JUDGMENT Dilip Gupta, J.
1. These two Writ Petitions have been listed together in view of the order passed by this Court and are accordingly being disposed of by a common judgment.
2. Writ Petition No. 2187 of 1997 has been filed by Sri Anup Bihari Lal Srivastava for quashing the order dated 11.11.1996 passed by the Director of North Central Zone Cultural Centre, Allahabad (hereinafter referred to as the 'Centre'). A direction has also been sought to promote him to the post of Section Officer from December, 1991 and to the post of Administrative Officer from November, 1995, to award him the regular pay scale of Rs. 1200-2040/- and to regularise him as Upper Division Clerk w.e.f. 28th March, 1988. This petition shall be referred to as the 'First Petition'.
3. Writ Petition No. 33238 of 2000 has been filed Sri Pradeep Jauhari and Sri Ram Prakash Rai for quashing the order dated 19tth July, 2000 passed by the Director of the Centre and for a direction upon the respondents to fill up the post of Section Officer after advertising the said vacancy and holding a regular selection. This petition shall be referred to as the 'Second Petition'.
4. Sri Anup Bihari Lal Srivastava was engaged on daily wages at the rate of Rs. 50/- per day to look after the Court cases of the Centre and to do other works assigned to him by the officers of the Centre by means of the order dated 15th March, 1988. His engagement was discontinued w.e.f. 26th December, 1990 as a result of which he raised an Industrial Dispute which was referred to the Labour Court, Allahabad by the State Government. The dispute that had been referred to was whether the employers were justified in terminating the services of Sri Anup Bihari Lal Srivastava w.e.f. 26th December, 1990 and if not then to what relief he was entitled to. The Labour Court by its award dated 28th February, 1995 in Adjudication Case No. 23 of 1992 held that the employers were not justified in terminating the services w.e.f. 26th December, 1990 and, therefore, reinstated the petitioner with full backwages and continuity of service. This award was challenged by the Centre in Writ Petition No. 19784 of 1995, which was dismissed by this Court on 31st August, 1995.
5. On the basis of the aforesaid award Sri Anup Bihari Lal Srivastava was engaged from 4th January, 1996. He then filed Writ Petition No. 31585 of 1996 claiming regularization w.e.f. 23rd March, 1988. The petition was disposed of by the judgment and order dated 4th October, 1996 with a direction that the representation dated 19th March, 1996 filed by him for the said purpose shall be disposed of by a reasoned and it would also be open to the respondents to consider not only the question of regularisation but also subsequent promotion, if due under the law/rules. In compliance of the aforesaid judgment and order of this Court the Director of the Centre examined the representation filed by Sri Anup Bihari Lal Srivastava but finding it to be misconceived and without any merit, rejected it by means of the order dated 11th November, 1996. It was noticed in the order that though Sri Sri Anup Bihari Lal Srivastava had been engaged on daily wages w.e.f. 23rd March, 1988 but there were many other employees in the Centre including Pradeep Jauhari and Ram Prakash Rai who are the petitioners in the Second Writ Petition who had been appointed after facing the Screening Committee on a consolidated pay much earlier to 23rd March, 1988. The claim for regularisation and promotion of Sri Anup Bihari Lal Srivasatava was, therefore, rejected. Thereafter an Office Order dated 18th January, 1997 was issued by the Centre appointing the petitioner on honorarium w.e.f. 1st January, 1997 on a fixed salary of Rs. 2000/- per month.
6. The order dated 11th November, 1996 was challenged by Sri Anup Bihari Lal Srivastava by filing the First Writ Petition. Surprisingly during the pendency of this Writ Petition an order dated 19th July, 2000 was issued by the Director of the Centre mentioning that as per the resolution dated 19th July, 2000 of the Executive Board, the services of Sri Anup Bihari Lal Srivastava have been regularised on the post of Section Officer in the pay scale of Rs. 6500-10500/- from the date he joined his duties. It is this order dated 19thJuly, 2000 which has been challenged in the Second Writ Petition on the ground that such regularisation was not permissible in law and the post of Section Officer was required to be filled up by the prescribed procedure.
7. I have heard Sri Ashok Khare, learned Senior Counsel for Sri Pradeep Jauhari and Sri Ram Prakash Rai, Sri P.N. Saksena, learned Senior counsel assisted by Sri Vipul Kumar for the Centre and Sri Rajiv Mishra for Sri Anup Bihari Lal Srivastava.
8. Sri Ashok Khare, learned Senior Counsel submitted that the order dated 19th July, 2000 which seeks to regularise the services of Sri Anup Bihari Lal Srivastava on the post of Section Officer is illegal and is liable to be set aside. In support of his contention he submitted that Sri Anup Bihari Lal Srivastava was initially working merely as a daily wager from 23rd March, 1988 and subsequently on honorarium basis on a fixed salary of Rs. 2000/- per month w.e.f. 1st January, 1997 and as he never worked as a Upper Division Clerk or a Section Officer, the question of regularising his services on the post of Section Officer does not arise at all. He further submitted that his claim for regularising his services had been specifically rejected by the Director by the order dated 11th November, 1996 which order had been challenged by Sri Anup Bihari Lal Srivastava by filing the First Writ Petition but even during the pendency of this Writ Petition the order dated 19th July, 2000 was passed.
9. Sri Rajiv Mishra, learned Counsel appearing for Sri Anup Bihari Lal Srivastava submitted that though he had been earlier engaged on daily wages to look after the Court cases of the Centre and to do such other works assigned to him by the officers of the Centre but thereafter he worked as an Upper Division Clerk as would be clear from the reference order of the State Government' made to the Labour Court. He further submitted that subsequently Sri Anup Bihari Lal Srivastava started doing the work of Section Officer and, therefore, the order dated 19th July, 2000 regularising his services as Section Officer was justified in law particularly in view of the oral observation made by the learned Judge in First Writ Petition as has been stated in the counter affidavit filed by the Centre. He further submitted that the petitioners cannot be said to be aggrieved by the order regularising the services of Sri Anup Bihari Lal Srivastava as they had not filed any impleadment application in Writ Petition No. 2187 of 1997. Sri P.N. Saksena assisted by Sri Vipul Kumar, learned Counsel appearing for the Centre supported the order dated 11th July, 2000.
10. It is not in dispute that Sri Anup Bihari Lal Srivastava was initially engaged on daily basis to look after the Court cases of the Centre and to do other works assigned to him by the officers of the Centre. His engagement was discontinued w.e.f. 26th December, 1990. He raised an Industrial Dispute as a result of which the matter was referred by the State Government to the Labour Court. It is true that the reference made by the State Government to the Labour Court does describe Sri Anup Bihari Lal Srivastava as an Upper Division Clerk but this fact was seriously disputed by the Centre before the Labour Court. The Labour Court noticed this objection raised on behalf of the Centre but did not decide this issue at all. It merely concentrated on the fact whether the employers were justified in disengaging workman with effect from 26th December, 1990. It concluded that as the workman had put in more than 240 days of service in the preceding 12 months, he was entitled for reinstatement and, therefore, reinstated him with continuity in service and full backwages.
11. On the basis of the award of the Labour Court Sri Anup Bihari Lal Srivastava could have continued only as a daily wager, which was his status prior to his disengagement with effect from 26th December, 1990. The award of the Labour Court could not and did not confer any better status upon him. In Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. the Supreme Court emphasized this position and the relevant portion is quoted below:
Would, by reason of the order of reinstatement, the status of the respondents change, is the question. In law, 240 days of continuous service by itself does not gave rise to claim permanence....
Furthermore, a direction for reinstatement for non-compliance with the provisions of Section 25-F of the Industrial Disputes Act would restore to the workman the same status which he held when terminated. The respondents would, thus, continue to be ticca mazdoors, meaning thereby their names would continue in the second list. They had worked only from April 1980 to December, 1982. They did not have any right to get work. The direction of continuity of service per se would not bring them within the purview of the terms of settlement....
12. The same view was taken by the Supreme Court in U.P. State Electricity Board, Agra and Anr. v. Natwar Singh (2005) 11 SCC 552 by observing:
However, the Industrial Tribunal in the operative portion of the order, while directing the reinstatement, held that the workman is entitled to reinstatement with full back wages and all service benefits from 16-12-1989 as if he was in continuous service. It further directed that he be paid full emoluments in the pay scale of Rs. 900-1190 from 1-4-1989 to 16-12-1989 and he should be paid full pay admissible to him as chowkidar in the scale of Rs. 900 to 1190 with all admissible allowances and from the date of completion of three years of service he had to be given all increments due to him and be appointed on a regular basis.
It is the case of the workman himself that his appointment was purely on ad hoc basis and he was being paid consolidated salary of Rs. 600 per month. It is while so serving as an ad hoc employee, his services were terminated without following the requirement of law under Section 6-N of the U.P. Industrial Disputes Act. If that be the case, then on being found that the ad hoc employee is entitled to reinstatement in the same post on the same pay scale as was being drawn by him on the date of his termination other questions like the management putting him on a particular pay scale and further regularization of his services will not arise. By doing this the Industrial Tribunal has gone beyond the scope of the dispute.
13. Pursuant to the award of the Labour Court, the Centre engaged Sri Anup Bihari Lal Srivastava with effect from 4th January, 1996. The Centre has not placed on record any order which may indicate that Sri Anup Bihari Lal Srivastava had been appointed/promoted as a Lower Division Clerk or an Upper Division Clerk. However, by the order dated 18th January, 1997 the Centre did appoint him on honorarium basis on a fixed salary of Rs. 2000/- per month. This order does not mention that he was a Lower Division Clerk or an Upper Division Clerk in the Centre. Sri Anup Bihari Lal Srivastava then filed Writ Petition No. 31585 of 1996 in which he claimed w.e.f. 23rd March, 1998. This petition was disposed of with a direction to decide the representation. The representation filed by him for seeking regularisation was rejected by the Director of the Centre by a detailed order dated 11th January, 1996. This order was challenged by him in the First Writ Petition and during the pendency of the said petition the order dated 19th July 2000 was passed by the Director of the Centre regularising his services on the post of Section Officer on the basis of the resolution of the Executive Board passed in the meeting held on 19th July, 2000. The proposal for regularisation is in respect of 11 persons employed on daily wages/remuneration. A perusal of the same shows that against the frozen post of Section Officer, the services of Sri Anup Bihari Lal Srivastava have been regularised. He has been shown to have been appointed on daily wages on 23rd March, 1988 and on remuneration basis w.e.f. 1st January, 1997.
14. It has, therefore, to be examined whether the Centre could have regularised the services of Sri Anup Bihari Lal Srivastava as a Section Officer. The concept of regularising the services of daily wager/ad-hoc employee/temporary employee has been considered by the Supreme Court time and again.
15. In State of M.P. and Anr. v. Dharam Bir , the Supreme Court observed:
Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any Government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation it is not open to any Government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service.
Applying these principles to the instant case, since the respondent, admittedly, was appointed in an ad hoc capacity, he would continue to hold the post in question in that capacity....
16. In Ramakrishna Kamat and Ors. v. State of Karnataka and Ors. , the Supreme Court rejected the plea for regularisation of services stating:
...We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government Orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment....
17. In Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan , the Supreme Court categorically held that there was no scope of regularisation unless the appointment was made on a regular basis.
18. In State of Haryana and Anr. v. Tilak Raj and Ors. , the Supreme Court held that a person appointed as a daily wager holds no post and is thus not entitled to claim the benefit of work.
19. In Jawaharlal Nehru Technology University v. T. Sumanlatha (Smt.) and Ors. , the Supreme Court rejected a similar contention stating:
...The learned Counsel, therefore, contends that there is every justification for absorbing the respondents concerned on regular basis in recognition of their long satisfactory service. The learned Counsel further contends that the ad hoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned Counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularisation. There is nothing on record to show that the employees concerned were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre.
20. In A. Umarani v. Registrar, Co-operative Societies and Ors. the Supreme Court examined whether the State Government was justified in issuing orders from time to time regularising the services of a large number of employees of the Co-operative Societies who had been appointed without notifying the vacancies to the Employment Exchanges and without following the other mandatory provisions. The Supreme Court upheld the decision of the High Court by which the order for regularisation was quashed and in this context it was observed:
Regularisation in our considered opinion is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization (See State of H.P. v. Suresh Kumar Verma and Anr..
21. A Constitution Bench of the Supreme Court of five Hon'ble Judges in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. JT 2006 (4) 420 examined at length the issue about regularisation of services of daily wage/ad hoc employees as there were conflicting decisions and it would be appropriate to refer to the relevant portions of the judgment which are as follows:
The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom?. Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench....
While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. It may be true that he is not in a position to bargain-not at arms 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 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 pubic appointment which is not permissible. If the court were to void a 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 administration and if imposed, would only mean that people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor 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 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, 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 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 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 of India....
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 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 could be made only by following a proper procedure for selection and in concerned cases, 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 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 being made permanent in the post.
It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service eve though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are, therefore, overruled.
Normally what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons....This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
(emphasis supplied)
22. The aforesaid decisions of the Supreme Court clearly lay down that it is not open to an employee to claim automatic alteration of his status unless it is specifically provided by some provision in the Rules. It has also been pointed out that regularization cannot be a mode of recruitment and an appointment made in violation of the provisions would be wholly illegal and such illegality cannot be cured by taking recourse to regularisation. The Supreme Court has also noticed that departments and instrumentalities of the States have been resorting to irregular appointments and have been permitting such appointees to continue year after year which deprives the other qualified persons from having an opportunity to compete and, therefore, in such cases any order for regularisation tends to defeat the very constitutional scheme of public employment. Such employees do not get the right to claim that they should be treated at par with regularly recruited candidates and made permanent in employment. It has also been observed that there is no fundamental right for those who have been employed on daily basis or temporary or on contractual basis to claim a right to be absorbed in service.
23. It is in the light of the principles enunciated by the Supreme Court in the aforementioned decisions that the action of the Centre in regularising the services of Sri Anup Bihari Lal Srivastava on the post of Section Officer has to be examined.
24. Sri Anup Bihari Lal Srivastava was initially engaged on daily wages and after his engagement pursuant to the award of the Labour Court, he filed a Writ Petition in this Court for a direction upon the respondents to regularise his services with effect from 23rd March, 1988. The petition was disposed of with a direction to the Director of the Centre to decide the representation. The representation was rejected by the Director by a detailed order and the engagement of Sri Anup Bihari Lal Srivastava on daily basis continued till 18th January, 1997 when he was appointed on honorarium basis on a fixed salary of Rs. 2000/- per month. There is no order on the record which may indicate that Sri Anup Bihari Lal Srivastava ever worked as a Lower Division Clerk or an Upper Division Clerk during this period. In fact the Centre had been contesting before the Labour Court that Sri Anup Bihari Lal Srivastava had never worked as an Upper Division Clerk. The Labour Court did not decide this issue. The reference made to the Labour Court was not whether he was working as an Upper Division Clerk or not and it was only required to examine the legality or otherwise of his disengagement with effect from 26th December, 1990. The order dated 18th January, 1997 by which he was appointed on honorarium also does not indicate that he was working as a Lower Division Clerk or an Upper Division Clerk. It is, therefore, clear that Sri Anup Bihari Lal Srivastava worked on honorarim basis on a fixed salary of Rs. 2000/- per month in the Centre with effect from 18th January, 1997.
25. "Honorarium" has been defined in Black's Law Dictionary, 6th Edition as:
In the civil law, an honorary or free gift, a gratuitous payment, as distinguished from hire or compensation for service.
A voluntary reward for that for which no remuneration could be collected by law. A voluntary donation, in consideration of services which admit of no compensation in money.
26. In Law Lexicon, 2nd Edition 'honorarium' has been defined as follows:
Honorarium. "Honorarium" is a voluntary donation in consideration of services which admit of no compensation in money.
HONORARIUM. Something given in gratitude for services rendered.
27. The initial order dated 15th March, 1988 by which Sri Anup Bihari Lal Srivastava was engaged on daily basis does not indicate whether any procedure was followed by the Centre before issuing the appointment order and nor has it been stated in the petition that any advertisement was issued by the Centre. In fact in paragraph 8 of the petition it has been stated that he had offered his candidature pursuant to which the appointment order was issued to him. Similar is the position with regard to his appointment on honorarium basis. The Centre has also not produced any Rule or Regulation which provides for regularization of services of the employees of the Centre and nor has Sri Anup Bihari Lal Srivastava placed before the Court any Rule or Regulation dealing with regularisation of the service of the Centre. The resolution of the Board also does not refer any Rule or Regulation. It is, therefore, really surprising that a person who had been initially engaged as a daily wager to look after the Court cases of the Centre was regularised as a Section Officer in the Centre and that too when his representation for regularisation of his services had been rejected by the Director by a detailed order dated 1lth November, 1996 which is under challenge in the First Writ Petition. There is no order on the record, which may indicate that he was ever worked as a Lower Division Clerk, Upper Division Clerk or as a Section Officer. It is shocking that by one resolution the Board has conferred a status of a Section Officer upon a daily wager who had initially been engaged to look after the Court cases and do some other incidental works as required by the officers of the Centre and thereafter appointed on honorarium basis. The appointment on honorarium basis, as pointed out above, merely provides a gratuitous payment which otherwise could not have been collected in law. In fact it is a voluntary donation in consideration of services. It must again be emphasised that the Centre has not placed any Rule of Regulation, which permits regularization of services. Thus, the decision taken by the Centre to regularise the services of Sri Anup Bihari Lal Srivastava cannot be sustained.
28. Learned Counsel appearing for the Centre has, however, made an attempt to defend the order of regularisation by stating that earlier during the course of hearing of the First Writ Petition in the year 2000, the Court had made some oral observation about the regularisation of services of Sri Anup Bihari Lal Srivastava on the post of Upper Division Clerk and further promotion on the post of Section Officer. The said paragraph has been sworn on personal knowledge without even mentioning that the deponent Dr. A.K. Pandey who was the Administrative Officer in the Centre was personally present in the Court. Such a contention cannot be believed particularly when the order for regularization of his services does not make any mention of this fact.
29. What must also be noticed is that Sri Pradeep Kumar Jauhari and Sri Ram Prakash Rai who are the petitioners in the Second Writ Petition were appointed as typists by means of the order dated 25th January, 1987 on a consolidated pay of Rs. 900/- per month. Sri Pradeep Kumar Jauhari was thereafter appointed as the Store Clerk by the order dated 1th September, 1987 on a consolidated salary of Rs. 1311/- after issuance of an advertisement and after facing the Selection Committee. Sri Ram Prakash Rai was also subsequently appointed as a Lower Division Clerk by the order dated 12th February, 1988 after inviting applications from the Employment Exchange and after holding the selection. In the Second Writ Petition filed by them, the Centre has stated in the counter affidavit that they had been appointed as Lower Division Clerks and till date they are working as such and unless they are promoted as Upper Division Clerks, they cannot claim promotion to the post of Section Officer. Thus, on the one hand the Centre has taken a very specific case that unless a person is appointed as an Upper Division Clerk, he cannot be promoted as a Section Officer but in the case of Sri Anup Bihari Lal Srivastava, even though there is no order on the record which may even remotely indicate that he had ever been appointed as a Lower Division Clerk or an Upper Division Clerk, he has been regularised as a Section Officer. As pointed out above, he was working merely as a daily wager from 3rd March, 1988 and thereafter on a honorarium basis with effect from 18th January, 1997.
30. An attempt has also been made to defend the order of regularisation by contending that under the award of the Labour Court, he was reinstated on the post of Upper Division Clerk but this is not factually correct. He was working as a daily wager prior to his disengagement with effect from 26th December, 1990 and the award of Labour Court could not have and did not confer a status better than that of a daily wager. In fact he continued to work as a daily wager and that is why he had filed the Writ Petition for regularising his services, which was disposed of with a direction to decide the representation. The representation was ultimately rejected and subsequently he was engaged on honorarium basis.
31. The contention advanced by Sri Rajeev Misra that Sri Pradeep Jauhari and Sri Ram Prakash Rai who are the petitioners in the Second Writ Petition cannot claim themselves to be aggrieved by the order regularising the services of Sri Anup Bihari Lal Srivastava as they had not filed any impleadment application in the First Writ Petition cannot also be accepted. They are aggrieved by the order dated 19th July, 2000 passed by the Director of the Centre regularising the services of Sri Anup Bihari Lal Srivastava on the post of Section Officer. They have challenged the said order as it is their contention that they are better placed them Sri Anup Bihari Lal Srivastava. This was also observed by the Director of the Centre in the order dated 11th November, 1996 by which the representation filed by Sri Anup Bihari Lal Srivastava for regularisation of services was rejected.
32. The aforesaid discussion clearly leads to the inevitable conclusion that the order dated 19th July 2000 passed by the Director of the Centre regularising the services of Sri Anup Bihari Lal Srivastava on the post of Section Officer in the Centre cannot be sustained and that there is no infirmity in the order dated 11th January, 1996 passed by the Director of the Centre rejecting the representation filed by Sri Anup Bihari Lal Srivastava for regularisation of his services.
33. The post of Section Officer has to be filled up in accordance with law. The question whether it has to be filled up by promotion or by direct recruitment is not an issue in this petition. In case it is required to be filled up by direct recruitment then the observations of the Supreme Court in Union Public Service Commission v. Girish Jayanti Lal Baghela and Ors. deserve to be mentioned. It was observed:
...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the Employment Exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution....
34. In the event it is required to be filled up by promotion then the procedure prescribed under the Rules/Regulations for the said purpose has to be absorbed.
35. For all the reasons stated above, Writ Petition No. 2187 of 1997 is dismissed while Writ Petition No. 33238 of 2000 is allowed. The order dated 19th July, 2000 passed by the Director of the Centre is quashed and a direction is issued to fill up the post of Section Officer in accordance with law.