IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.15735 OF 2009. 1.UMESH PRASAD SINGH, S/O LATE BALMIKI SINGH,R/O VILLAGE AND P.O. GHOSRAWAN, P.S GIRIAK, DISTRICT NALANDA. 2.SHASHI KUMAR, S/O LATE AWADHESHWAR SINGH, R/O VILLAGE PAHARPUR, P.O. PAHARPUR, P.S AKBARPUR, DISTRICT NAWADAH. 3.AKHILESHWAR PRASAD SINGH, S/O LATE JAI SINGH, R/O VILLAGE GHOSRAWAN, P.S GIRIAK, DISTRICT NALANDA. 4.SUDHIR KUMAR, S/O LATE RAM LAGAN PRASAD SINGH, R/O VILLAGE AND P.O. GHOSRAWAN, P.S GIRIAK, DISTRICT NALANDA. 5.RAM BRIKSH SINGH, S/O KISHORI SINGH, R/O VILLAGE SIMARIYA, P.O. MARWA, P.S PAKARIBARAWAN, DISTRICT NAWADAH. 6.MOHAN SHARMA, S/O LATE KRISHNA NANDAN SHARMA, R/O VILLAGE SARE, P.S SARE, DISTRICT NALANDA. 7.RAVINDRA SINGH, S/O SRI RANA PRATAP SINGH, R/O VILLAGE KOYAL BIGHA, P.O. BELDI, P.S CHANDI, DISTRICT NALANDA. 8.MD. SARVAR ALAM, S/O LATE TAWARAK HUSSAIN, R/O VILLAGE MOLANADIH, P.O. MOLANDIH, P.S HARNAUTH, DISTRICT NALANDA. 9.FIROZ JIYA, S/O MD. JIYAUDDIN, R/O VILLAGE MOJAKA, P.O. VAZIRPUR, DISTRICT PATNA. 10.MADAN PRASAD SINGH, S/O LATE RAMCHANDRA PRASAD SINGH, VILLAGE NARSINGHPUR, P.O. GILANI, P.S BARBIGHA, DISTRICT SHEKHPURA. 11.SUSHIL KUMAR, S/O SRI KISHORI SINGH, R/O VILLAGE BAHADULY, P.O. GILANI, P.S SARE, DISTRICT NALANDA. 12.JAY NANDAN SINHA, S/O LATE TRIVENI SINGH, R/O VILLAGE KULNA, P.O. KUSUMHAR, P.S AKBARPUR, DISTRICT NAWADAH. 13.VIRENDRA KUMAR, S/O LATE RAM SWAROOP SINGH, R/O VILLAGE MAFI, P.O. MAFI, P.S. WARISALIGANJ, DISTRICT NAWADAH. VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 2.THE DIRECTOR IN CHIEF, HEALTH SERVICES, BIHAR PATNA. 3.THE REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES, BIHAR, PATNA. 2 4.CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, BIHARSHARIF, NALANDA. ………………………RESPONDENTS. ---------------------------------- 04/ 09.12.2011 Heard counsel for the parties. The prayer of the petitioners in this writ reads as follows:- “For issuance of appropriate writ(s), order (s) direction (s), commanding the respondents concerned to reqularize the services of the petitioners on class-III and IV posts as per the Rules/Circulars prevalent after their appointment against sanctioned post in 1989 on daily wages in the office of the Civl Surgeon cum chief Medical Officer, Nalanda (Biharsharif).” Learned counsel for the petitioners has submitted that though the petitioners were terminated from service in the year 1991 and though the order of termination was also upheld by this court in the order dated 08.12.1992 in C.W.J.C No. 155 of 1992, they would still be entitled for regularization of service, inasmuch as, certain observations were made in the said order while dismissing the writ application of the petitioners. In this regard, he has relied on the following passage of the order dated 08.12.1992:- “In the circumstances, therefore, we dismiss this writ petition and we direct the respondents 3 that the posts in question, if they are required in permanently or for indefinite period, should be filled up only in the regular way after advertising the posts and subjecting the candidates to a known method of selection to judge their relative merit. No appointments shall be made for a duration of more than three months if the exigencies of service so require without resorting to the due procedure but with the condition that such appointments will come to an end after the expiry of the period of three months and neither the person appointed nor anyone else shall be appointed against the same post after the period of three months. If regular appointments take place , the case of the petitioners shall also be considered if they are otherwise eligible and qualified, subject to this that the petitioners will be entitled to relaxation so far as age is concerned to the extent of the continuous service rendered by them on daily wage on temporary basis.” Learned counsel for the petitioners has also invited attention of this Court to paragraph no. 13 of the writ application to contend that the Collector of the district who is the nodal officer prescribed in the circular no. 16441 dated 03.12.1980, for making appointment on class-III and class-IV post, in all the offices of the district including the Civil Surgeon, Nalanda at Biharsharif has not included the name of the petitioners 4 in the panel while they have filed their applications both in the year 1993 and 2000. Learned counsel for the State on the other hand with the help of the counter affidavit filed by the Civil Surgeon of Nalanda District would submit that there would be no question of regularizing the services of the petitioners as their services were terminated in the year 1991 which was also affirmed by this Court in the order dated 8.12.1992 in C.W.J.C. No. 155 of 1992. He has further submitted that the petitioners cannot claim regularization of their service because even the posts on which they were allegedly working in the Tuberculosis wing were not sanctioned posts and that whatever sanctioned posts were available in the district have already been filled up after undergoing the procedure as laid down in circular no. 16441 dated 03.12.1980, and the panel prepared thereunder by the Collector of the Nalanda district. In the considered opinion of this 5 Court, the prayer made by the petitioner in this writ application is wholly misconceived. Regularization cannot be a mode of appointment. A person who is continuing in service and has been appointed by over looking or omitting certain condonable procedures of appointment can only expect consideration of his case for regularization. Therefore, continuation in service is a condition precedent for regularization of service. Admittedly, the petitioners are out of job since 1991 and therefore, their services cannot be regularized specially when the Division Bench of this Court in their earlier writ application had found their engagement even on daily wages to be rank illegal and in teeth of Articles 14 and 16 of the Constitution of India. So far the much emphasised aspect by the learned counsel for the petitioners as with regard to the observations made by the Division Bench in the order dated 8.12.1992 as with regard to advertisement and giving opportunity to the petitioners is concerned, the petitioners have made no 6 averment that any person was appointed without following the prescribed procedure as laid down in the advertisment. As a matter of fact, when the petitioners themselves admit that they had filed their application in the year 1993 to 2000 before the Collector of the district, that could have only possible if the post has been advertised. In any event, when the Civil Surgeon of the district has clarified in his counter affidavit that whatever appointment on class-IV post were made in the year 2001 were based on the recommendation made by the Collector on the basis of his panel prepared after undergoing the prescribed procedure in the Government circular no. 16441 dated 03.12.1980, it will have to held that the cases of the petitioners would have been also considered, had their names also been recommended by the Collector of the district. Considering all these aspects, this Court would find it difficult to issue a direction for regularization of service of the petitioners, inasmuch as, specially 7 when they are not continuing in service from 1992. This Court would therefore give liberty to petitioners to approach the Collector of the Nalanda district by filing their representation and if the Collector of the Nalanda district would find that the petitioners had filed their application in response to any advertisement for their empanelment in terms of circular nos. 16440 and 16441 dated 03.12.1980 meant for filling of class-III and class-IV posts respectively, he would further examine as to the places of their empanelment in the panel prepared and sent by him to Civil Surgeon. If the Collector of the Nalanda district would find that any person placed below in the panel to the petitioners have also been recommended and/or appointed in the office of Civil Surgeon, Nalanda, he would also reconsider the claim of the petitioners but, in the event, it is found by the Collector of Nalanda District that neither the petitioners were applicant for empanelment in the Collector’s panel in 8 terms of circular no. 16440 and 16441 dated 03.12.1980 nor their names were ever included in the panel, the Collector of the district shall straightway reject their case by informing them the reasons of such rejection. If the names of the petitioners do figure in the panel and are at comparatively lower places and the recommendation had been made only of such persons at the higher place of the panel, the Collector will also indicate such position to the petitioners in his reasoned order on the representation filed by the petitioners. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)