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2005 DIGILAW 127 (PAT)

Ram Ayodhya Mahto v. State Of Bihar

2005-02-08

BARIN GHOSH

body2005
Judgment 1. Heard learned counsel for the parties. 2. On 26th January, 1950, the Constitution was adopted. By reason of Article 16 contained in the Constitution, the procedure for appointment in Government posts stood changed to the extent as prescribed in Article 16. That itself is a mandate of the Constitution. Any law made before adoption of the Constitution to the extent the same is contrary to Article 16 of the Constitution, stood repealed to the extent the same was contrary to Article 16. After the Constitution was adopted, no law maker had any right to make any law contrary to Article 16 of the Constitution. The mandate of Article 16 is simply to select the best among all others. It says nothing more than that. This is what is the minimum requirement of giving appointment in a Government post. In 1974, the Government of Bihar, was alarmed by the fact that the daily wage workers are being appointed for meeting exigency of certain works and those workers, who are permitted to work for more than 240 days in a calendar year, are claiming regularisation and accordingly by a Circular or an Instruction dated 16th March, 1974, the Government directed that only menial workers can be appointed on daily wage basis for a period not exceeding 100 days and if requirement is more than 100 days for such a worker, specific permission should be obtained. 3. In the instant case, on 30th May, 1985 the petitioner was appointed as a daily wage worker to do the duties of a class IV employee for three months and such appointment was extended from time to time until 3rd January, 1986 when such engagement was directed to continue till further orders. I need not venture to ascertain whether that engagement itself was in breach of the Government decision of 1974, for the petitioner is not seeking in this writ petition a direction to continue the petitioner as a daily wage worker. On 7th March, 1987 the petitioner was asked to discharge the duties of Toll clerk. Since then he is discharging the duties of Toll clerk and the present writ petition is for his regularisation in the post of Toll clerk on the sole ground that the petitioner has worked continuously since 7th March, 1987 until today as such clerk. On 7th March, 1987 the petitioner was asked to discharge the duties of Toll clerk. Since then he is discharging the duties of Toll clerk and the present writ petition is for his regularisation in the post of Toll clerk on the sole ground that the petitioner has worked continuously since 7th March, 1987 until today as such clerk. It may be possible that at the time when the petitioner was asked to discharge the duties of Toll clerk, there was a vacancy in the post of Toll clerk where the petitioner was asked to discharge his duties. It is however, nobodys case that such a vacancy existed and the learned counsel for the petitioner has not also put his case so high, but has contended that daily wage earners could be permitted to work on the post of Toll clerk which appears to be a class III post. There cannot be any dispute to that for the petitioner was engaged to discharge the duties of such clerk on daily wage basis. There is nothing on record to show that before the petitioner was asked to discharge the duties of Toll Clerk he was selected amongst any one else to be the best suitable to discharge such duties. The initial assignment of the duty of Toll clerk to the petitioner was thus in violation of Article 16 of the Constitution and therefore the same is invalid and illegal. An illegal employee, even if works till his death, earns no equity in his favour and it is impermissible for any legislature to frame any scheme for giving permanent job to such an illegal employee. It does not appear that in this State there is any scheme of the Government in terms whereof an illegal employee, merely because of having worked for a long time, is entitled to get a permanent employment or regularisation. Learned counsel for the petitioner has cited Government decisions of 1980 as well as of 1987 for the purpose of showing that the Government has decided that if a person has been engaged by the Government for a period more than 240 days in a working year, such person would be regularised in the permanent establishment of the Government. These decisions of the Government are subject to the provisions contained in Article 16 of the Constitution. These decisions of the Government are subject to the provisions contained in Article 16 of the Constitution. The initial appointment of the person concerned governed by the said policies must be an appointment which can be upheld by applying the test of Article 16 of the Constitution. An appointee, who has been appointed to discharge the duties of the Government and whose appointment is not in breach of the basic principle contained in Article 16, and has continued to work for more than 240 days for the State, in accordance with the judgment of the Supreme Court has acquired a right to be considered for permanent appointment for in terms of the said judgment it is an obligation of the State to frame a scheme for such a person so that he may be appropriately provided his space in the society by giving him an appointment. When the person so appointed is an illegal appointee, the Government cannot frame any scheme to reach any benefit to him in any manner whatsoever. 4. Learned counsel for the petitioner has cited a judgment of a learned Single Judge of this Court in the case of Surendra Prasad Singh and others vs. The State of Bihar and others reported in 2005(1) PLJR 88 . In addition to that the learned counsel for the petitioner has also cited another judgment of another learned Single Judge of this Court in the case of Surya Kant Jha vs. The Administrator, Patna Municipal Corporation and others reported in 2004(1) PLJR 366. He lastly cited a decision of this Court again of a learned Single Judge in the case of Bihar Fruit and Vegetable Development Corporation, Patna vs. State of Bihar and others reported in 1994(1) PLJR 377. In none of these judgments the court made any endeavour to ascertain whether the appointments given or the assignments of the works were valid or invalid. It was not pronounced that despite those appointments or assignments of work being invalid, the appointees are entitled to be regularized on such posts. Further more, the test of Article 16 had not been applied in any of those judgments. Those judgments, therefore, will not help the petitioner at all. It was not pronounced that despite those appointments or assignments of work being invalid, the appointees are entitled to be regularized on such posts. Further more, the test of Article 16 had not been applied in any of those judgments. Those judgments, therefore, will not help the petitioner at all. As aforesaid, the settled law of the land is, if an appointment is made in breach of the provisions of Article 16 of the Constitution, such appointment is not an irregular, but is an invalid appointment and where a person gains entry through back door and continues in service, and later on by reason of such continuance claims regularisation, the matter is to be viewed in the light of the provisions of Article 16 of the Constitution and when the appointment itself is void, the one and the only conclusion would be that there cannot be any question of regularisation of such appointment. 5. In such view of the matter, the writ petition fails and is dismissed. There shall be no order as to costs.