Dhirendra Kr.Yadav vs The State Of Bihar & Ors on 4 March, 2010

[Cites 3, Cited by 3]

Patna High Court - Orders

Dhirendra Kr.Yadav vs The State Of Bihar & Ors on 4 March, 2010

Heard Mr. Shyama Prasad Mukherjee, learned Senior Counsel, Mr. Vinod Kanth, learned Senior Counsel, Mr. Rajendra Prasad Singh, learned Senior Counsel, Mr. Rajendra Sharma, Mr. 14 Dhrub Mukherjee, Mr. Amrendra Kumar Sinha, Mr. Madho Roy, Mr. R.K.P. Singh, Mr. Jitendra Kumar Rai, Ms. Mahasweta Chatterjee, Mr. Rajesh Kumar, Mr. J. K. Giri, Mr. S.S. Khan, learned counsel for the petitioners, and Mr. S. K. Ghosh, learned Additional Advocate General - II and Mr. Ray Shivaji Nath, learned Additional Advocate General - IV, for the State.

2. This batch of writ petitions have been listed before us on being referred by the learned Single Judge as he had some doubt whether concept of regularization as postulated in paragraph - 53 of the decision rendered in Secretary, State of Karnataka and others vs. Uma Devi (3) and others, (2006) 4 Supreme Court Cases 1, would apply to daily wage employees.

3. To appreciate the scenario in proper perspective , it is apt to reproduce the paragraph of the order wherein the learned Single Judge has expressed his doubt:

"In the case of Uma Devi (Supra) at paragraph 45 of the judgment, the Supreme Court held in clear terms that daily wagers stand in a category/class by themselves and cannot make out claims for a right to regularization or even equal wages for equal work. The paragraph also holds that regularization of such persons was not permissible in the law merely because in the exigency of the administration certain ad-hoc or temporary daily wage appointment may have been made. Paragraph 48 of the judgment explicitly holds that daily wagers have no claim for regularization. A person appointed on daily wage holding no post in the government, not having a claim for regularization cannot classify himself as an irregular appointee. Such appointment visualizes a 15 regular appointment where only certain procedural requirements were lacking. The appointment being otherwise on a vacant sanctioned post as a regular employee and not on daily wages. Paragraph - 53 of the judgment exclusively confines the observations to those irregularly appointed as distinct from illegally appointed. The observations of the Bench with regard to consideration of such regularization may not apply to daily wage employees in light of the law laid down by the Supreme Court."

4. It is submitted by the learned counsel for the petitioners that if paragraph 53 of Uma Devi (supra) is read conjointly with paragraphs - 45,50,51 & 52, it would be quite vivid that the said paragraph contained a stipulation for regularization of daily wagers on certain conditions -precedent being satisfied. It is canvassed by them that the Apex Court has thought of the benefit as a one time measure and the said decision has also been interpreted by this court in the case of Shailendra Kumar Verma @ Shailendra Prasad vs. The State of Bihar and others (CWJC. No.6504 of 2000) and other connected matters and, therefore, there was no justification for reference.

5. Mr. S.K.Ghosh and Mr. Ray Shivaji Nath, the learned counsel for the State, fairly stated that paragraph - 53 would not ipso facto cover the daily wagers but it may have applicability and attractability to a case where the conditions- precedent are fulfilled. In essentiality, the conditions- precedent 16 which are cumulative in nature are not satisfied the benefit engrafted in the said paragraph cannot be extended to the daily wage employees.

6. To appreciate the rival submissions raised at the Bar it is apposite to reproduce paragraph -53 of the decision rendered in Uma Devi (supra) which reads as under:

"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (State of Mysore V. S.V.Narayaanappa, (1967) 1 SCR 128: AIR 1967 SC 1071), R.N.Najundappa12 12R.N.Najundappa V. T.Thimmiah, (1972) 1 SCC 409: (1972) 2SCR 799 and B.N. Nagarajan8 8B.N. Nagarajan V. State Karnataka, (1979) 4 SCC 507:

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 regularization 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 above referred 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 regularize 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 requires to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

7. This court in the case of Shailendra Kumar Verma (supra) after referring the paragraphs 45 & 53 of the decision rendered in Uma Devi (supra) had issued the following directions:

(1) The Chief Secretary, Government of Bihar shall constitute a Committee of three Secretaries within a period of two months from today to examine the manner and mode and the type of appointment and whether such appointments are in consonance with the Recruitment Rules on regular posts, irregularly made or illegally made or not.

(2) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, the procedure for which the Committee will evolve its own 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 their appointments are regular, irregular or illegal and whether they are falling within the ambit of the observations made in paragraphs 45 and 53 of the decision in Secretary, State of Karnataka and others Vs. Uma Devi (3) (supra) case judgment.

(3) The Committee shall, undoubtedly, take a decision in the light of the law laid down by the Constitution Bench of the Hon'ble Apex Court in Secretary, State of Karnataka (supra) and in particular in the light of the observations which are quoted hereinabove.

(4) It shall, also, be remembered that the exercise of regularization, if required, shall be a one time measure.

(5) The exercise by the Committee is directed to be completed within six weeks after the creation thereof and in the event of any necessity it will be open for the concerned party to seek extension of time by taking leave from this court.

(6) The contention that in some of the cases out of the present group in earlier round of litigation finality has been attained and achieved shall, also, be examined by the Committee.

(7) Until the Committee concludes its process and exercise directed hereinabove, the status quo in respect of the petitioners obtainable as on today, is directed to be 18 maintained."

8. In view of aforesaid, there can be no scintilla of doubt that conditions-precedent being satisfied the protective umbrella enshrined under paragraph - 53 would get squarely applicable. After so stating, ordinarily, we would have sent the matter to the learned Single Judge, but, a pregnant one suggestion was given to the learned counsel appearing for both the parties that as they have challenged the decision of the committee which has recorded a finding that there have been no sanctioned post and certain other conditions- precedent have not been satisfied, the controversy has to be put to rest once for all and, therefore, there should be a re-scrutiny.

9. Be it noted, a similar controversy had arisen with regard to the employees of the Health Department and this court in LPA. No.1623 of 2009 and other connected appeals on concession has appointed one-man committee, namely, Justice Udai Sinha Committee to look into the matter from number of spectrums. On being asked whether same arrangement should be made Mr. Ghosh and Mr. Nath, the learned counsel for the State, as well as the learned counsel appearing for the petitioners in each case echoed in one voice that they have no objection. 19

10. In view of aforesaid, we appoint one-man committee, namely, Justice Udai Sinha Committee to scrutinize the appointments of the daily wagers in the light of paragraph 53 of the decision of Uma Devi which has already been interpreted in the case of Shailendra Kumar Verma (supra). We would request the one-man committee to dispose of the matters by end of June, 2010. The petitioners are at liberty to file documents in support of their case and are also at liberty to engage a counsel or authorized representative. The committee would be at liberty to summon the records of the State Government to arrive at an appropriate conclusion.

11. Till the matter is finalized by the committee, the employees who are continuing in service shall continue but the present continuance would not entitle them to claim any kind of equity in their favour.

12. The writ petitions as well as the letters patent appeals are accordingly disposed of. There shall be no order as to costs.

(Dipak Misra, CJ.) (Ramesh Kumar Datta, J.) Patna High Court, Dated, the 4th March, 2010 (Neyaz) 20

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Patna High Court - Orders