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   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

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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).

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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

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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

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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.

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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.

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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.”

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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

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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

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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

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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