M.Y.EQBAL, J. - (1.) THIS Letters Patent Appeal is directed against the judgment and order dated 9.8.2006 whereby the writ petition being W.P. (S) No. 1877 of 2002 filed by the petitioner for regularization and/or absorption of his service has been dismissed by the learned single Judge holding that the petitioner was not appointed against any post after following the procedure of appointment. The impugned judgment/order reads as under: Admittedly the petitioner was engaged on daily wage and thereby he had no right to hold any post. He was not appointed against any post after following the procedure as such advertisement, interview and recommendation of the Selection Commission. In this background no direction can be given to regularize his services. This writ petition is accordingly dismissed.
(2.) THE case of the petitioner -appellant is that in the year 1983, the petitioner, having come to know about the vacancy in Class -IV post in Public Health Engineering Department, applied for the said post. The respondent No. 4 - -the Deputy Commissioner, Godda allowed the petitioner to work on muster roll in the said department and a letter dated 12.4.1983 was issued. Pursuant to that order of the Deputy Commissioner, the petitioner joined on muster roll in 1983 in Public Health Engineering Department and worked with full satisfaction of the respondents -authorities. In 1987, since some Class -IV post was lying vacant in the Public Health Engineering Department, Godda (in short "PHED"), the Executive Engineer recommended the case of the petitioner for appointment in Class -IV post vide letter dated 23.12.1987. The petitioner's case is that his case was again recommended by the Superintending Engineer, PHED to the Chief Engineer for appointment on Class -IV post vide letter dated 11.1.1988. The Chief Engineer vide letter dated 31.8.1990 asked the Superintending Engineer, PHED, to take decision himself for adjustment of the services of the petitioner. The petitioner's case is that his services has not been regularized till date and he has been continuously working since 1.7.1983. In the year 2000, the services of the petitioner were converted from Muster Roll to Hand Receipt and he has been presently working as khalasi in Pathargama Water Supply Scheme. Respondents in their counter affidavit have stated that Drinking Water and Sanitation Department consists of two establishments. One is regular establishment which includes office staff i.e. peon, clerk and engineering staff. Another establishment is called work -charged establishment. This includes junior staff who are directly engaged with the Water Supply works i.e. khalasi, pump operator, mistri, filter operator, etc. The post in the regular establishment is duly sanctioned by the Government, whereas work -charged posts are temporary and not duly sanctioned by the Government. It is further admitted that the petitioner has been working in the Water Supply Scheme in the work -charged establishment under Drinking Water and Sanitation Division, Godda on the post of Muster Roll khalasi since 1983. In paragraph 6 of the counter affidavit, it is stated that for the regularization/regular appointment of the daily wage/muster roll employees, provisions have been laid down in the Personnel and Administrative Department resolution dated 18.6.1993, according to which those daily wages employees who have been working for 240 days before 1.8.1985 have to be given preference over outsiders in regular appointment. However, it is stated that in absence of regular post, no regular appointment can be made. The respondents' further case is that there is a vacant post in regular establishment and name of the petitioner was recommended for regularization of services, but his services were not regularized for the reason that there was ban on appointment of Class -IV employees. The respondents have also stated that Chief Engineer, PHED, Bhagalpur issued instruction for regularization of the services of the petitioner, but in view of the Government decision, the department is unable to regularize the services of the petitioner.
(3.) THE only question, therefore, that falls for consideration is as to whether in the facts and circumstances of the case, the petitioner is entitled for regularization or absorption of his services in Class -IV post.;