RAM AYODHYA MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) ON 26th January, 1950, the Constitution was adopted. By reason of Article 16 contained in the Constitution, the procedure for appointment in Government posts stood changed to the extent as prescribed in Article 16. That itself is a mandate of the Constitution. Any law made before adoption of the Constitution to the extent the same is contrary to Article 16 of the Constitution, stood repealed to the extent the same was contrary to Article 16. After the Constitution was adopted, no law maker had any right to make any law contrary to Article 16 of the Constitution. The mandate of Article 16 is simply to select the best among all others. It says nothing more than that. This is what is the minimum requirement of giving appointment in a Government post. In 1974, the Government of Bihar, was alarmed by the fact that the daily wage workers are being appointed for meeting exigency of certain works and those workers, who are permitted to work for more than 240 days in a calendar year, are claiming regularisation and accordingly by a Circular or an Instruction dated 16th March, 1974, the Government directed that only menial workers can be appointed on daily wage basis for a period not exceeding 100 days and if requirement is more than 100 days for such a worker, specific permission should be obtained.

(3.) LEARNED counsel for the petitioner has cited a judgment of a learned Single Judge of this Court in the case of Surendra Prasad Singh and others vs. The State of Bihar and others reported in 2005(1) PLJR 88. In addition to that the learned counsel for the petitioner has also cited another judgment of another learned Single Judge of this Court in the case of Surya Kant Jha vs. The Administrator, Patna Municipal Corporation and others reported in 2004(1) PLJR 366. He lastly cited a decision of this Court again of a learned Single Judge in the case of Bihar Fruit and Vegetable Development Corporation, Patna vs. State of Bihar and others reported in 1994(1) PLJR 377. In none of these judgments the court made any endeavour to ascertain whether the appointments given or the assignments of the works were valid or invalid. It was not pronounced that despite those appointments or assignments of work being invalid, the appointees are entitled to be regularized on such posts. Further more, the test of Article 16 had not been applied in any of those judgments. Those judgments, therefore, will not help the petitioner at all. As aforesaid, the settled law of the land is, if an appointment is made in breach of the provisions of Article 16 of the Constitution, such appointment is not an irregular, but is an invalid appointment and where a person gains entry through back door and continues in service, and later on by reason of such continuance claims regularisation, the matter is to be viewed in the light of the provisions of Article 16 of the Constitution and when the appointment itself is void, the one and the only conclusion would be that there cannot be any question of regularisation of such appointment.