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2019 Supreme(Pat) 758
IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Md. Sairul Son of Late Damodar Miyan & Ors. - Petitioners
Versus
The State of Bihar through the Principal Secretary, Department of General Administration earlier known Personal Administrative Reforms, Govt. of Bihar, Patna & Ors. - Respondent
Civil Writ Jurisdiction Case No.18023 of 2019 with Civil Writ Jurisdiction Case No. 18539 of 2019
Decided On : 14-10-2019
For the Petitioners: Mr. Jitendra Kumar Roy, Mr.Ravindra Nath Dubey, Advs.
For the Respondents: Mr.Md. N.H. Khan, SC-1, Mr.Fazle Karim, AC to SC-1, Mr. Anant Prasad Singh, SC-15
The main legal point established in the judgment is that illegal appointments cannot be regularized, and the right to be permanently absorbed in service cannot be enforced unless there is a legal right and obligation of the employer.
Headnote:
Regularization - Public Employment - (1979) 4 SCC 507 - The judgment discusses the distinction between irregular and illegal appointments and the possibility of regularization in public employment. It highlights the significance of the Constitution Bench decision in State of Karnataka vs. Uma Devi(3), (2006) 4 SCC 1, and the principles laid down in subsequent Supreme Court decisions. The court emphasizes that illegal appointments cannot be regularized, and the right to be permanently absorbed in service cannot be enforced unless there is a legal right and obligation of the employer.
Fact of the Case:
The petitioners, who were engaged as daily-wage employees, sought regularization of their services based on government policy decisions. They claimed that the State Government's failure to take steps for regularization was a violation of their rights.
Finding of the Court:
The court dismissed the writ applications, stating that the initial engagement of the petitioners was not constitutionally permissible, and the question of regularization did not arise as they were not working after 1990. The court held that the petitioners could not claim reinstatement and regularization as a right under Article 226 of the Constitution of India.
Issues: The main issues were the possibility of regularization of the petitioners' services as daily-wage employees and the State Government's obligation to consider their cases for appointment and regularization.
Ratio Decidendi: The court emphasized that illegal appointments cannot be regularized, and the right to be permanently absorbed in service cannot be enforced unless there is a legal right and obligation of the employer. It also highlighted the distinction between irregular and illegal appointments and the principles laid down in the Constitution Bench decision in State of Karnataka vs. Uma Devi(3), (2006) 4 SCC 1, and subsequent Supreme Court decisions.
Final Decision: The writ applications were dismissed as meritless, and no costs were awarded.
JUDGMENT :
More than four decades ago, the Supreme Court, in case of B. Nagrajan vs. State of Karnataka, reported in (1979) 4 SCC 507, in clear terms, decided the distinction between irregular and illegal appointments. This has been consistent judicial approach that something, which is illegal, cannot be regularized or validated in the matter of public employment, though an irregularity can be regularized. Since, in both the writ applications, common question has arisen, as to whether this Court, exercising writ jurisdiction under Article 226 of the Constitution of India, may direct regularization of services of the petitioners on the ground that they had worked as daily-wage employees under the Departments of the State Government for a long period of time, they have been heard together and are being disposed of by present common judgment and order.
2. Facts of the two cases need to be briefly taken note of before addressing the relief, which the petitioners are seeking, in the background of various judicial pronouncements.
3. There are seven petitioners in C.W.J.C. No. 18023 of 2019, who claim that they were engaged on daily-wage basis in the office of the Executive Engineer, Irrigation Division, Saharsa, discharging their duties as Gauge Reader and Canal Chowkidar prior to 1990. According to them, there was a policy decision of the State Government, contained in Resolution No. 5940 dated 18.06.1993, which stipulated that such daily-wage employees, who were engaged prior to 01.08.1985, would be given the benefit of regularization. Subsequently, the State Government came out with another resolution, issued by Memo No. 489 dated 10.05.5005, whereby the cut off date was extended from 01.08.1985 to 11.12.1990. By yet another resolution, issued by Memo No.369 on 16.03.2006, the State of Bihar decided to allow the benefit of regularization to all such daily-wagers, who had worked for a minimum period of 240 days prior to 11.12.1990. Claim of the petitioners for regularization is apparently based on the said Resolution dated 16.03.2006, which has been brought on record by way of Annexure-2.
4. It is significant to note that the pleadings do not indicate the specific periods during which the petitioners had worked as daily-wage employees. There is no statement that they ever worked after 1990. They have a grievance that the District Magistrate, Supaul, is not taking a final decision to regularize their services after preparation of a panel of such daily-wage employees, who deserve regularization in terms of the decision of the State Government as contained in Resolution dated 16.03.2006. There is no averment in the writ application that any selection process was ever undertaken in conformity with Articles 14 and 16 of the Constitution of India at the time of their engagement on daily-wage basis prior to 1990.
5. There are 84 petitioners in C.W.J.C. No. 18539 of 2019. It has been stated in paragraph 12 of the writ application that they had been working under Shahabad Forest Division (Rohtas Forest Division) till 1990 and according to them, the respondents are not taking required steps for regularization of their services. The petitioners have not brought on record any engagement/appointment letter.
6. On the basis of above stated facts, the petitioners of C.W.J.C. No. 18023 of 2019 are seeking the following relief : -
“That this is an application for issuance of an appropriate writ order or direction to the respondent authorities specially the respondent no.3 to complete the process of regularization of the petitioners who were earlier working on daily wages in the office of respondent no. 6 pursuant to a Govt. policy decision issued under the signature of respondent no.1 vide letter no.639 dated 16.3.2006 and the subsequent direction but inspite of submission of the list prepared by the respondent no.6 dated 6.1.2009 of 48 daily wages employees who worked prior to 11.12.1990 at least 240 days that includes the name of petitioners, but only
