The prerogative of the government in creating and abolishing posts, financial constraints, and the need for a fair and practical approach to regularisation.

1. The appeal under Clause 10 of the Letters Patent of the Patna High Court has been preferred against the order dated 28-6-2000, passed by a learned Single Judge of this Court in CWJC No. 4563 of 1998 (Vijay Kumar Jha V/s. State of Bihar), whereby the appellant (the State of Bihar) has been directed to consider the claim of the three petitioners for regularisation against sanctioned posts.

2. The three petitioners claim to be working on daily wages as class IV employees in the Revenue and Land Reforms Department, Government of Bihar, since 1983, and pray that the State Government may be directed to regularise their services against sanctioned class IV posts. They had earlier moved this Court for the same relief by preferring CWJC No. 10791 of 1994 (Vijay Kumar Jha V/s. State of Bihar) and the analogous writ petitions. The case of the petitioners was that a panel was prepared for appointment against class IV posts after advertisement and following the selection process. The stand of the State Government was that there was no advertisement for appointment of peons, and the panel was prepared on the basis of the names forwarded by the Employment Exchange, Patna, which was named as Ummidwar Peons, so that persons may be engaged when need arose on daily wage basis, and the names of the petitioners were included therein. CWJC No. 10791 of 1994 was disposed of by a learned Single Judge of this Court by his order dated 1-11-95 (Annexure 10 to the writ petition), whereby the respondents were directed to take a final decision within three months from the date of receipt of a copy of this order. Following is the operative part of.the order:...

... The petitioners are not in a position to produce before this Court a copy of advertisement which according to them was issued for the appointment of regular Peons. In the absence of relevant materials, it would not be safe for me - to record any finding on the question. However, since the matter is under consideration of the Government and the Government has before it all necessary materials. I direct the respondents to take a final decision in the matter within a period of three months from the date on which a copy of this order is produced before respondent ....

These writ petitions are disposed of accordingly.

3. The State Government took the decision on 21-2-1997 (Annexure 12 to the writ petition), whereby, it has been decided that the petitioners shall be considered against vacancies in regularly sanctioned posts as arid when they occur, Keeping in view the provisions laid down in the Government Circular No. 5940, dated 18-6-93, and also keeping in view the policy of reservation laid down by the Government. According to the petitioners, the services of the petitioners have not been regularised in spite of the said decision of the State Government. Hence the present CWJC No. 4563 of 1998. As stated above, the same has been allowed by a learned Single Judge of this Court by his order dated 28-6-2000, whereby the concerned respondents have been directed to consider the claim of the petitioners for regularisation against vacancies in sanctioned posts notwithstanding the Circular dated 10-4-86 (Annexure A to the counter affidavit of the State of Bihar in the writ petition), within a period of three months. The State Government has appealed.

4. While pressing this appeal, learned Counsel for the appellants submits that the Government circular dated 10-4-1986 (Annexure A to the counter affidavit) creates a bar to the regularisation of peons. There is paucity of sanctioned vacancies. Furthermore, the State Government has taken the decision on 12-8-99 that out of 93 regular posts of peons, only 51 shall for the time being be filled up. He also submitted that after bifurcation of the State with effect from 15-11-2000, the requirement of the State shall have to be reviewed. In view of the financial constraints of the State Government which are almost acute, the Government is very circumspect