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2013 DIGILAW 694 (PAT)

State Of Bihar v. Pawan Kumar Singh

2013-06-25

NAVIN SINHA, VIKASH JAIN

body2013
ORDER NAVIN SINHA, J. Heard learned Counsel for the appellants and the respondent. 2. I.A. No. 2059 of 2013 has been filed for condoning the delay of approximately 131 days in filing of the appeal. I.A. No. 2060 of 2013 for stay of the operation of the judgment under appeal. 3. We have heard Counsel for the parties and are satisfied to condone the delay. Since we are taking up the appeal for final orders no separate order need be passed on the stay application. 4. The present appeal arises out of order dated 26.9.2012 passed in MJC No. 930 of 2012 disposing it with certain directions. The respondent had originally filed CWJC No. 8883 of 1996 disposed on 21.11.2008. The relief sought had been for regularisation on the pleas that he had worked on daily wage from 8.2.1989 to 5.5.2001. The sheet anchor of the claim was an agreement stated to have been reached between the State Government and the Drivers in the district of Madhubani with regard to those who possess requisite qualification and had worked for 240 days. Eleven are said to have been regularised. The respondent challenged the decision dated 23.6.2011 declining regularisation to him. The Court remanded the matter to the Collector, Madhubani for determining vacancy in the year 1996 and to consider regularisation if vacancy in the general category were available when other similarly situated are stated to have been regularised. In the contempt application arising out of the alleged non compliance, directions were given to consider for regularisation as per seniority and not category of vacancy. 5. Learned Counsel for the respondents raised a preliminary objection that remedy for the appellant against the order passed in the jurisdiction under Article 215 of the Constitution only lies in an appeal under Section 19 of the Contempt of Courts Act and the present LPA under the Letters Patent Appellate Jurisdiction of this Court was not maintainable. 6. We can do no better than quote paragraph 11 (v) of AIR 2006 SC 2190 (Midnapore Peoples’ Coop. Bank Ltd. Vs Chunilal Nanda) relied upon by Counsel for the appellant:- “11.(V). If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Bank Ltd. Vs Chunilal Nanda) relied upon by Counsel for the appellant:- “11.(V). If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).” 7. Learned Counsel for the respondent submitted that he was appointed against regular sanctioned, vacant post and had completed 240 days in service according to the requirement of the appellants. This argument does not appeal to us. Completion of 240 days in service may be valid for certain purpose under the Industrial Disputes Act but it does not constitute any ground for regularisation. This discussion need not hold us further in view of the consideration in (2005) 2 SCC 470 (Dhampur Sugar Mills Ltd. Vs. Bhola Singh) on this aspect. 8. We requested Counsel for the respondent to place before us for perusal copy of CWJC no. 8883 of 1996. On going through the same we find that the claim for engagement was based on certificate dated 30.6.1990 that he was working on daily wage. Apart from the same there is no pleading that the respondent was appointed on a vacant and sanctioned post by a process in consonance with Article 14 of the Constitution through a competitive selection process. 9. The law on regularisation underwent a substantive change with the pronouncement in Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1 . 10. In 2013 (1) PLJR 964 (Ram Sewak Yadav v. The State of Bihar) a Full Bench of this Court has considered and discussed the entire law on this aspect including the decision that emerges from the Constitution Bench Judgment referred to above and the interpretation of the same in subsequent judgments also. 11. In Uma Devi (supra) it has been specifically held that all other judgments and directions contrary to this stands denuded. The present direction for regularisation could not have been given on 21.11.2008 after pronouncement in Uma Devi (supra). The order under appeal dated 26.7.2012 is set aside. The appeal stands allowed.