Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5126 of 2013 ====================================================== 1. Vijay Kumar Mandal, son of Sri Satish Chandra Mandal, resident of village + Post+ P.S. Kursela, District Katihar 2. Jyotish Kumar Paswan, son of late Vishwanath Paswan, resident of village Kanp, P.S. Rupouli, P.O. Baliya, District Purnia 3. Sahdev Mandal, son of late Chhutahar Mandal, resident of village Sameli Chakla, P.S. Pothia Phalka, District Katihar 4. Sushil Prasad Yadav, son of late Manrup Yadav, resident of village Doma Milki, P.S. Rupouli, District Purnia 5. Satish Kumar Mandal @ Satish Chandra Mandal, son of late Mahadeo Mandal, resident of village Khaira Lal Chand, P.S. Phalaka, District Katihar 6. Gajendra Prasad Mandal, son of late Sahdeo Mandal, resident of village Chakala Maula Nagar, P.S. Phalka, District Katihar 7. Mukti Prasad Yadav, son of late Rup Narayan Yadav, resident of village Ruchdeo Simaria, P.S. Phalka, District Katihar .... .... Petitioners Versus 1. The State Of Bihar 2. Chief Secretary, Govt. of Bihar, Patna 3. Secretary, Department of Personnel and General Administration, Govt. of Bihar, Patna 4. Commissioner cum Secretary, Minor Irrigation Department, Govt. of Bihar, Patna 5. Joint Secretary, Minor Irrigation Department, Govt. of Bihar, Patna 6. Chief Engineer, Minor Irrigation Department, Patna Division, Bihar 7. Executive Engineer, Minor Irrigation Department, Katihar Division, District Katihar, Patna 8. Executive Engineer, Minor Irrigation Department, Purnia, District Purnia, Bihar
Legal Reasoning
as has been held by a full bench of this Court in the case of Ram Sevak Yadav and others Vs. State of Bihar and others reported in 2013(1) PLJR 964 wherein this Court did not allow the claim of some of the similarly situated persons by holding as follows:- "43. We therefore sum up our conclusions and answer the reference as follows:- (A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant; (B) An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances. (C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 7 accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post. (D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten yeas without intervention of any court orders. 44. The petitioners were appointed in temporary capacity by a process contrary to Article 14 of the Constitution without competitive selection as an individual favour doled out to them. There is no material to hold that they were appointed against vacant sanctioned post and possessed qualifications for the same. They were terminated before (Uma Devi) (supra) and have sought to retain their status by virtue of Court proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant." 10. Thus, in the light of the aforementioned discussions although this Court does not find any merit in this case it would still accept that part of submission of the learned counsel for the petitioners seeking liberty for the petitioners to file their separate representation before the Principal Secretary of the Minor Water Resources Department for satisfying that their appointment in Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 8 daily wages was made against sanctioned posts after following the mandate of Article 14 of Constitution. The petitioners must enclose the proof of their working on sanctioned post as well as their selection and appointment was made after following the prescribed procedure and by a competent authority and only then the Principal Secretary of the Department will re-examine the matter strictly in accordance with law laid down by the Apex Court in the case of Uma Devi (supra) and Ram Sevak Yadav (supra). 11. With the aforementioned observation and direction,
Arguments
.... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 01-04-2013 Heard counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows: “For setting aside the order passed by the Three Men Committee constituted by the State Government as per direction of this Hon’ble Court in L.P.A.No. 915/06 along with analogous L.P.A. disposed of on 15th March Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 2 2007 by which the Committee hold that as petitioners were not working on a sanctioned post and thus there is no question of its remaining vacant and Sub-divisional Officer or Junior Engineer were not the competent authority to make appointment and accordingly their claim for regularization is being rejected.” 3. Learned counsel for the petitioners has submitted that the impugned orders passed in the case of the petitioners refusing regularization of their service either on the ground of lack of sanctioned post or their appointment having been made by incompetent authority is factually incorrect and legally unsustainable, inasmuch as the issue in this regard was already settled by this Court while directing the respondents in the order dated 15.3.2007 in L.P.A.No. 915/2006 and its analogous cases wherein the respondents were not only directed to consider the case of the petitioners and others for regularization of their service by constituting a three men Committee but also limiting to the four corners of the judgment in the case of State of Karnataka v. Uma Devi, reported in (2006)4 SCC 1. In this regard learned counsel for the petitioners has also submitted that the question of defect in initial appointment of the petitioners could not have been taken into account after long continuation of their service and the fact that they were continuing for a long period by itself would be Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 3 evidence of availability of sanctioned post. 4. Per contra, learned counsel for the State has submitted that the present writ application is wholly belated, inasmuch as a cause of action of 2008-2009 has been sought to be raised after inordinate delay of 3 to 4 years. In this regard he has explained that most of the impugned orders rejecting the claim of regularization of service of the petitioners were passed in the month of April and July, 2008 and it was only in the case of petitioner no.1 that such order was passed in the month of December, 2009. He has further submitted that the regularization of service cannot be a mode of appointment and therefore, the primary requirement would be of availability of sanctioned post. In this regard he has drawn attention to the findings recorded in the impugned orders showing that all the petitioners were working against such post which were never sanctioned. 5. In the considered opinion of this Court the writ application suffers from inordinate delay of more than 3 to 4 years and that by itself would be a good ground for not interfering with the impugned orders. 6. It has to be also kept in mind that the services of the petitioners had already been terminated when they had moved this Court. The working period of the petitioners is as follows: Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 4 Petitioner no.1 1.4.1984 to 24.2.2002 Petitioner no.2 9.7.1983 to 14.1.2002 Petitioner no.3 1.4.9182 to 5.4.2000 Petitioner no.4 1.2.1985 to 14.1.2002 Petitioner no.5 1.5.1982 to 14.1.2002 Petitioner no.6 1.4.1982 to 14.1.2002 Petitioner no.7 1.1.1984 to 14.1.2002 7. It would be thus clear that all the petitioners are out of service for more than last ten years and in fact their cases also were rejected by the three men Committee under the impugned orders on two grounds, namely, their appointment was made by an authority who had no power to make such appointment and they were also working against un-sanctioned post. These reasons cannot be said to be bad either on fact or in law but then the learned counsel for the petitioners in course of his submission by placing reliance on a note regarding removed daily wages employees of Minor Water Resources Department has highlighted that the finding of there being no sanctioned post suffers from an error of record. In view of the fact that this note, as contained in Annexure 2, is an extract from some document and is an incomplete document not even disclosing the authority who had prepared such note, it would be very difficult for this Court to rely Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 5 on the same much less arrive at a contrary finding that the petitioners were working on sanctioned post. 8. The issue of sanctioned post is a question of fact and has to be gone into by examining individual documents relating to each of the division where the petitioners claim to have been working on daily wages. The petitioners have got nothing more on record which can show that while continuing on daily wages they were working against sanctioned posts. The three men Committee has examined each of the case on the basis of a check-slip prepared on the basis of the report obtained from the controlling authorities where the petitioners were working on daily wages. Thus, the onus will be squarely on the petitioners to establish that the finding recorded in the impugned orders as with regard to the petitioners’ working on sanctioned post is incorrect and for that they will have to produce the relevant documents/ records. They have not done so before this Court. 9. The submission of the learned counsel for the petitioners that the long continuation of service of the petitioners will by itself entitle them to be absorbed/ regularize in the Government service also does not impress this Court. The parameter laid down in the case of Uma Devi (supra) is very clear that those of the persons who have worked for more than ten years Patna High Court CWJC No.5126 of 2013 (3) dt.01-04-2013 6 should be considered for regularization provided they were working on sanctioned post. In this regard the judgment of Uma Devi (supra) being a Constitution Bench Judgment has to be followed by this Court and the order of a learned Single Judge dated 30.8.2012 in C.W.J.C. No. 13078 of 2011 in the case of Kamal Chaudhary and others Vs. State of Bihar and others as referred to by the learned counsel for the petitioners being based on the case of State of Karnataka & ors. vs. M.L.Kesari & ors., reported in (2010)9 SCC 247 cannot be now a binding precedent
Decision
this application is disposed of. (Mihir Kumar Jha, J) surendra/-