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2012 DIGILAW 1299 (PAT)

Raghunath Lohra v. State Of Bihar

2012-09-12

SHIVA KIRTI SINGH, SHIVAJI PANDEY

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ORDER (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) 1. Heard learned counsel for the petitioner and learned counsel for the State of Bihar. 2. It is apparent from earlier orders, contained in Annexure-4 series, that the services of some of the Warders in Central Jail, Muzaffapur were terminated in 1992. The writ petition preferred by the concerned Warders including the petitioner against termination of services were dismissed or disposed of without interfering with the order of termination. Thereafter the petitioner claims to have been engaged on daily wages since 2005 and has preferred the instant writ petition in 2012 for a direction that authorities should be directed to regularize his services as a Warder. 3. Learned counsel for the petitioner had argued before the learned Single Judge on the basis of an order dated 28.2.2011 passed in C.W.J.C. No. 8011 of 2010 (Annexure-5 to the writ petition) that there was already a direction that the authorities should consider the case of the petitioner for regularization in accordance with the judgment of the Supreme court in the case of Secretary, State of Karnataka Vs. Uma Devi, reported in 2006 (2) P.L.J.R. 368 (SC). According to the petitioner the Inspector General of Prisons, Bihar had failed to apply the principles laid down in the case of Uma Devi (Supra) while rejecting petitioner’s prayer for regularization through the impugned order dated 17.8.2011, contained in Annexure-7 to the writ petition. 4. Learned Single Judge felt difficulty in agreeing with some observation in the order dated 28.2.2011 passed by another Single Judge in the earlier writ petition preferred by the petitioner bearing C.W.J.C. No.8011 of 2010. In the order dated 28.2.2011 it was observed that the law has already been settled by the Apex Court in the case of Uma Devi (supra) that regularization of any daily wage employee can be considered in terms of parameters laid down in paragraph 44 of the said judgment. According to the learned Single Judge who referred this case to Division Bench, the judgment in the case of Uma Devi (supra) does not permit regularization of daily wage employees in any situation because it was made clear in that case that appointments on daily wages are made without adhering to the rules of regular appointment and requirements of Articles 14 and 16 of the Constitution of India. Hence for the purpose of regularization of service as a permanent employee, all appointments on daily wages will fall in the category of illegal appointment and not irregular appointment. 5. Learned counsel for the petitioner has first submitted that petitioner’s earlier service prior to removal in 1992 should have been taken into consideration so that the required period of 10 years for regularization of irregular appointees is treated to have been completed by the petitioner. In our considered view, the earlier service which came to an end in 1992 cannot confer any benefit to the petitioner in respect of his present claim for regularization on the basis of working on daily wages since 2005. Moreover, his earlier service was not in continuity with his present engagement on daily wages. 6. Learned counsel for the petitioner has drawn our attention to the judgment of the Supreme Court by a Bench of two Judges in the case of State of Karnataka and others Vs. M.L. Kesari and others, reported in (2010) 9 SCC 247 in support of his claim that casual labour/daily wager/ad hoc employee can also be considered for regularization in terms of directions given in the case of Uma Devi (supra), contained in paragraph 53 of the judgment. Paragraphs 6 and 13 of judgment in the case of M.L. Kesari (supra) leave no manner of doubt that in this case the direction was only to follow the directions of the Constitution Bench in paragraph 53 of the judgment in the case of Uma Devi (supra). That direction was applicable only in cases of regular appointments and not illegal appointments as explained in earlier judgments of the Supreme Court in the case of State of Mysore Vs. S.V. Narayanappa, reported in A.I.R. 1967 SC 1071, R. N. Nanjundappa Vs. T. Thimmiah, reported in (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka, reported in (1979) 4 SCC 507 . Those judgments find a reference in paragraphs 53 as well as 15 of the judgment in the case of Uma Devi (Supra) and leave no manner of doubt that appointments made de-hors the rule governing appointments or the constitutional mandate in Articles 14 and 16 of the Constitution of India have to be treated as illegal appointments. Those judgments find a reference in paragraphs 53 as well as 15 of the judgment in the case of Uma Devi (Supra) and leave no manner of doubt that appointments made de-hors the rule governing appointments or the constitutional mandate in Articles 14 and 16 of the Constitution of India have to be treated as illegal appointments. The direction in the case of M.L.Kesari (supra) for consideration of the case of the concerned employee for regularization as per the law laid down in paragraph 53 of the judgment in the case of Uma Devi (supra) does not affect the law clearly laid down by a Constitutional Bench in the case of Uma Devi (supra). 7. It may be useful to indicate here that in large number of subsequent judgments, the Apex Court has taken the same view that we have indicated above without any reference to the judgment of M.L. Kesari(supra). In the case of State of Rajasthan and others Vs. Daya Lal and others, reported in (2011) 2 SCC 429 , decided later, the law was once again clearly enunciated in paragraph 12. It will be relevant to extract the settled principles indicated in paragraph 12 (i) and (ii) which are as follows: “12. We may at the outset refer to the following well-settled principles relating to regularization and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.” 8. In view of law settled by the Apex Court in the case of Uma Devi (supra) and subsequently in large number of cases including in the case of Daya Lal (supra), we hold that daily wage employees cannot be considered for regularization. We find no merit in this writ petition. Accordingly it is dismissed. We are making it clear that if any person including the petitioner is aggrieved by non-initiation of process for regular appointment then he would be at liberty to pursue his remedy through appropriate proceeding in accordance with law.