IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2928 of 2010 1. SUSHIL KUMAR PRASAD S/O MADHU SHARAN PRASAD R/O VILL.- KARJA KHALILPUR, P.O.- PRATAPPUR, P.S.- KARJA, DISTT.- MUZAFFARPUR 2. ASHOK KUMAR S/O RAM AYODHYA PRASAD R/O VILL.- KARMANA TOLA, P.O. AND P.S.- NAWADA, DISTT.- BHOJPUR (ARA) 3. RAMESH KUMAR GUPTA S/O LATE DASAI SAH R/O VILLAGE AND P.O.- BHAGWANPUR (NUNFAR), P.S.- SADAR, DISTT.- MUZAFFARPUR 4. PARMANAND SHARMA S/O LATE RAM KAILASH SHARMA R/O VILL.- JATKAULI, P.O.- DHARAMPUR, P.O. AND P.S.- VAISHALI, DISTT.- VAISHALI 5. MUKESH CHAUDHARY S/O LATE JAGDEV CHAUDHARY R/O VILL.- MAI, P.O.- DARIYAPUR, P.S.- MUFFASIL, DISTT.- MUNGER 6. CHANDRA DEV CHAUDHARY S/O LATE JHINGO CHAUDHARY R/O VILL.- MAI, P.O.- DARIYAPUR, P.S.- MUFFASIL, DISTT.- MUNGER 7. NITYA NAND CHAUDHARY S/O LATE JHINGO CHAUDHARY R/O VILL.- MAI, P.O.- DARIYAPUR, P.S.- MUFFASIL, DISTT.- MUNGER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, GOVT. OF BIHAR DEPARTMENT OF ANIMAL HUSBANDRY, NEW SECRETARIAT, PATNA 3. THE DIRECTOR DEPARTMENT OF ANIMAL HUSBANDRY, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 4. THE REGIONAL DIRECTOR PURNIYA, DEPARTMENT OF ANIMAL HUSBANDRY 5. THE REGIONAL DIRECTOR MUZAFFARPUR, DEPARTMENT OF ANIMAL HUSBANDRY 6. THE REGIONAL DIRECTOR MAGADH RANGE, GAYA, DEPARTMENT OF ANIMAL HUSBANDRY 7. THE DISTRICT ANIMAL HUSBANDRY OFFICER DISTT.- PURNEA 8. THE DISTRICT ANIMAL HUSBANDRY OFFICER DISTT.- MUZAFFARPUR 9. THE DISTRICT ANIMAL HUSBANDRY OFFICER DISTT.- GAYA ----------- 2/ 30/08/2010 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by order dated 19.7.1996 terminating their services from Class-4 posts employed in the office of the Regional Director, Animal Husbandry, Magadh Area at Purnea, Muzaffarpur, Gaya and other such regional offices. The petitioners claim to have been intermittently appointed on daily wages initially from - 2 - 1988. They contend that they came to be absorbed on Class-4 posts based on long years of continuance from various dates of September,1990 ranging till December, 1993. It is their further claim that their service book was also opened along with statutory benefits. They were then issued a show cause notice to which they replied on different dates The contention was that once they had been regularized and absorbed in service, their service could not have been terminated in the manner done and all procedures for termination of a regular employee was necessary to be followed. In absence of any such procedure under Article-311(2) having been followed, the termination of a permanent employee from service was contrary to the law as held in 2008(1) P.L.J.R. 841 (Ram Krishna Dubey Vs. State of Bihar & Ors.). It was lastly contended that there has been hostile discrimination inasmuch as certain others who were appointed along with the petitioners in the same transaction have been retained in service while the petitioners have been arbitrarily terminated. Lastly reliance was placed on a Government Circular dated 10.5.2005 laying a cut-off date of 11.12.1990 for regularization of those who had worked for over 240 days. Learned counsel for the State submitted that - 3 - from the materials on record it was palpably apparent that the appointment of the petitioners was outright illegal without any process of advertisement and competitive selection which was violative Article-14 of the Constitution of India. The services having been terminated long years ago in 1996, the writ application was highly belated. Regularization was not a mode of appointment and completion of 240 days simpliciter was no ground to claim regularization. The Circular relied upon was more aptly applicable where there may have been certain procedural irregularities in the process of appointment otherwise substantively followed. He relies upon the judgement reported in 2009(4) P.L.J.R. (S.C.) 73 (State of Bihar Vs. Upendra Narayan Singh). The appointment letter which the petitioners have annexed, starts with the recital that they have been working for years and therefore on the recommendation of the Minister they were absorbed in service. Some of them only state that they have been in service for long years, others that they were being absorbed in pursuance of the directions of the Regional Director, Animal Husbandry. Some of them were appointed on daily wages for six months before absorption with a condition incorporated that it may be extended for another six months. In the case of others it states that - 4 - the appointment is temporary. The petitioners have chosen not to bring on record the show cause notices issued to them specifying the illegality in their appointments. They have only placed on record their replies to the show cause stating that they were earlier working on daily wages and were regularized on vacant posts. That they could not be removed without a proper proceeding making a demand to hold a proper proceeding against them before termination. On the face of the materials placed by the petitioners and the recitals contained in their orders of regularization/absorption it is more than apparent that their appointment was an illegal appointment without any procedures. Being daily wagers they held no post at all and the question of absorption/regularization thus did not arise. Absorption or regularization could be done of a Government servant otherwise appointed in accordance with procedures working on a substantively sanctioned posts. That daily wagers hold no post and could not be considered for regularization/absorption stands well settled and even fall outside the purview of any directions in Secretary, State of Karnataka Versus Uma Devi (2006) 4 SCC 1 as explained more succinctly in (2010) 3 SCC 115 ( STATE OF KARNATAKA Versus GANAPATHI CHAYA NAYAK AND OTHERS). - 5 - Regularization presupposes an appointment made in substantial compliance with procedures though there may have been certain infirmities, but when there has been no procedure followed consistent with Article-14 of the Constitution of India by an advertisement and comparative assessment of merits before regularization, it becomes a garb for confirmation of an otherwise illegal appointment. Regularization has been held not to be a mode of appointment so as to vest a right in the petitioners to urge that merely because their service book had been opened and certain service benefits given coupled with an order for regularization, all procedures of law stand obviated and cannot be questioned. This Court holds that issues of an illegal appointment can be re- opened at any stage and the years for which a person may have worked are of no relevance. Illegality does not get converted into irregularity by mere passage of time. If the initial appointment was ab initio void, no benefit flows to the incumbent. If the aforesaid discussion was not sufficient to non-suit the petitioners, this Court finds sufficient reason to reject the writ petition on a belated challenge to a termination made in 1996 in the year-2010. The Circular dated 10.5.2005 has absolutely no application in the facts of the present case. It deals with those who may - 6 - have been irregularly appointed and not illegally appointed. In any event, mere completion of 240 days may be an issue relevant under Section-25F of the Industrial Disputes Act for certain specified purposes, but vests no right in an incumbent under Article-226 of the Constitution of India to claim creation of a legal right for continuance in service. This Court could have left issues at that but for the judgement in the case of Upendra Narayan Singh (supra) relied upon by the respondents. It related to illegal appointments made in the Regional Offices of the Animal Husbandry Department of the present manner in the year-1991. Defence inter alia was taken on behalf of the appointees of long years of service, no fault lying with them, regularization of their services and opening of service books etc. One of the grounds urged also was the continuance of those similarly situated discriminating against only some of the appointees. The Supreme Court at paragraph-22 of the judgement adequately noticed from its earlier judgement in Delhi Development High Way Employees Union Vs. Delhi Administration, Delhi and Others reported in (1992) 4 SCC 99 how such appointments are made for illegal considerations including money. Paragraphs-28 and 30 of the judgement in the case of Upendra Narayan - 7 - Singh (supra) notices that despite grant of liberty even by the Supreme Court, the appointees were unable to show that any procedure for appointment was followed. It is to be noticed that some of these appointments also related to the Magadh Range, Gaya from which the claims of some of the petitioners also arise. The contention that they had been regularized has been well considered and rejected in paragraph-32 of the judgement in view of the nature of the appointment being palpably illegal at the outset. If delay was not sufficient to dismiss the present application, this Court is satisfied that the issues sought to be raised herein stand fully covered by the judgement of the Supreme Court in the case of Upendra Narayan Singh (supra) including the defence of reverse discrimination urged under Article-14 of the Constitution of India to claim parity for continuance of the illegal appointments which was expressly rejected. There is no merit in this application. It is accordingly dismissed. KC ( Navin Sinha, J.)