Jitendra Kumar Vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10558 of 2024

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Jitendra Kumar Son of Shri Satyanarayan Ray, Resident of Village - Tersiya, Terahrasia, Police Station - Vaishali, District- Vaishali at Hajipur.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Principal Secretary, Department of Health, Government of Bihar, New Secretariat, Patna.

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The Director-in-Chief, Health Services, Department of Health, Government of Bihar, Patna.

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The Civil Surgeon, Vaishali, Department of Health, Government of Bihar.

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The Superintendent, Sadar Hospital, Hajipur, Vaishali.

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The Dy. Superintendent-cum-Public Information Officer, Sadar Hospital, Hajipur, Vaishali.

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Manager, Sadar Hospital, Hajipur, District - Vaishali.

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The Secretary, Healthline, East of Yogipur Shiv Mandir, Lohia Nagar, Kankarbagh, Patna - 20.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Rabindra Kumar Priyadarshi, Adv. For the State : Mr. Mujtabaul Haque, G.P.-12, Mr. Vasant Vikas, AC to GP-12

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

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ORAL JUDGMENT

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Date : 16-07-2024

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The petitioner was engaged through an outsourcing Agency to work as a Compounder since 2017 at Sadar Hospital, Hajipur. It is found from a letter issued by the Public Information Officer, on the basis of R.T.I. application, that the petitioner has been working from the month of May, 2017. On being appointed by the Healthline, a outsourcing Agency, the monthly salary of the petitioner is paid to the outsourcing Agency and the outsourcing

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Patna High Court CWJC No.10558 of 2024 dt.16-07-2024 2/6

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Agency is used to pay the amount to the petitioner. Thus, the petitioner is not an employee of the Health Department, Government of Bihar. The petitioner has prayed for regularization of his service in the light of a decision passed by a Coordinate Bench in C.W.J.C. No. 19145 of 2021 on 13^th March, 2024 (Prashant Kumar Vrs. The State of Bihar & Ors.) .

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The petitioner submits that the instant writ petition may be disposed of in the same line as decided by the Coordinate Bench, if there is any vacancy available in the Health Department.

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The petitioner does not have any vested right to claim regularization in respect of the vacant posts because he is absolutely contractual employee. He was not appointed on contractual basis by the Health Department, Government of Bihar. However, his service is accepted by the Department of Health through different Hospitals on being engaged by outsourcing Agency.

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It is needless to say that there are number of outsourcing Agency operating in different establishments of the Government of Bihar. The employees, who being appointed as contractual employees or daily wage workers render their service to the Government establishment. However, for rendering service

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Patna High Court CWJC No.10558 of 2024 dt.16-07-2024 3/6

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to the Department, they are not automatically entitled to be regularized in respect of the vacancies.

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The petitioner is not the holder of any civil post, nor he is a Government servant of the Health Department in which he has been appointed on contract basis for specified period. Therefore, he cannot claim any equitable relief under Article 226 of the Constitution of India.

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The instant writ petition is liable to be dismissed.

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However, from the letter dated 8^th August, 2020, it is found that the petitioner is getting salary @ Rs. 8342/-. The Health Department/Hospital authority has been paying the said amount from public exchequer to the outsourcing Agency and the outsourcing Agency pays the said amount to the petitioner and similarly placed workers. Since the petitioner render service to the Government Department, he and other similarly situated contractual employees are entitled to a salary/honorarium/stipend @ stipulated under the Minimum Wages Act. Non payment of salary, mentioned in the Minimum Wages Act, and acceptance of service from the said contractual employees is unfair, unjust and coercive in nature on the part of the State.

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Patna High Court CWJC No.10558 of 2024 dt.16-07-2024 4/6

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8. In Daily Rated Casual Labour employed under P &

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T Department Vrs. Union of India , reported in (1988) 1 SCC 122 , the Honble Supreme Court observed:-

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“We are of the view that such denial amounts to exploitation of labour. The government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. That he has done so because he has no other choice. It is poverty that has driven him to that state. Government should be a model employer. We are of the view that on the facts and in the circumstances of this case classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to the employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable."

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“This question of utilizing the services of casual labour for years together without their regularisation was considered by the Supreme Court in Gujarat Agricultural University v Rathod Labhu Bechar , reported in 2001 (AIR) SCW, 351 , where the Court held that where such employees have been in continuous service of 10 years with not less than 240 days a year they are entitled to be regularised. On the plea of lack of fund and huge workforce to be regularised the Court

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Patna High Court CWJC No.10558 of 2024 dt.16-07-2024 5/6

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said that they are to be balanced. On the point of opposition that many of the casual employees may not have the requisite qualification, the Court said that the impediment of lack of requisite qualification should be overcome by taking into consideration of long experience.”

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In the instant matter, this Court unfortunately comes across the oppressive and exploiting nature of the State where the State Government has been receiving the services of casual workers, appointing them in different Departments, at a rate of wages below the Minimum Wages, prescribed under the Minimum Wages Act and the notification issued by the State Government time to time. This cannot be permitted.

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In view of such circumstances, while dismissing the instant writ petition the respondents authorities are directed to take necessary measure within 30 days from the date of this order so that petitioner and similarly placed employees can get their salary under the Minimum Wages Act.

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It is made clear that this order is not binding upon the respondents only, the order is binding to all Departments and establishments, who have engaged and obtained services of persons through outsourcing Agencies.

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Patna High Court CWJC No.10558 of 2024 dt.16-07-2024 6/6

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Therefore, a copy of this order be sent to the Chief Secretary, Government of Bihar for direction to the different Departments and establishment for making necessary arrangement for payment of salary/honorarium/stipend to the outsourcing daily wage workers @ recent circular published by the State Government under the Minimum Wages Act.

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A copy of this order be also sent to the Registrar General of the High Court of Judicature at Patna for information and compliance in respect of the outsourcing daily wage workers.

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Compliance report be submitted within 30 days from the date of this order.

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(Bibek Chaudhuri, J)

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pravinkumar/-

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Jitendra Kumar v. The State of Bihar

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