IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11616 of 2010 ====================================================== 1. Ram Jeewan Prasad S/O Late Ram Lakhan Prasad R/O Mohalla- Noniaroli, Sharishtabad, Patna P.S.- Gardanibagh, Distt.- Patna (Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna 2. The Chief Secretary, Government Of Bihar, Patna 3. The Secretary Cum Commissioner, Department Of Finance, Govt. Of Bihar, Patna 4. The Secretary, Department Of Labour Resources, Govt. Of Bihar, Patna 5. The Labour Commissioner, Department Of Labour Resources, Government Of Bihar, Patnaa 6. The Joint Secretary, Department Of Labour Resources, Government Of Bihar, Patna 7. The Deputy Labour Commissioner Office Of The Agricultural Labour, Muzaffarpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bindhyachal Singh For the Respondent/s : Mr. (Gp1) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 24-11-2011 Heard learned counsel for the petitioner and learned counsel for the State. The writ petition was filed on 22.7.2010 after serving two copies in the office of the Advocate General, the second copy meant to facilitate expeditious filing of counter affidavit. The writ petition has been running on the cause list for reasonably long period and was first taken up on 18.11.2011. It is not in controversy at the Bar that the matter was heard when indulgence was granted to the State Patna High Court CWJC No.11616 of 2010 (2) dt.24-11-2011 2 by accommodating them to seek instructions and assist the Court by a counter affidavit. Learned counsel for the State submits that he has received telephonic instructions to seek further adjournment. There is no explanation by the respondents why despite the passage of more than reasonable time since 5.5.2010 no counter affidavit has been filed. The Court has observed on more than one occasion that the respondents appear to be suffering from a misconception that irrespective of the date of filing and the time that may have gone by it was a matter of vested right to seek an adjournment whenever it is taken up for the first time to file counter affidavit, ignoring their Constitutional obligation under Chapter-4 of the Constitution as also under the State Litigation Policy to assist the Court in timely dispensation of justice. The claim is for regularization. The law stands well settled now in (2006) 4 SCC 1 (Secretary, State of Karnataka vs. Umadevi) as explained subsequently also in more than one judgement that a daily wager holds no post and the question of his regularization does not arise. It stands equally settled that any Circulars of the State Government for regularization of daily wagers contrary to Article-14 of the Constitution of India are unenforceable and have no sanctity Patna High Court CWJC No.11616 of 2010 (2) dt.24-11-2011 3 in the law. The appointment letter of the petitioner in no uncertain terms states that he was being appointed on a sanctioned vacant post on a daily wage basis. The case of the petitioner for regularization forms a class by itself fully covered by the decision of the Supreme Court reported in (2010) 9 SCC 247 (State of Karnataka vs. M.L. Kesari) excluding applicability of Umadevi’s case to such persons. The respondents are directed to consider the case of the petitioner for regularization, if he is still in service, in accordance with the guidelines laid down in M.L. Keshari. If the petitioner is not in service in any manner in any capacity, it cannot be a case for regularization, but of fresh appointment when the judgment of the M.L. Kesari (supra) shall have no application. Let such consideration be done and a reasoned and speaking order passed within a maximum period of three months from the date of receipt/presentation of a copy of this order. The writ application is disposed. Krishna Chandra Jha/- (Navin Sinha, J)