Patna High Court

Deo Kant Choudhary And Ors vs The State Of Bihar And Ors on 27 February, 2019

Equivalent citations: AIRONLINE 2019 PAT 2194

Author:
Shivaji Pandey

Bench:
Shivaji Pandey

HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5899 of 2011
======================================================
1. Deo Kant Choudhary, son of late Bhubneshwar Choudhary, resident of
Village- Shahpur, Police Station-Pandoul, District- Madhubani.
2. Abhai Kumar, son of Sri Vishwanath Singh, resident of village- Gopalpur,
Police Station- Nayagaon, District- Chapra.
3. Om Prakash Singh, son of late Pashupati Singh, resident of village-
Dharmpura, Police Station- Doriganj, District- Saran.
4. Om Prakash Sehgal, son of Sri Parmanand Singh, resident of village-
Samastichak, Police Station-Bhawanganj, District- Patna.
5. Prakash Kumar Verma, son of Sri Dhaneshwar Prasad Sinha, resident of
Mohalla-Ramdhanpur (Pipal ki Gali), Police Station- Kotwali, District-
Gaya.
6. Shamsher Bahadur Singh, son of late Ram Sihanshan Singh, resident of
village- Kusauri, Police Station- Sahatawar, District- Ballia, Uttar Pradesh.
7. Gajendra Kumar Singh, son of late Ram Prasad Singh, resident of village-
Rajapur, Police Station-Koilwar, District-Bhojpur.
8. Satyendra Singh, son of late Bindeshwar Singh, resident of village- Tira,
Police Station- Harnaut, District- Nalanda.
9. Anuj Kumar, son of late Kamaldhari Prasad, resident of Muhalla Sanichara
More, Dargah Road 2, P.S.-Sultanganj, District- Patna.
10. Birendra Kumar Jha, son of Sri Maheshwar Jha, resident of Barahampur,
Police Station-Bausi, District- Banka.
11. Rajesh Kumar Verma, son of late Kalika Prasad Verma, resident of III
Flore Pardeshi Institutee Arya Kanya Road, Rajendra Nagar, P.S.-Kadam
Kuan, District- Patna.
12. Sanjay Kumar Sinha, son of late Dadan Prasad Sinha, resident of
Mohalla- Adarsh Colony, Patel Nagar, Police Station- Shastri Nagar,
District- Patna.
13. Vivekanand Trivedi, son of Bindeshwar Trivedi, resident of Bhuptipur,
P.S.- Ram Krishna Nagar, District- Patna.
14. Hansmukh Kumar, son of sri Pasupati Nath Singh, resident of Old Bus
Stand, P.S.- Kankarbagh, District- Patna.
15. Kaushal Kumar Sinha, son of late Sataydev Prasad Sinha, resident of
Muhalla- Devasharam, Nala Road, P.S.-Kadam Kuan, District- Patna.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
2/45

16. Binod Kumar Singh, son of late Punaydev Singh, resident of Muhalla-
People's Co-operative Colony Kankarbagh, P.S.- Kankarbagh, District-
Patna.
17. Keshav Prasad Upadhyay, son of Anjani Kumar Upadhyay, resident of
Muhalla- Microlab Gali Budhmarg Lodipur, P.S.- Gandhi Maidan, District-
Patna.
18. Shyam Sundar Chaudhary, son of Sri Vishavnath Choudhary, resident of
village-Raje (Gote), P.S.- Manigachhi, District- Darbanga.
19. Kamlesh Jha, son of late Jaymod Jha, resident of village- Tatuaar, P.S.-
Manigachhi, District- Darbhanga.
20. Manoj Kumar Jha, son of Lakshman Jha, resident of village-
Ghoghardiha, P.S.-Ghoghardiha, District- Madhubani.
21. Bhagirath Jha, son of late Devnath Jha, resident of village- Goimishra
Lagama, P.S.-Ghanshyampur, District- Darbhanga.
22. Rakesh Kumar Jyoti, son of Sri Sant Kumar, resident of Muhalla-Gokul
Cooperative Colony Naya Chak Golki More, P.S.-Sri Ram Krishana Nagar,
District- Patna.
23. Shiv Lal Yadav, son of late Babulal Yadav, resident of Village- Bishath,
P.S.-Manigachhi, District- Darbhanga.
24. Shambhu Kumar Jha, son of Trilok Nath Jha, resident of village- Kathra,
Police Station- Manigachhi, District- Darbhanga.
25. Madneshwar Jha, son of late Laxmi Kant Jha, resident of village- Kathra,
P.S.- Manigachhi, District- Darbhanga.
26. Ram Bahadur Tripathi, son of late Guru Prasad Sharma, resident of
village- Suunaha, P.S.-Fluwariya, District- Gopalganj.
27. Manoj Kumar, Son of Sri, Ram Naresh Prasad Sharma, resident of
village- Paura, P.S. Sarai, District- Vaishali.
28. Krishna Gopal Ram, son of Raj Ballav Ram, resident of village-
Paltubigha, P.S.- Makdumpur, District- Jehanabad.
29. Madan Rajak, son of Sita Ram Rajak, resident of Muhalla- Purandarpur,
P.S.-Jakanpur, District- Patna.
30. Prabhakar Mishra, son of late Tejnarayan Mishra, resident of village-
Brahman Toli, P.S.-Nauvatta, District- Sahrsa.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
3/45

31. Udan Jha, son of Sri Bache Lal Jha, C/O- hari Narayan Thakur, resident
of Nalapar Utari Patel Nagar, House No.06/110, P.S.- Patliputra, District-
Patna.
32. Ram Krishna Tiwari, son of late Mahavir Tiwari, resident of village-
Kapurchak, P.S.- Naya Goan, District- Chapra.
33. Jai Prakash Singh, son of Sri Sudama Singh, resident of village- Pangibar,
P.S.-Pangibar, District- Siwan.
34. Rabinder Prasad Singh, son of Sidheshwar Prasad Sharma, resident of
village- Dhelba, P.S.-Barbigha, District- Sheikhpura.
35. Ramesh Tiwari, son of Rajaram Tiwari, resident of village- Atawankarn,
P.S.-Kathua, District- Gopalganj.
36. Subhash Chandra Misrha, son of Sri Niwash Mishra, resident of village-
Narhan, P.S.- Narhan, District- Siwan.
37. Umesh Tiwari, son of Sri Ram Krishan Tiwari, resident of village-
Tarauni, P.S.-Darauli, District- Siwan.
38. Shivji Prasad, son of late Jagarnath Prasad Singh, resident of village-
Basilpur, Police Station- Barharia, District- Siwan.
39. Kapildeo Hazara, son of Ramashish Hazara, resident of Mirzapur, Police
Station- Pattori, District- Samastipur.
40. Baleshwar Ram, son of Shri Ladhari Ram, resident of village- Farhadda,
Police Station- Barahra, District- Arrah.
41. Bimal Kumar Mishra, son of late Tunni Mishra, resident of village-
Maubihat, Police Station- Manigachhi District- Darbhanga.
42. Surya Bir Kumar Singh, son of Hirdaya Narayan Singh, resident of
village- Bindaul, Police Station- Bihta, District- Patna.
43. Ajay Kumar Singh, son of Shyam Narayan Prasad Singh, resident of
village- Khodadpur, Police Station- Gulbara Madhuban, District- Motihari
(East Champaran).
44. Bibhakar Chaudhary, son of late Umakant Chaudhary, resident of village-
Bhalpatti, P.S.- Darbhanga Sadar, District- Darbhanga.
45. Shulpani Pandey, son of Sri Madhusudan Pandey, resident of village-
Bhojchaprar (Ramjitta), P.S.- Bisambharpur, District- Gopalganj.
46. Parmod Kumar, son of Sri Raj Ram Singh, resident of village- Neemna
Tola, P.S.- Hilsa, District- Nalanda.
47. Arun Kumar Singh, son of Sri Gariban Singh, resident of Muhalla
Batikarpuri, Ambedkar Path, Rukanpura, P.S.-Rupaspur, District- Patna-14.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
4/45

48. Anil Kumar Sinha, son of Sri Akhileshwar Prasad Sinha, resident of
village- Cheriya Bariyarpur, P.S.- Cheriya Bariyarpur, District- Begusarai.
... ... Petitioners
Versus
1. The State of Bihar.
2. The Principal Secretary, Department of Human Resources, New Secretariat,
Bihar, Patna.
3. The Bihar School Examination Board through its Secretary, Sinha Library
Road, Patna.
4. The Chairman, Bihar School Examination Board, Sinha Library Road,
Patna.
5. The Secretary, Bihar School Examination Board, Sinha Library Road,
Patna.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
Mr. Jay Prakash Singh, Advocate
For the Respondents : Mr. Manish Kumar, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date : 27-02-2019

Heard learned counsel for the parties.

2. The petitioners are daily wage employees, making

a prayer for quashing the orders contained in memo nos. 569

dated 28.01.2011, memo no.519 dated 19.01.2011, memo

no.419 dated 26.10.2010, memo no.517 dated 19.01.2011 and

memo no.538 dated 22.01.2011, which have been passed in

pursuance of the order passed in different writ petition viz.

C.W.J.C. No.17234 of 2011, 17474 of 2010, 11032 of 1998 and

other analogous cases as well as C.W.J.C. No. 17315 of 2010,

4171 of 1999 and other analogous cases, thereby the

representations of the petitioners have been rejected.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
5/45

3. The short facts of this case are that the petitioners

were appointed as daily wage employees in the Bihar School

Examination Board and they have continued to discharge their

duties, but a decision was taken vide Annexure-6 to terminate

the services of all daily wages employees and in pursuance

thereof, the petitioners along with other daily wager employees

were terminated with effect from 21.07.1989. Whereafter, an

advertisement dated 14.09.1989 was published for recruitment

and appointment of class-III and IV posts, which was

challenged by the petitioners in C.W.J.C. No.8440 of 1989, but

this Court had refused to grant the benefit and directed the

Board to accept their application provisionally with the

condition that the petitioners would produce their requisition

certificate within the employment exchange within a fortnight

from the date of passing of the order. While disposing of the

writ petition, the Court had directed the respondents to grant

relaxation of age with respect to the eligibility of their

appearance in the said examination. In pursuance thereof, the

examination was conducted, in which the petitioners and others

have appeared, they were declared successful along with others,

but the authority did not grant any appointment letter to Class-

III and IV employees, which compelled them to approach this
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
6/45

Court in C.W.J.C. No. 750 of 1999 and other analogous cases,

in which they have taken a plea that though the advertisement

was published for appointment of Class-III and IV employees,

at the same time, the selection process for appointment of

Drivers and Stenos was also started. After the result, the Stenos

and Drivers were appointed by the Board, but the petitioners

were not appointed. The Court has considered the matter in the

light of the report submitted by the Committee constituted by

the Court. The said Committee gave its finding that the work of

the Board has decreased as well as the Bihar Intermediate

Council has already been abolished and their employees has to

be adjusted in the Board, additionally recorded that the Board is

suffering from over-staffs and as such, the question of granting

the appointment letter to the selected candidates of Class III and

IV does not arise and finally the Court has refused to issue the

mandamus. It will be useful to quote relevant paragraphs of the

said judgment, which are as follows:-

"To put the record the record straight, it may
be pointed out here that this decision of the
Board has been termed as statutory in nature
by one of the Counsels, but how, has not been
explained at all and fall out of this submission
to the ultimate prayer made by the petitioners.
As observed earlier, the aforesaid decision of
the Board is not to make appointment but to
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
7/45

prepare separate merit list for daily wages
candidates, which the Board later on changed
on consideration of the relevant facts. We do
not find any substance in the submission of the
learned counsel.
It has also been contended that once the Board
has published the advertisement, the same has
to be taken to its logical end; meaning thereby
that it must culminate in appointment. In
support of the aforesaid decision, reliance has
been placed on a Bench decision of this Court
in the case of Rajendra Sharma v. Bihar State
Electricity Board [2008(1) PLJR 679] and our
attention has been drawn to paragraph 6 of the
judgment, which reads s follows:-
"6. Once an employment notice has
been published, the same should be
pursued unless the same had been
issued erroneously or in violation of any
rule governing the same. If the notice is
responded by one, there is no just reason
not to proceed with the selection
pursuant to the notice, unless it is held
that the others have been prevented from
responding to the notice. Because others
did not have the qualification fixed in
the notice that is no ground for
cancellation of the notice."
We do not find any substance in this submission
and the decision relied on has no application in
the facts of the present case. Here in the
present case, after the advertisement was
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
8/45

made, respondent-Board proceeded with the
selection process. Advertisement to fill up the
post is in invitation to qualified persons to
apply for recruitment. Board later on for bona
fide and appropriate reasons decided not to fill
up the posts. It is well settled that an employer
on valid grounds can refuse to make
appointment, even if the vacancy exists. Here,
the reasons assigned by the respondents for not
filling up the posts have been found to be bona
fide and hence refusal to appoint the
petitioners cannot be said to be illegal.
It has lastly been contended that when this
Court directed to publish the result of the
candidates, who have appeared in the
examination, it would mean that this Court
intended to direct the respondent-Board to
make appointment. We cannot read in the order
of this court what has not been stated while
disposing of the writ application. It is relevant
to state here that this Court directed the
respondent-Board to publish the result of the
test as the Board instead of publishing the
result has come out with a fresh advertisement.
Issuance of fresh advertisement implies that the
Board needed to fill up the posts. In the
background of the fact that there was no
complaint in regard to the conduct of the
examination and further in the face of fresh
advertisement having been published to fill up
the vacancies, this Court directed the
respondent-Board to publish the result. The
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
9/45

direction to publish the result, in our opinion,
would not mean that they have to be appointed.
Accordingly, we reject this contention of the
petitioners.
To put the record straight, it is worth
mentioning here that many of the daily wages
employees of the Board, who have been
declared successful in the examination, have
filed writ applications separately and also
intervened in some of the writ applications,
inter alia, contending that they have the first
preference in the appointment. As we have
declined to issue mandamus for appointment,
we do not consider it expedient to adjudicate
this inter se dispute between the daily wages
employees and the petitioners, who have been
selected for appointment."

4. This order of the Division Bench was tested before

the Hon'ble Supreme Court in Special Leave to Appeal (Civil)

Nos-22913-22916 of 2008 and the Hon'ble Supreme Court has

refused to interfere with the order and the matter stands

concluded by the order of the Hon'ble Supreme Court.

Whereafter, the petitioners were appointed as daily wage

employees and after that on receipt of the order from the State

Government, the services of the daily wage employees

including the present petitioners have been dispensed with effect

from 16.10.1996. In view of the memorandum issued by
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
10/45

the State Government dated 16.03.2006, the petitioners filed

representation for regularization, but the Board did not take

cognizance, which compelled the petitioners to file different

writ petitions before this Court. The said writ petitions were

disposed of with a direction to the respondents to examine the

case of the petitioners and take decision in accordance with law.

Ultimately, by the impugned order, the representations of the

petitioners having been rejected, which is under consideration

before this Court.

5. Learned counsel for the petitioners submits that the

impugned orders are suffering from illegality as while rejecting

the representations of the petitioners, two grounds have been

taken by the authority; first, while giving employment as daily

wagers the Reservation Policy was not followed; Secondly, the

persons named in the impugned order have already been

terminated from the service 14 years earlier and the

engagement of these petitioners right from the beginning was

not legal, hence, the claim of regularization having been

rejected. He further submits that the application of Reservation

Policy for engagement as daily wagers does not apply as it was

not a regular employment, had there been a regular

employment, then the application of Reservation Policy would
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
11/45

have come into play.

6. It has further been submitted by learned counsel for

the petitioners that in absence of any Rule and Regulations

framed by the Bihar School Examination Board, the

memorandum dated 16.03.2006 would come into play and those

who have worked 240 days prior to 11.12.1990 are required to

be regularized in service. It has further been submitted that the

petitioners had appeared in the examination and declared

successful, but they have not been appointed. It has further been

contended that the petitioners have continuously been

discharging their duties as daily wagers for a long period, which

itself reflect that sufficient work is available for these

petitioners, which was/is perennial in nature. Further submits

that if the impugned order suffers on a single ground, then the

entire order would be bad.

7. It has further been submitted that if the

appointment is made without following the Reservation Policy,

later on, that appointment cannot be held to be illegal. In

support of his submissions, learned counsel for the petitioners

has placed reliance on the decision of this Court rendered in the

case of Binay Kumar Singh & Anr. vs. State of Bihar and Ors.

reported in 2001(4) PLJR 352.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019
12/45

8. It has further been submitted that the averments

made by the Board in its counter affidavit that the Circular dated

16.03.2006
(Annexure-13) is not applicable, cannot be taken

into consideration in view of the fact that this is not the ground

mentioned in the impugned order and further ground cannot be

supplemented through counter affidavit.
In support of his

submissions, learned counsel for the petitioners has placed

reliance on the decision of the Hon'ble Supreme Court rendered

in the case of
Mohinder Singh Gill and Another vs. The Chief

Election Commissioner, New Delhi and Ors.
reported in A.I.R.

1978 S.C. 851.

9. It has further been submitted that the other

similarly situated persons like Driver and Steno were appointed,

so these petitioners should also be given the identical benefit,

for that, he has placed reliance on the decisions rendered in the

case of
Amarkant Rai vs. State of Bihar and Others
reported in

(2015) 8 SCC 265 and in the case of
Prem Ram vs. Managing

Director, Uttarakhand Pey Jal and Nirman Nigam, Dehradun

and Others
reported in (2015) 11 SCC 255.

10. Learned counsel for the petitioners has drawn the

attention of this Court to the order dated 30.03.2009 passed by

this Court in C.W.J.C. No.11032 of 1998, wherein the petitioner
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

13/45

relied upon a Government office order of the Human Resources

dated 09.01.2009, in turn, the Court has held if the State

Government has framed a Policy for regularization, quite

naturally which is required to be applied and as such, benefit of

regularization should be extended to the petitioners. In

pursuance thereof, a Three Men Committee was constituted

(Annexure-20), which itself reflects that the said Committee

took decision that if the Board will consider the issue of

regularization in future then their matter will be considered also.

11. Whereas, learned counsel for the Bihar School

Examination Board has submitted the petitioners have already

been terminated from the service in the year 1996 and

whereafter their services have never been taken by the Board in

any manner, so the question of their regularization in service

does not arise. He further submits that the question of

regularization came for consideration in C.W.J.C. No.8440 of

1989 [Bhavesh Jha vs. The State of Bihar & Ors.], but the Court

has out-rightly rejected the claim of the petitioner for

regularization, but only granted certain benefits for the purposes

of appearing in the recruitment test. It has further been

submitted that after the repeal of the Intermediate Council, the

employees working in the Intermediate Council have been
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

14/45

absorbed in the Bihar School Examination Board, inasmuch,

already excess employees are working in the Board, so the

question of regularization and appointment of these petitioners

was consciously decided and they have not been engaged.

12. It has further been submitted that the petitioners

have already been terminated in the year 1996 and after long

lapse of time, regularization cannot be offered to the petitioner.

Further submitted that the entry of the petitioners itself is

completely illegal, so they have no right to claim for

regularization.
In support of his submission, learned counsel for

the petitioners has placed reliance on the decision rendered in

the case of
Ram Sevak Yadav & Anr. vs. State of Bihar and

Ors.
reported in 2013(1) PLJR 964 and in the case of
Nand

Kumar vs. State of Bihar and Ors.
reported in (2014) 5 SCC

300, wherein it has been held that regularization can only be

claimed when the employment is subsisting.

He further placed

reliance on the decision rendered in the case of
Upendra Singh

vs. State of Bihar and Ors.
reported in A.I.R. 2018 S.C. 1315,

wherein the Court has decided that the regularization cannot be

done in the event of illegal appointment.

13. Learned counsel for the Bihar School Examination

Board has further placed reliance on the decision rendered in the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

15/45

case of
Rita Mishra and Others vs. Director, Primary

Education, Bihar and Others
, reported in AIR 1988 PATNA 26

and submits that for issuance of writ of mandamus it is required

that there must be an existence of statutory or public duty

devolving upon the person or body against whom the said writ

petition is directed. So, he submits that there is no public duty of

the Board to give regularization to these persons when their

services has already come to an end much earlier and at the

same time, the entry of the petitioners itself is bad and illegal,

they have to show that they have a corresponding right to get

regularization in service. It has further been submitted that

regularization is purely an executive function and the Court

cannot give a direction for regularization of the employees

working therein.

In support of his submission, he placed

reliance on
Union of India & Anr. vs. Ram Singh Thakur &

Ors.
reported in AIR 2012 SC (Supp) 436.

14. After considering the argument of both the sides,

this Court has to decide whether these petitioners, who were

earlier appointed as daily wagers, whereafter an advertisement

was published for recruitment of Class-IV employees

substantively, which these petitioners challenged

unsuccessfully, can be granted the relief of regularization or the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

16/45

Court should not interfere with the order of termination. The

Court had earlier granted the benefit of age relaxation, they

appeared in the examination, declared successful, but

ultimately, the Board refused to appoint even a single person

from his category, which has been approved by this Court in a

writ petition, in turn, by the Hon'ble Supreme Court. Later on,

the petitioners were engaged on daily wage basis, terminated

from service in the year 1996. Now the question of

regularization in service has come for consideration. Question

of regularization in service can be considered when the person,

who is claiming regularization, is in service, when the person,

who is claiming regularization is no longer in service, has been

terminated, unless the order of termination is set aside and the

person is declared in continuous in service, only in such a

situation, the relief for grant of regularization can be

considered. So, first step, the entry of these petitioners as daily

wagers must create some semblance of right to claim

regularization in service, only in the next step the same may be

considered. But, in the present case, subsequent engagement of

these petitioners does not satisfy the condition of proper

procedure followed for the selection and recruitment of class-

IV employees. In the event of entry in service de hors to the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

17/45

proper procedure does not create any right. Identical issue has

come for consideration from time to time, so it will be

appropriate to deal with the judgments cited by the parties on

this point.

15.
In the case of
Vinay Kumar Singh & Anr. vs.

State of Bihar and Ors.
(supra), the petitioners were appointed

by the Divisional Establishment Committee after following the

normal procedure and their selection was made after due

advertisement and there was no allegation of plying fraud in the

matter of appointment nor there was any allegation of

appointment on account of extraneous consideration. However,

roster clearance was not observed and compliance of

Reservation Rules was also not observed and on that ground

the Court has arrived to a finding that the petitioners should not

be made to suffer after several years of appointment for the

fault of the authorities in not observing these formalities and in

any view of the matter, it cannot be a sufficient justification to

terminate their services. So, in this case, it is very much clear

that the selection was made after due advertisement and all the

formalities were followed save and except the Reservation

Policy, the Court has held that it will not be justify to terminate

their services and accordingly, the Court interfered with the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

18/45

order in favour of the petitioners.

16. It will be relevant to quote paragraph no.7 of the

aforesaid judgment, which reads as under:-

"7. Prima facie, it appears that the petitioners were
appointed by the Divisional Establishment Committee
after following the normal procedures and their
selection was made after due advertisement. From the
facts enumerated in the writ applications and also in
the counter-affidavit, it appears that the petitioners
are not alleged to have played any fraud in the matter
of appointment nor it is alleged that appointments
were made on extraneous consideration. However, it
appears that the roster clearances etc. are not said to
have been observed and compliance of reservation
Rules was also not observed. However, for these, the
petitioners should not be made to suffer after several
years of appointment for the fault of the authorities in
not observing these formalities and in any view of the
matter, it cannot be a sufficient justification to
terminate their services."

17.
In the case of
Satya Prakash and Ors. vs. State of

Bihar and Others
reported in (2010) 4 SCC 179, daily-rated

employees of the Bihar Intermediate Education Council, had

approached the Court taking plea that they had worked for

more than 10 years on daily-rated basis, claimed for

regularization of their services. The Division Bench of this

Court has taken a view that mere because they had worked as
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

19/45

daily-wage employees with the Council would not confer any

right for regularization as no public appointment is permissible

de hors the recruitment rules, as such every person has equal

right over the same as it is a public property.

The matter went

to the Hon'ble Supreme Court and the Hon'ble Supreme Court

has considered several judgments especially the decision

rendered in the case of
State of Karnataka v. Umadevi
reported

in (2006) 4 SCC 1 and held that the employees are not entitled

to get the benefit of regularization of their services since they

were never appointed on any sanctioned posts rather they were

only engaged as daily wage employees in the Bihar

Intermediate Education Council. The Hon'ble Supreme Court

has made a distinction between irregular and illegal

appointment, illegal appointment does not confer any right of

any nature to the Government servant and after considering the

different judgments it has been held that there is a clear

distinction between the illegal and irregular employment,

persons who have been appointed wrongly in the sense non-

compliance of certain procedure, which does not go to the root

of the selection process, is irregular and those does not fall in

that category rather failure of observe procedure goes to the

root of the matter will be treated to be an illegal appointment.
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

20/45

The illegal appointment cannot be regularized. The status of

such appointment is nothing, but a back door entry, which

cannot be in any manner said to be a valid appointment.

18. It will be relevant to quote paragraph nos. 7 and 14

of
the said judgment
, which read as under:-

"7. We are of the view that the appellants are
not entitled to get the benefit of regularization
of their services since they were never
appointed in any sanctioned posts. The
Appellants were only engaged on daily wages
in the Bihar Intermediate Education Council.

14. Allowing the appeal preferred by the
Commercial Taxes Department, this Court set
aside the directions given by the High Court for
regularization of services of those daily wage
employees who had more than 10 years of
service. The Court held as follows:-

"We are, therefore, of the view that, at
best, the Division Bench of the High
Court should have directed that wages
equal to the salary that is being paid to
regular employees be paid to these daily
wage employees with effect from the date
of its judgment. Hence, that part of the
direction of the Division Bench is
modified and it is directed that these
daily-wage earners be paid wages equal
to the salary at the lowest grade of
employees of their cadre in the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

21/45

Commercial Taxes Department in
Government service, from the date of the
judgment of the Division Bench of the
High Court. Since, they are only daily
wage earners, there would be no
question of other allowances being paid
to them. In view of our conclusion, that
the Courts are not expected to issue
directions for making such persons
permanent in service, we set aside that
part of the direction of the High Court
directing the Government to consider
their cases for regularization. We also
notice that the High Court has not
adverted to the aspect as to whether it
was regularization or it was giving
permanency that was being directed by
the High Court. In such a situation, the
direction in that regard will stand deleted
and the appeals filed by the State would
stand allowed to that extent. If
sanctioned posts are vacant (they are
said to be vacant) the State will take
immediate steps for filling those posts by
a regular process of selection. But when
regular recruitment is undertaken, the
respondents in Civil Appeal No. 3595-
612 and those in Commercial Tax
Departments similarly situated will be
allowed to compete, waiving the age
restriction imposed for the recruitment
and giving some weightage for their
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

22/45

having been engaged for work in the
Department for a significant period of
time. (Emphasis supplied)

19. Same issue came for consideration before the Full

Bench of this Court in the case of
Ram Sevak Yadav & Anr. vs.

State of Bihar and Ors.
(supra), wherein the Full Bench after

considering large number of judgments of the Hon'ble

Supreme Court, conclusively arrived to a finding that
Uma

Devi
case (supra) prohibits regularization of daily wage,

casual, adh-hoc and temporary appointments and the period of

service being irrelevant. An illegal appointment is void ab initio

as made contrary to the mandate of
Article 14
without open

competitive selection cannot be regularized under any

circumstances. Irregular appointments can be regularized if the

appointment was made by an authority competent to do so, it

was made on a vacant sanctioned post in accordance with

Article 14
of the Constitution of India with equal opportunity

for participation of eligible candidates by competitive selection

and the candidates must possess the eligibility qualifications for

a regular appointment to the post. The appointment must not

have been doled out to the appointee alone and the person must

have continued in service over ten years without intervention of

any courts' order.

Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

23/45

20. It will be relevant to quote paragraph nos. 41 and

43 of
the said judgment
, which are as follows:-

"41. The public power to make appointment on
public posts is conferred for public good. The
power is given to the officer concerned by the
Government in trust, that it shall be used and
not abused. If the trust is belied, the protection
conferred upon a Government servant stands
denuded. The answerability and accountability
is then individual of the officer. The
Government is duty bound to take appropriate
civil/ criminal action against the officer. The
illegality in the appointment is not a one way
street. If there was someone willing to pay a
price for the job, there was another waiting to
take advantage of the same by fixing a price. It
is not without reason that majority of such
appointments relate to class III and IV posts.
The standard by which the Government
professes to act is the same standard by which
its actions shall be judged. Therefore whenever
the Government terminates an appointment
being illegal, it is the constitutional duty of the
Government to simultaneously take action
against the officials who belied the trust of the
government. Those who made hay while the
sun shined must see the darker cloudy days
also.
In 1995(2) PLJR 573(DB) (
Bimal Kishore
Rai v. State of Bihar
) it was directed :

"16. In cases where an appointment is
found to have been illegally made, the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

24/45

courts quash the appointment and,
therefore the appointee suffers the
consequence. However, the real guilty
person, namely, the appointing authority
does scot free. The result is that even
though large number of such
appointments have been quashed by the
courts, the appointing authorities have
showed total indifference to the orders
passed by the courts, and they continue
to make such appointments. It is a well-
known fact, so far as this state is
concerned, that appointment in majority
of cases has to be bought. The ordinary
citizen who has concern for the law and
morality, must suffer, even if in terms of
capability and merit he is far superior to
the unscrupulous ones, who managed the
appointments. We have, therefore, felt the
need to issue some directions in this
regard, so that the appointing
authorities, who are primarily guilty in
such matters, and who exploit the
jobseekers taking advantage of their
hardship, are equally punished when
such illegal appointments are brought to
the notice of the Government. I, therefore
direct that in each and every case where
an appointment is said to have been
illegally made, in the sense that the rules
governing the appointment have not been
followed, and the appointment is made
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

25/45

by flouting the law in such a manner that
the motive of the appointing authority
becomes suspect, simultaneously with the
cancellation of such illegal appointment,
action must be initiated against the
appointing authority, and in appropriate
cases they should be immediately
suspended pending departmental
proceedings. If such action is not taken,
courts will doubt the genuineness of the
reason shown by the government for
cancellation of such appointment. I direct
that this should be complied with by the
Government in each and every case
where an appointment is sought to be
cancelled on the ground that it was
illegally made in circumstances which
give rise to a suspicion that the
appointment was made on extraneous
consideration, including money."

43. We therefore sum up our conclusions and
answer the reference as follows :-

A) Uma Devi
(supra) prohibits regularisation of
daily wage, casual, ad-hoc and temporary
appointments, the period of service being
irrelevant;

B) An illegal appointment void ab-initio made
contrary to the mandate of
Article 14
without
open competitive selection cannot be
regularised under any circumstances.

Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

26/45

C) Irregular appointments can be regularised if
the appointment was made by an authority
competent to do so, it was made on a vacant
sanctioned post, in accordance with
Article 14

of the Constitution with equal opportunity for
participation to others eligible by competitive
selection and the candidate possessed the
eligibility qualifications for a regular
appointment to the post.

D) The appointment must not have been an
individual favour doled out to the appointee
alone and the person must have continued in
service for over ten years without intervention
of any court orders.

21.
In the case of
Nand Kumar vs. State of Bihar and

Others
. (supra) also the question of regularization of service of

daily wager or casual workers, who were not appointed through

proper procedure, came for consideration before the Hon'ble

Supreme Court, wherein it has been held that they were not

appointed properly in strict sense following the procedure of

the appointment and as such, cannot claim any right over the

post. The appointment on daily wage basis is not a mode of

appointment strictly in accordance with law and does not

confer any right to claim equivalence as that of the regular

appointed Government employee. The status of daily wagers

and the regular employees is not comparable and any
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

27/45

appointment dehors to the procedure does not create any

semblance of right for regularization.

22. It will be relevant to quote paragraph nos. 23 to 25

of
the said judgment
, which are as follows:-

"23. We have heard learned counsel for the
parties. We have also perused the records
placed before us. We find that the status of the
appellants was continuing to be as daily
wagers. They cannot be treated as permanent
Government employees. They all worked as
employees of the Board. We have also found
that no steps were followed by the Board to
safeguard the service of these appellants. We
have not been able to find out whether any
advertisement was issued by the Government to
regularise them. In these circumstances, in
view of the submission which has been
advanced on behalf of the appellants, we do
not find that there is any substance in the
matter/arguments put forwarded before us on
behalf of the appellants as we have been able
to find out that the appellants have served as
daily wagers and we do find that Section 6(i)
makes it clear that after the repeal of the
Agriculture Produce Act, 1960, all officers and
employees of the Board are to continue in
employment and they shall continue to be paid
what they were getting earlier as salary and
allowance till such time the State Government
takes an official decision as per the further
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

28/45

provisions of Section 6. Such provision
certainly allows continuance of the officers and
employees of the Board to continue in
employment in the same status. The status of
the daily wage employees and regular
employees of the Board is eminent from the
said provision. It cannot be said that the status
of the daily wage employees can enjoy or
acquire the same status as that of the regular
employees. In these circumstances, we do not
find that there was any discrimination between
the daily wage employees and the regular
employees as is tried to be contended before us.
Therefore, such submission has no substance,
in our opinion, for the reason that the
difference continues and is recognised under
the said provision of the Repeal Act. So far as
the power of the Committee of Secretaries
constituted in terms of Section 6(ii) of the
Repeal Act is concerned, it is to prepare a
scheme of absorption as well as of retirement,
compulsory retirement or voluntary retirement
and other service conditions of officers and
employees of the Board. In our opinion, the
scheme which was prepared by the Committee
of Secretaries is only in the nature of
recommendation and the State has the power
either to accept, modify or amend the same
before granting its official approval. Therefore,
after the sanction is granted by the
Government in respect of the said scheme, it
would gain the status of statutory scheme
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

29/45

framed under the said Act and would be
enforced within the time to be indicated in
section 6(iii) of the Repeal Act, 2006.

24. Therefore, in the light of the said provision,
we do not find that the Committee of Secretaries
can be faulted in treating the daily wage
employees on a different footing and deciding
for removal of their services.

25. We have consciously noted the aforesaid
decisions of this Court. The principle as has
been
laid down in

Umadevi
(supra) has also
been applied in relation to the persons who
were working on daily wages. According to us,
the daily wagers are not appointees in the strict
sense of the term 'appointment'. They do not
hold a post. The scheme of alternative
appointment framed for regular employees of
abolished organisation cannot, therefore, confer
a similar entitlement on the daily wagers of
abolished organisation to such alternative
employment.
[See Avas Vikas Sansthan v.

Engineers Assn.]. Their relevance in the context
of appointment arose by reason of the concept
of regularisation as a source of appointment.

After Umadevi
(supra), their position continued
to be that of daily wagers. Appointment on daily
wage basis is not an appointment to a post
according to the rules. Usually, the projects in
which the daily wagers were engaged, having
come to an end, their appointment is necessarily
terminated for want of work. Therefore, the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

30/45

status and rights of daily wagers of a
Government concern are not equivalent to that
of a Government servant and his claim to
permanency has to be adjudged differently."

23.
In the case of
Amarkant Rai vs. State of Bihar

and Others
(supra), the petitioner was appointed in Class-IV

post by the Principal of the College, who was not competent

authority to make such appointment. The University took a

decision to regularize the person who had worked for 240 days

and thereafter the Additional Commission-cum- Secretary,

Bihar, passed a settlement dated 11.07.1989 and forwarded a

copy of the same to the Vice Chancellors of the Universities,

wherein it was stated that the services of employees working in

educational institutions as per the staffing pattern, can be

regularized, further imposing a condition that new

appointments against the vacancies present and in future should

not at all be done. The Principal of the College wrote a letter to

the Registrar of the University to regularize the services of

Amarkant Rai, an employee of the college, but the Registrar

terminated the services of Amarkant Rai, which came for

consideration before this Court. As per direction of this Court,

the Registrar of the Universities allowed Amarkant Rai to join

the services. Accordingly, he joined his duty and whereafter
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

31/45

recommendation was given for absorption against the vacant

post, but the same was rejected as the same was not as per

recruitment Rule. The action of University was challenged

before this Court unsuccessfully, the matter went to the

Hon'ble Supreme Court, the Hon'ble Supreme Court finally

placing reliance on several judgments has held that there is no

material to show that Amarkant Rai was lacking any

qualification or bore any blemish record during his

employment for over two decades. Similarly situated person,

who was also appointed on daily wages on the post of clerk,

was regularized and there was no material to show that any

other persons was working against the sanctioned post of Night

Guard, accordingly, direction was given to regualarize the

service of Amarkkant Rai on the score of length of service of

more than 29 years.

24. It will be relevant to quote paragraph nos. 13 and

14 of
the said judgment
, which read as under:-

"13. In our view, the exception carved out in
para 53 of Umadevi (3) is applicable to the
facts of the present case. There is no material
placed on record by the respondents that the
appellant has been lacking any qualification or
bore any blemish record during his
employment for over two decades. It is
pertinent to note that services of similarly
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

32/45

situated persons on daily wages for
regularization viz. one Yatindra Kumar Mishra
who was appointed on daily wages on the post
of Clerk was regularized w.e.f. 1987. The
appellant although initially working against
unsanctioned post, the appellant was working
continuously since 03.1.2002 against
sanctioned post. Since there is no material
placed on record regarding the details whether
any other night guard was appointed against
the sanctioned post, in the facts and
circumstances of the case, we are inclined to
award monetary benefits to be paid from
01.01.2010.

14. Considering the facts and circumstances of
the case that the appellant has served the
University for more than 29 years on the post of
Night Guard and that he has served the College
on daily wages, in the interest of justice, the
authorities are directed to regularize the
services of the appellant retrospectively w.e.f.
03.01.2002 (the date on which he rejoined the
post as per direction of Registrar)."

25.
In the case of
Prem Ram vs. Managing Director,

Uttarakhand Pey Jal and Nirman Nigam, Dehradun and

Others
(supra), the juniors were regularized in service leaving

the seniors in high and dry and the Hon'ble Supreme Court has

given direction for regularization of service of Prem Ram from

the date the juniors to him were regularized in service and also
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

33/45

directed to pay all retiral benefits by treating him to be in

continuous service till the date of his superannuation. It will be

relevant to quote paragraph nos. 9 and 10 of
the said judgment
,

which are as follows:-

"9. From the affidavits it is further evident that
five persons named by the appellant appearing
at serials no.78 to 82 of the list of juniors have
been regularized in service. It is not in dispute
that all these persons were appointed on dates
subsequent to the date of appointment of the
appellant. The respondent, however, has
attempted to justify the regularization of
juniors mentioned above on the ground that
they had been appointed in work-charge
establishment whereas the appellant herein was
a daily-wager. We asked learned counsel for
the respondent as to whether daily-wagers on
the basis of their seniority or otherwise were
brought on to the work-charged establishment
and if there was no such practice or procedure
followed, what was the basis on which the
department would decide whether the person
has to be engaged on a work-charged
establishment or as a daily-wager. We
must regretfully say that we did not get a
satisfactory answer to that question nor do any
of the several affidavits filed in these
proceedings by the respondent- Jal Nigam
point out a qualitative difference between
daily-wager on the one hand and a temporary
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

34/45

engagement on work-charged establishment on
the other. If engagement in a work- charged
establishment rest on a criterion, no better than
the absolute discretion of the authority
engaging them or the fortuitous circumstances
of a vacancy or need in a work-charged
establishment, then, there is indeed no
difference between a daily-wager on the one
hand and work-charged employees on the
other. No distinction can resultantly be made
between these two categories of employees for
in essence, the nature of their engagement
remains the same except that in the case of
work-charged employees, the
wages/emoluments appear to be borne from out
of the allocation for the project in which they
are employed while in the other case there is no
such specific allocation of funds. The
classification of work- charged and other
employees to say the least remains wholly
unsatisfactory at least for the purposes of the
case in hand leaving no option for us but to
treat the case of the daily-wagers and work-
charge employees on the same footing when it
comes to granting regularization to them.

10. If that be so, there is no denying the fact
that the persons who were junior to the
appellant, having been engaged much later than
him, steal a march over him in terms of
regularization in service while the appellant
remained embroiled in litigation over what was
eventually found to be an illegal termination of
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

35/45

his service. It is true that the appellant has
already superannuated. That does not, however,
make any difference. What is important is that
the appellant had been appointed as early as in
the year 1988 and had. by the time the decision
of this Court in Umadevi's (3) case (supra)
pronounced, already completed more than 10
years service. Government has formulated rules
for regularization of such daily-wagers, no
matter the same are the subject matter of a
challenge before the High Court. What is
noteworthy is that neither the State Government
nor the Jal Nigam has resented the idea of
regularization of those who have served for over
a decade. The rules providing for regularization
are a sufficient enough indication of that fact.
We do not, therefore, see any impediment in
directing regularization of the services of the
appellant on the analogy of his juniors with
effect from the date his juniors were regularized
and for the release of all retiral benefits in his
favour on that basis by treating him to be in
continuous service till the date of his
superannuation. We make it clear that this
direction will not entitle the appellant to claim
any amount towards arrears of salary based on
such regularization."

26.
In the case of
Upendra Singh vs. State of Bihar

and Ors.
(supra), the question of regularization came for

consideration before the Hon'ble Supreme Court, having found
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

36/45

that the appointment has been made by incompetent authority

without advertisement not on the sanctioned post, accordingly,

it has been held that Upendra Singh is not entitled to relief of

regularization in service and approved the judgment of
Ram

Sevak Yadav
(supra). It will be useful to quote paragraph no.7

and relevant portion of paragraph no.8 of
the said judgment
,

which read as under:-

"7. After considering the respective arguments,
we are of the view that the impugned judgment
is without any blemish and no interference is
called for. In fact, whole premise on which the
case is founded by the appellant seems to be
incorrect. We note that the cases of these
persons, including the appellant, were duly
considered by the University, on the basis of
which order dated August 13, 2003 were
passed refusing regularisation. This order
specifically states that the initial appointment
of the appellant and others was not in
accordance with law. It was made without
advertisement and there was no
recommendation of panel by the Selection
Committee. So much so, the appointments were
not made by the competent authority. We find
that the University, or for that matter, the
Government had agreed to regularise the
services of those employees of the colleges,
which had become the Constituent Colleges,
only on the condition that their initial
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

37/45

appointment was after following the due
procedure and that too against the sanctioned
post. A statement was made at the Bar by
learned counsel for the respondent that there
were no sanctioned posts even now.

8. Law pertaining to regularisation has now
been authoritatively determined by a
Constitution Bench judgment of this Court in

Secretary, State of Karnataka & Ors. v.
Umadevi & Ors.
, (2006) 4 SCC 1: (AIR 2006
S.C. 1806). On the application of law
laid down
in
that case, it is clear that the question of
regularisation of daily wager appointed
contrary to law does not arise. This ratio of the
judgment could not be disputed by the learned
counsel for the appellant as well. That is why
she continued to plead that the appointment of
the appellant was made after following due
procedure and in accordance with law.
However, that is not borne from the records.
Pertinently, order dated August 13, 2003, vide
which the appellant was refused regularisation
on the aforesaid ground was not even assailed
by the appellant at that time. It may be
mentioned that in Uma Devi, the Court left a
small window opened for those who were
working on ad hoc/ daily wage basis for more
than ten years, to regularise them as a one-time
measure. However, that was also subject to the
condition that they should have been appointed
in duly sanctioned post..."

Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

38/45

27.
In the case of
State of Bihar and Ors. Vs. Kirti

Narayan Prasad
reported in 2019 (1) PLJR 102 (S.C.), also

the question of proper entry in the service came for

consideration. The court has held that in case of illegal

appointment, the question of regularization of service does not

arise. If the appointment is bad at the initial stage, cannot be

sanctified at a later stage. It will be relevant to quote paragraph

no.16 and 17 of
the said judgment
, which read as under:-

"16.
In
State of Orissa and Anr. v. Mamata
Mohanty
, (2011) 3 SCC 436, this Court has
held that once an order of appointment itself
had been bad at the time of initial appointment,
it cannot be sanctified at a later stage. It was
held thus: "68(i) The procedure prescribed
under the 1974 Rules has not been followed in
all the cases while making the appointment of
the respondents/ teachers at initial stage. Some
of the persons had admittedly been appointed
merely by putting some note on the notice
board of the College. Some of these teachers
did not face the interview test before the
Selection Board. Once an order of appointment
itself had been bad at 15 the time of initial
appointment, it cannot be sanctified at a later
stage.

17. In the instant cases the writ petitioners have
filed the petitions before the High Court with a
specific prayer to regularize their service and to
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

39/45

set aside the order of termination of their
services. They have also challenged the report
submitted by the State Committee. The real
controversy is whether the writ petitioners were
legally and validly appointed. The finding of the
State Committee is that many writ petitioners
had secured appointment by producing fake or
forged appointment letter or had been inducted
in Government service surreptitiously by
concerned Civil Surgeon-cum-Chief Medical
Officer by issuing a posting order. The writ
petitioners are the beneficiaries of illegal orders
made by the Civil Surgeon-cum-Chief Medical
Officer. They were given notice to establish the
genuineness of their appointment and to show
cause. None of them could establish the
genuineness or legality of their appointment
before the State Committee. The State
Committee on appreciation of the materials on
record has opined that their appointment was
illegal and void ab initio. We do not find any
ground to disagree with the finding of the State
Committee.
In the circumstances, the question of
regularisation of their services by invoking para
53 of the judgment in
Umadevi
(supra) does not
arise. Since the appointment of the petitioners is
ab initio void, they cannot be said to be the civil
servants of the State. Therefore, holding
disciplinary proceedings envisaged by
Article
of the Constitution or under any other
disciplinary rules shall not arise."

Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

40/45

28.
In view of the aforesaid discussions, it is very

much clear that the person, who is working as daily wager does

not hold a post that too in an event when the engagement has

not been made after following the proper procedure, hence, the

question of regularization does not arise, inasmuch as, in the

case of
Union of India & Anr. vs. Ram Singh Thakur & Ors.

(supra), it has been held that direction regarding regularization

in service is a purely an executive function and such a direction

cannot validly be given by the judiciary. It is also very much

clear that mandamus can be issued when there is a public duty

devolving upon the person or the body against whom the said

writ is said to be directed and along with this there must co-

exist a corresponding right in the persns who were entitled to

claim the enforcement of the said statutory public duty. Unless

these two pre-conditions are satisfied, the requisite foundation

for the issuance of a writ of mandamus can hardly be said to

exist.

Reliance can be placed on the decision rendered in the

case of
Rita Mishra and Others vs. Director, Primary

Education, Bihar and Others
(supra).

29. It will be relevant to quote paragraph nos. 26 and

27 of
the said judgment
, which are as follows:-

"26. It is evident from the authoritative
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

41/45

exposition of the law that the sine qua non for
the issuance of a writ of mandamus is the
existence of a statutory or a public duty
devolving upon the person or the body against
whom or which the said writ is directed.
Equally settled it is that along with this must
co-exist a corresponding right in the petitioners
who were entitled to claim the enforcement of
the said statutory public duty. Unless these two
pre-conditions are satisfied, the requisite
foundation for the issuance of a writ of
mandamus can hardly be said to exist Applying
the twin test in the present context, I am of the
view that neither one stands satisfied. The
learned counsel for the petitioners were wholly
unable to pinpoint even a single statutory
provision which imposed upon the respondents
any statutory public duty to pay the salary,
where the very appointment of the petitioners
may well be forged, fraudulent or illegal
Equally no provision can possibly be pointed
out which would inhere in the petitioners an
established enforceable right to the relief which
they seek to claim.

27. I would refrain from enlarging the
examination of the issue on principle because it
seems to me that the matter is equally well
covered by binding precedent. On the scope and
nature of the jurisdiction in a writ of mandamus
it would suffice to recall the following
observations of their Lordships in
Lekhraj
Sathramdas Lalvani v. Dy. Custodian-cum-
Patna High
Court CWJC No.5899 of 2011 dt.27-02-2019

42/45

Managing Officer, Bombay, AIR 1966 SC334 :-

"But even on the assumption that the
order of the Deputy Custodian
terminating the management of the
appellant is illegal, the appellant is not
entitled to move the High Court for grant
of a writ in the nature of mandamus
under
Article 226
of the Constitution.
The reason is that a writ of mandamus
may be granted only in a case where
there is a statutory duty imposed upon
the officer concerned and there is a
failure on the part of that officer to
discharge that statutory obligation. The
chief function of the writ is to compel the
performance of public duties, prescribed
by statute and to keep the subordinate
tribunals and officers exercising public
functions within the limits of their
jurisdiction. In the present case, the
appointment of the appellant as a
Manager by the Custodian by virtue of
his power under Section 10(2)(b) of the
1950 Act is contractual in its nature and
there is no statutory obligation as
between him and the appellant. In our
opinion, any duty or obligation falling
upon a public servant out of a contract
entered into by him as such public
servant cannot be enforced by the
machinery of a writ under
Article 226
of
the Constitution."

Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

43/45

It would be manifest from the aforesaid
authoritative enunciation that herein the two
basic conditions precedent for the issuance of a
writ of mandamus are, thus, nonexistent.

30. Furthermore, the order of regularization may be

directed in the event the person is still in service and once it

comes to an end either by efflux of time or as per the terms of

the contract of employment or termination effected by the

employer, then in such event, the relationship of employee and

employer comes to an end, no longer subsists, except for the

limited purpose to examine the legality and correctness of

termination order. Reliance can be placed on the decision

rendered in the case of
Oshiar Prasad and Others vs.

Employers
in Relation to Management of Sudamdih Coal

Washery of M/s. Bharat Coking Col Limited, Dhanbad,

Jharkhand reported in (2015) 4 SCC 71. It will be relevant to

quote paragraph no.25 of
the said judgment
, which is as

follows:-

"25. It is a settled principle of law that
absorption and regularization in the service
can be claimed or/and granted only when the
contract of employment subsists and is in force
inter se employee and employer. Once it comes
to an end either by efflux of time or as per the
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

44/45

terms of the Contract of employment or by its
termination by the employer, then in such
event, the relationship of employee and
employer comes to an end and no longer
subsists except for the limited purpose to
examine the legality and correctness of its
termination."

31. This view has been followed in the case of

Management of the Barara Cooperative Marketing cum

Processing Society Ltd. v. Workman Pratap Singh
reported in

2019 (1) PLJR (S.C.) 353.

32. In view of aforesaid discussions, it is very much

clear that the effort of the petitioners for regularization in

service was not accepted by this Court, were asked to appear in

the regular recruitment process, they have successfully

appeared in the test, but on account of Policy decision of the

Bihar School Examination Board in the background of fact that

Bihar Intermediate Education Council was abolished and their

employees were absorbed in the Bihar School Examination

Board, inasmuch, there were extra employees already working

the Bihar School Examination Board, which was recorded by

the Three Men Committee, accepted by this Court and remain

un- altered upto the Apex Court, but they were engaged for
Patna High Court CWJC No.5899 of 2011 dt.27-02-2019

45/45

certain period as daily wagers and were terminated in the year

1996, so after such a long period, there cannot be a direction

for regularization of their services, inasmuch as, their entry as

daily wagers was not in terms of
Article 14
and
of the

Constitution of India, cannot be said to be a legal or regular

appointment, but out and out it is an illegal appointment, does

not confer any right to claim for regularization.

33. For the foregoing reasons, this Court does not find

any merit in this writ petition, accordingly, the same is

dismissed.

(Shivaji Pandey, J)

pawan/-

AFR/NAFR N.A.F.R.
CAV DATE N/A
Uploading Date 02.03.2019
Transmission Date