CIVIL WRIT JURISDICTION CASE No.3765 of 1997 In the matter of an application under Article 226 of the Constitution of India. ---- KAPILDEO RAI, son of Sri Ram Sewak Rai, resident of Bank Road, P.S. Gandhi Maidan, Town and District – Patna. ________ Petitioner Versus 1.The State of Bihar through the Secretary to Government, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna. 2.Chief Engineer (C), Water Resources Department, Anishabad, Town and District – Patna. 3.Engineer-in-Chief (C), Water Resources Department, Sinchai Bhawan, Patna. 4.Superintending Engineer, Yojna and Monitoring Circle, Water Resources Department, Sinchai Bhawan, Patna. 5.Executive Engineer, Quality Control Division I, Water Resources Department, Patna. _________ Respondents For the petitioner:- Mr. Ambar Nath Banerji. For the State :- G.P. IX ____ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi,J Case of the petitioner is that he was appointed on daily wage as a driver under the respondent Water Resource Department. Petitioner’s stand is that interview was held on the basis of names having been requisitioned from the employment exchange and he was appointed with effect from 25th November, 1980. The order of appointment is Annexure-3. When another employee similarly 2 appointed on daily wage came to be taken on the work charge establishment, petitioner too made a grievance and on the basis of the order dated 1.5.1989 contained in Annexure-6, petitioner was appointed on ad hoc manner in the work charge establishment. He worked in that capacity till an objection was raised with regard to the appointments made in the work charge establishment after 21.10.1984 and the authorities were informed that there was a ban on making any appointment on daily wages after 21.10.1984 and any person appointed thereafter will have to be removed. In that background petitioner with some other persons numbering 17 came to be removed by following the procedure established under the Industrial Disputes Act. It is the order dated 26.3.1997 contained in Annexure-1 itself under challenge. 2. One dimension which emerges from the records of the case is that in similar circumstances many other persons have also come to the Court and there was kind of interim protection granted to many a persons against that order of removal. The same benefit came to be extended to the present petitioner as well and petitioner has continued to work as a driver under the respondents on the basis of that interim order. 3. The writ was admitted on 2.8.1999 and it is being taken up now for final disposal. By virtue of the interim order petitioner has continued in the meanwhile on the pay-scale which is available to such post. 4. Petitioner submits that he has just about three months 3 left to go out of employment. He has served the respondents for almost 30 years now and keeping the length of service he has rendered, in whatever circumstances including the intervention of the Court, he wants his case to be considered for regularization by the respondents keeping the background to his appointment and his continuance thereof. 5. Petitioner contends that there have been policy decisions taken by the government from time to time to regularize the services of such employees due to various judicial pronouncements. In this view of the matter as it then existed, a decision dated 20th May, 1996 issued by the Department of Personnel and Administrative Reform has been brought on record as Annexure- 8 to the writ application in support. There was a decision of the government to regularize the services of such employees including the ones working on the daily wages and the cut off date for such consideration was extended till the year 1990. It is also the stand of the petitioner that the view of this Court and even of apex Court have been in favour of regularization. Since the matter could not be decided by the High Court for many a years, the State authorities are now wanting to turn the table against the petitioner. In this regard the judgment of the constitution bench of the Supreme Court rendered in the case of Secretary, State of Karnataka vs. Uma Devi, (2006) 4 SCC 1 is being quoted. 6. Counsel for the State submits that the petitioner already stood retrenched by taking recourse to the provisions of 4 Industrial Disputes Act. It is only because of the interim order passed by the High Court that he has continued in service. In absence of any cogent and clear evidence having been pointed out by the petitioner as to the methodology for appointment having been followed in a fair and square manner, he does not acquire a right for being absorbed on a permanent basis under the respondents. The authorities had to take a decision in the background that there was a categorical direction issued by the superiors and there was no occasion to retain anybody in employment working on daily wage or under work charge establishment after the cut off date i.e. 21.10.1984. He asserts that the right of the petitioner to seek relief of the kind stands barred by the decision rendered by the constitution bench. 7. Counsel for the petitioner does not quarrel with larger proposition and the background under which the decision in the case of Uma Devi (supra) came to be rendered. He submits that the door has not been totally shut on the face of all the employees by virtue of the said decision. The same constitution bench had left an opening in para 53 of the said decision but certain directions and guidelines have been issued to the State authorities to carry them out as a one time measure. 8. Learned counsel for the petitioner further brings to the notice of the Court a subsequent circular issued by the State of Bihar in the year 2006 where State of Bihar has also laid down certain guidelines for regularizing the services of such employees keeping in mind the decision of the Hon`ble Supreme Court in Uma Devi’s 5 case. 9. In view of the opinion of the Supreme Court especially the Constitution Bench all rights of an employee for demanding regularization have become conditional. Learned counsel for the petitioner fairly submits that he does not want any direction for his regularization but he can surely demand a direction for consideration in this regard by the concerned authorities. He therefore prays that if the respondents take a dispassionate view and render their decision within a reasonable time, he will be more than happy with the same. 10. Without commenting on the merits of the claim of the petitioner or taking note of all those submissions which have been strenuously put up by the learned counsel for the State, the present writ application stands disposed of with a direction upon the competent authority that he has freedom to take a decision on the question of right of the petitioner for regularization even at this stage. Such a decision may be communicated to the petitioner within a period of three months from the date petitioner files such an application with supporting materials. 11. The petitioner is further directed to file such an application within fifteen days from today and the outcome of such a decision may govern the issue so far as the petitioner is concerned. 12. Let it be recorded that since the petitioner has continued to work under the respondents for a long period of time, also due to the interim order of the Court, the continuance of the petitioner will not be disturbed till such a decision is taken by the 6 respondents. 13. The writ application stands disposed of with the direction as above. ( Ajay Kumar Tripathi, J.) Patna High Court: The 19th August, 2010. R.K.Pathak (NAFR)