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
======================================================
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.
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025
2/40
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,
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025
3/40
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
4/40
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
======================================================
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
5/40
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
======================================================
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
17.07.2019
regarding honorarium/salary/remuneration attendants
Patna High Court CWJC No. 16140 of 2023 dt.25-02-2025
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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
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
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
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
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/-
AFR/NAFR NAFR
CAV DATE 10.02.2025
Uploading Date 25 .02.2025
Transmission Date 25.02.2025
