IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10578 of 2001 NAYAN KUMAR MUNSHI, S/O LATE NEEL BIHAR MUNSHI, R/O MOHALLA BANMANKHI, P.S.- BANMANKHI, DISTRICT-PURNIA. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. BHUPENDRA NARAIN MANDAL UNIVERSITY, LALOO NAGAR MADHEPURA, THROUGH ITS VICE CHANCELLOR. 3. REGISTRAR, BHUPENDRA NARAIN MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA. 4. GORE LAL MAHTO COLLEGE, BANMANKHI THROUGH ITS PRINCIPAL, DISTRICT-PURNIA. ………………RESPONDENTS. ----------- For the Petitioner : Mr. Awadhesh Kumar, Adv. For the B.N.M.U. : Mr. B.K.Jha, Sr. Adv. and Mr. Abhya Kumar, Adv. For the State : Mr. Anjani Kr. Sharan, SC-20. ---------- 9 09.03.2010 Heard learned counsel for the petitioner and learned counsel for the respondents. Petitioner has challenged Annexure-1 dated 6.2.2001 by which the Principal has terminated the services of the petitioner with effect from 1.5.1998. Learned counsel for the petitioner submits that in view of exigencies of the situation the Principal invited applications on 12.5.1989 for appointment on Class-III and IV posts on daily wages. Petitioner and others applied and they were engaged. He continued in 2 the college as daily wager. However, since November, 1986 petitioner’s wages were stopped. Hence, he moved this Court through C.W.J.C. No. 7584 of 1998. The said writ application was disposed of by order dated 28.1.2000, a copy whereof is annexed as Annexure-13. The order shows that the University had taken stand in the said writ application that petitioner’s engagement was ab initio void as the same had been made by the Principal without sanction of post, without advertisement and without following the procedure for selection. It was also pointed out that the State Government had issued instructions for disengagement of such illegally appointed persons. This court noticed that it was not in dispute that the engagement of the petitioner was on daily wage basis and as a measure of stop gap arrangement. Therefore, strict rule of procedure for regular appointment was not required to be followed. However, it also noticed that the State Government had issued directions for disengaging the daily wage employees and, therefore, “it was well within the purview of the University to disengage such daily wage employees including the petitioner.” 3 But the Court found that there was nothing on record to suggest that any formal order was issued by the University to disengage the petitioner from daily wage. Therefore, this Court held that the petitioner was entitled for his wages for the period he had actually performed his duty. It is submitted that pursuant to the said order the case of the petitioner was examined and it was found that he had performed his duty till 30.4.1998 only. Therefore, his wages till that date was paid to him. However, in view of the observations and in view of the fact that the appointment of the petitioner was illegal, orders were issued by the Principal terminating his services from 1.5.1998 since the records showed that the petitioner had not worked in the college from that date onwards. Learned counsel for the petitioner submits that this Court had found that the petitioner was engaged on daily wage basis for which the strict rule of procedure for appointment was not required to be followed. Therefore, the engagement of the petitioner cannot be termed as illegal and at best it can 4 be termed as irregular. He submits that some sort of advertisement and selection procedure was adopted by the Principal for engagement of the incumbents including the petitioner on daily wages. Thereafter he admittedly continued till 30.4.1998 i.e. about ten years. He submits that although the respondents do not admit but there are documents to show that the petitioner was engaged by the college authorities even after 30.4.1998 till the impugned order of his termination was issued. Hence, he had completed more than 10 years of actual service in the college and, therefore, his case falls for consideration for regularization in terms of paragraph 44 of the Constitution Bench judgment of the Apex Court rendered in the case of State of Karnataka Vs. Uma Devi (3) reported in 2006 (2) PLJR 363. This fact has to be established by the petitioner before the respondents. If the petitioner is in a position to establish that he had actually rendered services for more than 10 years in the college, he may fall within the zone of consideration for regularization in terms of the said paragraph 44 of the 5 Constitution Bench judgment. Therefore, the writ application is disposed of with liberty to the petitioner to represent before the respondents for consideration of his case for regularization in terms of the said Constitution Bench judgment of the Apex Court. This may be pointed out for the benefit of the petitioner that his initial engagement on daily wages was not found by this Court in the earlier as void ab initio. The respondents shall consider the representation of the petitioner on its own merits and in accordance with law and pass appropriate orders preferably within a period of three months from the date of receipt/production of a copy of this order. The writ application, is, accordingly disposed of with the above observations and directions. Arvind/ (J. N. Singh, J.)