Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.14024 OF 2012 =================================================== 1.RAM LAL SON OF LATE MUSHAN SINGH RESIDENT OF VILLAGE- TENDUA, P.S.- DEHARI, DIST.- ROHTAS 2.PERMOD KUMAR SINGH SON OF LATE BIHARI SINGH RESIDENT OF VILLAGE- TENDUA TOLA, P.S.- DEHARI, DIST.- ROHTAS 3.SHEONATH SINGH SON OF TENGARI SINGH RESIDENT OF VILLAGE- GAJBORE, P.S.- DEHRI, DIST.- ROHTAS 4.HIRA LAL PASWAN SON OF LAV PASWAN RESIDENT OF VILLAGE- GANGOLI, P.S.- DEHARI, DIST.- ROHTAS 5.KRISHNA MOHAN PAL SON OF LATE MAHRAJ PAL RESIDENT OF VILLAGE- TENDUA, P.S.- DEHARI, DIST.- ROHTAS 6.RAM NARAIN SINGH SON OF LATE RAM PATI SINGH RESIDENT OF VILLAGE- JOKHARGOLA, P.S.- AKAURI GOLA, DIST.- ROHTAS 7.SIPAHI SINGH SON OF SRI GUHALI SINGH RESIDENT OF VILLAGE- CHAKANWAN, P.S.- INDRAPURI, DIST.- ROHTAS 8.SATYA NARAIN SINGH SON OF JAINARAIN SINGH RESIDENT OF VILLAGE- DEBARIA, P.S.- AKORI GOLA, DIST.- ROHTAS 9.RAM DAYAL SINGH SON OF LATE DUKHI SINGH RESIDENT OF VILLAGE- DAHIYAR, P.S.- KARBANDIYA, DIST.- ROHTAS 10.ARVIND KUMAR SON OF LATE MUNDRIKA SINGH RESIDENT OF VILLAGE- DAHIAR, P.S.- AKARI GOLA, DIST.- ROHTAS 11.BAJRANGI SINGH SON OF SRI DASARATH SINGH RESIDENT OF VILLAGE- HURKA P.S. AND DIST.- ROHTAS 12.SURESH SINGH SON OF LATE KARMA SINGH RESIDENT OF VILLAGE- DAHIYAR, P.S.- AKORI GOLA, DIST.- ROHTAS 13.RAJENDRA SINGH SON OF RAM RAJ SINGH RESIDENT OF VILLAGE- GOPI BIGHA, P.S.- DEHARI, DIST.- ROHTAS 14.AWADH BIHARI SINGH SON OF LATE SINGHASAN SINGH RESIDENT OF VILLAGE- CHARKAWAN, P.S. INDRAPURI, DIST.- ROHTAS. 15. BHIKARI ALIAS BHIKARI PRAJAPAT SON OF LATE DOMA PRAJAPAT RESIDENT OF VILLAGE- SAKHARA, P.S. DEHARI, DIST.- ROHTAS. 16.JANESHWAR SINGH SON OF SRI PHAGU SINGH RESIDENT OF VILLAGE- TENDUA, P.S.- DEHARI, DIST.- ROHTAS. 17.MADAN PANDEY SON OF LATE RAMANAND PANDEY RESIDENT OF VILLAGE- JARHA, P.S.- TILAUTHI, DIST.- ROHTAS. 18.AJOY KUMAR SON OF SRI DEVANAND SINGH RESIDENT OF VILLAGE- DAHIAYA, P.S.- AKAURI BIGHA, DIST. ROHTAS. 19.RAGHVENDRA SINGH SON OF JITENDRA KUMAR SINGH RESIDENT OF VILLAGE- DEWARIA, P.S. AKAURI GOLA, DIST. ROHTAS. VERSUS 1.THE STATE OF BIHAR, THROUGH THE PRINCIPAL .... .... PETITIONER/S Patna High Court CWJC No.14024 of 2012 (3) dt.17-01-2013 2 SECRETARY DEPARTMENT OF WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2.ENGINEER-IN-CHIEF, DEPARTMENT OF WATER RESOURCES BIHAR, PATNA. 3.CHIEF ENGINEER, DEPARTMENT OF WATER RESOURCES DEHRI-ON-SONE, ROHTAS 4.SUPERINTENDING ENGINEER, DEPARTMENT OF WATER RESOURCES, BHABHUA, ROHTAS (SONE HIGH LEVEL CANAL GANGOLI), ROHTAS. 5.EXECUTIVE ENGINEER, DEPARTMENT OF WATER RESOURCES SONE HIGH LEVEL CANAL DIVISION, GANGOLI, SASARAM, ROHTAS. 6.SUB-DIVISIONAL ENGINEER, WATER RESOURCES, NULL SONE HIGH LEVEL CANAL DIVISION, GANGOLI, GANGOLI DEHARI-ON-SONE, ROHTAS. .... .... RESPONDENT/S ================================================== Appearance : For the Petitioner/s:Mr. Nand Kishore Prasad Sinha. For the Respondent/s:Mr. Ashok Kumar Keshri AAG-11 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 17-01-2013 Heard counsel for the parties. The prayer of the petitioners in this writ application reads as follows:- of High Canal "For Level services issuance the the respondents of an appropriate writ, order or direction, to directing regularize the petitioners under the Scheme of the Department who are working as Gate Keeper on the daily wages basis at Sone Gantoli, subdivision Dehari Rohtas on fall and canal since the year 1980 and onwards one sanctioned post of Gate Keeper and also to make payment of the Minimum Wages at the rate of Rs. 250/- where as the petitioners are being paid other daily wages at the rate of Rs. 114/- per day but despite the several applications by the petitioners and the internal correspondence Department the petitioners is not being regularised inspite of the scheme under the Department and as such the action of services in of the
Legal Reasoning
Patna High Court CWJC No.14024 of 2012 (3) dt.17-01-2013 3 the Respondents in not regularizing the services of the petitioners on the post who are working on the post for last many years as not permissible in law and thus vitiated as no reason is being assigned by the Respondents in this regard till today."
Legal Reasoning
Mr. Nand Kishore Prasad Sinha, learned counsel for the petitioner in support of the aforementioned prayer has submitted that there are unimpeachable documents including Annexure-4 and Annexure-5 to show that the petitioners are working on daily wages for more than last 30 years. He has also submitted that there is scheme of regularization in the department and therefore when the Chief Engineer himself had recommended for consideration of the case of the petitioners for regularization in terms of the judgment of the Apex Court in the case of Secretary State of Karnataka vs Uma Devi, reported in 2006(2) PLJR (SC) 363, the continued silence on the part of the respondents in the matter of consideration of their regularization of service would amount to discrimination, inasmuch as, the cases of other similarly situated persons have also been favorably considered for regularization of their service. In this case a counter affidavit has been filed, wherein, apart from other things it has been clearly mentioned that there is no sanctioned post Patna High Court CWJC No.14024 of 2012 (3) dt.17-01-2013 4 available on which the services of the petitioners can be regularized. It has to be noted that the said counter affidavit was served on the counsel for the petitioner and he has not controverted the said allegation and in fact has proceeded on the basis that there are no sanctioned post on which the services of the petitioners can be regularized. Mr. Sinha, however, has been of the view for long continuation of the petitioners in service by itself would entitle them for regularization of service. In the considered opinion of this Court, such impression of the learned Counsel for the petitioner is wholly misconceived both on fact and in law. Regularization in employment in any establishment is dependent on the availability of sanctioned post. The only difference between a regular employee and other categories including rated employees is that while for the latter there would be requirement of sanctioned post inasmuch as they are included in plan budgetary expenditure on year to year basis, the regular employee being covered by non plan budgetary expenditure, there was to be essentially sanctioned strength. Thus regularization of service can never be made in absence of sanctioned post. Once this aspect becomes clear that the petitioners are daily rate employees and there are no sanctioned Patna High Court CWJC No.14024 of 2012 (3) dt.17-01-2013 5 vacant posts for their regularisation the ratio of the Apex Court in the case of Uma Devi(supra) will have no relevance for them inasmuch as even in the case of Uma Devi’s case supra, it was held as follows:- "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now Patna High Court CWJC No.14024 of 2012 (3) dt.17-01-2013 6 employed." (underlining for emphasis) Thus the petitioners in absence of sanctioned posts cannot be regularised in service. That being so, this application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)