Banaras Prasad And Ors vs The State Of Bihar And Ors
2023 Latest Caselaw 995 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.399 of 2018
                                          In
                     Civil Writ Jurisdiction Case No.12 of 2017
     ======================================================

1. Banaras Prasad, Son of Sri Dahu Mahto, resident of village Bhagwanpur, Pachwara, P.O. Bargaon, P.S. Nalanda, District Nalanda.

2. Sukhdeo Rai, Son of late Dalo Rai, resident of village Garmatari, Post Office Bahamra, P.S. Banka, District Banka.

3. Sattan Yadav, Son of Jogeshwar Yadav, resident of village Jawaharipur, P.O.

Tilka Manjhi, P.S. Kotwali, District Bhagalpur.

4. Kedar Prasad, Son of late Janki Mahto, resident of village Lodipur, P.O.

Hulasganj, P.S. Hulasganj, District Jehanabad.

... ... Appellant/s Versus

1. The State of Bihar through the Secretary, Water Resources Department, Government of Bihar, Patna

2. The Chief Engineer, Water Resources Department, Bhagalpur.

3. The Superintendent Engineer, Irrigation Circle, Bhagalpur.

4. The Superintending Engineer, Ganga Pump Canal Circle, Bhagalpur.

5. The Executive Engineer, Irrigation Division, Bhagalpur.

6. Suresh Prasad Sah, S/o Sri Padarath Sah, R/o Village Baidadih, P.O.

Ramchandarpur, Itahari, P.S. Amarpur, District- Banka.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Prakash Sahay, Advocate Mr. Sudhir Kumar, Advocate For the Respondent/s : Mr. Anjani Kumar, AAG-4 Mr Deepak Sahay Jamuar, AC to AAG-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE HARISH KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 15-03-2023

The Challenge in the present Letters Patent Appeal is

to the order/judgment dated 01.12.2017 passed by the learned Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

Single Judge in C.W.J.C. No. 12 of 2017, wherein the prayer of

the writ petitioners-appellants herein for regularization of their

services with effect from the date of initial appointment has

been turned down.

2. Undisputedly, all the four appellants have been

regularized in service vide order as contained in Memo No. 646

dated 04.03.2016 issued by the Chief Engineer, Water Resources

Department, Bhagalpur. However, being aggrieved to the extent

whereby the order makes the regularization prospective and not

from the date of their initial appointments or at least with effect

from 01.02.1999 when they were granted minimum scale of pay

to Class-IV employees in the light of the judgment and order

passed by this Court in a batch of writ petitions vide C.W.J.C.

No. 12 of 2017.

3. Before considering the propriety of the order under

appeal, the matrix of the fact for proper appreciation of the issue

is/are that the writ petitioners-appellants were working on daily

rate worker under Water Resources Department and they were

getting wages on daily rate basis since their engagement. Since

the writ petitioners have been continuously working on daily

rate for several years, but their cases could not be considered for

regularization approached before this Court for their Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

absorption/regularization. However, the writ petition having

been dismissed by the learned Single Judge, some of the

petitioners and others filed different Letters Patent Appeal,

which was disposed of vide order dated 18.09.1996 with the

direction that "the appellants and all other similarly situated

employees should be paid their salary in the lowest stage of the

time scale of pay admissible to the respective posts on which

they are working." Later on, after series of litigation by different

daily rate workers, the writ petitioners-appellants have also been

allowed minimum time scale of pay vide order dated

16.06.1999. Subsequently, on being aggrieved by the inaction

on the respondents-State authority in not taking steps for

regularization of writ petitioners-appellants, the writ petitioners-

appellants again knocked the door of this Court in C.W.J.C. No.

1373 of 2014, which was disposed of on 13.02.2015 with a

direction to the Chief Engineer, Water Resources Department to

consider their claim for regularization and for passing

appropriate order. Whereupon, the order bearing Memo No. 646

dated 04.03.2016 came to be passed, which order was assailed

to the extent whereby the writ petitioners-appellants have been

regularized from the date of their joining.

4. The learned Single Judge while considering the Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

case of the writ petitioners-appellants herein has been pleased to

hold as follows:

"The issue argued by Mr. Sharma, learned counsel appearing for the petitioners stands answered in the judgment of the Supreme Court reported in (2005) 13 SCC 246 (Punjab State Electricity Board Vs. Swaran Singh) wherein it has been held that normally regularization would be prospective in effect and not from the date of initial appointment. Even otherwise the very circular under which these petitioners have been regularized i.e. circular dated 16.3.2006 very clearly stipulates that the order of regularization would be prospective in nature. The comparison made by the petitioner with the employees of the Work Charge establishment is thus totally out of context for the two cases have no parity.

In the circumstances discussed no cause for indulgence is made out. The writ petition is dismissed."

5. The appellants have assailed the order of the

learned Single Judge, inter alia, on the ground that the learned

Single Judge, while adjudicating the writ petition failed to

appreciate that the writ petitioners-appellants were granted

minimum time scale w.e.f. 01.02.1999 and many juniors to the

writ petitioners-appellants have been regularized much earlier. It

is also the submission of the appellants that their cases are on Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

different footing and they claimed for regularization not merely

based on their engagement as daily wager, rather they were

getting minimum time scale and, as such, in any view of the

matter their cases for regularization have not been considered in

right perspective.

6. Before considering the aforesaid contentions made

in the memo of appeal, it would be proper to emphasize that the

concept of regularization presupposes irregular appointment at

the first instance so as to enable the employer to regularize the

employee. A three Judge Bench of the Hon'ble Supreme Court

in the case of State of Haryana and Others Vs. Jasmer Singh

and Others (1996) 11 SCC 77, held that the regularization of

daily rated workmen, who had completed a certain number of

years of service is a policy matter to be decided by the State.

The Hon'ble Supreme Court held that the respondents, who are

employed on daily wages cannot be treated on par with persons

in regular service of the State holding similar posts. Daily rated

workers are not required to possess the qualifications prescribed

for regular workers, nor do they have to fulfill the requirement

relating to age at the time of recruitment.

7. The issue of regularization was exhaustively

considered by the learned Constitution Bench of the Apex Court Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

in the case of Secretary, State of Karnataka and Others Vs.

Uma Devi and others, reported in (2006) 4 SCC 1 and

emphasizedly held that where the appointment had been made

without following the procedure prescribed under the law, such

person cannot seek regularization. The regularization should be

made under the statutory rules and not otherwise. Casual

Labour/Temporary employee cannot claim any right to

regularize and permanence and it should be presumed that

casual/temporary/contractual/ daily wager/ad-hoc employee

have accepted the employment fully knowing the nature and the

consequences following from it.

"It has further been clarified that those decisions

which run counter to the principle settled in this decision, or in

which directions running counter to what we have held herein,

will stand denuded of their status as precedents."

8. Recently, the two judge Bench of the Hon'ble

Supreme Court in the Case of Vibhuti Shankar Pandey Vs.

The State of Madhya Pradesh and Others in Civil Appeal

No. of 2023 (arising out of SLP (C) No. 10519 of 2020) while

considering a regularization matter has been pleased to hold that

two conditions are must for regularization of daily wage

employees; firstly, initial appointment must be done by the Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

competent authority and secondly; there must be a sanctioned

post on which the daily rated employee must be working.

9. Now coming to the Resolution dated 16.03.2016,

issued by the Personnel and Administrative Reforms

Department, Bihar, Patna pertaining to regularization of daily

wages workers engaged in different offices of the Government

of Bihar, from bare perusal thereof, it appears that the said

resolution speaks volume that the same is meant to provide one

time opportunity of appointment to those daily wages workman,

who qualified the conditions stipulated therein, with a clear

understanding that in no circumstances the period of work

rendered as daily wager shall be treated as service under the

Government. Admittedly the aforesaid stipulation as contained

in Clause 2(5) of the Resolution dated 16.03.2006 has never

been assailed and the resolution being basis of regularization

still holds the filed.

10. Since that stage has already crossed and the

services of the writ petitioners-appellants have already

regularized, hence the question of their regularization is not

disputed herein. This Court would also observe that allowing the

minimum pay scale admissible of Group 'D' post maintaining

their daily wager status in compliance of the earlier orders of Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

this Court would not change the status of a daily wager on par

with the regular employees. Further, the question of law

involved in the present appeal whether the services of casual

worker could be regularized with retrospective effect from the

date of initial appointment was also dealt with by the Hon'ble

Supreme Court in the Case of Union of India and others Vs.

Sheela Rani, reported in (2007) 15 SCC 230 and the Hon'ble

Supreme Court has been pleased to hold that "the respondent

was engaged as a casual worker and the nature of the job

assigned to her was to note down the complaints in the enquiry

office as a casual worker. The respondent has not placed any

documentary evidence in respect of her claim nor any such

evidence is available on record. The respondent's claim for

regularization of her services from 17.11.1982 is not correct as

the regularization of casual worker is covered under the relevant

rules. The list of the casual workers already regularized shows

that they had been engaged prior to the respondent." The

Hon'ble Supreme Court while allowing the appeal set aside the

judgment and order passed by the High Court as also the order

of retrospective regularization passed by the Tribunal. Thus the

regularization must take effect prospectively and not

retrospectively, unless it is so provided under the statutory force.

Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

11. What has been culled out from the aforesaid

proposition of law that all the regularization is to be governed

by the policy decision taken by the State; and in the present case

as contained in Resolution no. 646 dated 16.03.2006, which

specifically contemplates that the regularization is to be made

with immediate effect and the services rendered earlier on daily

wage basis will not be recognized as service under the State

Government for any purpose in view of the provision

contemplated in Clause 2 (5) of the aforenoted Government

circular issued by the Personnel and Administrative Reforms

Department.

12. Further the claim of the writ petitioners-appellants

with regard to the persons junior to them have been regularized

with retrospective effect, is duly considered by the learned

Single Judge, and rightly been held that they were work charge

employees and their regularization were done in tune with the

resolution of the Finance Department bearing no. 5074 dated

20.09.1990 and 17.10.2013 and as the work charge employees

had already given a temporary status under the circular, the writ

petitioners-appellant herein cannot claim parity on par with the

employees working under work charge establishment.

13. Having meticulously examined the materials Patna High Court L.P.A No.399 of 2018 dt. 15-03-2023

available on record, this Court does not find any ground for

interference in the order/judgment dated 01.12.2017 passed by

the learned Single Judge in C.W.J.C. No. 12 of 2017.

14. Accordingly, the present Letters Patent Appeal is

hereby dismissed, sans any merit.

(P. B. Bajanthri, J)

(Harish Kumar, J)

uday/-

AFR/NAFR             NAFR
CAV DATE             09.02.2023
Uploading Date       18.03.2023
Transmission Date