MUNNA RAM v. THE STATE OF BIHAR THROUGH CHIEF SECRETARY TO GOVT

Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 3 In the considered opinion of this Court, there are certain misconceptions in the mind of the petitioner as with regard to regularization of service. Regularization of service of a person whose appointment was made by an authority who had got no power to make such appointment will render it to be void ab initio. It shall be still void if the mandate of Article 14 and 16 of the constitution of India namely, advertising the post and conducting the selection process is not completed. Apparently, when the petitioner was sought to be engaged for cleaning work by the Block Development Officer by allowing daily wages of Rs. 5 per day that by itself would go to show that he was appointed by an authority who had been delegated with no such power for making such appointment. The plea of the petitioner that subsequently the District Magistrate had allowed such engagement made by the Block Development Officer therefore, illegality committed in that engagement of the petitioner got cured of, is also untenable both on fact and in law and has to be only noted for its being rejected. Though no such plea has Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 4 been raised in the writ petition nor any document has been annexed in the writ application, the learned counsel for the petitioner has produced a letter of Nazarat Deputy Collector, dated 15.07.1992 in course of hearing of this Case, which would go to show that the Collector of the district on an information given by the Block Development Officer, Dinara had granted a conditional approval only for payment of wages @ Rs. 21.75 paise per day with a condition that the petitioner was working for eight hours or more on each day of his engagement on daily wages. In absence of the appointment letter of the petitioner directing him to work for eight hours or more, this Court would presume that the appointment of the petitioner was not made by the Block Development Officer in the prescribed manner after following the mandate of Article 14 and 16 of the Constitution of India and therefore, the finding in the impugned order that such appointment was made by the authority having no jurisdiction infact does not suffer from any error of record. Secondly, the finding in the impugned order that there was no sanctioned post on Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 5 which the petitioner was sought to be engaged by the Block Development Officer cannot be contradicted on the basis of the document dated

11.06.2003 (Annexure-4). This document being an order dated 11.06.2003 actually was passed in relation to the petitioner on an order of the District Magistrate when the petitioner had filed the writ application, C.W.J.C No. 7142 of 2003, wherein, this Court in order dated

21.1.2003 had given the following direction:- "The grievance petitioner is that though he is working on daily wages since 1989 under the respondents, he is not whereas similarly situated persons have been regularized. regularized contained Without going into the merit of the case let the representation petitioner Annexure-10 be considered and disposed of by respondent no. 2, District Magistrate, Rohtas at sasaram in accordance with law within a period of three months receipt/production of a copy of this order." The issue therefore, which was decided by the Collector of the district in the aforesaid order dated 11.6.2003 heavily relied upon by the learned counsel for the petitioner showing that sanctioned post was actually nowhere related to the issue of sanctioned post Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 6 In fact in that order the Collector of the district complying aforesaid directions of this Court had held as follows:- ^^mi;qZDr fo"k;d lh0MCyw0ts0lh0 ua0 714@2003 eqUuk jke cuke fcgkj jkT; ,oa vU; esa ikfjr vkns’k ds vkyksd esa buds vkosnu ij fopkjksijkUr fuEukafdr fu.kZ; fy;k x;kA 1- nSfud osru Hkksxh deZpkfj;ksa ds laca/k esa dkfeZd ,oa iz’kklfud lq/kkj foHkkx ds i=kad&5940@dk0 fnukad 18-6-93 ds funs’kkuqlkj fnukad 1-8-83 ds ckn fu;qDr nSfud osru Hkksxh deZpkjh dh lsok lekIr dj nh tk,A ml ifji= easa ;g funs’k gS fd oxZ&3] oxZ&4 ds fu;qfDr ds laca/k esa dkfeZd ,oa iz’kklfud lq/kkj foHkkx }kjk le;≤ ij fuxZr ifji= gh ykxw gksaxsA 2- fnukjk iz[k.M esa fu;fer deZpkjh ds gksrs gq, nSfud osru ij deZpkjh dks j[kuk mfpr ugha gSA 3- vr% ,slh ifjfLFkfr esa Jh eqUuk jke ds vkosnu dks vLohd‘r djus dk fu.kZ; fy;k x;kA ;g fopkj.kh; ;ksX; ugha gSA** In that view of the matter, this Court also does not find any error in the impugned order holding that there is no sanctioned post on which the engagement of the petitioner was made. As with regard to the plea of discrimination the averment of the petitioner in paragraph no. 8 reads as follows:-

11.06.2003(Annexure-4) "That the impugned order been challenged by the petitioner in C.W.J.C No. 10058 of 2003 and was filed in this Hon’ble Court on 11.09.2003 stating therein that the selection committee on District Level under chairmanship of the District Magistrate, Rohtas held on 07.12.1999 through which 167 Daily wage workers brought into regular different establishment Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 7 Department (cadre) including the Health Department in which Dadan Ram who was working as an Daily wage since 06.10.1990 has been taken into regular establishment on reserved quota of Schedule Caste but the petitioner who is working since 16.01.1989 being also a member of Scheduled Caste had been ignored." As would be noted paragraph no. 8 not only contain the facts as with regard to moving of the petitioner before this Court while assailing the aforementioned order passed by the Collector of the district refusing to regularize the services of the petitioner. This plea was already raised by the petitioner in the earlier writ application but this Court while disposing of the batch of writ application including the petitioner’s writ application being C.W.J.C No. 10058 of 2003 had issued the following direction in view of the judgment of Uma Devi(supra):- "The learned counsels appearing for the petitioners have, also, jointly submitted that the directions given by this Court in the recent two Division Bench judgments recorded in the case of The State of Bihar & Others vs Purendra Sulan Kit: 2006(3) PLJR 386 and The State of Bihar & Others Vs Bipin Prasad Singh & others and analogous cases: LPA NO. 1211 of 2005 decided on 22.11.2006, and one judgment recorded by this court sitting signally in the case of Shailendera Kumar Verma @ Shailendra Prasad Vs. The State of Bihar & Ors: CWJC NO. 6504 of 2000 recorded on Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 8 30th November, 2006 may be followed in this group of petitions also. Thus, there appears to be a consensus that each case is required to be examined by the committee to be constituted in the light of our directions for the purpose of absorption, consideration permanency or regularization. For the foregoing grounds, the submissions and the case law propounded in Secretary, State of Karnataka and Others (supra), as well as, the merits of all the petitions examined by the Committee. required submissions In view of the factual matrix, proposition of law and earlier our two Division Bench decisions and one single Bench decision of this Court following directions are given: Bihar, (i) The Chief Secretary, Government constitute a committee of three Secretaries within a period of two months from today to examine the manner and mode and the type of appointments and to see whether such appointments are in consonance with the Recruitment Rules on regular post or have been irregularly or illegally made? (ii) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, for which the committee will evolve on its own the modality and modus operandi so as to reach to a conclusion as to the nature of the appointments of the employees covered in this group of petitions and to ascertain whether regular, irregular or illegal and whether they are failing within the ambit of the observations made in Paragraphs 45 and 53 of the decision in Secretary, State of Karnataka and others (supra). appointments (iii) The committee shall, undoubtedly, take a decision in the light of the law laid down by the Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 9 constitution Bench of the Hon’ble Apex Court in the case of Secretary, State of Karnataka (supra) and, particularly in the light of the observations which are quoted here- in-above. (iv) It shall, also, be remembered that the exercise of regularization, if requires, shall be a one time measure. (v) The exercise by the committee directed completed within six weeks after the creation thereof and in the event of any necessity it will be open for extension of time by taking leave from this Court. concerned (vi)The contention finality in some of the cases, in some of the cases, out of the present group in earlier round of litigation, has already attained and achieved, shall, also, be examined by the Committee. (vii) Until the Committee concludes it process and exercise as directed here-in-above, the status quo in respect of the petitioners obtainable as on today, is directed to be maintained." This Court would find that not only the plea of discrimination did not make any impression in the earlier round of litigation but as a matter of fact such plea of discrimination otherwise wholly misconceived. From the reading of Annexure-5, the list of candidate peon in which the name of Dadan Ram has been included showing his date of engagement as a candidate peon on 06.10.1990 is actually by way of different consideration Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 10 altogether in terms of Government Resolution NO. 16441 dated 03.12.1980 which envisages engagement of candidate peon and their being considered for appointment on class-4 post. The petitioner’s name was never included in the list of candidate peon and the submission being made today that the Block Development Officer made the appointment of the petitioner and recommended the name of the petitioner for inclusion in the candidate peon register will not make the petitioner entitled to raise a plea of discrimination because eventually the name of the petitioner was never entered in the candidate peon register. The enlistment of a candidate Peon and the work allotted on the post of Candidate Peon is not comparable with the engagement on daily wages made by the Block Development Officer for his own office. Such candidate Peon are engaged for the work of the district and allocated the work under the order of the Collector and thus cannot be equated with the work which was performed by the petitioner in the office of B.D.O. In that view of the matter, the plea of discrimination will also not vitiate the impugned order specially when this plea was Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 11 never raised by the petitioner before the Three Man Committee. Finally as with regard to continuous work of the petitioner for a period of over 10 years and yet his being denied regularization on the ground that he did not complete service of 10 years, it has to be noted that three Man Committee has considered this aspect in the light of the report received by the competent district authorities wherein it had recorded as follows:- ^^ftyk inkf/kdkjh] jksgrkl] lklkjke ls izkIr psdfLyi ds vuqlkj ;kfpdkdRrkZ Jh eqUuk jke dks iz[k.M fodkl inkf/kdkjh }kjk nSfud etnwjh ij lQkbZ dk;Z ds fy, j[kk x;k FkkA os v"Ve oxZ mRrhZ.k gS rFkk tUe frfFk 01-02-07 gSa dk;Zjr jgus dh vof/k 16-01-89 ls fnlEcj 90 rFkk ekpZ] 91 ls Qjojh] 97 rd crkrs gq, dgk x;k gS fd U;wure 10 o"kksZa rd dk;Zjr jgus dh ’krZ iwjh gksrh gSa in dh Lohd‘fr laca/kh okafNr lwpuk ugha nh x;hA gSa dgk x;k gS fd fu;qfDr ugha dh x;h Fkh cfYd dk;kZy; lQkbZ gsrq 5@& izfrfnu ds nSfud etnwjh ij j[kk x;k FkkA fjfDr ds fo:n~/k fu;qfDr laca/kh okafNr lwpuk Hkh ugha nsdj fy[kk x;k gS fd >kM+wd’k dk inLFkkiu ugha jgus ds dkj.k etnwj ds :i esa dk;kZy; lQkbZ gsrq j[kk x;k FkkA iz[k.M fodkl inkf/kdkjh dks fu;qfDr inkf/kdkjh crk;k x;k gSa mUgsa ’kfDr iznRr jgus dh lwpuk ugha nsdj fy[kk x;k gS] fd nSfud ifjJfed ds vk/kkj ij vuqe.My inkf/kdkjh }kjk dk;Z djus dh Lohd‘fr nh x;h FkhA ;g lwpuk nh x;h gS fd fdlh U;k;ky; ds vkns’k ls bUgsa dk;Z ij ugha j[kk x;k FkkA mi;qZDr rF;ksa ls Li"V gksrk gS fd dk;Zjr jgus dh vof/k 16-01-99 ls fnlEcj] 90 rd vkSj iqu% ekpZ] 91 ls Qjojh] 97 rd crk;h x;h gS tks 10 o"kksZa ls de gSa Lohd‘r in ,oa fjfDr ds fo:n~/k bUgsa fu;qDr ugha fd;k x;k FkkA QyLo:i os ekuuh; loksZPp U;k;ky; }kjk mek nsoh okys ekeys esa ikfjr vkns’k …2006‰ 4 SCC 1 esa fu/kkZfjr iSjkehVjksa dks iwjk ugha djrs gSA vr% budk nkok vLohd‘r fd;k tkrk gSA** Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 12 In the considered opinion of this Court, in the light of the above conclusive report received from the district, the submission of the learned counsel for the petitioner that the petitioner’s services would be deemed to be continued till the date of passing of the order passed by the Collector as contained in Annexure-4 dated 11.06.2003, again has to be rejected for a simple reasons that the order dated 11.06.2003 was never an order of termination of the service of the petitioner. What was held in the aforesaid order dated

11.06.2003 was that the petitioner was not entitled for regularization of service and therefore, it would be the conclusive report of the district authority showing his work as found by the three Man Committee in the aforementioned quoted order from 16.01.1989 to December 1990 and from March 1991 to February 1997, which would of course not make a period of 10 years. In this regard it would be also useful to quote the relevant portion of the judgment of Apex Court in Uma Devi(supra) where the twin requirement for one time exercise of power for regularisation namely availability a Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 13 sanctioned vacant post and ten years continues minimum service was laid down in the following words:- "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 tribunals. The question 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 Government and their instrumentalities should take steps to regularise as a one-time measure, services 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 Patna High Court CWJC No.14913 of 2012 (2) dt.01-02-2013 14 being now employed." In that view of the matter, this Court does not find any reason to interfere with Annexure-1 the impugned order passed by the three men committee refusing regularization of service ground petitioner’s engagement was made after August

01.08.1985. This aspect in no view of the matter can now be looked into when this Court in the earlier writ application of the petitioner assailing the order dated 11.6.2003 passed by the Collector did not interfere on this ground or any other ground and infact the earlier writ application of the petitioner was with consent of the parties referred to three Men Committee. Such consent also included that of the counsel appearing on behalf of the petitioner in that case and therefore, that point cannot be raised now while assailing the order of three men Committee. That being so, this application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)