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2002 DIGILAW 931 (PAT)

Devendra Prasad Singh v. State Of Bihar

2002-08-27

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This writ application has been filed for issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to regularise the service of the petitioners. 2. Bereft of unnecessary details, facts giving rise to the present application are that petitioner no. 1 was appointed on daily wages as Typist-cum-Clerk on 1.4.85 and was posted in the Accounts Section of the Office of the Divisional Forest Office, Banka, whereas petitioner no. 2 was appointed on daily wages as Night Guard on 20.11.89 and was posted in the said office. It is assertion of the petitioners that they were paid their wages upto September, 1998 and from October, 1998 they are not being paid their wages. The stand of respondents 4, 5 and 7 in the counter affidavit is that petitioners were engaged according to the requirement of the work and availability of funds and payment were made on daily wage basis. They have also averred that petitioners were not appointed against any sanctioned post nor they were selected in accordance with the rules and procedure for appointment. The resolution of the State Government dated 18.6.93 (Annexure-A to the counter affidavit) contemplates of giving preference to the employees appointed on daily wages prior to 1.8.85, who have at least put in 240 days of service prior to 1.8.85 and the case of the petitioners is not covered under the said resolution. Respondents have further highlighted that according to the resolution all those persons who were engaged on daily wages after 1.8.85 are to be disengaged. 3. The answering respondents contend that the petitioners on their own showing were engaged on daily wages on 1.4.85 and 19.11.89 respectively and, therefore, petitioner no. 1 had not put in 240 days of service on 1.8.85 and petitioner no. 2 was not even appointed on 1.8.85 and as such they are not covered by the Resolution of the State Government dated 18.6.1993 referred to above. It has also been pointed out that petitioner no. 2 having been appointed after 1.8.85, he was to be disengaged in view of the aforesaid Resolution. 2 was not even appointed on 1.8.85 and as such they are not covered by the Resolution of the State Government dated 18.6.1993 referred to above. It has also been pointed out that petitioner no. 2 having been appointed after 1.8.85, he was to be disengaged in view of the aforesaid Resolution. The assertion made by the respondents in the counter affidavit has not been denied but the plea of the petitioners is that they having worked on daily wages from 1.4.85 and 19.11.89, their services are fit to be regularised and the cut off date fixed is unreasonable. 4. Mr. R.C. Jha, learned senior counsel appearing on behalf of the petitioners submits that the petitioners having worked for about a decade on daily wages, their services are fit to be regularised. In support of his submission, he placed reliance on a judgment of the Supreme Court in the case of Gujarat Agricultural University vs. Rathod Labhu Bechar and others (A.I.R. 2001 S.C. 706) and my attention has been drawn to the following passage from paragraph 26 of the judgment which reads as follows : "We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a), need modification to this effect." 5. Mr. Dutta, S.C. IV, however, submits that the case of the petitioners is not covered by the Resolution of the State Government dated 18.6.93 and as such the prayer made by the petitioners for their regularisation in service is not fit to be granted. 6. Having appreciated the rival submission I do not find any substance in the submission of Sri Jha. Merely the fact that the petitioners had worked for some time on daily wages shall not entitle them for regularisation of their services. It is well settled that regularisation is not a mode of appointment and faced with a given situation the employer may come out with scheme of regularisation. Merely the fact that the petitioners had worked for some time on daily wages shall not entitle them for regularisation of their services. It is well settled that regularisation is not a mode of appointment and faced with a given situation the employer may come out with scheme of regularisation. Here in the present case the State Government has framed a scheme for giving preference to the employees engaged on daily wages but while doing so it has been made clear that preference shall be given to only those employees who were appointed prior to 1.8.85 and had at least put in 240 days of service prior to the cut off date i.e. 1.8.85. Undisputedly, petitioner no. 1 had not put in 240 days of service on 1.8.85 and petitioner no. 2 was appointed after the cut off date on 19.11.89. Thus they are not covered under the scheme of the State Government and as such direction sought for regularisation of their services cannot be granted. 7. As regards the authority of the Supreme Court in Gujarat Agricultural University (supra) on which Sri Jha has placed heavy reliance, same in no way supports the case of the petitioners. In the said case while framing the scheme, the employer had put certain conditions in respect of qualification for regularisation but the same did not find favour with the Supreme Court, as in the words of the Supreme Court "working for a period of 10 or more years without any complaint is itself a sufficient requisite qualification" and is a ground by itself for the relaxation of the eligibility condition. Relevant portion of the judgment reads as follows : "In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under clause 1 it is proposed that all daily wage workers, whether skilled, semi-skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the University. However, the said regularisation is subject to some condition. Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. However, the said regularisation is subject to some condition. Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualification referred in the aforesaid recruitment rules according to which, qualification for Peon is that he should study up to 8th Std., for Opera-tor-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkidars, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. certificate." 8. However in the case in hand no such qualification has been laid and preference is to be given to those employee, who were engaged on daily wages prior to 1.8.85 and have put in service of not less than 240 days prior to the cut off date. 9. Faced with this situation, Sri Jha submits that fixing of cut off date i.e. 1.8.85 is itself arbitrary. He points out that persons appointed on daily wages prior to 1.8.85, who had put in more than 240 days of service are being given preference in regularisation of service but the same is denied to a person who has not (sic) put in more years of service as daily wage employees after 1.8.1985 and the same, in his submission, is absolutely arbitrary and discriminatory. The submission of the learned counsel prima facie seems to be attractive but on deeper scrutiny I do not find substance in the same. It has often been said that regularisation is not a mode of appointment and the employer resorts to framing of such scheme to meet a particular contingency. Necessarily, if such a scheme is formulated a cut off date is to be fixed that it covers the employees appointed on daily wages till a particular scheme. Any other view would lead to making it a mode of appointment which, in my opinion, shall not be permissible. 10. Necessarily, if such a scheme is formulated a cut off date is to be fixed that it covers the employees appointed on daily wages till a particular scheme. Any other view would lead to making it a mode of appointment which, in my opinion, shall not be permissible. 10. Further in view of the authoritative pronouncement of the Supreme Court in the case of State of Haryana and others vs.Piara Singh and others (A.I.R. 1992 S.C. 2130) this point may not detain me any further. In the said case while framing the scheme for regularisation the employer prescribed a particular date by which the persons employed on daily wages must have put in required years of service. Same was challenged before the Punjab and Haryana High Court and the cut off date was found to be arbitrary. Matter travelled to the Supreme Court and while answering the said question in Piara Singhs case (supra) the Supreme Court held as follows : "Now we shall proceed to examine whether the High Court was right in holding that the several conditions prescribed in the orders issued by the two Governments from time to time are bad. In particular whether the High Court was right in holding that prescribing a particular date by which the prescribed period of service should have been put in and the further condition that the candidate must have been sponsored by Employment Exchange, are arbitrary and unreasonable. These G.Os. were issued by the Government from time to time. These orders are not in the nature of a statute which is applicable to all existing and future situations. They were issued to meet a given situation facing the Government at a given point of time. In the circumstances, therefore, there was nothing wrong in prescribing a particular date by which the specified period of service (whether it is one year or two years) ought to have been put in." 11. Thus I do not find any force in this submission of the learned counsel. 12. To put the record straight it is relevant here to state that the respondents have attempted to resist the regularisation of the service of the petitioners also on the ground that they are back door entrants and any direction by this Court to regularise their services would amount to giving premium to corruption. 12. To put the record straight it is relevant here to state that the respondents have attempted to resist the regularisation of the service of the petitioners also on the ground that they are back door entrants and any direction by this Court to regularise their services would amount to giving premium to corruption. However, in view of my conclusion that the petitioners are not entitled otherwise to be regularised in service, I am not inclined to enter into the merit of this submission. 13. In the result, I do not (sicfind?) any merit in the application and it is dismissed accordingly. No costs.