Full Judgment Text
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PETITIONER:
STATE OF U.P. & ORS.
Vs.
RESPONDENT:
AJAY KUMAR
DATE OF JUDGMENT: 17/02/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted. We have heard learned counsel on both
sides.
This appeal by special leave arises from the Division
Bench judgement of the Allahabad High Court, made on
November 9, 1995 in Special Appeal No. 302/95.
The admitted position is that the respondent came to be
appointed on daily wage basis on February 14, 1985 as Class
IV employee, Nursing Orderly, in the Medical College be the
Medical Superintendent. When the respondent filed a writ
petition in the High Court for his regularisation, the
learned single Judge pointed out that the respondent has not
brought to the notice of the Court, any statutory rule
under which the respondent could be regularised, on the
basis of the service rendered by him as a daily wage earner.
Even the method of recruitment adopted by the Superintendent
was not proper inasmuch as the did not call application. The
Division reversed the decision of the learned single Judge
and had give direction. It is now settled legal position
that there should exist a post and either administrative
instructions or statutory rules must be in operation to
appoint a person to the post. Daily wage appointment will
obviously be in relation to contingent establishment in
which there cannot exist any post and it continues so long
as the work exists. Under there circumstances, the Division
Bench was clearly in error in directing the appellant to
regularise the service of the respondent to the post as and
when the vacancy arises and to continue him until then. The
direction in the backdrop of the above facts is, obviously,
illegal.
The appeal is accordingly allowed. The order of the
learned single Judge stands upheld the that of the Division
Bench stands set aside. No costs.