Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
Deo Kant Choudhary, son of late Bhubneshwar Choudhary - Petitioner
Versus
The State of Bihar - Respondent
Civil Writ Jurisdiction Case No.5899 of 2011
Decided On : 27-02-2019
Service Law – Regularisation – Question of regularization in service can be considered when person who is claiming regularization, is in service, when person who is claiming regularization is no longer in service, has been terminated, unless order of termination is set aside and person is declared in continuous in service, only in such a situation, relief for grant of regularization can be considered – In the event of entry in service de hors to proper procedure does not create any right. (Para 14)
Service Law – Regularisation – There is clear distinction between illegal and irregular employment – Persons who have been appointed wrongly in the sense non-compliance of certain procedure which does not go to root of selection process, is irregular and those does not fall in that category rather failure of observe procedure goes to root of matter will be treated to be an illegal appointment – Illegal appointment cannot be regularized – Status of such appointment is nothing but a back door entry which cannot be in any manner said to be a valid appointment – Irregular appointments can be regularized if appointment was made by an authority competent to do so, it was made on a vacant sanctioned post in accordance with Article 14 of Constitution of India with equal opportunity for participation of eligible candidates by competitive selection and candidates must possess eligibility qualifications for a regular appointment to the post – Appointment must not have been doled out to appointee alone and person must have continued in service over ten years without intervention of any courts' order – An illegal appointment is void ab initio as made contrary to mandate of Article 14 without open competitive selection cannot be regularized under any circumstances. (Paras 17 and 19)
Service Law – Termination – Petitioners were earlier appointed as daily wagers – First step, entry of petitioners as daily wagers must create some semblance of right to claim regularization in service, only in next step same may be considered – But, in present case, subsequent engagement of these petitioners does not satisfy condition of proper procedure followed for selection and recruitment of class-IV employees – Appointment on daily wage basis is not a mode of appointment strictly in accordance with law and does not confer any right to claim equivalence as that of regular appointed Government employee – Status of daily wagers and regular employees is not comparable and any appointment de hors to procedure does not create any semblance of right for regularization – Order of regularization may be directed in the event person is still in service and once it comes to an end either by efflux of time or as per the terms of contract of employment or termination effected by employer, then in such event, relationship of employee and employer comes to an end, no longer subsists, except for limited purpose to examine legality and correctness of termination order – Writ petition dismissed. (Paras 14, 21, 30, 32 and 33)
JUDGMENT :
Heard learned counsel for the parties.
2. The petitioners are daily wage employees, making a prayer for quashing the orders contained in memo nos. 569 dated 28.01.2011, memo no.519 dated 19.01.2011, memo no.419 dated 26.10.2010, memo no.517 dated 19.01.2011 and memo no.538 dated 22.01.2011, which have been passed in pursuance of the order passed in different writ petition viz. C.W.J.C. No.17234 of 2011, 17474 of 2010, 11032 of 1998 and other analogous cases as well as C.W.J.C. No. 17315 of 2010, 4171 of 1999 and other analogous cases, thereby the representations of the petitioners have been rejected.
3. The short facts of this case are that the petitioners were appointed as daily wage employees in the Bihar School Examination Board and they have continued to discharge their duties, but a decision was taken vide Annexure-6 to terminate the services of all daily wages employees and in pursuance thereof, the petitioners along with other daily wager employees were terminated with effect from 21.07.1989. Whereafter, an advertisement dated 14.09.1989 was published for recruitment and appointment of class-III and IV posts, which was challenged by the petitioners in C.W.J.C. No.8440 of 1989, but this Court had refused to grant the benefit and directed the Board to accept their application provisionally with the condition that the petitioners would produce their requisition certificate within the employment exchange within a fortnight from the date of passing of the order. While disposing of the writ petition, the Court had directed the respondents to grant relaxation of age with respect to the eligibility of their appearance in the said examination. In pursuance thereof, the examination was conducted, in which the petitioners and others have appeared, they were declared successful along with others, but the authority did not grant any appointment letter to Class- III and IV employees, which compelled them to approach this Court in C.W.J.C. No. 750 of 1999 and other analogous cases, in which they have taken a plea that though the advertisement was published for appointment of Class-III and IV employees, at the same time, the selection process for appointment of Drivers and Stenos was also started. After the result, the Stenos and Drivers were appointed by the Board, but the petitioners were not appointed. The Court has considered the matter in the light of the report submitted by the Committee constituted by the Court. The said Committee gave its finding that the work of the Board has decreased as well as the Bihar Intermediate Council has already been abolished and their employees has to be adjusted in the Board, additionally recorded that the Board is suffering from over-staffs and as such, the question of granting the appointment letter to the selected candidates of Class III and IV does not arise and finally the Court has refused to issue the mandamus. It will be useful to quote relevant paragraphs of the said judgment, which are as follows:-
It has also been contended that once the Board has published the advertisement, the same has to be taken to its logical end; meaning thereby that it must culminate in appointment. In support of the aforesaid decision, reliance has been placed on a Bench decision of this Court in the case of Rajendra Sharma v. Bihar State Electricity Board [2008(1) PLJR 679] and our attention has been drawn to paragraph 6 of the judgment, which
SupremeToday
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
