This writ application challenged a government resolution specifying age as a criterion for regularization of daily wager employees. The Court held that appointments made without competitive selection are illegal and cannot be regularized, leading to the dismissal of the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2083 of 2012
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Awadhesh Kishore Mishra @ Awadh Kishore Mishra Son Of Late Chandra Shekhar Mishra Resident Of Village Morsand, P.S Runni Saidpur, Dist.Sitamarhi
.... .... Petitioner
Versus
.... .... Respondents
====================================================== Appearance : For the Petitioner/s : Mr. Vaidehi Raman Prasad Singh, Adv. For the Respondent/s : Mr. Rishiraj Sinha GP-19
====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER
(16-04-2013)
Heard counsel for the parties.
reads as follows:
“i) For grant of an appropriate writ for quashing the letter no. 3/VI-1017/2001-4205 dated 31.12.2001 of the Commissioner and Secretary, Public Health Engineering Department, Government of Bihar (Annexure 6) terminating the service of the petitioner on the ground that the appointing authority had no locus standi to make appointment.
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ii) For grant of an appropriate writ for quashing letter no. 4/Vi-02-1084/02 Patna 3865 dated 28.6.2002 issued under the signature of Secretary and Commissioner, Public Health Engineering Department (Annexure 9) amending letter no. 4205 dated 31.12.2001 to the effect that the petitioner would be given the benefit of daily wage employee in place of work charge employee with effect from 1.4.2001.
iii) For grant of an appropriate writ for quashing the order no.91 dated 16.4.2008 issued under the signature of the Chief Engineer (Mechanical), Public Health Engineering Department, Government of Bihar issued under memo no. 271 dated 16.4.2008 (Annexure 12) rejecting the case of the petitioner for his regularization/ absorption and for a direction to the respondents to absorb him in regular establishment.
iv) For grant of an appropriate writ for quashing that part of the resulution no. 639 dated 16.3.2006 (Annexure 15) whereby it has been resolved that the inter se seniority of daily wagers would be determined on the basis of their age.”
petitioner, in support of the aforementioned prayer has basically concentrated on the aspect that the Government circular dated 16.3.2006 published in the Bihar Gazette on 25th April, 2006 laying down norms of regularization in service of daily wager employees suffers from vice of being arbitrary and thus, in teeth of
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the provisions of Articles 14 and 16 of the Constitution of India. He has submitted that whenever regularization of daily wager has to be made its date of his entry as daily wager employee which should weigh as the criteria for regularization and the age of daily wager employee cannot be made basis for regularization of service. In this regard he has placed reliance on the judgment of the Apex Court in the case of the Direct Recruit Class-II Engineering Officers’ Association & ors. v. State of Maharashtra & ors., reported in AIR 1990 SC 1607.
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16.3.2006 meets the requirement laid down for regularization of service in the case of Uma Devi (supra).
Patna High Court CWJC No.2083 of 2012 (4) dt.16-04-2013
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deprecated not only the practice but even the earlier judicial view with regard to extending sympathy for regularization in service to the daily wagers and others the Apex Court had also recorded in its judgment that regularization of service of irregularly appointed person by way of one time exercise can be envisaged if there is a policy for the same and it had also fixed a time limit of minimum ten years.
“If (2010)9 SCC 247 (The State of Karnataka vs. M.L.Kesari) makes a departure from the distinction between an illegal and irregular appointment as held in (2006)4 SCC 1 [:2006(2) PLJR (SC) 363] (State of Karnataka vs. Uma Devi) for purposes of regularization. If it does, shall it constitute a precedent?
“(A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the
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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 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.”
cases of the petitioners before the Full Bench was also considered and it was held as follows:
“The petitioners were appointed in temporary capacity by 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 benefit of paragraph 53.
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The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant.”
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was changed from 1.8.1985 to 11.12.1990 and this was notified in resolution No. 639 dated 16.3.2006 as would be evidenced from the first paragraph of the aforementioned Government resolution dated 16.3.2006 whose validity has been challenged by the petitioner in this writ application. As would be found from the first paragraph of resolution No. 639 dated 16.3.2006 the same only lays down the manner of direct appointment in which everything being equal preference was to be given to a daily wager employee if he had been appointed prior to cut-off date. Having regard to the aforementioned background the Government in the resolution dated 16.3.2006 had decided to lay down that such of the daily wagers continuing in service who had completed 240 days service would be entitled for being appointed against regular post by following the procedure and such procedure laid down therein reads as follows:
¼1½ tks nSfud osru Hkksxh 11@12@90 ds iwoZ ls de ls de 240 fnuksa ls dk;Zjr gS ;k dk;Zjr jgs gSA ;s fu;fefrdj.k ij fopkj gsrq ;ksX; gksaxsA lewg ^^x** ds inksa ij dk;Zjr ,sls nSfud osruHkksfx;ksa dh fu;qfDr fcgkj deZpkjh p;u vk;ksx ds ek/;e ls fo'ks"k lfefr ijh{kk ds vk/kkj ij dh tk;sxhA lewg ^^?k** esa ,slh fu;qfDr fuEure osrueku ds inksa ij lek;kstu ds vk/kkj ij dh tk;sxhA ijUrq lHkh ekeyksa esa flQZ ,d volj ¼ykbZQ ykbZu vksijVhU;wVh½ fn;k tk;sxk] ftlesa lQy ugha jgus ij fjfDr ds vuqikyudRrkZ ds dkj.k lek;kstu ugha gksus ij ,sls nSfud osruHkksfx;ksa dks bl ladYi dh dafMdk 5 esa fufgr izfdz;kuqlkj dk;ZeqDr dj fn;k tk;sxkA
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¼2½ lewg&^^x** ds inksa ij nSfud osruHkksfx;ksa dks fu;fer fu;qfDr dk volj nsus ds fy, fuEukafdr vk/kkj ,oa izfdz;k gksxh&
1- ,sls nSfud osruHkksxh dfeZ;ksa dh fu;fer fu;qfDr fcgkj deZpkjh p;u vk;ksx }kjk vk;ksftr fo'ks"k lfefr ijh{kk esa lQy gksus ij gh dh tk,xhA
2- ftl in ij fu;qfDr gsrq vkosnu fn;k tk;sxk mlds fy, fu/kkZfjr vgZrk jguk vko';d gksxkA
3- ijh{kk esa lQy gksus ,oa fjfDr miyC/k jgus ij gh fu;qfDr dh tk ldsxhA**
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made, no advertisement are being issued and therefore, no one gets an opportunity to be considered against those daily wages engagement. If every employer in every department has been engaging the persons on daily wages as per his own whims the resultant seniority on the basis of engagement will be only producing a disastrous effect by giving shelter or protection to illegally engaged persons. It is here that the Government has come out with a correct policy of making age the basis for regularization (adjustment) by way of one time exercise. The Government decision, therefore, that every one who had completed at least five years service in daily wages and in each of the year have worked for 240 days creates a class in itself and segregates the daily wagers who have no such disqualification. Thus if there are limited number of vacancies on which such adjustment/ regularization of daily wagers has to be made, the criteria of age cannot be said to be violating any statutory provision or offending the mandate of Articles 14 and 16 of the Constitution of India.
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different sources and has to giving them the benefit of their past service while fixing their seniority. Here none of the daily wages have been taken in service. They are still to be considered and for consideration the criteria has been evolved giving a fixed period of working for being eligible for regularization/ adjustment and among them those who are of more age have been given an opportunity to be considered earlier in comparison to a person who is lower in age and has a chance of at least making it in future.
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(supra) wherein after laying down the law the claim of regularization of similarly situated person was also rejected by the Full Bench.
(Mihir Kumar Jha, J) Patna High Court Dated the 16th April 2013 A.F.R./surendra/-
3 issues framed by the court
Whether a government resolution laying down age as a criterion for regularization of daily wager employees violates Articles 14 and 16 of the Constitution of India.
Whether a daily wager employee appointed without competitive selection or advertisement can be regularized.
Whether the petitioner is entitled to regularization of service appointed as a daily wager without adhering to Articles 14 and 16 of the Constitution.
Colour shows how this judgement treated each authority
Direct Recruit Class-II Engineering Officers' Association & ors. v. State of Maharashtra & ors.Referred¶3
Direct Recruit Class-II Engineering Officers' Association & ors. v. State of Maharashtra & ors., AIR 1990 SC 1607 · Who else cites this
Ram Sevak Yadav v. the State of Bihar & ors.Relied on¶4
Ram Sevak Yadav v. the State of Bihar & ors., 2013(1) PLJR 964
Secretary, State of Karnataka v. Uma Devi & ors.Explained¶6
Secretary, State of Karnataka v. Uma Devi & ors., (2006)4 SCC 1 · Who else cites this
State of Karnataka v. M.L.KesariExplained¶41
State of Karnataka v. M.L.Kesari, (2010)9 SCC 247 · Who else cites this
Awadhesh Kishore Mishra @ Awadh Kishore Mishra
The State Of Bihar Through The Commissioner Cum Principal Secretary, Public Health Engineering Department
The Engineer In Chief, Public Health Engineering Department, Bihar
The Chief Engineer (Mechanical), Public Health Engineering Department
The Chief Engineer (Rural), Public Health Engineering Department, Muzaffarpur
The Executive Engineer, Public Health Division, Sitamarhi
Mihir Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
