Daya Shankar Prasad v. The State of Bihar through the Chief Secretary, Bihar, Patna

while referring to Annexure-2 to the writ petition, submits that by the order, contained in Memo no. 698 dated 22.05.1987, the 2 Patna High Court CWJC No.16075 of 2012 (8) dt.18-12-2013 petitioner was adjusted as Road Mate in the Work Charge Establishment from daily wager and since then he is continuing, but his serve has not been regularized. Learned counsel for the petitioner has placed heavily reliance on a Judgment of the Hon’ble Apex Court reported in (2010) 247; State of Karnataka & Ors. Vs. M.L.Kesari & Ors.. He has specifically referred to paragraph-13 of the said Judgment. For just decision in the matter, it is necessary to quote the same which is as follows: “13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi(3), is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularization exercise, to find out whether there are any daily- wage/casual/ ad hoc employees serving the Zila Panchayat and if so whether such employees ( including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3) . If they fulfil them, their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi(3), their services need not be regularized. If the employees 3 Patna High Court CWJC No.16075 of 2012 (8) dt.18-12-2013 who have completed ten years’ service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts.” On the aforesaid ground, it has been prayed to direct the Respondents to regularise the service of the petitioner. Learned State Counsel , while opposing the prayer of the petitioner, submits that the State Government has taken a decision that only those persons shall be regularised, who were working in the Work Charge Establishment and had completed five years’ service continuously on 21st October,1984. Learned State Counsel has specifically relied on Annexure-D to the counter affidavit. Learned counsel for the State has further heavily relied on a Division Bench Order of this Court passed in L.P.A. No.355 of 2012, which was disposed of on 22.02.2013. He submits that the Division Bench of this Court had set aside the order passed by a Single Bench of this Court, wherein almost in similar circumstances, a writ petition was allowed. He further submits that there is no sanction post in the Work Charge Establishment. This fact has been mentioned in paragraph-7 of the counter affidavit, which has not been replied by the petitioner by filing any rejoinder. He has also referred to paragraph-9 of the counter affidavit. 4 Patna High Court CWJC No.16075 of 2012 (8) dt.18-12-2013 Besides hearing the parties, I have also perused the materials available on record. At the very outset, it is necessary to mention that regularisation is not a mode of appointment. In exceptional circumstances such appointments are made. In the present case, there is specific stand of the Respondents/State that as per Resolution no. 5074 dated 20.09.1990; there is no question for regularising the service of an employee of Work Charge Establishment appointed after 21.10.1984. From the order of the Division Bench i.e. Annexure-G to the counter affidavit dated

22.02.2013 passed in L.P.A. No. 355 of 2012 it is further evident that even in the year 1987, the State Government had passed a resolution regarding regularisation of work charge employees, who had completed five years of service on 21st October, 1984. It appears that by Annexure-D to the counter affidavit, the earlier resolution was reiterated by the State Government. The question for regularisation was recently considered by a Full Bench of this Court in the light of the Judgment of the Hon’ble Apex Court reported in (2006)4 SCC 1; State of Karnataka Vs. Uma Devi & Ors.. So far Judgment of the Hon’ble Apex Court in M.L.Kesari’s case is concerned, in the facts and circumstances of the present case, particularly as per resolution of the State Government, the Court is of the opinion that the petitioner may not get any help or 5 Patna High Court CWJC No.16075 of 2012 (8) dt.18-12-2013 benefit from the said Judgment. Keeping in view the fact that the petitioner was engaged in Work Charge Establishment in the month of May, 1987, it would be difficult for directing the Respondents to regularize his service. It would be contrary to the Government Resolution dated 23rd October, 1987 as well as Resolution No.5074 dated

20.09.1990 since almost in the similar circumstances, this issue has already been settled by a Division Bench of this Court in L.P.A. No.355 of 2012. There is no ground for granting any relief to the petitioner. Accordingly, the writ petition stands dismissed. NKS/- (Rakesh Kumar, J)