1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.19846 OF 2017
(ARISING OUT OF SLP (C) No.31638 of 2016)
Raj Balam Prasad & Ors. ...Appellant(s)
VERSUS
State of Bihar & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) The appeal is filed against the final judgment
and order dated 29.02.2016 passed by the High
Court of Judicature at Patna in Letters Patent
Appeal No.1760 of 2012 whereby the Division Bench
of the High Court allowed the appeal filed by the
respondents herein by setting aside the order dated
2
08.05.2012 of the Single Judge in C.W.J.C. No.4247
of 2012 which allowed the appellants’ writ petition
and issued a writ of mandamus directing the State
to regularize the services of the appellants on the
post of “Muharrirs” .
3) The controversy involved in the appeal is
confined to short facts, which, however, need
mention hereinbelow to appreciate the same.
4) The short question, which arises for
consideration in this appeal, is whether the Division
Bench of the High Court was justified in dismissing
the appellants’ writ petition by allowing the intra
court appeal filed by the respondents herein and
reversing the order of the Single Judge which had
allowed the appellants’ writ petition by issuing a
mandamus directing the State(respondents) to
regularize the appellants on the post of “Muharrir”.
5) Eight (8) persons were appointed on the post of
“Muharrir” in the Office of Collector, Saran Chpara
(Bihar) in the year 1987-88 by the State (Collector).
3
These eight persons included present four (4)
appellants herein. The appointment of these eight
persons was made as temporary appointment for a
period of three months. These appointments were
made by the authority concerned by taking recourse
to the powers under Rule 57-A of the Bihar
Certificate Manual, the instructions issued under
the Bihar and Orissa Public Demand Recovery Act
(hereinafter referred to as “the Act”).
6) These temporary appointments were made for
disposal of several pending certificate cases, which
could not be disposed of for want of adequate hands
available in the office. However, the services of the
eight persons were extended for sometime by
issuing extension orders. It was up to the year
1991.
7) These eight Muharrirs filed a writ petition
(C.W.J.C. No. 5142 of 1991) in the High Court at
Patna claiming therein a relief for their
regularization in services as Muharrir. By order
4
dated 03.04.2001, the Single Judge disposed of the
writ petition by granting liberty to the writ
petitioners to submit their representation to the
Competent Authority to enable them to examine
their grievances on the question of regularization in
service.
8) The writ petitioners (8) felt aggrieved and filed
intra court appeal. The Division Bench dismissed
the appeal (L.P.A. No.434 of 2001) by order dated
28.07.2007 but further made pertinent observations
and, in consequence, also issued directions.
9) In the opinion of the Division Bench, when the
services of the writ petitioners had come to an end
on 03.06.1991 and 19.06.1991 and when these two
orders were not stayed by the Writ Court (Single
Judge) in the writ petition filed by the writ
petitioners then how the writ petitioners could
continue in services even as daily wagers thereafter
and how some of the writ petitioners were able to
get their services regularized from 10.10.2006. The
5
Division Bench, therefore, while expressing their
concern directed the State Vigilance Department to
look into the matter and take appropriate steps in
accordance with law.
10) As mentioned above, in the meantime, out of
eight Muharrirs, the services of five Muharrirs
including one more person by name Mr. Sugriev
Singh were regularized by order dated 10.10.2006.
11) The writ petitioners, whose services could not
be regularized, felt aggrieved and filed SLP in this
Court. This Court dismissed the SLP and granted
liberty to the petitioners to file representations to
the concerned authority for ventilating of their
grievance.
12) It is not in dispute that the Competent
Authority, by order dated 15.01.2012, rejected the
representation made by the appellants stating
therein that since their services had already come to
an end in 1991, no orders for their regularization
could now be passed.
6
13) These persons then filed another round of writ
petition (C.W.J.C. No.4247 of 2012) and claimed the
same relief of regularization in the services by
basing their case on one Circular dated 16.04.2008.
The Single Judge allowed the writ petition by order
29.08.2011 and issued a mandamus against the
State and the concerned department to regularize
the services of the appellants on the post of
Muharrirs.
14) The respondents herein (State and the
concerned departments) felt aggrieved and filed
intra Court appeal before the Division Bench. By
impugned judgment, the Division Bench allowed the
State's appeal and dismissed the appellants’ writ
petition. It is against this judgment, the writ
petitioners have felt aggrieved and filed this appeal
by way of special leave before this Court.
15) Heard Mr. Praneet Ranjan, learned counsel for
the appellants and Mr. Manish Kumar, learned
counsel for the respondents.
7
16) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in this appeal. In our opinion, the
view taken by the Division Bench appears to be just,
legal and proper and hence does not call for any
interference.
17) This is what the Division Bench held for
allowing the appeal and dismissing the appellants’
writ petition:
“We have heard learned counsel for the
parties and find that the order passed by the
learned Single Judge is not sustainable in
law. The order passed in LPA No.434 of 2001
dated 28th of July, 2008 was not brought to
the notice of the learned Single Judge. It is
further contended that even if the order
dated 10.10.2006 was not have set aside, the
fact remains that such order of regularization
could not have been passed since the services
of the Muharrir have come to an end in 1991
itself. The permanent status could be
conferred to those who were in service and
not to those whose service had come to an
end many years ago. Such an order could not
be made basis of permanent status through
the writ court. Such order dated 10.10.2006
is not enforceable in law. The representation
having been declined in the light of the
circular dated 16.04.2008, we do not find
that the writ petitioners were entitled to any
direction to treat them as regular
employees.”
8
18) We agree with the reasoning of the Division
Bench quoted supra.
19) In our opinion also, when the appointment of
the appellants (writ petitioners) was made for a fixed
period in exercise of the powers under Rule 57-A
and the said appointment period having come to an
end in the year 1991 after granting some extension,
we fail to appreciate as to how the appellants could
claim to remain in service after 1991.
20) One cannot dispute that the State has the
power to appoint persons for a temporary period
under the Act and Rules framed thereunder and
once such power was exercised by the State, the
status of such appointee continued to be that of
temporary employee notwithstanding grant of some
extensions to them for some more period.
21) In other words, the grant of extension to work
for some more period to the writ petitioners could
never result in conferring on them the status of a
permanent employee or/and nor could enable them
9
to seek regularization in the services unless some
Rule had recognized any such right in their favour.
22) That apart, when the period fixed in the
appointment orders expired in the year 1991 then
there was no scope for the appellants to have
claimed continuity in service for want of any
extension order in that behalf.
23) We have perused the Circular dated
16.04.2008 (Annexure P-7) issued by the State.
This Circular only says that if any temporary
persons are appointed for a particular project and if
they are found to be of some utility, their services
can be regularized as per Rules.
24) As mentioned above, so far as the cases of
these appellants are concerned, their
representations were examined by the State but
were rejected finding no merit therein. One of the
reasons for rejection of the representation was that
the services of the appellants had already come to
an end in 1991 and, therefore, no orders to
10
regularize their services could now be passed after
such a long lapse of time.
25) As rightly observed by the Division Bench in
the impugned judgment, the earlier order of the
Division Bench in which a vigilance inquiry was
ordered to find out as to how an order of
regularization could be passed in favour of some
Muharrirs was not brought to the notice of the
Single Judge which led him to allow the appellants’
writ petition.
26) Learned counsel for the appellants, however,
argued vehemently that the order of the Single
Judge deserves to be restored by setting aside the
impugned judgment of the Division Bench as the
same is based on proper reasoning but in the light
of what we have held supra, we cannot accept his
submission. In our opinion, the Division Bench was
right in setting aside of the order of the Single Judge
and we concur with the reasoning and the
11
conclusion of the Division Bench. In addition, we
have also given our reasoning in support thereof.
27) In the light of foregoing discussion, we find no
merit in the appeal, which thus fails and is
accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 27, 2017
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.19846 OF 2017
(ARISING OUT OF SLP (C) No.31638 of 2016)
Raj Balam Prasad & Ors. ...Appellant(s)
VERSUS
State of Bihar & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) The appeal is filed against the final judgment
and order dated 29.02.2016 passed by the High
Court of Judicature at Patna in Letters Patent
Appeal No.1760 of 2012 whereby the Division Bench
of the High Court allowed the appeal filed by the
respondents herein by setting aside the order dated
2
08.05.2012 of the Single Judge in C.W.J.C. No.4247
of 2012 which allowed the appellants’ writ petition
and issued a writ of mandamus directing the State
to regularize the services of the appellants on the
post of “Muharrirs” .
3) The controversy involved in the appeal is
confined to short facts, which, however, need
mention hereinbelow to appreciate the same.
4) The short question, which arises for
consideration in this appeal, is whether the Division
Bench of the High Court was justified in dismissing
the appellants’ writ petition by allowing the intra
court appeal filed by the respondents herein and
reversing the order of the Single Judge which had
allowed the appellants’ writ petition by issuing a
mandamus directing the State(respondents) to
regularize the appellants on the post of “Muharrir”.
5) Eight (8) persons were appointed on the post of
“Muharrir” in the Office of Collector, Saran Chpara
(Bihar) in the year 1987-88 by the State (Collector).
3
These eight persons included present four (4)
appellants herein. The appointment of these eight
persons was made as temporary appointment for a
period of three months. These appointments were
made by the authority concerned by taking recourse
to the powers under Rule 57-A of the Bihar
Certificate Manual, the instructions issued under
the Bihar and Orissa Public Demand Recovery Act
(hereinafter referred to as “the Act”).
6) These temporary appointments were made for
disposal of several pending certificate cases, which
could not be disposed of for want of adequate hands
available in the office. However, the services of the
eight persons were extended for sometime by
issuing extension orders. It was up to the year
1991.
7) These eight Muharrirs filed a writ petition
(C.W.J.C. No. 5142 of 1991) in the High Court at
Patna claiming therein a relief for their
regularization in services as Muharrir. By order
4
dated 03.04.2001, the Single Judge disposed of the
writ petition by granting liberty to the writ
petitioners to submit their representation to the
Competent Authority to enable them to examine
their grievances on the question of regularization in
service.
8) The writ petitioners (8) felt aggrieved and filed
intra court appeal. The Division Bench dismissed
the appeal (L.P.A. No.434 of 2001) by order dated
28.07.2007 but further made pertinent observations
and, in consequence, also issued directions.
9) In the opinion of the Division Bench, when the
services of the writ petitioners had come to an end
on 03.06.1991 and 19.06.1991 and when these two
orders were not stayed by the Writ Court (Single
Judge) in the writ petition filed by the writ
petitioners then how the writ petitioners could
continue in services even as daily wagers thereafter
and how some of the writ petitioners were able to
get their services regularized from 10.10.2006. The
5
Division Bench, therefore, while expressing their
concern directed the State Vigilance Department to
look into the matter and take appropriate steps in
accordance with law.
10) As mentioned above, in the meantime, out of
eight Muharrirs, the services of five Muharrirs
including one more person by name Mr. Sugriev
Singh were regularized by order dated 10.10.2006.
11) The writ petitioners, whose services could not
be regularized, felt aggrieved and filed SLP in this
Court. This Court dismissed the SLP and granted
liberty to the petitioners to file representations to
the concerned authority for ventilating of their
grievance.
12) It is not in dispute that the Competent
Authority, by order dated 15.01.2012, rejected the
representation made by the appellants stating
therein that since their services had already come to
an end in 1991, no orders for their regularization
could now be passed.
6
13) These persons then filed another round of writ
petition (C.W.J.C. No.4247 of 2012) and claimed the
same relief of regularization in the services by
basing their case on one Circular dated 16.04.2008.
The Single Judge allowed the writ petition by order
29.08.2011 and issued a mandamus against the
State and the concerned department to regularize
the services of the appellants on the post of
Muharrirs.
14) The respondents herein (State and the
concerned departments) felt aggrieved and filed
intra Court appeal before the Division Bench. By
impugned judgment, the Division Bench allowed the
State's appeal and dismissed the appellants’ writ
petition. It is against this judgment, the writ
petitioners have felt aggrieved and filed this appeal
by way of special leave before this Court.
15) Heard Mr. Praneet Ranjan, learned counsel for
the appellants and Mr. Manish Kumar, learned
counsel for the respondents.
7
16) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in this appeal. In our opinion, the
view taken by the Division Bench appears to be just,
legal and proper and hence does not call for any
interference.
17) This is what the Division Bench held for
allowing the appeal and dismissing the appellants’
writ petition:
“We have heard learned counsel for the
parties and find that the order passed by the
learned Single Judge is not sustainable in
law. The order passed in LPA No.434 of 2001
dated 28th of July, 2008 was not brought to
the notice of the learned Single Judge. It is
further contended that even if the order
dated 10.10.2006 was not have set aside, the
fact remains that such order of regularization
could not have been passed since the services
of the Muharrir have come to an end in 1991
itself. The permanent status could be
conferred to those who were in service and
not to those whose service had come to an
end many years ago. Such an order could not
be made basis of permanent status through
the writ court. Such order dated 10.10.2006
is not enforceable in law. The representation
having been declined in the light of the
circular dated 16.04.2008, we do not find
that the writ petitioners were entitled to any
direction to treat them as regular
employees.”
8
18) We agree with the reasoning of the Division
Bench quoted supra.
19) In our opinion also, when the appointment of
the appellants (writ petitioners) was made for a fixed
period in exercise of the powers under Rule 57-A
and the said appointment period having come to an
end in the year 1991 after granting some extension,
we fail to appreciate as to how the appellants could
claim to remain in service after 1991.
20) One cannot dispute that the State has the
power to appoint persons for a temporary period
under the Act and Rules framed thereunder and
once such power was exercised by the State, the
status of such appointee continued to be that of
temporary employee notwithstanding grant of some
extensions to them for some more period.
21) In other words, the grant of extension to work
for some more period to the writ petitioners could
never result in conferring on them the status of a
permanent employee or/and nor could enable them
9
to seek regularization in the services unless some
Rule had recognized any such right in their favour.
22) That apart, when the period fixed in the
appointment orders expired in the year 1991 then
there was no scope for the appellants to have
claimed continuity in service for want of any
extension order in that behalf.
23) We have perused the Circular dated
16.04.2008 (Annexure P-7) issued by the State.
This Circular only says that if any temporary
persons are appointed for a particular project and if
they are found to be of some utility, their services
can be regularized as per Rules.
24) As mentioned above, so far as the cases of
these appellants are concerned, their
representations were examined by the State but
were rejected finding no merit therein. One of the
reasons for rejection of the representation was that
the services of the appellants had already come to
an end in 1991 and, therefore, no orders to
10
regularize their services could now be passed after
such a long lapse of time.
25) As rightly observed by the Division Bench in
the impugned judgment, the earlier order of the
Division Bench in which a vigilance inquiry was
ordered to find out as to how an order of
regularization could be passed in favour of some
Muharrirs was not brought to the notice of the
Single Judge which led him to allow the appellants’
writ petition.
26) Learned counsel for the appellants, however,
argued vehemently that the order of the Single
Judge deserves to be restored by setting aside the
impugned judgment of the Division Bench as the
same is based on proper reasoning but in the light
of what we have held supra, we cannot accept his
submission. In our opinion, the Division Bench was
right in setting aside of the order of the Single Judge
and we concur with the reasoning and the
11
conclusion of the Division Bench. In addition, we
have also given our reasoning in support thereof.
27) In the light of foregoing discussion, we find no
merit in the appeal, which thus fails and is
accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 27, 2017
