U.P. & Ors Vs. Ajay Kumar  INSC
175 (17 February 1997)
RAMASWAMY, G.T. NANAVATI
O R D E
heard learned counsel on both sides.
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.
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.
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.
appeal is accordingly allowed. The order of the learned single Judge stands
upheld the that of the Division Bench stands set aside. No costs.
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