOLA, P.O.-LAURIYA, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 11.BHAGWAN PRASAD, S/O LATE RADHA SAH, R/O VILLAGE-DARAMKATTA, P.O.-BALWA MOR, P.S.- CHOUTARWA, DISTRICT-WEST CHAMPARAN. 12.JAGGANATH PRASAD YADAV, S/O LATE JAGDISH PRASAD YADAV, R/O VILLAGE-GAMBHIRPUR, P.O.- GAMBHIRPUR, P.S.-BABRIA, DISTRICT-WEST CHAMPARAN. 13.NAGNARAYAN PRASAD, S/O RAMDEO MAHTO, R/O VILLAGE BELAW RAM, P.O.-BELWA PURVA, P.S.- BAIRIA, DISTRICT-WEST CHAMPARAN. 14.HIRALAL PRASAD, S/O MISHRI BHAGAT, R/O VILLAGE-TADHWA NANDPUR, P.O.-PAKHAHA, P.S.- BAIRIA, DISTRICT-WEST CHAMPARAN. 15.YOGENDRA PRASAD, S/O LATE JAGDEO MAHTO, R/O VILLAGE MALAHI TOLA, P.O.-PAKHNAHA, P.S.- BAIRIA, DISTRICT-WEST CHAMPARAN. 2 16.LAL BABU PRASAD, S/O SHANKAR PRASAD, R/O VILLAGE-BHANACHAK, P.O.-MAJHOLIA, P.S.- MAJHOLIA, DISTRICT-WEST CHAMPARAN. 17.DHRUV NARAYAN SHUKLA, S/O RAGHUNATH SHUKLA, R/O VILLAGE-ROWANRI, P.O.-RAWANRI, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 18.NAND LAL MAHTO, S/O SRI NATHUNI MAHTO, R/O VILLAGE BHANA CHANK, P.O. AND P.S.-MAJHOULIA, DISTRICT-WEST CHAMPARAN. 19.AMIN MIAN, S/O ISMAIL MIAN, R/O VILLAGE MARUWAHA, P.O.-TAILWA (BARDAHA), P.S.-NOTAIN, DISTRICT-WEST CHAMPARAN. 20.ZAKIR HUSSAIN NO.2, S/O LATE MD.SAFI, R/O VILLAGE-DUMRA DEORAJ, P.O.-TAILPUR, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 21.REYAZ AHMAD, S/O LATE S.K.ARBI, R/O VILLAGE DUMRA DEORAJ, P.O.-TAILPUR, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 22.SHAMSUL HAQUE, S/O LATE FIDA HUSSAIN, R/O VILLAGE KANDHWALIA, P.O.-BEGHI, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 23.SUDHIR KUMAR ROY, S/O RAMBADAN ROY, R/O VILLAGE-ANKHWA JAMUNIA, P.O.-NARKATIYAGANJ, P.S.-SHIKARPUR, DISTRICT-WEST CHAMPARAN. 24.SHAKIR HUSSAIN, S/O LATE MD.SAFI, R/O VILLAGE-DUMRADEORAJ, P.O.-JOGIA, P.S.- LAURIYA, DISTRICT-WEST CHAMPARAN. 25.DHODHA SAH, S/O LATE LUNAR SAH, R/O VILLAGE MISHRAULI DAKHALIA, P.O.-JOGAPATTI, P.S.-JOGAPATTI, DISTRICT-WEST CHAMPARAN. 26.MD.MUSTAFA KHAN, S/O SADIQUE KHAN, R/O VILLAGE-ANKHWA JAMUNIA, P.O.-NARKATIYAGANJ, P.S.-SHIKARPUR, DISTRICT-WEST CHAMPARAN. 27.S.K.MANNAN, S/O S.K.ASHIK, R/O VILLAGE- KHABTOLA BARWA, P.O.-BELWA MOR, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 28.MALIK SAH, S/O RAMCHANDRA SAH, R/O VILLAGE-ROMBARI, P.O.-ROMBARI, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 29.AMLA KANT TRIPATHY, S/O LATE SHAKAL DEO TRIPATHY, R/O VILLAGE-HARDIA, P.O.- NARKATIYAGANJ, P.S.-SHIKARPUR, DISTRICT-WEST CHAMPARAN. 30.RAJ KAPOOR PRASAD, S/O LATE JOGENDRA SINGH, R/O VILLAGE PHULWARIA, P.O.- SAHADATPUR, P.S.-LAURIYA, DISTRICT-WEST CHAMPARAN. 31.SHAMBHU SAH, S/O SRI BHADO LAL SAH, R/O VILLAGE DUNGLIGHIA, P.O.-BELWA MOR, P.S.- CHOULAMA, DISTRICT-WEST CHAMPARAN. ………………PETITIIONERS. Versus 3 1. THE STATE OF BIHAR. 2. THE CHIEF SECRETRY, STATE OF BIHAR, PATNA. 3. PRINCIPAL SECRETARY, PERSONNEL AND ADMINISTRATIVE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA-CUM-CHAIRMAN, THREE MEN COMMITTEE OF SECRETARIES, GOVERNMENT OF BIHR, PATNA. 4. PRINCIPAL SECRETARY, DEPARTMENT OF WATER RESOURCES GOVERNMENT OF BIHAR, PATNA. 5. THE UNDER SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 6. ENGINEER-IN-CHIEF, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 7. DIRECTOR, REVENUE, ADMINISTRATION, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 8. DEPUTY COLLECTOR, REVENUE DIVISION, GANDAK PROJECT, DEPARTMENT OF IRRIGATION, GOVERNMENT OF BIHAR, BETTIAH. ………………RESPONDENTS. ----------- 2 25.04.2011 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners were admittedly seasonal employees engaged by the Water Resources Development Department in 1978-79 onwards. They continued as such for various periods up to 1992. Earlier their Association had moved this Court through CWJC No.4682 of 1997, praying for a direction for their regularization. This Court found that their writ application was pre-mature. Therefore, by order dated 28.01.1999, as contained in Annexure-9, it was dismissed, but with a direction to the concerned respondents to 4 expedite the process of regularization in accordance with law. It is not disputed that, out of 31 petitioners before this Court in this case, no one had continued even on seasonal basis after 1992. The cases of the petitioners were therefore not considered by the respondents which led to filing of a writ application by them before this Court. The writ application was disposed of in a batch by this Court by order dated 30.11.2006 (Annexure-13). As by that time the Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) [2006 (2) PLJR (SC) 363] had come, this Court directed for constitution of a high powered committee of three Secretaries to examine the cases of the individual petitioners in the light of the observations of the Constitution Bench in paragraph 44 (para 53 of SCC) and to take a decision. Accordingly, petitioners’ cases were considered and the same were rejected by individual orders, as contained in Annexure- 15 series, which are under challenge in this writ application. The order shows that the petitioners had 5 worked on seasonal basis and there was break in their services in different periods till finally there were put out of service in 1992 or earlier. The order also shows that the petitioners were not found to have been engaged on sanctioned posts and, therefore, not found to have been engaged against available vacancies. The judgment of the Constitution Bench was pronounced on 10.04.2006. The Constitution Bench in its judgment laid down the law that any appointment made in violation of Article 14 and 16 could not be held legal and did not create any right to the appointee to continue in service. It also held that any claim on the basis of long continuance of service on the basis of such illegal appointment also does not give a right to the appointee to claim regularization. However, considering the hardship to the employees, by way of exception, the Constitution Bench, in the said paragraph 44 (para 53 of SCC) directed all the employers to take up the matter of absorption of such employees, as one time measure, whose appointments may be found to 6 be irregular, and not illegal, and who may be found working for last 10 years or more. This was to be taken up as one time measure, in exception to the law laid down by the Constitution Bench. In view of such exception carved out by the Constitution Bench, this Court had earlier remitted the matter to the high powered committee of three Secretaries. The law laid down by the Constitution Bench and exception carved out in the said paragraph is clearly applicable in respect of these employees who were found continuing on temporary/adhoc basis or in any manner as on the date of the judgment of the Constitution Bench. Petitioners were admittedly put out of service some time in 1992 or earlier. Therefore, there is an apparent gap of at least 14 years between their last date of service and the judgment of the Constitution Bench. Learned counsel for the petitioners submits that a seasonal worker did not require to working for all the 365 days. The very nature of the work entails a break in service time to time. He submits that, as per the Government instructions at the relevant 7 time, a seasonal worker was appointed by the Department for six months at a stretch and after completion of that six months and before a fresh order of their engagement was passed there was bound to be some break in service. He also submits that in 1982 itself there was a decision of the Government that persons found working under the Government for five years or more were to be regularized in future also, which was extended upto 11.12.1990. He also submits that, as the petitioners were engaged as seasonal employees under the Water Resources Development Department, question of sanctioned post does not arise since very nature of their employment was seasonal. He refers to some other Government circulars and letters issued from time to time in respect of absorption/regularization of seasonal/temporary/adhoc employees by the Government. Fact remains that all those circulars, orders or instructions of the Government were issued much prior to the Constitution Bench judgment. Now that the law has been clearly laid down by the Constitution Bench, which 8 has to be treated as law of land in terms of the Article 141 of the Constitution of India, any earlier decision or instructions of the Government containing provisions contrary to the law laid down therein does not remain valid. This has been made clear by the Constitution Bench in paragraph 45 observing that judgments or orders, running counter to the law laid down by the Constitution Bench, shall stand denude of their precedential value. In the circumstances, the cases of the petitioners had to be considered by the Three Men Committee in terms of the orders of this Court strictly within the parameters laid down by the Constitution Bench in the above paragraph. Clearly, the cases of the petitioners do not fulfill the eligibility for consideration of their cases for their regularization. In the circumstances, this Court does not find any merit in the writ application and the same is dismissed. Arvind/ ( J. N. Singh,J.)