Sheo Nath Sahni and Another vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties. The prayer of only two petitioners in this writ application reads as follows:--

i. For commanding and directing the respondents to quash the order dated 14.3.2012 passed by the Director, Secondary Education, Govt. of Bihar, which was communicated to the petitioners and others vide memo no. 105 dated 27.3.2012 by which claim of petitioner''s regarding regularization of their services was rejected in compliance of the order passed by this Hon''ble Court passed in C.W.J.C. No. 1896/2009.

ii. To further command and direct the respondents to quash the orders dated 12.12.2007 issued by the Principal of Sahid Rajendra Prasad Singh, Government High School (Inter level) (Patna High School), Gardanibagh, Patna-2 and Lal Bahadur Shastrinagar Boy''s High School, Shastrinagar, whereby and whereunder petitioners have been directed not to discharge the duties as daily wages workers.

iii. For regularize the service of petitioners w.e.f. their date of joining on the IVth grade post and pay their salary (Arrears) without discriminating the petitioners as such other employee who were joined at the same manner and regularize their service in various date and they are working till today in the Patna High School, Gardanibagh as well as Government High School, Lal Bahadur Shastrinagar respectively.

Learned counsel for the petitioners in support of the aforementioned prayer has submitted that petitioner no. 1 was appointed on the post of Mali and petitioner no. 2 was appointed on the post of Cycle-stand Prahir on 18.1.1997 and they had continued in service till 2007 when all of a sudden their services were disengaged. In this regard attention of this Court has been invited to the order of this Court dated 22.6.2011 in C.W.J.C. No. 1896/2008 wherein the relevant portion reads as follows:--

It is asserted in the counter affidavit that engagement of the petitioners was hardly any employment in any capacity. Therefore, they have no right to be considered for any regularization in terms of the said judgments of the Apex Court. It is also contended that petitioners were terminated in 2007 itself as engagement of petitioners was temporary arrangement and fund had already exhausted.

Since learned Senior Counsel for the petitioners prays only for consideration of cases of the petitioners without any further direction from this Court, liberty is granted to them to represent before the concerned respondent for such consideration of their cases. If they file such representation, the concerned respondent may consider them in accordance with law and dispose it of by a speaking order, in the light of the above judgments of the Apex Court, preferably within a period of four months from the date of receipt/production of a copy of this order.

It is made clear that this Court has not expressed any opinion with regard to merit of claims of the petitioners.

As would be noticed this Court having found that the engagement of the petitioners was made on honorarium by the Principal of the High School had only remitted the matter back for considering their case for regularization. The Director, Secondary Education, being the Head of the Department, thereafter had considered the issue at length and in the impugned order he had held as follows:--

From the reading of the impugned order it becomes clear that the Principal of the High School had engaged the petitioners on daily wages/honorarium against a non-sanctioned/non-existing post. His such action was found to be unauthorized because he had no power to make such appointment/engagement. In any event the petitioners were held to be daily wages employee whose services were discontinued way back in the year 2007. Regularization of services of such persons who were brought in service through back door by an incompetent authority against unsanctioned post has not been approved by the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The Director, Secondary Education, therefore, had been correctly rejected the case of the petitioners in the light of the judgment of the Constitution Bench in the case of Uma Devi (supra). In fact if there was no sanction post there was no concept of regularization because in the case of Uma Devi (supra) also the Constitution Bench has laid down that even by way of one time measure the regularization of service could only be made of such persons who were working against the sanctioned post. The finding of the authority, the Director, Secondary Education, in this regard is that there is no sanctioned post of Gardener claimed by petitioner no. 1 or Cycle-stand Keeper on which petitioner no. 2 is said to have been engaged. Recently this aspect of the matter has been decided by the Full Bench of this Court in the case of Ram Sevak Yadav Vs. The State of Bihar and Others, wherein it was held as follows:--

We therefore sum up our conclusion 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 circumstances.

(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 now 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.

In the considered opinion of this Court the case of the petitioners is squarely covered by the Apex Court laid down by the Full Bench in the case of Ram Sevak Yadav (supra). As a matter of fact when there is no dispute that the petitioners were also appointed on daily wages against unsanctioned post their engagement was also in teeth of Article 14 of the Constitution of India which in turn would make their appointment illegal and not irregular, the distinction which was sought to be made in clear terms by the Apex Court in the case of Uma Devi (supra) the Full Bench in fact had also considered this aspect in the case of Ram Sevak Yadav in paragraph 44, wherein it was held as follows:--

The petitioners were appointed in temporary capacity for a process contrary to Article 14 of the Constitution without competitive selection as an individual favour doled out to them. There is no material to hold that they were appointed against vacant sanctioned post and possessed qualifications for the same. They were terminated before Uma Devi (supra) and have sought to retain their status by virtue of Court proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant.

Thus, in view of clear findings of the Director, Secondary Education in the impugned order that the petitioners'' engagement on daily wages was made by the Principal who had no power to make such appointment/engagement and that the engagement of the petitioners was made against unsanctioned post, their prayer for regularization of service must be rejected. That being so, this application is wholly misconceived and is accordingly dismissed.