RAM LAL v. THE STATE OF BIHAR

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." 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 submitted scheme 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 favorably considered 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 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)