Letters Patent Appeal No.350 OF 2006 (Against the Judgment and Order dated 18th January, 2006 passed in C.W.J.C. No. 6362 of 2004) THE STATE OF BIHAR THROUGH THE SECRETARY HOME (SPECIAL), GOVT. OF BIHAR & ORS. -------(Appellants) -Versus- BRAJ KISHORE SINGH --------------------(Respondents) ----- For the Appellants : Mr. Anil Kumar Jha, G.A.2. Mr. Sanat Kumar Mishra, J.C. to G.A.2. For the Respondent : M/s Narendra Prasad, Md. Khurshid Alam, Mr. Akash Deep & Mr. Arun Bhagat. ------------- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M. PRASAD Barin Ghosh & C.M. Prasad, JJ. In the writ petition, the respondent-petitioner contended that since 1996 he is serving the jail in question as a Driver-cum-Warder and on 26th July, 1999 he was appointed as Warder subject to the sanction by the higher authority and till such time he would be paid wages on daily wage basis, but, despite lapse of more than five years, no decision has been taken to appoint him as such and to accord him the benefits of such appointment. The writ petition 2 having been allowed by the Judgment and Order under appeal, the appellant is before us. By the Judgment and Order under appeal, the appellant was directed to ensure constitution of Selection Committee for consideration of the case of the respondent-petitioner for appointment on permanent basis against a vacant post of warder within two months of receipt/production of a copy of the order. The fact remains that the respondent-petitioner was never engaged to discharge any work associated with the work of warder. From the day one he was asked to discharge the duties associated with the duties of a driver. In the circumstances, question of constitution of a Selection Committee for the purpose of consideration of the case of the petitioner-respondent for his appointment on permanent basis against a vacant post of warder did not arise. That appears to be the grievance in the present appeal. While it is true that the respondent-petitioner was not engaged to discharge the duties of a warder, he was certainly engaged by the Jail Authorities to drive the vehicles, which were made available to the jail in question. It is the contention of the appellant that no post of driver was 3 sanctioned by the State and accordingly, the respondent- petitioner could not be engaged even as a driver. It was rightly contended by the learned counsel for the appellant that normally as a stop gap measure engagement on daily wage basis can be made for a limited period to discharge the duties attached to a sanctioned post. However, while daily wage or ad hoc engagements can be made only as a stop gap arrangement, it is now within the knowledge of the legislature, as would be evident from the Contract Labour (Regulation and Abolition) Act, that engagement of contract labourers are being made to discharge duties of perennial nature. While discharge of duties of perennial nature through contract labourers has been held to be inappropriate by the legislature, it has come on record of this case that the respondent-petitioner has been made to discharge work of perennial nature associated with a work for which no post has yet been sanctioned by the State. As a result, the other view of the matter would be that the State by providing the vehicles to the Jail Authority and at the same time by not making available the means to ply the vehicles in question, compelled engagement of the respondent-petitioner to ply the said 4 vehicles perennially. However, having regard to the fact that the respondent-petitioner was not engaged to discharge the duties of warder, we cannot uphold the Judgment and Order under appeal containing a direction for constitution of a Selection Committee for consideration of the case of the appellant for being appointed as a Warder and accordingly, set aside the said direction. However, being alive of the situation that in fact in the writ petition, the petitioner-respondent was seeking permanency of his continuous engagement since 1996 as a Driver, we feel that it is an appropriate case where appropriate directions ought to have had been issued. In the circumstances, while we set aside the Judgment and Order under appeal, we allow the writ petition and direct the State Government to decide whether to permit the jail in question to retain the vehicles in question as quickly as possible but not later than three months from today and if to retain the vehicles in question to make appropriate arrangement for plying those vehicles by, amongst others, granting appropriate sanction for the post or posts of drivers and to fill the same up in accordance with law within a period 5 of six months therefrom. The respondent-petitioner having had assisted the State Government through the authorities of the said jail in keeping the vehicles in question on move, it goes without saying that it would be the moral duty of the State Government to give not only appropriate weightage to the appellant for such assistance rendered by the respondent- petitioner, but also to relax his age in the event ultimately the respondent-petitioner offers himself as a candidate to supply the vacancy in the post(s) of driver to be sanctioned in future. With the modification, as above, the appeal is allowed. Patna High Court, 21st August, 2008, S.B.P./NAFR (Barin Ghosh, J.) (C.M. Prasad, J.)