IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2156 of 2009 Bipin Kumar Verma & Ors . Versus The State Of Bihar & Ors . ----------- 3. 07.07.2011 Heard learned counsel for the petitioners and the State. The petitioners are daily wagers seeking regularization. The contention on their behalf is that they are working in that capacity since 1980 to 1984 in the Water Resources Department against sanctioned vacant posts of Class-III and IV. The respondents in their counter affidavit make a bald statement that the petitioners were not engaged on vacant sanctioned posts. There is no statement in the counter affidavit what were the number of sanctioned and vacant posts at the time that the petitioners came to be appointed, how many of them were filled up. If the petitioners were engaged in the exigency of the work beyond sanctioned post, how they have continued for such long years. Counsel for the petitioners outside the records relies upon a letter of the Superintending Engineer dated 9.6.1999 to submit that the petitioners were working on sanctioned vacant post in the regular establishment. He invokes the said 2 communication seeking support from the judgment of the Supreme Court in (2010) 9 SCC 247 247 (State of Karnataka & Ors. Vs. M. L. Kesari & Ors.) dealt at Paragraph-7 as follows:- “7. It is evident from the above that there is an exception to the general principles against “regularization’ enunciated in Umadevi (3), if the following conditions are fulfilled:- (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” It is a question of fact to be dealt with by a proper and reasoned order of the manner in which the petitioners came to be appointed. The number of sanctioned vacant posts that existed at that time. How many of them have been filled, to arrive at a 3 adjudicatory decision that the petitioners were or not appointed and worked against sanctioned vacant posts. Paragraph-9 of the counter affidavit of respondents states as follows:- “Besides under Sankalp No. 639 dated 16.3.2009 of the State of Bihar petitioner’s matter is under process as per para-10 of the writ petiton.” In that view of the matter such consideration be now done after ascertainment of facts in light of the law laid down by the Supreme Court in the case of M. L. Kesari (supra), preferably within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)