NANO KUMARversusSTATE OF BIHAR & ORS.

                     [2014] 3 S.C.R. 193


                        NANO KUMAR                                 A
                               v.
                  STATE OF BIHAR & ORS.
               (Civil Appeal No. 2835 of 2014)

                    FEBRUARY 25, 2014
                                                                   B
             [SURINDER. SINGH NIJJAR AND
              PINAKI CHANDRA GHOSE, JJ.]

     Service law: Regularisation - Daily wagers even if
 appointed for a long time are not entitled to be absorbed and     C
 regularised.

        Bihar Agriculture Produce Market (Repeal) Act, 2006: s.6
  - 'all officers and employees' - Whether include daily wagers
  - Held: Daily wagers are not included within the meaning of 0
· 'all officers and employees' as used in s. 6(i) of the Repeal
  Act - Daily wagers cannot be treated as permanent
  Government employees - s. 6(i) makes it clear that after the
  repeal of the Agriculture Produce Act, 1960, all officers and
  employees of the Board are to continue in employment and E
  they shall continue to be paid what they were getting earlier
  as salary and allowance till such time the State Government
  takes an official decision as per the further provisions of s. 6 -
  The scheme of alternative appointment framed for regular
  employees of abolished organisation cannot, therefore, confer F
  a similar entitlement on the daily wagers of abolished
  organisation to such alternative employment.

      s.6(ii) - Power of the Committee of Secretaries - Held: Is
 to prepare a scheme of absorption as well as of retirement,
 compulsory retirement or voluntary retirement and other           G
 service conditions of officers and employees of the Board -
 The scheme prepared by the Committee of Secretaries is
 only in the nature of recommendation and the State has the
 power either to accept, modify or amend the same before
                               193                                 H
    194        SUPREME COURT REPORTS              [2014] 3 S.C.R.


A granting its official approval.

       The questions which have arisen for consideration
  in the instant appeals were whether the appellants-daily
  wagers appointed for a long time were entitled to be
8 absorbed and regularised and should not be relieved by
  virtue of Section 6 of the Bihar Agriculture Produce
  Market (Repeal) Act, 2006; and whether the daily wagers
  were included within the meaning of 'all officers and
  employees' as used in Section 6(i) of the Repeal Act.
c         Dismissing the appeals, the Court

       HELD: 1. The appellants were never appointed
  through a proper procedure. They all served as daily
  wagers. Therefore, it was within their knowledge all the
o consequences of appointment being temporary, they
  cannot have even a right to invoke the theory of legitimate
  expectation for being confirmed in the post. Section 6 of
  the Bihar Agriculture Produce Market (Repeal) Act, 2006
  makes it clear that the employees of the Board and the
E appellants cannot be said to be of the same status and
  cannot enjoy the benefit given under Section 6(i) of the
  Repeal Act, 2006. Therefore, the daily wagers would not
  come within the meaning of "all officers and employees"
  as specifically stated in Section 6 of the Repeal Act. [Para
F 19] [208-C-F]

          State of Kamataka & Ors. v. M. L. Kesari & Ors. 2010 (9)
    SCC 247: 2010 (9) SCR 543 - held inapplicable.

       2. The status of the appellants was continuing to be
G as daily wagers. They cannot be treated as permanent
  Government employees. They all worked as employees
  of the Board. No steps were followed by the Board to
  safeguard the service of these appellants. Section 6(i)
  makes it clear that after the repeal of the Agriculture
H Produce Act, 1960, all officers and employees of the Board
         NANO KUMAR v. STATE OF BIHAR                      195

are to continue in employment and they shall continue to          A
be paid what they were getting earlier as salary and
allowance till such time the State Government takes an
official decision as per the further provisions of Section
6. Such provision certainly allows continuance of the
officers and employees of the Board to continue in                B
employment in the same status. The status of the daily
wage employees and regular employees of the Board is
eminent from the said provision. It cannot be said that the
daily wage employees can enjoy or acquire the same
status as that of the regular employees. So far as the            c
power of the Committee of Secretaries constituted in
terms of section 6(ii) of the Repeal Act is concerned, it is
to prepare a scheme of absorption as well as of retirement,
compulsory retirement or voluntary retirement and other
service conditions of officers and employees of the Board.
                                                                  0
The scheme which was prepared by the Committee of
Secretaries is only in the nature of recommendation and
the State has the power either to accept, modify or amend
the same before granting its official approval. Therefore,
after the sanction is granted by the Government in respect        E
of the said scheme, it would gain the status of statutory
scheme framed under the said Act and would be enforced
within the time to be indicated in section 6(iii) of the Repeal
Act, 2006. Therefore, in the light of the said provision, the
Committee of Secretaries cannot be faulted in treating the
daily wage employees on a different footing and deciding          F
for removal of their services. [Paras 20, 21] [209-A-H; 210-
A-C]

    3. The daily wagers are not appointees in the strict
sense of the term 'appointment'. They do not hold a post. G
The scheme of alternative appointment framed for regular
employees of abolished organisation cannot, therefore,
confer a similar entitlement on the daily wagers of
abolished organisation to such alternative employment.
Their relevance in the context of appointment arose by H
    196      SUPREME COURT REPORTS          [2014] 3 S.C.R.


A reason of the concept of regularisation as a source of
  appointment. Appointment on daily wage basis is not an
  appointment to a post according to the rules. Usually, the
  projects in which the daily wagers were engaged, having
  come to an end, their appointment is necessarily
B terminated for want of work. Therefore, the status and
  rights of daily wagers of a Government concern are not
  equivalent to that of a Government servant and his claim
  to permanency has to be adjudged differently. In these
  circumstances, the regularisation/absorption is not a
C matter of course. It would depend upon the facts of the
  case following the rules and regulations and cannot be
  de hors the rules for such regularisation/absorption.
  [paras 22, 23) [210-D-H; 211-A]

      Secretary, State of Karnataka & Ors. v. Umadevi (3) &
D Ors. 2006 (4) SCC 1: 2006 (3) SCR 953; Avas Vikas
  Sansthan v. Avas Vikas Sansthan Engineers Association
  2006 (4) sec 132: 2006 (3) SCR 516 - relied on.
                       Case Law Reference:
E         2006 (3 ) SCR 953   relied on           Para 8
          2010 (9) SCR 543    held inapplicable   Para 9
          2006 (3) SCR 516    relied on           Para 22

F       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2835 of 2014.

        From the Judgment and Order dated 09.12.2009 of the
    High Court of Patna in CWJC No. 16109 of 2008.
G                              WITH
    C.A. No. 2836-2837, 2838, 2839-2841, 2842 and 2843 of
    2014.

     Amarendra Sharan, V. Shekhar, Amit Kumar, Rituraj
H Kumar, Kameshwar Singh, JP. Verma, M.A. Chinnasamy, AP.
          NANO KUMAR v. STATE OF BIHAR                       197


Sahay, Suchita Pokharna, Himanshu Shekhar, Tarkeshwar                A
Nath, 8.K. Pandey, Saurabh Kumar Tuteja, Rameshwar Prasad
Goyal, Ambreesh Kumar Aggarwal, Mahish Kumar, Chandan
Kumar, Gopal Singh for the appearing parties.

    The Judgment of the Court was delivered by                       8
    PINAKI CHANDRA GHOSE, J. 1. Leave granted.

     2. Six writ petitions were filed before the High Court of
Patna which were taken up and disposed of by the High Court
by a common order dated December 9, 2009. The High Court             C
rejected the prayer made by the writ petitioners for absorption/
regularisation in their posts.

    3. The facts of the case, briefly, are as follows:

     3.1 The appellants were appointed on daily wages. It is         D
not in dispute that some of the appellants had also worked as
daily wagers for a long period. It is also not in dispute that the
services of said daily wagers varied from period to period.
Nand Kumar, appellant, was appointed as an Accounts Clerk
on daily wage basis on September 18, 1982. Similarly, others         E
(appellants in civil appeals arising. out of SLP [CJ Nos.8865-
66/2010, 1087'.6/2010, 20833-20835/2010 and 30317/2010)
were also appointed, from time to time, and served as daily
wagers. It is not in dispute that some of the appellants received
monthly salary in the minimum pay scale with usual allowances.       F

     3.2 In 2006, the State Legislature passed the Bihar
Agriculture Produce Market (Repeal) Act, 2006 (hereinafter
referred to as the Repeal Act, 2006) with effect from September
1, 2006. As a result whereof, the Bihar Agriculture Produce          G
Market Act, 1960 and rules framed thereunder in the year 1975
stood repealed, save and except certain decisions rendered
earlier as well as disciplinary proceedings initiated or pending
against its employees were saved. It appears that in these
appeals the appellants are not challenging the validity of the
                                                                     H
   198       SUPREME COURT REPORTS              [2014) 3 S.C.R.


A Repeal Act. The claim of the appellants is that they have
  worked on daily wage basis for a long period and cannot be
  relieved from service by virtue of Section 6 of the Repeal Act,
  2006 and, furthermore, such decision is violative of the
  principles of natural justice and accordingly is arbitrary.
B
       4. A question has also been raised in these appeals
  whether the daily wage employees are included within the
  meaning of "all officers and employees" as used in Section 6(i)
  of the Repeal Act, 2006. The High Court while answering the
C said question and dealing with the writ petitions, has observed
  that the said Section under the Repeal Act itself maintains the
  distinction between the status of daily wage employees and
  regular employees of the Board.

       5. It appears to us that under Section 4 of the said Repeal
D Act, the assets and liabilities of the Bihar Agriculture Produce
  Marketing Board or of the Marketing Committees or Bazar
  Samitis constituted under the Act of 1960, have vested in the
  State Government. The State Government by virtue of Section
  5 of the said Act, has the authority, power and jurisdiction to
E issue necessary directions and/or orders to secure the object
  of the Repeal Act, 2006.

       6. In the backdrop of the facts of this case, Section 6 is
  relevant for the purpose of deciding the cases of the appellants
  and to find out whether it provides for absorption of the daily
F wagers who worked for a longer period with the Board. It further
  appears that by virtue of the said Repeal Act, a Committee of
  Secretaries was constituted under Section 6(ii) and whether the
  said Committee has the power to prepare a scheme for
  absorption/regularisation, denying the absorption of the
G appellants on the ground that they have been appointed by the
  Board/Market Committee/Bazar Samiti on daily wages or they
  have a duty to prepare a scheme for such absorption.

       7. Now it is necessary for us to reproduce Section 6 of the
H said Act which reads as follows :
     NANO KUMAR v. STATE OF BIHAR                      199
       [PINAKI CHANDRA GHOSE, J.]
"Section 6: Absorption of officers and employees of Bihar     A
Agriculture Marketing Board/Market Committee/Bazar
Samiti. -

(i) On and from the date of repeal of the Act, all officers
and employees of the Board, shall remain in
                                                              8
employment, as if the Act has not been repealed and
they shall continue to be paid same salary and
allowances as was payable on the date of repeal of the
Act till such time State Government has taken such final
decision as is provided hereafter.
                                                              c
(ii) The State Government shall constitute a committee
of Secretaries consisting of three Secretaries who shall
prepare detailed scheme of absorption, retirement,
compulsory retirement or voluntary retirement, other
service conditions of officers and employees of the Board     D
and the Committee. Scheme prepared by group of
Secretaries shall be placed before the State Government
within two months from the date of enforcement of the
present Act. The State Government shall thereafter
approve the scheme;                                           E

Provided that it shall be open to the State Government
to modify, amend or suggest modification or amendment
and the scheme thereafter shall be made operational in
such form and intent as finally approved by the State
Government. Scheme approved by the State                      F
Government shall be considered as statutory scheme
framed under this Act.

(iii) After the scheme approved by the State Government
is enforced it shall be fully implemented in its form and     G
intent within three months from the date of its
enforcement.

(iv) Group of Secretaries constituted under sub-section
(ii) above shall be competent to decide utility and           H
    200       SUPREME COURT REPORTS                (2014] 3 S.C.R.


A         deployment of officers and employees of the Board or the
          Committee during transition period and it shall not be
          open to any officer or employee to question decision of
          group of Secretaries.

          (v) Scheme framed under this Act shall have effect,
B
          notwithstanding any other Act, Ordinance, Rule,
          regulation, direction, order or instruction and condition of
          service of officers and employees of the Board or the
          Committee, shall be governed and regulated under the
          scheme to the extent provision has been made in the
c         scheme.

                Provided further that it shall be competent for the
          State Government to amend, modify, alter or substitute
          the scheme so framed for removal of difficulties in
D         implementation of the scheme."

        8. Mr. V.Shekhar, learned senior counsel appearing for the
  appellants in civil appeals arising out of SLP (C) Nos. 30317/
  2010 and 30318/2010 has contended that the daily wagers
E have asked for pay parity with the State employees treating
  them at par. The appellants claimed to have been working
  against the posts of Agriculture Produce Marketing Divisions
  on muster roll basis for the last 5 to 15 years and are in the
  employment of the Board. He further submitted that the
  recommendation of the Committee of Secretaries which has
F decided not to absorb the daily wage employees, is nothing
  but illegal and malafide. According to him, after working for such
  a long time and since they have been allowed to draw the pay
  scale along with usual allowances, would automatically entitle
  them to the benefit of a regular employee. He further stated that
G the appellants worked under the duly sanctioned posts. He
  further drew our attention to the Secretary, State of Karnataka
  & Ors. V. Umadevi (3) & Ors. [2006 (4) SCC 1, paras 40, 41
  and 53] and submitted that the State should take steps to
  regularise all these appellants by way of one-time measure.
H
           NANO KUMAR v. STATE OF BIHAR                         201
             [PINAKI CHANDRA GHOSE, J.]
      9. Mr. A. Sharan, learned senior counsel appearing for the       A
 appellants in civil appeals arising out of SLP [CJ Nos.7555/
 2010 and 8865-8866/2010, submitted that the appellant has
 worked in the post for a long time and he should be regularised
 in the said post since he has already obtained the status of
 employee working in the Board. He relied upon the judgment            B
 reported in State of Karnataka & Ors. v.M.L. Kesari & Ors.
 [2010 (9)  sec   247].

        10. It is further submitted that an advertisement was issued
 for filling up vacancies by the Board. Some of the petitioners        C
 applied for the said post but no steps were taken to fill the said
 post by the Board. Board issued directions to pay equal pay
 for equal work to the daily wagers who were working in Grade
 Ill and Grade IV. It is also stated that on 27th September, 2006
 Executive Engineer, Muzaffarnagar Division Marketing Board
 sent a report about the strength of the employees in the said         D
 division. In the said report, it was also mentioned that Nand
 Kumar has been working as an accounts clerk from 17th
 September, 1992 and it has also been mentioned that he will
 complete his 60 years on 30th September, 2018. Accordingly,
 it is submitted.that the petitioner and similarly situated persons    E
 have not been treated as daily wages employees.

       11. Our attention has already been drawn by the learned
  senior counsel to the report of the three Member Committee
  constituted in terms of section 6(ii) of the Repeal Act which        F
. recommended the termination of services of all illegal and
  irregular employees and was submitted to the Government
  recommending absorption of only regular employees in para
  3.1 and further recommended for termination of daily wagers
  in para 3.6 of the said report.
                                                                       G
      12. It is submitted by the appellants that the appellants who
 have been working for more than 25 years getting regular pay
 scales and work against the vacant sanctioned posts cannot
 be treated as ordinary daily wage employees. The provision
 in the Section 6 of the Repeal Act deals with "all officers and       H
   202       SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A employees" which includes the daily wagers and section 6 of
  the Repeal Act also provide that all officers of the Board shall
  remain in employment as if the Act has not been repealed and
  they would continue on the basis of the regular pay scale,
  dearness pay and dearness allowances. Therefore, it is
B submitted by the appellants that the rights of all employees
  working were adequately protected in the said section 6 of the
  Repeal Act.

        13. It is contended by the appellant that the Committees
C of Secretaries have wrongly treated the appellant Nand Kumar
  and similar situated persons as daily wagers without
  appreciating the facts that they were working in the said post
  for more than 20-25 years and drawing the salaries in pay scale
  with dearness allowance. Therefore they cannot be treated
  differently from regular employees. It is further contended that
D the term existing employees used in section 6(ii) of the Repeal
  Act includes all the employees including the petitioners, who
  were daily wagers. Accordingly, it is submitted that the
  appellants must get a chance in the matter to be considered
  by the authorities for absorption/regularization in their posts and
E cannot be treated differently than that of regular employees.

         14. It is ·further contended by the appellants that the phrase
  "all officers and employees" in Section 6 of the Repeal Act
  means all employees without any permutation and combination
F or without any reservation and qualification. The legislature was
  fully aware of different types of employees that could be in
  service like contractual employees, daily wage employees,
  work charged employees etc. But legislature chooses the
  expression "all officers and employees". Sub-section (i) of
G Section 6 makes clear the legislative intent that the services
  of "all officers and employees" would continue as if the
  Principal Act had not been repealed, meaning thereby that
  there would not be change in service condition of whatsoever
  till the scheme was finalised as contemplated under section 6(ii)
  of the Act. Section 6 of the Repeal Act, 200€ provided that all
H
         NANO KUMAR v. STATE OF BIHAR                        203
           [PINAKI CHANDRA GHOSE, J.]
officers and employees of the Board shall remain in                 A
employment, as if the Act has not been repealed and they
continue on the basis of regular pay scale, dearness pay and
dearness allowance. Section 6(ii) of the Repealing Act gives
jurisdiction to the Committee to prepare "detailed scheme of
absorption, retirement, compulsory retirement or voluntary          B
retirement of existing employees". The term "existing
employees" used in the Act does not distinguish between
contractual or regular employee or employees working on
sanctioned, vacant post for more than 25 years and getting
salary in minimum pay scale and also dearness allowance.            c
    15. The appellant further submitted that the appellants are
squarely coming within the purview of Umadevi (supra) and
drew our attention to para 53 which reads as follows:

    "53. One aspect needs to be clarified. There may be cases D
    where irregular appointments (not illegal appointments) as
    explained in State of Mysore v. S. V. Narayanappa 1967
    (1) SCR 128, R.N.Nanjundappa v. T. Thimmiah 1972 (1)
    SCC 409 and B.N. Nagarajan v. State of Kamataka 1979
    (4) S,CC 507 and referred to in para 15 above, of duly E
    qualified persons in duly sanctioned vacant posts might
    have been made and the employees have continued to
    work for ten years or more but without the intervention of
    orders of the courts or of tribunals. The question of
    regularisation of the services of such employees may have F
    to be considered on merits in the light of the principles
    settled by this Court in the cases abovereferred to and in
    the light of this judgment. In that context, the Union of India,
    the State Governments and their instrumentalities should
    take steps to regularise as a one-time measure, the
    services of such irregularly appointed, who have worked G
    for ten years or more in duly sanctioned posts but not under
    cover of orders of the courts or of tribunals and should
    further ensure that regular recruitments are undertaken to
    fill those vacant sanctioned por.i<> that require to be filled
                                                                     H
    204       SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A         up, in cas1is where temporary employees or daily wagers
          are being now employed. The process must be set in
          motion wiU1in six months from this date. We also clarify that
          regularisation, if any already made, but not sub judice,
          need not be reopened based on this judgment, but there
B         should be no further bypassing of the constitutional
          requirement and regularising or making permanent, those
          not duly appointed as per the constitutional scheme."

        16. Per contra, it was submitted by counsel appearing on
  behalf of the State that the words "absorption, retirement,
C compulsory retirement or voluntary retirement" used in Section
  6 of the Repeal Act, 2006 have been used with reference to
  only the permanent employees of the Board. That absorption
  in the present case does not mean regularisation. It is further
  submitted that all the appellants worked on daily wage basis
D and had not been regularised till the date of repeal of the said
  Act. It is further submitted that with undoing of the establishment,
  there is no regulation of the market and as such there is no
  procurement of revenue. In these circumstances, there cannot
  be any scope for regularisation. He further pointed out that the
E daily wagers are engaged in view of work exigencies prevailing
  in the establishment but in the event of dissolution of the
  establishment, there cannot be any work exigency. He further
  submitted that regularisation is not a matter of course, it has
   to follow the mode of recruitment. The Committee constituted
F under Section 6 of the Repeal Act duly examined the cases of
   daily wagers and clause 3.1 of the Resolution prepared by the
   Market Committee clearly states that any appointment without
   recommendation or proper authority will be considered as
   illegal and irregular. It is pointed out that engagement of the
G appellants was without following any norms and in violation of
   the rules of recruitment and principles of equality. Accordingly,
   he submitted that Section 6 of the Repeal Act, 2006 has a
    provision for protection of permanent employees and not daily
   wage employees, and such a provision is in violation of Article
H 14 of the Constitution. The daily wagers constitute a class within
         NANO KUMAR v. STATE OF BIHAR                          205
           [PINAKI CHANDRA GHOSE, J.]
themselves and all the daily wagers hav.e been retrenched and          A
not even a single one has been retained in these cases.

     17. The High Court dismissed the writ petition which was
filed before it on the ground that petitioners cannot claim
themselves as a part of same class and the Three Member                8
Committee did not commit any wrong in not recommending
absorption of the petitioners.

    18. We have also noticed that Constitution Bench of this
Court in paras 44, 45 & 47 of Umadevi (supra) held :
                                                                       c
     "44. The concept of "equal pay for equal work" is different
     from the concept of conferring permanency on those who
     have been appointed on ad hoc basis, temporary basis,
   . or based on no process of selection as envisaged by the
     rules. This Court has in various decisions applied the            D
     principle of equal pay for equal work and has laid down
     the parameters for the application of that principle. The
     decisions are rested on the concept of equality enshrined
     in our Constitution in the light of the directive principles in
     that behalf. But the acceptance of that principle cannot lead
                                                                       E
     to a position where the court could direct that appointments
     made without following the due procedure established by
     law, be deemed permanent or issue directions to treat
     them as permanent. Doing so, would be negation of the
     principle of equality of opportunity. The power to make an
                                                                       F
     order as is necessary for doing complete justice in any
     cause or matter pending before this Court, would not
     normally be used for giving the go-by to the procedure
     established· by law in the matter of public employment.
    Take the situation arising in the cases before us from the
     State of Karnataka. Therein, after the decision in Dharwad        G
     District PWD Literate Daily Wage Employees Assn. v.
     State of Karnataka [1990 (2) SCC 396], the Government
     had issued repeated directions and mandatory orders that
     no temporary or ad hoc employment or engagement be
     given. Some of the authorities and departments had                H
    206        SUPREME COURT REPORTS                [2014] 3 S.C.R.


A         ignored those directions or defied those directions and
          had continued to give employment, specifically interdicted
          by the orders issued by the executive. Some of the
          appointing officers have even been punished for their
          defiance. It would not be just or proper to pass an order in
B         exercise of jurisdiction under Article 226 or 32 of the
          Constitution or in exercise of power under Article 142 of
          the Constitution permitting those persons engaged, to be
          absorbed or to be made permanent, based on their
          appointments or engagements. Complete justice would be
c         justice according to law and though it would be open to
          this Court to mould the relief, this Court would not grant a
          relief which would amount to perpetuating an illegality.

          45. While directing that appointments, temporary or casual,
          be regularized or made permanent, the courts are swayed
D         by the fact that the person concerned has worked for some
          time and in some cases for a considerable length of time.
          It is not as if the person who accepts an engagement either
          temporary or casual in nature, is not aware of the nature
          of his employment. He accepts the employment with open
E         eyes. It may be true that he is not in a position to bargain
          -- not at arm's length -- since he might have been
          searching for some employment so as to eke out his
          livelihood and accepts whatever he gets. But on that
          ground alone, it would not be appropriate to jettison the
F         constitutional scheme of appointment and to take the view
          that a person who has temporarily or casually got employed
          should be directed to be continued permanently. By doing
          so, it will be creating another mode of public appointment
          which is not permissible. If the court were to void a
G         contractual employment of this nature on the ground that
          the parties were not having equal bargaining power, that
          too would not enable the court to grant any relief to that
          employee. A total embargo on such casual or temporary
          employment is not possible, given the exigencies of
H         administration and if imposed, would only mean that some
     NAND KUMAR v. STATE OF BIHAR                        207
       [PINAKI CHANDRA GHOSE, J.]
people who at least get employment temporarily,                  A
contractually or casually, would not be getting even that
employment when securing of such employment brings at
least some succour to them. After all, innumerable citizens
of our vast country are in search of employment and one
is not compelled to accept a casual or temporary                 B
employment if one is not inclined to go in for such an
employment. It is in that context that one has to proceed
on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from
it. In other words, even while accepting the employment,         c
the person concerned knows the nature of his employment.
It is not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be
considered to be of such a magnitude as to enable the
                                                                 0
giving up of the procedure established, for making regular
appointments to available posts in the services of the
State. The argument that since one has been working for
some time in the post, it will not be just to discontinue him,
even though he was aware of the nature of the employment
when he first took it up, is not one that would enable the       E
jettisoning of the procedure established by law for public
employment and would have to fail when tested on the
touchstone of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution.
                                                                 F
                          xxxxx

47. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the
engagement is not based on a proper selection as                 G
recognized by the relevant rules or procedure, he is aware
of the consequences of the appointment being temporary,
casual or contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for being
confirmed in the post when an appointment to the post
                                                                 H
    208       SUPREME COURT REPORTS                 [2014) 3 S.C.R.


A         could be made only by following a proper procedure for
          selection and in cases concerned, in consultation with the
          Public Service Commission. Therefore, the theory of
          legitimate expectation cannot be successfully advanced by
          temporary, contractual or casual employees. It cannot also
B         be held that the State has held out any promise while
          engaging these persons either to continue them where
          they are or to make them permanent The State cannot
          constitutionally make such a promise. It is also obvious that
          the theory cannot be invoked to seek a positive relief of
c         being made permanent in the post."

        19. Therefore, considering the facts of the present case,
  it appears to us that the appellants were never appointed
  through a proper procedure. It is not in dispute that they all
  served as daily wagers. Therefore, it was within their knowledge
D all the consequences of appointment being temporary, they
  cannot have even a right to invoke the theory of legitimate
  expectation for being confirmed in the post. Accordingly, we
  cannot accept the contention of the appellants in the matter. We
  have further considered the case of the appellants in the light
E of Section 6 of the Repeal Act which has made it clear that the
  employees of the Board and the appellants cannot be said to
  be of the same status and cannot enjoy the benefit given under
  Section 6(i) of the Repeal Act, 2006. Therefore, we are unable
  to accept the contention that the daily wagers would also come
F within the meaning of "all officers and employees" as
  specifically stated in Section 6 of the Repeal Act. In these
  circumstances, we are unable to accept the submission of
  learned senior counsel appearing on behalf of the appellants.

       We have also considered the decision in M.L.Kesari
G (supra) of this Court which deals with the exception contained
  in para 53 of Umadevi (supra) but considering the facts of this
  case, we do not have any hesitation to hold that the said
  decisions can not be a help to the appellants.

H         20. We have heard learned counsel for the parties. We
          NANO KUMAR v. STATE OF BIHAR                      209
            [PINAKI CHANDRA GHOSE, J.]

have also perused the records placed before us. We find that        A
the status of the appellants was continuing to be as daily
wagers. They cannot be treated as permanent Government
employees. They all worked as employees of the Board. We
have also found that no steps were followed by the Board to
safeguard the service of these appellants. We have not been         B
able to find out whether any advertisement was issued by the
Government to regularise them. In these circumstances, in view
of the submission which has been advanced on behalf of the
appellants, we do not find that there is any substance in the
matter/arguments put forwarded before us on behalf of the           c
appellants as we have been able to find out that the appellants
have served as daily wagers and we do find that Section 6(i)
makes it clear that after the repeal of the Agriculture Produce
Act, 1960, all officers and employees of the Board are to
continue in employment and they shall continue to be paid what      0
they were getting earlier as salary and allowance till such time
the State Government takes an official decision as per the
further provisions of Section 6. Such provision certainly allows
continuance of the officers and employees of the Board to
continue in employment in the.same status. The status of the        E
daily wage employees and regular employees of the Board is
eminent from the said provision. It cannot be said that the
status of the daily wage employees can enjoy or acquire the
same status as that of the regular employees. In these
circumstances, we do not find that there was any discrimination
between the daily wage employees and the regular employees          F
as is tried to be contended before us. Therefore, such
submission has no substance, in our opinion, for the reason that
the difference continues and is recognised under the said
provision of the Repeal Act. So far as the power of the
Committee of Secretaries constituted in terms of section 6(ii)      G
of the Repeal Act is concerned, it is to prepare a scheme of
absorption as well as of retirement, compulsory retirement or
voluntary retirement and other service conditions of officers and
employees of the Board. In our opinion, the scheme which was
prepared by the Committee of Secretaries is only in the nature      H
    210       SUPREME COURT REPORTS                [2014] 3 S.C.R.


A of recommendation and the State has the power either to
  accept, modify or amend the same before granting its official
  approval. Therefore, after the sanction is granted by the
  Government in respect of the said scheme, it would gain the
  status of statutory scheme framed under the said Act and would
B be enforced within the time to be indicated in section 6(iii) of
  the Repeal Act, 2006.

        21. Therefore, in the light of the said provision, we do not
  find that the Committee of Secretaries can be faulted in treating
C the daily wage employees on a different footing and deciding
  for removal of their services.

         22. We have consciously noted the aforesaid decisions of
    this Court. The principle as has been laid down in Umadevi
    (supra) has also been applied in relation to the persons who
D   were working on daily wages. According to us, the daily wagers
    are not appointees in the strict sense of the term 'appointment'.
    They do not hold a post. The scheme of alternative appointment
    framed for regular employees of abolished organisation cannot,
    therefore, confer a similar entitlement on the daily wagers of
E   abolished organisation to such alternative employment. [See
    Avas Vikas Sansthan v. Avas Vikas Sansthan Engineers
    Association (2006 (4) SCC 132)]. Their relevance in the
    context of appointment arose by reason of the concept of
    regularisation as a source of appointment. After Umadevi
F   (supra), their position continued to be that of daily wagers.
    Appointment on daily wage basis is not an appointment to a
    post according to the rules. Usually, the projects in which the
    daily wagers were engaged, having come to an end, their
    appointment is necessarily terminated for want of work.
G   Therefore, the status and rights of daily wagers of a Government
    concern are not equivalent to that of a Government servant and
    his claim to permanency has to be adjudged differently.

      23. In these circumstances, in our considered opinion, the
  regularisation/absorption is not a matter of course. It would
H depend upon the facts of the case following the rules and
        NANO KUMAR v. STATE OF BIHAR                     211
          [PINAKI CHANDRA GHOSE, J.]
regulations and cannot be de hors the rules for such            A
regularisation/absorption,

    24. Accordingly, we do not find any substance with regard
to the arguments advanced ·before us on behalf of the
appellants. We do not find any merit in the appeals.
Accordingly, we uphold the decision of the High Court and
                                                                8
affirm the same, dismissing these appeals.

D.G.                                    Appeals dismissed.