IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19348 of 2010 SATISH TIWARI . Versus THE STATE OF BIHAR & ORS . ----------- 5. 20.06.2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to have been appointed as a jeep Driver on daily wages on 1.1.1985. He worked intermittently with breaks and was finally removed from service on 31.5.2001. C.W.J.C. No. 12490 of 1999 was preferred by him seeking regularization. This Court on 18.5.2005 directed consideration of his case in light of the resolutions of the State Government dated 18.6.1993 as modified on 10.5.2005. Failure to consider led to a contempt application whereafter his claim has been rejected on 3.10.2007 by the Superintending Engineer, Central Circle, P.W.D., Patna. A supplementary affidavit filed on 19.1.2011 encloses an earlier order dated 8.11.2006 from the office of the Superintendent Engineer, Central Circle, P.W.D., Patna enclosing orders of the Chief Engineer, P.W.D. South Bihar, Patna for consideration of the claim of the petitioner subject to his appearing at an eligibility examination through the Staff Selection Commission. Learned counsel for the petitioner submits that without complying with the direction of the Chief Engineer 2 and an opportunity to prove his competence at such competitive examination as a method of selection, the petitioner’s claim for regularization has wrongly been rejected by the impugned order dated 3.10.2007 without any reference to the earlier order. Counsel for the State from the counter affidavit submitted that the impugned order dated 3.10.2007 has been passed in pursuance of the order of this Court in C.W.J.C. No. 12490 of 1999. It is reasoned disclosing that the petitioner did not fulfill the requisite number of years to be considered for regularization under the Government resolutions dated 18.6.1993 as modified on 10.5.2005. If the petitioner had filed a writ application and orders were passed to consider his claim for regularization, quite obviously, there must have been a record file for the purpose in the establishment of the respondents. The communication dated 8.11.2006 enclosing the order of the Chief Engineer also refers to C.W.J.C. No. 12490 of 1999, as in pursuance of which it was being made. There shall be a presumption that this order was available in the regularization records of the petitioner arising from the same writ petition in pursuance of which the impugned order dated 3.10.2007 has been passed. The latter makes no reference to the former. Learned counsel for the State finds it difficult to explain why the counter affidavit does 3 not deal with the order of the Chief Engineer which is earlier in time. In an effort to salvage the situation he submits that the impugned order dated 3.10.2007 has been passed in view of the directions of this Court in the contempt application preferred by the petitioner for non compliance of the order dated 18.5.2005 in C.W.J.C. No. 12490 of 1999. This face saving exercise by the respondents does not impress the Court and is no defence at all for failure to deal with the earlier orders of the Chief Engineer. It was the duty of the State officials to act fairly and reasonably in taking a stand on behalf of the State Government before the Court by placing all necessary facts and then leaving the ultimate decision to the Court. Refusal to deal with all necessary materials and on the contrary withholding them may not be the most appropriate manner to act by officials of the State. Be that as it may, the fact of the matter is that the petitioner was an appointee on a daily wage. There is no assertion that this daily wage appointment was made in accordance with Article 14 of the Constitution or on a vacant sanctioned post. The law stands to well settled explained in (2007)6 SCC 207 (Hindustan Aeronautics Ltd. v. Dan Bahadur Singh) that a daily wagers holds no post and has no claim for regularization. But simultaneously, the Court cannot loose sight of the fact that given his past 4 working experience the respondents from the recommendation of the Chief Engineer appear to be willing for consideration of his claim subject to his qualifying at a selective examination to be conducted by the Staff Selection Commission. If the order of the Chief Engineer enclosed to the communication dated 8.11.2006 has not been varied, modified or revoked, quite obviously, it cannot be ignored by the respondents at their convenience. In view of the fact that the respondents have passed orders at variance on 3.10.2007 by the Executive Engineer and on 8.11.2006 by the Chief Engineer, the writ application is disposed with a direction to the Secretary, Department of Public Works, Government of Bihar to examine the matter and to act in accordance with law subject to the rider incorporated hereinabove that the recommendation of the Chief Engineer has not been varied, modified or revoked and as and when the Commission makes an advertisement and the petitioner applies in accordance therewith his case shall be considered in light of the aforesaid observations in accordance with law. The writ application stands disposed. P. Kumar (Navin Sinha, J.)