JUDGMENT

Shivaji Pandey, J. - Heard both sides.

2. With the consent of parties, both the cases are being heard together as in both the cases identical issue has been raised and, as such, they are being disposed of by a common order.

3. For convenience, the fact mentioned in the case of Rajo Singh and others vs. State of Bihar, C.W.J.C. No. 10305 of 2003 (herein after mentioned as "Rajo Singh case") would be taken into consideration. The Court will also take into consideration the fact mentioned in the case of Ram Krishna Jha and others vs. State of Bihar, C.W.J.C. No. 212 of 2004 (herein after mentioned as "Ram Krishna Jha case"), as and when required.

4. This Full Bench has been constituted on account of difference of opinion having arisen in two cases, recorded in order dated 13/10/2006 passed in C.W.J.C. No. 10305 of 2003 i.e. in the Rajo Singh case, wherein two views on regularisation have been referred to, one expounded in the judgment passed in C.W.J.C. No. 6212 of 1999 in the case of Uma Shankar Rai and others vs. State of Bihar, which has been approved by a Division Bench of this Court vide judgment dated 10.1.2001, passed in L.P.A. No. 1573 of 2000, (State of Bihar vs. Uma Shankar Rai) and the other view explicated in the judgment and order dated 29.4.2005, passed by the Division Bench in L.P.A. No. 1136 of 2004, arising out of C.W.J.C. No. 146 of 1999 (Sapan Kumar Das vs. State of Bihar).

5. The Ld. counsel for both the parties have argued on facts as well as on law and moreover there is no specific point of reference, as such this Full Bench deems it fit & proper to advert to the facts and issue of law involved in the present case and finally adjudicate not only the question of law involved in the present batch of cases but also finally decide both the cases on merits instead of again remanding the matter back to the Single Judge.

6. In L.P.A. No. 1573 of 2000 (Uma Shankar Rai case), the Division Bench has approved the view of learned Single Judge on the issue of entitlement of regularisation from work charge establishment in regular establishment, which had interfered with the order of cancellation of regular appointment dated 02.09.1999, having held that in terms of 1949 Rule as follows:-

"a post in work charge establishment of permanent nature required for 12 months in the year, long and indefinite period, is to be made permanent and to be included in permanent establishment. The man employed on such post, having one year approved service is to be included amongst the permanent Government employee. This has also been held by the Court in the case of Mahesh Prasad Swarnkar and others vs. State of Bihar & Ors. in C.W.J.C. No. 7810/88 & other analogous cases."

7. However, to the contrary, a different view has been taken in L.P.A. No. 1136 of 2004 wherein the Division Bench in its judgment dt. 29/4/2005 has interfered with the order of the State Govt. dt. 3.12.2003, whereby the State Govt. had taken a decision to disengage the persons engaged in work charged establishment due to paucity of funds & non-availability of sanctioned posts as also the order dt. 10.1.2004 cancelling the regularisation in work charge establishment & disengaging such employees. The Division Bench further held that no court can issue a writ of mandamus compelling employer to engage, if it is fund less, workless and post less.

8. The short fact of this case is that petitioners of both the writ applications were appointed on daily wages in between 1980 to 1982 and later on, they were absorbed in the work charge establishment in between 07.12.1984 to 14.03.1986, placed reliance on Memo. No. 565 dated 14.03.1986, the order dt. 15.4.97 passed by a Single Judge in CWJC No. 10686 of 1995, (in the case of Rajo Singh and 31 others, Annexure-8) and sought a direction to regularise their services against Class-III and Class-IV post in the Minor Irrigation Department of the State Government. They have claimed that they had worked in the work charge establ