The main legal point established is that daily wagers may not qualify for consideration under certain statutory provisions, but the court may direct the relevant authority to consider their case based on other factors such as experience and necessity.

NAVANITI PRASAD SINGH, J.

The Bihar School Examination Board (for short the Board) is in this intra-court appeal assailing the judgment and order dated 19.06.2013, passed in C.W.J.C. No. 20210 of 2012 whereby learned Single Judge allowed the writ petition filed by the respondents herein and directed their absorption with full continuity with the Board. The Board challenges the correctness of the judgment on a very short ground. With the consent of parties as all parties are represented, we have heard them for final disposal of the appeal at this stage itself.

The facts are not in dispute. The writ petitioners-respondents admittedly were working as daily wagers though for more than a decade in the Bihar Intermediate Education Council (for short the Council) as Assistants and Routine Clerks.

In 2007, State Government decided to abolish the Council and subsequently to entrust the Board with the duties of supervising and conducting courses leading to intermediate qualification. Accordingly, Bihar Intermediate Examination Council (Repeal) Act, 2007 was passed; Section 3 thereof was a transitory provision safeguarding the interest of the employees of the erstwhile Council. It, inter alia, provided that all the employees, who were working in the Council, would be deemed to be continuing to work, as such, notwithstanding repeal and abolition of the Council. A statutory Committee would be set up to look into their status and their placement in any Government position or Government control body and be absorbed therein.

According to the writ petitioners-respondents herein, a Five Men Committee was formed by the Government and the Committee wrongly rejected the case of the writ petitioners respondents for absorption in terms of Section 3 of the said Act.

The learned Single Judge, in the writ proceedings, allowed the writ petition with a direction to the State to absorb the writ petitioners respondents, hence, this intra-court appeal.

Sri Satyabir Bharti, learned counsel appearing in support of the appeal and for the Board submits that before the learned Single Judge the report of the Five Men Committee was brought on record. The report clearly showed that the writ petitioners-respondents had been working for over a decade but as against non-sanctioned posts. It was also brought on record the fact that the Chairman of the Board had requested recently the Government, to sanction the posts for absorption of the writ petitioners and their likes in view of the fact of their experience gained for over a decade. Sri Bharti drew our attention to these facts to show that being appointed as a daily wager against non-sanctioned post they would not fall within the term ‘employee’ under Section 3 of the Repealing Act. He further draws our attention to the case of Nand Kumar Vs. State of Bihar and others since reported in (2014) 5 SCC 300 dealing with a pari material provision as contained in the Bihar Agricultural Produce Market (Repeal) Act, 2006 wherein Section 6 was in pari materia to Section 3 herein. The Apex Court affirming the Division Bench judgment of this Court clearly held that daily wagers would not qualify for consideration under Section 3 of the Market Repeal Act. Parity of reasoning would, thus, apply.

On the other hand, Sri Siya Ram Shahi, learned counsel appearing on behalf of the writ petitioners-respondents herein submits that it is not disputed by the Five Men Commission that the writ petitioners had been working in some cases for almost 20 years and, therefore, now to deprive them of the benefit, specially when the same work is to be done now by the Board, and though the same work would be taken by the Board, would be unjust and arbitrary. He further submits that even otherwise the State Government in view of resolution bearing Memo No. 639 dated 16.03.2006 should consider absorbing the writ petitioners.

He further drew our attention to the letter of the Chairman of the Board to the State Government which points to the plight of