Patna High Court
Kameshwar Kumar vs The State Of Bihar on 25 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 16140 of 2023
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1. Kameshwar Kumar Son of Ram Awadh Ray, Resident of Village- Dudhaila
Krishi Farm, Sonapur, P.O.- Sonapur Dudhaila, P.S.- Sonpur, District- Saran
(Bihar), 841101.
2. Anil Kumar, Son of Ram Ekbal Prasad @ Ram Ekbal Singh, Resident of
Jalkaddar Bagh, P.O.- Madhav Mills, Village- Nagla, P.S.- Madho Mills,
District- Patna (Bihar), Pin- 800008.
3. Satyadev Gond, Son of Parsuram Gond, Resident of Raghunathpur, P.O.-
Raghunathpur, P.S.- Raghunathpur, District- Siwan (Bihar), Pin- 841504.
4. Bhola Kumar Rajak, Son of Suresh Prasad Rajak, Resident of Village-
Ramnagar Bochachak, P.O.- AIIMS (Phulwari Sharif), P.S.- Phulwari Sharif,
District- Patna (Bihar), Pin- 801507.
5. Anil Kumar, Son of Balbhadra Prasad, Resident of Karma Road, Ramnagar,
P.O. and P.S. and District- Aurangabad (Bihar), Pin- 824101.
6. Ram Prakash Thakur, Son of Dwarika Thakur, Resident of Arwal, P.O. and
P.S. Arwal, District- Arwal (Bihar), Pin- 804401.
7. Shivnandan Prasad, Son of Late Vasudeo Ram, Resident of Ravidas Nagar,
New Area, District- Aurangabad.
8. Ravi Bhushan, Son of Ram Rup Singh, Resident of Yadav Bhawan, Gali No.
1, West Ram Krishna Nagar, Yadav Bhawan, P.O.- Sampatchak, P.S.-
Sampatchak, District- Patna (Bihar), Pin- 800027.
9. Deepak Kumar Yadav @ Deepak Yadav @ Deepak Kumar, Son of
Ramchandra Yadav, Resident of Bhawal, P.S.- Ramnjat, District- West
Champaran, (Bihar).
10. Anesh Thakur, Son of Mahabir Thakur, Resident of Village and P.O.-
Sarmostpur, P.S.- Paroo Ghyaspur, District- Muzaffarpur, (Bihar), Pin-
843107.
11. Pawan Kumar, Son of Mukhyalal Das, Resident of Village and P.O.-
Shakrisaraiya, P.S.- Kudhni, District- Muzaffarpur (Bihar).
12. Md. Sahabuddin, Son of Md. Allauddin, Resident of Village- Semera urf
Chak Srikant, P.O.- Srikant, P.S.- Tiar, District- Muzaffarpur (Bihar), Pin-
843115.
13. Bhola Yadav, Son of Ram Chandra Yadav, Resident of Village-
Bhikhabandh, P.O.- Satjora, P.S.- Darondha, District- Siwan (Bihar), Pin-
841244.
14. Manish Kumar, Son of Sadhu Sah, Resident of Village- Nai Basti,
Mahadeva, P.O.- Siwan, P.S.- Mahadeva, District- Siwan (Bihar), Pin-
841226.
15. Munna Sah, Son of Surendra Sah, Resident of Village- Harpur, P.O.-
Manikpur, P.S.- Manikpur, District- Gopalganj, (Bihar), Pin- 841428.
16. Vicky Kumar Ram, Son of Shankar Ram, Resident of Village- Hajipur
Khand, P.O.- Gopalganj, P.S.- Gopalganj, District- Gopalganj (Bihar), Pin-
841428.
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17. Balmiki Kumar, Son of Gayani Gope, Resident of Faldu, P.S.- Nardiganj,
Distric- Nawada.
18. Ranjan Raj, Son of Raju Prasad, Resident of Village- Ramnagar Karma
Road, P.O. and P.S. and District- Aurangabad (Bihar), Pin-824101.
19. Surendra Kumar, Son of Ram Keshwar Sah, Resident of Mohalla- Fazalganj,
P.O. and P.S.- Sasaram, District- Rohtas (Bihar).
20. Dinesh Yadav, Son of Kisun Yadav, Resident of Village- Zunikala Garia
Balua, P.O.- Zunikala, P.S.- Knagar, District- Purnea (Bihar), Pin- 854301.
21. Surendra Kumar Trivedi, Son of Visheshwar Trivedi, Resident of Village-
Chousima Siho, P.O.- Chousima, P.S.- Sakra, District- Muzaffarpur (Bihar),
Pin-843119.
22. Pintu Kumar @ Pintu Rai, son of Birendra Rai, Resident of Vill- Newajitola,
P.O.- Rivilganj, P.S.- Rivilganj, Dist- Saran (Chhapra).
23. Sandeep Kumar, son of Sukhdev Prasad Yadav, Resident of village-
Chhatradhari Bazar, P.O. Chhapra, P.S. Bhagwan Bazar, District-Chhapra
(Bihar), PIN- 841301.
24. Murli Jha, son of Nirmal Kumar Jha, Resident of Village- Harauli, P.O.
Satighat, Block- Kushaswar Asthan, P.S. Harauli, District- Darbhanga
(Bihar), PIN-848213.
25. Gopal Kumar, son of Shivkant Jha, Resident of village- Rahimpur, P.O. and
P.S. Rahimpur District- Khagria (Bihar), PIN-851204.
26. Sanjay Kumar Yadav, @ Sanjay Kumar, son of Sri Bhola Ray, Resident of
village- Dadpur Chaknur, P.O. Rahmadpur, P.S. Samastipur, District.
Samastipur (Bihar), PIN-848101.
27. Chandan Kumar Giri, son of Raj Balam Giri, Resident of Bhusanda, P.O.
Nauranga, P.S. Muffasil, District- Gaya, (Bihar), PIN-823003.
28. Sanjay Yadav, son of Dileep Yadav, Resident of A.P. Colony, P.S.- Rampur,
Dist-Gaya, Bihar.
29. Sanjeev Kumar, son of Lakhan Prasad, Resident of Saren Tola, Mathpar,
P.O. and P.S. Tehta, District- Jehanabad, (Bihar), PIN-804427.
30. Kamal Kishor Kumar, son of Subhash Ray, Resident of Near Petrol Pump
Khaspur, P.O. and P.S. Daudpur, District- Patna (Bihar), PIN-801502.
31. Sanjay Kumar, son of Ramjanam Prasad, Resident of Sahpur, Matiya, P.S.
Atri, District-Gaya (Bihar).
32. Pradeep Kumar Thakur, son of Nageshwar Thakur, Resident of Ward No. 08,
P.O. Ratanpura, P.S. Ashok Paper Mill, District- Darbhanga, (Bihar), PIN-
846002.
33. Aakash Kumar, son of Om Prakash Saw, Resident of New By Pass, Nawab
Path, Opposite Hariom Petrol Pump, Mohalla- Harnichak, P.O. and P.S.
Phulwari, District- Patna (Bihar), PIN-800002.
34. Banjeet Kumar Singh @ Ranjeet, son of Jai Prakash Singh, Resident of Jai
Hind Colony, Ranipur, P.O. Phulwari, P.S. Phulwari, District- Patna (Bihar),
PIN-800002.
35. Kunal Kumar, son of Devta Prasad, Resident of Punit Gas Godown,
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Ballamichak, P.O. Anisabad, P.S. Gardanibagh, District- Patna (Bihar), PIN-
800002.
36. Anil Kumar, son of Om Prakash Saw, Resident of New By Pass Nawab Path,
Opposite Hari Petrol Pump, Phulwari, P.O and P.S. Phulwari, district- Patna
(Bihar), PIN-800002.
37. Gautam Kumar, son of Devta Prasad, Resident of Ballami Chak, Phulwari,
P.O. adn P.S. Gardanibagh, District- Patna (Bihar), PIN-800002.
38. Sanjay Kumar, son of Lal Babu Thakur, Resident of Khagaul Road, P.O. and
P.S. Harnichak, District-Patna, (Bihar), PIN-800002.
39. Srikant Kumar, son of Lala Prasad, Resident of New Atwarpur, P.O. and P.S.
Kurthaul District- Patna (Bihar), PIN-804453.
40. Santosh Manjhi, son of Shravan Manjhi, Resident of Gosaitola, Purvi
Mainpura, P.O. and P.S.- Mainpura, District- Patna (Bihar), PIN-800013.
41. Pramod Kumar Sinha, son of Naresh Prasad Sinha, Resident of Mohalla-
Mahsauri, P.O. and P.S. Jamui, District- Jamui (Bihar).
42. Uttam Kumar Singh, son of Shyam Sundar Singh, Resident of Village-
Bahorna, P.O. Bahorna, P.S. Belhar, District- Banka, (Bihar), PIN-813207.
43. Pappu Kumar Singh, son of Chandrachur Singh, Resident of Village-
Mahugaon, P.O. Batiya, P.S. Sono, District- Jamui, (Bihar), PIN-811314.
44. Dayanand Sharma, Son of Raghunath Sharma, Resident of village-
Mahisauri, P.O. and P.S. Jamui, District- Jamui, (Bihar), PIN-811314.
45. Mahesh Kumar, Son of Sri Rajendra Yadav, Resident of village- Ratanpur,
P.O. Kateshwar, P.S. Sakara, District- Samastipur, Bihar.
46. Pramod Sah, Son of Deolal Sah, Resident of Ward No. 05, Bahuaprasad,
P.O. and P.S. - Dumra, District- Sitamarhi, (Bihar), PIN-843302.
47. Bhim Sah, Son of Kishundev Sah, Resident of Ashok Nagar, Pokharia, Ward
No. 36, Behind S.P. Office, Begusarai, P.O. and P.S. - Begusarai, District-
Begusarai, (Bihar), PIN-851101.
48. Jay Narayan Bhagat, Son of Late Ram Prakash Bhagat, Resident of Village-
Rampur, Majhaulia, P.S. Dumra, District- Sitamarhi.
49. Pintu Kumar, Son of Rajendra Ram, R/o Mohalla- Polo Road, P.O.- Kaushal
Nagar, P.S.- Airport, Patna- 800001.
50. Amit Kumar, Son of Ajay Kumar, Resident of 73, Chitkohra Bazar, Chawal
Mandi, P.O. and P.S.- Gardanibagh, District- Patna (Bihar), Pin- 800002.
51. Sanoj Kumar, Son of Naresh Singh, Resident of kanjo, P.O.- Saidabad
Polsain, P.S.- Kako Pali, District- Jehanabad (Bihar), Pin- 804417.
... ... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary, Department of Environment, Forest and
Climate Change, Government of Bihar, Patna.
3. The Principal Chief Conservator of Forest, Government of Bihar, Patna.
4. The Additional Chief Secretary, General Administrative Department,
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025
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Government of Bihar, Patna.
5. The Chairman, Bihar Technical Service Commission, Harding Road,
Rajbansi Nagar, Patna, Bihar-800025.
6. Munna Kumar Son of Sri Vijay Kumar Mehta Resident of Village -
Sitarampur, P.O. - Jamhor, P.S. - Barun, District- Aurangabad.
7. Anand Mohan Singh Son of Sri Krishna Kumar Singh Resident of Village
Karanpura, P.O. - Amdarhia, P.S. - Ekma, District- Saran.
8. Vikash Kumar Son of Tunna Singh Resident of Vill. and P.O. - Sahdullahpur,
P.S. - Ganga Bridge, District- Vaishali.
9. Dig Vijay Singh Son of Sri dip Narayan Singh Resident of Village -
Maniyaradih, P.O. and P.S. - Navinagar, District- Aurangabad.
10. Varun Kumar Son of Vivekanand Singh Resident of Village - Haibaspur,
P.O. - Saidabad, P.S. - Rani Talab, Distict - Patna.
11. Sagar Kumar Son of Late Sahdeo Mehta, Resident of Village - Banke Lane,
Gavtal (Danapur), P.O. - Digha, P.S. - Danapur, District- Patna.
12. Md. Mubarak Son of Md. Molagim, Resident of Village - Baswar Majhdia,
P.O. - M.T. Devipur, P.S. - Kursela, District- Katihar.
13. Manjay Kumar Son of Lakshman Singh Resident of Village and P.O.
Sahdullahpur, P.S. - Ganga Bridge, District- Vaishali.
14. Ravikant Son of Sri Din Dayal Thakur, Resident of Village and P.O.
Ismailpur, P.S. - Hajipur (Sadar), District- Vaishali.
15. Sanjay Kumar Son of Sri Lakshman Singh, Resident of Village and P.O.
Sahdullahpur, P.S. - Ganga Brdige, District- Vaishali.
16. Manish Kumar Son of Tengri Ram Resident of Village - Mudhariya, P.S.
Kathej, P.S. - Mohania, District- Kaimur.
17. Shamshad Akhtar Son of Abdul Jabbar Resident of Village - Lakhnaur, P.O.
- Bedaulia, P.S. - Bhagwanpur, District- Patna.
18. Asjad Ansari Son of Mohammaddin Ansari Resident of Village - Nuwan,
P.O. and P.S. - Kabilashpur, P.S. - Durgawati, District- Kaimur
19. Abhishek Kumar Son of Murari Prasad Singh Resident of Village -
Durgapur, P.O. - Khuthan, P.S. - Haspura, District- Aurangabad.
20. Suresh Kumar Son of Dwarika Rajak Resident of Village - Jarmakhap, P.O.
and P.S. - Aurangabad, District- Aurangabad.
21. Md. Imran Son of Md. Kamaluddin Resident of - Naya Tola, Phulwari
Sharif, P.O. and P.S. - Phulwari Sharif, District- Patna.
22. Rakesh Kumar Son of Late Ram Babu Sharma Resident of Village -
Bhagwatipur, P.O. - Neora, P.S. - Shahpur, District- Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jagnnath Singh, Advocate
Mr. Gajendra Prasad Yadav, Advocate
Md. Ghulam Mustafa, Advocate
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025
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Mr. Padmanabh Kashyap, Advocate
Mr. Deepak Kumar, Advocate
Mr. Akash Hari, Advocate
For the State : Mr. Anuj Kumar, AC to GP 24
For the Intervenor : Mr. Abhay Shanker Singh, Advocate
Mr. Barun Kr. Singh, Advocate
For the BTSC : Mr. Nikesh Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 25 -02-2025
Petitioners have been working in the Department of
Forest under the Bihar Government in different districts on the
post of Driver on daily wages for more than two years. In
pursuance to the Letter No. 44 dated 06.05.2019 issued by the
Planning & Development Department, Bihar, Patna, a meeting was
held on 27.05.2019 wherein it was found that in many
offices/departments different Honorarium like Rs. 10,000/-, Rs.
14,000/-, Rs. 17,392/-, Rs. 17,411/- and Rs. 22,885/- per month is
being paid so to bring uniformity in the payment of honorarium to
the contract drivers working in different offices/department and
there is need to review the contract in the Finance Departments of
the State and it is recommended to re-fix the Honorarium/Salary of
the working drivers on a consolidated basis to only Rs. 20,000/-
per month and the same will be effective on all Departments from
1st June 2019. The Deputy Secretary of the General Administrative
Department has issued a letter vide Memo No. 9534 dated
17.07.2019regarding honorarium/salary/remuneration attendants Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 6/40 in light of Resolution Memorandum No. 2401 dated 18.07.2007 read with Resolution No. 12534 dated 17.09.2018, whereby and where under it has been decided in the said meeting dated 20.06.2019 vide Letter No. 79 that to bring uniformity in the payment of honorarium/salary of the office attendants and drivers working on a contract basis in all departments with effect from 01.06.2019 is Rs. 18,000/- for matriculate-educated office attendants and Rs. 16,000/- per month for non-matriculation- educated office attendants.
2. The Department of Environment, Forest and Climate Change, Government of Bihar, Patna, has issued an office order No. 145, dated 25.09.2019, stating therein that the payment of monthly honorarium/salary of the vehicle drivers who are working on a daily basis was determined by the Bihar Tourism Development Corporation Ltd., Patna, in the year 2014, considering the amount of Rs. 8,500/- per month, and then in the year 2016, the monthly honorarium has been determined by the office of the Principal Chief Conservator of Forest, Bihar, based on the changed price index of the Labor Resource Department, Government of Bihar, Patna. In 2016, the honorarium of Rs. 11,360/- per month for the already working drivers and Rs. 8,500/- per month for the new drivers was made effective from April 01, Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 7/40 2016. Then again in the year 2018, the salary for the old vehicle driver was fixed at Rs. 12,500/-, and for new drivers, Rs. 10,480/-. Again, the meeting dated 27.05.2019 held by the Development Commissioner, Bihar, for bringing uniformity in the salary of drivers fixed the amount of Rs. 20,000/- per month which will be effective from June 01, 2019.
3. Persons working as vehicle drivers in various offices of the Environment, Forest, and Climate Change Department have not been hired on a contract basis, and they have been hired on a daily basis.
4. Deputy Secretary, Bihar Technical Service Commission, Patna has published an Advertisement vide Advertisement No. 37 of 2023 dated 23.08.2023 for the selection and appointment of 145 vacant and sanctioned Post for the post of drivers in different offices/departments of the Government of Bihar, whereby and where under the Department of Forest, Environment and Climate Change, Bihar, Patna has also published 963 vacant and sanctioned post of the post of driver, and the counsel persists that such publication of vacancies is arbitrary and has been done illegally without considering those drivers who are already working in the said Department on daily wages basis and contracted basis, the Department has published vacancies for the Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 8/40 appointment of drivers. It is also a point of consideration that the eligibility criteria for the post of driver are in itself unlawful and biased to all the drivers who don't have the Matriculation Education Qualification and it is the fact that for being a driver there is no requirement of 10th or equivalent certificates rather they must have driving knowledge/expense and must know the traffic rules and they must possess a driving license and all these three criteria is sufficient enough to be a good driver and in it totally injustice to all drivers who are already working in the said Department as if they are non-matric or not educated then, they will be barred by the eligibility criteria and it is very difficult for them who are serving the department since 30 years to look out their bread and butter when they were kicked out from the said Department.
5. That it is humbly stated and submitted that a letter vide Memo No. 2853 dated 17.10.2023 has been issued by the Deputy Secretary, Bihar Technical Service Commission, for scheduling the date of examination for the said advertisement dated 23.08.2023 in all districts of Bihar.
6. The learned counsel for the petitioners pray for Respondent Authorities may be directed not to operate the said Advertisement dated 23.08.2023 and further be directed to Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 9/40 regularize the petitioners for the said vacant and sanctioned post and to change the mode of exam, i.e., to conduct only in interview based on driving and medical test for selection of driver for the said post so that the livelihood of the non-matric candidate will also be considered.
7. A counter affidavit was filed on behalf of the Department of Environment, Forest and Climate Change on 23.02.2024. The resolutions issued by the State government from time to time about the regularization of daily wage workers are as follows:
(i) Department of Personnel and Administrative Reforms, Govt. of Bihar, vide resolution No. 5940 dated 18/06/93 has decided that the daily wage employees who have completed 240 days till cutoff date, i.e., 01/08/1985, may be considered for giving preference in appointments in vacant posts of class III and IV only if they are found eligible and other conditions are same after following the recruitment rules and after advertisement of the vacancies by the competent authorities.
(ii) In continuation of resolution no. 5940 dated 18/06/1993, the Personnel Department has issued resolution nos. 498 dated 10/05/2005 and 639 dated 16/03/2004. By resolution No. 489 dated 10/05/2005, the cut-off date of date 01/08/1985, as Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 10/40 mentioned in resolution No. 5940 dated 18/06/1993, has been extended to 11/12/1990. Further, by said resolution, a committee was constituted to consider the difficulties arising in regularizing daily wage employees under the provision made by resolution No. 5940 dated 18/06/1993 and make recommendations in this regard. On submission of the report of the above-mentioned committee, orders have been passed by resolution 639 dated 16/03/2006. Under said resolution, provisions have been made to give a one- time opportunity for appointment by regularization of services to only those daily wage employees who have worked against the sanctioned post under Group "Ga" and "Gha" on daily wage for at least 240 days before the cut of date. 11/12/1990.
(iii) By letter No. 851 dated 14/02/2008 of Personal Department, resolution No. 639 dated 16/03/2006 has been modified to the extent that along with provisions made in a resolution dated 16/03/2006, action should be undertaken by order dated 10/04/2006 passed by Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi and Others.
8. Appointment to the post of driver in the department is required to be made by the provisions made in the Bihar Drivers (Appointment and Service Conditions) Rules, 2005, along with amendments made in said Rules from time to time.
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 11/40
9. Learned Counsel for petitioners submits that vide Notification No. 9359 dated 09/07/2014 of the General Administration Department, Government of Bihar, amendment has been made in the Bihar Drivers (Appointment and Service Conditions) Rules, 2005, under which the drivers who have been legally engaged on a contract basis in government departments have been allowed for an age relaxation of five years. Provision has also been made for additional marks based on their work experience. The advertisement No. 37/2023 dated 23/08/2023 (Annexure-4 of this writ application) for appointment to the post of driver in various state departments has been challenged in the writ application. But this advertisement is by the provisions made in the Bihar Drivers (Appointment and Service Conditions) Rules, 2005, and the amendment made in the rules from time to time. The rules have not been challenged in the writ application. The petitioners are therefore not entitled to any relief claimed in paragraphs 1 and 2 of this writ application.
10. Learned Counsel on behalf of the respondents submits that it has been admitted by the petitioners in sub- paragraph (ii) of paragraph 1, paragraph 4, and paragraph no. 7 of the writ application that they have been hired as drivers on a daily wage basis. They have not been appointed to said post on a regular Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 12/40 basis. Therefore, their claim for appointment to the post of driver by regularization by mode of interview based on driving and medical tests is not possible by the order passed by the Hon'ble Supreme Court, Hon'ble High Court, and the rules and policies laid down by the State Government. Since the sanctioned posts are required to be filled up regularly, hence requisition has been sent to the State Government to fill up the vacant posts by the rules. Thus, the claim of petitioners that the requisition has been sent in an arbitrary manner and with malicious intent is not correct.
11. Learned Counsel appearing on behalf of the respondents submits that the petitioners have admitted that they were engaged on a daily wage basis and working as a driver in the department. But it is an admitted fact that the sanctioned posts which are vacant are required to be filled up after advertisement by the rules. The petitioners were not appointed against the post of driver and were engaged only up to the period these posts were not filled up regularly. By the orders passed by the Hon'ble Supreme Court and the policy decisions of the State Government, the petitioners cannot be appointed by regularization against these posts. It is open for them to apply for an appointment by the rules against the advertisement published for an appointment. Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 13/40
12. Learned Counsel for the respondent relies on some of the recent judgments of the Hon'ble Supreme Court regarding the regularization of daily wage employees as follows:-
(i) After dealing with the issue of regularization of daily wage workers the Hon'ble Constitutional Bench of Supreme Court in the case of State of Karnataka Vs. Uma Devi and others reported in (2006) 4 SCC 1 held in para 43 of the judgment as follows: -
"Therefore, consistent with the scheme for public employment, this court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 14/40 employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."
(ii) The Hon'ble Supreme Court, however, in paragraph No. 53 of the judgment in case of State of Karnataka Vs. Uma Devi and Ors. (supra), as an exception, has held as follows:
"53. 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 paragraph 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 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 Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 15/40 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 has 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 undertaken to fill these vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be sent in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopended based on this judgment, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
(ⅲ) In the matter of Satya Prakash and ors. vs. State of Bihar and ors. [(2010)4 SCC 179]. The Hon'ble Supreme Court clarified the order passed by the Hon'ble Supreme Court in paragraph 53 of the judgment in the case of State of Karnataka Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 16/40 Vs. Uma Devi & Ors. (supra). In this case, the daily wagers who had worked on daily wages for over ten years had claimed the benefit of paragraph 53 of the judgment of the Hon'ble Constitutional Bench. But taking into consideration the order passed in paragraph 53 of the judgment in the case of Uma Devi (supra), the Hon'ble Supreme Court in said case held that appellants were not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. The Hon'ble Supreme Court held that the Hon'ble Constitutional Bench has distinguished between temporary employees, daily wages, and those who were appointed irregularly in the sense that there was non-compliance with some procedure in the selection process, which did not go to the root of the selection process. Given the Hon'ble Supreme Court, the appellants, the daily wagers, did not fall in the category of the employees mentioned in paragraph 53 read with paragraphs 15 and 16 of the Hon'ble Constitution Bench Judgment.
13. In the case of State of Karnataka & Ors Vs. Ganapati Chaya Nayak and Ors [(2010)3 SCC 115], the respondents working on daily wages either as "plantation watchman "or" wireless operators "or" "helpers" had claimed for regularization of their service in light of the fact that they had been Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 17/40 in continuous service for more than ten years since the day of their appointment. But the Hon'ble Supreme Court, relying on orders passed in the case of Uma Devi (supra) and in the case of Official Liquidator vs. Dayanand, held their claims for regularization or absorption as non-sustainable.
14. The Hon'ble Supreme Court in the case of Official Liquidator vs. Dayanand, reported in (2008) 10 SCC 1, has held in paragraph 116 of the judgment as follows:
"116. In our opinion, any direction by the court for absorption of all company paid staff would be detrimental to public interest in more than one way. Firstly, it will compel the government to abandon the policy decision of reducing the direct recruitment to various services. Secondly, this will be virtual abrogation of the statutory rules which envisage appointment to different cadres by direct appointment."
15. The Hon'ble Full Bench of Patna High Court has considered the various orders passed by Hon'ble Supreme Court with regard to regularization of daily wagers and by order dated 01/02/2013 passed in CWJC No. 267 of 2020 along with CWJC Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 18/40 No. 472 of 2010 reported in 2013 (1) PLJR 964, has held as follows: -
"We therefore sum up our conclusions and answer the reference as follows: -
a. Uma Devi (Supra) prohibits regularization 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 regularized under any circumstance.
c. Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in 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 Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 19/40 for over ten years without intervention of any court orders."
16. Therefore, in light of policy decisions taken by the State Government and orders passed by the Hon'ble Supreme Court, any vacancies in the Forest Department are required to be first advertised and thereafter filled up by following the respective Service Rules, Recruitment Rules, Roster, and other relevant rules.
17. A reply on behalf of the petitioners to the counter affidavit filed on behalf of Respondent Nos. 2 & 3 was filed on 25.06.2024. Petitioners state that the statement as made in Paragraph no. 6 and its sub-paras of the counter affidavit has been accepted by them that the Department of Personnel and Administrative Reforms, Government of Bihar, Patna by resolution no. 5940 dated 18.06.1993 had taken a decision that the daily wages employees who have completed 240 days till cutoff date i.e. 01.08.1985 considered for giving preference in appointment in vacant posts of Class - 3 & 4 only if they are found eligible and other conditions are same after following the recruitment rules and after advertisement of the vacancies by competent authorities which was extended by resolution no. 498 dated 10.05.2005 and 639 dated 16.03.2006 were extended upto 11.12.1990 and by letter no. 851 dated 14.02.2008 of the Personnel Department the resolution no. 639 dated 16.03.2006 was modified Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 20/40 to the extent that the action should be taken by the order dated 10.04.2006 passed by the Hon'ble Supreme Court in the case of Uma Devi (supra).
18. According to the learned counsel for the petitioners, the recent judgment of the Hon'ble Supreme Court regarding the regularization of daily wages employees in Uma Devi (supra). Conforms with the term made by the petitioner for their regularization of their services who have been working since 2006 and thereafter onwards till date.
19. The Learned Counsel for Petitioner submits that the Hon'ble Supreme Court time without number from the year 1999 as reported in the case of Secretary, H.S.E.B. Vs. Suresh & Ors. reported in 1999(3) SCC 601 in paragraphs 3, 10, 18, 19, 20. In paragraph 18 of the above-mentioned case the Hon'ble Apex Court has held as under:
"18. As noticed above the draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour : socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises -- is it permissible in the new millennium to decry Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 21/40 the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution -- the answer cannot possibly be in the affirmative -- the law courts exist for the society and in the event law courts feel the requirement in accordance with principles of justice, equity and good conscience, the law courts ought to rise up to the occasion to meet and redress the expectation of the people. The expression "regulation" cannot possibly be read as contra public interest but in the interest of the public."
20. The doctrine of equality as enshrined in the Constitution promised an egalitarian society and the Contract Labour (Regulation & Abolition) Act, 1970 is the resultant effect of such a constitutional mandate having its due focus in that perspective. The Supreme Court has interpreted the equality so as to mean that the people of the country ought to be secured of socio-economic justice by way of a fusion of Fundamental Rights and Directive Principles of State Policy. Socialism ought not to be treated as a mere concept or an ideal, but the same ought to be practiced in every sphere of life. India is a socialist State as the Preamble depicts and the aim of socialism, therefore, ought to be Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 22/40 to distribute the common richness and the wealth of the country in such a way so as to sub-serve the need and the requirement of the common man. Article 39 is a pointer in that direction. Therefore, the Contract Labour (Regulation & Abolition) Act, 1970 ought to be read and interpreted so that social and economic justice may be achieved and the constitutional directive be given a full play.
21. That as the respondents have admitted that the petitioners have been working on sanctioned vacant posts which are lying vacant from the date on which the petitioners were appointed as Driver and have been allowed to continue as such for not less than 10 years and hence their services required to be regularized first given the judgment rendered by the Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi & Ors. as also the judgment in the case of Secretary, H.S.E.B. Vs. Suresh & Ors. reported in 1999(3) SCC 601 and hence the services of the petitioners are required to be regularized first and if the vacant posts are filled up by the persons working as Driver for long years, then the rest of the posts are required to be advertised.
22. I.A. No. 1 of 2024 was filed on 26.09.2024. The said I.A. was filed by the petitioners who have challenged the very advertisement, i.e., Advertisement No. 37/2023, which remains pending before this Hon'ble Court for consideration. This is an Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 23/40 application for stay of verification of certificates which was to be conducted from 30.09.2024 to 01.10.2024 by filling up the posts of driver without considering the case of the petitioners and without giving any weightage to them in pursuance to Advertisement No. 37/2023 dated 23.08.2023, where 25 marks has been provided for drivers who have been employed on contract basis based on their work experience for 5 years by granting maximum of 25 marks weightage but some of the petitioners as is provided in column 6(g) made an application for their appointment in open competition have not been granted experience certificate by their employer and the Bihar Technical Service Commission has also not given any weightage to the applicants who have been discharging their duties since 2007. That it is also important to mentioned in this context that the Bihar Technical Service Commission has published the result of Advertisement No. 37/2023 (Annexure - 4 to the writ petition) which was challenged by the petitioners in the writ petition where they have claimed for their regularization for discharging their duties since 2007 regularly but as the age of the candidates under unreserved category has been fixed as 37 years and unreserved category ladies 40 years, for backward and extremely backward (male/female) 40 years and scheduled cast and scheduled tribes (male/female) 42 Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 24/40 years where only 5 years relaxation has been given to the drivers who have been working under contract but the educational qualification has been given as Matriculation on account of which many writ petitioners who are not matriculate could not apply for their appointment and as because the Bihar Technical Service Commission did not give any weightage in their marks as 25 marks provided in the Advertisement in column 6(g) they have not been selected for their appointment in most illegal and arbitrary manner and even in contravention to the terms of advertisement and hence the selection made by the respondents are contrary to the advertisement.
23. That now, based on such selection, the respondent authorities conducted the verification of the certificates of the selected candidates on 30.09.2024 and 01.10.2024 by Memo No. 332 dated 18.09.2024, whereby they were bent upon to fill up the posts on which the petitioners are working since 2006/2007 by violating even the terms and conditions of the advertisement as contained in column 6(g) of the advertisement.
24. A counter affidavit on behalf of the Bihar Technical Service Commission was filed on 17.10.2024. The learned counsel submits that the Bihar Technical Service Commission has been constituted by the State Govt. by the Bihar Act 13, 2014. Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 25/40 Thereafter the Government has formulated specific rules as Bihar Technical Service Commission Selection Procedure Rules 2018 and therefore the Bihar Technical Service Commission has to follow the rules and instructions issued by the State Government as well as the act and rules and directions framed by the requisitionist department for whom the commission would be conducting the recruitment process. It is humbly and respectfully submitted by the counsel that the Department of General Administration, Govt. of Bihar, Patna has passed the Bihar Drivers (Appointment & Service Conditions) Rule 2005 which was amended by the Bihar Drivers (Appointment & Service Conditions) (Amendment) Rules 2007 by Notification No. 1468 dated 25.4.2007 and further the Rule 2005 was amended as Bihar Drivers (Recruitment & Service Condition) (Amendment) Rules 2014 and once again the Department of General Administration has amended the earlier existing rules of the driver's appointment in 2019 as the Bihar Drivers (Appointment & Service Conditions) (3rd Amendment) Rules 2019 by the powers conferred under Article 309 of the Constitution of India and by different amendment amended some provisions in the 2005 Rules which could very well be appreciated by perusal of the same. Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 26/40
25. Learned Counsel for the respondents submits that the prayer and issues as formulated by the petitioners in the present writ petition are attributable to Respondent No. 1 to 4 as mainly, they have challenged the written (Computer based) test and prayed for regularization of their contractual service which is altogether a policy decision in which the answering respondent (Commission) has no rules to play as it is the State Govt. The General Administration Department has sent the requisition along with the rules and checklist to the commission for conducting the recruitment process, and as submitted above, the commission is obliged under law to conduct the recruitment process strictly in compliance with the existing rules at the time of the issuance or advertisement and submits that the commission has prepared its advertisement bearing No. 37 of 2023 for inviting online applications for the post of Driver.
26. At this stage, it is humbly and respectfully submitted that in response to the advertisement bearing No. 37 of 2023, online applications were received by the commission, and the commission, in furtherance of concluding the recruitment process for the post of Driver, as its 1 st and 2nd stages of the recruitment process have been completed, and finally, the merit list and select list have been published by notice No. 1720 dated 6.8.2024, and Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 27/40 thereafter, the commission has recommended the select list to the Department for the issuance of appointment letters to the selected candidates. It is further respectfully submitted that as submitted above the commission has acted in consonance with the rules framed by the State Govt. and their prayer for regularization on the post of Driver based on their contractual appointment is not in the domain of the commission and as such the writ application is not maintainable as far as the commission is concerned and is thus fit to be dismissed.
27. Learned Counsel makes it pertinent to mention that in the present writ application, there are altogether 51 writ petitioners who have tagged together and have filed the present writ application, and out of which only 13 have filed their online application bearing Advt. No. 37 of 2023 for the post of Driver. It is submitted that out of these 13 petitioners only 12 have participated in the Computer Based Test (CBT) given Clause 6 of the advertisement and all those 12 petitioners who have participated in the CBT examination have not cleared the minimum qualifying marks which was mandatory given clause 6(f) of the advertisement by which it was mandatory for different category candidates to obtained fixed minimum qualifying marks in which un-reserved category candidates were required to get Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 28/40 minimum 40%, BC 36.5% EBC 34% and SC, ST, Women and PH candidate were required to get minimum 32% of marks. It is submitted that all the 12 petitioners who have participated in the CBT examination have failed to get the minimum qualifying marks as submitted above, and as such, all of them have been disqualified in the written test. As such, given clause 6 of the advertisement, they are not entitled to take part in the 2nd round of the recruitment process and are also not entitled to get the 25 marks in total and 5 marks for each year of completion of their work experience on a contract basis given clause G(i) & (ii).
28. Learned Counsel submits that the admitted case of all the petitioners is that all of them have worked based on daily wager and they have not claimed their respective work experience on contract-based employment, which is essential given clause 6(g) of the advertisement for getting a weightage point in respect of work experience, and that too if they would have qualified the conditions of clause 6(1) of the advertisement that they would have gotten cleared the minimum percentage of marks in respect of their categories in the CBT examination. The answering respondent, i.e., BTSC, has been advised to prepare a chart of all these writ petitioners to show that they have not cleared the Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 29/40 minimum marks in the CBT examination as per clause 6 (1) of the advertisement.
29. It is respectfully submitted by the learned counsel that on the similar issue of clearing the minimum percentage of marks in the written test regarding Advt. No. 11 of 2023 in respect of Trade Instructor, this Hon'ble Court has already decided the issue in C.W.J.C. No. 13951 of 2024 and has dismissed the aforesaid writ application by order dated 19.9.2024 by observing as follows:
"23. The petitioner, who is a Backward Class Candidate having not obtained 36.5% of qualifying marks in the first phase of the examination, I do not find that by dis-qualifying the petitioners for phase II, the respondents have committed any illegality in any manner or have deviated from the instruction contained in Advt. No. 11/2023."
30. A supplementary counter affidavit on behalf of the Respondent Department of Environment, Forest, and Climate Change was filed on 21.10.2024. The petitioners have been engaged as drivers on a daily basis. The petitioners cannot be treated as appointed on a contractual basis. There is no contract signed between the petitioners and the department for their Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 30/40 engagement as the drivers in the department, the petitioners, have not been engaged based on any advertisement. They are not engaged against a sanctioned post after following the roster rules. They have not been engaged on the basis of any recommendations made by a selection committee. Hence, they are not entitled to any weightage in appointment to the post of driver as has been claimed by them in this writ application.
31. Learned advocate for the petitioners has confined his argument in respect of the relief claimed in paragraph 1(i) & (ii), which are as follows:-
"1(i) For directing the Respondent Authorities not to operate the Advertisement No. 37/2023 dated 23.08.2023 issued by the Deputy Secretary, Bihar Technical Service Commission, Patna, whereby and where under the petitioners have to be compelled for facing online exam (Computer-based) against 96 vacant post for for the post od Driver in the Forest Department having Matric and Non- Matric qualification who are working from several years prior to the publication of this Advertisement as driver in the different district of the Forest Department.
(ii) For directing the Respondent Authorities to be regularized the petitioners on the post of Driver who are working on sanctioned and vacant post as a daily wager driver from various years (more than two years)."
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 31/40
32. The learned advocate on behalf of petitioners refers to the Bihar Drivers (Appointment and Service Conditions) Rules, 2005, where the minimum educational qualification of a candidate was held to be 8th pass. The present petitioners were appointed on a daily wage basis prior to 2005, and some of them have been working continuously for a period of 20 years. At the time of their appointment, though on a daily wage basis, they had their qualification of 8th pass. On the basis of the 2005 Recruitment Rule, no examination was held by the respondent authority for the regularization of the petitioners. On the other hand, the petitioners were directed to continue their work without any benefit being given to them for rendering their service for a continuous period of more than 10 years to 20 years.
33. It is further contended by the learned Advocate for the petitioners that the recruitment rules of the drivers were amended, and by virtue of the amended rule, the academic qualification of the petitioners was enhanced. Moreover, they were asked to appear in computer-based examination. They do not have any knowledge about the computer operation, so they were practically disallowed from taking part in the said examination. Similarly, they were not allotted with the weightage which they are entitled to get. In support of his contention, the learned Advocate Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 32/40 for the petitioners refers to a decision of the Hon'ble Supreme Court in the case of A.A. Calton vs The Director of Education & Another reported in 1983 (3) SCC 33. It is submitted by the learned Advocate for the petitioners that the petitioners cannot be held to be governed by the 2003 Rule when they were recruited by virtue of the 2005 Rule. Existing rights cannot be taken away by giving retrospective effect to a statutory provision unless it expressly or by necessary implication provides so.
34. It is also contended on behalf the petitioners that the full bench of this Court has considered various decisions passed by the Hon'ble Supreme Court with regard to regularization of the daily wagers in Mithilesh Kumar Jha vs The State of Bihar and Ors decided on 21st January, 2020 reported in 2013(1) PLJR 964 and came to the following conclusions: -
(a) Uma Devi (supra) prohibits regularization 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 Patna High Court L.P.A No.1191 of 2016 dt. 21 -01-2020 without open competitive selection cannot be regularized under any circumstances.
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 33/40
(c) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible candidates 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 years without intervention of any Court orders."
35. The learned Advocate for the petitioners has further pointed out that by notification no. 9359 dated 9th July 2014 issued by the General Administration Department, Government of Bihar, an amendment has been made in the Bihar Drivers (Appointment and Service Conditions) Rules, 2005, under which the drivers who have been legally engaged on a contract basis in government departments have been allowed for an age relaxation of 5 years, and the provisions were also amended for additional marks on the basis of their work experience.
36. The petitioners are entitled to get the benefit of the said provision. In this regard, the learned Advocate for the Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 34/40 petitioners refers to a decision in the case of Secretary, H.S.E.B vs. Suresh & Ors. reported in 1999 (3) SCC 601. In Suresh (supra), the Hon'ble Supreme Court was pleased to consider the fate of the contract laborers on the abolition of the contract labour system. The Hon'ble Supreme Court, placing reliance on the Air India Statutory Corporation, etc. vs. United Labour Union & Ors. etc. reported in JT 1996 (11) SC 170, held as under: -
"In this behalf, it is necessary to recapitulate that on abolition of the contract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the contract labour. The linkage between the contractor and the employee stood snapped and direct relationship stood restored between principal employer and the contract labour as its employees. Considered from this perspective, all the workmen in the respective services working on contract labour are required to be absorbed in the establishment of the appellant."
37. The learned Advocate appearing on behalf of the respondents, on the other hand, submits that the petitioners challenged the advertisement 37/2023 dated 23rd August 2023 for appointment on the post of driver in various State Departments on the ground that they do not have any knowledge of computer Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 35/40 application and the minimum educational qualification has been raised from class 8 to matriculation which many of the petitioners do not have and thirdly, they were not granted weightage as per the Rule.
38. It is submitted on behalf of the respondents that the petitioners were not asked to have computer knowledge as one of the qualifications; on the other hand, they were required to give a computer-based test. The computer-based test means the questions would appear on the computer screen with multiple-choice answers, and the candidates would be asked to click on the correct answer. For this reason, no knowledge in computer applications is necessary. Secondly, it is submitted by the learned Advocate for the respondents, and in the considered view of this Court, rightly submitted that the petitioners challenged advertisement no. 37/2023 but did not challenge the amendment of the Recruitment Rule by virtue of which the candidate's academic qualification was enhanced. Without challenging the Rule, they are not entitled to any relief claimed in paragraphs 1 & 2 of the writ petition. In support of his contention, the learned Advocate appearing on behalf of the respondents has placed reliance on an unreported judgment of a Co-ordinate Bench in the case of Dr. Shankar Pandit and Ors. Vs. State of Bihar and Ors. in CWJC 8115 of Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 36/40 2020 decided on 1st October 2021. In the said writ petition, the petitioners have prayed for relief holding and declaring that the petitioners, who were appointed on contract basis in July/August, 2010 were included in the District Ayush Medical cadre in terms of Rule-4 (a) and Rule-10 of the Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract Basis and Service Conditions) Rule, 2010. The Co-ordinate Bench, after considering the various provisions of the Rule held in paragraphs 13 & 14 as under: -
"13. If the case of the petitioners is to be accepted, by application of Rule 4(a) of the Rules, they can be treated to be in District Ayush Medical Cadre on contractual basis. Sub-Rule (e) of Rule 4 was substituted by amendment Rule 2017. The aforesaid amendment in 2017, by no stretch of imagination, can be said to be having a consequence that persons working on contractual basis under sub- rule (a) of Rule 4 shall automatically become permanent employees under the Rules. The substituted sub-Rule (e) of Rule 4 by amendment Rule 2017 was apparently for the purpose of giving preference to those who were working Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 37/40 on contractual basis, after adopting a process of selection as provided therein.
14. If the petitioners are desirous of joining District Ayush Medical Cadre Rules on regular basis, they will have to undergo the selection procedure as prescribed in sub-Rule (e) of Rule 4 of the Rules."
39. It is further submitted by the learned Advocate for the respondents that some of the candidates/petitioners duly appeared in the examination. They did not get the minimum cut- off mark; therefore, they were not entitled to get weightage as per the Rule. In support of his contention, he refers to an unreported decision of this Court in the case of Arjun Kumar Vs. The State of Bihar and Ors. in CWJC No. 13951 of 2024 decided on 19th September 2024, wherein it is observed in paragraph 20:-
"20. It is made clear that minimum qualifying marks is the benchmark for elimination of the candidature and it can only mean that the candidates, who obtain minimum marks as Patna High Court CWJC No.13951 of 2024 dt.19-09-2024 contained in the terms and conditions of Clause-10 of the advertisement then only can qualify for the second phase and then up to 25 marks weightage will Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 38/40 be added for giving weightage as per their experience, who have rendered their service as contractual employee."
40. In the instant case some of the petitioners who appeared in the examination did not even get the minimum qualification marks in computer-based/written examination.
41. It is further submitted by the learned Advocate appearing on behalf of the respondents that in view of the decision in Uma Devi's case, reported in 2006(4) SCC 1, daily wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are illegal and those that are irregular. The later being eligible for regularization if they meet certain conditions.
42. In reply to such argument, learned Advocate appearing on behalf of the petitioners have placed reliance on an unreported decision of the Hon'ble Supreme Court in Shripal and Anr. vs. Nagar Nigam, Ghaziabad in Civil Appeal No. 8157 of 2024 decided on 31st January 2025 and urged that Uma Devi (supra) cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor- based arrangement and a consistent need for Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 39/40 permanent staff, the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.
43. Having heard the learned counsels for the parties and on careful perusal of the entire materials on record, it is found that the petitioners never disputed that they were appointed as daily wagers and till date their status in employment is as a daily wager. There is a difference between daily wage laborers and contractual laborers. If an employee is appointed directly by the employer on contract against a vacant and sanctioned post and performs his duty for a considerable period of time, he is entitled to be absorbed as per the existing rule of appointment/absorption.
44. In the instant case most of the petitioners do not have minimum educational qualifications, they did not come forward for the relief of amendment of their academic qualification in the amended rule of employment and to allow them to compete the recruitment test on the basis of pen and paper mode. Without such prayer, the advertisement of recruitment of drivers in different departments of the State Government cannot be declared cancelled by the writ court. The petitioners did not come forward with a case that they were absorbed in vacant sanctioned posts. Thus, their appointment is absolutely fortuitous, irregular Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025 40/40 and considering the nature of their work, question of absorption in Government employment does not arise at all.
45. For the reasons stated above, this Court is not in a position to grant any relief to the petitioners. Accordingly, the instant writ petition is dismissed.
(Bibek Chaudhuri, J) Suraj Dubey/-
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