JUDGMENT
S.N. Jha, J.
1. The dispute in this batch of four writ petitions is common and as such they are disposed of by a common order. The dispute relates to regularization of the petitioners under the Bihar State Housing Board (in short, ‘the Board’). The petitioners seek quashing of the office order of the Board, contained in Memo No. 1631 dated 8.5.2002, by which their services have been terminated. They further seek direction to regularize their services in the work charged establishments on the posts of Chaukidarand Typist-cum-Clerk respectively. There are 14 petitioners in all. Out of them 13 petitioners of CWJC Nos. 6395, 6749, 7432 of 2002 were working on the post of Chaudkidar while the sole petitioner of CWJC No. 8259/2002 was working on the post of Typist-cum-Clerk.
2. The representative facts may be noticed from CWJC No. 6395 of 2002. The case of the petitioners is that they were engaged as Chaukidar under the Board on daily wages in 1980-81. According to them 342 persons in all were engaged on daily wage basis since 1975 on different Class I’ll and IV posts up to 1986-87. Dispute arose with respect to their regularization which travelled upto the Supreme Court in SLP (Civil) No. 11538 of 1988 (giving rise to Civil Appeal No. 766 of 1991). By order dated 13.2.1991 the Supreme Court directed regularization of 257 persons working on daily wages in the work charged establishments. However, the Board regularized only 192 of them. Some of the left out filed CWJC No. 3630 of 1992 in this Court. On 29.8.1997 the petition was disposed of with a direction to regularize rest of the persons numbering 65 within six months of the receipt of the order in accordance with the aforesaid order of the Supreme Court. The authorities of the Board however sat-tight until 8.5.2002 when by the impugned office order they regularized 35 more working on daily wages leaving out the petitioners. A bald allegation has been made to the effect that this has been done on pick and choose basis and for extraneous consideration. It has been stated that those engaged later than the petitioners have been regularized while the petitioner have been by passed. Names of Tarkeshwar Prasad, Anil Kumar Sharma, Basudeo Rao, Rajnath Thakur and Sheopujan Prasad have been mentioned in this connection According to the petitioners the Board is obliged to regularize ail those whose names were mentioned in the chart enclosed with the letter dated 30.6.1990 referred to in the order of the Supreme Court dated 13.2.1991. In the circumstances, their services having been terminated by the said order dated 8.5.2002, the petitioners have approached this Court seeking quashing of the order and a direction to regularize their services.
3. The case of the Board is that the chart enclosed with the letter dated 30.6.1990 (supra) submitted in the Supreme Court contained the names of all 342 persons working on daily wages in the work charge establishments of the Board. There is no separate list or chart of 257 persons. As a matter of fact, by letter dated 15.12.1990, also referred to in the order of the Supreme Court, the Housing Department of the State Government had communicated decision of the Government regarding creation of 257 posts. Thus, out of 342 persons mentioned in the chart, only 257 could be regularized against the posts sanctioned by the Government. Initially 192 persons were regularized from the aforesaid chart on the basis of roster points. The remaining 65 posts were kept vacant on account of non-availability of the candidates belonging to particular reserve categories. This Court later held in MJC No. 3937 of 2000 (disposed of along with MJC No. 904/98) that in terms of the order of the Supreme Court the Board is required to regularize 257 persons whose names were mentioned in the chart produced before the Supreme Court and thus the remaining 65 posts could not be filled from outside. The Board thereafter, took steps to fill the remaining posts. By said order dated 8.5.2002, 35 persons working on daily wages on different posts were regularized depending on availability of vacancies. In this manner, services of persons, working on different posts, in excess of the sanctioned posts i.e. vacancies were terminated. On some posts, despite availability of vacancies, candidates were not available. In this manner 30 posts have remained vacant. The petitioners were working as Chaukidar/Typist-cum-Clerk. There being no vacancy on these posts their services were terminated.
4. There is no dispute, nor there can be any, that pursuant to the order of the Supreme Court 257 persons working on daily wages in different work charged establishments of the Board were to be regularized. There is also no dispute that the Board cannot travel beyond the chart which was enclosed with the letter dated 30.6.1990 referred to in the order of the Supreme Court. There is further no dispute that only 257 persons can be regularized, and no more. Out of them 192 persons were regularized in the first lot while 35 more have been regularized in the second lot by the same order dated 8.5.2002 impugned in these cases. According to the petitioners in view of the order of the Supreme Court the Board has no option but to regularize the services of all 257 persons whose names were mentioned in the chart enclosed with the letter dated 13.6.1990, while according to the Board there is no separate chart of 257 persons. The chart enclosed with the letter dated 30.6.1990 contained the names of 342 persons and there being only 257 posts of different kinds sanctioned by the Government, regularization cannot exceed 257 posts. Moreover, the Supreme Court also had directed regularization of only 257 persons. Thus the Board could not have regularized the services of all persons whose names were mentioned in the chart. The vacancies on different posts were accordingly filled up from the employees mentioned in the chart working on such posts on the basis of seniority. The vacancies on posts on which the petitioners were working i.e. Chaukidar and Typist-cum-Clerk, having thus got filled up, in this manner, their services had to be terminated.
5. It would appear that the crux of the dispute centers around the question whether the chart which was enclosed with the letter dated 30.6.1990 or referred to in the order of the Supreme Court contained the names of 257 persons as asserted on behalf of the petitioners or the names of 342 persons as asserted by the Board, for, in terms of the order of the Supreme Court 257 daily wages workers were entitled to be regularized as per the chart enclosed with the letter dated 30.6.1990.
6. The order of the Supreme Court dated 13.2.1991 may be quoted at this stage as under:
The matter is heard with reference to the documents and affidavits placed as also the submissions advanced at the Bar. We are satisfied on the material placed that 257 daily workers are entitled to be regularized in the work-charge establishment as per the chart enclosed to the letter dated 30.6.1990. The names of these 257 workers have been approved by the administrative department of the Housing Board on 15th December, 1990.
We, therefore, direct that the Housing Board shall regularize the services of there 257 workers in its work-charge Establishment and they shall cease to be daily workers with effect from 19th September 1990. So far as the remaining appellants are concerned, we make no direction as from the material on record we are satisfied that the work-charge establishment of the Board does not have scope to provide regular work for them. This disposes of the appeal without any order for costs.
From perusal of the order it would appear that 257 daily workers were entitled to be regularized in the work charge establishment whose names were mentioned in the chart enclosed with the letter dated 30.6.1990. It may be recalled that the assertion of the petitioners is that the chart contained names of 257 persons and thus all of them had to be regularized. The case of the Board on the other hand is that the chart contained names of 342 persons. The figure “257” refers to the posts created by the State Government in the Housing Department vide letter dated 15.12.1990. Having regard to the nature of the dispute, by order dated 25.6.2002 this Court observed that the petitioners’ allegation can be easily verified from the list of 257 workers which was approved by the Administrative Department of the Board dated 15.12.1990 and accordingly direction the Board to file a brief counter-affidavit bringing on record the decision of the Administrative Department of the Board dated 15.12.1990 enclosing the list filed before the Supreme Court in Civil Appeal No. 766 of 1990.
7. The Board has filed an affidavit sworn by its Secretary Shri Prem Chand Choudhary, the relevant parts of which may be quoted as under:
There is no decision approving the list of 257 works by the Administrative Department of the Board.
The Board had prepared a list of persons working on daily wages against different cadres after obtaining informations from its various Divisions and the same was sent by the Secretary of the Board to the Joint Secretary of the State Government, Department of Building Construction and Housing, Bihar, Patna vide letter No. 1876, Patna dated 30.6.1990. The total number of persons figuring in the list of persons working against different cadres was 342. The Board by the aforesaid letter had sought the approval of the Bureau of the Public Enterprises and the decision of the State Government.
The Government wrote a letter dated 15.12.1990 to the Chairman, Bureau of Public Enterprises, recommending creation of 257 posts of different cadres in Work-charge Establishment and approval of the Department of Finance.
The affidavit goes on to refer to the directives of the State Government to fill up the 257 posts after observing rules relating to reservation and getting roster cleared by the Bureau of Public Enterprises. Copies of letter dated 30.6.1990, by the Secretary of the Board to the Joint Secretary Building Construction and Housing Department, and letter dated 15.12.1990 by the Joint Secretary, Building Construction and Housing Department to the Chairman of the Bureau of Public enterprises with a copy to the Chairman-cum-Managing Director of the Board, have been enclosed as Annexures A and B to the affidavit. Along with Annexure-A, the list of 342 employees working in different work charged establishments of the Board has been enclosed.
8. The order of the Supreme Court dated 13.2.1991 has to be understood in the context of the aforesaid two letters. As a matter of fact, the order of the Supreme Court, states at the very outset that the “matter is heard with reference to the documents and affidavits placed as also the submissions advanced at the Bar”. Having said so, their Lordships said that on the materials placed 257 daily workers are entitled to be regularized in the work charged establishment “as per the chart enclosed with the letter dated 30.6.1990”. Their Lordships further stated that the fames of these 257 workers have been approved by the Administrative department of the Board on 15.12.1990. The fact, however, is that by the said letter dated 15.12.1990 the Administrative Department of the Housing Board i.e. Building Construction and Housing Department had communicated its approval regarding creation of 257 posts. Further, the chart enclosed with the letter dated 30.6.1990 contained names of 342 persons. In the circumstances, only interpretation of the order of the Supreme Court can be that the Board had to Regularize 257 persons whose names were mentioned in the chart enclosed with the letter dated 30.6.1990 against 257 posts approved/sanctioned by the State Government vide letter dated 15.12.1990.
9. The petitioners do not contend that all 342 persons mentioned in the chart are to be regularized. According to the petitioners themselves, vide para 5 of the writ petition in CWJC No. 6395/2002, a total of 342 persons were appointed on daily wage basis between 1975 and 1986-87. The petitioners also do not dispute that the State Government has created only 257 posts. There being no separate chart of 257 persons, the foundation of the petitioners’ case would appear to be lacking in substance. Firstly, they do not contend that all 342 persons should be regularized. The main plank of their case is that the chart contained names of 257 persons and as per the order of the Supreme Court, all of them have to be regularized. This is not borne out by the records.
10. It is in this context that the validity of the action of the Board terminating the services of the petitioners has to be considered. The impugned order of the Board dated 8.5.2002 mentions the particulars of different posts on which the daily wage employees were regularized in the work charged establishment or their services were terminated, as the case may be, depending on the number of vacancies on the particular posts, and it would be apposite to refer them at one place in a tabular form as under:
_________________________________________________________________________________________
Name Sanctioned Working Made regular Vacancy as Regularized Present
of Posts earlier on 8.5.2002 by order -vacancy
dt. 8.52002
___________________________________________________________________________________________
Chaukidar 111 200 101 10 10 0
Plumber 17 21 13 4 4 0
Assistant
Mixer Operator 2 2 1 1 1 0
Mixer Khalasi 1 3 1 0 0 0
Jeep Driver 3 4 1 2 2 0
Typist Clerk 2 3 1 1 1 0
Clerk 1 2 0 1 1 0
Electrician 6 5 4 2 1 1
Electrician 11 13 9 2 2 0
Assistant
Roller Operator 1 0 0 1 0 1
Carpenter 4 2 1 3 1 2
Carpenter 7 6 5 2 1 1
Asstt.
Peon/Chaprasi 15 15 10 5 5 0
Mazdoor Coolie 9 8 6 3 2 1
Sweeper 41 23 23 18 0 18
Pump Operator 6 8 4 2 2 0
Assistant
Pump Operator 4 4 2 2 2 0
Farras 2 0 1 1 1 0
Khansama 0 1 0 0 0 0
Awikshak 0 1 0 0 0 0
11. From bare glance at the above chart it would appear that employees working on daily wages were in excess of the sanctioned strength and they had to be removed. This is that what the Board has done. There being limited posts, of different types, available-sanctioned by the State Government regularization could not exceed the number of posts sanctioned. Besides the Supreme Court in its order also had made it clear that “so far as remaining appellants are concerned we make no direction as from the materials on record we are satisfied that the work charge establishment of the Board does not have scope to provide regular work for them”. All that the Board did was to take into consideration the number of the sanctioned posts, number of employees working on daily wages on particular posts and after deducting the number of the workers regularized earlier in the first lost, find out the existing vacancies, and regularize the remaining workers against such available vacancies. Vacancies not being available, the extra flab had to be removed.
12. In fairness to the petitioners it may be mentioned that in course of argument it was submitted that in making regularization the Board has ignored the seniors. It was stated that the petitioners were senior to the employees who have been regularized. As seen above names of Tarkeshwar Prasad and four others have been mentioned in para 8 of the writ petition CWJC No. 6395/2002 along with the dates of their appointment being on different dates between 1.10.1981 and 1.2.1982. However, the petitioners have not disclosed dates of their appointment. A bald statement has been made that they were appointed in 1980-81. If the assertion of the petitioners were true it would follow that they in effect are challenging the regularization of the so-called juniors. The number of posts being limited, the petitioners cannot come in unless those regularized by order dated 8.5.2002 are removed to make room for the petitioner. But in that case the petitioners were required to challenged their regularization. Neither this has been done nor persons regularized have been impleaded. Clearly, the Court cannot make any adjudication upon such dispute behind their back.
13. Before I Part I may mention that from the order dated 8.2.2002 it appears that 30 vacancies exist on the posts of Sweeper (18), Farras (1), Mazdoor Coolie (1), Carpenter Assistant (1), Chaukidar-cum-Keyman (1), Mixer Helper (1), Mason Assistant (1), Carpenter (2), Plumber Mistry (1), Roller Operator (1), Gardener (1) and Electrician (1). Some of these posts, such as Sweeper, Farras, Mazdoor Coolie, Carpenter Assistant, Rooler Operator and Electrician, it would appear, find mention in the above chart also on which persons concerned have been regularized. Vacancies remained as more candidates were not available. Other posts, not mentioned in the chart such as Chaukidar-cum-Keyman, Mason Assistant, Plumber Mistry and Gardener, are posts on which, presumably, no person was working on daily wage. The posts such as Electrician or Roller Operator, Carpenter, Carpenter Assistant on which vacancies are shown are more or less technical posts on which non-technical hands cannot be appointed. In this view of the matter I called upon Counsel for the petitioners as to whether the petitioners would be willing to be regularized against non-technical posts such as Sweeper, Farras, Mazdoor Coolie on which as many as 20 vacancies are available. The Court made it clear if the petitioners would be willing to accept those posts the Board could be directed to consider them for regularization on such posts, considering that they have been working under the Board for two decades. Counsel for the petitioners however unhesitatingly stated that the petitioners are not interested in these posts.
14. In the result, for the reasons stated above. I do not find any merit in these writ petitions which are accordingly dismissed.