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2002 DIGILAW 966 (PAT)

Baidya Nath Prasad v. State Of Bihar

2002-09-05

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application prayer of the petitioner is for issuance of a writ in the nature of mandamus commanding the respondents to regularise his service to the post of Chowkidar. Further prayer of the petitioner is to direct the respondents to make payment of wages for the period August, 2001 to June, 2002. 2. According to the petitioner he was appointed on daily wages in the year 1986 on formation of a new division at Bhojpur, Ara, and since then he is working as Chowkidar on daily wages. According to him, the Divisional Forest Officer by his letter dated 13th September, 1990 (Annexure-1) forwarded to the Conservator of Forest the application filed by the petitioner for his appointment and requested the latter to consider the same sympathetically. The Divisional Forest Officer by memo no. 450 dated 18.7.91 (Annexure-2) wrote to the Collector that in his division two posts of Class IV employee are vacant and the work of those two sanctioned posts are being done by daily wage employees. In the said letter it was further stated that persons working on daily wages i.e. the petitioner and another employee had filed applications for their regular appointment. He forwarded the same to the Collector for consideration. 3. The grievance of the petitioner is that till date he has not been regularised in service although vacant post in Class IV service is available. Further assertion of the petitioner is that he has not been paid his wages since August, 2001 till the date of the filing of the application. Accordingly, the prayer made by the petitioner is to direct the respondents to regularise his service and pay to him the salary since August, 2001. 4. Mr. Kumar Verendra Narayan appearing on behalf of the petitioner submits that the petitioner being continuously working on daily wages since 1986, his service is fit to be regularised. In this connection learned counsel has referred to the Finance Departments Memo No. 1344 dated 4.2.49 and contends that the petitioners case is covered under the said notification which, in fact, is a rule made under Article 309 of the Constitution of India. In this connection learned counsel has referred to the Finance Departments Memo No. 1344 dated 4.2.49 and contends that the petitioners case is covered under the said notification which, in fact, is a rule made under Article 309 of the Constitution of India. In support of his submission learned counsel has placed reliance on a judgment of a learned single Judge of this Court dated 16th August, 2000 passed in C.W.J.C. No. 6212 of 1999 (Uma Shanker Rai and Others V/s. State of Bihar and others) and my attention has been drawn to paragraph 8 of the judgment, which reads as follows:- "In terms with 1949 Rule, a post in work Charged establishment of permanent nature required for 12 months in the year and for long and indefinite period is to be made permanent and to be included in permanent establishment. The man employed on such post having one year approved service is to be included amongst the permanent Government employee. This has also been held by this Court in the case of Mahesh Prasad Swarnkar and others vs. The State of Bihar and Others." 5. It has been further pointed out that L.P.A. No. 1573 of 2000 (The State of Bihar V/s. Uma Shankar Rai and Others) preferred against the said order has been dismissed by this Court. 6. I do not find any substance in the submission of the learned counsel for the petitioner and the authority relied on in no way assists the case of the petitioner. It is well settled that regularisation is not a mode of appointment and the Government in order to meet a particular contingency comes out with a scheme of regularisation. No scheme has been brought to my notice providing for regularisation of the service of the employee like the petitioner. In such a situation, direction for regularisation of service is not fit to be granted by this Court in exercise of its writ jurisdiction. 7. Not only this, petitioner has no where averred that his engagement on daily wages was made after following any procedure known to law or, for that matter, he was engaged initially following the principle of reservation. In absence thereof, it shall be hazardous for this Court to direct regularisation of service. 7. Not only this, petitioner has no where averred that his engagement on daily wages was made after following any procedure known to law or, for that matter, he was engaged initially following the principle of reservation. In absence thereof, it shall be hazardous for this Court to direct regularisation of service. So far as the decision of this Court in the case of Uma Shanker Rai and others (supra) is concerned, they were earlier appointed on daily wages and later on regularised in service and thereafter the order of regular appointment was cancelled which was challenged in the writ application. In that situation this Court referred to the Finance Department Memo No. 1344 dated 4.2.1999 (sic) and held that the appointment of the petitioners of the said case in regular scale was wrongly shown to be an illegal order. This is not the situation here. Petitioner is working on daily wages and his service has not been regularised and thus the decision of this Court, referred to above, is of no assistance to him. 8. As regards the claim of the petitioner for payment of salary till date, I am of the opinion that the petitioner shall be well advised to represent before the authority for the said purpose. In case the petitioner files representation and the authority is satisfied that the petitioner had worked for the period for which he is claiming his wages, same shall be paid to him within three months from the date of filing of the representation. On filing of such application, if the authority finds that the petitioner had not worked for the period, such decision shall also be communicated to him within the aforesaid period. 9. In my opinion, it is not a fit case in which a mandamus can be issued to the respondents to regularise the service of the petitioner. However, in case in future the respondents frame scheme for regularisation or intend to fill up the posts, needless to state that the case of the petitioner as also other eligible candidates shall be considered in accordance with law. 10. Application stands dismissed in limine with the aforesaid observation.