Sumitra Devi vs The State Of Bihar And Ors
2023 Latest Caselaw 5064 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.245 of 2019
                                           In
                   Civil Writ Jurisdiction Case No.14601 of 2017
     ======================================================

Sumitra Devi Wife of Late Ram Narayan Mahto resident of C/o Dasai Mahto, Mohalla - Dujra, P.O. G.P.O., P.S. Kotwali, District Patna.

... ... Appellant/s Versus

1. The State of Bihar and Ors Bihar

2. The Principal Secretary, Water Resources Department, Bihar, Patna.

3. The Joint Secretary (Regional Establishment), Water Resource Department, Bihar, Patna.

4. Chief Engineer, Central Design, Research and Quality Control, Water Resource Department, Bihar, Patna.

5. The Superintendent Engineer, Dam and Gate Design Division, Water Resource Department, Bihar, Patna.

6. The Executive Engineer, Dam and Gate Design Division, Water Resource Department, Bihar, Patna.

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

For the Appellant/s : Mr. Gaurav Govind, Advocate For the Respondent/s : Mr. Anjani Kumar (AAG-4) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 05-10-2023

The appellant herein is aggrieved with the

dismissal of her writ petition, thus putting to naught her

claims for regularization.

Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

2. The petitioner had earlier preferred a writ

petition numbered as C.W.J.C. No. 14074 of 2013 seeking

for regularization reckoning her daily wage status for more

than 10 years. She claimed regularization on the basis of her

resolution passed on 16.03.2006 after consultation with the

Trade Union. The consideration was directed based on the

judgments of this Court in Ashok Kumar Sharma v. State

of Bihar (2006) 1 PLJR 232 and Jai Kishun Ram v. State

of Bihar (2016) 1 PLJR 512.

3. The petitioner's representation was placed

before the Chief Engineer, Water Resource Department,

Patna, who rejected it by order dated 25.03.2017. It was

found that the petitioner had not worked as a daily wager

for 5 years consecutively before the cut off date of

11.12.1990. The petitioners claim that similarly placed

persons were regularized in service pursuant to resolution of

2006, was found to be incorrect, since those 22 persons

regularized were persons who had serviced as daily wager

for more than 1000 days prior to the cut off date.

4. The learned Single Judge specifically

emphasized the decision rendered in Secretary, State of Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

Karnataka v. Uma Devi and the further decision of a Full

Bench of this Court in Ram Sevak Yadav v. State of Bihar

(2013) 1 PLJR 964; wherein, following Uma Devi (supra),

it was held that there can be no regularization unless it falls

under the category as permissible under Uma Devi (supra)

since otherwise it would lead to regularization of back door

appointments, which is completely prohibited. The order of

the Chief Engineer, Water Resources Department was

hence, upheld. The learned counsel for the appellant

pointed out that the appellant had continuous service from

16.09.1982. It was also pointed out from the earlier

judgment produced as Annexure-17 in the writ petition that

this fact was not denied by the respondent-State. The

appellant, hence, is entitled to regularization, is the

contention raised.

5. Learned AAG pointed out from Annexure-17

that even at the earlier point, the specific contention of the

State was that her employment was as a part time sweeper,

which is not akin to a daily wager. The specific resolution

of 2006 permits only daily wagers, who have been

employed at least for 240 days in every year in the Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

consecutive 5 years prior to the cut off date can be

regularized. Specific reliance is also placed on Annexure-A

produced along with supplementary counter affidavit dated

17.04.2023 filed on behalf of respondent Nos. 4-6.

6. We have looked at the translation of the

resolution dated 16.03.2006. A plan was prepared by a

Committee appointed by the State Government to regularize

the daily wage employees against the vacancies available in

the Government services. Clause 2(1) provided for

regularization of daily wage employees who have worked

for at least 240 days in the consecutive 5 years just prior to

11.12.1990. The Group C posts were to filled up on the

basis of Special Limited Examination conducted by the SSC

and Group D posts; at the minimum of pay-scale, to be done

on the basis of adjustment. It was also stipulated that the

opportunity shall be confined to a solitary instance. If the

Group C aspirants failed to be successful in the examination

or the adjustment of Group D aspirants found to be not

possible at the first instance, on the ground of non-

availablity of vacancies, then the daily wagers would be laid

off as per the procedure contained in Para 5. Clause 3 (1) Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

also stated that the adjustment of as daily wage employees

in the Group D posts would be determined on the basis of

their work for a minimum of 240 days every year

continuously for at least 5 years prior to the cut off date.

7. The learned counsel for the appellant also

referred to the earlier order dated 14.03.2023 in the present

appeal, wherein the Executive Engineer who filed the

counter affidavit was directed to be present. In the presence

of the Executive Engineer, the Division Bench had passed

another order dated 21.03.2023, wherein it was directed that

a speaking order will be passed with reference to the service

particulars of the appellant read with the principles laid

down by the Apex Court in the judgments in Uma Devi and

State of Karnataka v. M.L. Kesari (2010) 9 SCC 247. The

conditions referred to from the decision cited was that (i)

there should be a sanctioned post, (ii) the workers should be

working for more than 10 years, (iii) the appointments

should not be illegal, even if it is irregular and the employee

should not have been working under the umbrella of any

order of a Court of law.

8. Annexure-A produced along with the Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

supplementary counter affidavit dated 17.04.2023 of

respondent Nos. 4-6 specifically dealt with this issue. The

service details of the appellant is available in a tabulated

form. The appellant between 16.09.1982 and 13.06.1989

was employed as a part time sweeper. She was made a daily

majdoor only from 01.08.1989. Hence, as on the cut off

date which is 11.12.1992, as per the resolution dated

16.03.2006, the petitioner had only a little more than 1 year

service as a daily wager. The petitioner's prior service was a

part time sweeper, which cannot be reckoned for the

purpose of regularization of daily wagers.

9. The order passed in compliance of C.W.J.C.

No. 14074 of 2013 was based on Uma Devi (supra) in

which the Hon'ble Supreme Court frowned upon irregular

appointments being made and continuation for long periods.

The only concession provided was to regularize those

persons who had continued for more than 10 years whose

appointments were not illegal, even if they are irregular. We

cannot but observe that in the present case there is a

decision by the Government to regularize all daily wagers

who have been engaged consecutively for 5 years, for a Patna High Court L.P.A No.245 of 2019 dt.05-10-2023

minimum of 240 days in every given year. Hence, 10 years

is not necessary but only 5 years as per the decision of the

Government in 2006. But the appellant did not have the

necessary service as a daily wager; she having been made a

daily wager just one year back. This has been specifically

noticed by the order now passed and produced at Annexure-

A on the clear directions issued by the another Division

Bench in this very same appeal. We find absolutely no

reason to entertain the appeal and dismiss the same

upholding the judgment of the learned Single Judge on the

further reasoning provided herein, which is also on the basis

of the orders passed at Annexure-A.

10. The appeal stands dismissed leaving the

parties to suffer their respective costs.

(K. Vinod Chandran, CJ)

( Partha Sarthy, J) sharun/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          11.10.2023
Transmission Date